Canada - EU FTA - Consultation Deadline January 20, 2009

A possible Canada - European Union (“EU”) Free Trade Agreement (“FTA”) is in the works. For whatever reason, the Government is calling it a “comprehensive economic agreement” and not an FTA. On December 20, 2008 the Canadian Government announced a consultation process.

There is an effectively hidden deadline to comment of next Tuesday, January 20, 2009.

There is a lengthy paper setting the stage for the many issues that could arise in these negotiations. There is a ten page discussion of IP issues.

The IP discussion does not explain the potential complexities and controversies that could arise. The Government of Canada expects a response from the pubic by January 20, 2009. This is somewhat astonishing, given the announcement of “consultation” only on December 20, 2009 - five days before Christmas. It is unclear why this extremely short deadline is in effect.

There is probably little awareness of the deadline. True, the notice was published in the Canada Gazette. But, as the late Gordon F. Henderson said, the best way to keep a secret in Ottawa can be to publish it in the Canada Gazette.

Considering the timing of the announcement just before the Christmas break, the focusing of attention on the forthcoming budget, and the coincidence of the one month deadline with the US Obama Inauguration events, the short deadline suggests that the Government wants this initiative to get as little attention as possible.

From an IP standpoint, there are some obvious opportunities and pitfalls depending on point of view:

1. The EU is has a life plus 70 year copyright term and is heading towards a 95 year term for sound recordings. The EU will clearly not harmonize downwards to meet Canada on this. Canada will be under great pressure to harmonize “upwards” to these lengthy terms. This would clearly be highly controversial in Canada.

2. The EU will doubtless press for quick Canadian ratification of the 1996 WIPO internet treaties, even though the EU has not ratified these treaties to date and has been claiming that such ratification is imminent for many years.

3. The EU is very aggressive on “appellations d’origine” or geographical indications. Does Canada want to take away the right of its cheese manufacturers, retailers and restaurants to sell domestic “parmesan” cheese, for example?

4. The EU has a very complex labyrinth of laws concerning parallel imports or “grey market” products. Essentially, they amount to a strong “Fortress Europe” regime to keep parallel imports out but such products are allowed to flow freely within the EU if they have been imported with the appropriate “consent”, whatever that may mean. If goods can flow freely between Canada and the EU, the EU will probably want Canada to drastically change its laws to tighten up the possibility of parallel imports into Canada because Canada could become a “back door” to Europe. This could prove costly for Canadian consumers, because IP has hitherto been essentially ineffective to block parallel imports of consumer goods into Canada, except for books. The EU is generally a very “high price” market for the types of goods that are subject to parallel trade, perhaps is large part because of its IP policies on parallel imports.

5. The EU has much more a much active antitrust policy and enforcement mind set and mechanism than Canada, and is extremely cognizant that IP rights are prone to abuse and other anticompetitive practices.

6. The EU will no doubt press for expanded ex officio border actions without Court orders that could interfere with legitimate trade and may not be necessary or desirable from a Canadian standpoint. This effort will no doubt be linked to ACTA.

7. The EU also has an unfortunate database protection regime, which has led to some bad results in terms of “extraction” of information. Whether the EU will press for this remains to be seen.

HK