IP Osgoode Board Member, Sylvain Laporte, CEO of , opened the conference by highlighting the quality of research being conducted at Canadian Universities and Colleges. He emphasized that this research is as strong as that being generated by students in any other country and represents a great Canadian resource. Commissioner Laporte presented data demonstrating that while IP applications are increasing in Canada, this increase is small relative to �䲹�Բ��岹’s major trading partners. Although the underlying research is happening, it appears that Canada lags behind in its ability to capitalize on a strong innovation base using the intellectual property system. Commissioner Laporte discussed how commercialization can transform Canadian research and entrepreneurial talent into economic and social benefits for all Canadians. As such, a major goal of is to use IP and commercialization to leverage Canadian innovation in order to promote economic growth in Canada.

To highlight the importance of the student perspective on this issue, the first panel of the day consisted of three student researchers at various degree levels, who shared their first hand experiences with student innovation and commercializing their research. Razieh Niazi, a PhD candidate and CEO of . discussed her experience as a graduate student who has successfully commercialized her doctoral research. Razieh highlighted the process involved in patenting her research and establishing Kaypok Inc., which specializes in filtering, analyzing, and interpreting large data sets. Razieh also discussed the difficulties encountered while trying to run a company and complete her PhD. The time demands for running a start-up company are significant and have caused her to take a leave of absence from her studies. Furthermore, the strategy utilized in patenting her invention prevents her from publishing her research, a requirement for completing her PhD. Pasan Hapuarachchi, a law student at Osgoode Hall and entrepreneur stressed the importance of institutional infrastructure in supporting student inventors. Pasan also touched on the need to educate students and supervisors on all aspects of IP and commercialization.

Dr. Verkerk, a research associate at 91��ɫ, discussed many of the practical challenges facing student inventors. These challenges include everything from a simple lack of knowledge regarding IP to relationships with supervisors who are averse to the idea of student inventorship or commercialization of academic research in general. A prominent theme that emerged from the first panel is the need to properly educate students and supervisors about IP and the commercialization process.

The second panel shifted the discussion from the perspective of students and supervisors to that of the university. Dr. Phipps, Executive Director of Research & Innovation Services at 91��ɫ and Salvatore Paneduro, Research Officer, Faculty of Graduate Studies at 91��ɫ provided an overview of the existing infrastructure to help students acquire IP and commercialize their research. This system has resulted in several success stories including that of . Professor O’Connor of the University of Washington School of Law provided a perspective from south of the boarder and stressed the importance of the student-supervisor relationship in the innovation to commercialization process.

Bill Mantel, Assistant Deputy Minister of the Research, Commercialization & Entrepreneurship Division at the Ontario Ministry of Research and Innovation, delivered the luncheon keynote. Minister Mantel provided an overview of the infrastructure in place in Ontario for supporting academic innovation and its commercialization. Local environment is one of the greatest determinants of start-up company success and growth. The government is taking an active role in developing a local environment where small start-ups can flourish and help drive the commercialization of academic research.

The afternoon session featured a panel of speakers representing the industry perspective. Jeremy Laurin of tackled the differences between Canada and the US with respect to commercialization of academic research, stressing that Canada must foster an entrepreneurial culture in academia amongst students and faculty. Reza Yacoob of Sanofi Pasteur, David Laliberté of Microsoft and Bill Chan of IBM discussed the important contribution of student research to innovation in the industry sector. The discussion revealed that while relationships with academic institutes are improving many student inventors approach industrial partners with expectations that are too high.

Dr. Kozinski, Dean Lassonde School of Engineering, closed the conference by sharing his vision. Dean Kozinski is striving to create a program that brings together Osgoode Hall Law School, the Schulich School of Business and the Lassonde School of Engineering to create an environment that removes obstacles to innovation and promotes student-led innovation and commercialization.

After a day of stimulating discussion I believe the following thoughts aptly summarize the emerging themes. Canada has a great and largely untapped resource in the academic research being conducted at Canadian Colleges and Universities. Federal and Provincial governments have recognized this and are actively working to create the infrastructure necessary to support the commercialization of academic innovation. Academic institutes are also establishing programs to help student inventors obtain IP and commercialize their research. One area that I think requires attention is educating students and supervisors, about entrepreneurship, IP and commercialization. The majority of students appear to have little or no knowledge concerning these important topics. One recommendation discussed on several occasions was implementing mandatory IP and commercialization courses for graduate students. Regardless of whether or not this is the best solution, ensuring students and supervisors are properly educated on issues of IP, entrepreneurship and commercialization will be crucial to realizing goal of using IP and commercialization to leverage Canadian innovation to promote economic growth in Canada.

