Bill C-47, the government's Olympic marks legislation, has been quietly placed on the fast track. The very fast track. With no warning, the bill heads to committee this week with hearings today (Industry Canada, VANOC) and Tuesday (several Olympic athletes and committees, clause by clause). With clause-by-clause review already on the schedule, the Industry Committee will only conduct a limited review and the bill could head back to the full House of Commons for third and final reading by the end of the week.
I've posted several items about the bill, expressing concern about substantive shortcomings and legislative fairness. Given the government's determination to fast track this bill, the most that can be done is to suggest some modest reforms to the bill (dropping the bill is out of the question and major surgery is not permitted at this stage). With that in mind, the Committee should consider recommending at least two changes:
1. The key exception provision includes the following:
For greater certainty, the use of an Olympic or Paralympic mark or a translation of it in any language in the publication or broadcasting of a news report relating to Olympic Games or Paralympic Games, or for the purposes of criticism relating to Olympic Games or Paralympic Games, is not a use in connection with a business.
By limiting the exception to news reports and criticism, the provision is far too narrowly drafted. The legislation should certainly include a clear exception for parody. Ideally, the Committee would study other potential additions (ie. appropriation art) and seek expert opinion on whether the news reporting exception is sufficiently broad to account for new media reporting.
2. Section 6 establishes a new standard for an interlocutory injunction:
If an interim or interlocutory injunction is sought during any period prescribed by regulation in respect of an act that is claimed to be contrary to section 3 or 4, an applicant is not required to prove that they will suffer irreparable harm.
This represents an enormous change in the law, establishing a dangerous precedent. The best course of action would be to drop the provision entirely – the revision would still allow the government to confirm its legal support for the Olympics as required by the IOC, while maintaining the well-established standard for irreparable harm. Moreover, Canadian courts have been willing to grant injunctions in similar circumstances as those faced by VANOC. For example, in Imax Corp. v. Showmax Inc., the federal court granted an injunction based on speculative evidence of irreperable harm, suggesting that VANOC could obtain an injunction by marshalling clear and non-speculative evidence about its existing sponsors and why the ambush marketing will cause significant harm.
Alternatively, the bill could alter the irreparable harm test by removing the balance of convenience part of the test – ie. the legislation could create an assumption that VANOC meets the balance of convenience and will only be judged on the remainder of the irreparable harm test. Such an approach would decrease the barriers faced by VANOC, while doing a better job of retaining the well-established balance in the law.