Wednesday, March 21, 2018

Liberals Quietly Fixing CETA and the TPP

Industry Committee Report on Intellectual Property: A Case of Policy Laundering for CETA and TPP

 by Michael Geist

March 19, 2018

The Standing Committee on Industry, Science and Technology released its report on the Intellectual Property Regime in Canada yesterday. The report is the result of lengthy hearings that focused on a wide range of IP issues including patent reform, trademarks, counterfeiting, and pharmaceutical protection.

While most the recommendations are fairly innocuous – the committee identifies many issues for further study – there are essentially three main legislative reform recommendations. One involves limiting the scope of official marks, which appears to be the result of comments from Dalhousie law professor Rob Currie (echoed by CIPO’s Sylvain Laporte) expressing concern with governmental abuse of official marks in a way that may stifle innovation.
Standing Committee Chair,
David Sweet, MP

The other two are particularly interesting as they set the stage for the Canada – EU Trade Agreement and the Trans-Pacific Partnership. First, the report recommends anti-counterfeiting measures similar to those required by CETA and found in Bill C-56. Should criticism arise over Bill C-56 or CETA, the government will likely point to this report in support.

The second involves a classic case of policy laundering as the government has manufactured support for CETA and Trans-Pacific Partnership (TPP) provisions that were not even raised at committee. The report recommends:

The Committee recommends that the Government of Canada (in order to support Canadian businesses on the global stage and ensure the administration of Canada’s IP regime is internationally compatible and streamlined) ratify the following key international agreements: the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade- marks, and the Hague Agreement for Industrial Designs.

But as the NDP minority report notes:

As the Committee heard no testimony on the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade-marks, and Hague Agreement for Industrial Designs, New Democrat committee members are surprised by the inclusion of a recommendation regarding these treaties in the majority report. The Committee should seek more information before pronouncing on such treaties.

So why does the report include recommendations to ratify several international treaties that were not discussed by the dozens of witnesses who appeared before committee (with the exception of a brief reference to the existence of the Madrid Protocol)?

The answer likely lies in the Canada – EU Trade Agreement and the Trans-Pacific Partnership. According to leaked documents, CETA includes provisions that require Canada to make all reasonable efforts to comply with the Singapore Treaty and the Patent Law Treaty as well as accede to the Madrid Protocol and the Hague Agreement.

The leaked U.S. proposal for the TPP IP chapter contains similar requirements: ratify or accede to the Madrid Protocol and the Singapore Treaty as well as make reasonable efforts to ratify or accede to the Patent Law Treaty and the Hague Agreement.

The committee report represents a case of policy laundering with recommendations to ratify treaties that were not even discussed at committee. Yet should Canada reach agreement on CETA or the TPP, the committee report will presumably be used by the government to short-circuit further review on those treaties or to simply claim support for ratification on the basis on a committee recommendation that was secretly fabricated behind closed doors without any witness raising the issue during the public hearings.

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