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Here Comes ACTA: Canadian Government Introduces Anti-Counterfeiting Trade Agreement Compliance Bill

The Canadian government today introduced a bill aimed at ensuring the Canada complies with the widely discredited Anti-Counterfeiting Trade Agreement. Despite the European Union’s total rejection of ACTA along with assurances that ACTA provisions would not resurface in the Canada – EU Trade Agreement, the new bill is designed to ensure that Canada is positioned to ratify ACTA by addressing border measures provisions. The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

While the bill could have been worse – it includes an exception for individual travelers (so no iPod searching border guards), it does not include patents, and excludes in-transit shipments – the bill disturbingly suggests that Canada is gearing up to ratify ACTA since this bill addresses many of the remaining non-ACTA compliant aspects of Canadian law.  Moreover, it becomes the latest example of caving to U.S. pressure on intellectual property, as the U.S. has pushed for these reforms for years, as evidenced by a 2007 Wikileaks cable in which the RCMP’s National Coordinator for Intellectual Property Crime leaked information on a bill to empower Canadian border guards (the ACTA negotiations were formally announced several months earlier). [Update: On the same day the Canadian government introduced Bill C-56, the U.S. Government issued its Trade Policy Agenda and Annual Report, which calls on Canada to "meet its Anti-Counterfeit Trade Agreement (ACTA) obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated products through its territory"]

A full examination of Bill C-56 is forthcoming, but its introduction raises four immediate issues: that Canada is moving toward ACTA ratification, that it is pursuing policy based on debunked data on counterfeiting, that the bill could have serious harmful effects with border guards forced to serve as copyright experts without court oversight, and the increased criminalization of copyright and trademark law.

 

First, this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a “gold standard” agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

Second, the government is framing this legislation as being geared toward countering harmful counterfeiting activities. Where counterfeiting raises health and safety concerns, no one would oppose measures to address it. Yet it should be noted that the data on counterfeiting has been regularly debunked as inaccurate and overstated. The U.S. General Accounting Office examined the issue in 2010 and concluded that the oft-quoted estimates are not reliable and cannot be substantiated to a data source. A year later, the Social Sciences Research Council released a major piracy report (funded by Canada’s IDRC) that found little evidence of organized crime involvement in piracy activities. In 2012, the CATO Institute posted another assessment of the piracy claims, which it found were unsupportable.

Similar suspect data has been regularly used in Canada. For years, the RCMP cited figures of $30 billion in losses due to counterfeiting, but upon closer examination (using the Access to Information Act), the claims were found to be fatally flawed, based on little more than a single bullet point in a slide presentation from an industry group. The RCMP no longer cites the figure (and the bill’s press release notably does not provide an estimate), but the Canadian Chamber of Commerce’s IP Council still often uses it. Counterfeiting is certainly a serious issue, but the industry has consistently failed to provide reliable data to allow for a meaningful assessment of the problem and potential solutions.

Third, the decision to grant border guards increased powers without court oversight or review raises serious concerns. Customs officials are not copyright and trademark experts, yet they may now be forced to assess infringement cases including determining whether any copyright exceptions apply. If they fail to do so, it may result in wrongful seizures or detentions of works.  The bill opens the door to detention of works (they cannot be imported or exported) if created without consent of the copyright owner and if they infringe copyright. Yet there many works that are made without consent of the owner but rely upon exceptions such as fair dealing.  Those may result in disputes over whether the works infringe, which is an issue best left to the courts. With this bill, customs officials will now make the determination and send the works to the copyright owner to consider whether they think it infringes copyright.

Moreover, there is a danger that parallel imports, which are not counterfeit product, may be targeted. Those products provide pro-consumer benefits of enhanced competition since the goods are legitimate but enter the market through alternative channels. The provisions also greatly expand border controls to both imported and exported goods (current controls are limited to imported goods), but there has been no evidence that Canada is a significant source of counterfeit product. There is also far greater information disclosures, with rights holders now able to ask for greater information sharing and assistance on imports and exports.