At the end of the day it was exciting to see voices from different sectors recognizing the important role students play in the innovation to commercialization process. It is important to keep the discussion alive and the ideas flowing. On this note, Toronto will be hosting the 5^{�ٳ���} in November 2013. The conference brings together stakeholders from many different areas to discuss important issues concerning Canadian science policy. This would be an excellent opportunity to keep the momentum rolling and I encourage all those interested to attend.

Sean Jackson is a JD Candidate at Osgoode Hall Law School.

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During my summer work experience I had gained a reasonable idea of what it was like to practice patent law at a firm. To round out my experience leaving law school I wanted to learn how practicing patent law at a firm compared to practicing as in-house counsel. The experience I gained at Teva was phenomenal and gave me significant insights into both the similarities and differences between the “firm” and “in-house” practices.

My internship happened to coincide with a patent trial involving ,�� (a generic pharmaceutical company) and  (a brand company). I was fortunate enough to have the opportunity to attend the trial and witness patent litigation first hand. Patent litigation is an aspect of patent law practiced by lawyers working at firms and in-house. I had the opportunity to not just watch the trial but discuss the issues with counsel representing both Teva and Apotex. In addition to the substantive legal issues being argued, I found the litigation strategies that were employed particularly interesting. The preparation and skill required to successfully argue complex legal and scientific issues on your feet is incredible. As someone who aspires to a career in patent litigation this was an inspiring experience.

The trial experience also gave me exposure to business aspects of the patent practice that are found more commonly in the in-house environment. Litigation is but one route to the final goal of a pharmaceutical company, bringing a product to market. Another route is to negotiate agreements that are mutually beneficial to both parties and litigation is often a catalyst for these negotiations. An enormous number of variables exist that must be considered in these negotiations and while some are legal in nature the vast majority are business related. Factors such as market value, market share, risk and costs must be considered for multiple scenarios when determining what type of settlement or agreement is best for the company’s objectives. Negotiations are often tied directly to litigation and how a particular case is going can provide leverage in the negotiation process. This was an aspect of patent law that I had not previously experienced and I found it very interesting to see business and law interacting in a practical and dynamic setting.

Another area that I was exposed to was patent law policy. The Canadian government is currently negotiating a new free trade agreement with the European Union. As part of these negotiations the European Union has proposed significant amendments to �䲹�Բ��岹’s patent law system as it relates to pharmaceutical products. Teva is very interested in these negotiations and has been actively discussing the issues with the Canadian government.  Having both generic and brand products, Teva is in a somewhat unique position in seeking a balanced approach to amendments to the patent system. I was able to discuss the proposed amendments and the policy behind making changes to the patent system with several members of Teva’s team who have engaged in discussions with members of the government. This gave me a unique perspective to reflect on various aspects of our patent system including its objectives, fundamental principles and the many forces influencing changes to the system. These discussions inspired me to focus my major research paper on �䲹�Բ��岹’s pharmaceutical intellectual property system and the changes being proposed by the European Union.

A significant portion of my time at Teva was spent drafting opinions regarding the validity and non-infringement of patents protecting brand name pharmaceutical products. A key aspect of Teva’s generic business is identifying patents it feels can be challenged in court as part of the regulatory approval process for generic products. I received great mentorship on how to assess patents, draft arguments challenging their validity and assess whether or not claims will be infringed by certain actions. Performing substantive analysis of this type is a common feature of practicing patent law at a firm or in-house making the experience I gained invaluable.

Overall, the experiences I gained and the people I had the privilege of meeting and learning from were phenomenal. In the future, when reflecting back on my law school experiences this internship will stand out above all others.

Sean Jackson is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode's .  As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Biologics play an important role in the Canadian health care system through their use in treating numerous diseases and medical conditions. of biologic drugs include antibodies and growth factors.

Patents and data protection covering biologic drugs in Canada are beginning to expire thereby creating opportunities to bring more affordable SEB versions to the market. It is important to distinguish between traditional generic pharmaceutical products and SEBs. The term SEB was specifically chosen by the Canadian government to clearly distinguish between the regulatory process and product characteristics for SEBs and traditional generic drug products.

A is a drug that enters the market subsequent to a version previously authorized in Canada and with demonstrated similarity to a reference biologic drug. A SEB relies in part on prior information regarding safety and efficacy that is deemed relevant due to the demonstration of similarity to the reference biologic drug and which influences the amount of and type of original data required.

