Island Linux Bits and Bytes of Technology

In just over one year, Canada is scheduled to complete the digital television transition, as stations switch from analog to digital broadcasts. While cable and satellite subscribers will not notice the change, over one million Canadians that rely on over-the-air signals will be affected.  Despite the experience in other countries that left many consumers without digital converter boxes staring at blank screens, my weekly technology law column (Toronto Star version, homepage version) argues the Canadian government seems content to leave the switch to the private sector, implausibly claiming "industry-led solutions will ensure a smooth transition for consumers."


The basic notion of the transition is fairly straightforward.  For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals.  Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.  

On August 31, 2011, Canadian broadcasters will switch from analog to digital broadcasts. The shift to digital brings several advantages including better image and sound quality as well as more efficient use of spectrum that will open the door to new telecom services.  It also requires those relying on over-the-air signals to have a television with a digital tuner or obtain a digital converter box to convert the digital signal back to analog.

Contrary to popular belief, many Canadians still rely on over-the-air signals.  In its latest update on the transition, the Canadian Radio-television and Telecommunications Commission estimated that up to 857,000 households in larger markets do not subscribe to either cable or satellite.  On top of those households, tens of thousands of rural households also depend upon over-the-air signals.

The CRTC has opened the door to a satellite alternative for rural communities, but households that rely on over-the-air signals in larger markets will need a digital converter box in order to continue to watch programs on their existing televisions. In the United States, the government subsidized the cost of the transition, establishing a coupon program that ultimately cost over $1 billion and forced a six-month delay of the transition when politicians feared that too many consumers were not ready.

Unlike the U.S., there will not be a Canadian subsidy program.  While the additional costs could affect lower income Canadians, who are also more likely to rely on the over-the-air signals rather than cable or satellite services, Canadian Heritage Minister James Moore has firmly rejected a similar approach.

A successful transition also depends upon educating Canadians about the changes. For example, the United Kingdom has established Digital UK, an independent, not-for-profit organization to the lead its process.  The organization is funded by the country’s private broadcasters and was established at the request of the government.  It maintains a comprehensive website and has launched a nationwide advertising campaign.

By contrast, other than the occasional CRTC release - Chair Konrad von Finckenstein has been sounding the alarm bells on the digital transition for months - the issue has attracted virtually no public attention in Canada. Moore has told Canada’s broadcasters that Canadians had "fair notice" about the transition and that the broadcasters should be prepared to complete the switch on schedule, emphasizing the transition "must remain on track."

But most Canadian broadcasters see little value in investing in a public education campaign without government support, particularly since they are already spending millions on digital transmitters. In fact, the mandatory deadlines for the transition were only established after it became apparent the broadcasters would not make the switch voluntarily.

The CRTC has tried to push the issue onto the public agenda, but has thus far faced government opposition and broadcaster indifference. As a result, when Canada’s broadcasters flip the switch next summer, hundreds of thousands of Canadians may find themselves on the wrong side of a new digital divide.

Civil society groups have written to the European Commission warning about the impact of ACTA on access to medicines. The letter cites numerous concerns based on the July leaked text.  The next meeting will be a private meeting in August between the EU and the US as they attempt to sort out their differences on the scope of the treaty. The next round is scheduled for September in Japan.

The University of Ottawa Press has launched a new open access collection, making 36 books available as free downloads.  The books will continue to be available for sale in paper form.

While concern over Bill C-32's digital lock rules has garnered the lion share of attention, the other major issue in the bill is the extension of fair dealing to cover education, parody, and satire.  I have characterized those changes as a reasonable compromise - not the full "such as" flexibility that would have been preferable, but helpful extensions that attempt to strike a balance.  Some writers groups have reacted angrily to the changes, claiming it will cost them millions in revenue and arguing that it amounts to an "expropriation of property."

Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education.  The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards. 

The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm.  For example, former PWAC Executive Director John Degen wrote this week that "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."  Access Copyright reacted to the court victory by stating it was "bittersweet" given the C-32 changes.  While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.


