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.

Mr. Speaker, we are very happy to have introduced an anti-counterfeiting bill in the House. Counterfeiting is a growing problem in Canada. Counterfeiting deceives Canadians and is linked to security-related issues. So it was our duty to modernize the legislation to ensure that we can end counterfeiting, so that Canadians are not deceived, and to provide better security.

Borg tried again with a direct link between Bill C-56 and ACTA:

Mr. Speaker, a number of countries have rejected this unacceptable agreement. The anti-counterfeiting trade agreement - ACTA - was drafted behind closed doors and would incriminate the daily users of cultural content. This agreement will turn our border officers into instant copyright experts, without the adequate legal support. Canada must seriously study the problem of counterfeiting. However, the failure of Bill C-30 means that Canadians do not have faith in this Conservative government. Is Bill C-56 not simply a way to support ACTA through the back door?

Paradis ducks the question once again:

Mr. Speaker, let us be clear: Bill C-56 is a way to support and protect Canadian families.
Counterfeiting is a growing problem that must be stopped. Counterfeiting deceives Canadians and poses risks to the safety of Canadians. We must ensure that the legislation is updated and appropriate in order to equip the authorities with effective tools to fight counterfeiting, which is exactly what was introduced on Friday. If the NDP is responsible, I hope they will support us.

The 52 page bill requires careful scrutiny, but the NDP is right for drawing attention to the elephant in the room. ACTA has been rejected in Europe and stands as a discredited agreement. Despite that, Bill C-56 is fundamentally a bill designed to allow Canada to implement ACTA.

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.

While many remain skeptical, the shift toward the public interest in the development of Canadian digital policies ranks as one of the most remarkable policy transformations of the current Conservative government. The change is not absolute - Canada caved to U.S. pressure on several copyright issues, delayed implementation of the anti-spam bill due to corporate lobbying, and is negotiating new trade treaties that could undo much of the recent progress - but the state of Canadian digital policy is far better than anyone could have reasonably anticipated several years ago.

There are undoubtedly many factors behind the shift, but topping the list was the confluence of three inter-related developments.

First, Internet and digital policy issues went from niche issues to the mainstream since the rules associated with Internet access, wireless services, social media, user generated content, and privacy became far more personal with implications for millions of people. Digital policy may have once focused chiefly on commercial concerns attracting limited public attention, but the public has increasingly connected these policies to their own lives.

As a result, thousands of Canadians participated in a 2009 copyright consultation, more than 500,000 people signed a petition on Internet billing, hundreds of thousands took to the streets in Europe to protest against ACTA, and the government faced an overwhelming backlash against its Internet surveillance plans.

Second, the Internet was not only a serious concern for many Canadians, but it also provided the mechanisms to ensure their voices were heard. Social media sites such as Facebook and Twitter, blogs, and online video provided an avenue for Canadians to become informed about the issues and the means to speak out.

Third, the government gradually realized that missteps on digital policy could be politically costly, while good policy was also good politics. The payoff may be slow in coming, but the emergence of digital policies that prioritize public concerns leave opposition parties with less ammunition for criticism and the promise of greater competition and innovation.

Many have been quick to dismiss the public voice on digital issues, deriding Canadians that speak out as seeking a free ride, or being uniformed or ignorant of the complexity of the issues. The same groups often simply ignore those views altogether, as if the public submissions were just noise with no discernible impact.

Yet the Canadian experience of the past five years demonstrates a clear shift in approach with legislation, regulation, and policy outcomes that once seemed highly unlikely. The public interest will not win out on every issue, but its impact is evident throughout the digital landscape.

The public backlash mirrors similar concerns this summer when reports first emerged that CETA contained many ACTA-like provisions. The European Commission denied the reports, maintaining that the text had changed as a result of the European Parliament's defeat of ACTA in July 2012, yet it now seems probable that ACTA provisions are part of CETA.

Reconciling the conflicting reports is possible, given that Canadian officials stated that no Copyright Act provisions would require change as a result of CETA. The inclusion of border measures and criminal provisions could require other legislative changes, resulting in a deceptive (albeit accurate) response. Indeed, Canadian officials said in August that the criminal ACTA provisions were still alive. The uncertainty and public concern raises the prospect of CETA facing serious opposition within Europe due to the copyright provisions. For example, the Dutch government has said it will not sign CETA if it includes ACTA provisions. While the patent issues are a major Canadian issue, copyright could emerge as a big problem for the agreement in Europe should ACTA provisions resurface within CETA.