British Telecommunications (BT) alleges that��on-line services offered by Valve infringe on four U.S. patents held by BT. The patents at trial are broadly worded and could implicate many popular video game, social networking, and video streaming services. If [BT v Valve]��were to succeed,��they would be granted legal authority allowing them police many of the services relied upon by the video game industry, as well as many other popular websites.

David versus Goliath

Valve, founded in 1996, owns and operates ��Steam, an industry-leading software distribution and social networking application for computer gaming.��Steam, released in 2003, commands a near-monopoly over the digital rights management (DRM) and computer game distribution. Despite massive support among developers and gamers alike, ���ٱ𲹳�—a�Ի� �ղ�������—h������ .

British Telecommunications (BT) group is the oldest telecommunications company on the planet, tracing its roots to the invention of the first telephone by Alexander Graham Bell. BT is a leading communications provider in the United Kingdom. According to court documents, BT “,”��in network telecommunications.

What the suit claims

BT argued that Valve continued to operate services at great cost to the patent holder, despite multiple communications asking Valve to stop. The following patents are alleged to have been infringed:

• Communications node for providing network based information service:��

• Method for automatic and periodic requests for messages to an e-mail server from the client:��

• Communications network and method having accessible directory of user profile data:��

• Multi-user display system:��

One can��see��how Valve's services are implicated in these patents. Steam��is a digital marketplace that distributes “”; provides chat services “”; stores “”��for its users; and allows these users to “.”

Valve is far from the only company implicated by the broad language of these patents (and certainly not the most financially successful). Messaging, video streaming, and web marketplaces are endemic to the internet and the tech world. As the patent holder, BT has a choice to enforce the patent against whomever they wish. Why go after Valve?

Possible reasons:

1. This is intended as the first of many similar suits

If the court were to rule in favour of BT in this case—however likely that may be—it would open the door for further enforcement of the strict language contained by the patents-in-suit. If the court accepted the language that “BT has been damaged and continues to be damaged by Valve’s infringement,” and applied retributive, pecuniary damages, this would set a precedent allowing BT to challenge industry leaders’ social media and networking IPs.

2. BT is looking to become involved in gaming, DRM, or streaming

Video games are a multibillion dollar industry. Leading publishers and distributors, like Valve, command the industry’s continually expanding value. Social and competitive gaming services, like Valve's��Steam are at the heart of a parallel, expanding market for “e-Sports”. Video game “sport” tournaments have exploded in popularity and now host regular tournaments each year. Cash prizes range in the tens of thousands of dollars. It is not improbable that major telecommunications companies would keep an eye on this growing market. If BT had any interest in permeating the market, the ability to enforce this patent against Valve could pay serious dividends.

3. A suit against Valve will allow BT to test public opinion

Most computer gamers must interact with ���ٱ𲹳�.��As a result,����news related to Steam and Valve receives a great deal of attention. The video game consumer base is very large. An accusation against Valve is sure to gain the attention of a large audience, including many people who would not otherwise follow tech news. This is a known tactic within the video game industry to��lobby public opinion.��Kotaku.com has gone so far as to develop a separate ��news page to cover all of the grievances--material and superficial--raised against Valve/Steam.��Targeting Valve is a��sure way to determine if public opinion will allow BT to go ofter other, higher-profile internet services with patent suits (e.g., Facebook, Amazon).

What does this mean?��

Perhaps this can be dismissed as a "patent troll" case. But, granting patent rights to BT in this case might lead to controversial effects. The Trans Pacific Partnership (TPP) (albeit, with rapidly diminishing support). The TPP would permit greater US-based regulation of the public internet. If this were ratified, a decision like that in BT v Valve would support and legitimize BT and the US government's policing of many of the most popular applications and resources on the internet.

Further news related to the suit will follow in the coming months.

Christopher McGoey is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

The post Big Telecom versus Video Games: Big Implications appeared first on IPOsgoode.

John: So on the topic of patents, the initial US proposal for data exclusivity period (which gives researchers a monopoly on their work) was 12 years It has since been brought down to 8. I’ve heard that it was Canada that helped bring this about. Is this true?

Ed: Yes. Canada is a kinder, gentler nation. We come to negotiations with a better appreciation for flexibility and asymmetrical outcome in bilateral and interregional negotiations. People understand that Canada plays a very valuable role in the TPP regional negotiations by being a trusted party that the less developed country could come to, to try to arrive at outcomes that represent a common denominator.

That required the less mature economies to scale up in terms of IP protection, but that also required the United States to come down from it’s high perch, and accept something lesser than they would have ideally wanted.

Canada played a very significant role in brokering that, and coming up with outcomes that everyone can live with.

J: One of biggest criticisms of the data exclusivity period is that it will of potentially life-saving drugs. How do you respond to that?

We have to understand the other side of the equation. The reason we have these world leading medicines and cutting-edge technologies that can now be deployed to address certain serious diseases, is because countries like Canada, the United States, and those in the European Union actually had strong intellectual property protection. That provided incentives for the brand-name companies to actually develop medicines that really are cutting edge.

It’s always about finding the appropriate balance, between providing an incentive to making billions of dollars of investment required to come up with leading edge solutions to healthcare challenges, and on the other side, making sure that we can get these medicines to Canadians and the rest of the world in an affordable manner.

J: And do you think such a balance has been struck with the current iteration of the Trans-Pacific Partnership?

E: Where the balance lies is never quite clear. That is where the debate takes place.

J: In 2007, Canada temporarily . It was the first time ever that a country has done something like that. Has our capacity to do so changed with the implementation of the TPP?

E: Canada’s ability to do that has not changed. But there has been very little success in getting generic products to countries that cannot afford these medicines. We do have provisions to allow that to happen. Canada has done it. But it has not done it often.