The court held that Canadian fair dealing analysis involves a two-part test.  First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights).  Second, if it does qualify, is the use itself fair.  In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing.  In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.

It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test.  In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.  The Supreme Court of Canada has identified six non-exhaustive factors to assist a Court‘s fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. 

Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test.  In fact, the court notes:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32's fair dealing reforms are overstated.  The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged. 

An Industry Canada spokesperson on the validity of the USTR Special 301 list:

"Canada does not recognize the validity of the Special 301 process, which relies on industry allegations rather than empirical evidence and analysis."

Note that the article says I said that Canada did not need to pass anti-circumvention laws in order to comply with the WIPO Internet treaties.  As anyone who had read my stuff knows, that is not my position.  There is no doubt that anti-circumvention rules are needed to comply.  The issue is the degree of flexibility within those provisions, not whether provisions are needed.

The Department of Foreign Affairs held a call today with various groups to provide an update on the Canada - European Union Comprehensive Trade Agreement negotiations.  The department indicated that there has been progress on virtually all issues and the broad shape of the deal is being outlined.

On intellectual property, the EU is still reflecting on Bill C-32. The department indicated that they have not identified any specific concerns but are weighing whether there are any provisions worth fighting over as part of the broader negotiations.  They are concerned with some copyright issues not included in the bill, notably broadcasting and resale rights. Interestingly, copyright term extension was apparently not identified as a concern. There was very little progress on the other IP issues - some clarification on IP enforcement on EU demands, but no progress on the text; no progress on patents with some significant divergence on these issues, and no progress on geographical indications.  There is Canadian concern that the EU demands on GIs may conflict with trademarks, common names, and have negative economic implications.  The department indicated that the GI issue in CETA was separate from the issue in ACTA.

Yesterday's U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border.  In the U.S., critics of the DMCA noted the progress in addressing some of the DMCA's most troubling consequences by creating exceptions for unlocking and jailbreaking cellphones and circumventing DVD locks in several circumstances (though the decision is hardly a panacea given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes).

From a Canadian perspective, the U.S. decision - combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA - provides a timely reminder of the mistake that is the digital lock rules in C-32. 

Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32's anti-circumvention exceptions became outdated in less than ten weeks.  Canadian Heritage Minister James Moore, when not calling critics "radical extremists," emphasized that Bill C-32 was not identical to the DMCA.  While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.

Just how badly does the Canadian bill stack up?  On the two key issues in the bill - digital locks and fair dealing - Canada is far more restrictive than the U.S.  Consider:

• U.S. rules contain a mandatory review of anti-circumvention exceptions every three years.  There is no mandatory review of the exceptions in the Canadian bill.
• U.S. rules contain an exception for unlocking and jailbreaking a cellphone.  Canadian rules only cover unlocking.
• U.S. rules contain an exception for education to circumvent DVD protection to gather a short clip.  Canadian rules, despite various new education exceptions, would treat this as an infringement.
• U.S. rules contain an exception for documentary film makers to circumvent DVD protection to gather a short clip.  Canadian rules, despite various new creator exceptions for parody and satire, would treat this as an infringement.
• U.S. rules contain an exception for everyone to circumvent DVD protection to gather a short clip to create non-commercial videos.  Canadian rules include an exception for non-commercial videos, but do not exempt circumvention.
• U.S. rules contain an exception for e-books designed to facilitate access for the sight impaired.  The Canadian rules do not contain a similar exception.
• U.S. law contains a flexible fair use provision that covers everything from recording television shows to making backup copies.  Moreover, at least one U.S. appellate court has factored these rules when considering the DMCA.  The Canadian rules contain a series of new fair dealing exceptions that are collectively still more restrictive than the U.S. fair use and are still subject to digital locks.

The response to the U.S. developments from Clement and Moore was interesting. Clement immediately asked his department to review the U.S. changes, presumably with a view to considering whether Bill C-32 should be amended.  Moore, after weeks of silence on copyright (after urging people to confront C-32 critics, Moore has said virtually nothing about the bill), tweeted about a music industry article that chronicled the biggest changes in the industry, including the shift from CDs to singles, the popularity of YouTube to listen to music, social media, and Pandora.  Oddly, Moore said the article "shows again the need for ongoing reform," yet, at the risk of being labeled a radical extremist, there wasn't anything in the article had much to do with legal changes at all. 

