As you are likely aware, Canada and the United States have agreed to sign a new trade agreement to replace the existing North American Free Trade agreement. The agreement, which includes Mexico as well, was concluded just before the deadline. The agreement is referred to as the United States-Mexico-Canada Agreement or USMCA for short. A copy of the agreement which includes chapter 20 dealing with intellectual property rights is available here.
In a joint statement on behalf of both Canada and the United States it was said that "Today, Canada and the United States reached an agreement, alongside Mexico, on a new, modernized trade agreement for the 21st Century: the USMCA will give our workers, farmers, ranchers and businesses a high-standard trade agreement that will result in freer markets, fairer trade and robust economic growth in our region. It will strengthen the middle class, and create good, well-paying jobs and new opportunities for the nearly half billion people who call North America home. We look forward to further deepening our close economic ties when this new agreement enters into force."
The scope of the agreement is broad and our focus is limited to a high level review of the intellectual property provisions. In addition, the draft agreement has not yet been finalized and has been only very recently been released to the public. However, the following matters stand out:
Trademarks
The agreement contains a specific article recognizing the importance of protecting well-known trademarks:
The parties recognize that geographical indications may be protected under their respective Trademark systems subject to procedural safeguards for their recognition;
Copyright
The term of protection for works subject to copyright is extended to the life of the author and seventy years and for works that have a term of protection not based on the life of the author seventy-five years from the date of publication.
The agreement establishes copyright safe harbours to provide protection for legitimate online enterprises operating as intermediaries that do not directly benefit from infringement.
Trade Secrets
Each party shall ensure that persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state-owned enterprises) without their consent in a manner contrary to honest commercial practices. In addition, each party shall provide for criminal procedures and penalties for the unauthorized and wilful misappropriation of trade secrets.
The dispute resolution provisions remain in the agreement. This was a key element from Canada's point of view.
There are also provisions relating to patents which are beyond the scope of this comment.
It will be interesting to see how implementation of the agreement progresses but at a minimum the resolution of the lengthy negotiations removes a significant amount of uncertainty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
