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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.


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

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    Wednesday March 13, 2013
    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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    Here Comes ACTA: Canadian Government Introduces Anti-Counterfeiting Trade Agreement Compliance Bill

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    Friday March 01, 2013

    The Canadian government today introduced a bill aimed at ensuring the Canada complies with the widely discredited Anti-Counterfeiting Trade Agreement. Despite the European Union's total rejection of ACTA along with assurances that ACTA provisions would not resurface in the Canada - EU Trade Agreement, the new bill is designed to ensure that Canada is positioned to ratify ACTA by addressing border measures provisions. The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

    While the bill could have been worse - it includes an exception for individual travelers (so no iPod searching border guards), it does not include patents, and excludes in-transit shipments - the bill disturbingly suggests that Canada is gearing up to ratify ACTA since this bill addresses many of the remaining non-ACTA compliant aspects of Canadian law.  Moreover, it becomes the latest example of caving to U.S. pressure on intellectual property, as the U.S. has pushed for these reforms for years, as evidenced by a 2007 Wikileaks cable in which the RCMP's National Coordinator for Intellectual Property Crime leaked information on a bill to empower Canadian border guards (the ACTA negotiations were formally announced several months earlier). [Update: On the same day the Canadian government introduced Bill C-56, the U.S. Government issued its Trade Policy Agenda and Annual Report, which calls on Canada to "meet its Anti-Counterfeit Trade Agreement (ACTA) obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated products through its territory"]

    A full examination of Bill C-56 is forthcoming, but its introduction raises four immediate issues: that Canada is moving toward ACTA ratification, that it is pursuing policy based on debunked data on counterfeiting, that the bill could have serious harmful effects with border guards forced to serve as copyright experts without court oversight, and the increased criminalization of copyright and trademark law.

     


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    The IP Lobby's Post-Bill C-11 Playbook: ACTA, SOPA, Warrantless Search and the Criminalization of IP

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    Friday June 08, 2012
    The Canadian intellectual property's lead lobby group, the Canadian IP Council (itself a group within the Canadian Chamber of Commerce) released a new policy document yesterday that identifies its legislative priorities for the coming years. Anyone hoping that the SOPA protests, the European backlash against ACTA, and the imminent passage of Bill C-11 might moderate the lobby group demands will be sorely disappointed. Counterfeiting in the Canadian Market: How Do We Stop It? is the most extremist IP policy document ever released in Canada, calling for the implementation of ACTA, SOPA-style rules including website blocking and stopping search results from resolving, liability for advertisers and payment companies, massive surveillance at the border and through delivery channels including searching through individual packages without court oversight, and spending hundreds of millions of tax dollars on private enforcement.

    This long post reviews the report, focusing on the case it makes for addressing counterfeiting concerns in Canada and on the resulting recommendations. The recommendations are divided into five main groups:
    1. Introduce a Canadian SOPA
    2. ACTA Implementation
    3. New Search Powers Without Court Oversight
    4. The Criminalization of Intellectual Property
    5. Massive Increase in Public Spending Creating an IP Enforcement Subsidy

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