Gateway to Think Tanks
来源类型 | Opinion |
规范类型 | 评论 |
Canada Can Stand Its Ground on Copyright in NAFTA Renegotiations | |
Howard P. Knopf; Howard P. Knopf; E. Richard Gold; Ariel Katz; Michael Geist; Teresa Scassa; Jean-Frédéric Morin; E. Richard Gold; Andrew Torrance; Marsha Cadogan; Ysolde Gendreau; Oluwatobiloba (Tobi) Moody; Konstantia Koutouki | |
发表日期 | 2017-08-09 |
出处 | 2017 |
语种 | 英语 |
摘要 | This article is part of a series about what the renegotiation of the North American Free Trade Agreement means for the knowledge economy in Canada and the people who turn ideas into innovations within one of the world’s largest free trade zones. Intellectual property (IP) and copyright in particular have played a crucial role at critical times in Canada’s evolution from a colony to a serious sovereign player in the G7 and G20. Copyright became a key component of the various free trade agreements that began to incorporate IP, beginning with the Canada-United States Free Trade Agreement (CUSFTA) in 1987. The North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) Uruguay agreements followed in 1994, and countless others have appeared since. Various themes have persisted since the nineteenth century in Canada. For example:
It will be recalled that the Mulroney government made two crucial IP concessions at the outset in the CUSFTA negotiation. First, Canada agreed to get rid of compulsory licensing for pharmaceuticals and to greatly increase drug patent protection. This was done in Bill C-22. Canada also agreed to provide a cable retransmission right, which was estimated to be a minor cost at the time but now costs Canadians more than $100 million a year — and may double, depending on the long-awaited decision of the Copyright Board. The American “Summary of Objectives for the NAFTA Renegotiation,” released July 17, 2017, says nothing specific about copyright. Instead, it states that its objective is to “ensure provisions governing intellectual property rights reflect a standard of protection similar to that found in U.S. law.” However, “similar” does not mean “identical,” and Canadian copyright laws are not only similar to but actually stronger and better than US laws in several ways, as shown below. Canada should plan to take the position that there is simply no need to talk about IP law generally, or copyright law in particular, in the NAFTA renegotiations. Canada is compliant with all major multilateral IP treaties — arguably much more so than the United States. Canada and the European Union have just agreed on the Comprehensive Economic and Trade Agreement, a free trade model that is the best and most recent template. Moreover, the Supreme Court of Canada (SCC) has ironically, fortuitously and — doubtless without any political motivation — just effectively conceded what could have been arguably Canada’s two best IP bargaining chips. In the June 30, 2017, AstraZeneca v Apotex decision, the SCC decisively undid decades of careful Canadian jurisprudence concerning the patent “promise doctrine.” According to Richard Gold, “The court concluded in a ruling that inventors are now free to make unsubstantiated claims about their inventions and still receive a patent.” That is a huge victory for the American drug industry and also extremely ironic, since Canada had just been vindicated in a NAFTA investor-state dispute pursued by Eli Lilly after the SCC had refused to even consider the “promise doctrine” issue four years earlier. The other big decision came on June 28, 2017, in Google v Equustek, when the SCC ruled, in effect, that anyone with an arguable IP right in British Columbia (that is, virtually any film studio or record company) can obtain a worldwide extraterritorial interlocutory injunction forcing Google to de-index all links to an alleged infringer’s websites. This could turn Canada into a busy IP enforcement tourist destination, in particular for multinational copyright and trademark owners seeking easy, and most likely unopposed, one-stop worldwide interlocutory injunctions that will effectively be the end of the line in most cases where defendants rely on the internet. IP, and copyright in particular, have played a crucial role at critical times in Canada’s evolution from a colony to a serious sovereign player in the G7 and G20.
Seen one way, these two SCC cases could weaken Canada’s NAFTA IP hand — since Canada has lost its best bargaining advantage even before the game has even begun. Seen from another perspective, this may just provide the rationale for Canada to walk away from the IP part of the NAFTA renegotiations, because the United States has already won more by happenstance from the SCC than it could have ever expected from the Canadian government. There have also been some lower court developments that US copyright lobbyists will love, including a decision on anti-circumvention and a preliminary ruling on reverse class actions that could set the stage for corporate copyright trolling. Nonetheless, the usual American copyright lobbying suspects and their Canadian surrogates will likely press certain points. For each, there are good responses.
Canada can demonstrate that its copyright laws are stronger and better in important ways than those of the United States. For example:
Canada should stand its ground on copyright in any NAFTA renegotiation and “just say no” as needed. |
主题 | Innovation & Productivity |
子主题 | Intellectual Property Law |
URL | https://www.cigionline.org/articles/canada-can-stand-its-ground-copyright-nafta-renegotiations |
来源智库 | Centre for International Governance Innovation (Canada) |
资源类型 | 智库出版物 |
条目标识符 | http://119.78.100.153/handle/2XGU8XDN/183887 |
推荐引用方式 GB/T 7714 | Howard P. Knopf,Howard P. Knopf,E. Richard Gold,et al. Canada Can Stand Its Ground on Copyright in NAFTA Renegotiations. 2017. |
条目包含的文件 | 条目无相关文件。 |
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