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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.
indu, intellectual property, ip, patent, trademark Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday April 03, 2013 |
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Tuesday March 19, 2013 |
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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:
ceta, counterfeiting, indu, ip, patent, tpp, trademark Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday March 19, 2013 |
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Friday March 01, 2013 |
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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. acta, c-56, copyright, counterfeit, trademark Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday March 01, 2013 |
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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.
deiter, homeaway.com, jurisdiction, trademark, vrbo Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday January 09, 2013 |
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