Is copyright part of the FTA or NAFTA?

February 19th, 2011 by Barry Sookman Leave a reply »

Does the Canada-US Free Trade Agreement (FTA) contain provisions dealing with copyright? According to Prof. Geist it does not. Does the North American Free Trade Agreement (NAFTA) require Canada, the U.S. and Mexico to protect copyright? According to Prof. Geist it does not. NAFTA doesn’t deal with copyright.

These revelations about the FTA and NAFTA were part of Prof. Geist’s prepared opening remarks to the Parliamentary Standing Committee on International Trade on the subject of CETA, the Canada EU Comprehensive Economic and Trade Agreement. Prof. Geist appeared before the Committee on February 15, 2011 to warn them against including copyright as part of a potential trade agreement with the EU.

Prof. Geist told the Committee that “The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which conventionally addressed market entry, investment, and tariff issues.” He went on to testify that:

“copyright provisions were not part of the Canada – US FTA or NAFTA. They were largely excluded or kept very minor in our other more recent trade agreements. CETA represents a very significant change that is part of a broader effort to pressure Canada to change its copyright laws.”

Prof. Geist’s testimony to the Parliamentary Standing Committee about the FTA and NAFTA was inaccurate. Both the FTA and NAFTA deal with copyrights and other intellectual property rights.

The FTA, which was agreed to in 1987, has two provisions dealing with copyright. Article 2006 of the FTA requires each Party to provide copyright holders with a right of equitable remuneration for retransmissions of copyrighted programming to the public. See, CTV Television Network Ltd. v. Canada (Copyright Board ), [1993] 2 F.C. 115, Canadian Wireless Telecommunications Assn. v. SOCAN, 2008 FCA 6 which explain the FTA’s role in the legislative history of the Copyright Act.

Under Article 2004, the Parties also agreed to cooperate in the Uruguay Round of multilateral trade negotiations and in other international forums to improve intellectual property. The Uruguay Round was the 8th round of Multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade (GATT). These trade negotiations resulted in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The TRIPs agreement which Canada has ratified includes many provisions requiring member states to protect copyrights and other intellectual property rights.

NAFTA, which came into force in January 1994, contains very important provisions related to copyright and other intellectual property rights. For example, Articles 1705 and 1706 prescribe minimum levels of protection for works and sound recordings. Article 1714 prescribes minimum standards for enforcement of copyrights and other IP rights. Articles 1716, 1717, and 1718 deal with provisional measures, criminal remedies, and border enforcement related to copyrights and other IP rights. See, the following cases which used NAFTA as an aid to construing the Copyright Act because of Canada’s international copyright obligations arising from this treaty: Tele-Direct (Publications) Inc.v. American Business Information, Inc.) 134 F.T.R. 80, CCH Canadian Ltd. v. Law Society of Upper Canada 2002 FCA 187, Édutile Inc.v. Automobile Protection Assn, 181 F.T.R. 160.

Was Prof. Geist accurate when he told the Parliamentary Standing Committee that “copyright provisions were not part of the Canada – US FTA or NAFTA”? Clearly not.

Was Prof. Geist accurate when he told them that “The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations”? No he was not. The facts prove otherwise. The FTA, NAFTA, and TRIPS, are three examples showing that Canada has a history of including copyright and other intellectual property rights as part of major international trade agreements. Canada’s trading partners including the EU also legitimately view intellectual property as important and want to make harmonization of intellectual property rights part of bi-lateral and multi-lateral trade agreements. Would it be a dramatic shift in Canada’s trade policy to include such provisions in CETA? No it would not.

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