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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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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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Wednesday March 06, 2013 |
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The government is
characterizing its Bill C-56 as an anti-counterfeiting bill, yet this
week NDP MP Charmaine Borg framed it more accurately as "ACTA through
the backdoor." During Question Period on Monday, Borg asked Industry Minister Christian Paradis directly if the bill paves the way for ratification of the discredited treaty:
Mr. Speaker, last
July the European Parliament rejected the anti-counterfeiting trade
agreement over serious concerns about the regressive changes it would
impose on intellectual property in the digital age. Yet on Friday, the
Conservatives introduced a bill in the House that would pave the way for
the ACTA without question. Canadians have concerns about goods being
seized or destroyed without any oversight by the courts. Will the
minister now be clear with Canadians? Are the Conservatives planning to
ratify ACTA, yes or no?
Paradis refused to respond to the ACTA ratification question: acta, c-56, counterfeiting, ndp Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday March 06, 2013 |
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Monday March 04, 2013 |
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The Canadian introduction of Anti-Counterfeiting Trade Agreement compliance legislation on
Friday appears to have come in direct response to a new U.S.-led
effort to revive the discredited treaty. When the European
Parliament overwhelmingly voted to reject ACTA last July, many
declared it dead. But is not dead
yet: it is badly damaged and will seemingly never achieve the
goals of its
supporters as a model for other countries to adopt and to emerge
as a new
global standard for IP enforcement. But for the U.S., which
spent years pressuring ACTA participants to strike a deal, the
strategy now appears to revive the agreement by at least
garnering the necessary six ratifications for it to take effect.
The current ACTA signatories are Australia, Canada, Japan, Korea,
Mexico, Morocco, New Zealand, Singapore, and the U.S. The European Union
and Switzerland are out. Japan formally acceded in October 2012, which
means the U.S. must find four more countries out of the remaining seven
for ACTA to take effect. Canada is a clear target, as evidenced by the USTR 2013 Trade Policy Agenda released on Friday. It
states:
The United States
continues to encourage Canada to provide for deterrent level
sentences to be imposed for IPR violations, as well as 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.
Canada has no ACTA
"obligations" - how could it given that the treaty is not in force
and Canada has not ratified it - but the U.S. pressure paid quick
dividends with the introduction
of Bill C-56, which is clearly designed to put Canada into a
position to ratify the agreement.
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