The challenge is this: the more you open up those opportunities, the more you open up opportunities to game the system. It’s been happening all over the world. Whenever there is any opportunity to exploit weaknesses in the system, people do.

But to answer your question: no, Canada’s ability to help developing nations, in the case of an emergency, has not been diminished.

J: Moving on the issue of copyright, one of the big changes is that there will be an extension on the term of copyright for 20 years after the creator's death (bringing it to a total of 70). Some have cited this as an we have made to appease the US, which is by far the largest producer of copyrighted material. Do you see this having a big impact?

E: No. Which is why we agreed to increase our copyright terms by 20 years. I think it should be kept in mind that we secured some real concessions in the TTP as well, in terms of copyright.

Because the standard that the TTP partners established before for internet probity was a notice and takedown provision. If someone posts something on the internet, and someone says “listen you're violating our intellectual property rights”, the US system, which was proposed in the TPP, says “provide notice to the ISP (Internet Service Provider), and they have to take it down”. This is before the plaintiff has even made their case in court. That is called notice and takedown.

In Canada, the debate lasted well over a decade. I was on the committee that studied copyright, and we had decided that in Canada's national interest to not go with notice and takedown, but to go with . So when someone posts something on the internet, and someone else complains about whether they had the rights to post it, the complainant can provide notice to the ISP. However it is up to the complainant to go to court and get the injunctive relief it needs to get the ISP to actually remove that material from the internet.

So this is a clear distinction, and under it (the notice and notice regime), we felt that our system still protected IP. It put the onus on the complainant to make case in court before the offending material was removed. Where in the United States and elsewhere you can submit a notice, and the ISP, without there having been any consideration, has to remove the material.

So it’s where the onus lies: is it on the offender, or the complainant? Canada says listen it is the complainant that has to make its case in court before the material has to be removed by the ISP. We were able to secure Canada's position, and our position was grandfathered in the TPP. So when we look at adding another 20 years to copyright protection, we felt that this was something that we could easily do in the national interest.

J: While we are on the topic, what are some other successes that Canada has achieved in the TPP negotiations?

E: Some of the biggest proponents of TPP in Canada are industries like agriculture and forestry. Through the agreement, they’ve been better access to markets like Japan.

We've also done something quintessentially Canadian. We have a system in place in Canada that is is an anomaly, and that is . We have free trade with the rest of the world in virtually every commodity except chicken, eggs, hatching eggs, turkeys, and dairy. Back in the 1960s, under Trudeau, Canada implemented the system which is effectively a national monopoly. Effectively we do not allow countries from around the world to export into our country any product under those 5 categories.

Now there are small amounts that we do allow under the WTO (World Trade Organization) rules. And our negotiations with the EU provided extra room for the EU to export cheeses into Canada. The TPP provides some extra room for the Americans and New Zealand to export products like dairy and other commodities into our market, but in very small quantities.

There are many people who had hoped that supply management will be dismantled under TPP. That did not happen. We believe that will be horrifically expensive for Canadian taxpayers because the investments that has gone into supply management totals to approximately $45 billion dollars. If you dismantle that system, someone has to pay that $45 billion dollars. That is the taxpayers.

J: Going back to the topic of IP, are there any other concession grounds that we really fought for?

E: It's not a matter of fighting hard for. It's about preserving Canada's existing system of IP protection and we did that. Because, remember, many of the countries that a part of TPP had IP protection standards that were much much lower than Canada's, such as Peru and Chile. And they are being forced to coming up to a much higher standard. We've basically been able to maintain our standard, what we already had in place.
The most significant shift in the standard actually did not happen under the place of TPP but happened in negotiations with EU.

J: I should probably dig in EU then.

E: Yes, definitely. The surprising thing is that a lot of naysayers in the IP side didn't have much to say about what was happening in the EU negotiations. They accepted it was an outcome that was in Canada's interest. But in the TPP, there's somehow, there's a really small number that has been very outspoken.

J: Yes, I have noticed that. Prominent amongst these naysayers is Jim Balsillie, former-CEO of BlackBerry. He recently wrote calling the TPP the “worst deal ever”. What do you say to that?

E: Yes. Jim Balsillie has been very outspoken. We have to understand that Jim Balsillie has a very narrow interest that he is promoting. He has a history with trying to compete with the United States. His company made a decision to compete in the consumer handset market, which was not a core strength of BlackBerry, and it ended up being a disaster. So obviously Jim Balsillie does not have a favourable take on doing business with the United States. This doesn't make the TPP bad.

He has a very narrow interest ... which reflects a bit of a chip on his shoulder. I don't think that should be reflected with what is happening in IP with the TPP.

J: I see. Thank you very much for your time Ed. These are some great insights you’ve shared.

E: No problem John. All the best.

John C.H. Wu is an IPilogue editor and a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.

The post The Deal of the Century: An Interview with Ed Fast, Former Canadian Trade Minister - Part 2 appeared first on IPOsgoode.

The Trans-Pacific Partnership (TPP) is the largest trade agreement ever, made between 12 nations comprising 40% of the world’s economy. In an written by Barack Obama, who championed the agreement, he claims the TPP will “write the rules of the road for trade in the 21st century”. On February 4, 2016, after seven years of negotiations, the document was finally signed.

To get an in depth perspective on the deal, which has stirred much in the legal community and beyond, I reached out to , Member of Parliament, former Trade Minister, and Canada’s representative throughout much of the TPP negotiations.

John: The TPP’s slogan is “high quality, twenty-first century”. Has the final version of TPP lived up to this goal, particularly in terms of its intellectual property (IP) rules?

