Canada, United States, and Intellectual Property: Two Viewpoints

Even the world’s largest bilateral trade relationship has some rough spots.

In an article last week, Joni Johnson called out Canada for it’s intellectual property (IP) “shortcomings,” urging the United States to “take a firm stance” with Canada in the Trans Pacific Partnership trade talks.

Johnson is the South Dakota Biotech Association’s (SDBio) Executive Director, an organization “dedicated to the development of biotechnology industries through expansion of bio-based research, investment, education and promotion.”

SDBio’s membership includes agricultural and livestock companies, along with natural resource industries and educational institutions. 

So, is Canada a “bad actor on IP”?  

Not according to Michael Geist, IP law professor at the University of Ottawa law school and frequent blogger and columnist.

Read Johnson and Geist’s contrasting views on IP and the Canada-U.S. trade relationship below.

From Johnson’s editorial at ArgusLeader.com:

The Global Intellectual Property Center ranks Canada poorly on its 2012 global IP index, showing weakness in the areas of patents, copyrights and trademarks. The worst score Canada received from the GIPC was in its membership and ratification of international treaties. This is a major concern for any trading partners relying on Canada to honor agreements.

Weak IP protections lead to fewer investments in research and development, and fewer products in the pipeline. To remain the world’s leader in innovation and create high-paying jobs for Americans, we must chart a clear path so that businesses continue to innovate.

Canada has a robust free-trade agenda and clearly would like to achieve economic success through increased trade in a way that is agreeable to the major industrialized nations of the world. For this to happen, Canada must recognize its shortcomings and take corrective action. Honoring current trade agreements and World Trade Organization rules and respecting the rights of innovators and their patents who are exporting to Canada would be a good first step and would reassure American businesses and political leaders that it is not a bad actor on IP.

While the U.S. already has a multilateral trade agreement with Canada, it is obvious that times and technologies have changed. In the biopharmaceutical industry, exciting developments in biologic medicines and other fields mean a new agreement must reflect the changing times.

The president and U.S. trade representative must take a firm stance toward Canada during the negotiations and advocate for U.S. law. By applying pressure and leadership in the negotiations, the U.S. can benefit from Canada’s sophisticated and well-developed economy while ensuring the necessary protections for American workers and our economy.

Michael Geist’s passionate take on the issue:

So Canada – a country with intellectual property protections that have been ranked ahead of the U.S., has many copyright rules more restrictive than the U.S., and digital markets growing faster than the U.S. – is once again placed by the U.S. on the watch list while other countries with similar laws are not.

This year’s inclusion is somewhat different, however. The Canadian position on the validity of the list no doubt remains the same as Canadian officials have consistently rejected the entire process as an industry-driven analysis without merit. In fact, according to records I recently obtained under the Access to Information Act, Canadian officials prepared a full defence of Canadian law for submission to the Special 301 process in 2009 but ultimately decided against submitting it.

More telling are the U.S. cables released by Wikileaks that conclusively demonstrate how the entire process is nothing more than a calculated guess at how much pressure can constructively be brought on foreign governments. The placement on the list ultimately says little about the strength of a country’s laws. Rather, it is about the strength of the national government and the likelihood that it will cave to U.S. pressure by inclusion on Special 301.

What is left is a “name and shame” approach that brings shame primarily on the U.S. as the bully tactics have little correlation to a factual analysis of the state of Canadian intellectual property protection.  The lesson for Canada is clear.  With a majority government in power, it should have the strength to address copyright laws in the national interest, even when that means saying no to some U.S. demands.  Indeed, the history of the Special 301 list shows that no matter what Canada does, the U.S. will always come back demanding more.

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