Affordable access to food, pharmaceuticals, and scientific advancement is essential for the well-being of Canadians and society in general. Intellectual property (IP) protection is one area or policy that has the ability to jeopardize this access. Unfortunately, the policies that govern IP—the regulations that set out how this property will be protected and for how long—are being set with corporate interests as the priority. For corporations, IP protection is a way to guarantee profits on an “invention” by monopolizing access to that invention, and the longer the product is protected, the longer the corporation can maximize its profits.
For most people, however, the question of who owns intellectual property affects our access to items and knowledge necessary for our survival. Currently, these policies are being made behind closed doors, and pushed through under the guise of free trade and investment agreements. We are told that, without IP protection stipulations in trade and investment agreements, we could lose trade relations with other countries. This is not democratic. The issue of IP protection is becoming more important because IP laws permeate new areas and industries. Instead of continuing to negotiate IP protection behind closed doors, we need to have an open discussion with all members of Canadian society.
Multinational corporate interests have been the driving force behind IP protection since the early 1980s. The business lobby in the United States used the downturn in the U.S. economy during the 1980s to link the theft of IP to the much greater negative effect on U.S. competiveness. They convinced key people within the U.S. administration that IP was in the national interest of the country by emphasizing the link between IP-based goods and services to U.S. competiveness in the global market. They argued that stronger IP protection would help the U.S. out of its economic downtown. This connection led to the “pro-patent” era of the 1980s, where the patent system strengthened in the U.S. and IP protection was actively pursued through U.S. foreign policy in international trade and investment agreements. A similar story has played itself out in the European Union and Japan.
At the end of the day, corporations are concerned about their bottom line. Allowing them to steer the agenda on IP protection means that issues such as access to drugs, environmental degradation, mono-culture crops, or the patenting of genes are all viewed through the lens of a profit-driven company, not a wider lens that puts the interests of society first. One has only to look at the example of the HIV/AIDS pandemic. It is hard to argue that corporations have societies’ best interests in mind when restricted access to drugs in the face of the HIV/AIDS pandemic means a death sentence for those infected with the disease who do not have the means to pay for the high cost of antiretroviral drugs.
One question many pose is why should we, as Canadians who are privileged with health care, access to pharmaceuticals and a constant food supply, be concerned about IP? The answer is that we must be concerned because IP policies will determine to a large extent how much we pay for drugs, food, and other items that have been patented. For example, pharmaceuticals costs comprise the second largest share of our national health care expenditure (after hospitals). This was not always the case: up until 1997, it was physicians. But between 1998 and 2002, national prescription drug expenditures outpaced Canadian economic growth by almost 300%. As our population ages, and we come to rely more and more on pharmaceuticals, the inability to produce generic drugs will tax our ailing health care system even more.
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IP protection has always been an important policy decision. It involves asking who owns the property, who can control it, who can reap the rewards, and for how long? All of these question affect the access that the average Canadian has to these products. Access is either restricted through price or by a lack of supply. These questions are more important now than ever before because the subject matter now defined as intellectual property has significantly increased.
Originally, IP rights were granted for new inventions like the steam engine. But we are now in an era where IP rights also apply to discoveries of pre-existing knowledge. For example, in 1997, a genome of basmati rice was patented by a Texas company. This patent was protested on the basis that such a hybrid was not new, since crossbreeding of rice had been used for centuries in India. Thanks to intense and lengthy pressure from India and civil society groups, this patent was revoked years later.
IP rights are supposed to be granted for new products and information. Instead these rights are being granted for old as well as new technologies, processes and products. As the length of patents increase and the scope of what patents cover increases, we must be concerned. Otherwise we run the risk of sitting by and watching the corporate lobby succeed in having IP laws enacted that prevent people from accessing any information that is covered under IP.
Historically, Canadian policy-makers have allowed foreign corporations to be the guiding force behind Canadian IP law. This has happened through international trade and investment agreements. Canadian governments have been told that, without increased patent protection, they will run the risk of losing free trade agreements with the United States. This was the reasoning behind Bill C-22, Bill C-91, and the Trade-Related Intellectual Property Rights (TRIPS) agreement. Bill C-22 was passed to appease U.S. interests when the Canada-U.S. Free Trade Agreement was under negotiation. It increased patent protection on pharmaceuticals from four to 10 years. Bill C-91 was enacted to bring Canada’s IP regulation further into line with the U.S. under NAFTA. This bill eliminated compulsory licencing, further restricting the production of generic versions of dugs. When the TRIPS agreement was signed under the World Trde Organization, patent length in Canada went from 10 to 20 years. Canada’s patent laws have continually been shaped in this way by foreign governments and corporations.
Currently there are three international agreements being negotiated that will influence Canadian IP policies: the proposed European Union-Canada trade agreement, the Security and Prosperity Partnership of North America (SPP) with the United States, Canada and Mexico, and the Anti-Counterfeiting Trade Agreement (ACTA). Each agreement, most likely, will lead to a further increase in either the length of patents, the extent of enforcement of copyright, or the expanse of areas under IP protection. In each of these agreements, corporations are lobbying for stronger IP protection. Previous history suggests they will be successful in their quest.
