Intellectual property chapter summary
Almost all businesses have some form of intellectual property (IP), whether it be a brand, a design, a trade secret, a literary or artistic work, or an invention. IP is also an increasingly important component of international trade agreements. The Canada-United States-Mexico Agreement (CUSMA) establishes a legal framework of minimum standards for the protection and enforcement of IP rights in North America. The IP chapter builds on existing international IP agreements such as the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and certain treaties administered by the World Intellectual Property Organization (WIPO).
The chapter includes obligations on copyright and related rights, trademarks, geographical indications, industrial designs, patents, data protection for pharmaceutical and agricultural chemical products, trade secrets, and IP rights enforcement.
Technical summary of negotiated outcomes: Intellectual property
Copyright and related rights:
- Includes provisions on Internet service provider liability for addressing online infringement that enable Canada to maintain its current “notice-and-notice” framework.
- Requires a general term of copyright protection of life plus 70 years for works and 75 years for performances and sound recordings (Canada currently has terms of life plus 50 years and 70 years, respectively).
- Canada has a 2.5-year transition period to implement the obligation to provide a term of copyright protection for works of life plus 70 years following the entry into force of the agreement.
- Includes a full national treatment obligation in regard to the protection of intellectual property rights, including for copyrighted works, performances and sound recordings.
- Provides rights and protections for copyright and related rights, reflecting or building upon the WIPO Internet treaties. Canada ratified the WIPO Internet treaties in 2014.
- Requires civil and criminal remedies for circumventing technological protection measures (TPMs, also known as digital locks) on copyrighted works and altering or removing rights management information (RMI, also known as digital watermarks).
- Canada already provides civil remedies with respect to TPMs and RMI, and criminal remedies in respect of TPMs. Under the agreement, Canada would be required to provide these criminal remedies with respect to RMI as well.
- Canada has also preserved important flexibilities in copyright and related rights, such as with respect to TPMs and RMI.
Patents and pharmaceutical IP:
- Importantly, Canada will be able to maintain its current regime for pharmaceutical data protection, including in respect of biologic drugs. Canada currently provides 8 years of data protection for small molecule and biologic drugs, and will not be required to make changes to its regime under CUSMA.
- Includes an obligation on patent term adjustment (PTA) to compensate patent applicants for “unreasonable” delays in the processing of patent applications. Under this obligation, a patent application filed after the date of entry into force of the agreement or two years after the signing of the agreement, whichever is later, would be eligible for PTA if there are “unreasonable” delays in the granting of the patent.
- Canada has a 4.5-year transition period to implement this obligation in domestic law and policy following the entry into force of the agreement.
- In line with outcomes in the Canada-EU Comprehensive Economic and Trade Agreement, Canada has scope to meet its obligations for an additional period of protection for pharmaceuticals by way of its existing Certificate of Supplementary Protection regime.
- Includes provisions on the availability of patents for inventions in all fields of technology, in line with Canada’s current regime including criteria regarding exclusions from patentability.
- Ensures that exceptions under the WTO Doha Declaration on the TRIPS Agreement and Public Health continue to be available.
Data protection for agricultural chemicals:
- Includes 10 years of data protection for agricultural chemical products in line with Canada's existing regime.
- Provides protection against infringing uses of trademarks, such as brand names and symbols, as well as non-traditional marks, such as sound marks and scent marks.
- Includes rules and procedures to ensure transparency and efficiency.
- Includes provisions on the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, Singapore Treaty on the Law of Trademarks and Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks. Canada recently acceded to all of these treaties.
- Includes rules on transparent and fair administrative systems for the protection of new geographical indications (GIs), consistent with Canada’s system for GI protection.
- Protects industrial designs against unauthorized use.
- Is in line with Canada’s regime, including Canada’s recent accession to the Hague Agreement Concerning the International Registration of Industrial Designs.
- Provides for civil and criminal enforcement and remedies or penalties for the misappropriation of trade secrets.
- Provides rules for civil, criminal and border enforcement of IP rights, including the application of rules to the online environment.
- Includes appropriate remedies to combat trade in counterfeit and pirated goods.
- Includes comprehensive civil procedures and remedies available to rights holders.
- Requires parties to have criminal measures in place to address commercial-scale counterfeiting and piracy activities.
- Contains border enforcement measures, including:
- requirements to establish means for border officials to work with rights holders;
- applications to allow for the detention of goods suspected of being confusingly similar to registered trademark goods that are imported into Canada;
- legal authority for border officers to detain suspected counterfeit or pirated goods when they are imported, exported, in bonded warehouses, or in transit (Canada presently does not provide such authority for in-transit goods).
- Provides for criminal and/or civil measures for the protection of encrypted satellite and cable signals.
- Commits parties to ratify or accede to a number of multilateral IP agreements. These include the Madrid Protocol and Singapore Treaty concerning trademarks, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, the 1991 Act of the International Convention for the Protection of New Varieties of Plants and the WIPO Internet treaties dealing with copyright and related rights. Canada has already ratified or acceded to these treaties.
- Also commits parties to ratify or accede to the Brussels Convention on the distribution of program-carrying signals transmitted by satellite. Canada has a 4-year transition period to accede to this treaty following the entry into force of CUSMA.
- Commits parties to cooperation pertaining to IP matters, including with respect to small and medium-sized enterprises, education and awareness on IP, as well as cooperation to discuss proposals to enhance procedural fairness in patent litigation, including with respect to choice of venue.
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