Because of the significant differences between SEBs and traditional generic drug products Canadian health authorities created new guidelines to govern the approval of new SEBs. Guidance from Health Canada is particularly prudent since the do not contain specific regulatory mechanisms for approval of SEBs. In March 2010, Health Canada released its framework for the approval of SEBs in a document entitled “”. These guidelines indicate that manufacturers seeking approval of a SEB must file a new drug submission as opposed to an abbreviated new drug submission as is the case with traditional generic drug products. While SEBs require a new drug submission they may still rely in part on data from the reference product but may not state that the SEB and the reference product are bioequivalent or are clinically equivalent. The also include SEBs within their scope thus linking patent protection to the approval process and opening the door to patent litigation.

The Canadian pharmaceutical industry is no stranger to patent litigation under the Patented Medicine (Notice of Compliance) Regulations and it appears SEBs will be no different. In early 2012 Teva Pharmaceutical Industries Ltd. (Teva) applied for a Notice of Compliance in order to market a SEB consisting of the protein filgrastim. In their application, Teva made reference to a reference biologic product owned by Amgen Inc. (Amgen).  Amgen commenced a proceeding () under the against Teva seeking an order prohibiting the Minister of Health from issuing a Notice of Compliance for Teva’s filgrastim product prior to the expiry of (the “537 Patent). The 537 Patent is listed on the patent register against Amgen’s biologic filgrastim product. The 537 Patent will expire on July 31, 2024. According to Amgen’s Notice of Application, Teva has made a number of allegations against the 537 Patent including:

• Invalidity of certain claims due to (1) double patenting (2) invalid selection (3) material misrepresentation (4) anticipation (5) obviousness (6) missed conflicts and (7) lack of utility and lack of sound prediction;
• The 537 Patent is not entitled to claim priority from a United States application;
• Claim 43 is the only relevant claim; and
• Claims 12, 16-24, 26, 27, 29-42 and 48-82 will not be infringed.

This proceeding represents the first SEB litigation in Canada. While this litigation will only determine the issue of whether the Court should prohibit the Minister of Health from granting Teva a Notice of Compliance, it will be interesting to see if any novel legal issues arise regarding SEBs. Given that Canadian SEB litigation is in its infancy, this proceeding may have important implications for the future of SEBs in Canada. For an interesting article on �䲹�Բ��岹’s SEB market the reader is directed to the following .

Sean Jackson is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

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Sildenafil, the medicinal ingredient in Viagra, was initially pursued for its use in treating hypertension and in 1998 Pfizer received a patent claiming sildenafil and its use in treating hypertension and angina. Serendipitously, when testing sildenafil on male patients, it was observed that some patients experienced spontaneous erections. A subsequent study confirmed the result with sildenafil and Pfizer applied for a second patent claiming the use of sildenafil in the treatment of ED. Pfizer received the 446 Patent on July 7, 1998.  In 2007, Teva applied for a Notice of Compliance in order to market a generic version of Viagra. Pfizer responded by bringing a proceeding in the Federal Court for an order prohibiting the Minister of Health from granting approval until expiry of the 446 Patent. Teva alleged the 446 Patent was invalid for insufficient disclosure, obviousness and lack of utility. The Federal Court found the 446 Patent sufficiently disclosed the invention, was not obvious, had utility and prohibited the Minister of Health from issuing a Notice of Compliance. On appeal, the Federal Court of Appeal upheld the Federal Court's decision. Teva, unwavering in its belief that Pfizer’s Viagra monopoly was based on an invalid patent, sought and was granted leave to appeal to the SCC.

The main issue on appeal to the SCC was the sufficiency of the 446 Patent’s disclosure. The 446 Patent discloses that the invention relates to the use of a group of compounds in the treatment of ED.  Despite the fact that sildenafil was the only compound that Pfizer had tested and demonstrated to induce erections, Pfizer artfully drafted the patent to cover an estimated 260 quintillion compounds, effectively hiding the true invention. As described by Teva, Pfizer grew a forest to hide the leaf that was sildenafil.

Teva’s argument before the SCC was simple. In failing to disclose the identity of sildenafil as the only effective compound, Pfizer’s patent failed to fully and correctly disclose the invention as is required by .  Teva argued that by not disclosing the identity of sildenafil, the patent did not place the public in the same position as the patentee and forced the reader to embark on a minor research project to identify the true invention. The factums of both parties can be found .

