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CETA Privacy Issues

Canada and the European Union have been in talks over what is known as the Canada-EU Trade Agreement (CETA) for the past three years. Many observers have pointed out that the process seems to be mostly done behind closed doors, leading some to speculate that the agreement might be a furtive way to get some unpopular provisions ratified. A draft leaked in early 2012 resulted in a lot of concern over the lack of protection for digital civil liberties. This article takes a look at the privacy issues associated with the CETA.

Privacy Controversy over the CETA

Controversy over the Canada-EU Trade Agreement (CETA) arose when a leaked draft of the deal seemed to contain the same wording as the international Anti-Counterfeiting Trade Agreement (ACTA). Of course, the ACTA was rejected by the European Parliament, since it did not meet minimum standards of protecting civil liberties.

One of the major concerns was that signatories were permitted to “order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement.”

The draft was leaked back in February 2012, and many saw this as tantamount to making ISPs the equivalent to the internet police. Of course, since then, the text has been removed from the CETA. However, a number of other problematic provisions remain.

The Agreement aims to criminalize the circumvention of technical protection measures, including the manufacture, importation, distribution or marketing of software that “is primarily designed for the purpose of circumventing an effective technological measure or has only a limited commercially significant purpose other than circumventing an effective technological measure.”

It’s unclear what a “limited commercially significant purpose” means in this draft of the CETA. However, it does contain provisions which give authorities the right to destroy any “materials and implements predominantly used in the creation or manufacture” of intellectual property-infringing goods.

Furthermore, the CETA aims to protect the power of authorities (already something in the European eCommerce Directive) to order internet service providers (ISPs)

Is CETA the New ACTA?

Even though the European Parliament voted overwhelmingly to reject the ACTA in July 2012, many observers argue that problematic elements of the ACTA continue in the CETA. According to Canadian law professor Michael Geist:

“Canada and the EU have already agreed to incorporate many of the ACTA enforcement provisions into CETA, including the rules on general obligations on enforcement, preserving evidence, damages, injunctions, and border measures rules. One of these provisions even specifically references ACTA. “

Geist goes on to recommend:

“With anti-ACTA sentiment spreading across Europe, Canada should push to remove the intellectual property chapter from CETA altogether. The move would not be unprecedented. Many of Canada’s free trade agreements feature only limited IP provisions…”

Geist is not alone. The Council of Canadians is another highly visible opponent to the intellectual property chapter. The Council argues that intellectual property laws, such as the CETA, ACTA and the Trans-Pacific Partnership Agreement:

“… ramp up protections for already powerful rights holders and require state authorities to criminalize real and even suspected infractions of those private rights… [These] trade deals are negotiated behind closed doors, which is wrong to begin with but strikingly worse given what’s at stake.”

A tough call…

The Harper government is eager to complete CETA negotiations, maintaining that it will result in a “$12-billion annual boost to Canada’s economy.” While much of the negotiation process has been conducted with little transparency, it’s clear that the talks reach far beyond market access for goods and services, and may determine rules on investment and intellectual property.

In June 2012 it became clear that the pharmaceutical sector was a major area of interest. The EU strongly encouraged Canada to adopt tighter restrictions in intellectual property that would benefit international brand-name drug companies, while at the same time, increase health care costs and hurt generic drug producers.

BC’s Premier Christy Clark is adamant that she and her colleagues will oppose these proposals, as the rise in the cost of drugs is something provincial health care programs cannot afford. A number of leading health economists have estimated that the cost of prescription drugs in Canada would increase by about $2.8 billion annually, if the EU proposals for pharmaceuticals are included in the final CETA. Their estimate doesn’t even include the impact to the generic drug industry itself, or its contribution to life sciences and the manufacturing sector. This means a significantly decreased participation in international markets.

The concern over intellectual property in the pharmaceutical industry is just one of many CETA-related worries.

Summary

The Canada-EU Trade Agreement (CETA) has been in the works for the past three years. Along with wide-reaching trade provisions, the CETA also includes rulings on copyright and other intellectual property rights. Privacy and civil liberties watchdogs are wary that the CETA is merely a backdoor way to pass similarly problematic provisions included in the Anti-Counterfeiting Trade Agreement (ACTA), which was roundly rejected earlier in 2012.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/Canada (CIPP/C) exam, and the Certified Information Privacy Professional/Europe (CIPP/E), a privacy professional should be comfortable with topics related to this post, including:

  • Disclosure and transfer – data sharing (CIPP/C; III.B.b.i.)
  • European regulatory institutions (CIPP/E; I.B.)
  • Legislative framework (CIPP/E; I.C.)
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