Christian Paradis, Minister of Industry, also noted that the legislation is well in keeping with public concerns about family safety and the safety of the community at large. But the extent to which this legislation’s remedies truly protect the public is somewhat misstated.

One of the biggest changes to help combat counterfeit products are sections of the bill which relate to the seizure of imported or exported items that are potentially infringing on copyright or trade-mark rights.  (See to read more about some of the proposed revisions to the Copyright Act and Trade-marks Act contained within the bill).  A customs officer may now detain items (for a set period of time) which they believe infringe on these rights. In addition, the rights holders themselves can apply for assistance from customs to enforce their rights in relation to items which they believe infringe upon their intellectual property rights. Rights holders will also have access to information from officers relating to any detained or suspect items. During the time of detention, neither the officer nor the government will be liable for any damages done to the detained items.

Additional criminal sections have also been proposed for the Trade-marks Act. The new provisions would capture anyone involved in an infringing scheme that had knowledge of the infringement. Punishment for intentional infringement is up to $ 1,000,000 in fines, up to 5 years in prison, or both. This section clearly increases the courts ability to punish infringers from the broad and understated relief provisions in section of the current Trade-marks Act.

see this legislation as an attempt by the Canadian government to further comply with the Anti-Counterfeiting Trade Agreement (ACTA). ACTA had recently taken a great deal of public opposition in the resulting in a lack of support for the act by EU government officials.

It is important, however, to take account of why the EU opposed ACTA in the first place. Opposition to ACTA, at least from the EU public’s perspective, seems to have been based primarily on ACTA’s privacy and fair-dealing provisions. Therefore, it is doubtful, in my mind, that even if the Canadian public was more aware of the effects of bill C-56, there would be widespread opposition. The new bill clearly increases the protections that copyright or trade-mark owners enjoy, but not in a way that directly concerns the general public. On an individual level, I doubt whether the average Canadian would ever notice that these new protections exist. The protections target commercial behaviour, specifically the importation or exportation of goods, and therefore it may only affect Canadians on a business level.

That said, there are clear concerns, on a commercial level, with the bill as it has been proposed. The most obvious of which is that customs officers are now put in a position to make legal judgments as to whether imported goods violate IP rights or not. The rights holders themselves will be in a position to direct the attentions of customs officers to further their own goals. In my most cynical imagination, I envision rival businesses reporting copyright/trade-mark infringement to customs officials in relation each other’s imported goods rather than going to court. Without the need for any court direction, the customs officer is now put in a position to detain the impugned goods, potentially interrupting business for a period of time. The possibility of abuse of these new remedy provisions is clear.

Aside from the issues with implementing these new provisions, I also have concerns over the way that this bill was marketed. When the Minister of Public Safety, Mr. Toews makes statements like :

"Counterfeiting poses health and safety risks to Canadians. Goods made using inferior or dangerous materials may lead to injury and even death. Proceeds from the sale of counterfeit goods may be used to support organized crime groups,"

It makes it seem as though this bill is targeting public safety. While I have no doubt that some infringement is the result of counterfeit products which are of an inferior and perhaps dangerous quality, infringement might also be purely accidental. Just because products or services happen to infringe copyright or trade-mark rights that does not necessarily make them a public danger. What this act clearly does is allow greater protection for right’s holders through increased enforcement mechanisms. Therefore, in my opinion, this act has primarily business purposes. Any increase in public safety is, at best, a secondary concern. I think that portraying the bill as addressing public safety unnecessarily clouds the bill’s true purpose and damages it credibility.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

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If the passage of Canada’s copyright reform bill (covered by IP Osgoode ) after nearly 15 years of lobbying and revision has shown anything, it’s that persistence pays in the field of IP legislation. If copyright reform is a key goal of EU interests, as it has been with Canada, then it is only a matter of time before ACTA 2.0 or its revised equivalent shows up on the horizon. Given this likelihood, here’s a brief recap of the major events and debates in the life of ACTA, which might be useful in helping readers determine what the next EU IP reform treaties might bring.

