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    Policy Laundering Lies Behind Ottawa's Support for IP Treaties

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    Wednesday April 03, 2013
    Appeared in the Toronto Star on March 23, 2013 as Policy Laundering Lies Behind Ottawa's Support for Trade Treaties

    Last week, the House of Commons Committee on Industry, Science and Technology released its long-awaited report on intellectual property in Canada. The report was the result of months of study with witnesses representing a wide range of industries from pharmaceuticals to universities to entertainment software all making the trip to Ottawa to provide the committee with their views on what works, what doesn't, and what needs reform.

    While most of the recommendations are fairly innocuous - the committee identifies many issues for further study - one recommendation involves a classic case of policy laundering as the government has manufactured support for provisions found in two major proposed trade agreements that were not even raised by the witnesses that appeared before the committee. The report recommends:

    that the Government of Canada (in order to support Canadian businesses on the global stage and ensure the administration of Canada's IP regime is internationally compatible and streamlined) ratify the following key international agreements: the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade- marks, and the Hague Agreement for Industrial Designs.

    The NDP picked up on the inclusion of the recommendations without any debate, discussion or actual study, noting in its minority report that

    As the Committee heard no testimony on the Patent Law Treaty, the Madrid Protocol and Singapore Treaty for trade-marks, and Hague Agreement for Industrial Designs, New Democrat committee members are surprised by the inclusion of a recommendation regarding these treaties in the majority report. The Committee should seek more information before pronouncing on such treaties.

    So why did the government representatives on the Industry committee include a recommendation to ratify four international treaties that were not discussed during the committee?

    The answer likely lies in the Canada - EU Trade Agreement and the Trans-Pacific Partnership, the two prospective trade agreements that top the government's current trade agenda. According to leaked documents, the Canada - EU Trade Agreement includes provisions that require Canada to make all reasonable efforts to comply with the Singapore Treaty and the Patent Law Treaty as well as accede to the Madrid Protocol and the Hague Agreement.

    There are similar requirements in the Trans Pacific Partnership as leaked documents indicate that it includes provisions that require countries to ratify or accede to the Madrid Protocol and the Singapore Treaty as well as make reasonable efforts to ratify or accede to the Patent Law Treaty and the Hague Agreement.

    These treaties would require significant legal reforms in Canada.  In the case of the Singapore Treaty and the Madrid Protocol, the procedures associated with Canada's trademark laws would face an overhaul, which the Intellectual Property Institute of Canada has noted would benefit only a small number of trademark holders.

    The other two treaties also create new procedural requirements, with the Hague Agreement for Industrial Designs establishing a system for registering industrial designs in multiple countries with a single application and the Patent Law Treaty seeking to harmonize formal procedures such as the requirements to obtain a filing date for a patent application, the form and content of a patent application, and representation.

    These treaties might make sense for Canada, but it is hard to know without careful study. Instead, the committee has simply recommended their ratification - and the all costs associated with doing so - without any debate or analysis. That represents a case of policy laundering designed to fabricate a record of support for the four treaties. Should Canada reach agreement on CETA or the TPP, the government will presumably use the report to claim support for the treaties that did not really exist. 

    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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    Industry Committee Report on Intellectual Property: A Case of Policy Laundering for CETA and TPP

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    Tuesday March 19, 2013

    The Standing Committee on Industry, Science and Technology released its report on the Intellectual Property Regime in Canada yesterday. The report is the result of lengthy hearings that focused on a wide range of IP issues including patent reform, trademarks, counterfeiting, and pharmaceutical protection. While most the recommendations are fairly innocuous - the committee identifies many issues for further study - there are essentially three main legislative reform recommendations. One involves limiting the scope of official marks, which appears to be the result of comments from Dalhousie law professor Rob Currie (echoed by CIPO's Sylvain Laporte) expressing concern with governmental abuse of official marks in a way that may stifle innovation.

    The other two are particularly interesting as they set the stage for the Canada - EU Trade Agreement and the Trans-Pacific Partnership. First, the report recommends anti-counterfeiting measures similar to those required by CETA and found in Bill C-56.  Should criticism arise over Bill C-56 or CETA, the government will likely point to this report in support. 

    The second involves a classic case of policy laundering as the government has manufactured support for CETA and Trans-Pacific Partnership (TPP) provisions that were not even raised at committee.  The report recommends:


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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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    Courts Adopt Aggressive Approach in Cross-Border Internet Jurisdiction Cases

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    Wednesday January 09, 2013
    In a world where data now moves effortlessly between computers on the Internet without regard for geographic borders, is the appearance of a website on a computer screen sufficient for a court to claim that a trademark has been used in the country? Is the use of a computer server enough to assert jurisdiction over a non-resident?  My weekly technology law column (Toronto Star version, homepage version) notes that two recent cross-border cases - one Canadian and one U.S. which both pitted a U.S. company against a Canadian individual - found that it is.

    The Canadian case involved a trade-mark dispute over the mark VRBO. Martin Hrdlicka, a Toronto resident, registered the mark in Canada in 2009. Just over a year later, Homeaway.com, a U.S. company that owns the popular VRBO.com site, sought to expunge the trade-mark on the grounds that Hrdlicka was not entitled to register the mark and had no intent to use it.

    Homeaway.com's legal challenge was that the company had no operations in Canada, though many Canadians may have accessed its U.S.-based website. Trade-mark law requires some use of the mark in Canada, yet the "use" in this case was largely confined to the availability of the VRBO website on computer screens.

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