CETA
CETA
Introduction
In 2002, the European Commission and the Government of Canada agreed to “design a new type of forward-looking, wide-ranging bilateral trade agreement covering…new generation issues and outstanding trade barriers.”
On May 6, 2009, Canada and the European Union (EU) announced the launch of formal negotiations towards the new trade and investment agreement, the Comprehensive Economic and Trade Agreement (CETA).
CETA is intended to build upon previous economic cooperation agreements between Canada and the EU, starting with the 1976 Framework Agreement for Commercial and Economic Co-operation, as well as the 1998 EU-Canada Trade Initiative.
While the scope of CETA is broad, this F.A.Q. will focus on intellectual property issues.
This F.A.Q. was supported by the Social Sciences and Humanities Research Council
F.A.Q.
What is CETA?
The Comprehensive Economic and Trade Agreement (CETA) is a bilateral trade and investment agreement being negotiated by Canada and the European Union. The agreement aims to strengthen the economic ties between EU and Canada, and enhance trade and investment flows between them.
CETA is the most far-reaching economic agreement negotiated by either party. For Canada, it will be broader than the Canada – US Free Trade Agreement and the North American Free Trade Agreement (NAFTA). The negotiating agenda includes trade in goods and services; investment; government procurement; regulatory cooperation; intellectual property; e-commerce, temporary entry of business persons; competition policy; labour; and environment.
Who is involved in the negotiations?
The Government of Canada and the European Commission are negotiating the agreement. However, for the first time in a Canadian free trade negotiation, Canada’s provincial and territorial governments are involved in the negotiations in their areas of competence.
When are CETA negotiations taking place?
Negotiations are well underway. They commenced in the fall of 2009. Seven subsequent negotiating rounds have been held. One more is scheduled for July 2011. It is expected that the negotiations will conclude in 2011.
Why is CETA being negotiated?
Canada and the EU are heavily dependent on international trade and investment for the health of their economies. Proponents of the negotiations are of the view that better access to each other’s markets would generate significant economic advantages such as increased trade and investment flows, job growth, and higher wages.
In recent years, the relative importance of the EU in Canada’s trade has increased. The value of Canadian trade with the EU has grown. While Canada’s relative position in EU trade has decreased slightly when compared with the EU’s trading relationships with countries such as India and South Korea, there appears to be scope for increased trade and investment activity between Canada and the EU.
CETA would provide Canadian industry with better access to the world’s largest single common market, foreign investor and trader – the EU has a total population of over 500 million and a GDP of $18.7 trillion in 2009. As an integrated block, the EU is Canada's second largest trading partner in goods and services, behind only the United States. In 2009, Canadian goods and services exports to the EU totaled $44.3 billion, and imports from the EU amounted to $54.1 billion. Canada is the EU’s 11th most important trading partner.
The EU is also the second largest source of foreign investment (FDI) in Canada, while Canada is the fourth largest source of foreign investment in the EU.
What are the benefits?
An analysis of the costs and benefits of a free trade agreement undertaken by the European Commission and the Government of Canada estimated that CETA could generate an annual real income gain of €11.6 billion ($16.2 billion) for the EU and approximately €8.2 billion ($11.4 billion) for Canada. Canadian industries that would benefit significantly from the agreement include, among others, processed foods, primary agriculture, metals, transportation services, transport equipment and machinery and equipment. EU industries that stand to benefit include processed foods, chemicals, machinery and equipment and transportation services.
What are the risks?
Critics are of the view that the agreement will generate few real and sustainable benefits for Canada over the long term. They point out that Canada already suffers from a trade deficit with the EU which will only grow with a free trade agreement. In fact, the importance of Canadian imports to the EU, as a percentage of total EU imports, has been declining.
Canada’s exports to the EU are primarily in basic resources and processing whereas the majority of Canada’s imports from the EU are in value-added products. Critics point out that Canada’s ability to move away from exporting raw or low-processed goods will be compromised by the agreement, and that Canada’s productivity will suffer.
