“Counterfeit and pirated goods are an increasingly global problem that requires a globally coordinated solution,” said Minister Fast. “We all have an interest in combatting counterfeiting and piracy because these activities cost billions of dollars each year in revenue and trade losses, which translates into higher prices, lost income and lost jobs for people employed in a range of industries—from film and pharmaceuticals to electronics. Counterfeit goods also pose a real threat to the health and safety of people because the producers of goods such as drugs and auto parts evade the rigorous rules, standards and guidelines that are in place to protect consumers.”

ACTA will establish new international standards for enforcing intellectual property rights. It will cover three areas: improving international cooperation, establishing best practices for enforcement and providing a more effective legal framework to address the problem of counterfeiting and piracy. It will also give innovators, artists and entrepreneurs enhanced measures to ensure their creations and associated rights are protected. Alongside Canada, Australia, Japan, Morocco, New Zealand, the Republic of Korea, Singapore and the United States also signed the agreement, which was negotiated by 38 parties in total.

Following the signature of ACTA, the Government of Canada will develop and introduce the necessary legislation to implement the agreement. The government has already taken steps to enforce and defend intellectual property rights and help balance the needs of creators and users by reintroducing its Copyright Modernization Act (Bill C-11) in Parliament on September 29. The bill informed and guided Canada’s approach to the ACTA negotiations.

“The signing of this historic international agreement and our government’s reintroduction of copyright legislation demonstrates Canada’s commitment to combatting counterfeit and pirated goods, and protecting innovation- and knowledge-based prosperity, which are key to Canada’s future economic success,” said Minister Fast.

A backgrounder on ACTA can be found here. A summary of the agreement which I prepared when the text of ACTA was agreed to can be found here.

Signing ACTA is a step towards meeting the significant counterfeiting problems identified by the RCMP in A National Intellectual Property Crime Threat Assessment, 2005 to 2008. The porous nature of our borders and the need to upgrade our border controls to world standards to reduce counterfeiting and piracy in Canada has been noted by two parliamentary committees, three Canadian trade associations, and our major trading partners. Parliamentary Standing Committee on Public Safety and National Security, Parliamentary Standing Committee on Industry, Science and Technology, Ontario Chamber of commerce, Canadian Chamber of Commerce, U.S. Trade Representative,  U.S. Congressional Anti-Piracy Caucus, European Union, and Canadian Anti-Counterfeiting Network (CACN).

1. On Saturday, October 1, the Ministry of Foreign Affairs of Japan will hold the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA) at Iikura Guest House, Ministry of Foreign Affairs.
2. The Agreement was inspired in significant part by Japan’s proposal at the G8 Gleneagles Summit in 2005 to create a new international framework against counterfeit and pirated products, in the context of the heightened awareness of the need for a higher degree of intellectual property protection. Its negotiation has been led by a strong initiative of Japan, the United States and other key partners.
3. The negotiation has been carried out among Australia, Canada, the European Union and its Member States, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States, and reached a general agreement at the negotiation meeting held in Japan in October 2010, followed by the completion of technical and translation work in April 2011.
4. The signing ceremony will be attended by the representatives of all the participants in the ACTA negotiations, and those that have completed relevant domestic processes will sign the agreement. The agreement is open for signature until May 1, 2013.
5. On the preceding day, Friday, September 30, an international symposium entitled, “Global Intellectual Property Strategy and the Reconstruction from the Great East Japan Earthquake: Eliminating Counterfeit and Pirated Products through ACTA”, will be held in Sendai as a side event of the signing ceremony.

The report recognized that “The key technology for IP infringement is the internet. Its increasing importance as a medium for infringing copyright and selling fakes raises concerns across all parties. The web is a global marketplace for those wishing to engage in IP crime, just as it is for legitimate traders, and it is often hard for consumers to tell the two apart. It has triggered notable changes in how goods are transported and sold to consumers and presents new challenges for enforcement officers as traders can sell to UK based consumers from across the globe.”

The UK Government expressed its commitment to tackling both piracy (criminal infringement of copyright) and counterfeiting (willful infringement of trade marks). The objectives are to: reinforce the attractiveness of the UK as a place to do business by protecting legitimate marketplaces and providing a strong platform for business growth; make the UK unattractive to criminals seeking to engage in IP crime; and protect consumers from the considerable harms posed by dangerous and untested fakes and by wider criminality. To do this the UK aims to prevent and deter criminality; disrupt trade in fake and pirated goods, online and offline, at various stages of the supply chain; and reduce incentives for IP crime, for example by confiscating criminals’ assets.

One of the significant focuses of the report was on the use of technology to make counterfeits harder to make and easier to detect. The report suggested that technological protection systems could be used to make it harder to copy products and easier to spot fakes.

There may be scope for greater progress. Technology is constantly evolving – with new and more cost effective track and trace technologies, the capacity to check the legitimacy of alcohol using a mobile SIM card or to offer an online service which lets consumers check the legitimacy of retailers. Opportunities may emerge to improve the systems used by rights holders, retailers and to involve consumers more in their use.

