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The TPP IP Chapter Leaks: U.S. Demanding Overhaul of Canadian Anti-Counterfeiting Bill

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Friday November 15, 2013
The leak of the Trans Pacific Partnership intellectual property chapter confirms that the many concerns about the agreement were well-founded. My earlier posts highlighted Canada's opposition to many U.S. proposals and U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring. This post focuses on some of the anti-counterfeiting requirements in the TPP.  The anti-counterfeiting issue is particularly relevant from a Canadian perspective because the government has proposed significant new anti-counterfeiting measures in Bill C-8, which is currently at second reading in the House of Commons and being studied by the Industry Committee. If the U.S. border measures demands are included in the TPP, Bill C-8 would be wholly inadequate to meet Canada's new treaty obligations.

For example, the TPP would require customs officials have ex officio power (ie. power without court oversight or even a formal complaint from a rights holder) to seize in-transit shipments of suspected counterfeit trademark or copyright goods. Bill C-8 currently excludes in-transit shipments. Moreover, the U.S. wants to extend counterfeit trademark goods to goods that are "confusingly similar", a demand currently opposed by Canada and also not contained in the bill.

The TPP would also create a framework where customs officials could notify rights holders of seized goods, even where the rights holder has not asked for assistance. This is inconsistent with Bill C-8, which is premised on a system of a prior request from rights holders. Beyond border measures, the TPP would require countries to establish statutory damages for trademark infringement. Canada does not currently have this form of damages, though there has been lobbying by some groups to include trademark statutory damages in Bill C-8.  During my recent committee appearance on C-8, I argued that the bill should be delayed until Canadian obligations become clearer. The leak of the TPP text confirms that the government may be forced into further reforms if the U.S. succeeds with its anti-counterfeiting demands.
Comments (4)add comment

margaret beresford said:

Discriminating Choice
I am mystified by one obvious elephant in the mix as far as how and what Canadians can do to counter their forced legal obligation to pay through their taxes any and every whim outlined in the investor/state arbitration mechanism. Every time I read or hear that Canadians have to do something to stop CETA and TPP, the actions are limited to ineffective acts such as protesting and voting. To date I have not heard or read using the one value all these trade agreements aim for, money as a tool to stop the force implementation of these deals. I mentioned this to a leading economist in the US and was told it was a creative idea but that was all. None of the fair taxation groups have gotten involved. Its as though the same old ineffective methods will be put into motion so all can claimed they at least tried. But since the recession people are too afraid because they now realize that there is a distinct indifference to the ordinary and the many by those in positions to benefit. The proof was and is demonstrated by the silent acceptance of the degree of secrecy used throughout all these trade negotiations. I truly believe that some sort of staggered tax disruption and/or boycott of corporate goods will end up being the most timely and effective way to re-position Canadians visa vie corporations and governmental officials. I hope you can find time to offer your opinion on the points I have covered here. Thank you and take care.
November 15, 2013

Ray said:

...
Assuming that many of the US demands succeed at the TPP level, one must still wonder how the Supreme Court of Canada will treat these matters. The USSC is likely to protect US citizens from the excesses of TPP, but unless its counterparts in other countries are willing to do the same the rights granted by the TPP will be unidirectional. US rights holders will have enforcement powers abroad that will not be reciprocated for foeign rights holders.
November 15, 2013

kevin said:

Good
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November 16, 2013

Mike said:

...
Are we going back to the days of Hitler ??

Sure seems like it. The US is now dictating what the World needs to do for them.

Are we all that indifferent to these tactics. Do we not have any respect for our forefathers who fought
to keep our rights in OUR hands.

Please people, do not let these thugs have their ways.
November 16, 2013

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