As more details emerge on the secretly negotiated trade agreement between Canada and the European Union, online rights activists are voicing their opinions on why it is a bad idea and why they are getting a strange sense of déjà vu. Critics of the Anti-Counterfeiting Trade Agreement, which was ultimately voted down by the European Parliament, have warned that those forces in Europe and other parts of the world behind such treaties will continue to push parts of that treaty that most citizens do not want.
Michael Geist is one such critic. The law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law has analyzed the CETA treaty and come to the conclusion that the Canada – EU Trade Agreement's intellectual property chapter shares some striking similarities to provisions found in ACTA. The European Commission said that CETA features an IPR chapter similar to what is inside the Korea FTA, which was endorsed by a broad majority in the Parliament, and has been in force for over a year. That apparently makes it perfectly acceptable.
Geist's offers a lengthy dissection of CETA, with six reasons why there is (or should be) a reluctance on the part of Canadians to agree to such a treaty. We offer abridged versions of each point below, but you can find in-depth analysis here.
- Earlier CETA leaks (this version is from early 2011) did indeed rely heavily on the EU – South Korea FTA, yet Canada did not agree to those terms. The EU – South Korea FTA would require significant changes to Canadian law and there is no indication that Canada is prepared to make those changes.
- The EU – South Korea FTA is more problematic than ACTA in certain respects. The scope of the EU – South Korea FTA is far broader as it includes copyright term extension (it would require Canada to extend the term of copyright by an additional 20 years), a wide range of broadcasting rights, an artists' resale right, detailed provisions on design rights, and potential criminal liability for geographical indications violations.
- Even assuming the adoption of the Internet provider provisions in the EU – South Korea FTA instead of the ACTA approach, there are still serious concerns. For example, that EU – South Korea FTA includes a specific provision that permits the use of website blocking and three-strikes systems. The EU – South Korea FTA Internet provider provisions also contemplate removal of content without a court order, as the limitation on liability for hosting ends when a provider becomes aware of a potential illegal activity and does not act expeditiously to remove or disable access to the information.
- Changing the Internet provider provision alone does not even address all the concerns associated with the ACTA/CETA Internet chapter. For example, the ACTA/CETA technological protection measures provisions (often referred to as digital locks) has more expansive language than that found in EU – South Korea FTA.
- While the European Commission has indicated that the ACTA Internet provider provision has been changed in CETA, this only touches on part of a much bigger problem as there are also concerns with the civil enforcement, criminal enforcement, and border measures provisions.
- If there is a common bond between ACTA, CETA and the EU – South Korea FTA, it is that all three agreements were shrouded in secrecy during the negotiations.
We will continue to follow developments on CETA and other ACTA-like treaties as they develop.