It’s rare for the wheel of government to stop spinning, propelled by a necessary inertia. At least within Canada, without the force of government guiding developments, it really is difficult to imagine what the legal landscape might resemble.

When it comes to IP, IC is at the helm, a position it shares with the and . The work of my particular department, the CTPB, is based on a relatively broad mandate that is always bogged down by details. This is because the CTPB is charged with the task of refining Canadian IP laws in a way that fosters business potential (i.e., “Industry”) while accommodating the needs of the country’s economic constituents (i.e., “Canada”). A balanced approach is therefore part and parcel of IC’s . Consequently, the work that I became involved with while at CTPB was diverse – general in some instances and intimately specific in others.

However, the one constant throughout my time with IC was the weekly meetings. The team at CTPB encourage open lines of communication, as a concerted effort is needed for legislation to make its way through the House (it’s a long road to Royal Assent). These meetings ensure that everyone is aware of developments on relevant files, and serve as a pillar through which everyday tasks, ranging from the creation of binders, speeches and briefing notes to the management of long term research projects, gain clarity. Given the “secret” nature of the files I worked on, I can’t provide substantive details. However, I will say that my interest was piqued during my first week and I rarely felt a dip thereafter. In terms of gaining an in depth look into IP policymaking – specifically, the ways in which socio-cultural trends impact laws, thereby impacting people – I could not have asked for a better placement.

Depending on your position, you might also be curious as to what Ottawa has to offer. After all, only 1/3 of your time will be spent at the office. Although moving to a new place can be an extremely lonely transition, that is precisely what makes the experience so spontaneously engaging. And Ottawa, serving as Canada’s capital and legal refinery, places before an unfamiliar face a unique breadth of opportunities. As mentioned, working within a legal department such as IC provides a glimpse into the gearbox of government, but even outside of the placement itself there are a number of venues worth visiting. The history attaching itself to Ottawa is especially visible around IC, which is built on a block that neighbours Parliament to the west. Some of the country’s oldest institutions reside along a strip of land no larger than 91��ɫ’s campus. Work on files in the morning and catch Question Period in the afternoon. Put in a bit of extra effort one week and perhaps even take a seat in the hearing room of the SCC. I was lucky enough to do exactly that when I observed . Seeing a Supreme Court case unfold in person is surprisingly insightful, and it really helped to bridge certain gaps I’d held previously regarding the process of appellate litigation.

In the end, every experience is contingent on what you make of it. Simply put, IC offers insights that no academic course can match. The placement forces you to view law through a public lens, and in that sense it offers the benefit of pre-emptively breaking the mold in which many soon-to-be lawyers find themselves immersed during practice. If your interest lies in policymaking and you wish to capture an honest view of the inner workings of democracy in action, you won’t likely find a better opportunity to do so anywhere else.

Jason Hayward is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

Normal
0

false
false
false

EN-CA
X-NONE
X-NONE

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:"Table Normal";
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-priority:99;
mso-style-parent:"";
mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
mso-para-margin-top:0cm;
mso-para-margin-right:0cm;
mso-para-margin-bottom:8.0pt;
mso-para-margin-left:0cm;
line-height:107%;
mso-pagination:widow-orphan;
font-size:11.0pt;
font-family:"Calibri","sans-serif";
mso-ascii-font-family:Calibri;
mso-ascii-theme-font:minor-latin;
mso-hansi-font-family:Calibri;
mso-hansi-theme-font:minor-latin;
mso-fareast-language:EN-US;}

The post IP Intensive: A Semester at Industry Canada - Policy-Making in Canada's Legal Epicentre appeared first on IPOsgoode.