The SCC agreed with Teva’s argument and stated “the public’s right to proper disclosure was denied in this case” and that the patent obscured the true invention. Justice LeBel wrote that as a matter of policy and sound statutory interpretation, patentees cannot be allowed to “game” the system in this way. The Court reiterated that the patent system is based on a “bargain”, the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. Justice LeBel stated that in this particular case, the disclosure failed to enable the public to make the same successful use of the invention as the inventor could at the time of his application, because it failed to indicate that sildenafil is the effective compound.

While it is far too early to conclude what impact this decision will have on Canadian patent law, several interesting implications emerge immediately. First, the decision paves the way for affordable generic Viagra to enter the Canadian marketplace. Secondly, the decision clarifies the disclosure requirement and ensures (hopefully) that patentees will not be able to “game” the patent system to hide their true inventions while retaining the benefits. Finally, it is interesting to note that in a proceeding aimed solely at determining whether the Minister of Health is permitted to issue a Notice of Compliance, the SCC provided the remedy of ruling the 446 Patent invalid. While only father time will reveal the full implications of this decision, it will undoubtedly help ensure the Canadian public receives a fair exchange in patent bargains.

Sean Jackson is a third year J.D. Candidate at Osgoode Hall Law School. A more detailed review of this case will appear in an upcoming edition of the Intellectual Property Journal (IPJ).

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At first glance this may appear as another case involving a generic pharmaceutical company attempting to gain a share of the market for a successful brand name drug. After reading the of both sides and examining the issues more closely it becomes clear that there is much more at stake and the decision could have important implications for the patent system as a whole.

One of the central arguments being advanced by Teva is that the 446 patent is invalid based on insufficient disclosure.  states, “The specification of an invention must … correctly and fully describe the invention and its operation or use as contemplated by the inventor.”  This requirement strikes directly at the heart of the patent bargain theory, namely, that in exchange for a limited term monopoly the patentee must completely disclose the invention to the public so that it may practice the invention once the patent has expired.

The disclosure of Pfizer’s 446 patent explains that the invention relates to the use of a compound of formula (I) or a salt thereof in the treatment of erectile dysfunction.  The first claim describes formula (I), which gives rise to 260 quintillion possible compounds. The following four claims are for progressively smaller ranges of compounds while claims 6 and 7 each pertain to a single compound.

Teva’s disclosure argument relies on the following facts: (1) that neither the disclosure nor the claims state that claim 7 contains sildenafil citrate, the compound marketed and sold as Viagra; (2) that sildenafil citrate is the active compound; and (3) that despite Pfizer’s knowledge, it was not disclosed that the remaining compounds in the patent had not been found to treat erectile dysfunction.  Teva contends that because, as of the patent filing date, Pfizer knew that sildenafil citrate was the only effective compound, they were required by law to disclose this in the patent.  Instead of doing this, Teva asserts that Pfizer artfully worded the patent so as to hide the true identity of its active compound from the public.

In essence, Pfizer counters by stating a patent specification includes both the descriptive portion and the claims and since an invention is defined by the claims it has met the statutory requirements of disclosure by claiming sildenafil citrate as a single compound in claim 7 of the 446 patent.

In addition to seeing how the SCC deals with the disclosure issue it will be interesting to see how, if at all, the SCC handles the policy implications that are at stake.  Should the Court rule in favor of Pfizer and hold that the disclosure of the 446 patent is sufficient the decision could signal a green light for clever patent lawyers and agents to skillfully draft patents so as to hide crucial information from the public (and competitors) thereby giving the patentee a slight advantage in what can be extremely competitive marketplaces.  As such, there will be much more than a share of the erectile dysfunction marketplace at stake when the SCC decides the fate of the Viagra patent.

Sean Jackson is a JD Candidate at Osgoode Hall Law School.

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�䲹�Բ��岹’s current drug approval system is administered under the .  Under this system a pharmaceutical company must obtain approval from the Minister of Health in the form of a Notice of Compliance (NOC) before a new drug can be sold in Canada.  To obtain a NOC an applicant (typically a research based pharmaceutical company or “innovator”) must submit a new drug submission (NDS) containing data that establishes the safety and efficacy of the drug.  Once a NOC has been issued, the company may list patents related to the drug on the patent register.  When a generic drug manufacturer wishes to market a drug it must also obtain a NOC.  Where the generic manufacturer can satisfy the Minister of Health that its drug is pharmaceutically equivalent to a drug that has already obtained approval, they may file an abbreviated new drug submission (ANDS) and rely on the safety and efficacy data filed by the innovator in the original NDS.  Data within an NDS is covered by a data protection regime that prevents a generic manufacturer from filing an ANDS for 6 years and a NOC being issued for 8 years.  In addition to the data protection hurdle, a generic manufacturer must also address the patents listed on the register before a NOC will be granted.  The patents can be addressed by convincing the Minister of Health that (1) the patents will not be infringed,�� (2) the patents are invalid or (3) that it will wait until the patents have expired before going to market.

