Friday, May 08, 2009

Some Possible Canada EU FTA IP issues

The Canada/EU FTA negotation process is underway. The EU has published a consultation document (HT to Jamie Love) asking what stakeholders think of Canada.

From an IP standpoint, there are many clear opportunities and pitfalls for Canadian interests depending on point of view. For example, consider the following - which apart from the first and the above illustrations relate to copyright law:

1. The EU is very aggressive on geographical indications. Does Canada want to take away the right of its food manufacturers, retailers and restaurants to sell domestically made products such as the following that we have referred to for years as:
a. "parmesan" cheese
b. “dijon” mustard
c. “prosciutto” ham?

2. The EU is has a life plus 70 year copyright term and is heading towards a 70 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.

3. 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.

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 allowing 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 in 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 the still secretive ACTA process.

7. The EU also has a rather strange database protection regime, which has led to some odd results in terms of "extraction" of information. Whether the EU will press for this remains to be seen.

I have not yet considered patent or trade-marks law, or the seal hunt.

1 comment:

  1. Thought you may be interested in this:

    "Responding to the call from WIPO Member States for intensified cooperation between WIPO and UNCTAD, UNCTAD and the International Centre on Trade and Sustainable Development (ICTSD) are organizing, on 29 May 2009, a lunch time side event to the upcoming meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR).

    The side event will focus on innovative ideas of how to promote creativity in the digital environment and to strike an appropriate balance between the interests of copyright holders and users.

    Key speakers will be Professor Reto M. Hilty, Director, Max-Planck-Institute for Intellectual Property, Munich, who will present the "Munich Declaration on a Balanced Interpretation of the ´Three-Step Test´ in Copyright Law" and Professor Jerome H. Reichman, Duke University School of Law, who will speak on "Sustainable Innovation in the Digital Environment: The Crucial Role of Copyright Law´s Limitations and Exceptions".

    Participants will have the opportunity to exchange views and engage in a substantive discussion will the panelists."