Germany Says It Won't Agree To CETA With Current Corporate Sovereignty Chapter

from the so-where-does-that-leave-TTIP? dept

This is potentially huge: according to the leading German newspaper S&uumlddeutsche Zeitung, Germany will not accept CETA, the Canadian-EU trade agreement, if it contains a corporate sovereignty chapter in its present form (original in German, pointed out to us by @TeraEuro):

German EU diplomats confirmed in Brussels on Friday that the [German] federal government could not sign the agreement with Canada "as it is now negotiated." Although Germany was, in principle, ready to initial the agreement in September, the chapter on the legal protection of investors is however 'problematic' and currently not acceptable.

This confirms rumors that CETA is finally completed, and that the plan is for the EU member states to "initial" it -- accept it in principle -- in September. However, if Germany really does refuse to sign up with investor-state dispute settlement (ISDS) included in its current form, the pressure will be on the European Commission to take it out -- because of the nature of CETA, all 28 EU member states must approve it before it is fully ratified. However, here's what the Commission told S&uumlddeutsche Zeitung regarding that idea:

Without these clauses, the European Commission's trade department says, a Canadian company will hardly invest in Europe. How could an investment in Bulgaria, a country which the European Commission has, so to speak, officially certified for high-level corruption, be justified without legal protection? Or in Italy, where cases before the national courts can last eight to ten years?

But according to the European Commission's own figures, bilateral investment between the EU and Canada is flourishing (pdf): in 2012, the total investment by EU companies in Canada was €258 billion, while Canadian investment in the EU was €115 billion -- 45% of the EU's, even though Canada's population is only 7% that of the EU. In other words, contrary to the European Commission's scaremongering, Canadian companies are clearly perfectly happy to invest in Europe on a massive scale even without ISDS, which is therefore unnecessary, and can be dropped from CETA.

It's therefore not clear how the European Commission will react to this development, and whether it will try to push through the current version of ISDS, attempt to modify it by re-opening negotiations with Canada, or accept that ISDS must go if it wants to save CETA. But what is not in doubt is that this has major ramifications for TAFTA/TTIP. Germany's justified concerns about corporate sovereignty in CETA apply even more strongly to the far-bigger agreement. If it wants ISDS out of one, it will certainly want it out of the other. A refusal by the US to accept that -- quite likely, given its firm support for corporate sovereignty -- would mean that TAFTA/TTIP is dead.

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Filed Under: ceta, corporate sovereignty, germany, investor state dispute settlement, isds, tafta, ttip

EU Re-Think Following Discovery Of Major Flaw In CETA Shows The Benefits Of Transparency

from the enough-eyeballs dept

The Canada-European Union trade agreement (CETA) finds itself in a strange situation. Although Canada and the EU announced that "a political agreement" on the key elements had been reached, there has still been no formal release of the text. Fortunately, we have had several leaks of CETA documents, handily gathered on a new site devoted to them (and to those of the TAFTA/TTIP talks). One of the most recent leaks is of the chapter dealing with corporate sovereignty. It's dated February 14, and shows a large number of alternative versions, which indicates that despite the "political agreement", CETA is far from done.

The availability of this very recent text has enabled experts in the field to examine the proposals in detail for the first time. For example, Nathalie Bernasconi-Osterwalder and Howard Mann from the International Institute for Sustainable Development have put together a fascinating analysis of the investor-state dispute settlement (ISDS) chapter, and of an earlier investment chapter leak from November 2013 (pdf). They've compared them with a document released by the European Commission in December last year, which gave some explanation of the claimed improvements to corporate sovereignty provisions (pdf). The availability of the draft texts allowed Bernasconi-Osterwalder and Mann to check the claims against the reality. Here's their summary:

In the end, and whatever the reason for the disconnect, we conclude that the actual draft legal texts in the public domain show that the European Commission's assertions are in most respects incorrect when compared to the draft legal text. The technical legal analysis is set out on each specific point below. In effect, the analysis indicates that the standards by which the European Commission itself seeks to demonstrate the success of the drafting actually show that the drafting has failed to meet its stated objectives, in fact, sometimes with the exact opposite result.

