With only limited fanfare, earlier this month Industry Minister
Christian Paradis introduced Bill C-56, the Combating Counterfeit
Products Act. Since no one supports counterfeit products - there are
legitimate concerns associated with health and safety - measures
designed to address the issue would presumably enjoy public and
all-party support. Yet within days of its introduction, the bill was the
target of attacks from both opposition parties and the public.
The NDP raised the issue during Question Period in the House of Commons,
accusing the government of trying to implement the widely discredited
Anti-Counterfeiting Trade Agreement (ACTA) "through the backdoor." The
public also picked up on the issue, noting that the bill appears to be
less about protecting Canadians and more about caving to U.S. pressure
(the U.S. called on Canada to implement ACTA on the same day the bill
was tabled).
My weekly technology law column (Toronto Star version, homepage version) notes the concerns associated with the bill fall into two main categories:
substance and ACTA implementation. The substantive concerns start with
the decision to grant customs officials broad new powers without court
oversight. Under the bill, customs officials are required to assess
whether goods entering or exiting the country infringe any copyright or
trademark rights.
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Appeared in the Toronto Star on March 9, 2013 as What's Really Behind Ottawa's Anti-Counterfeiting Bill?
With only limited fanfare, earlier this month Industry Minister
Christian Paradis introduced Bill C-56, the Combating Counterfeit
Products Act. Since no one supports counterfeit products - there are
legitimate concerns associated with health and safety - measures
designed to address the issue would presumably enjoy public and
all-party support. Yet within days of its introduction, the bill was the
target of attacks from both opposition parties and the public.
The NDP raised the issue during Question Period in the House of Commons,
accusing the government of trying to implement the widely discredited
Anti-Counterfeiting Trade Agreement (ACTA) "through the backdoor." The
public also picked up on the issue, noting that the bill appears to be
less about protecting Canadians and more about caving to U.S. pressure
(the U.S. called on Canada to implement ACTA on the same day the bill
was tabled).
The concerns associated with the bill fall into two main categories:
substance and ACTA implementation. The substantive concerns start with
the decision to grant customs officials broad new powers without court
oversight. Under the bill, customs officials are required to assess
whether goods entering or exiting the country infringe any copyright or
trademark rights.
While officials are not intellectual property experts, the assessment
includes consideration of whether any of the Copyright Act's exceptions
may be applied. These determinations are complex - courts often struggle
with the issue - yet the bill envisions granting these powers to
customs officials with no review by a judge and no limits on the types
of goods involved. Should a customs official determine that there is
infringement and that no exception applies, the goods may be seized and
prevented from entering the country.
In addition to the seizure provisions, the bill involves expansive
information disclosures, with detailed information sharing on shipments
as well as the ability for rights holders able to seek assistance from
Vic Toews, the Minister of Public Safety (who will be delegated some
responsibilities under the Copyright Act) to detain imports and exports.
Moreover, penalties associated with copyright and trademark are on the
rise, with tougher criminal provisions added to the law.
While most would agree that officials should have sufficient tools to
protect public health and safety, the bill does not confine the broad
new powers to those special cases. For example, the government could
have limited seizures without court oversight to instances where
officials reasonably believe there is a public safety risk, but the bill
treats everything from counterfeit pharmaceuticals to a suspect
painting in the same manner.
The substance of the bill is cause for concern, yet what has many up in
arms is that the bill signals Canada intention to implement ACTA. Public
protests against ACTA were staged throughout Europe last year, leading
to a European Parliament rejection of the treaty. Similar opposition has
arisen in ACTA participating countries such as Switzerland (which has
not signed the treaty), Australia (where a Parliamentary Committee
recommended against ratification), and Mexico (where a Senate motion
rejected it).
ACTA is badly damaged and will seemingly never achieve the goals of its
supporters to emerge as a new global standard for intellectual property
enforcement. But for the U.S., which spent years pressuring ACTA
participants to strike a deal, it still hopes to revive the agreement by
at least garnering the necessary six ratifications for it to take
effect.
With Europe and Switzerland both out of the agreement, there are only
nine countries left. The U.S. apparently sees Canada as an easy target
for support, leading to mounting pressure to implement the bill. That
leaves Canadians with Bill C-56, which may be characterized as a
counterfeiting bill, but whose primary objective appears to be to
satisfy U.S. pressure to implement an agreement that the majority of our
major trading partners have either never signed or flatly rejected.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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