In order to bolster �䲹�Բ��岹’s intellectual property rights and harmonize them with European standards, the EU has proposed three changes:

1. Provide innovator companies with fair treatment under the PM(NOC) Regulations by providing them with the same right of appeal currently afforded to generic manufacturers;
2. Extend the term of data protection; and
3. Adopt patent term restoration (PTR), a mechanism that allows a patentee to “recoup” some of the patent term lost during drug development and regulatory approval.

The association of �䲹�Բ��岹’s leading innovator drug companies () supports the proposed changes and encourages their adoption by the Canadian government.  Rx&D claim that increased intellectual property rights will allow them to invest more money into research and development leading to new drugs for Canadians.  Rx&D is not the only group in favour of these proposals. Lawyers from Norton Rose published a addressing why Canada should adopt these changes and strengthen intellectual property protection.  The Norton Rose report suggests that drug approval rates in the EU are faster than those in Canada and that by harmonizing �䲹�Բ��岹’s system with that of the EU, Canadians will have faster access to new drugs.  The report also contends that harmonization would not extend the total market exclusivity granted to Canadian drugs in the majority of cases.

�䲹�Բ��岹’s oppose the EU’s proposed changes.  It is their position that increased intellectual property rights will result in greater market exclusivity for brand name pharmaceuticals, delays in the emergence of cheaper generic drugs and ultimately greater costs to �䲹�Բ��岹’s health care system.  This position is supported by a demonstrating that if all three proposals are adopted it could cost Ontario taxpayers up to $1.2 billion annually.  Furthermore, the that provincial governments “work with the federal government to ensure that Ontario’s interests in expanding use of generic drugs are not undermined by a Canada-European Union Free Trade Agreement.”  The report also stated that the drug patent proposals advanced by the EU “could cost Ontario dearly since generic drugs would be kept off the market for a longer time.”   Generic pharmaceutical companies also suggest that increased intellectual property rights will not result in greater investment in research and development by innovator companies.

With CETA negotiations set to conclude sometime in 2012, the Canadian government will be forced to make some difficult decisions, given the importance of health care and the tough economic times facing Canadians and Canadian companies alike.

Sean Jackson is a J.D. candidate at Osgoode Hall Law School.

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An ugly patent troll has reared its head again, this time targeting Amazon.  With only a few weeks remaining before the release of its much-anticipated Kindle Fire, Amazon has been targeted by a patent troll.  On October 7, 2011, Smartphone Technologies against Amazon in a Texas court claiming the Kindle Fire infringes several of its patents.  While patent infringement suits are common occurrences in the high tech field, what makes this particular case troubling is that an infamous patent troll is lurking behind the scenes.

, a firm that actively buys and licenses patents through its subsidiaries, owns Smartphone Technologies.  Acacia’s reputation as a patent troll appears to be well deserved as Smartphone Technologies has pursued patent infringement cases against both Apple and Research in Motion in recent years.

The problem with is that these companies acquire vast arsenals of patents, which are used to make money by licensing to other companies or pursuing patent infringement claims.  What distinguishes patent trolls from other companies is that patent trolls often have no intent to develop and commercialize the technology covered by the patent.  To make matters worse, patent trolls frequently rely on patents that are frivolous and lacking merit.  Patent trolling is a booming business and companies have adopted elaborate strategies to take advantage.  For example, some corporations disguise their trolling practices in order to avoid public scrutiny.  This is accomplished by confining their trolling practices to non-performing entities while at the same time having other performing entities.

In the action against Amazon, Smartphone Technologies makes claims to several technologies that appear to be commonly used in smartphones and tablets. For example, one of the patents () supposedly infringed by Amazon’s Kindle Fire makes the following rather broad claim to what appears to be a touch screen:

“A method for software control, comprising: displaying a graphic representing a set of one or more computer functions on a portion of a touch-sensitive screen, wherein the touch-sensitive screen is coupled to at least one processor to detect and interpret contact with the screen; …”

Another apparent infringement relates to a patent, originally owned by Palm, for displaying multiple calendars on a personal digital assistant. The activities of patent trolls can have serious economic consequences on companies such as Research In Motion, which had to pay out a in a case against another patent troll, NTP.