Ed: Absolutely. The future we want is one in which there are clear and strong rules protecting IP. When the partners of the TPP got together, they had one common objective: to establish 21st-century trading rules for the Asia-Pacific region. I think we have done that, understanding full well that there is a broad diversity of economic maturity amongst the partners.

What we have done is land on outcomes that reflect a commonly shared understanding of not only the trade rules that will prevail, but also an understanding of the value of IP. Much of our future will be driven by the knowledge economy. We have to ensure that we have are tough rules in place that will protect the efforts of our innovators.

J: My research turned up a lot of comparisons between the TPP and NAFTA (). Care to comment?

E: Well, the TPP is a different kind of agreement. NAFTA was primarily a goods only agreement. It primarily focused on tariff elimination. The TPP goes far beyond that. It addresses in a far more comprehensive way, non-tariff barriers to trade. It is the first time Canada has signed a trade agreement with a chapter dedicated to small and medium sized enterprises. And, of course, it deals with issues like intellectual property in a much more comprehensive way.

J: So when detractors call the TPP “NAFTA, on steroids”, is that necessarily a bad thing?

E: Well, when you look at the total amount of trade that happens amongst the three countries in NAFTA, it has increased quite significantly. For example, since Canada entered into the FTA (), our trade with the United States has almost tripled. And of course, investment flows have increased dramatically.

Back when we first signed the FTA (which was superseded by NAFTA), American investment in Canada was probably around a hundred billion dollars. Today it’s closer to four hundred billion. So it’s not just an increase to the amount of trade, but also the amount of investment that Canada attracted as a result of the agreement, because we had strong investment rules, and had investor-state dispute settlement.

J: While we’re on the topic, investor-state dispute settlement is a very . There is a general fear that such mechanisms, bundled with agreements like the TPP, can invalidate a nation’s sovereignty and subject it foreign interests. Any comments?

E: That is hogwash. These agreements can be cancelled with 6 months notice. You are not ceding your sovereignty. What you are saying is, we will, during the period of the agreement, agree to specific mechanisms to resolve our disputes. They don not in anyway cede sovereignty. What they do is agree, if there is an independent neutral party that rises above national interests, to resolve issues accordingly, and arrive at outcomes that are deemed fair, independent, and non-arbitrary.

J: I see. Going back to NAFTA, you would say that it has been a generally successful venture for all its members?

E: NAFTA has created significant increases to investment flow— certainly to Canada— and bilateral trade with Mexico has septupled since 1995. The agreement essentially established the North American production platform, which remains the envy of the world. We have these almost-seamless supply chains stretching across our borders, allowing us to do trade in a much more efficient manner than if we were still balkanized and had our tariffs in place. I think the general agreement is that NAFTA has been a benefit to all three parties.

J: Currently, the US government, particularly congress, is still split on whether to ratify the TPP. If the US fails to ratify, other countries may start to back out. What are your thoughts?

E: Now from time to time, the benefits of these trade agreements gets caught up in political ideology. Right now in the US, we have the presidential primaries taking place. And people like Hillary Clinton, who used to be a huge supporter of the TPP, are suddenly not. And it all has to do with internal politics.

But at the end of the day, I am confident that the US will ratify the TPP. Simply because it is in the US’ self-interest to be the one, as part of the TPP, to establish 21st-century trade rules within the Asia-Pacific region. Because if we do not do it as a group, someone else will. And those may be rules we are not happy with.

J: So President Obama has taken a similar stance in an I read. He warns that if the US does not pass the TPP, countries like China will be set the rules for the Pacific region.

E: I did not mention China … but if there is going to be a set of rules for trade established in the Asia-Pacific region, why not let it be [done by] economies that understand freer and open trade the best? Countries like Canada and the other NAFTA partners, joined by other free markets like Australia, Japan, New Zealand, and Chile, along with markets like Vietnam, which have historically not been open. But even [Vietnam] recognizes that their future prosperity lies within in a larger Asia-Pacific region in which freer and more open trade takes place under 21st-century rules.

J: There are some (including the University of Ottawa’s ) who claim that the TPP’s increase to IP protection was made to protect the interests of certain corporations— particularly those belonging to the big pharmaceuticals, consumer technology, and Hollywood. Your thoughts?

E: I am confident that this is not corporate driven. The , although it’s not what the US had hoped for, represents a common landing zone where all 12 countries agree to collectively raise the level of protection for IP, understanding that much of our future prosperity will lie with ensuring that the innovators within our economies have their efforts protected in a way that reflects 21st-century standards.

In that sense, this is no different from our negotiations with the European Union. The EU had tougher IP rules than Canada did. When we finalized our negotiations with the EU on our trade agreement with them, we agreed to make some marginal adjustments to raise our IP protection.

The TPP broadly speaking does not significantly change Canada’s existing IP regime... if you compare what our IP protection looks like post-TPP, compared to what it looks like now, ��there is very little change. The significant part of the change has already happened in our negotiations with the EU.

J: ��Others, like RIM’s , expressed the fear that Canada is compromising itself to the United States with the agreement. After all, the vast majority of IP is produced there, so a stronger system of protection will mean more money in their pockets.

E: There has been a lot said about the US having basically locked in trade advantages by ensuring that there are higher IP protections. In fact, there is very little that changes with respect to Canada. The suggestion that Canada has compromised itself does not hold out when you actually do an analysis on the TPP.

The naysayers are saying that the IP provision of the TPP impairs our ability to catch up to partners like the US or Japan. That is nonsense. But what they really want in Canada is continue to remain in the wild west of IP, where you can still try to gain an advantage by cheating the system. That is not who Canada is. In fact, Canada is one of the most knowledge-oriented economies in the world, and it is to our benefit to product the innovation that comes out of here.

