The CACN’s Roadmap for Change

Over the next two days, two House of Commons committees will move toward finalizing their recommendations to address Canadian counterfeiting concerns – the Industry Committee will review its recommendations on the counterfeiting issue today, while tomorrow the National Security and Public Safety Committee will review its draft report on counterfeiting.  While I am sure that all the witness comments and submissions will be considered, the Canadian Anti-Counterfeiting Network's Roadmap for Change [pdf] will unquestionably play a key role.  During its appearances before the committees, the CACN representatives touted the document as the prescription to address the counterfeiting issue. 

The Roadmap for Change was not translated at the time of the committee appearance, however, that has presumably now happened and the document has been posted online.  It is generally consistent with the committee appearances – many of the anecdotes and recommendations that were raised before the committees are mentioned here too.  The CACN is seeking a far larger IP enforcement framework with more resources, an IP crime task force, and an IP Coordination Council.  It is also seeking stronger border measures, changes to the proceeds of crime legislation, and the creation of a criminal provisions for trademark counterfeiting as well as for camcording in a movie theatre.

While there is much to take issue with (just about every media release from the past couple of years is crammed into the report), it is the recommendations and omissions that really matter.  I am skeptical about the likely effectiveness of some recommendations (for example, the reliance on stronger border measures is undermined by the GAO study on U.S. border effectiveness), yet several have little downside and will likely make their way into the Committees' reports. There are, however, several recommendations that should be rejected. 
For example, the CACN wants statutory damages awards increased, yet the misuse of damages provisions to exact unfair settlements (particularly in file sharing litigation) should lead to a rejection of this approach. In fact, as I noted yesterday, the UK – which the CACN points to as a model country – has just recommended eliminating punitive damages for copyright infringement. Moreover, the CACN recommends expanding copyright liability by adding contributory copyright infringement for certain activities.  Canadian law already recognizes authorization of copyright infringement – adding contributory copyright infringement would have far reaching implications that would extend well beyond the counterfeiting issue.

The committee should also take note of what the CACN has not included in its roadmap.  In addition to the absence of hard data – the only reference to counterfeiting comes from a private study that is nearly triple the OECD estimate – there are no recommendations focused on health regulation reform to address counterfeit pharmaceuticals.  This absence is telling, particularly since the report itself makes regular reference to the dangers associated with counterfeit pharmaceuticals. 

Further, despite raising the issue at committee, the CACN roadmap does not include a recommendation for Canada to ratify the WIPO Internet Treaties (though there are some anti-circumvention provision recommendations).  On the issue, we find ourselves in agreement – the committees should take the CACN report at its word by rightly recognizing that addressing the counterfeiting issue has little to do with the WIPO Internet Treaties and therefore has no place in their recommendations.

One Comment

  1. Chris Brand says:

    UK recommendations
    I\’m not sure that you\’ve accurately characterised the proposal in the UK.

    As I read it, they do recommend getting rid of \”additional damages\”, and replacing it with \”aggravated and restitutionary damages\”. But, they also recommend changing the law so that corporations can claim \”aggravated damages\” for pain and suffering.

    It seems to me that this is just a change in naming – the recording industry would just claim for \”pain and suffering\” rather than punitive damages, but the effect on the person sued would be the same.

    Interestingly, the consultation question #35, which is the one that addresses this issue, asks whether the change in the type of damages is a good idea, but doesn\’t ask about the proposed change to allow corporations to claim aggravated damages.