David Hammerstein reports that the next series of ACTA talks will be an "intercessional meeting" in Washington starting on August 16, 2010.  The talks will not be treated as a formal round, which has the effect of decreasing transparency since no agenda or statement will be released.

Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties.  Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.

First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an "access control" (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought.  With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.  This is very similar to what many groups have been arguing for in the context of Canadian legal reform.

Second, this morning the U.S. Copyright Office released the results of its anti-circumvention rulemaking process.  The process, which runs every three years, identifies the new exceptions to its anti-circumvention rules.  The recommendation covers six exceptions including circumvention of DVDs for short clips for education, documentary filmmaking, and non-commercial videos, circumvention to unlock and jailbreak cellphones, circumvention of video games for testing of security flaws, and circumvention of access controls of e-books where all available e-book editions contain restrictions of the read-aloud function. 

While Bill C-32 has a similar exception for locked cellphones, the U.S. version includes both unlocking and jailbreaking to allow users to play unapproved applications on their devices.  Moreover, the U.S. DVD and e-book exceptions go much further than the Canadian proposal.  In the DVD context, Canadian documentary film makers have raised precisely this concern, yet the U.S. now has an exception for it and Canada would not under C-32.  Similarly, the new YouTube exception in the Canadian bill - trumpted as progressive - is still subject to digital locks, while the U.S. has specific exception for it.  Taken together, it becomes apparent that the Canadian rules are far more restrictive than even the U.S. DMCA.

The British Library has released a new report that includes a dozen short contributions reflecting on whether copyright helps or hinders from a research perspective.  The contributions include several suggestions for extending the British fair dealing provision.

The CRTC has launched a new public consultation on basic access, including a YouTube video designed to generate broader participation.  The consultation, which is part of a broader proceeding, includes five questions on telephone, wireless, and Internet services.  The deadline for submission is August 10, 2010.

Over the past week, I have had several posts on ACTA in the wake of the most recent leaked text, including a scorecard on the major remaining areas of disagreement, one assessing the growing rift between the U.S. and E.U., Canadian positions on ACTA, the changed U.S. position on anti-circumvention rules, and a look at geographical indications, a key issue for the EU.  On top of these posts, there is additional information disclosed last weekend that Luc Devigne, the lead EU negotiator is taking on new responsibilities (though the EU says he will continue on ACTA).

Putting the pieces together, I think it may be worth considering whether the EU is prepared to walk away from ACTA altogether, leaving the U.S. with a far smaller agreement that cannot credibly claim to set a standard for the G8 or developed world.

Why raise this possibility?


1.    The remarkable comments from European Commissioner Karel de Gucht sent the unmistakable signal that the EU is prepared to walk away.  De Gucht told the European Parliament that without the inclusion of geographical indication and industrial designs, the EU would have to reconsider the benefits of the treaty. Moreover, he pointed the finger at the U.S. for maintaining secrecy on the treaty (which leaked a day later).  The USTR acknowledged that the negotiating round did not meet its expectations.  While de Gucht's comments were taken by many as posturing for the negotiations, what if they reflect a sincerely held view that an ACTA without a broad scope of intellectual property is not worth the trouble?

2.   De Gucht also poured cold water on the next round of negotiations, assuring the European Parliament that he did not expect significant new developments until September.  While there were initial rumours of a Washington meeting next week, it now seems clear that will not happen. In fact, hope for a meeting in August in Washington may also be difficult to pull off given the conflict with European vacations that month.  There may be urgency on the U.S. side but it is not matched by the EU.

3.   Internal EU pressure against ACTA continues to mount.  Over the past week, two Dutch ministers raised transparency concerns with ACTA and the EU Article 29 Working Party expressed concerns with the privacy implications of the draft agreement.  Moreover, the European Parliament is inching closer toward enough signatories to pass Written Declaration 12, which would send yet another strong signal about its concerns with ACTA, its impact, and the lack of transparency.