The fact that the US is doing better than better than anyone else in the world is no reason for us to not want protections similar to what is provided in the US. The reason for their success is strong IP protection.

J: Any final remarks on the importance TPP?

E: It is absolutely critical that Canada be a part of the TPP. If we are not a part of TPP, but the US and Mexico are, it represents a huge erosion of Canada's participation within the North American production platform. Because they that have tariff free access into the Pacific region, and Canada will not. Think about where investments dollars will flow. We have to protect our North American production advantages as a part of the TPP.

Join us next week for part 2 of the interview, in which Ed and I discuss healthcare, digital piracy, and Canada’s role in the TPP negotiations.

John C.H. Wu is an IPilogue editor and a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.

The post The Deal of the Century: An Interview with Ed Fast, Former Canadian Trade Minister appeared first on IPOsgoode.

The latest of international trade deals, the TPP, signed October 5^th, 2015, produced about seven pages of patent provisions that, under Canadian law, leave little impact. The Federal government’s is that Canadian law is already in compliance with these provisions. While this might be true, a more objective analysis of the text could support the argument that the TPP does in fact require some legal reform. However, legal reform would not create new legal obligations, as Canada has already committed to that reform under the newly minted Comprehensive Economic and Trade Agreement ()

Of all the TPP’s patent provisions, three concerning pharmaceutical drug patents are most notable. The first is patent term restoration, which extends patent terms in response to administrative delays. And the third is extended data protection specifically for biologics, a new form of prescription drug.

The first of the TPP’s notable provisions, concerning patent term restoration, can be found in articles and . Both provisions offer patent extensions in response to administrative delays. Article 18.46 grants extensions for patent office delays, and extends pharmaceutical patent terms by a time equal to any “unreasonable” delay in a drug's regulatory approval. Article 18.48 is not currently found in Canadian law, nor under .

The purpose of the provision is to recognize that patent enabled drug monopolies are of little value when drugs cannot be legally sold. This is welcome news for those who believe current patent terms successfully , as lost monopoly time would hinder pharmaceutical development. Also, everyone can appreciate how the provision detaches patent terms from flexible regulatory approval processes, adding certainty to IP investments and assurances against regulatory favouritism. Yet some argue term restoration is a tool for IP owners, used to extend an already sufficient monopoly.

The second notable provision is article , patent linkage. of patent linkage argue that tying marketing approval to previous patents creates space for tactical litigation, which can be used to delay generic competition and, in effect, extend patent terms. Although this was a debated topic during and after TPP negotiations, Canada has already employed for some time, and has also committed to linkage rules similar to the TPP since signing CETA.

The last of the TPP’s notable provisions can be found in articles and , which offer . This type of research is necessary for marketing approval and is an expensive cost of drug development. Supporters of data protection argue these provisions shield drug developers from free-riders, thus incentivizing invention. Though opponents might take issue with adding protecting of information on top of invention.

However, these provisions do not create monopolies on information, the way patents create monopolies on invention. Generic companies are free to rely on the same safety and efficacy data as the patent owners, so long as it is reproduced at their own expense.

The TPP grants a five-year protection on drug efficacy and safety data, and an additional three-year protection on research concerning biologic drugs, so-called large molecule drugs. Biologics are an emerging field of pharmaceuticals, and the extended protection is meant to recognize the often high risk and cost associated with exploratory research.

However, some suggests that a longer term of twelve years would be ideal, even considering this advantage. The TPP's compromise is eight years, which reflects Canada's current .

It is difficult to determine whether the provisions presented in the TPP’s patent chapter will help or harm Canadian interests. This determination will depend in no small part on which perspective the analysis is based. The TPP’s patent provisions are likely not immediately useful for consumers of patented drugs. Patent term restoration, patent linkage, and data protection all serve to strengthen patents.

However, these are welcome provisions from the perspective of drug developers, as they increase the value of existing and new patents. In this sense, perhaps the rules are also good for Canada. For example, biologics were given special protection to encourage investment. Canada’s pharmaceutical research and development sector, one of its largest, would likely benefit from this improvement in market conditions, especially since investment in that sector has recently suffered steady .

Matt Wallace is an IPilogue Editor, JD Candidate at University of New Brunswick, and writes on technology law.

The post Pharmaceuticals Main Attraction in TPP IP Chapter appeared first on IPOsgoode.

Critics of the TPP have disparaged the agreement for serving the interests of large US-based corporations. World Bank chief economist, Clinton Administration advisor, and Nobel laureate wrote an denouncing that the working text was held “secret from the public (even though the details are accessible to hundreds of advisors to big corporations)” and that the treaty “proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible”. In Canada, innovative entrepreneurs including former Blackberry/Research in Motion co-CEO Jim Balsillie (who is now helping create a tech-focussed lobby group,��) argue the TPP IP measures are��.

The copyright and related rights sections of the TPP����largely cohere with existing Canadian law����and obligations under other international treaties. As indicated in Global Affairs Canada’s��, the TPP��“Provides protection and enforcement of copyrights and related rights, reflecting or building upon the World Intellectual Property Organization Internet Treaties. Canada ratified the Internet Treaties in 2014.”��As well, Global Affairs Canada notes that the TPP��“Reflects key aspects of Canada’s regime, including: Canada’s Notice-and-Notice regime regarding Internet service providers’ role in addressing online copyright infringement; protection and enforcement to prevent the circumvention of technological protection measures and the removal of rights management information; and Canada’s copyright exceptions and limitations framework.”

A close reading of the Copyright Act and the TPP IP��Chapter demonstrates that current Canadian copyright law will not need to be significantly altered to be in line with the TPP. Additionally, IP lawyer and adjunct Osgoode Law School professor Barry Sookman�� “the TPP leaves the parties with flexibility to maintain or establish exceptions”.

