How Canada, the EU, and the U.S. Can Work Together to Promote ICT Development and Use BY NICK WALLACE, ALAN MCQUINN, STEPHEN EZELL, AND DANIEL CASTRO | JUNE 2018 Governments in Europe and North America want to harness information Greater transatlantic cooperation in the and communications technology (ICT) to boost productivity and development and use innovation, but uncoordinated strategies and incompatible regulations of information and make it difficult for them to benefit fully from the mutual gains that communications would come from greater transatlantic cooperation in the development technology would allow Europe and North and use of ICT. This report analyzes key policies shaping ICT innovation America to increase in Canada, the European Union, and the United States, and identifies productivity. opportunities for policymakers to ensure policies maximize productivity and innovation. The report describes four policy areas: intellectual property rights (IPR), data protection, the wider regulatory environment, and support for digital innovation.1 IPR—including rules on copyright, patents, and trade secrets—fosters much of the research and development that leads to innovation in the digital economy, as well as the creative content that consumers enjoy on digital platforms. Differences in IPR between different jurisdictions can create challenges as companies scale globally. Data protection laws and regulations set the rules on how organizations can collect, share, and reuse data, and impact important new technologies such as data analytics and artificial intelligence. Data protection laws can be extremely complex, and are interpreted in divergent ways by different courts. Not only does this make it harder for data-driven firms to manage compliance in multiple markets, attempts to apply such laws extraterritorially can force firms to choose between competing legal environments. INFORMATION TECHNOLOGY & INNOVATION FOUNDATION | JUNE 2018 PAGE 1 The broader regulatory environment determines the legal environment in which businesses must operate. Divergent approaches to questions of anti-trust policy and technical standards threaten to create trade barriers by preventing companies with particular structures or standards from operating effectively across different markets, regardless of how they behave. Furthermore, regional variations within ostensibly single markets— whether they be American states, Canadian provinces, or EU countries—increase complexity and cost. Government support, such as research grants and support for digital startups, can spur digital innovation. Moreover, cooperative policies, such as issuing joint calls for proposals for research and establishing cross-border research alliances, help deepen ties between the science and technology communities of countries. To build a strong and competitive shared environment for ICT development and use, Canada, the EU, and the United States need the right combination of policies, including: strong yet flexible IPR laws; interoperable data-protection regimes that enable innovation while also protecting privacy; policies that support digital trade; intergovernmental science and technology cooperation related to digital innovation and research; and robust international cooperation to manage policy differences. This combination will be especially important as all three regions face increasing challenges from ICT competitors in other parts of the world, particularly China. Policymakers on both sides of the Atlantic should take the following measures: Intellectual Property Protect the free movement of knowledge, such as by allowing companies. participating in pre-competitive research to freely transfer ownership and access rights for IP to affiliates across and among Canada, the EU, and the United States. Agree on common protections for trade secrets on both sides of the Atlantic. Data Protection Adopt data protection rules that reduce barriers to collecting and sharing data while also protecting consumers from harm. Avoid harmful restrictions on artificial intelligence, such as the so-called “right to explanation”. This would impose significant costs while failing to achieve its intended goals. Support the free flow of data by enshrining it in international agreements between governments: privacy protection of data does not depend on its physical location. Support strong encryption, and do not weaken cybersecurity through mandatory “backdoors.” Wider Regulatory Environment Establish institutions and agree on rules for resolving conflicts that arise from policy differences between countries. Support free trade in ICT. INFORMATION TECHNOLOGY & INNOVATION FOUNDATION | JUNE 2018 PAGE 2 Government Support for Digital Innovation Help the market develop voluntary ICT standards to support interoperability. Establish a tripartite partnership for technology research. Revive and revise the Transatlantic Trade and Investment Partnership (TTIP). Review major new global technology challenges to prevent unnecessary regulatory divergence. ICT POLICY IN CANADA, THE EU, AND THE UNITED STATES Canada, the EU, and the United States each have different approaches to ICT policy. For example, while the United States has largely created a light-touch, sector-specific data- protection regime, the European Union and Canada each have created a single set of general data-protection rules for all industries. These are strict in the EU, somewhat less so in Canada. All have similar and robust laws on copyright protection. This report analyzes the differences between policies on ICT goods and services in four main areas: intellectual property, data protection, the wider regulatory environment, and government support for digital innovation. Intellectual Property Intellectual property rights (IPR) safeguard the incentive to innovate, as they guarantee innovators a limited period when they alone can profit from the products of their often substantial investments in R&D. Cooperation on IPR policy forms an important part of international ICT cooperation, as it allows innovators to operate seamlessly across borders and invest in R&D with confidence. However, overzealous IPR laws can inhibit innovation by restricting harmless uses of lawfully-accessed intellectual property, such as text and data mining. Canada Patents Federal patent law in Canada dates back to the British North America Act of 1867.2 Since that time, Canadian patent law has evolved through numerous iterations into the modern Canadian Patent Act of 1985.3 The Canadian Patent Act protects products, compositions, machines, processes, or any new improvement to an existing invention4. To receive a patent, the inventor must prove the invention is novel (first of its kind), useful (the invention must work), and inventive (not obvious to the relevant profession). Patents are granted for a maximum of 20 years from the day of the application.5 Canada has a first-to-file patent system, whereby the patent application filing date is the priority reference for infringement claims.6 The Canadian Intellectual Property Office, which issues patents, does not have jurisdiction over patent infringements—this is the job of the courts.7 Canada also does not have special courts dedicated to patent litigation. Inventors can bring infringement actions before a provincial superior court or the Federal Court of Canada.8 INFORMATION TECHNOLOGY & INNOVATION FOUNDATION | JUNE 2018 PAGE 3 Copyright Parliament passed the Copyright Act in 1921 and amended it substantially in 1988, 1997, and 2012.9 The 2012 version is frequently referred to as Bill C-11 or the Copyright Modernization Act. It came into force in 2015. Canadian copyright law protects literary, musical, and other artistic works, including computer programs, performances, and communications signals.10 A copyright applies if the work was published in Canada regardless of whether the author is a Canadian citizen or resident. Regardless of merit or commercial value, the Copyright Act protects all original creative works and establishes the legal framework to do so.11 Many of the updates to Canadian copyright law were prompted by technological developments that challenged previous versions of the law. Portions of the Copyright Modernization Act sought to reduce digital piracy.12 Like the Digital Millennium Copyright Act (DMCA) in the United States, the Copyright Modernization Act prohibits circumvention of “digital locks”, measures installed in digital media to block piracy attempts. That includes removing such locks for personal use, and the law also bans the making, selling or using of technology to circumvent anti-piracy protections.13 The law does permit the reproduction of copyrighted works for satire, parody, and educational purposes. There is also an exemption for user-generated content, such as sampling music in order to create a mashup or new musical work.14 But the Copyright Modernization Act remains controversial in Canada, with critics arguing that it weakens rights the right to personal use, the ability to back-up files, and the ability to convert copyrighted works from one format into another.15 Enforcement of copyright law in Canada comes through the courts. The Copyright Act empowers the courts to charge civil penalties of "a sum of not less than $100 or more than $5,000 as the court considers just" for non-commercial infringement, and up to $20,000 for each count of commercial infringement.16 The court can also impose a criminal penalty of a fine up to $1 million, or a prison sentence of up