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In October 2007, several leading economies, including the U.S., European Union, and Canada, announced plans to negotiate the Anti-Counterfeiting Trade Agreement (ACTA).
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Despite being shrouded in secrecy, ACTA details slowly began to emerge, including revelations that lobby groups had been granted privileged access to the draft text as well as leaks that indicated that individual Internet users could be a prime target of new enforcement measures.
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The ACTA talks concluded in 2010, but the controversy over the deal continued to grow. Earlier this year, thousands took the streets in Europe to protest against an agreement that was negotiated in secret and that raised serious concerns about privacy and free speech.
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With public pressure mounting, the European Parliament voted overwhelmingly in July 2012 to reject ACTA, striking a major blow to the hopes of supporters who envisioned a landmark agreement that would set a new standard for intellectual property rights enforcement.
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The European Commission, which negotiates trade deals such as ACTA on behalf of the European Union, has vowed to revive the badly damaged agreement. Its most high-profile move has been to ask the European Court of Justice to rule on ACTA’s compatibility with fundamental European freedoms with the hope that a favourable ruling could allow the European Parliament to reconsider the issue.
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While the court referral has attracted the lion share of attention, there is an alternate secret strategy in which Canada plays a key role. According to recently leaked documents, the EU plans to use the Canada – EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.
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The CETA IP chapter has already attracted attention due to EU pharmaceutical patent demands that could add billions to provincial health care costs, but the bigger story may be that the same chapter features a word-for-word replica of ACTA. According to the leaked document, dated February 2012, Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measure rules. One of these provisions even specifically references ACTA.
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The EU has also proposed incorporating ACTA’s criminal enforcement and co-operation chapters into CETA. The criminal provisions were the target of European Parliament criticism for their lack of proportionality and uncertain application.
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Canada has similarly pushed for the inclusion of ACTA provisions, proposing identical digital lock rules as well as ACTA-style Internet service provider provisions that raised privacy concerns from the European Data Protection Supervisor. In fact, Canada would like to extend ACTA by mandating an anti-camcording provision (a similar provision is currently voluntary in ACTA).
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The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.
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Soon after the leaked CETA text came to light, the European Commission provided a response in which it claimed that the leaked February 2012 text was outdated and that the Internet provider provisions in CETA (which had mirrored ACTA) had been changed. Further, the EC argued that CETA was instead likely to be modeled after the EU – South Korea Free Trade Agreement.
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Yet that disclosure raised its own set of concerns. First, Canadian officials quickly denied using the South Korea deal as a model.
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Second, The EU – South Korea FTA is even 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. These provisions are not found in ACTA.
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Third, 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. The lack of transparency associated with ACTA in particular created enormous distrust and is widely viewed as one of the reasons for the massive public backlash against the agreement.
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Yet despite the obvious public opposition to secret negotiations, CETA faces a similar level of secrecy with no official releases of draft texts. With negotiators meeting this fall on CETA, both sides should agree to an immediate release of the draft text so that the public can provide informed commentary on the direction of the agreement.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