Critics have also pointed out that the EU is pushing Canada to adopt more stringent intellectual property laws, which will increase the costs of IP protected goods such as patented medicines. The EU is also pushing Canada to open up public services such as urban transportation, water, electricity, and postal services to foreign competition. As the EU has world leading companies in these areas, the EU stands to benefit significantly from such competition. Finally, critics have questioned the methodology and the results of the Canada – EU benefits study cited above.
Has the Government consulted with Canadians on the negotiations?
The Department of Foreign Affairs and International Trade (DFAIT) did not conduct any consultation meetings. However, it invited input from Canadians in three separate contexts. No report or summary of input has been publicly made available.
In the first consultation, for which the deadline was January, 20 2009, DFAIT invited Canadians’ input on the possible scope of the agreement. It also sought Canadians’ views on priorities, objectives and concerns relating to the negotiations.
In the second consultation, the government sought input on various issues pertaining to the negotiations through a questionnaire, for which the deadline was June 30, 2009. The questionnaire was oriented to businesses and business associations, and sought input on barriers that Canadians faced doing business in the EU in the areas of trade in goods and services, investment, and the mobility of people travelling for business.
The government also invited interested stakeholders to submit their views on any likely and significant environmental impacts on Canada resulting from the CETA by September 18, 2009. The government conducts Strategic Environmental Impact assessments for trade negotiations.
What do we know about the negotiations?
We know very little beyond the broad range of trade areas being negotiated. The government of Canada has stated that it is government policy not to release texts during free trade agreement negotiations.
However, the IP Chapter has been leaked. Please see below.
IP Chapter
What is being negotiated in the IP chapter?
The leaked IP chapter is the starting point for negotiations and does not necessarily represent what will be in the final agreement. It covers all aspects of intellectual property rights, from copyright to patents to plant production, geographical indications, designs and trademarks. It addresses substantive rights as well as enforcement measures, calculation of damages, liability of intermediary service providers and border measures.
Critics have described the IP chapter as far reaching. It would significantly increase IP protection and enforcement beyond Canada’s existing commitments to international treaties such as the World Trade Organization’s Agreement on Trade Related Intellectual Property Rights (TRIPs). Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and E-commerce Law, has stated: “the breadth of the demands are stunning – the EU is demanding nothing less than a complete overhaul of Canadian IP laws including copyright, trademark, databases, patents, geographic indications and even plant variety rights.”
What are the benefits of increased IPR protection and enforcement as contained in CETA?
A report for the European Commission observes that the IP chapter will likely benefit specific sectors such as the Canadian publishing industry and Canada’s innovative pharmaceutical industry. Strengthened IPRs may result in increased FDI flows and technology transfer, and may generate job growth in sectors such as software development, which pay higher wages. A resale right could benefits artists.
The report also concluded that the CETA IPR chapter will likely have positive impacts on the EU by increasing the royalties and fees paid to European rights holders, and opening new markets for GI protected food products.
What are the risks of increased IPR protection and enforcement as contained in CETA?
According to Professor Michael Geist, a professor of law at the University of Ottawa who holds the Canada Research Chair in Internet and E-commerce Law, the leaked CETA document is “incredibly troubling”. As he puts it:
When combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law. The notion of a "made-in-Canada" approach - already under threat from ACTA - would be lost entirely, replaced by a made-in-Washington-and-Brussels law.
According to Mike Masnick, CEO and founder of Techdirt (a blog that focuses on technology news and tech-related issues), copyright term extension and resale rights in CETA are problematic:
Copyright term extension is just pointless, and it's amazing that anyone still thinks it makes sense. The purpose of copyright is to create incentives to create. You can't retroactively do that. It's a farce. Copyright term extension is effectively a welfare program for content creators. If that's what people want, then fine, but it should be discussed in those terms. It has nothing to do with copyright.
