Stop ACTA 9 by Martin Krolikowski (CC BY 2.0) https://flic.kr/p/bs3VmD
I participated in a panel titled The Internet, Free Trade, and Transparency: An International Perspective as part of Yale University’s Trade and Transparency in the Internet Age.
The panel was moderated by Margot Kaminski and the other participants were Peter Yu, Ante Wessels. We discussed the impact of WikiLeaks leaking a draft of Anti-Counterfeiting Trade Agreement and parts of the Trans-Pacific Partnership Agreement , another free trade agreement. Both leaks led to considerable public debate over both the content of the agreement and the negotiating process. The leaks, and their policy effects suggest there is a need for discussion of trade and transparency in the Internet Age.
Liberal MP Judy Sgro continued her efforts yesterday to add lobbyist-inspired provisions to Bill C-8, the anti-counterfeiting legislation. Having already proposed removing the personal exception for travelers (leading to increased border searches) and a “simplified procedure” for the seizure of goodsthat would remove court oversight in the destruction of goods in a greater number of cases, Sgro proposed an amendment to add statutory damages with a mandatory minimum of $1,000 and a maximum of $100,000 in liability. The provision would limit the discretion of judges to order damages based on the evidence.
The statutory damages provision was another ask for intellectual property lobby groups. As I noted in my appearance before the committee:
The Standing Committee on Industry, Science and Technology held its clause-by-clause review of Bill C-8, the anti-counterfeiting bill yesterday. I appeared before the committee last month to express concerns about some lobbyist demands for reforms, including removing the exception for personal goods of travelers, the inclusion of statutory damages for trademark infringement, and targeting in-transit shipments.
While the committee did not complete the review of the bill – it will resume on Wednesday – the surprise of the day involved Liberal MP Judy Sgro proposing that the government remove the exception for personal travelers. Given that personal use exceptions are even included in the Anti-Counterfeiting Trade Agreement, it is shocking to see any party proposing their removal, which would result in longer delays at the border and increased searches of individual travelers. The proposal failed since it was rejected by both the Conservatives and NDP, with the NDP noting that “this was one of the important provisions that brought some balance to the bill.”
The leak of the Trans Pacific Partnership intellectual property chapter confirms that the many concerns about the agreement were well-founded. My earlier posts highlighted Canada’s opposition to many U.S. proposals and U.S. demands for Internet provider liability that could lead to subscriber termination, content blocking, and ISP monitoring. This post focuses on some of the anti-counterfeiting requirements in the TPP. The anti-counterfeiting issue is particularly relevant from a Canadian perspective because the government has proposed significant new anti-counterfeiting measures in Bill C-8, which is currently at second reading in the House of Commons and being studied by the Industry Committee. If the U.S. border measures demands are included in the TPP, Bill C-8 would be wholly inadequate to meet Canada’s new treaty obligations.
The government’s anti-counterfeiting legislation, which died over the summer when the Conservatives hit the parliamentary reset button, is now back on the legislative fast track. Industry Minister James Moore quickly re-introduced the bill last month and speedily sent it to the Industry Committee for review (I appeared before the committee last week).
That review has revealed that the numerous new border measures envisioned by the bill, including seizure powers without court oversight, fall short of the demands of intellectual property lobby groups. Those groups intend to use the committee hearings to seek further expansion of border seizures and to shift more enforcement costs to the public.
My weekly technology law column (Toronto Star version, homepage version) notes that since virtually everyone is opposed to harmful counterfeiting – particularly when fake goods create health and safety risks – it is unsurprising that the bill appears to enjoy all-party support. The focal point of the bill is that it grants customs officials broad new powers without court oversight. Officials will be required to assess whether goods entering or exiting the country infringe any copyright or trademark rights. Should a customs official determine that there is infringement, the goods may be seized and prevented from entering the country.