EU-Canada Agreement
Although the U.S. is the biggest champion of IP protection, the EU is equally ctive, especially in areas of IP enforcement. The EU’s most recent bilateral negotiations have detailed provisions that go above and beyond those standards set out in TRIPS. In the EU’s Strategy to Enforce IPR in Third Countries, published in 2004, it states that they want to review and change the IP rights mechanisms in multilateral, bi-regional and bilateral agreements. This would include “consulting trading partners with the aim of launching an initiative in the WTO TRIPs Council; sounding the alarm on the growing dimension of the problem [of counterfeiting]; identifying the causes and proposing solutions; and strengthening IPR enforcement clauses in bilateral agreements.”
On May 6, 2009, leaders from the EU and Canada agreed to start negotiations towards a comprehensive economic partnership. This resulted from the announcement in 2008 that Canada and the EU wanted to work together for more economic partnership and had set up an EU-Canada Scoping Group to look at areas that would be under negotiation in an agreement. The report that was issued at the end of these negotiations includes a section on intellectual property. The report states that:
The Scoping Group recognized that the WTO Agreement on Trade-related Intellectual Property Rights (TRIPS) sets minimum levels of protection for intellectual property (IP) rights, and was of the view that any EU-Canada agreement should substantially improve on all categories of IP rights where need for increased protection and/or enforcement is identified. Furthermore, any agreement should establish and/or maintain very high standards of protection and enforcement of IP rights.
The Scoping group clearly wants to expand the current IP protection and proposes new standards that will be some of the highest we have seen. We should be very concerned about what these will look like, as the EU is significantly concerned about international IP regulation.
The SPP
The second agreement under negotiation that threatens to change our IP policy is the Security and Prosperity Partnership (SPP). The SPP would expand trade relations between Canada, the U.S. and Mexico. One of the most influential bodies within these negotiations is the North American Competitiveness Council (NACC). The NACC was created to give businesses a say in identifying areas that are seen as crucial to creating further market opportunities for them. It is important to note that the NACC is comprised of the executives of 30 multinational corporations, including the CEOs of New York Life, General Motors, Ford, Lockheed Martin, Canfor, Canadian National, Suncor and Merck.
The NACC’s position on IP policies was highlighted in the following statement in 2007, before the SPP meeting in Montebello, Quebec: “We strongly encourage the Government of Canada to show greater progress in enacting stronger IP laws and in providing more effective tools for law enforcement officials to interdict shipments of pirated and counterfeit goods in and out of the country” (North American Competiveness Council 2007, 14). This business lobby wants stronger IP protection, and its leaders have direct access to government officials.
ACTA
The most recent development in international IP policy is the Anti-Counterfeiting Trade Agreement. On October 23, 2007, Canada announced that it has joined negotiations with other developed countries, including the U.S., the EU, Japan, and South Korea. The website of the Department of Foreign Affairs and International trade (DFAIT) states that “the aim of this agreement is to develop international standards to better combat the trade in counterfeit trade-marked and pirated copyright goods.” Noticeably absent from the negotiations are any developing countries—those most likely to be opposed to any increases in IP protection.
The main opponents to an increase of IP protection on the international stage are countries like Brazil, South Africa and India, who have needed generic industries to produce life-saving drugs. Industry, of course, is on board with the ACTA, but its critics charge that the objective is to set a new and higher benchmark of enforcement and protection. Countries would allegedly be free to support or reject these stronger measures, but in reality would be forced to join or jeopardize trade relations with the developed countries. This would be similar to the tactic used when negotiating the failed Multilateral Agreement on Investment proposed by the WTO in the late 1990s.
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The theme running through these three agreements is that corporate interests are held in high regard—that policy-makers want to design these laws to encourage corporations to become more innovative and thus competitive. DFAIT views IP as a trade issue and in doing so, not surprisingly, it prioritizes corporate interests over the public interest. This is part of the larger theme that has occurred over the past 30 years: the priority given to private interests over public needs. The state’s role in serving the country’s people is reduced as the demands of financial capital and corporations take top billing.
But in putting these corporate interests ahead of those of society we run the risk of losing control of areas key to our well-being and survival. Despite the promise of corporate social responsibility, these businesses do not put our welfare above their bottom line; there are many examples of environmental degradation or food poisoning that prove this. We must balance the need to encourage innovation with the need to protect and advance the public interest.
These new agreements present an opportunity for Canadians to decide what we want from our intellectual property protection. Currently this discussion is monopolized by corporations, most notably multinational corporations. Instead there must be a full public debate involving government, business, not-for-profit organizations, labour, environmental groups, legal and scientific experts, and the broad Canadian public on the issue of IP protection. All of civil society needs to be involved in the decision of what we want out of these regulations. Otherwise we run the risk of continuing to let corporate interests dictate the rules governing ownership and use of new and old technologies. Are we going to sit back and allow corporations to push their agenda on IP—an agenda that calls for longer and more extensive patents and tougher penalties for copyright infringement? Or are we going to decide what kind of IP policy is best for all Canadians, and how we can achieve it?
Jenny Kennedy-Pannett resides in Vancouver. She completed her M.A. in Political Science at Simon Fraser University in 2008. She wrote her thesis on Canada’s IP policy in trade agreements.