Resale rights are another huge problem…They're officially to "help" up-and-coming artists, but they do the opposite. They basically give fewer reasons for buyers to purchase art from up-and-coming artists (knowing that selling them for profit will be that much more difficult) and really only help the well-established artists who can easily make more money by creating new art and selling it at much higher prices.
It, again, is a welfare system designed mainly to give more money to successful artists at the expense of up-and-coming artists.
Further, the overall conclusion of an impact analysis prepared for the EC is that the IPR provisions propose in CETA are likely to have negative impacts on Canada. These impacts include:
-
an increase in Canada’s negative balance of trade in IPR protected goods: Canada is a net importer of IPR goods while the EU is a net exporter, and this imbalance will only increase with an agreement.
-
no benefits, and some adverse impacts, from the adoption of geographical indications over food products. Canadian firms selling products that are considered to be European GIs would be forced to stop using these labels and would likely lose market share while it is unlikely that Canadian producers would benefit from increased sales in Europe of Canadian geographical indications.
-
an increase in payments of license fees and royalties by Canadians to European rights holders. Canada already suffers a negative balance in payments of royalties and license fees with the EU. Enhancing Canada’s IP regime to match that of the EU will only increase this deficit.
-
higher prices for consumers, particularly for patented goods such as pharmaceutical drugs, food products protected by geographical indications, and goods protected by industrial design rights. The EU SIA states that “it is very likely that CETA will create an inflationary pressure on consumer prices.”
-
higher costs for governments. The provincial and federal governments are likely to face increased costs for the purchase of pharmaceutical products and educational materials in particular. While the federal government may see increased revenues from reducing piracy and counterfeit goods, it also faces additional costs in enforcing of IPRs.
-
no increase in innovative products.
How does CETA relate to other international IP – related agreements?
As currently worded, CETA would establish obligations that exceed what is required by the principle international IP-related agreements, including TRIPs and the WIPO Internet Treaties (the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)). CETA would also require Canada to ensure an “adequate and effective implementation of the international treaties dealing with intellectual property” to which Canada is party.
CETA would thus require Canada to accede to the WIPO Internet Treaties, the Hague System for the International Registration of Industrial Designs (art. 8.1) as well as the following treaties: Trademark Law Treaty (art. 6.1), Singapore Treaty on the Law of Trademarks (2006) and Madrid Agreement concerning the International Registration of Marks and the Related Protocol (art. 6.1). Canada also needs to comply with articles 1 to 16 of the Patent Law Treaty (art. 9.1)
Canada has introduced legislation to implement the WIPO Internet Treaties (the on several occasions. The most effort, Bill C-32, died on the order paper when the election was called in March, 2011.
Does CETA resemble the recently concluded Anti Counterfeiting Trade Agreement (ACTA)?
Yes. CETA resembles ACTA in a number of important ways. For example, they both target makers and distributors of technology protection circumvention devices. They both prohibit circumvention outright, without regard to whether copyright was infringed or whether the circumvention was for reasons that had nothing to do with the copyright work. In addition, they both provide a full section on new border measures to target infringement. These include procedures which will enable customs officials to seize goods suspected of infringing an intellectual property right.
How does CETA differ from ACTA?
CETA differs from ACTA in a number of ways. It addresses the protection as well as the enforcement of IPRs.
CETA expands IP protection. For example, it would extend the term of copyright protection and require the implementation of a new resale right to provide artists with a royalty based on any resale of their works (subsequent to the first sale). It would establish new geographical indications protection, and extend the term of pharmaceutical and agricultural patents in certain situations. ACTA does not address these substantive rights issues.
In the area of enforcement of IP rights in the digital environment, CETA uses a notice-and-inform system for ISP liability. ISPs who receive notices of alleged illegal activities must promptly inform the competent public authorities and provide information regarding the identity of the subscriber. ACTA allows for this approach, but does not require it.
Copyright Law
What changes will CETA require to Canada’s copyright law?
Under CETA, Canada would have to implement a broad range of new rights for broadcasters, authors, performers, and producers of sound recordings and films. In brief, CETA would require:
-
An extension of the term of copyright to life of the author plus 70 years. Canada currently protects copyright for life plus 50 years.
