Monday, October 01, 2018

The Cost of Canadian IP Capitulation in NAFTA.


Here are a few quick initial points on the IP chapter in the new NAFTA and Canada’s capitulation to US lobby groups, their Canadian surrogates and American bluffing and bullying.

The extension of the copyright term to life + 70 was a very unfortunate, gratuitous, unnecessary and costly mistake. This could cost Canada more than  $450 million a year and most of this would be outflows to the USA.  It will make research and education more expensive and chill innovation. And, according to at least a couple of respected Canadian academics, namely Ariel Katz and Graham Reynolds, it may well be unconstitutional.

The extension of criminal penalties is alarming and dangerous. This could affect employment relationships and even reach into class rooms, especially if the Federal Court’s decision in Access Copyright v. York University is not convincingly overturned on appeal.

It is of little or no use or comfort to say that Canada can reassess this in the future. Increasing IP rights is a one-way ratchet. There is rarely if ever a legally or politically acceptable way to back down from vested rights, no matter how improvidently bestowed.

This is a significant setback to the multilateral liberal order in free trade. Canada has now become a victim by capitulating to a bluffing bully regime bent on weakening or destroying institutions such as the WTO and WIPO. I have written about how Canada was smart and managed to mostly punch well above its weight and in its own best interests and even positively influence and show leadership on the world stage involving trade and IP for 150 years. It seems that those days are sadly over.

I have no doubt that Canada’s negotiators did their homework and did their best. But there will no doubt be lots of questions about whether there was adequate consultation and transparency, whether Canada should have called the American’s bluff and waited until the mid-terms are over, why we retreated from victories in CETA and CPTPP, etc. But for now, regarding the IP chapter, all that can be said is that Canada caved and capitulated “bigly”.


PS: Here's the statement of  Canadian Generic Pharmaceutical Association (CGPA), on the pharmaceutical intellectual property aspects of the United States-Mexico-Canada Agreement (USMCA). 

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