As Canadian officials prepare for the forthcoming NAFTA renegotiation, changes to Canada’s border measures provisions seem likely to surface as a U.S. demand. Late last month, the USTR released its annual Special 301 report and the issue of Canadian anti-counterfeiting law – in particular, the absence of provisions to allow for the search of in-transit shipments that are not bound for Canada – topped the list of concerns. The U.S. report states:
The United States remains deeply concerned that Canada does not provide customs officials with the ability to detain, seize, and destroy pirated and counterfeit goods that are moving in transit or are transshipped through Canada. As a result, the United States strongly urges Canada to provide its customs officials with full ex officio authority to address the serious problem of pirated and counterfeit goods entering our highly integrated supply chains.
The U.S. position has garnered some support in Canada. For example, a recent Globe and Mail editorial urged the government to change the 2014 anti-counterfeiting law by granting customs agents the power to search and seize shipments that are not bound for Canada.
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In the years leading up to Canada’s entry into the Trans Pacific Partnership negotiations, there was considerable speculation about demands imposed by the U.S. For example, I wrote in 2012 about two reported demands: that Canada was stuck with any chapters concluded before entry and that it would not have any veto authority. This meant that if all other countries agreed on a particular provision, Canada would be required to accept it.
Yesterday, Industry Minister James Moore provided the first official confirmation of at least one other condition of admission to the talks: anti-counterfeiting legislation. Bill C-8, the anti-counterfeiting bill that focuses on providing new border measures provisions such as enhanced search and seizure powers for customs agents without court oversight, is really a bill about satisfying U.S. demands for TPP entry. According to Moore:
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Last year, the federal government trumpeted anti-counterfeiting legislation as a key priority. The bill raced through the legislative process in the winter and following some minor modifications after committee hearings, seemed set to pass through the House of Commons. Yet after committee approval, the bill suddenly stalled with little movement throughout the spring.
Why did a legislative priority with all-party approval seemingly grind to a halt?
My weekly technology law column (Toronto Star version, homepage version) suggests that the answer appears to stem from the appointment of Bruce Heyman as the new U.S. ambassador to Canada. During his appointment process, Heyman identified intellectual property issues as a top priority and as part of his first major speech as ambassador, singled out perceived shortcomings in the anti-counterfeiting bill.
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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:
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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.
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