This flexibility is important, especially in situations where the TPP copyright sections and Canadian law differ, as these divergences could impact efforts to further develop a vibrant digital economy in Canada. If the TPP is ratified and goes into force,��Canada's digital economy will need to be designed to exploit the��flexibilities and exceptions built into the TPP to suit the needs of the Canadian public as well as the business sector.

Changes: Copyright Term Extension and TPM/RMI Enforcement

One significant divergence between Canadian law and the TPP is found in TPP��, which requires that the term of protection��“shall be not less than the life of the author and 70 years after the author’s death”.��This section would extend Canada’s current copyright term by 20 years. The only exception is found in the case of��“a sound recording in which the performance is fixed is published before the copyright expires”��,, a section of Canadian law recently changed to��“the copyright continues until the earlier of the end of 70 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs”.

Canadian law would also need to change to adhere to the technological protection measures (“TPMs”) of the TPP. Existing Canadian law states no person shall circumvent TPMs or provide or market services to do the same . These anti-circumvention provisions prevent the��“manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component”����designed, produced, or marketed primarily for the purpose of circumventing TPMs. Exceptions are made in the case of ensuring technological interoperability����as well as law enforcement and national security purposes��.

The TPP����reinforces and extends the provisions of the��Copyright Act��with respect to TPMs as well as rights management information (“RMI”)��. Similar to existing Canadian law, the TPP offers civil and criminal remedies and penalties for a person either��knowingly engaging in or��“having reasonable grounds to know” that they were engaging in the breaking the so-called digital locks. The Copyright Act����and the TPP IP Chapter����both provide for criminal penalties for willfully circumventing TPMs for commercial or financial gain, while excepting non-profit libraries, museums, archives, and educational institutions. In contrast to the Copyright Act, the TPP also extends these penalties to the protection of RMI��, which are information pertaining to the authorship and ownership of a work. While the TPP allows for domestically-tailored limitations to be enacted with respect to TPMs��“through a legislative, regulatory, or administrative process”��, this concession is not extended to RMIs, where legislated exceptions are limited to cases of��"law enforcement, essential security interests or other related governmental purposes, such as the performance of a statutory function"��. Restricting the ability to alter or remove RMIs for non-commercial purposes can prevent users to modify works even in accordance with fair dealing exceptions.

The Changes in Context

The TPP not requiring significant alterations to Canadian copyright law is both positive and a negative. The TPP reflects the priorities and interests of existing United States businesses and industries, restricting the ability of the Government of Canada and other parties to the Agreement to����in the future without re-negotiating the agreement itself. This will prevent the TPP parties from responding to changing technological circumstances and alternative business practices, which could help encourage future entrepreneurship and innovation or to reflect domestic priorities. The TPP establishes an international framework for copyright law and related rights based on existing corporate realities. However, the merits of these laws as written can be questioned according to whether or not they are desirable or designed for and in line with the interests of prevailing corporations and business practices.[1]

For example, the extension of copyright terms is controversial due to the fact that��longer rights periods delay the addition of content into the public domain, add burdens and costs to consumers, and help extend the transfer of wealth to rights holders at the disservice to the public good[2]. A����for New Zealand’s Ministry of Economic Development estimates consumer costs to be NZ$55million per year.

Similarly and with respect to TPMs, McGill University law professor��, now the new Parliamentary Secretary of International Trade,����that TPMs represent “a serious conceptual flaw or incoherence”, which “could overwhelm the copyright balances” (p. 327).

Lawyers and academics have����and that International Trade Minister����should look to��. Issues remain to��complicate the ratification of the TPP in the US and elsewhere. If or when the TPP comes into force, Minister Freeland and Parliamentary Secretary Lametti should be proactive and work to ensure that the Government of Canada has the domestic policy space to interpret international trade obligations and the ability to revise Canadian copyright law to foster a digital economic policy, which serves the best interests of Canadian citizens and stakeholders. The Copyright Act requires that the law is reviewed every five years��. With this in mind as well as the fast-changing realities of the digital economy, the Government of Canada should actively engage with partner Parties to amend the agreement as necessary and in accordance with the TPP's final provisions��.

The ‘Made in America’ approach of the TPP helps extend and reinforce the economic and market-based concerns of American companies and industries. Such a move threatens to fortify Canadian dependency on American copyright protected exports and limit Canadian corporations’ ability to disrupt the digital economic business practices of dominant American firms. As I have argued elsewhere, in order for Canada to continue to compete with international companies��and��develop a digital economy��that responds to and builds from the emerging realities of the 21^st��Century, the Government of Canada must be proactive and work to retain and utilize copyright and related rights flexibilities to serve the best interest of Canadians and the economic viability of innovative and domestically grown businesses and business practices.

[1] For further information, see the����from University of Ottawa��law professor Michael Geist, the Canada Research Chair in Internet and E-Commerce Law.

[2]��In a��,����finds that extending the copyright terms has an “insignificant impact on the number of works created in Canada,” may slightly increase the costs to consumers, and “will likely contribute in a small way to an outflow of royalties from Canada” (Executive summary, para. 2).

Joseph F. Turcotte is a Graduate Student Member of IPOsgoode and a PhD Candidate (ABD) in the Communication & Culture Program (Politics & Policy) at 91��ɫ. His research focuses on the role of knowledge, information, data, and intellectual property in the functioning of knowledge-based and digital economies. He can be reached via Twitter at��

The post 'Made in America’ 2015? The TPP and the Future of Canada’s Digital Economy appeared first on IPOsgoode.

To read the IPilogue's blog and commentary about the lecture, click .

The post IP Osgoode Speaks Series Video: Dr. Matthew Rimmer appeared first on IPOsgoode.