The European Commission (EC) cited as being trade-related, especially with regards to balancing the rights of the creators of IPRs with those of EU citizens and consumers. It was also quick to point out that ACTA was mostly enforcement-based, and aimed to strengthen existing IP rights, without seeking to add an extra layer. And finally, the EC rebuffed the broad scope of the treaty by justifying it as necessary for the protection of “all European innovators and creators, through a broad range of means,” including ‘best practices’ mechanisms to ensure both civil and criminal enforcement were uniformly applied across EU borders.

Given that the agreement was touted as beneficial for both “developed and emerging economies,” it is interesting that such as Brazil and India had spoken out against ACTA, with the former claiming that the negotiation process was itself , and the latter pointing out that ACTA that developing economies need, by disallowing them the full benefits of efficient IPR-usage. The fact that the original communications around the treaty were on the internet in 2008, ultimately leading to a of the draft treaty being released in December 2010—with even the European Parliament over its (the EC’s) suspicious behaviour— may have served to stir an ever-growing hornet’s nest over ACTA’s .

Margot Kaminski’s highlighted ACTA’s impact on international law on both practical and thematic levels, and pointed out that its acceptance would have led to increased governmental interference in issues of IPR enforcement normally handled by private companies. More importantly, Kaminski emphasized that the current global recession puts an increased strain on cash-strapped governments to pursue IPR enforcement within their own borders, instead of focusing on development issues, which is something that has been commented on as well. Still other critics focused on the , reffering to ACTA as SOPA’s ‘big sister,’ alluding to the fact that ACTA effectively encompassed SOPA’s free-speech limiting provisions and expanded on these to include generic drugs, pharmaceuticals and goods. ACTA had therefore been touted as “part of a ,” with countries being compelled to fall in line with a majority view favouring punitive copyright enforcement, in exchange for trade and economic development prospects.

More interesting perhaps, was the . While civil protests were marked by the , and online awareness that culminated in , it was the retractions by various governments (, , , , among others) in the days following that highlighted just how divisive ACTA had become, creating much , even as it signed the treaty. The of Kader Arif, the rapporteur of the EP for ACTA, followed by his of the process of its negotiation and adoption already circulating in the civil world. All this fracas then led to renewed concerns about whether the rhetoric from the SOPA protests could have affected public perceptions of ACTA’s content and goals, with for being unclear about the treaty’s motives, prompting , at least with respect to . Some members of the EC hit back, by suggesting that the protests “.”

In May 2012, EC had decided to stall the ratification process of the treaty, and by the European Court of Justice (ECJ) on ACTA’s legality. The EC deemed this a “” to ensure that the fundamental freedoms of the public were protected, even as would have been put to rest. Even so, the EP decided not to wait for the ECJ’s ruling on ACTA by voting on it before the Court’s judgment was released, reflecting just how unpopular the treaty had become.

For its part, Canada had been embroiled in the ACTA controversy since its and . The government has as being directed towards the internationally cooperative best practices that the treaty would have encouraged, especially with respect to the development of a new legal framework designed to counter mass scale copyright infringement. While the official Canadian stance had been that the country’s , critics highlighted that were in Bill C-11— which has now and will soon become Canadian law— even as they dismissed the actual passage of ACTA as being unlikely. From the Canadian perspective, it seemed as if the treaty’s consequences on the “” debate was one of the with the treaty, although this country has now pre-empted the EU on this aspect by including these provisions in C-11 anyway. Other issues of process and substance that hark back to the nature of democratic dialogue and law-making had also been discussed in connection with ACTA.

Ahead of Wednesday’s vote, the of the MEPs on July 3, 2012 was a , with supporters expressing the concern that a vote on ACTA before ECJ’s ruling would be irresponsible, even going so far as to weaken the and EU’s “defence of IPRs….across the world.” Interestingly, the pro-ACTA opinions seemed to centre purely around the concerns of defence, protection and trade-related enforcement measures, while the anti-ACTA voices considered the importance of public opinion, and the need for increased input from EU citizens to create a balanced treaty that would “allow both business models to exist” – the traditional defensive stance, along with the newer “sharing” one. Ultimately however, the sour taste left in the mouths of many stemmed from the overall approach to the creation of ACTA in first place; as British Labour MEP David Martin stated, .” Perhaps its drafters would do well to take this lesson to heart, and allow for a democratic and cooperative drafting process for the next round of IP reform legislation in the EU. This would be more reflective of the quest to achieve the ideal and ever-elusive balance between the rights of creators versus those of society that IP law is supposed to continuously strive for.