It's a really thorough analysis, and well-worth reading. But here I want to pull out just one aspect of ISDS, hitherto rather neglected. It concerns what is known as "Most Favored Nation" status:

The European Commission statement simply does not refer to what is known as the most-favoured nation (MFN) treatment clause. Yet, this clause alone is sufficient to undermine all of the objectives the European Commission states it seeks in the drafting. The reason why is explained here.

Article X.8 of the November 2013 draft [of CETA's investment chapter] contains the MFN provision. In essence, it requires, for present analytical purposes, a European state to treat a foreign investor from Canada no less favourably than it treats an investor from any third state. The problem arises from the legal reality that such treatment has been defined in investment arbitrations as including the rights of other investors under investment treaties with the host state. So, if an EU member state that has a Canadian investor also has a treaty with an African, Latin American or any other state, the investor from Canada can import the provisions of that treaty if they are more favourable than the provisions of the CETA.

The impact of this is straightforward. The European Commission statement [published in December] notes the need to "bring very significant clarifications" in order to give arbitrators "strict and detailed guidance when these provisions are invoked by an investor." Now, we have already seen from the preceding analysis that this objective has not been met in the November 2013 draft text. But let us suppose, for the sake of understanding the current issue, that it had been met. The MFN provision would in any event undo this.

That's because Canadian investors could simply invoke the MFN provision, and demand to be allowed to use earlier rights that ignore the claimed improvements to ISDS. And yet the European Commission was completely unaware of this fact until recently, as reported by the Council of Candians in a blog post:

According to Rupert Schlegelmilch, director of services, investment and procurement at DG Trade [in the European Commission], speaking on behalf of the Commission at a public debate yesterday on investor-state dispute settlement (ISDS) and the TTIP, the EU is rethinking a "Most Favoured Nation" (MFN) article in the CETA investment chapter that new analysis suggests undermines much of the more careful language in the treaty relating to a government's ability to regulate. As written, the MFN article would let Canadian and EU investors ignore the definitions of "fair and equitable treatment” or "indirect expropriation" in CETA and take other more investor-friendly language from past agreements signed by either party.

It's not clear whether the European Commission woke up to this huge loophole as a result of the International Institute for Sustainable Development analysis, although this seems likely given the timing. But the key point is that the incident raises the larger question:

"What other mistakes have the Commission and Canadian government made in CETA that compromise the ability of governments to make environmental, public health and consumer protection policies without worrying they will be sued in private arbitration, behind closed doors?" asks Stuart Trew, trade campaigner with the Council of Canadians

We don't know, because we don't have a full copy of the latest CETA draft. If we did, then independent experts could go through it and warn of other flawed passages, thus avoiding serious problems in years to come when it is too late to change anything.

This, then, is another key reason why negotiating texts must be made available as they are drafted, not after they have been signed: Linus' Law, that "given enough eyeballs, all bugs are shallow," applies to international agreements as well as to software code. But the big difference is that for programming, it's a question of how well code runs; with things like CETA, TTIP and TPP, what's at stake is the potentially huge economic and social damage that can be caused by loopholes and carelessly-worded clauses in these far-reaching international agreements.

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Filed Under: canada, ceta, corporate sovereignty, eu, isds, tafta, trade agreements, transparency, ttip

Canadian Government Refuses To Release Any Text Of CETA, While Claiming It's Mostly Finished

from the something-to-hide? dept

Back in November, we reported that the EU and Canada were claiming that "a political agreement" on the key elements of the Canada-EU trade agreement, CETA, had been reached. One of the supposed reasons why the negotiations were being conducted in secret was that it was "obviously" not possible to release texts while talks were still going on -- even though that is precisely how WIPO operates. So, now that key parts of the CETA have been agreed upon, presumably the public will finally get to see at least those sections of the text, right? Apparently not, as the Council of Canadians found when it put in a freedom of information request to the Canadian government:

The federal government has denied an access to information request from the Council of Canadians for the working text of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). The grassroots public advocacy organization is accusing the Conservative government of unnecessarily depriving Canadians of the information they need to pass judgement on CETA, and of any opportunity to alter the deal before it is signed.