-
An extension of the term of copyright over broadcasts from any medium (wire, wireless, cable, satellite, etc) for a term of 50 years. Canada would only extend the term for wireless broadcasts.
-
A resale right for works of art, i.e., payment of a royalty based on the sale price of a work for any sale after the first sale by the author
-
A new exclusive right of fixation for broadcasts from any medium. Canada would limit the right to wireless broadcasts.
-
A new exclusive right for broadcasters for retransmission in public places, for example in bars and shopping malls.
-
A new distribution right for authors, and a making available right for performers, producers and broadcasters;
-
An extension of the reproduction right to performers, producers and broadcasters
-
An extension of the communication right to performers, phonogram producers, film producers, and broadcasters.
How does CETA approach technological protection measures (TPMs) / digital locks? (art. 5.13-5.14)
CETA would require Canada to protect against the circumvention of effective technological measures, i.e., digital locks, where the individual knew or should have known they were circumventing the lock. CETA would also require a ban on the possession or trading in circumvention devices or services for commercial purposes.
Canada introduced anti-circumvention measures in Bill C-32, its most recent attempt to modernize Canada’s copyright law.
The latter is not a requirement in the WIPO Internet treaties. The treaties only require “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” (art. 11 of WCT and art. 18 of WPPT).
Would CETA allow any exceptions or limitations to the prohibition on circumventing digital locks?
CETA does allow for exceptions or limitations on the prohibitions against circumventing TPMs, provided that the such exceptions fall within the scope of each party’s laws.
What is “rights management information” (RMI)?
RMI is defined in the WPPT as: “...information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.”
CETA similarly defines RMI as follows: “information provided by right holders which identifies the work or other subject- matter referred to in this Agreement, the author or any other right holder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.”
How does CETA protect RMI?
CETA would require Canada to provide rights holders with “adequate legal protection” against:
-
any person who knowingly removes or alters RMI information from copyright works without permission.
-
any person who distributes, imports for distribution, broadcasting, communication or making available to the public works whose RMI has been removed, if the person knows or has reasonable grounds to know that this activity would induce, enable, facilitate or conceal infringement of copyright.
Canada had introduced RMI protection measures in Bill C-32, its most recent effort to modernize Canada’s copyright law.
CETA would also introduce exceptions on the enforcement of IP rights against Internet Service Providers (ISPs). See the enforcement section below.
Trademarks
What impact would CETA have on Canada’s trademark law?
CETA requires Canada to give greater protection to famous trademarks. Under CETA, Canada must grant the competent authority (i.e. the Trademark Registrar) the right to refuse, cancel, and prohibit the use of a trademark which is likely to create confusion with a famous mark for identical or similar goods, as referred to in article 6bis of the Paris Convention (1967) and in article 16 (2) and (3) of the TRIPS Agreement.
In Canada, the law is more flexible. According to current Supreme Court of Canada (SCC) case law (Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22; Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée, 2006 SCC 23), the Registrar or the courts must consider all of the surrounding circumstances to determine if there is a likelihood of confusion. The SCC noted that fame may be of particular importance.
Fame presupposes that a famous mark transcends at least to some extent the wares with which it is normally associated. However, the SCC also observed that “famous marks do not come in one size”. While some trademarks have transcended product categories, such as Walt Disney, others may be well known but have very specific associations, such as Buckley’s Cough Mixture.
What impact would CETA have on Canada’s protection for industrial designs?
As currently worded, CETA would require three significant changes to Canada’s industrial design protection law. First, it would require Canada to accede to the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs (1999). Second, it would require Canada to adopt a more expansive definition of designs eligible for protection. Third, it would obligate Canada to offer protection to unregistered designs in certain situations, and allow for a longer term of protection for registered designs.
CETA would allow for limited exceptions in certain situations.
How would CETA change the definition of industrial designs?