On a grander scale, the fight over global IPR management and enforcement might just be the beginning. Awareness over a , the (TPP), which , has been spreading slowly but surely. The criticisms with this are all-too familiar— ranging from secret negotiations to inadequate representation of all parties and stakeholders, and indicating what is perhaps a sad trend in current international IP law negotiations, but one that is facing stiff criticism from global civil societies and governmental organizations alike.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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Although I have discussed the various concerns raised by the highly controversial ACTA and the increasingly intrusive digital copyright enforcement agenda, I have yet to explore what a combination of these initiatives would mean for U.S. individuals, technology developers, and small and mid-sized firms. This Essay picks up that task by exploring whether—and if so, why—these entities should be concerned about this half-cooked alphabet soup.

Part II of this Essay identifies six different concerns and challenges ACTA poses to U.S. consumers, technology developers, and small and mid-sized firms. Part III explores the ongoing negotiation of TPP. Although the secretive and dynamic nature of the TPP negotiations has prevented this Essay from providing a detailed analysis of the emerging agreement, this Part explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. Part IV concludes by highlighting the challenges recently created by SOPA and PIPA—two pieces of legislation that are as problematic as, if not more problematic than, ACTA and TPP.

Featured here is the first part of a paper by , Kern Family Chair in Intellectual Property Law and Founding Director of the Intellectual Property Law Center at Drake University Law School. The paper was originally published in the Drake Law Review Discourse. Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong. The full article can be found .

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But then the international institutions changed. The WTO and WIPO used to be places where large IP-producing countries used to hold more sway, and it was easier to pass international agreements. However, as large developing countries started finding their voice, it became harder for IP owner countries to push their agendas. The culmination of this situation was the failure to approve the WIPO Broadcast Treaty in 2007, which was a big blow for the content industries. This Treaty was defeated by a combination of web activists, the tech industry and developing countries, and has to be taken as the final nail in the coffin for the quasi-unilateral control of IP owners of the international institutions.

I do not wish to be ideological in this assessment. There are few countries who are net IP exporters, and the US is still the one with the biggest stake in the creative industries (hence its interest in expanding IP protection and exporting such expansion). The USTR is not a mindless agency pushing for more IP protection to fulfill an evil agenda; it is doing so because it is in its best commercial interest. As such, for the last decade, the USTR has been engaged in a clear strategy that tries to export stronger IP protection around the world, because at the moment, anything that protects IP in a given territory will undoubtedly favour its balance sheet. TRIPS-plus agreements, and other bilateral efforts, have to be seen in that light.

Several other things have been happening at the international IP institutions. Policy-making at the WTO seems to have ground to a halt after the 2001 Doha Ministerial Conference. WIPO has also been seeing some structural and political changes. The institution has become more financially independent thanks to the success of the Patent Cooperation Treaty and the domain name dispute resolution procedure, which means that they do not have to take marching orders from content owners any more. The BRIC countries have also been gaining more expertise in the area of IP, so governance at WIPO has become an issue. WIPO is more balanced, but strangely, it is also a more dysfunctional institution as a result. It is precisely the growing balance between countries that has prompted some countries interested in international maximalist agendas to try to implement their agendas through international trade treaties.

So, if you want to expand IP protection, but cannot do it at the international IP institutions, what do you do?  Enter the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP).

The ACTA negotiation was riddled with compromise from the start. In retrospect, it may have been a mistake for the USTR to include countries with their own large stake in the IP world, particularly Europe and its interest in maximizing protection for geographical indications. In the end, ACTA resulted in a much more diluted agreement than what it was originally.