"It's a new year, but we're seeing the same old secrecy from the Harper government. How is anyone expected to say yes or no to this EU deal if Ottawa is not prepared to release it publicly before CETA is signed, sealed and delivered?" asks Stuart Trew, trade campaigner with the Council of Canadians. "The Prime Minister is misleading Canadians by claiming the CETA negotiations are the most transparent in Canadian history. A fully redacted copy of the text would be more transparent than this."

This exposes nicely the dishonesty of governments around the world when they claim that regrettably they "have" to keep texts secret, but will release them just as soon as they can. Here, we have major parts of CETA that have been agreed upon and where there is no need to keep them secret -- apart, that is, from the real reason why there is no transparency: because the governments concerned know that once the public find out how they have been let down by their representatives, there will be widespread outrage. In a blatant attempt to stifle democratic debate, it has become standard practice with these trade agreements only to release the texts after they have been passed, and there's nothing that can be done about it.

As the Council of Canadians' trade campaigner points out:

"It is not OK to negotiate sweeping corporate rights deals like CETA behind closed doors and then to deny the public or parliament the opportunity to change anything about them before the deals are signed and passed into law," says Trew. "If the government is so proud of this deal they should gladly present it to Canadians for their approval before signing. Otherwise, the Conservatives could find CETA backfiring for them at election time."

That's certainly how it should work, but among the general public, awareness about the important knock-on consequences of agreements like CETA, TPP and TAFTA/TTIP remains low. And that's how the governments involved aim to keep it, not least by avoiding at all stages any kind of real transparency.

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Filed Under: canada, ceta, europe, stephen harper, tafta, tpp, trade agreements, transparency, ttip

Resistance Grows To Inclusion Of Corporate Sovereignty In Canada-EU Trade Agreement (CETA)

from the just-get-rid-of-it dept

Remember CETA, the Canada-EU trade agreement, officially known as "Comprehensive Economic and Trade Agreement"? You could be forgiven for losing track of where things were with the negotiations, which have been dragging on since 2009, but a kind of milestone was passed recently:

Commission President José Manuel Barroso and Canadian Prime Minister Stephen Harper have today reached a political agreement on the key elements of a Comprehensive Economic and Trade Agreement (CETA) after months of intense negotiations between EU Trade Commissioner De Gucht and Canadian trade Minister Ed Fast. It will be the first free trade agreement between the European Union and a G8 country.

Despite that "political agreement", there still remains plenty to be done, as this CBC article explains:

Some areas of the agreement still need drafting, while others need fine-tuning, reporters learned through a briefing. But the most contentious points have been settled. The agreement text then has to be drafted, run past lawyers and translated into 24 languages for the 28 EU countries to examine. The document Harper and Barroso signed Friday is an agreement in principle and full ratification is likely two years away.

Although the CBC post claims "the most contentious points have been settled", that's not true for one of the most controversial areas: corporate sovereignty, officially known as investor-state dispute settlement -- and resistance is building. For example, the European Trade Union Confederation, which claims to represent more than 60 million workers in Europe, "strongly opposes the inclusion of ISDS in CETA." And as negotiations on the ISDS chapter begin, over 80 organizations have put together a "transatlantic statement" calling for the corporate sovereignty chapter to be withdrawn from CETA completely:

As European and Canadian trade officials meet again in Brussels today to continue negotiating an investment protection chapter in the Comprehensive Economic and Trade Agreement (CETA), transatlantic civil society groups are demanding that this chapter be removed entirely as an affront to democracy, an attack on the independent judiciary, and a threat to climate change and our shared environment.