CETA would require Canada to adopt new and more expansive definitions of the terms “design” and “product”, thus extending the types of designs which may be eligible for protection. For example, in Canada, “design” is defined as “features of shape configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye in the Canadian law.” CETA defines “design” as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and / or materials of the product itself and/ or its ornamentation.”
Would CETA protect unregistered designs?
Yes. CETA would oblige Canada to provide legal means to protect against the copying of an unregistered design for the purposes of selling, importing and exporting the product (CETA art. 8.5) In Canada, only registered designs currently receive protection (Industrial Design Act, L.R., 1985, ch. I-9, s. 9).
What term of protection would CETA require for industrial designs?
CETA would require Canada to provide for an initial term of protection for registered designs that is at least five years, with possible renewal 5 year renewal periods to a maximum of 25 years. For unregistered design, CETA would require a minimum three year term of protection. The current term of protection for registered designs in Canada is 10 years (art. 10 (1) of the Industrial Design Act).
Would CETA allow for any exceptions to the protection of designs?
Yes. CETA would permit countries to adopt “limited exceptions” to the protection of designs, provided that they do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design.
What would CETA mean for Canada’s patent law?
CETA would extend Canada’s patent law in two important ways, both of which will increase the cost of patent-protected pharmaceutical products and certain agricultural products. First, CETA would extend patent protection over pharmaceutical and certain agricultural products by five years in certain situations. Second, it would require manufacturers of generic products to undertake their own drug testing before obtaining approval to market the generic drug. Currently, generic manufacturers rely on the drug testing undertaken by the original drug manufacturer.
Canada is required to comply with the WIPO Patent Law Treaty. (CETA 9.1)
How would CETC extend the term of protection for patents?
CETA would increase patent protection for “medicinal and plant protection products” by extending the term of patent protection in certain situations. When there is a significant administrative delay between the filing of a patent application and the approval to market the product, Canada would be obliged to extend the term of the patent for up to an additional five years (CETA art. 9.2 (2), art. 9.2 (3)). Under current Canadian law, provided that all required fees are paid, the term of patent protection is twenty years from the date of filing a patent application.
Would impact would CETA have on the sharing of data relating to drug approvals?
CETA would require Canada to guarantee the “confidentiality, non-disclosure and non-reliance” of any data submitted to relevant government authorities in order to obtain the authorization to market a pharmaceutical product. Canada must ensure that this information is not disclosed to any third party for at least ten years, unless the person who submitted the data provides explicit consent.
In addition, the 10 year term can be extended to 11 if the first applicant obtains authorization for new therapeutic indications “which are considered of significant clinical benefit in comparison with existing therapies.”
If Canada relies on “patent linkage” mechanisms whereby generic medicines are granted authorization on the basis of the authorization granted to the patented medicine, it must treat patent holders and manufacturers of generics in a fair and equitable way (art. 10 (4)).
CETA also requires the protection of data relating to “plant protection products.” Canada must provide an exclusive right to ‘owners’ of tests or study reports that are submitted by an applicant to obtain marketing approval for plant protection products. Applicants have the right to exclusive use of this data for 10 years from the date of authorization to market the product. In the case of low risk products, the term of exclusivity can be extended to 13 years. Where the product is granted authorization for additional uses, the terms can be extended to 13 years and, in the case of low risk products, 15 years.
CETA specifies that, in order to benefit from this protection, the data must be necessary for the market authorization and be certified as compliant with principles of good laboratory practice or good experimental practice.
CETA allows the parties to establish rules for the sharing of data, tests and studies in the case of vertebrate animals.
How would CETA impact Canada’s law relating to plant varieties?
Currently, Canada’s Plant Breeders' Rights Act promotes the protection of plant varieties based on the 1978 Act of the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), to which Canada is a party.
CETA would require Canada to provide increased protection for breeders who develop new plant varieties as outlined in the 1991 Act of the UPOV Convention. Under these provisions, Canada would be required to provide breeders with exclusive rights over their plant varieties which are new, distinct, uniform, and stable. The rights apply to propagating material (seeds, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) for 20 years, or 25 years in the case of trees and vines.