The����IP chapter��includes��several rules that indirectly extend patent terms for pharmaceutical drugs, such as��,��, and��. However, the actual benefit these provisions provide is��

Take patent term restoration for example, which extends patent terms by a time equal��to any “unreasonable” delay in a drug's regulatory approval. This provision's purpose recognizes that patent enabled drug monopolies��are of little value when drugs cannot be sold legally. And��the TPP considers any��five-year��delay��unreasonable.

Patent restoration is��welcome news for those who believe current��patent��terms successfully��,��because��lost monopoly time would hinder pharmaceutical��development.��This provision also detaches patent terms from flexible regulatory approval processes, adding certainty to IP investments. And��it adds assurances against regulatory favouritism. However, some��critics argue term restoration is��a��tool for IP owners used to extend an��already sufficient��monopoly.

Another debated policy found in the TPP is patent linkage. This rule requires generic drug companies to prove their products do��not infringe any existing patents before they can be granted marketing approval.����of patent linkage believe��tying marketing approval to previous patents creates space��for tactical litigation that can be used to delay generic competition��and in effect extend patent terms. However, Canada already��employs patent linkage, and has already committed to linkage rules similar to the TPP by��signing��.

In addition to patent restoration and patent linkage, the TPP��includes two controversial pro-patent provisions that provide data protection to pharmaceutical efficacy and safety research. This research is necessary for marketing approval and is an��expensive cost of drug development. Supporters of the data provisions argue that these protections��incentivize invention by��shielding drug��developers��from��free-riders.

Opponents of these provisions might take issue with protecting information on top of invention. However,��this is not a monopoly on information, and��generic companies are free to use the same data��so long as it is��reproduce at their own expense.

The TTP grants��five year's protection on drug efficacy and safety data, and an additional three year's protection to research concerning biologic drugs, so called��large molecule drugs.��Biologics are an emerging field of pharmaceuticals, and the extended protection is meant to recognize how exploratory research is often more risky and thus more expensive.

One compelling����against special protection concerns the nature of biologic drugs. Whereas traditional small molecule drugs are chemically synthesized and easily reproduced, biologics often have genetic and cellular components that are not as simple, or cheap, to replicate.��Critics think��this creates a natural barrier to entry, giving��biologic developers a first-mover advantage��that sufficiently returns��the risky cost of research, eliminating��any��need for��data protection.

However,��some����suggests, even considering this advantage,��that��a��longer term of twelve years would be ideal. The TPP's compromise is��eight years, which reflects Canada's current��.

As is usually the case with trade deals, the TPP’s patent provisions fall short of both advocates' highest hopes and critics' worst fears. For Canadian law, the TPP will have little effect. But��this��is not necessarily a good thing. Current patent rules may not be best for incentivizing drug development, as��the����over patent policy��suggests. Meaning,��this��failure to change might��successfully impede innovation.

All that can be said with certainty is the TPP will not reduce the price of today's life-saving drugs. Whether innovation properly compensates this cost is for posterity to judge.

Matt Wallace is an IPilogue Editor, JD Candidate at University of New Brunswick, and writes on technology law.

The post The TPP and Patents: Expensive Drugs, Questionable Returns appeared first on IPOsgoode.

In a timely manner, only three days after the of the conclusion of negotiations on the Trans-Pacific Partnership Agreement (TPP), Prof. Matthew Rimmer accepted our invitation and shared few of the hidden secrets behind the agreement as part of IP Osgoode speaks series.

This ‘blockbuster agreement’—supposedly a jovial landmark in the sphere of diplomatic international relations—was diluted with a mixture of uncertainty and secrecy. According to Prof. Rimmer, the TPP is a controversial agreement for several reasons. First, many concerns were raised regarding the involvement of major companies, via special advisory groups and executives, in drafting parts of the agreement. Consequently, the companies allegedly had more influence over the TPP than the legislators since the latter could not review the agreement that was protected (and still is) under the blinds of confidentiality. Second, a few notable countries are not signatories of the TPP (China and Russia for example). The reasons underlying China and Russia’s exclusions raise questions regarding the TPP’s true nature—is it really a trade agreement or simply, as Prof. Rimmer implied, ‘the coalition of the willing’ that was established as part of a U.S. global trade strategy.

Much of what we know to date about the TPP was retrieved from . Jamie Love, the director of (KEI), who recently shared��a into the TPP deliberations, alerted that "[i]n many sections … the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods."

IP Principles and Objectives

The TPP’s IP chapter covers a wide scope of topics and is positioned to change the normative boundaries of IP and, more specifically, of copyright. The traditional approach, as shaped in the U.S. and the U.K., is rooted in the perception of copyright as a means to inspire creation and proliferate knowledge. However, as Prof. Rimmer explains, it appears that the current vision of the TPP, under the influence of the music and movie industries, seeks to transform the normative balance of IP in order to strengthen the owners’ well-fortified rights. It is not hyperbole to define the TPP as a game changer that could have grave implications to the public domain.

A ‘Mickey Mouse’ Copyright Term Extension

According to Prof. Rimmer, the movie and the music industries have strategically argued for a prolonged extension of copyright terms. The TPP seems to answer their call, as it extends the term of protection to 70 years after the life of the author. This extension will likely have a profound affect in various fields, including Canadian cultural heritage, competition, innovation and the public domain. However, it is unclear if the TPP will include a demand for the revival of copyright works that were previously in the public domain. Prof. Rimmer also indicated that the TPP seeks to for orphan works.

Fair Use/Dealing and Disability Rights

There has been much academic discourse concerning whether the TPP language, in regards to the definition of fair use/dealing, is far too narrow or too broad compared to previous agreements, particularly the , in defining copyright exceptions. The TPP definition will most likely affect the course of this discussion. If the TPP adopts a narrow definition for fair use/dealing, it could set back recent developments in Canada related to the Supreme Court landmark decision in .