Another significant focus involved obtaining improved cooperation from intermediaries such as domain name registries and providers of online services such as marketplaces/ trading platforms, advertising and card payment facilities. Their potential role was described as follows:

Other businesses such as market operators, shipping and courier companies and those who support the infrastructure of the world wide web (like Nominet) and deliver e-services like auction sites and online storage facilities are relevant to IP crime issues. We must make new efforts to bring these parties into effective dialogue…

Improved coordination, including bringing new partners such as Nominet and payment services firms into dialogue on tackling IP crime and better collaborative working on investigations and intelligence flows, both in the UK and internationally. This includes building awareness among partners about which other bodies are involved in tackling IP crime and what is being done…

Providers of online services such as marketplaces/ trading platforms, advertising and card payment facilities have a role in tackling IP crime by reducing the ability of criminals to profit from their crimes…

The report noted that the UK Metropolitan Police’s e-crime Unit are already working with “Nominet and others to remove infringing sites at the domain name level, while the City of London Police have been engaged with rights holders and card payment companies to disrupt sites run by criminals.”

The UK Intellectual Property Office (IPO) is planning to develop an action plan for tackling counterfeiting and criminal piracy online to identify the key threats and bring new industry and enforcement partners into mainstream dialogue with government partners. “This will include work on websites that are predominantly used for digital piracy, sales via auction sites and pop up websites of pirate and counterfeit goods, and the challenges posed by the increased use of small parcels bought online from overseas to import infringing goods.”

The UK’s approaches to combating IP crime are worthy of study here in Canada. According to a recent report published by the RCMP IP crime is a serious problem in Canada. According to the report, the total retail value of seizures reported by the RCMP alone, from 2005 to 2008, was estimated at more than $63.6 million, highlighting that IP crime is a profitable line of business.

Canada has some civil causes of action that can be used against counterfeiters as the recent case Louis Vuitton Malletier S.A. v. Singga Enterprises (Canada) Inc., 2011 FC 776 demonstrates. But, the cases under existing laws are expensive to bring, take a long time to get to court and the awarded damages are frequently uncollectable.

Canadian copyright and trade-mark laws have been criticized by domestic stakeholders and majors trading partners for failing to address IP crime. Among the major criticisms is our failure to upgrade our border controls to world standards. This has been noted by a Parliamentary Standing Committee on Public Safety and National Security, a Parliamentary Standing Committee on Industry, Science and Technology, the Ontario Chamber of Commerce, the Canadian Chamber of Commerce, the U.S. Trade Representative, the U.S. Congressional Anti-Piracy Caucus, the European Union, and the Canadian Anti-Counterfeiting Network (CACN).

The Liberal Digital Plan says the following about copyright:

Fair balance Between Creators and Consumers.

Digital technology offers many new opportunities, but enjoying content without compensating its creators shouldn’t be among them. At the same time, consumers should have freedom for personal use of digital content they rightfully possess. Liberals have worked to pass effective copyright legislation, including a private copying compensation fund instead of any new tax on consumers.

Flourishing Canadian Content, Culture and Identity in Digital Media.

Canadians should continue to have access to ever more Canadian stories and Canadian content in the Digital Canada of the future. New media should provide vibrant and rewarding new avenues for expression by Canadian artists. The public broadcasters, Radio Canada and the CBC have crucial roles to play in achieving these objectives.

On top of existing investments of $100 million per year for the Canada Media Fund, a Liberal government will support more creation of Canadian content by doubling the annual budget of the Canada Council for the Arts, from $180 million to $360 million over the next four years, and restore the Promart and Trade Routes international cultural promotion programs, increasing their funding to $25 million per year.

During the online chat, Mr. Garneau made a few additional remarks concerning the Liberal party’s position on copyright:

Would the Liberals exclude copyright from any EU trade deal?

No:  “we would exclude it from the EU deal if not in best interest of Canadians”.

Would the Liberals enshrine the controversial six factor test for defining fairness adopted by the Supreme Court in CCH in a new Bill?

The Liberals are willing to explore options: “Sure that is definitely a good option but we are still open to other options”.

Do the Liberals support a digital lock exception that permits circumvention for fair dealing purposes such as research and private study?

The Liberals “oppose the digital lock provisions as currently written in C-32” and “support an exception for people using the material they bought for non infringing purposes”.

Do the Liberals support notice and notice or are they open to other options?

The Liberals currently support notice and notice: “At this point we are with N&N”.

These revelations about the FTA and NAFTA were part of Prof. Geist’s prepared opening remarks to the Parliamentary Standing Committee on International Trade on the subject of CETA, the Canada EU Comprehensive Economic and Trade Agreement. Prof. Geist appeared before the Committee on February 15, 2011 to warn them against including copyright as part of a potential trade agreement with the EU.