How would CETA impact Canada’s law relating to protection for geographic indications?
The leaked document provides for the protection of GIs relating to wines, spirits, agricultural products, foodstuffs, and spirit drinks.
GI status must protect against:
-
any direct or indirect commercial use by comparable products where the use exploits the reputation of the GI-protected product;
-
misuse, imitation or evocation (e.g., parmesan “style” cheese, parmesan “type” cheese, “imitation” parmesan, parmesan “flavour” cheese, “like” parmesan, or other identifiers) even where the product’s true origin is indicated;
-
any false or misleading information as to the origin of the product; and,
-
any other practice likely to mislead the consumer as to the origin of the product.
CETA would require that both parties to accept new GIs without undue delay.
Does CETA allow for limitations or exceptions to GI protection?
Yes. CETA provides for several limitations or exceptions. GIs may not refer to a plant variety, including a grape variety, or an animal breed where this is likely to mislead the consumer as to the true origin of the product. CETA would not prejudice the right of individuals to use their name in business except where there is an intention to mislead consumers.
Under existing law, Canada only provides GI status to a number of alcoholic beverages. The products for which both parties are seeking GI status is not contained in the leaked document. However, it is well known that the EU is seeking to include a broad range of food products.
Are trade secrets covered in the Agreement?
Canada has introduced provisions relating to trade secrets.
These provisions would:
-
require both Parties (Canada and the EU) to provide legal protection for trade secrets when these have been used in a manner contrary to honest commercial practices.
-
allow either Party to require that trade secret be evidenced in a material form, such as a document, disc, film or magnetic or electronic means, to benefit from protection.
-
prohibit both parties from limiting the duration of protection for a trade secret
-
prohibit both parties from discouraging or impeding the voluntary licensing of trade secrets.
Enforcement
Who in entitled to enforce the protection of IP rights? (art 15)
CETA would allow a broad range of stakeholders to enforce IPR protection. These include: the rights holders; all persons authorized to use the rights (e.g. licensees); collective rights management bodies generally recognized as representing rights holders; and professional defense bodies.
What information could be shared in the context of judicial proceedings over IP infringement?
CETA would require Canada to ensure that judicial authorities can order disclosure of information relating to third parties to an infringement of IP rights, such as persons who possessed, used, provided services used in infringement on a commercial scale.
The information can include names and addresses of producers, manufacturers, distributors, suppliers, intended wholesalers and retailers as well as information relating to the goods or services ordered.
What types of interim measures to prevent infringement will CETA require?
CETA would require Canada to allow competent authorities (e.g. courts) to order injunctions, against both infringers and service providers whose services are used to infringe. The latter category would include internet service providers and other online services such as YouTube, Google, and Facebook.
What types of damages would CETA require for court cases involving infringement?
CETA would require that judicial authorities be free to order all appropriate elements including economic injury (lost profits, unfair profits) and, where appropriate, moral injury (e.g. damage to reputation).
Where an infringement was un-intentional, CETA would allow the Parties to provide statutory (pre-determined in the appropriate law) damages.
Will CETA impose criminal sanctions on IP infringement?
Yes. However, the provisions setting out criminal sanctions were not included in the leaked draft of the IP chapter.
Do rights holders have to have a determination of infringement to have good seized at the border?
No. CETA would require Canada provide that rights holders may apply to an appropriate authority to have goods that they suspect of infringing to be held pending a determination of infringement.
What powers would customs officials have under CETA?
CETA would require Canada to allow its customs officials to seize or detain goods when a rights holder has submitted an application with appropriate judicial or administrative authorities and the rights holder has valid grounds to suspect that the goods are infringing.
Under current Canadian law, a rights holder must have a judicial decision in order to have goods seized or detained at the border.
CETA would require Canada to provide its border officials with authority to seize, of their own initiative, (ex officio powers) goods that they suspect are infringing.