Copyright and disability rights stand in the center of recent international progress in copyright law. The —the most prevalent—aims to expand the recognition of the rights and interests of disabled people to access copyright protected materials, ending what was known as the ‘Book Famine’. According to Prof. Rimmer, the TPP makes an effort to recognize the Marrakesh Treaty. However, the Marrakesh Treaty is narrowly limited in scope to the visually impaired. Prof. Rimmer argues for a broader scope that will include other disabilities as well.

DMCA

The TPP seeks to export aspects of The Digital Millennium Copyright Act () and imbed Technological Protection Measures (known as ‘digital Locks’). Such anti-circumvention measures might endanger the fair use/dealing exceptions. The DMCA is a premature regime that was enacted almost two decades ago, in a pre-search engine and social media era, and is not well designed for current challenges. Stressing the absolute DMCA model as part of the TPP seems unreasonable. It should be noted that the DMCA model may have grave consequences to Canada, which in the past decade have defended its copyright laws against the DMCA successfully.

Protection and Enforcement

Protection and enforcement measures play an important role in the implementation of any international agreement. The TPP includes an arsenal of IP enforcement measures such as criminal offences and civil remedies. However, the TPP's rigid structure does not enable the members of the agreement much flexibility in adapting the TPP into their domestic laws. Prof. Rimmer criticized that the TPP ‘locks’ a specific model rigidly; it is uncompromising in regards to changes and modifications to the enforcement measures since it requires the approval of all members.

TPP’s Radical Vision

Prof. Rimmer concluded his lecture by stating that the TPP agreement ‘is radical’ not only in its objectives and purposes, but it also changes some of the fundamental doctrines in copyright such as term extension, fair use/dealing, liability issues etc., while diminishing the public domain in the process.

The TPP agreement is indeed a defining moment in the international effort to consolidate IP laws, however, the shroud of secrecy surrounding the TPP is not an encouraging sign. There is the general concern that the leaked terms of the TPP agreement will cause copyright laws to regress and destabilize the delicate balance between authors' and creators' rights to the public domain, thereby doing more harm than good.

The Sum of All Fears

On the eve of posting this blog, The Office of the U.S. Trade Representative (USTR) finally published the��. Not surprisingly, we discovered that the TPP’s negotiation leaks were, in general terms, accurate. For example,��the TPP includes a copyright term extension of ‘not less than the life of the author and 70 years after the author’s death’ (Article 18.63(a) to the TPP) as predicted. Obviously, we should read the TPP thoroughly, however—as it seems—it is indeed what we all feared it to be.

Aviv Gaon is a PhD candidate at Osgoode Hall Law School

The post IP Osgoode Speaks Series Featuring��Prof. Matthew Rimmer appeared first on IPOsgoode.

At the time of the Uruguay Round talks, IP matters . The international diffusion of IP law via the TRIPS Agreement and within the WTO has given prominence to the role that IP law plays with respect to economic and human development in developed and developing nations.

Government negotiators, industry representatives, civil society advocates, and a host of other interested parties are now increasingly active in shaping IP law regimes. This considerable interest is complicating efforts to update legal and governance systems to meet contemporary and future realities.

In the past, large and established industries have effectively lobbied their governments to enact domestic IP reforms and to insert these previsions in international trade agreements in order to preserve their business interests. As , the TRIPS Agreement was the result of concerted lobbying efforts by the entertainment and pharmaceutical industries in the United States. Against the backdrop of an emerging “,” these and other industry groups are likely to continue pressing for changes that support their business practices.

However, coordinated activism against perceptions about increasing levels of IP protections is being led by a host of developing states as well as civil society critics in developed and developing countries. These groups are reacting to what they consider a proprietary ownership system over cultural and communicative processes that is deemed to serve the interests of dominant industries primarily located in developed states. These actors are seeking to ‘rebalance’ the international IP system to meet the socioeconomic development objectives of a diverse set of stakeholders in developed and developing countries. They often advocate for legal and socio-legal reforms that they contend will stimulate public policy objectives for technological innovation and economic growth while addressing the economic, social, cultural, and development needs of users, citizens, and emerging business practices.

The increasingly contested nature of IP negotiations has resulted in a patchwork of international trade and IP agreements that are negotiated outside of established multilateral forums. In particular, the US and EU have been actively seeking arenas where they are better able to reach agreement on complex issues. However, the failure of international discussions - such as the - as well as American legislation - notably the and the - have cast doubt on the viability of these exercises.

ACTA, SOPA, and PIPA have failed (at least for now) for similar reasons; ��the effort of creating these policies had been derailed due to sustained civil society and public interest opposition. A number of concerned groups argued that some of the policies within the proposed laws' scopes were too broadly construed, threatened civil liberties and development concerns, did not strike a ‘balance’ between private and public rights, and would have unforeseen consequences for economic growth, creativity, and innovation.

In the case of ACTA, the outcome of two years of negotiations between representatives for nearly 40 countries has been stalled, as the number of signatories required to ratify the treaty for it to come into effect has not been met. To date, only Japan has officially ratified the treaty; support for it has otherwise diminished. The European Parliament the treaty in a landslide decision in 2012. , a Member from the United Kingdom, welcomed the move, “The Treaty was too vague and was open to misinterpretation. I will always support civil liberties over intellectual property rights protection.”

