Appeared in the Toronto Star on April 19, 2014 as Trademark Overhaul Promises to Please No One It started innocuously enough with the House of Commons Committee on Industry, Science and Technology releasing its long-awaited report on intellectual property in Canada in March 2013. The report included a recommendation that […]
Post Tagged with: "trademarks"
Canada's participation in the Anti-Counterfeiting Trade Agreement negotiations has understandably generated enormous public concern as leaked documents indicate that ACTA would have a dramatic impact on Canadian copyright law. The U.S. has proposed provisions that would mandate a DMCA-style implementation for the WIPO Internet treaties and encourage the adoption of a three-strikes and you're out system to cut off access where there are repeated allegations of infringement.
Yet it would appear that ACTA is actually only part of the story. Canada is also currently negotiating a Comprehensive Economic and Trade Agreement with the European Union. The negotiations have been largely off the radar screen (and similarly secretive) with the first round of talks concluding in October in Ottawa. Intellectual property figures prominently in the agreement. In fact, the EU proposal for the IP chapter has just leaked online and the document is incredibly troubling. When combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law. The notion of a "made-in-Canada" approach – already under threat from ACTA – would be lost entirely, replaced by a made-in-Washington-and-Brussels law.
What are some of the EU's demands?
- Copyright term extension. The current term of copyright law in Canada is life of the author plus 50 years. This is consistent with the term requirements under the Berne Convention. The EU is demanding that Canada add an additional 20 years by making the term life plus 70 years.
- WIPO ratification. The EU is demanding that Canada respect the rights and obligations under the WIPO Internet treaties. The EU only formally ratified those treaties this week.
- Anti-circumvention provisions. The EU is demanding that Canada implement anti-circumvention provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.
- ISP Liability provisions. The EU is demanding statutory provisions on ISP liability where they act as mere conduits, cache content, or host content. ISPs would qualify for a statutory safe harbour in appropriate circumstances. There is no three-strikes and you're out language (which presumably originates with the U.S.).
- Enforcement provisions. The EU is demanding that Canada establish a host of new enforcement provisions including measures to preserve evidence, ordering alleged infringers to disclose information on a wide range of issue, mandate disclosure of banking information in commercial infringement cases, allow for injunctive relief, and destruction of goods. There is also a full section on new border measures requirements.
- Resale rights. The EU is demanding that Canada implement a new resale right that would provide artists with a royalty based on any resales of their works (subsequent to the first sale).
- Making available or distribution rights. The EU is demanding that Canada implement a distribution or making available right to copyright owners.
As I blogged earlier this week, the Industry Committee made some noteworthy changes to the Olympic Marks bill. While the posting focused on the inclusion of protection for parody and electronic media, the revised bill also includes a new provision to protect artistic work that is not produced on a commercial scale. The two new provisions are:
I have covered Bill C-47, the Olympic Corporate Sponsor Protection Act, in several postings (here and here). The Vancouver Sun has fascinating article that demonstrates how C-47 is really just the tip of the iceberg. It uncovered the list of official marks controlled by the various Canadian Olympic committees. The list, which some IP lawyers argue represents a misuse of Section 9 of the Trademark Act, includes:
U.S. Blazes Trail in Clash of Trademarks, Domain Nameslink to on line articlelink to html archive