Border officials do not have this authority under current Canadian law.
What information would border officials be allowed to share with rights holders?
Under CETA, Canada would be required to allow border officials to share information regarding the consignor, consignee or the holder of suspect goods, as well information on the origin of the suspect goods to facilitate a determination of infringement. Border officials would also be required to allow the rights holder to inspect the goods.
Will CETA make Intermediary Service Providers (ISP) liable for infringement on the Internet? (art. 29)
Not necessarily. CETA would require Canada to exempt ISPs from liability where they act as mere conduits of content (i.e., they simply route the content to its destination), cache content (i.e., they make temporary copies of web pages or other similar activities to make communications more efficient) or simply host content.
In order to qualify for the mere conduit exemption (art. 29.2), ISPs must meet three conditions:
-
they must not initiate the content;
-
they must not select the receiver of the transmission; and,
-
they must not select or modify the information contained in the transmission.
In order to qualify for the caching exemption (art. 29.3), ISPs must meet five conditions:
-
they must not modify the content;
-
they must comply with conditions on access to the information;
-
they must comply with rules regarding the updating of the information, specified in a manner widely recognized and used by industry;
-
they must not prevent or interfere with lawful access to usage data related to the content at issue; and
-
they must act expeditiously to remove information they have stored upon obtaining knowledge that the information has been removed from the network at its initial source, access to it has been disabled, or a court or an administrative authority has ordered such removal.
ISPs are exempt from liability when they simply host content, except where the ISP has “actual knowledge of illegal activity or information.” and ages, is not aware of facts or circumstances from which the illegal activity or information is apparent.” (art. 29.4)
Will CETA require ISPs to take down content or terminate subscribers?
CETA does not require ISPs to take down content or terminate subscribers on the basis of a mere allegation of infringement received from a copyright holder. However, CETA would not interfere with any domestic laws that allow for service to be discontinued in the case of online infringement.
Will CETA require ISPs to monitor their customers or turn over their identities?
CETA does not require ISPs to monitor the activities of their subscribers. (art. 29.5) However, CETA would allow the Parties to require ISPs to provide information to the appropriate authorities regarding suspected infringement.
When will CETA become Canadian law?
The substance of the agreement will be finalized through the negotiations. Once the negotiations are complete, the government will likely release the final version of the Agreement. Although not mandatory, the federal government has agreed to table all trade agreements in the House of Commons, to allow debate and discussion by Parliament. Canada and EU must then sign the agreement which will bind Canada to the terms of CETA. However, the agreement in itself is not self-executing – Canada must change its domestic laws by implementing new legislation.
The government must pass legislation to implement CETA. This involves drafting a Bill and introducing in into the House of Commons through a First Reading. The bill is read without debate and printed for public circulation. After First Reading, the bill will likely go through the legislative process as follows:
-
Second Reading: At Second Reading, the government debates and either accepts or rejects the principle and object of a bill.
-
Committee Stage: A committee examines the bill clause-by-clause, hears witnesses, and submits a report. That report either recommends passage of the bill with or without amendments, or that the bill be stopped there. This is the stage where stakeholders can exert the most influence. Bills may be referred to committee after either first or second reading; however, if referred after second reading, members may make only minor amendments at the Report State. If referred after First Reading, members may introduce new provisions to the bill.
-
Report Stage: House members may move for amendments. They debate the bill further, and then vote.
-
Third Reading: The bill is debated a final time and voted on.
-
Message Stage: Once passed, the bill is sent to the Senate, where the process is very similar.
The Senate rarely vetoes a bill that passes third reading in the House (though it is possible). If the Senate recommends any amendments to the bill, notice is given to the House, and they must vote on the proposed amendments.
Royal Assent: When the bill passes through all of the previous stages, the Senate asks the Governor General or a deputy to give it Royal Assent. The bill is then proclaimed in force.
Resources
Official Sites:
NGOs and Academics:
Reports and Studies: