Anti-counterfeiting bill clears path for ACTA ratification, experts say

Government legislation tabled in the House of Commons Friday will position Canada to ratify the controversial Anti-Counterfeiting Trade Agreement (ACTA) as other countries back away from the deal, the bill’s critics said. Tabled in the House on Friday, Bill C-56, officially called the Combating Counterfeit Products Act, would amend Canada’s copyright and trademark statutes to include new civil and criminal charges for offences and give border agents new powers to seize suspected counterfeit goods. Canada's support for the trade agreement appears to be moving ahead without that of the European Union, which rejected ACTA last July after public rallies against it. In late 2012, the European Commission withdrew an earlier referral of ACTA to the European Court of Justice to determine whether it would be compatible with European rights and freedoms, which observers interpreted as the end of the agreement for the EU. The intellectual property trade agreement requires six member countries to approve it before it can come into force. It was developed over four years in closed-door trade talks between Australia, Canada, the European Commission and the EU member states, as well as Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States. In a trade policy agenda and annual report released Friday, the United States Trade Representative said Canada should provide for “deterrent level sentences” for intellectual property right violations, and called on the Canadian government to “meet its Anti-Counterfeit Trade Agreement (ACTA) obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated products.” In a blog post Friday, Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, said Bill C-56 positions Canada to ratify ACTA in part by addressing “border measures provisions.” Geist, who has criticized Canada’s membership in the agreement, said the bill would address “many of the remaining non-ACTA compliant aspects” of Canada’s copyright law. “his bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect,” he wrote. In a telephone interview Monday, Geist said the bill is troubling from a copyright perspective because it requires border guards to “serve as copyright experts” and would remove court oversight of their ability to seize goods. “Of course everyone wants to ensure that we can deal with harmful counterfeits where health and safety are at risk,” he said. “The problem with this legislation is that there’s no limitations. What we’ve got is the removal of any sort of court oversight or review.” Geist said he is concerned about provisions in the bill that would allow border guards to turn over to rights holders goods suspected of infringing copyright. Rights holders, he said, may be inclined to delay the return of those goods even if they are not infringing. “The power that ultimately vests in rights holders who can seek to hold up all sorts of works, either for competitive reasons or any other sort of reason without court oversight, is troubling,” he said. David Robinson, associate executive director of the Canadian Association of University Teachers (CAUT), who has been tracking the ACTA copyright provisions, said in a telephone interview that Bill C-56 appears to include limitations on border guards’ abilities to seize consumer goods. He said this could alleviate some concerns that ACTA-related laws would allow border guards to search individuals’ electronic devices for copyright infringing materials, though those concerns will not be easily assuaged. “They did have a bit of a carve-out for individuals so border agents aren’t going to look on your laptop or your iPod to see whether or not you have the licence to operate the songs and programs that you have,” he said. “I don’t know where the cut-off is. If you’re travelling with more than five computers, does that raise an issue? I don’t know.” Robinson said Bill C-56 is unnecessary because ACTA is “pretty much dead in the water” in Europe and some member countries are reconsidering their decision to sign on to the agreement. He said he believes the federal government is moving ahead with the copyright measures as a “sop” to the United States, which has encouraged Canada to ratify ACTA. Geist said the USTR report released Friday is evidence that Canadian legislators are under pressure to ratify ACTA and crack down on perceived cross-border copyright issues. Ratification of ACTA would put Canada “out of step” with most ACTA members, he said. “The ACTA we signed onto was one where we thought that there was widespread agreement with over 40 of our major trading partners,” Geist said. “What we’re left with now is an agreement where we’d be lucky to get more than a handful of countries ratifying it.” In a backgrounder posted on Industry Canada’s website Friday, the federal government said C-56 targets “knock-offs” and other counterfeit goods that “closely resemble the legitimate product and bear an imitation or non-genuine trademark.” It said RCMP seized $38 million worth of counterfeit goods in 2012, up from $7.6 million in 2005. The backgrounder did not mention ACTA, and Industry Canada did not provide comments for this story by deadline Monday. “This Bill will provide the CBSA and RCMP with new enforcement tools to better protect against commercial counterfeiting activities, both at the border and domestically,” Public Safety Minister Vic Toews said in a release Friday. —With reporting by Nicholas Kyonka at nkyonka@thewirereport.ca and editing by Simon Doyle at sdoyle@thewirereport.ca

Anti-counterfeiting bill clears path for ACTA ratification, experts say

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Anti-counterfeiting bill clears path for ACTA ratification, experts say

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