So now we have had some glimpses at the IP provisions contained in the TPP, and they are what ACTA could not be. While ACTA resulted in a compromise, the TPP attempts to go for broke and contains a wishlist for the content industries. This includes its own version of the Broadcast Treaty, harsher provisions against circumvention of technological protection measures, erosion of existing exceptions, the potential destruction of the first-sale doctrine, and what I can only class as an open war against intermediaries. In short, TPP reads like the frustrated collection of a department that has had more than a decade of not getting its way.

So we have interesting days ahead of us. Will TPP fall prey of the ?

Andres Guadamuz is Vice President at Innova Technology, a software firm in Costa Rica, and Associate Director of the SCRIPT Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh, where he has also served as Lecturer in Electronic Commerce Law. For more details about some of the provisions in the TPP, .

The post TPP: The Shape of the New International IP Regime appeared first on IPOsgoode.

The world’s leading countries gathered again this year in Seoul, Korea for the sixth negotiation meeting for the Anti-Counterfeiting Trade Agreement (). For those who do not yet know about ACTA, the negotiations are intended to culminate in a multi-lateral trade agreement that will assist governments to more effectively combat the proliferation of counterfeit and pirated goods. Born out of an invitation from the U.S. to participate in ACTA discussions in 2006, a handful of countries met in Geneva in June 2008 for their first meeting. Having just recently completed the sixth meeting in Seoul over November 4-6, the negotiating members have expanded to include Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, Switzerland and the United States. The consensus among commentators is that the ACTA text is still being negotiated, most likely to be concluded at the seventh meeting set to take place in Mexico in January 2010.

Like many free trade agreements (FTAs), negotiations have been extremely hushed, leaving many commentators flustered and concerned over the decisions being made behind closed doors.  Through the limited information released through press releases and the occasional leaked documents (see for the most recent leaked memo), commentators around the world have speculated over the negotiations and have expressed their concerns over the potential content of ACTA.

Canada’s own Michael Geist has led the commentator charge on ACTA, vigorously writing articles, blogging, tweeting, and giving speeches and interviews. In his recent , Geist outlines what was potentially being considered at the ACTA negotiation table in Korea and expresses a few of his concerns. The agenda at the Seoul meeting focused primarily on the Enforcement of IP Rights chapter of ACTA, which include Border Measures, Civil Enforcement, Criminal Enforcement, and The Internet.

The intent of the Border Measures section is to increase the powers of border patrol to search and seize. On the table are provisions to provide authorities with the power to search and seize any IPR infringing goods or equipment used to make infringing goods. Customs officials would also have the discretion to levy penalties, block shipments, and to seize the goods based on prima facie claims of rights holders.

Regarding Civil Enforcement, there has been considerable debate over the scope as some countries want to limit ACTA to only copyright and trademarks (e.g. the U.S.) while others want to extend ACTA to include patents and geographical indications (e.g. the EU). There are also talks about the incorporation of statutory damages as a requirement. Geist states that while not a large concern for the U.S. and Canada which already have statutory damages incorporated into domestic law, it poses considerable issues for other countries (particularly Australia) that do not have such domestic policies and would require significant reform.

There is noticeable alarm regarding the Criminal Enforcement section, which is speculated to impose criminal liability for both commercial and non-commercial copyright and trademark infringement. Based on other American FTAs, liability would include infringements where no financial gain is required ( has rippled through the public as this is said to imply criminal liability on kids ripping CDs and movies for online sharing). Geist notes that criminal liability will expressly include unauthorized camcording (already domestic law in U.S. and Canada) and may go beyond content infringement and target fake packaging for movies or music.

The Internet section was discussed for the first time in Seoul, and the leaked document laid out five key provisions considered for ACTA. One of the provisions to be considered is establishing a baseline obligation based on (general obligations for enforcing IPR). Also up for consideration is third party liability for content (i.e. intermediaries) and the limitations of safe harbours for intermediaries. Geist notes that the leak shows consideration of a “graduated response” or “three-strikes” approach requirement in order for intermediaries to qualify for safe harbour. This approach would entail ISPs providing customers with a three-strikes rule for infringement, followed by a subsequent disconnection of internet service for a year. Other approaches include a Notice and Takedown system for alleged infringing content being posted online by a customer. Geist also notes that anti-circumvention legislation, including ban of devices used for circumvention, are included and would necessarily imply “WIPO+” provisions.