The bill will likely be promoted as protecting public health, however, there is a danger that the provisions could be used to stop the entry of legitimate generic medicines. Sean Flynn highlighted the concern in an ACTA analysis of border measures and trademarks:

The problem with trademark infringements is particularly complex and worrying for generic medicines. Generic labels are required to be similar to the brands. They must use the same words identifying active ingredients, the same warnings and indications and other information. In addition, they often desire to have similar packaging and presentation as the brand drugs to help patients switch between brand and generic with comfort. Requiring border officials to identify which medicine labels are too “similar” to allow into the market is bound to lead to many more supply interruptions than if the measures were limited to criminally counterfeit products that intentionally use identical marks.

Similar concerns were raised by European scholars in their analysis of the ACTA provisions.

Fourth, the bill shifts toward an increased criminalization of copyright and trademark law.  It adds copyright and trademark offences to the criminal code as well as establishing the possibility of prison terms for trademark infringement.

This is a 52 page bill that makes numerous changes to the Copyright Act and Trade-Mark Act, requiring careful study. Yet the starting point is to move Canada toward ACTA, to create new border measures powers that could have adverse consequences on legitimate activity, and to extend the criminalization of copyright and trademark law in Canada.

48 Comments

  1. seriously unhappy says:

    ACTA
    here we go, welcome to the New Canada. We are now a fully owned branch office of the U.S. great job in Ottawa boys

  2. Exit Strategy
    A bad bill for everyone involved except the politicians trying to curry more favour with washington.

  3. Devil's Advocate says:

    Yet, we’re told not to put stock in “conspiracy theories”?!
    How much more evidence does the average person need in order to see that there really is an active movement to impose corporate rule on all of us??

    And what more evidence do we need that Harper and the Boyz are part of this movement, and need to go!?

    How many of these anti-sovereign and illegal “trade agreements” have we seen recently, and how many more are lined up for the future? Obviously, the thinking is that money will win in the end, and the corporates will have their way.

    All we’re getting around the world now is FUD on everything! Like the “war on drugs”, we’ve got a “War on Terror”, and a “war on piracy” (being lumped in with a supposed “war on counterfeiting”), both of which are constantly being supplied with false flag propaganda and manufactured events used to justify the taking away more of everyone’s rights at every turn.

    Everyone is now being subject to being classified and treated as a “terrorist” and/or a “pirate”, by the very real criminals running our governments from the shadows. The American Constitution has almost successfully been trashed, while the “People” are being not only arrested, but seriously assaulted for exercising their 1st Amendment rights. Shit, the U.S. government is now even murdering anyone on the planet without even a charge, trial or due process.

    These “trade agreements” are nothing more than an illegal manipulation of the laws attached to the countries involved (and some affected are not even part of the conversation).

    People need to wake up, and start refusing to cooperate, while they still can – before the corporate-funded police states are fully installed.

    This is not just about “international cooperation” to control counterfeiting. It’s about control:

    1) Controlling new channels of distribution for the dinosaurs that refused to evolve when times changed.

    2) Controlling the Internet, so it’s more profitable for the corporate world.

    3) Controlling the People, by limiting their information, freedoms and resources, so they’re less informed and less likely to put up any resistence.

    Surely people see this by now.

    We’re witnessing the creation of new “criminals”, at a time when incarceration is a hot, spreading 3rd-party business. Murderers get less time in prison than whistle-blowers and filesharers. More corporate control of the Internet is constantly being preached as “necessary” every year, without any factual justification being offered – thanks to FUD, and increasing corporate “leverage” of our ever-corrupting governments.

  4. The US lobby groups will never be satisfied. It will just get worse and worse there and then it will get worse and worse here to match.

  5. Obama: You want Keystone? Come right over here Sonny …

  6. Duuuuuuude says:

    Il Maestro
    Sorry about that boys. We’re trying our best down here, but all our wingers are sitting in the penalty box. The last thing I want is for Canada to become another US — if for no other reason than the need for a decent place to organize a resistance movement — because my Spanish is not so good.

