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View Gagan Sikand Profile
Lib. (ON)
Madam Speaker, I will be sharing my time with the member for Yukon.
I am pleased to speak in the House today in support of Bill C-4, an act to implement the new NAFTA and, in particular, the agreement's intellectual property provisions. Canadian creators and innovators make an important contribution to the North American knowledge economy. For instance, in 2017, 68% of the patents filed by Canadians internationally were filed in the United States, more than at any foreign patent office. The new NAFTA would allow Canadian creators and innovators to continue to conduct business with our U.S. and Mexican partners, ensuring that they would continue to receive a clear, predictable and transparent framework for the protection and enforcement of intellectual property, or IP, rights in all three markets.
IP rights provide Canadian innovators and creators with a period of time during which they can expect to hold exclusive rights and be entitled to receive compensation, such as royalties for the use of their creations and innovations. With the new NAFTA, Canadians can be confident that their IP rights will receive a minimum standard of protection and enforcement across the entire North American marketplace.
Since the original NAFTA was negotiated, a number of key technological and multilateral developments have taken place that have presented novel challenges, such as with respect to the protection and enforcement of copyright in the digital environment. These include significant advances in the digital economy, including the further development of modern digital technologies that, since NAFTA, have been addressed in multilateral frameworks like the World Intellectual Property Organization.
The updated IP chapter builds upon those international IP treaties, like the WTO agreement on Trade-Related Aspects of Intellectual Property Rights, as well as the multilateral treaties administered by the WIPO with a view to establishing minimum standards on IP rights protection and enforcement for the North American marketplace.
Under the new agreement, all three parties agreed to an updated comprehensive chapter on IP rights protection and enforcement. This chapter includes obligations on copyright-related rights, trademarks, geographical indications, industrial designs, patents and pharmaceutical IP; data protection for agricultural chemical products and trade secrets; and IP rights enforcement in the civil, criminal and border contexts.
The modernized agreement also reflects several recent reforms to Canada's IP regime, such as those under the Combating Counterfeit Products Act and the Copyright Modernization Act, Canada's recent accession to several multilateral treaties under the WIPO, and initiatives undertaken through the government's recent intellectual property strategy.
For instance, further to reforms to Canada's copyright regime under the Copyright Modernization Act, the new NAFTA contains rules with respect to Internet service providers' liability that recognize Canada's notice and notice framework in this area as an effective approach to addressing online copyright infringement. The new agreement contains rules concerning legal protections for technological protection measures, or the digital locks on copyrighted works, which align with Canada's existing law and policy.
Regarding geographical indications, or Gls, the signs used on products to show that they come from a particular place with distinctive characteristics or qualities related to that place, the new NAFTA outcome is in line with Canada's open and transparent system for the protection of Gls. This means wines, spirits, agricultural products and foodstuffs remain eligible for GI protection in the Canadian marketplace, in line with Canada's current framework.
The agreement also contains provisions that require the parties to provide that judicial authorities can, where appropriate, order the award of attorney's fees to the prevailing party in civil proceedings. This is a valuable tool that often serves as a disincentive against bad actors who pursue bad faith litigation tactics, which can otherwise stifle innovation.
The agreement is not the end of the conversation among the three partners. It also includes a commitment from all three parties to co-operate in discussions on a range of IP issues of interest, such as on enhancing procedural fairness in IP litigation, including choice of venue, an issue of particular concern for some Canadian business owners operating abroad.
Building upon Canada's already strong IP regime, the new agreement would require changes in certain areas of Canada's existing IP legal and policy framework. For example, on border measures, Canada already provides officials at the border with the authority to act on their own initiative, as appropriate, to detain suspected counterfeit trademark or pirated counterfeit goods on import and export. The new agreement would require Canada to extend this authority to such goods transiting through Canada destined for another marketplace.
Regarding copyright, the new agreement requires a change in the general term of copyright protection from “life of the author plus 50 years”, to “life of the author plus 70 years”. With respect to patents, Canada would be required to provide for a patent term adjustment in respect of unreasonable delays in the issuance of a patent.
To implement these two obligations, Canada has transition periods of two and a half years for the general term of protection for copyright and four and a half years for patent term adjustment. These transition periods would commence following the entry into force of the agreement and would enable the government to thoroughly consider and consult on how best to implement these new commitments.
On December 10, 2019, Canada, the United States and Mexico agreed to update certain elements of the new NAFTA to improve the final outcome and clear the path toward ratification and implementation. With respect to IP, agreement was reached to delete or amend certain provisions dealing with patent and pharmaceutical IP. Most notably, the parties agreed to delete the commitment on data protection for biologics, which means that Canada would no longer need to amend its domestic regime to provide 10 years of data protection in this area.
The parties also agreed to remove a provision on the availability of patents for new uses, new methods or new processes of using a known product, as well as provisions on data protection for new indications of existing drugs. Last, language was also added on an exception related to regulatory reviews on how the three countries may meet obligations dealing with patent term restoration, patent linkage and data protection for small-molecule drugs.
These amendments clarify that Canada, the United States and Mexico would remain flexible under the new agreement to pursue domestic policy priorities in these areas. Notably, Canada would be required to make changes to domestic patent or pharmaceutical IP regimes in order to implement the amended provisions. For many Canadian creators and innovators, one of the key barriers to exporting abroad is uncertainty over IP rights and whether they will be protected and enforced when operating in foreign markets. That is why Canada worked tirelessly to ensure that the new agreement establishes clear standards on IP rights and is enforced across North America.
Ratifying the new NAFTA is not just about securing economic benefits for Canada today, but also ensuring our continued prosperity in the future. The agreement would ensure that Canada continues to have a strong and vital relationship with our closest neighbours.
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