Geist also laid out a few of his concerns that emanated from current ACTA negotiations. The first is the unprecedented level of secrecy. ACTA has been enshrouded in such a secretive veil (barring the leaks, to which Geist admits that he has been partially responsible for) that it poses serious concerns of a lack of government transparency and accountability. The Obama administration has refused to release any information regarding ACTA under Freedom of Information requests due to concerns characterized as national security.

Geist fears that ACTA will undermine the credibility of WIPO and other global IP forums. Geist purports that ACTA will increase the gridlock currently experienced at WIPO negotiations. Those countries who are seeking to advance a development agenda will be deadlocked against those who favour an enforcement agenda and will have little motivation to cooperate because of the provisions attained with ACTA.

Geist is also concerned with the loss of sovereignty as the combined effect of the ACTA provisions would dramatically reshape Canadian copyright law and eliminate any sovereign choice Canada has on its domestic copyright policy (which has just concluded its national copyright reform consultation). Geist believes that Canada’s agreement to ACTA terms would remove the flexibilities of WIPO implementation and Canada would lose the very notion of a ‘made-in-Canada’ approach to copyright.

There has also been considerable speculation activity from commentators ‘down-under’. Kimberlee Weatherall’s seconds many of the concerns raised by Geist, but goes further and describes other procedural and substantive concerns. Weatherall notes that in addition to a lack of transparency in the negotiations, there has also been a lack of balance in the interests of those who have been consulted. Most of the key advisory groups to the USTR’s consultation have concerned corporate IP-owning interests (i.e. the record and film industries, pharmaceutical industries). Only recently in September 2009 has the USTR expanded consultation to include technology companies (e.g. eBay, Google, Verizon), the Consumer Electronics Association, and a couple of other civil society groups. Weatherall argues that there are still many large players that have not been included in the consultations (most notably the Electronic Frontier Foundation and Knowledge Ecology International) and that there has been a similar lack of consultations from other countries participating in the ACTA negotiations.

Weatherall also points out that the “two-stage” negotiation process will prove to be problematic once ACTA is signed. She understands that confining the negotiations to a small number of like-minded countries may reach a more detailed agreement, but a more stringent ACTA may be difficult for other significant countries who are not party to the negotiations to accept (e.g. China, India, Brazil, Thailand). Furthermore, the countries that are left out of the debate constitute a large proportion of the countries responsible for the counterfeiting activities and their exclusion from the negotiation table will inevitably create headaches for the future expansion of ACTA membership.

From her Australian perspective, she notes that many of the Criminal and Civil Enforcement provisions go beyond any provisions in Australian history and may prove difficult for Parliament to enact. Statutory damages have yet to be considered by Australian Parliament and Weatherall expresses concerns of adopting an American FTA-style statutory damages provision, which has the potential to give awards of damages vastly in excess of any actual damage suffered that is attributable to the defendant’s act (i.e. disproportional damage awards).

The scope of criminal liability is also a concern for Weatherall. Past American FTAs have defined “commercial scale” to include private financial gain, irrespective of how low the number (i.e. single acts of infringement for private financial gain will be criminally caught). Further, “private” would imply that even purely personal (non-commercial) gain would be sufficient to give rise to criminal liability, which is a serious departure for many countries. For example, it is contrary to the Copyright Amendment Bill 2006 of the Australian Parliament; the EU Directive on Enforcement of IPR, which suggests that acts carried out by end-consumers acting in good faith be excluded from “commercial sale”; and the European Parliament’s amendment to the Directive on Criminal Measures Aimed at Ensuring the Enforcement of IPR, which defined “commercial scale” to exclude acts carried out by private users for personal and not-for-profit purposes.

