The DFAIT consultation period on the anti-counterfeiting trade agreement has now closed. David Fewer and CIPPIC produced an exceptionally good submission. My more modest effort is posted below:
Submission to Department of Foreign Affairs
Proposed Anti-Counterfeiting Trade Agreement
I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law. I am also a syndicated weekly columnist on law and technology issues for the Toronto Star, the Ottawa Citizen, and the Vancouver Sun. I submit the following comments in response to the department’s request for comment on the Anti-Counterfeiting Trade Agreement (ACTA). My comments are submitted in my personal, scholarly capacity and represent only my own views.
I begin by noting that it is difficult to provide meaningful feedback on a treaty that no one has publicly seen. However, with some public documents indicating that lobby groups hope to use the treaty to increase intermediary liability, force cross-border disclosure of Internet service provider subscriber information, and further advance the cause of anti-circumvention legislation, there is reason for concern. In light of those concerns, I raise the following issues:
1. Lack of Transparency
Documents obtained under the Access to Information Act reveal that government officials were discussing the ACTA in 2006, yet it took more than one year for Minister David Emerson to announce Canada’s participation in the negotiation process and many more months for DFAIT to launch this consultation process. In contrast, Australia launched a public consultation before entering into the negotiation process. A government committed to transparency and accountability would similarly provide for the opportunity for public input before negotiating a treaty of this magnitude.
Moreover, the lack of transparency extends to the current negotiation process. There have been news reports indicating that the treaty may be concluded at the G8 meeting in Japan this summer or by the end of the year at the latest. The decision to exclude civil society and the broader public from the negotiation process is deeply disturbing, raising the very real prospect that Canadians will first see the treaty only after it has been concluded. The Conservative government recently committed to greater openness with international treaty ratification and consistent with that approach, Canadians should be permitted greater access to the negotiation process.
The process has also excluded developing countries from the negotiation process. Given that developing countries are frequently cited as the source of counterfeit products that enter Canada, it is critical that the negotiation process be opened to those countries. The creation of an international anti-counterfeiting treaty without the active participation of the developing world significantly hampers the likelihood that the treaty will have the desired effect in countering global counterfeiting activities.
a. The Government of Canada should insist on full public disclosure of the ACTA while it is still in draft form.
b. DFAIT should provide the public with more robust information about the ACTA and anticipated timelines for the negotiation process.
c. Civil society and representative stakeholders should be permitted to participate in the final negotiation process.
d. Developing world country representatives should immediately be invited to participate.
2. Absence of Evidence of the Need for the ACTA
Before concluding a major new trade treaty, it is incumbent on proponents to demonstrate an actual need. Indeed, all negotiating parties (including Canada) already feature anti-counterfeiting measures that have yielded hundreds of arrests and seizures of millions of dollars in counterfeit goods.
The RCMP confirms that between 2001-2004, it conducted more than 1,800 investigations and laid charges against 2,200 individuals and more than 100 companies. In 2005, an additional 700 charges were laid. With roughly two charges per day, Canada has laws to address counterfeiting and a law enforcement community committed to doing so. Moreover, the Government has already undertaken to consider additional domestic anti-counterfeiting reforms, removing the need for additional international anti-counterfeiting commitments.
Canada already meets its extensive international treaty obligations that arise through international IP treaties. It is premature to negotiate yet another treaty, particularly when the country is still debating how to implement the World Intellectual Property Organization’s Internet treaties that covers much of the same subject matter.
Recommendation: The Government of Canada should insist on the creation of an evidence-based treaty. In doing so, the burden should be placed on those supporting the ACTA to provide evidence about the size and scope of the counterfeiting problem, evidence that the current legal frameworks are unable to address the problem, and support for the claim that the proposed provision will improve anti-counterfeiting activities.
3. Substantive ACTA Concerns
It is very difficult to provide detailed substantive comments given the secrecy associated with the ACTA process and the limited disclosure from DFAIT. Based on disclosures in other jurisdictions, however, I would provide the following recommendations:
a. There have been some reports that the ACTA will establish provisions mandating the disclosure of personal information across borders without consent. The ACTA must not be used to override current Canadian privacy laws. Indeed, the government should work to ensure that the ACTA specifically include privacy provisions consistent with Canadian law.
b. There have been some reports that the ACTA may include provisions specific to intermediary liability. Given that Canada has yet to implement its own intermediary liability provisions within the Copyright Act, it would be inappropriate to adopt new standards at the international level. Canada should address the issue domestically before committing to additional intermediary liability requirements within an international treaty.
c. There have been some reports that the ACTA may include increased criminal penalties for counterfeiting and copyright. As one of the few countries with statutory damages, there is no need for increased copyright damages. Indeed, Canada should recommend lowering statutory damages for cases of non-commercial infringement, while considering whether increased penalties for significant commercial infringement are needed.
d. There have been reports that the ACTA may include significant new enforcement measures involving search and seizure. Canada should be wary of any new measures that might vest police-type powers into the hands of private sector organizations and it should insist that any new measures be subject to all due process rights.
4. The Focus of the ACTA
While the counterfeiting issue has been used in recent months as an umbrella term for a wide range of issues involving everything from mislabeled toys to phony pharmaceuticals to Internet file sharing, Canada should support a “narrow” ACTA that targets the most harmful conduct.
This approach, consistent with the views of Canadian law enforcement and justice officials, requires adhering to two principles. First, any piracy or counterfeiting measures should exclusively target large-scale commercial operations and not cases of non-commercial infringement. Second, the ACTA should prioritize health and safety concerns arising from counterfeiting activities.