The CETA "will include a controversial and unnecessary investment protection chapter and investor-to-state dispute settlement process (ISDS) that a growing number of countries are rejecting for good reasons," says the transatlantic statement, which is endorsed by more than 80 organizations in the European Union, Canada and Quebec. "These excessive corporate protections, built into thousands of investment treaties and free trade agreements, serve no social or economic purpose other than to undermine our democratic rights to decide public policy and public interest regulation."

The accompanying statement (pdf) provides a useful summary of why the inclusion of corporate sovereignty in so-called trade agreements is so worrying. Here are some of the main points:

CETA will permanently freeze existing rules governing investment and then strictly limit government regulation of services, investment, natural resources, environmental protection and public safety measures in the interests of corporations. All existing government policies in all these areas that have not been excluded from the agreement up front will be covered, making it difficult for countries to introduce new services or regulations in the future that affect however modestly the investment opportunities of foreign companies and investors.

In fact, changes to regulations are still possible, but the ISDS chapter means in practice that they will always be in favor of corporations, not the public. That's because the intentional asymmetry of corporate sovereignty allows companies to sue a government for unlimited sums when they don't like changes in regulations, but the public has no equivalent rights. This naturally encourages governments to listen to corporations and ignore its citizens.

There is no comfort in claims by the Commission or Canadian government that "frivolous" claims, or challenges to environmental policy, will be filtered out. Despite efforts in the North American Free Trade Agreement (NAFTA) to limit what kinds of government decisions might violate an investor's minimum standards of treatment or other investment chapter protections, Canada continues to face investor-state disputes attacking environmental measures that affect national and foreign investors in exactly the same way (e.g. a partial moratorium on shale gas extraction in Quebec).

The declaration has a good explanation why this happens:

Likewise, we are not satisfied by efforts to limit the meaning of "indirect expropriation" so that legitimate public welfare objectives should be immune from investor challenges. The final determination is always made by the private investment tribunals themselves, and these unaccountable tribunals have a built-in bias toward the interests of multinational corporations.

Techdirt readers may recall that it was precisely this concept of indirect "expropriation" that Eli Lilly invoked when suing Canada under NAFTA's ISDS section. As the declaration rightly notes, the lawyers who make up ISDS tribunals are inherently biased in favor of corporations because they can represent the same companies in other corporate sovereignty cases -- an extraordinary conflict of interest. Finally, the declaration points out why it is really important to remove the ISDS chapter from CETA before the final ratification:

Whatever the EU gets away with in CETA, including on investment protection, will just create a new ground floor on which multinational corporations will build even more.

The way all these agreements work is that they seek to take the results of previous treaties as a baseline, and then go beyond them -- but always in favor of big business, never to the benefit of the public. That means one of the best ways of fighting corporate sovereignty in TAFTA/TTIP is to make sure it's taken out of CETA.

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Filed Under: canada, ceta, corporate sovereignty, eu, investor state dispute settlement, isds, trade agreements

Join The Conversation On Keeping International Agreements From Restricting Internet Freedom

from the this-is-important dept

For quite some time, we've talked about how the entertainment industry has used international agreements as a way to force their agenda through various governments. There's a great book, Information Feudalism: Who Owns the Knowledge Economy?, which details some of the history of how the entertainment industry has often driven international agreements, and then used those international agreements -- which they had a hand in writing -- to then demand changes to various laws to "meet our international obligations." Just law week, I saw Bruce Lehman (at Santa Clara University's DMCA summit), the architect of the DMCA, flat out admit that he intentionally went to WIPO to get the 1996 WIPO Copyright Treaty passed as an "end run around Congress," since Congress wasn't interested in passing the DMCA.

Just last week, we also highlighted how existing international free trade agreements make it difficult for Congress to fix something as simple as making it legal to unlock your mobile phones, even if the White House has come out in favor of it. I'll have more on this little horror story shortly, but these kinds of examples should have us tremendously worried about various international agreements, from ACTA to TPP to the upcoming TAFTA covering Europe and the US.

Given those concerns, the folks at Open Media have set up a day of discussion about how the public can stop international agreements from restricting internet freedom.

