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DFAIT's Consultation on the Anti-Counterfeiting Trade Agreement

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Thursday May 01, 2008
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.

Recommendations:    

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.
Comments (9)add comment

Francis said:

Thanks
Thank you Mr. Geist for openly saying what we all think.
May 23, 2008

Grant said:

No win
Thanks Michael for being one of the only sources of sanity in these discussions. But how can fairness and common sense prevail? The masses at best turn to the media that is owned by the very same perpetrators of corporate greed and bullying. How effective are letter-writing campaigns when fighting the lobby of multinational corporations? Our political system is doomed to cow to the pressure. You'd get my vote in an election, for what that's worth.

Any flicker of hope I had for Canada is long gone. I commend your fight within the system, but fear that the only real change will come from without.
May 24, 2008

Austin said:

...
My concern, is what is the relative value of your putting forth such concerns. that is, it's impossible to deny your credibility, yet how much impact, or how seriously will your input be taken vs that of the rest of the general population? how can canadians best band together in order for our voice(s) to be heard in such a way as to cause a reply or reaction?

AP
May 26, 2008

Norman said:

Judge Jury and Executioner
The more and more I think about this, and the recent axing of CAIRS, the more it seems Canada is bowing to US pressure on policy. ACTA would seem to give officials the right to be judge, jury and executioner without dispute or oversight. Anyone for a healthy dose of 1984 too?

What *can* we do to fight this as Canadians?
May 27, 2008

Gordon said:

But what can we do?
But what can we as common people do about ACTA? We only just found out about it, the talks are being held in Japan, and Canada traditionally does whatever the US tells our government to do. For ACTA to be defeated it has to be struck down on the american side. As canada and all the other G8 nations will still sign anything thats set before them by the US. Would YOU want to stand there and be the only one signing something what would be global law if you didn't sign it one way or the other? Doubtful.
Will there be protests at the G8 summit? What can we as basic humans do? Personally short of nothing...thats about the only option i see other than bitching and moaning and then bending over and taking it yet again as more of our freedoms are taken away by the americans.
May 28, 2008

Natalie Anne Lanoville said:

What to do?
There are people and organisations, notably The Council of Canadians and Murray Dobbin, who are working to unite people in the fight against the erosion and Americanisation of our rights. People interested in this issue can join Dobbin\'s mailing list, join the Council of Canadians, and network with other activists on sites like rabble.ca.
May 29, 2008

Chris said:

Who is to blame
Please be aware that the american people agree with you but most are unaware of this further suppression of our freedoms by an out of control american government. The american people will fix their government in November, but meanwhile, help your neighbors to the south understand what ACTA is and what it means.
June 02, 2008

Liam said:

About hope
But how can fairness and common sense prevail? The masses at best turn to the media that is owned by the very same perpetrators of corporate greed and bullying. How effective are letter-writing campaigns when fighting the lobby of multinational corporations?
They only win when you give up. You'd be surprised how effective people can be.
June 02, 2008

tell somebody said:

...
I hope everyone who commented here also emailed their MP or whoever, we have to make our disgust known. Maybe then Dion will grow a pair and call this thing.
June 02, 2008

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