Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Draft of Intellectual Property Chapter of Canada-EU CETA Different Than Other FTAs

Michael Geist has posted an excellent summary of the proposed intellectual property chapter of the Canada-EU Comprehensive Economic and Trade Agreement under negotiation. For a copy of his blog article, please go to the following link - http://www.michaelgeist.ca/content/view/4914/125/#comments.

Michael Geist rightly points out that:

The breadth of the demands are stunning - the EU is demanding nothing less than a complete overhaul of Canadian IP laws including copyright, trademark, databases, patent, geographic indications, and even plant variety rights.

I have reviewed over 100 free trade agreements, closer economic partnership agreements, economic partnership agreements, trade promotion agreements and closer economic cooperation agreements. The draft Canada-EU IP chapter is different than any IP chapter I have reviewed.

In many IP chapters of free trade agreements (no matter what they are called), the parties merely confirm their commitment to the WTO TRIPS agreement. In some IP chapters of free trade agreements, the parties enhance their WTO TRIPS commitments. The draft IP chapter of the Canada-EU CETA takes the concept of WTO TRIPS PLUS to a whole new level. It is stunning in its enhancements beyond WTO TRIPS commitments and commitments under existing international treaties on intellectual property.

As a Canadian, I am surprised because Canada and the EU are both developing countries. The draft IP chapter developed primarily by the EU negotiators seems to suggest that Canada is a rogue IP nation.

More importantly, the draft IP chapter is so far reaching that it is unclear whether it is consistent with the concept of the CETA, which is trade promotion. Canada and the EU are negotiating the CETA to improve and create trading opportunities for the many country/provincial beneficiaries.

This is not to suggest that all of the improvements to IP protection are bad. Canadian artists and musicians and film distributors have opportunities to benefit from some of the changes. The important question is whether all manufacturers and service providers and workers and investors will lose the chance at new opportunities do to an over-the-top starting position on IP?

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