  7. We tried protesting..
    The time for telling them nicely is over.

  8. Plenty of gun owners in Canada , time for a nice million man gun in my hand march on Ottawa. WTF can’t people see that all these bill are only pushed be certain industries. Stop buying media products and stop going to the movies. If you have to buy used media.

  9. Revolution! If only… Perhaps a bloodless one, voting all current named parties out on the grounds of restoring/removing laws/taxes/copyright/IP to, pre-1960 levels.

    Unfortunately the majority of voting Canadians can’t think outside their box.
    Bread and Circuses! (search the term wiki)

  10. I can only hope that a commitment to put a bill forward was part of the ACTA negations to show good faith, and it will be quickly voted down!

  11. We need a different govt. Liberals and PC fail over and over.
    5 prisons, mandatory min sentencing, and now more ways to put Canadians in jail.Harper is an enemy of the people. Can’t wait till they lose office and the Liberals do the exact same thing.. Screw Canadians.

  12. Am I reading this right ? Prison terms for trademark offenses ?
    Wow, we live in an Orwellian ™ state. Is it me or the Harpers ™ in power keep trying to pass such a bill every year?

  13. No one left to vote for
    The Canadian political scene is a disaster. Seems there’s no politicians in any party that want to do whats right for the people that elected them.

  14. hoboroadie says:

    As seen on television!
    The same folks that own the politicians also own all of the licensed media. You will be boned or hosed depending on which side of the border you reside.

  15. Obligatory says:

    Obligatory
    America, fuck yeah!

    Wait, no, screw you!

  16. And one the same day my “elected representative” (singular, you only have ONE as a Canadian) is busy hanging out in a museum and happily tweeting about it. Un-friggin-believable. Should be able to drag her behind in court for dereliction of duty.

  17. Anonymous says:

    Really, do you expect an emprical argument to work on the conservatives?
    Really, do you expect an emprical argument to work on the conservatives?

    These guys are anti-empiricists. They know that the real world and actual data disagrees with their position. Their position is more important than reality. Railing against them with data will not work.

  18. I wish I could edit my comment.

    I was going to add that the “Cooperate For Canada” http://cooperate4.ca/ initiative should also include language about bills like this and the already-enacted Digital Lock provisions; it should utterly reject them, and here’s the point: vow to repeal them as soon as the signatories have a majority in Parliament.

    This will inform all stakeholders that the “Rules” are only “Rules” as long as the Conservatives are in power and as soon as they are defeated, the “Rules” will change. If anyone then acts as if they are set in stone, they are like someone building a house on the ice. Once summer comes, the ice melts and the house will be gone… and there is NO CLAIM YOU CAN FILE as you were warned in advance.

    That is the only way to escape the noose that the current government is preparing for us.

  19. Who do I contact to voice my opposition to this?

  20. >Who do I contact to voice my opposition to this?

    If you do not know your MP’s stance, send a letter, or call, and find out. Let them know your against it.

  21. It’s not much better down here now either.
    A group of ISP’s recently banded together along with the media conglomerates and implemented their ‘Six Strikes’ agreement. Note that it’s not an actual ‘law’, it’s an agreement between some of the major ISPs (Comcast, Time Warner, AT&T, Verizon etc) but it covers the major players and thus a majority of the people in the US.

    The gist of it – the media corporations will hire bittorrent monitors, who will report infringers to ISPs, then those ISPs will then forward notices of infringement to the alleged filesharers with increasing warnings and penalties (up to bandwidth throttling and possible disconnection).

    While there is no mention of ‘lawsuits’ (perhaps they might have learned from the RIAA after all), it’s still possible they could initiate such things since they have the complicit assistance of the ISPs already. It certainly wouldn’t be difficult to facilitate a transfer of such information since they’re ‘agreeing to work together already’.

    Maybe I just need a bigger tinfoil hat, but this bothers me.

    Other things that bother me about it:

    Most, if not all, of the ISP’s are not only providing internet services, they are also major content producers. Comcast -> NBC, Time Warner -> Warner Studios -> CW Network. So how difficult will it be for the Studio to gain access to what amounts to – it’s own data on subscribers? My guess is – not that hard.