4.    Tracing the changing text from the last three rounds (Guadalajara, Wellington, Lucerne) it is clear that the U.S. is doing most of the caving in an effort to rally support for the treaty.  The dropping of its three strikes language, the inclusion of de minimis, and the changes to the Internet chapter all reflect changes to language initially proposed by the U.S.

5.    Most importantly, there remains the seemingly intractable problem of the scope of ACTA. The EU looks to its robust geographical indications system and sees the area it most wants to protect.  The U.S., which is undoubtedly more concerned with protecting music and movies, simply can't agree to the EU demands (which cover over a dozen provisions) without making changes to its domestic laws. That step would run counter to prior commitments that ACTA would not change domestic U.S. law and would require Congressional approval.  The inverse situation arises in the context of anti-camcording rules.  The U.S. looks at the anti-camcording and sees the area it most wants to protect.  The EU sees an issue that would require going beyond current law that would require national approvals.

Put all of this together and the U.S. may face the choice of a major fight to get ACTA approved in Congress (with the EU on board) or the possibility of ACTA without the EU.  For the EU, it faces the prospect of an agreement that does not meet its major needs and for which there is mounting internal dissension or the possibility of walking away.  While there is no reason to think a breakdown of the talks is imminent - a deal is presumably still more likely than not - the possibility of an ACTA without the EU must be considered as an increasingly desperate USTR looks to save face on an ACTA largely limited to countries with which it already has a trade agreement in place.

The SpicyIP Blog notes that Canada is one of several countries that have asked to join consultations on the World Trade Organization dispute between India and the EU over in-transit seizures of generic medicines (ie. seizures of the meds originating in India and traveling through Europe to another destination).  The request notes:

Canada has a substantial trade interest in these consultations, as it exports 40% of generic drugs manufactured in Canada to over 120 countries. Canada is also an active WTO Member on the issue of public health, including access to medicines. Accordingly, Canada requests to join in these consultations.

Other countries seeking to join the consultations include Japan (another ACTA participant), Ecuador, Brazil, China, and Turkey.

The latest ACTA leak of the text following the June meeting in Lucerne has provided fodder for several posts, including one assessing the growing rift between the U.S. and E.U., Canadian positions on ACTA, the changed U.S. position on anti-circumvention rules, and a look at geographical indications, a key issue for the EU.

Today's post identifies many of the remaining areas of disagreement.  While there are many more sections with text that has not reached consensus, these are the issues where different wording leads to very different substantive obligations. As previously discussed, most of the issues come down to the U.S. on one side and the E.U. on the other.  Many involve scope concerns, with the U.S. trying to limit the treaty to copyright and trademark, while the E.U. adamant that it should extend to all intellectual property. 

Note that is not a summary of the all problems with ACTA - there may be areas where there is general agreement that is cause for concern.  It is also focused on the IP chapter and leaves aside chapters on enforcement practices which includes public "education" campaigns, specialized law enforcement units, and other measures for which there is no agreement. 




Article & subject
Position #1
Position #2
Article 1.2: Nature and Scope of Obligations
Aus/EU/CH/NZ/Can:
ACTA should be limited in scope of enforcement of IPRs

Others:
Status quo of text, ACTA should cover both protection and enforcement of IPRs

Article 1.3: Relation to Standards concerning availability of IPRs
Aus/Can/Sing/NZ:
ACTA does not apply to goods that do not infringe any IPRs in a members territory

Others:
No such limitation should exist.

Article 1.X: (Principles)
Aus/NZ/Sing/Can:
Should add on article that outlines principles of IP enforcement, such as technology dissemination and transfer, a manner conducive to social and economic welfare, measures necessary to protect health and nutrition, etc.

Others:
Would not have this article and probably rely on a preface.