Not all commentators have taken up such concern over the ACTA negotiations. Barry Sookman’s to the insurgence of ACTA critique is that much of it is “fear mongering” and misinformation that has been used to generate opposition to ACTA. Directly in response to Michael Geist’s commentary, Sookman purports that Geist has incorrectly summarized the leaked memo and has used inflammatory examples for shock value, leading the public into a state of panic. Sookman believes Geist’s assertion that the ACTA would dramatically reshape Canadian copyright and eliminate Canada’s sovereignty on domestic copyright policy is unfounded. Canada is participating in the negotiations precisely so that is can influence the outcome and shape the international norms and standards that govern copyright. In the event that the ACTA text does not turn out the way Canada would like, it can always refuse to sign the agreement or implement the provisions. As an example, Sookman points out that Canada has still not fully implemented the WIPO treaties signed 12 years ago. Further, the concerns that Geist raises about sovereignty can be made about any international trade agreement that Canada decides to join. There is nothing particularly egregious about the current ACTA negotiations.

Similarly, Sookman argues that Geist’s concerns about the unprecedented lack of secrecy are no different than any other trade agreement. Sookman states that it is a commonly held practice that trade agreements and treaties be negotiated in secret and a high level of confidentiality is to be expected. The purpose of this well-established principle is to allow the negotiating parties to exchange views in confidence, facilitating the negotiation of complex issues. Geist’s concern of secrecy is creating a false impression that the secrecy associated with ACTA is improper or unusual.

Sookman also argues that Geist’s summary of the leaked document speculates too far beyond the actual content of the EU memo. Geist’s concerns regarding the requirement of a “three-strikes” rule regime based on unproven allegations of infringement and a mandatory 12 month disconnection go beyond the actual text of the memo. The memo only requires ISPs to “put into place policies to deter unauthorized storage and transmission of IP infringing context (ex: clauses in customers’ contracts allowing, inter alia, a graduated response).” ACTA would only require some form of self-regulation by ISPs and does not require the extent of measures that Geist has said is necessary.

Sookman also disagrees with Geist’s concerns that ACTA will establish a “WIPO+” model by requiring an implementation of technical protection measures and anti-circumvention legislation based on American FTAs. Sookman argues that there is already a clear consensus that WIPO treaties require protection against access control circumvention and against trafficking in circumvention tools, and nothing in the memo suggests that ACTA will be requiring provisions extending beyond the current WIPO requirements.

Christian Castle has also advanced similar criticism of the panic emanating from recent ACTA commentary (see his under “ACTA Misreporting: Anatomy of a Smear” on Saturday November 14, 2009). Like Sookman, Castle maintains that the recent interpretations of the leaked document go beyond what the text actually entails. Further, the document itself was not a definitive account of what is to be included in the ACTA text. According to Nate Anderson of Ars Technica (see ), the document was merely a “written account of an oral report on a draft document that was itself being altered”. The fluidity of the proposed provisions is supported by the fact that lawyers for groups like CCIA and Public Knowledge “were invited to see the draft, comment on it, and later see it again when some changes had been made”. As such, Castle argues that the speculations made by Geist and other commentators are based on a document that was “shakey” at best.

Castle also argues that the “unprecedented level of secrecy” behind the ACTA negotiations is really not that secretive. As already mentioned, key groups such as CCIA and Public Knowledge may have been involved in the consultation process in ACTA negotiations. Castle suggests that there is further evidence of their involvement found directly in the leaked memo, in which the USTR has commented that it kept discussions confidential “due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet “freedom” on the other)” [emphasis added]. According to Castle, these “supporters of internet freedom” point to negotiations with at least Public Knowledge and CCIA, and negotiations may have even included the likes of Google. 

With all this being said, speculation on all sides can only go so far. Due to the extremely confidential nature of the negotiations, the world will not see the end product until the negotiating parties are ready to release it (barring a major leak). As Sookman pointed out, a country who has signed onto a multi-lateral agreement still has to incorporate it into the parliamentary process – and even then, the question of full or partial implementation remains to be answered. But for now, the speculative accounts of the negotiations are all we have to chew on until the final round next year.

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