In light of the damage they cause one is left to wonder if anything can be done to stop patent trolls.  While government intervention would seem like the most plausible solution this is unlikely to occur any time soon given the slow nature of legislative reform.  Companies confronted by patent trolls are often left with the option of settling out of court and paying a licensing fee or slugging it out in court.  Apple has taken a firm stance against Acacia and is prepared for a costly court battle.  It remains to be seen whether Amazon will yield or take up arms against the patent troll that is Acacia.

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In the International Intellectual Property Alliance’s () , the IIPA recommends that Canada retain its spot on the priority watch list.  The IIPA described Canada as “… standing virtually alone among developed economies in failing to bring its laws up to global minimum standards for the digital networked environment.” 

Now don’t fret, our coastal waters are not being threatened by the swashbuckling decedents of the notorious Blackbeard.  Canadian piracy is of the digital variety.  The eye patch wearing, peg legged pirates of years past have been replaced with children, businessmen and yes, even grandparents who are illegally copying and distributing movies, music, software and books over the Internet.  Historically, Canada has not always been a safe haven for Internet pirates.  In fact, over fourteen years ago Canada played an important role in the negotiation of the World Intellectual Property Organization () Internet Treaties.  Since then however, Canada has developed a negative reputation with respect to Internet piracy.  In the International Intellectual Property Alliance’s () Canada maintained its infamous reputation as the IIPA recommended that Canada retain its spot on the priority watch list.  While the IIPA report acknowledges �䲹�Բ��岹’s current attempt at reforming copyright law, it highlights numerous issues with the proposed reform, draws attention to enforcement issues and outlines numerous recommendations for bringing Canadian standards up to par.

�䲹�Բ��岹’s most recent attempt at reforming copyright law comes in the form of .  The IIPA report states that while it supports the objectives of Bill C-32, the actual text is ineffective in meeting these objectives.  Among the numerous critiques of Bill C-32, there are three notable issues addressed by the IIPA.  According to the report, while the TPM provision finally brings Canada in line with current international standards, the proposed exceptions have the potential to do more harm then good and should only be used in very limited circumstances and for limited periods of time.  In addition, the IIPA claims the proposed section for dealing with online piracy could fall significantly short of its objectives by creating immunities for network service providers without providing incentives for them to cooperate with copyright owners.  Finally, the IIPA takes significant issue with the statutory damages proposed in Bill C-32.  When an individual is found guilty of copyright infringement for non-commercial purposes the maximum fine is $5,000, regardless of how many files were copied and/or distributed.

Another significant problem regarding piracy in Canada identified by the IIPA report is enforcement.  Specifically, the IIPA draws attention to Canadian border security, or the lack thereof, and how easy it is for pirated material to enter the country.  According to the IIPA, “No Canadian enforcement authority currently has adequate resources, training and legal tools to tackle the problem effectively”.  A porous border allows individual as well as organized groups of pirates to set up shop within �䲹�Բ��岹’s borders.  From within this legislative safe haven, pirated material can be distributed illegally around the world.  It would seem therefore that the first step in fighting Internet piracy begins with grass roots law enforcement.

In addition to highlighting its many concerns with the current Canadian copyright landscape, the IIPA report made several recommendations.  With respect to legislative reform, the new law should bring Canada into full compliance with international standards, provide incentives for Internet service providers to cooperate with copyright owners and establish clear liability with effective remedies.  Furthermore, the reform should ensure that any exceptions to copyright protection conform to international standards.  To deal with the aforementioned enforcement issues, the IIPA suggests that legislative changes should be made to empower customs officials to seize pirated material without a court order.  This legislative change should be accompanied by an increase in resources devoted to anti-piracy enforcement at the boarder and within Canada.

In its entirety, the IIPA’s report serves as yet another notice that reform is needed to Canadian copyright law and highlights the problems associated with the governments proposed reform outlined in Bill C-32.  A dense fog surrounds the fate of copyright reform in Canada.  It is unclear whether the current government will heed to this advice or if they will even have the chance as Bill C-32 may be forced to walk the plank with a spring election looming.

[Note:  This post was revised on March 22, 2011 to clarify that the IIPA made recommendations to the U.S. Trade Representative (USTR) that Canada should continue to be placed on the USTR's watch list.]

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