    Many of the ISPs have extremely limited competition in their geographic area. Myself – I have ONLY Comcast in my area, there are no other options. If I ever wound up blacklisted for whatever reason (I’ll get to something else in a moment), I am effectively ‘off’ the internet with no other options.

    Who decides what is infringement? The media companies are notorious for over-reach (claiming copyright on NASA videos, kicking dancing babies off YouTube) and can claim copyright on near anything and without judicial oversight or any real definitions of what actually is infringement and could constitute a ‘strike’ in the first place.

    These are all issues that concern me quite a bit, and since again, I have no options to going to a competing ISP, myself (and a great majority of my fellow citizens) have now become subject to the whims of the media corporations through the complicity of our ISPs.

  22. Doug Webb says:

    What you can get when you buy politicians in Canada
    The entertainment industry paid for this bill with their political contributions. There is no social, legal or any other justification for this legislation. It was written largely by and for the entertainment industry. I hope it’s the Harper’s children that go to prison first!

  23. Harper…
    So basically, rather than shut down the distributors they will turn everyday citizens into hardened criminals over petty civil disputes? A corporate criminal embezels millions, sorry we don’t have enough evidence. A broke mother buys a fake Guicci purse, detain her and throw away the key.

  24. We need to get this in the news in a hurry and in a big way…
    If we can get this into the news, all the channels, CTV, CBC, Global, news papers, blogs and news online and point out to them that it has been debunked many times, and show them the proof that its been debunked, maybe we can shame the political people into dropping it.

    Harper and his goons are just going to push this through like they did the last one because they have a majority government and no one can actually stop them unless we can shame them into backing away from it.

  25. once 3-D printers, and especially their associated media, become inexpensive the copyright sh*t will really hit the fan

    this is just the opening salvo from the corporate criminal lobby.

  26. We need a petition for this NOW
    Does anybody have a link for a petition for this that garners a lot of Canadian attention? We need something immediately because is absolutely DISGUSTING.

    I work in software — we have a absolute NATIONAL FAILURE in the patent system right now – Because every single idiot out there can patent the dumbest ideas in the long history “THINGS THAT ARE OBVIOUS WHICH ARE NOT INVENTIONS”. The last thing we need is more of this GARBAGE that’s putting red tape all over EASY, NON-INNOVATIVE, SOLUTIONS that were ALREADY EVERYWHERE even BEFORE YOU PATENTED IT!!!! You do NOT deserve a monopoly over something ____THAT_STUPID____.

    And now they want to put people in JAIL for thinking of the same IDIOT-BASICS as a 5-year old. You F**KING IDIOT HARPER!

    I’m absolutely SICK and TIRED of these CRIMINALS in parliament. You are STIFFING INNOVATION, get a REAL JOB and STOP BREAKING S**T!!!!!!!!!

    Why the **** are they elected?????????????????
    ______________________________

  27. old sage
    Another step toward a global fascist police state controlled by the Hollywood movie studios.

  28. Does anyone know if licensed products in one area of the world suddenly become “counterfeit” in another? If so, this would be contrary to the spirit of “free trade”. It would vendor-lock consumers in a certain area to their local “autorized” distributor, which would not be in the consumers’ best interest.

  29. Protectionism out of control.
    ACTA is all about keeping the old business models, Monopolies, less competition, alive and well in North America. To Continue to build and maintain a Fortress mentality and to also keep and maintain the USA serfdom model they have established. One other good reason it was rejected by Europe is ACTA was created in the USA to protect USA interests, nothing more nothing less. To the USA the rest of the world is there for (fill in the blank).

  30. I’m really freakin’ tired of money trumping voter will.

    We really haven’t evolved all that much, sadly. (politically speaking)

  31. This is our chance to block ratification of this toxic treaty.

  32. yhzarcali says:

    Congratulation for becoming a state of the United States of America.

  33. ACTA’D
    Coincidence that Harper pulled the trigger on ACTA and moments latter the report came out of the U.S. that the pipeline wouldn’t be a hazard to the environment?
    Harper just happened to have this law pushed thru Friday? All underhanded sneaky laws get pushed thru Friday to minimize press and negativity.