So we want your input: What do you think is the best way to stop these threats to Internet freedom? How can we best reach and engage more people in the battle to stop Big Media lobbyists and bureaucrats from censoring expression online?

They're hosting a Reddit AMA to discuss this (I'm participating for part of the day), along with asking people to discuss anywhere else they would like as well: Facebook, Twitter, Google Plus, or right here in the comments. The entertainment industry has had more or less free rein in helping to craft international agreements that pressure governments into passing laws in their favor for decades. It's time we took that out of the secret back rooms, and let the internet-using public have its say in the matter.

Filed Under: acta, ceta, conversation, copyright, intellectual property, international agreements, internet freedom, patents, tafta, tpp

EU Finally Realizes The Public Is Watching CETA: Softens Criminal Provisions For Copyright Infringement

from the somewhat-encouraging dept

Last month, through all of the secrecy shrouding the Canada-EU Trade Agreement (CETA), it was revealed that the treaty called for the same criminal copyright sanctions that European citizens widely rejected when those same sanctions showed up in ACTA. This was just as people feared, and those who noticed were furious that the EU would try to quietly undo the public's ACTA victory so quickly and brazenly. Of course, the reaction to CETA is so far nowhere near the critical mass that led to the ACTA protests — but it looks like the negotiators are afraid of recent history repeating, and may just have gotten the message that they can't do whatever they want behind the public's back. TechCentral reports (found via The 1709 Blog) that more recent CETA documents reveal a weakening of the ACTA-like criminal provisions. There has even been some stance-softening from pro-ACTA powerhouse Karel De Gucht:

...according to documents from the Cyprus Presidency of the EU seen by IDG News Service, the CETA text has been greatly watered down in order to avoid a similar outcome [to ACTA]. The intellectual property protection chapter is now understood to say that countries "may" provide for criminal procedures and penalties.

Even European Trade Commissioner Karel De Gucht, who pushed hard for the ACTA agreement, admits that changes must be made. "Since the negative vote of the European Parliament on ACTA, we have been changing the language obviously," he said in an interview with Vieuws.eu. "We should have no illusions, there are still a number of difficult issues to tackle."

Interestingly, though, there is still a strong push for CETA to include criminal sanctions for video recording in movie theaters... championed by Canadian negotiators. We've had a specific criminal law against recording a movie without permission of the theater owner in Canada since 2007 — a law that, like many of Canada's anti-piracy efforts, was primarily the result of U.S lobbying. This is typical of U.S. tactics when it comes to intellectual property law: push your closest friends and neighbors to adopt the strictest laws possible, then put pressure on international negotiations to export those laws around the globe and enshrine them as the norm. Thankfully, these latest leaked negotiation documents suggest that the EU is against Canada's proposal.

Filed Under: camcording, canada, ceta, copyright, criminal copyright, eu

But Of Course: Ridiculous ACTA Provisions Magically Appear In CETA

from the try,-try-again dept

There were plenty of rumors (and leaks) earlier this year about how, even after European protests effectively killed ACTA in the EU, it was clear that some of the worst, most outrageous parts of ACTA had been written into CETA, a similar agreement between Canada and Europe. EU officials claimed they were removing the most controversial provisions -- but now it's been confirmed that the ridiculously misguided criminal sanctions... had magically found their way into CETA. Given the public's response to ACTA, EU Commission officials either think the public is stupid... or just not paying attention.

The current attitude of the EU negotiators on CETA is an alarming repetition of the blatant denial of democracy of the ACTA negotiations. Despite calls from citizens and representatives, CETA remains confidential, both in the EU and in Canada. In this context of non-transparency, Philipp Dupuis, the European Commission negotiator, confirmed at a workshop held on October 10th 2012 that ACTA-like criminal sanctions were still in the CETA draft.

