[Post on michaelgeist.ca, Link, (CC-BY)] Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals – particularly those involving the U.S., European Union, and Australia – the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.
On April 30, the United States Trade Representative released the 2014 Special 301 Report, which fulfills its mandate under the Trade Act (19 U.S.C. § 2242) to identify countries that “deny adequate and effective protection of intellectual property rights, or deny fair and equitable market access to United States persons that rely upon intellectual property protection.” The report is based partially on input including the public comments and hearing statements that are available on regulations.gov, and partially on other inputs such as meetings with other government agencies. Below are six observations:
The Office of the US Trade Representative’s 2014 Special 301 Report is expected out shortly. The 301 Report places countries on a watch list for practices the US Government believes reflect “inadequate” intellectual property protection, even when these policies protect important public interests including health.
Public Citizen submitted comments in February to inform this year’s 301 Report. We address the TRIPS compliance and public interest value of specific rules and practices in India, Canada, Chile, Colombia, Indonesia, Peru, Philippines and Turkey. We also criticize 301 – the process should be discontinued entirely – and articulate several principles which could be applied to make meaningful the US Government’s relevant public health commitments, by not listing countries for public interest practices that comply with international rules.
[Foundation for a Free Information Infrastructure, Link, CC-BY-SA)]Today the German Pirate party published a leaked version of the intellectual property (IP) rights chapter of the EU – Canada trade agreement (CETA), version as of 17 December 2013.
See Carta blog: Piraten leaken CETA-Dokument zu IPR (German).
At first sight, the chapter does not go beyond EU law. That is not good news, in the sense that there are serious problems with EU IP law, exportation of EU law is not a good idea. EU IP law creates problems regarding access to knowledge and participation in culture, for remix artists, sequential innovation, and for software developers.
Yesterday, the Cato Institute hosted a panel on the Investor-State dispute brought by Eli Lilly against Canada under Chapter 11 of the North American Free Trade Agreement. The panel featured Mark Schultz from the Southern Illinois University School of Law, Burcu Kilic from Public Citizen, and Christopher Sands from the Hudson Institute. The trade dispute surrounds a Canadian court case in which Eli Lilly’s patent for Strattera was found to be invalid because it did not met the Canadian utility standards. The company alleges that the utility standards applied by the court – which require the patent applicant to demonstrate ‘promised utility’ at the time of filing – amount to an “unlawful expropriation of Claimant’s investments.”
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.