    This is the meanest extreme right government in the history of this country, quite close to the Te Party actually.
    Did you vote this government in, did you not vote? Either way this is your fault then.
    Are we going to be typical apathetic Canadians and just complain or are you (we) going to start a petition or protest this?

    If we don’t you won’t recognize the landscape in this country before to long.
    What and how do we proceed?

  34. Here’s the thing…
    Blah Blah All talk and no action Blah Blah

  35. Dev
    Getting real tired of this shit. Real tired.

  36. “Both Sides”
    To those of you who say things like “the Liberals are no better”, you are part of the problem. The Liberals are FAR better than the Conservatives, as are the NDP and even the Greens (though, personally, I have a bit of a problem with “single issue” parties). Harper got his (39%) “majority” because the left is divided over minutia, and not over substantive issues.

    The right wing in Canada got their act together with “unite the right”, we, of the 61% that voted AGAINST Harper must now do the same. I could care less which party comes out on top, but every vote that is not for the [Liberals/NDP/Whomever] party around which we decide to coalesce is a vote FOR Harper and insane bills like this.

    It was mentioned before, but http://cooperate4.ca is a step in the right direction, and it (or something similar) MUST happen. NOW.

  37. time to do something
    This is gone way above and beyond rational, its time to really get organized and if you guys want to not be come terrorists of a police state

  38. Your buying into a two party system
    “Both Sides”
    To those of you who say things like “the Liberals are no better”, you are part of the problem. The Liberals are FAR better than the Conservatives, as are the NDP and even the Greens (though, personally, I have a bit of a problem with “single issue” parties). Harper got his (39%) “majority” because the left is divided over minutia, and not over substantive issues.

    The right wing in Canada got their act together with “unite the right”, we, of the 61% that voted AGAINST Harper must now do the same. I could care less which party comes out on top, but every vote that is not for the [Liberals/NDP/Whomever] party around which we decide to coalesce is a vote FOR Harper and insane bills like this.

    It was mentioned before, but http://cooperate4.ca is a step in the right direction, and it (or something similar) MUST happen. NOW.

    Its going to do you no good on aligning yourself with either side. ITs time to take a stand independentely as people who dont affiliate with any group to stop inhumane policy making decisions.

  39. Hendrik Boom says:

    If you bother to look at the Green’s election platform, you’ll discover that it is far from a one-issue party. They are a conservative party that differs from the usual mold in looking in the long-term effects of their policies rather than just until the next election.

  40. Who’s responsible?
    Who introduced this and how can we punish them? Anyone who introduces, supports, or fails to condemn this garbage needs to be politically punished.

  41. Fairly recent memory
    I genuinely hope the US SOPA and European ACTA rejection have left a bad taste about this type of legislation long enough in people’s mouths for parliament to at-least be hesitant in accepting this bill, hell I hope they outright reject it.

  42. Forrest G(r)ump says:

    @Grump
    No, no, no! The Guy Fawkes mask is a trademarked symbol! On the other hand,

  43. @ Chris
    If you live in a Conservative riding, fuggeddabbouddit. You’ll get a form letter like I get on every issue, “Thank you for writing about [insert subject], however I support my party, blah, blah…”

    If you live in any other riding, fuggeddabbouddit as there’s a majority gov’t thanks to all the ex-Liberals!

  44. petitions
    so is there anything we can do? sign petitions? contact our representatives? or are we fucked as usual?

  45. shainafagundes says:

    Canada is total different from US
    Can’t agree with you anymore.
    sd card recovery

  46. Kick out our government
    Iceland has managed to do some amazing things over the last few years including kick out their government and close down the big banks. They started a “Party for the People” consisting of 5 people who are just regular citizens with no political experience at all, and won. There are a few videos on you Tube that tell how they did it. I think Canada should take a few pointers and learn from Iceland.

  47. MarkScan
    MarkScan is a Delhi based intellectual property rights investigation and enforcement agency. We can be reached at http://www.markscan.co.in