As Jeremie Zimmermann points out in the link above, this whole process of sneaking through protectionist IP policies in supposed "free trade" agreements needs to stop:

“The only hard evidence on which we can base our analysis suggests the worst: once again, the European Commission and the EU Member States governments are trying to impose repressive measures against cultural practices online. Broad criminal sanctions do not belong in a trade agreement. If they appear in the final CETA text, the agreement will lose all legitimacy and will have to be frontally opposed, like ACTA. This trend of sneaking repressive measures through negotiated trade agreements must stop.”

It needs to stop, but people don't realize how entrenched that process is, which is a big part of the problem.

Filed Under: acta, canada, ceta, criminal sanctions, europe

Canadian Cities Looking To Opt-Out Of CETA Rather Than Get Roped Into An ACTA-Like Situation

from the municipalities-fight-back dept

Though the specific process differs from country to country, international agreements are generally negotiated and signed at the highest levels of government, with input from everyone else filtering up (in theory) through the hierarchy—at least until you get something like ACTA, where the public rises up en masse and essentially overrides the whole system. One thing that you don't often see is municipal governments standing up to take a direct role in international negotiations—but that's exactly what's happening now in Canada, where cities are seeking to avoid an ACTA-like situation by asking to opt out of the Canada-EU Trade Agreement (CETA) at the municipal level.

The effort is being led by The Council of Canadians, a social justice group which is working to persuade cities, towns, and municipal authorities all over Canada to request exemption from CETA. Their core concern is about the agreement's procurement chapter, which sets down rules about how governments and other public bodies can spend money on goods and services, and which they fear will unduly restrict municipalities:

For example, new rules in CETA on how public bodies spend money would:

• Prohibit municipalities from putting buy local or buy Canadian preferences on contracts, or requiring that bidders use some portion of local or Canadian goods, services or labour. This would end the ability of municipalities to use procurement as a local economic or social development tool.
• Prohibit municipalities from using public spending to create or support a market for innovative goods and services, including green technologies, if the effect would favour Canadian producers or attract investment to Canada.
• Prohibit municipalities from spending public money in ways that support sustainability, for example through buy local food policies like the one Toronto passed to reduce emissions from food miles.

As long as municipal governments are part of the CETA deal, these prohibitions will apply to local purchases. We need to make sure cities, towns, school boards and hospitals are not bound by these unnecessary rules.

So far, over 30 local governments representing over 5.5 million people have joined the exemption campaign and another 30 to 40 municipal councils, school boards or associations have asked for more information and more input in the negotiations. Unfortunately, as is common with these situations, such concerns have been largely brushed off in a weak damage control effort by the federal government. Assurances from the Candian Foreign Affairs and International Trade Ministry on the Myths and Realities page are reminiscent of the EU's ACTA Facts, and the Council of Canadians have a page that debunks them. International trade strategist Peter Clark laughs off the fears Canadians have of corporate control of their water services.

CETA is not about diverting Canada’s lakes and rivers – which would not do Europeans much good in any event because we have no common borders... There is no requirement to privatize services which do not compete with private entities and do not operate on a commercial basis.

There are good reasons for the municipalities' concern about the investors' clauses, but Clark just tells them not to worry their pretty little heads about it and run along. Stonewalling and secrecy are not the way to build confidence in the benefits of CETA.

Filed Under: acta, canada, ceta, cities, opt-out

CETA Is Now Slightly Less Like ACTA (But Still Similar, And Still Secret)

from the i-suppose-it's-progress dept

Earlier this week, we wrote about the revelation (via a leaked text) that the Canada-EU Trade Agreement, which is nearing completion, contains provisions in the IP chapter that are extremely similar to ACTA. It's a pretty clear attempt to reboot the ACTA process via a back door, and Michael Geist's coverage drew a lot of attention to the issue in Europe. Now, it looks like damage control is already underway: Geist reports that the European Commission has made a weak attempt to assuage concerns by announcing that two of the ACTA-like provisions in CETA have been dropped. Unfortunately, those provisions only represent a small fraction of CETA's similarities to ACTA:

The European Commission, which initially indicated that it would not respond to the posting of the leaked CETA IP chapter, has now responded by saying that the two ACTA provisions involving Internet providers have been dropped from CETA. When asked whether those were the only changes, EU Trade spokesperson John Clancy said there may be other changes but that this was the biggest one.

