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What's Really Behind Canada's Anti-Counterfeiting Bill?

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Wednesday March 13, 2013
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.

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.
Comments (11)add comment

Spike said:

Same old. Dejavu C-11
The Conservatives acted "blind" to the public about "making sure creators/artists get paid" when piling C-11 on top of us too, even though artists getting paid is a red herring since the majority of an artist's profit goes to the middleman (who are the ones wanting these bad laws in the first place!)

So now we have "counterfeiting harms Canadians" as the latest Conservative lingo to ramrod a law through.... Paradis is either blind or badly in bed with the industry. Pick two.
March 13, 2013

Adrian said:

I miss the old Trudeau
Recalling the barbs that Nixon and Trudeau would trade, I miss having politicians who will stand up for the wants and needs of the people they actually represent. Paradis does not seem to be taken from that cloth.
March 13, 2013

Adrian said:

I miss the old Trudeau
Recalling the barbs that Nixon and Trudeau would trade, I miss having politicians who will stand up for the wants and needs of the people they actually represent. Trudeau likely would have told the American's to 'stuff it', at least in a more clever fashion. Paradis does not seem to be taken from that cloth.
March 13, 2013

a Human said:

Back to normal
During last 5-6 years I found myself not going to movies anymore, mainly because they do not show anything worth to see and learn except how be a wizard or a successful and respected thug / conman, I am also not watching TV because of ads and overall huge stream of crap. Music is the same, same ol boring waste repackaged with different shiny wrapper, nothing new, nothing talented anymore, no skill, only cocky image and dumb mind-programming "thoughts on life" through lyrics. And obviously I don't download all that waste because it is a waste. I found that I care less about possessions and whatever useless "innovation" is popular en mass.

However, overall I enjoy way more reading books, talking to friends and family about things other then mainstream propaganda, BS politics and so called "culture", I love to take walks and go to nature, far from parasites trying to impose their "way of life" on all of us.

That's all I wanted to say. Have a nice day.
March 13, 2013

Mark said:

...
"Since no one supports counterfeit products - there are legitimate concerns associated with health and safety"

No one thinks counterfeit products is an issue as long as they don't cause health and safety problems.
March 14, 2013

Shawn H Corey said:

Think of the Women and Children!
Think of the women and children! Counterfeit products may pose health and safety risks! We need laws to stifle innovation because something might go terribly, terribly wrong!
March 14, 2013

Simply Canadian said:

Think of moving production back to North America!
@Shawn H Corey

Think of moving production back to North America! Do you think someone that produces goods abroad actually cares about Women and Children in Canada and US or they care purely about profit? These fat cats don't consume sheit and poison that is being fed to you and your family. And the law will make them even more money.

Bring production back to North America! Then we the People can control it!
March 14, 2013

Justme... said:

Another US scam...
I really get tired watching the conservatives sell us out to the US.
March 14, 2013

armorbear said:

Safety products | Safety and Security Consultant
Fantastic article, it’s very comprehensive and exciting! it’s so helpful to me, and your weblog is very good. I am definitely going to share this URL with my friends. Just bookmarked this site.
March 14, 2013

kentsmith said:

hope it works
officials should have sufficient tools to protect public health and safety, the bill does not confine the broad new powers to those special cases.
cardrecovery
March 18, 2013

Zoltar The Inedible said:

...
So, this is about corporations persuading the government to do their homework for them? How on earth is a customs employee supposed to tell whether something is real, especially now that many brands are essentially counterfeiting their own products by moving manufacturing to China.

It's like when the cellular phone industry bought laws to make it illegal to listen to a radio that happened to tune in the analog cellular frequencies, rather than admit their technology was insecure.
May 11, 2013

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