February 28, 2014

Tentative remarks on leaked CETA IP chapter

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Update: Since the publication of this blog the European Commission has published two new versions. These do not change the analysis; the remarks are also valid for the consolidated CETA text and the CETA final text (Chapter 20), the version to be ratified or rejected. I added the new article numbers.

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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.

The FFII called upon the EU commission to solve such problems and make EU law compatible with the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). The commission takes the wrong turn by exporting EU IP law. If we suffer from this, the Canadians should suffer as well? We need policy space for reform, not further lock-in, nor should we export harm. Software patent trolls will be happy.

Compared with ACTA

The damages in CETA do not contain the much criticized retail price damages, which were part of ACTA, the Anti-Counterfeiting Trade Agreement, and are part of the EU – Singapore trade agreement proposal.

The injunctions do not contain “inaudita altera parte”, the much dreaded possibility to decide on injunctions without the infringer present.

So far so good. But, I do not see what was footnote 2 in ACTA, and is footnote 33 in the EU – Singapore agreement, the right to exclude patents from the scope of the civil enforcement section.

All the strong enforcement measures (damages, injunctions, provisional measures) will be available for software patent trolls.

The strong enforcement measures further create problems for access to knowledge and taking part in culture, for remix artists, and for inventors involved in sequential invention – like software developers.

Applying strong enforcement measures where they should not be applied harms citizen’s economic, social, cultural, civil and political rights.

Objectives of CETA

Article 1 states the objectives. (CETA final article 20.1, page 150)

“The objectives of this chapter are to:
(a) facilitate the production and commercialization of innovative and creative products, and the provision of services, between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights.”

Not a word about access to knowledge and participation in culture. This world needs solutions, like patent delinkage for better access to medicine, but the commission only wants better commercialization. And harming sequential innovation does not help innovation.

Article 5.1 (-> 20.7, page 151) mentions a whole series of rights treaties, such as the Berne Convention, WIPO Copyright Treaty, WIPO Performances and Phonograms Treat, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Not a word about the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides a much better balance than IP rights.

ISDS

Furthermore, the table of contents reveals that there will be 71 pages on investor-to-state dispute settlement (ISDS), which puts investment tribunals above our supreme courts. Investor-to-state dispute settlement gives multinationals the right to sue states before special tribunals if changes in law may lead to lower profits than expected. Multinationals can challenge reform of copyright and patent law, challenge environmental and health policies.

ISDS alone is a reason to vehemently oppose CETA. (Update: see here)

Access to medicine

There are many provisions on pharmaceutical products. I leave these to experts in this field to comment on.

TPM

There are many provisions on technical protection measures. I do not have sufficient knowledge here, I assume they go further than WIPO treaties, otherwise there is no reason for them in this text. This then further limits EU policy space.

See also: Bits of Freedom: Hey CETA, Je Lekt Iets (Dutch)
iRights.info: Was das CETA-Abkommen fürs Urheberrecht bedeuten könnte (German)