While the removal of the Internet provider provisions is a good step, the European Parliament's overwhelming rejection of ACTA was the result of far more than just the Internet provider provisions. Indeed, there has been concern about digital locks, damages, criminal provisions, and border measures. All of those provisions also appeared in the February 2012 CETA draft and Clancy's response suggest that most, if not all, remain there.

So... some of the bad stuff has been removed from the leaked draft that we weren't supposed to see in the first place. Also there may be other changes—who knows? Certainly not the public, and apparently not the EU Trade spokesperson either. You probably see the real issue here: even if they removed all of the controversial provisions from CETA, there would still be the little matter of how they were trying to quietly push through all the exact same stuff that citizens and politicians across Europe rose up and rejected mere weeks ago. The public still had to learn about it via a leaked document. New information comes in the form of vague descriptions, not new public drafts. This is not how you negotiate an international agreement in the 21st century, and that's what people are reacting to.

I suspect the people behind CETA are really, really annoyed: they were so close to slipping this one through, and now they might have another ACTA on their hands. How many times does this have to happen before politicians, diplomats, and the special interest groups that drive these agreements realize they no longer get to operate without public scrutiny?

Filed Under: acta, canada, ceta, europe, transparency

ACTA's Back: European Commission Trying To Sneak In Worst Parts Using Canada-EU Trade Agreement As A Trojan Horse

from the not-dead-yet dept

Even in the face of a resounding rejection of ACTA by the European Parliament last week, the European Commission seems determined to keep pushing for its eventual adoption. Techdirt noted some ways in which it might try to do that, but an important article by Michael Geist lays out what seems to be an alternative approach that is already close to fruition:

According to recently leaked documents [pdf], the EU plans to use the Canada-EU Trade Agreement (CETA), which is nearing its final stages of negotiation, as a backdoor mechanism to implement the ACTA provisions.

Here's how that would work:

The European Commission strategy appears to be to use CETA as the new ACTA, burying its provisions in a broader Canadian trade agreement with the hope that the European Parliament accepts the same provisions it just rejected with the ACTA framework. If successful, it would likely then argue that ACTA poses no new concerns since the same rules were approved within the Canadian trade deal.

What's extraordinary is how slavishly the CETA IP chapter follows ACTA -- Geist's post provides a table comparing the two in detail, and for many key issues, CETA adopts ACTA's wording exactly.

This includes requiring the promotion of "cooperative efforts" that could see ISPs taking down content on a "voluntary" basis; the use of the meaningless term "fair process"; disclosure of a subscriber's information "expeditiously" upon accusation of infringement; civil damages that consider "any legitimate measure of value that may be submitted by the right holder, including lost profits"; the use of the vague term "commercial scale" for both civil and criminal enforcement measures; and criminal liability for "aiding and abetting" infringement.

What that means is that practically all of the key stumbling blocks that persuaded the European Parliament to vote against ACTA are also present in CETA. As Geist observes;

The backdoor ACTA approach creates enormous risks for Canada's trade ambitions. Given the huge anti-ACTA movement, the Canada-EU trade deal could face widespread European opposition with CETA becoming swept up in similar protests.

After all, if those proposals were problematic in ACTA, they are equally problematic for CETA, and so it seems likely that the European Parliament will vote against the entire Canada-EU trade deal just as it threw out ACTA. The obvious solution is to remove the intellectual property chapter from CETA altogether to avoid this risk. Geist points out there's an important precedent for this:

the U.S. and EU recently announced their own plans to negotiate a trade deal but agreed to keep intellectual property issues out of the talks. If CETA becomes known as ACTA II, the future of the Canada-EU trade deal may hinge on adopting a similar approach.

That would not only be a good idea for CETA, it would be sensible for all trade agreements, since it would return them to their original aim of promoting trade between nations, not regulating the domestic laws governing things like copyright.

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Filed Under: acta, canada, ceta, european parliament