Investor-state dispute resolution is a growing concern for governments like Canada that should want to preserve policy space for regulating business activity. From licenses for fracking, mining, and timber cutting, to health and safety regulations, to labor policy, and to intellectual property rules, countries are finding their regulatory rules and decisions attached by investors whose expectations of future profits are affected by even-handed regulations or by appellate court decisions.
[La Quadrature du Net, Link, (CC-BY)] After more than four years of secret negotiations, the text of the Canada-Europe trade agreement, CETA, reached agreement in principle during a meeting between José Barroso, the President of the European Commission, and Stefen Harper, the Canadian Prime Minister. While waiting for evidence to ensure that CETA does not contain measures endangering our freedoms online, citizens and MEPs should be ready to reject this trade agreement.
On September 12, Eli Lilly formally submitted a Notice of Arbitration against Canada under the rules of the North American Free Trade Agreement (NAFTA). The filing is here.
Eli Lilly alleges that Canada violated its NAFTA intellectual property obligations when its courts found the patents for two of its drugs to be invalid. The drug patents in question – covering Lilly’s products Strattera and Zyprexa – had been successfully challenged by generic firms in 2009 and 2010, which argued that the patents failed to meet Canadian usefulness standards.
[Posted to michaelgeist.ca (CC-BY)(Link)] Copyright cases typically only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. As readers of this blog know, on July 12, 2012, the Supreme Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.
I am delighted to report that this week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy.
[Posted to MichaelGeist.ca, (CC-BY)] Months after the Supreme Court of Canada delivered a stinging defeat to Access Copyright by ruling for an expansive approach to fair dealing and the government passed copyright reforms that further expanded the scope of fair dealing, the copyright collective responded yesterday with what amounts to a desperate declaration of war against fair dealing. In the aftermath of the court decisions and legislative reforms, a consensus emerged within the Canadian education community on the scope of fair dealing. The fair dealing policies used guidance from the Supreme Court to establish clear limits on copying and eliminate claims that the law was now a free-for-all. In developing those fair dealing policies, however, many institutions no longer saw much value in the Access Copyright licence.
Today, the U.S. Trade Representative posted the 2013 Trade Policy Agenda and 2012 Trade Policy Report. The report covers trade negotiations existing trade agreements, and enforcement activities for all sectors.
At first glance, one strange item stands out: the U.S. “encourages” Canada “to meet its Anti-Counterfeiting Trade Agreement obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated goods throughout its territory.” (p.140) ACTA Obligations?
[Posted by Henning Grosse Ruse-Khan on the International Economic Law and Policy Blog (CC BY-NC 2.5)] Last week, Luke Peterson reported that the U.S. based pharma corporation Eli Lilly has put Canada on notice of its intent to submit a claim to arbitration under NAFTA Chapter 11 following the invalidation of some of its patents by Canadian courts (http://www.iareporter.com/articles/20121203_2). The Notice of 7 November 2012 is now available on Andrew Newcombe’s website (http://italaw.com/cases/1625). It reveals an interesting new interface between international IP and investment law.
[Posted on creativecommons.ca, CC-BY] In response to the Government of Canada’s call for comments on the Proposed Open Government Licence Agreement, Creative Commons Canada submitted the feedback posted below. The government plans to apply this licence to many of the hundreds of thousands of copyrighted works that it shares with the Canadian public. We feel it is important that the government ensures its licence is “Creative Commons friendly” so that everyone may enjoy these public materials and freely remix them with existing Creative Commons works. Our commentary adds our voice to other excellent feedback from the Open Definition Advisory Council, Herb Lainchbury and Teresa Scassa.
Yesterday, the Canadian Parliament voted down Bill C-398, which would have streamlined the Canadian legal framework allowing generic firms to export medicines produced under compulsory license to developing countries.
The existing framework, Canada’s Access to Medicines Regime (CAMR), establishes a mechanism for firms to produce essential drugs that are under patent in Canada and export them to developing countries. The mechanism involves steps to comply with WTO rules on compulsory licenses. However, the Canadian system (and the WTO system) have been criticized as overly bureaucratic and cumbersome – and therefore ineffective. Since the CAMR went into effect in 2004, only one generic firm has used it, for one shipment of medicines.
On Wednesday, November 28, the Canadian Parliament will vote on Bill C-398, legislation to reform the Canada’s Access to Medicines Regime (CAMR). This is the law that was passed in 2004 to allow generic firms in Canada to export medicines produced under compulsory license to developing countries. CAMR establishes a framework that complies with the WTO’s amendments to the TRIPS Agreement regarding compulsory licenses for drugs not meant primarily for domestic markets. However, the framework has proved too cumbersome for practical application – only one shipment of drugs has ever resulted from a generic firm using the CAMR system.
The Canadian HIV/AIDS Legal Network explains the change in the legislation: “The ‘one-licence solution’ is at the heart of the reforms needed to fix CAMR.
British Columbia’s Ministry of Advanced Education, Innovation and Technology has announced that it will “offer students free online, open textbooks for the 40 most popular post-secondary courses.” The textbooks will be created “created with input from B.C. faculty, institutions and publishers through an open Request for Proposal process coordinated by BCcampus, a publicly funded organization that aims to make higher education available to everyone through the smart use of collaborative information technology services.” BCcampus said in a statement that the textbooks will be made available for free under Creative Commons licenses, or available in printed form for a low cost. Executive Director David Porter explained in a statement that “Open licenses are integral to making textbooks free for students, and flexible enough for instructors to customize the material to suit their courses.”