SOPA and PIPA, domestic initiatives in the US, also met concerted backlash. In these cases, civil society groups were joined by corporations in the US technology sector and argued that the bills threatened the viability and functioning of the Internet, which would slow the pace of technological innovation as well as users’ rights. These protests culminated in an ‘Internet blackout’ that had many large websites—including Google and Wikipedia—display messages opposing SOPA and PIPA or�� entirely. In total, over 7000 websites joined in . Following these protests, support for the bills dropped in both the House and the Senate and they were withdrawn.

The TPP negotiations have faced similar criticisms and may face similar opposition if and when the treaty is finalized. Opponents of the TPP argue that, as with all other trade agreements, secret negotiations and a lack of official releases of treaty drafts reduces transparency. Wikileaks’ release of the November 2013 negotiating text has provided fodder for the TPP’s critics and accentuated this problem. , the Director of Knowledge Ecology International, responded to the leaked text that “The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.” Supporters of the negotiations have been quick to respond with the US Chamber of Commerce “the TPP negotiations represent an opportunity to establish strong rules to protect intellectual property, cultivate the digital economy, and combat trade and investment protectionism.”

It is important to recognize that the text released by Wikileaks is only a working draft of the negotiations. A close reading of the leaked version reveals that there are many unresolved issues that need to be addressed. Tellingly, the US negotiating with the majority of the other parties. As well, the Canadian group has put forward the largest number of proposals for the text and has also been actively opposing so-called controversial provisions and offering alternatives. However, from Wikileaks show that the American negotiators are working to press forward and exert pressure on disagreeing parties.

One proposal that is most indicative of the disagreements taking place during the negotiations surrounds the objectives of the TPP. A group of nine countries (the "Group"), including Canada, has proposed that the treaty should “Enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade” () and “maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property” (). The US and Japan both oppose this proposal as it is written.

The connections between “economic and social development” (emphasis added) as well as the need for a “balance” of IP holders and users highlight a general disagreement between the Group and the US/Japan over the role of IP law. It is unclear why the US and Japan oppose this wording, but it may be due to the fact that these countries are often wary of using language that can be interpreted in a manner that contradicts the primacy of the rights of IP holders. This divide also contributes to disagreements over proposals relating to access to medicines, the extension of copyright terms, and the rejection of exceptions or limitations on digital rights management and technological prevention measures.

Another round of negotiations has been scheduled for early 2014 in the hopes that an agreement can be reached by the end of the year. In order for this to occur, negotiating parties will need to resolve these and other differences. Even if an agreement is reached, the fates of ACTA, SOPA, and PIPA must be considered when trying to move the TPP towards domestic ratification. Having excluded a number of people from the negotiation process, the governments of the TPP signatory nations will need to make steps to assure their citizens that the treaty is beneficial and does not necessitate the opposition that felled the earlier attempts at IP reform.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

The post Going the Way of the Doha? The TPP and Contested Intellectual Property and International Trade Linkages appeared first on IPOsgoode.

But then the international institutions changed. The WTO and WIPO used to be places where large IP-producing countries used to hold more sway, and it was easier to pass international agreements. However, as large developing countries started finding their voice, it became harder for IP owner countries to push their agendas. The culmination of this situation was the failure to approve the WIPO Broadcast Treaty in 2007, which was a big blow for the content industries. This Treaty was defeated by a combination of web activists, the tech industry and developing countries, and has to be taken as the final nail in the coffin for the quasi-unilateral control of IP owners of the international institutions.

I do not wish to be ideological in this assessment. There are few countries who are net IP exporters, and the US is still the one with the biggest stake in the creative industries (hence its interest in expanding IP protection and exporting such expansion). The USTR is not a mindless agency pushing for more IP protection to fulfill an evil agenda; it is doing so because it is in its best commercial interest. As such, for the last decade, the USTR has been engaged in a clear strategy that tries to export stronger IP protection around the world, because at the moment, anything that protects IP in a given territory will undoubtedly favour its balance sheet. TRIPS-plus agreements, and other bilateral efforts, have to be seen in that light.

Several other things have been happening at the international IP institutions. Policy-making at the WTO seems to have ground to a halt after the 2001 Doha Ministerial Conference. WIPO has also been seeing some structural and political changes. The institution has become more financially independent thanks to the success of the Patent Cooperation Treaty and the domain name dispute resolution procedure, which means that they do not have to take marching orders from content owners any more. The BRIC countries have also been gaining more expertise in the area of IP, so governance at WIPO has become an issue. WIPO is more balanced, but strangely, it is also a more dysfunctional institution as a result. It is precisely the growing balance between countries that has prompted some countries interested in international maximalist agendas to try to implement their agendas through international trade treaties.

So, if you want to expand IP protection, but cannot do it at the international IP institutions, what do you do? ��Enter the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP).

The ACTA negotiation was riddled with compromise from the start. In retrospect, it may have been a mistake for the USTR to include countries with their own large stake in the IP world, particularly Europe and its interest in maximizing protection for geographical indications. In the end, ACTA resulted in a much more diluted agreement than what it was originally.

So now we have had some glimpses at the IP provisions contained in the TPP, and they are what ACTA could not be. While ACTA resulted in a compromise, the TPP attempts to go for broke and contains a wishlist for the content industries. This includes its own version of the Broadcast Treaty, harsher provisions against circumvention of technological protection measures, erosion of existing exceptions, the potential destruction of the first-sale doctrine, and what I can only class as an open war against intermediaries. In short, TPP reads like the frustrated collection of a department that has had more than a decade of not getting its way.

So we have interesting days ahead of us. Will TPP fall prey of the ?

Andres Guadamuz is Vice President at Innova Technology, a software firm in Costa Rica, and Associate Director of the SCRIPT Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh, where he has also served as Lecturer in Electronic Commerce Law. For more details about some of the provisions in the TPP, .

The post TPP: The Shape of the New International IP Regime appeared first on IPOsgoode.