CETA Shows Canada’s Need for an IP Strategy



The Canada-EU Comprehensive Economic and Trade Agreement, CETA, is a done deal. Attention is now focussed on implementation, both in Canada and Europe. That doesn’t mean it is too soon to learn from the negotiation process. My testimony to the Senate Committee on Foreign Affairs and International Trade highlighted how Canada can move forward from its failure to strategize about our stance on international intellectual property issues. Here is the introduction to my prepared remarks on that point:

Good morning Honourable Senators,

My name is Jeremy de Beer. I am a Full Professor at the University of Ottawa’s Faculty of Law, appearing here in my individual capacity.

Today’s testimony is based on my experience researching and writing about international trade and intellectual property in general, and in respect of CETA specifically.

I must begin by emphasizing that I am strong supporter of international trade, and believe that CETA is, on the whole good, for Canada.

I hope that my support for CETA overall and sincere admiration for the people who got this done for Canada – over a long process and at the last minute – both contextualizes and sharpens my remarks to follow.

I have no problems with Bill C-30. It does it just what it is supposed to.

My concern is about Canada’s strategy, or lack thereof, in respect of intellectual property, technology innovation, and international trade.

This Committee’s report last year touched on intellectual property. The opportunity now exists to make the bold statements needed to offensively advance Canada’s interests in future trade negotiations.

To start, we must admit our past mistakes. Canada’s failure to make innovation a strategic priority when these negotiations began put us entirely on defence. We were all placated by promises that the IP chapter was mostly consistent with Canada’s existing law.

Now, this Committee is considering 50-plus pages of changes to the Patent Act and the Trademarks Act, several more pages of coordinating amendments, as well as a 7-page schedule of 172 geographic indications that Canadians can no longer use to trade freely.

It is my duty to warn you that the complexity of, for example, the new scheme for certificates of supplemental protection makes it almost certain that there will be unintended consequences. It is entirely certain that there will be many years of litigation over the interpretation and application of this scheme.

That includes, as I wrote in a special issue of the Journal of Legal Issues of Economic Integration on our CETA research, constitutional litigation about whether some of these provisions impinge on provincial powers.

That also includes more investor-state disputes like the one Canada just defended against Eli Lilly over the principles of common law and the sovereignty of Canadian courts to invalidate useless patents.

That Canada won should be a wake-up call about the dangers of this system: Weak cases will be brought, costing money and chilling our creativity to use the few regulatory flexibilities we’ve retained.

CETA’s dispute settlement procedures aren’t good; they’re just less bad than NAFTA and other agreements.

On the IP issues, Canada’s negotiating team and the supporting officials from across government did very well to not give up much more. But they were handcuffed without a mandate to do things much differently.

There was no offensive mandate on IP because there was no high-level strategy to know what to ask for.

IP experts in the country are energized by the government’s commitment in the 2017 Budget to create an IP strategy within the year. We are willing to help, and hope this Committee can convey that message.

This requires a complete reorientation in the way we see and assess international agreements, which are much less about tariff-free trade than global economic power structures.

It also requires a firm commitment to making policy based on evidence not rhetoric. I’m pleased to see departments like Innovation, Science, and Economic Development take that task seriously.

My thorough and objective review of methods and conclusions about evidence-based IP policy was just published in the Journal of World Intellectual Property, which I’m pleased to share this Committee to help kick-start the process of strategizing.

I also endorse this Committee’s past recommendation for greater transparency in trade negotiations. This echoes my own research conclusions about best practices for international IP agreements, published in a 2013 issue of the International Review of Intellectual Property and Competition Law.

But consultations alone are not a substitute for forward-looking strategy. Today’s most dominant lobby groups are not in the industries that Canada needs to nurture. The entrepreneurial companies that are most harmed by our stale international IP strategy can’t participate because they don’t exist yet.

And they never will, unless we create an international IP strategy that adopts fresh ideas to give Canadians a clear advantage on the global economic stage.

That means, to give just a few examples:

  • actively promoting more flexibilities throughout the international IP system and then integrating these into Canadian law;
  • explicitly supporting a new agreement being negotiated right now in Geneva to economically empower Aboriginal Peoples by valuing their traditional knowledge;
  • confronting gender-biased international norms and power structures in science and technology; and
  • using tools like patent pools and other open and collaborative innovation strategies to help Canadians compete internationally.

Thank you, Senators.