(the Combating Counterfeit Products Act, previously known as ) passed third reading in the House of Commons on October 2, 2014, and is now before the Senate for further review. The Bill proposes a number of legislative changes to the Canadian IP regime. One of its main objectives is to create border security measures by establishing a system empowered with the tools necessary to detain shipments of suspected counterfeit goods before they cross into Canada. Like many pieces of proposed legislation, the Bill has faced scrutiny One particular aspect of the Bill that has attracted criticism relates to its detention provisions (Section 51.09[i]), which place the costs of detention on right holders (RHs) – the very individuals whose trademarks have been potentially infringed.[ii]

At first glance, this appears counter-intuitive. Yet if one considers the structure supporting the cluster of agencies charged with maintaining control at the border, this might be the most pragmatic means of addressing the monumental task of intercepting counterfeit goods.

Bill C-8 intends to open a channel of communication between RHs and border officers through a “request for assistance” (RFA) system (Section 51.04). Under the Act, RHs will be able to submit information regarding their registered trademarks to the Canadian Border Services Agency (CBSA) by filing an RFA. If a shipment is thereafter stopped at the border for any reason, officers can consult a database derived from these RFAs in order to identify any potential trademarks that the goods may be infringing. The RH is then contacted, at which point a 10 day detention period begins. The RH can then decide whether to pursue litigation against the potential infringer.

There are, of course, certain caveats associated with the detention of goods. However, the end result is that by opting to participate in the system as a means of enforcing their IPRs, the RH will be on the hook for any costs associated with the detention of suspicious shipments.

Some critics, such as the and , have suggested that the system should look first to the perpetrators of the crimes – that is, the importers/owners – to bear the costs. Pushing aside the notion that this might enable RHs to target importers in an effort to engage in surreptitious anti-competitive practices, this proposal overlooks the simple fact that protecting any trademark you might own constitutes a private right. RHs opt-in to the RFA system and any disputes arising from their attempts to enforce the protection of their IPRs should be initially borne by them. The reality is that if an RH responds to the CBSA and pursues litigation against the infringer, they can potentially recover any and all detention costs in court. If not, the 10 day detention period can be cut short if the RH indicates the goods are non-infringing (Section 59.09[1][c]) or declines to take action (Section 59.09[1][c]), at which point the goods are typically released (barring an instance of eventual forfeiture, a concept that is deserving of its own independent analysis).

From the importer’s perspective, some might question whether this system is by being harnessed as a means of engaging in anti-competitive practices by delaying imports unnecessarily. Although the Bill does not include specific remedies for such a scenario, a number of safety valves are in place to prevent this from occurring. First and foremost, the RH will be subject to any detention fees, meaning their anti-competitive practice will cost them from the outset. Second, pursuant to Section 54.04(3), the Minister retains the discretionary authority to refuse to renew RFA applications. Consequently, an RH who attempts to use the system in this manner could be precluded from enjoying continued access. Finally, the importer always has the option of pursuing litigation against the RH for a bad faith use of the system, which could allow them to recover damages (for example, based on the tort of economic interference).

that based on this positive obligation imposed on RHs, if an individual is unwilling to pursue litigation against an infringer, “the counterfeits will enter Canada.” Litigation costs are indeed a fair concern. However, this is a broad oversimplification of the process, and reflects the need to view the system in its totality rather than its constituent parts. There still exist various mechanisms separate and apart from Bill C-8 that empower officers to sustain the detention of counterfeit goods. Legislatively, the and the describe multiple grounds upon which officers must detain dangerous goods from entering the country. Administratively, the RCMP that can be used to identify certain counterfeit goods, such as packaging and place of origin, while the CBSA for dealing with different categories of goods, including the use of x-rays and density readers. With or without the input of RHs, border officers will have systems in place to deal with counterfeit goods to an extent.

It is important to remember that no piece of legislation is perfect. There will always be competing values and interests at play and concerns will persist and evolve into the future. By establishing a line of communication via the RFA system, Bill C-8 looks to ensure efficiency through collective expedience, which is precisely why the costs of detention must rest on those harnessing the system for their own benefit.

Jason Hayward is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program.  As part of the program requirements, students were asked to write a blog on a topic of their choice.

The post Considering the Combating Counterfeit Products Act: Who Should Ease the Burden of an Overburdened System? appeared first on IPOsgoode.