Article 2.x.4: General enforcement obligations (government liability)
US:
Parties can limit remedies against governments

Others:
No such limitation

2.1.1: Availability of Civil Procedures (scope of availability)
US/Mex/Can/Aus/Sing/NZ:
Civil remedies available for copyrights, related rights and TMs EU/J/CH:
Civil remedies will be available to enforce any IPRs

2.x.1: Injunctions (scope of availability)
US/Can/NZ/Aus/Sing/Mex:
Injunctions available for copyrights, related rights and TMs

EU/J:
Injunctions available for any IPRs

2.x.1: Injunctions (scope of availability) Can/Aus:
Injunctions subject to statutory limitations under domestic law
Others:
No identified limit.
2.x.1: Injunctions (third parties) EU/CH:
Rights holders in position to apply for injunction against intermediaries who services used by third party to infringe IP right
[NZ/Mor/Mex want this permissive]
US/NZ/Can/Aus/Mex/J:
Oppose this provision.
Article 2.2: Damages
US:
Damage provisions apply to copyright, related rights, and TMs
EU:
Damage provisions apply to all IPRs
Article 2.3: Other remedies (scope of availability destruction)
US/Aus/Can/Sing/Kor/NZ/Mex:
Courts can order destruction for pirated or counterfeit goods

EU/J/CH:
Courts can order destruction for any infringing goods.

Article 2.4: Information related to infringement (scope of authority's power)
US/Can/NZ/Aus/Sing/Mex:
Courts can order information be disclosed about the infringement in the case of pirated/counterfeit goods

EU/J/CH:
Courts can order information about infringement be disclosed about the infringement regardless of the type of infringement.

Article 2.5: Provisional measures (scope of procedures)
Can/Aus/Mex:
Provisional measures should only be available for copyright, related rights and TMs

EU/J/CH:
Provisional measures available for any IPR infringement

Article 2.5.2: Provisional Measures (Scope of evidence gathering)
US/J/NZ/MX/Aus:
Judicial authorities can order the seizure of suspecting infringing goods and other evidence in the case of copyright, related right or TM counterfeiting

Others:
Judicial authorities can order seizures for any type of infringement

Article 2.X.2: Scope of Border Measures
US/Sing/J:
Border measures should be applied at least to copyright, related right and TM infringement and can be for other infringements

EU/CH:
No recognition of any limits or optional expansion on the application of border measures

Article 2.X: De minimis provision
NZ/Aus/Can/Sing/Kor/J:
De minimis exception should include goods sent in small consignments

Others:
Small consignments not protected by de minimis exception.

Article 2.6: Application by Rights Holders for border suspension (scope of availability of suspension, both type of IPRs and obligation regarding goods in transit)
US/J/CH/Mex:
Each party shall provide procedures to seize pirated copyright or counterfeit trademark goods at border when imported and may do so for in-transit goods

EU/Kor:
Each party shall provide measures to seize any type of infringing goods at border being imported, exported or in transit

(EU is alternatively proposing more general wording that parties shall provide procedures to seize goods at border for infringing IPRs (without explicitly distinguishing import/export/transit)

Article 2.7: Ex officio border action (scope: pirated/counterfeit vs all infringing)
Others:
Customs officials may act on their own initiative to seize pirated copyright or counterfeit trademark goods

EU/CH:
Customs officials may act on their own initiative to seize any type of infringing goods at border

Article 2.7: Ex officio border action (scope: imported/exported/in transit vs any infringing good)
US/J/Mex/Aus/Can/NZ/Sing:
Customs officials may act on goods which are imported/exported/in transit

EU:
Proposes more general language that customs officials can act on any type of infringing good, which specifying imported/exported/transit

Article 2.10: Determination as to Infringement

Article 2.11: Remedies

Article 2.13: Disclosure of Information
All three articles subject to scope - ie. copyright, related rights and TMs vs. all IPRs
All three articles subject to scope - ie. copyright, related rights and TMs vs. all IPRs Article 2.14.1: Criminal Offenses (commercial scale and end users)
US/J/CH:
Acts on a commercial scale for criminal offense MAY exclude end user acts

EU:
Acts on a commercial scale for criminal offenses DOES exclude end user acts.

