On October 1, 2018, the United States, Mexico and Canada announced they reached an agreement in principle regarding the USMCA, the successor to the North American Free Trade Agreement (NAFTA). This agreement aims to modernize trade between the three countries and to increase the economic growth of each party. Among other impacts, the USMCA will have notable impacts regarding Intellectual Property Law. Each party will see its Intellectual Property Laws evolve and they will have to grant the same rights to their own citizens as well as those granted to citizens from the other member party countries. The new agreement states that each party shall ratify the Madrid Protocol, the United States and Mexico are already member states, thus Canada is the last party to join the treaty and will allow trademark owners to register their marks in any member country using a single application.
One of the most significant changes concerns Canada as it will have to align its national Copyright Law with the United States and increase the basic term of copyright protection to the life of the author plus seventy (70) years after the author’s death. New “take down” provisions will provide safe harbours for internet service providers (ISPs) that will require the removal or disablement of access to copyright infringing content. ISPs must implement a policy of terminating the accounts of repeat infringers that will allow them to be shielded from liability for copyright infringements not controlled, initiated or directed by the ISPs.
The landscape for patents will also be impacted, as patents will also benefit from additional protection and will receive term adjustments for unreasonable patent office delays through no fault of the applicant. The delay will be defined in the “issuance of a patent of more than five years from the date of filing of the application in the territory of the party,” or “three years after a request for examination of the application has been made, whichever is greater.” These provisions should encourage the timely granting of patents. Patent term adjustment is new for Canada, but PTA has been at work in the United States since 1999. Although the parties have agreed in principle, the countries still need to ratify the agreement to see all these changes coming into effect. The ratification is expected in early 2019.
Author: Stephanie Espada