[provision under internal examination in the EU]

Article 2.14.3: Criminal Offenses (anti-camcording offense)
Others:
Camcording in a theatre is an offense.

EU/Sing:
Delete this provision.

Article 2.18: Enforcement in the digital environment (scope of rights protected)
US/Aus/NZ/Can/Sing/MX:
Parties shall provide measures to permit effective enforcement of copyright, related rights and trademark rights

EU/J/CH:
Parties shall provide measures to permit effective enforcement of all IPRs

Article 2.18.3(c): Necessary conditions for ISPs to qualify for safe harbour
US: ISPs must not be receiving financial benefit directly attributable to the infringing activity
Others:
No such requirement

The government has launched a new public consultation that opens the door to changes to the foreign investment restrictions in the book publishing, distribution, and retail sectors.

The Dutch Ministers of Justice and Economic Affairs have renewed their call for ACTA transparency, expressing disappointment in the recent decision not to release the latest text (which leaked days later).

KEI has an excellent post that examines how ACTA Article 2.3 on "Other Remedies" may conflict with the laws of several European countries.

The B.C. government's new online gaming site was hit with a privacy breach on its very first day of operation.

Canada is currently negotiating two major international trade agreements and my weekly technology law column (Toronto Star version, homepage version) notes that while it may seem hard to believe, their successful completion may ultimately depend on the level of protection provided to Parma ham.  The Canada - European Union Comprehensive Economic and Trade Agreement (CETA) and the Anti-Counterfeiting Trade Agreement (ACTA) are both facing increasing opposition based on European demands to expand protection for "geographical indications."

Geographical indications (GI) are signs used on goods - frequently food, wine, or spirits - that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin.  Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.


Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production.

The net effect of the European system is that hundreds of items enjoy special legal protection.  In fact, the system is so extensive that the Canadian Association of Importers and Exporters have expressed concern that CETA could lead to new restrictions on the use of words such as "pizza" or "feta."

The GI protection under European law frequently clashes with the fact that for many consumers the GI has ceased to be associated with a particular geographic region and is instead viewed as a generic term for a particular type of product.  

For example, many consumers might not associate champagne wines with a specific region in France, but rather to a particular kind of white wine.  Similarly, the term "cologne," which is widely used to refer to perfumed fragrances, actually has its origins in the German city of Cologne.

Canadian courts have grappled with a number of geographical indications cases in the past, including an attempt by the Italian authority that regulates "Parma" for cured ham to stop Maple Leaf Meats from using the Parma trademark for some its meat products. The court sided with the Canadian producer, ruling that consumers would not associate its meat with products originating in Parma, Italy.

Over the past two decades, Canada has made significant changes to its own geographical indications system.  These include taking many popular terms - including Chablis, Champagne, Port, Bordeaux, Burgundy, Medoc, Grappa, Schnapps and Sambuca - off a generic list so that they could enjoy new geographical indication protection.

The irony with the Europe’s zeal to protect geographical indications within trade agreements is that effect may be to stifle trade, by stopping foreign competitors from marketing similar products using names that are understood by consumers as generic descriptions.

The latest round of CETA negotiations took place last week in Brussels, with the GI issue (along with protections for industrial designs that cover the fashion industry) a top priority for the European delegation.  The Canadian government unsurprisingly faces some opposition to the demands from domestic producers.

Similarly, the ACTA negotiations, which have become increasingly acrimonious, have hit a major roadblock with the Europeans demanding extensive new enforcement powers - including criminal and civil penalties - for GI violations.  The U.S. and Canada have been resisting the demand, leading Karel de Gucht, a European Commissioner, to warn last week that this was a "red line" issue that could cause the EU to rethink the merits of the entire treaty.

The EU Article 29 Data Protection Working Party, which included ACTA on its agenda as part of its meetings last week, has written to Commissioner Karel de Gucht to express concern about the privacy implications of ACTA.  The Working Party is particularly concerned with notice-and-takedown procedures, customs searches, and criminalization.