Prof. Geist told the Committee that “The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which conventionally addressed market entry, investment, and tariff issues.” He went on to testify that:

“copyright provisions were not part of the Canada – US FTA or NAFTA. They were largely excluded or kept very minor in our other more recent trade agreements. CETA represents a very significant change that is part of a broader effort to pressure Canada to change its copyright laws.”

Prof. Geist’s testimony to the Parliamentary Standing Committee about the FTA and NAFTA was inaccurate. Both the FTA and NAFTA deal with copyrights and other intellectual property rights.

The FTA, which was agreed to in 1987, has two provisions dealing with copyright. Article 2006 of the FTA requires each Party to provide copyright holders with a right of equitable remuneration for retransmissions of copyrighted programming to the public. See, CTV Television Network Ltd. v. Canada (Copyright Board ), [1993] 2 F.C. 115, Canadian Wireless Telecommunications Assn. v. SOCAN, 2008 FCA 6 which explain the FTA’s role in the legislative history of the Copyright Act.

Under Article 2004, the Parties also agreed to cooperate in the Uruguay Round of multilateral trade negotiations and in other international forums to improve intellectual property. The Uruguay Round was the 8th round of Multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade (GATT). These trade negotiations resulted in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The TRIPs agreement which Canada has ratified includes many provisions requiring member states to protect copyrights and other intellectual property rights.

NAFTA, which came into force in January 1994, contains very important provisions related to copyright and other intellectual property rights. For example, Articles 1705 and 1706 prescribe minimum levels of protection for works and sound recordings. Article 1714 prescribes minimum standards for enforcement of copyrights and other IP rights. Articles 1716, 1717, and 1718 deal with provisional measures, criminal remedies, and border enforcement related to copyrights and other IP rights. See, the following cases which used NAFTA as an aid to construing the Copyright Act because of Canada’s international copyright obligations arising from this treaty: Tele-Direct (Publications) Inc.v. American Business Information, Inc.) 134 F.T.R. 80, CCH Canadian Ltd. v. Law Society of Upper Canada 2002 FCA 187, Édutile Inc.v. Automobile Protection Assn, 181 F.T.R. 160.

Was Prof. Geist accurate when he told the Parliamentary Standing Committee that “copyright provisions were not part of the Canada – US FTA or NAFTA”? Clearly not.

Was Prof. Geist accurate when he told them that “The inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations”? No he was not. The facts prove otherwise. The FTA, NAFTA, and TRIPS, are three examples showing that Canada has a history of including copyright and other intellectual property rights as part of major international trade agreements. Canada’s trading partners including the EU also legitimately view intellectual property as important and want to make harmonization of intellectual property rights part of bi-lateral and multi-lateral trade agreements. Would it be a dramatic shift in Canada’s trade policy to include such provisions in CETA? No it would not.

It is widely accepted in the EU that “infringements of intellectual property rights cause widespread economic harm and that a “significant number of products infringing intellectual property rights now pose a real threat to consumer health and safety.” Further, the proper protection of intellectual property rights “is fundamental to stimulate innovation and culture in a competitive, wealth-generating, knowledge-based economy.”

The report found that the Directive had led to progress in combating intellectual property infringement by, among other things, creating high European legal standards to enforce different types of rights that are protected by independent legal regimes such as copyright, patents, trademarks and designs. However, it also found that despite an overall improvement of enforcement procedures, “the sheer volume and financial value of intellectual property rights infringements are alarming.” One reason given “is the unprecedented increase in opportunities to infringe intellectual property rights offered by the Internet.”

The Internet and digital technologies have added an extra, challenging dimension to enforcing intellectual property rights. On the one hand, the Internet has allowed creators, inventors and their commercial partners to find new ways to market their products. On the other hand, it has also opened the door to new forms of infringements, some of which have proved difficult to combat.

The multi-purpose nature of the Internet makes it easy to commit a wide variety of infringements of intellectual property rights. Goods infringing intellectual property rights are offered for sale on the Internet. Search engines often enable fraudsters to attract Internet users to their unlawful offers available for sale or download. File-sharing of copyright-protected content has become ubiquitous, partly because the development of legal offers of digital content has not been able to keep up with demand, especially on a cross-border basis, and has led many law-abiding citizens to commit massive infringements of copyright and related rights in the form of illegal up-loading and disseminating protected content. Many online sites are either hosting or facilitating the online distribution of protected works without the consent of the right holders. In this context, the limitations of the existing legal framework may need to be clearly assessed.

The EU Directive gives a broad interpretation to the concept of “intermediaries” to include all intermediaries “whose services are used by a third party to infringe an intellectual property right”. This means that intermediaries with no direct contractual relationship or connection with the infringer are subject to these measures provided for in the Directive.

Nevertheless, the report found that “uncertainties remain over intermediaries and the specific measures to which they are subject by contributing to or facilitating an infringement, regardless of their liability.” The report noted that “Internet platforms such as online market places or search engines can also play an important role in reducing the number of the infringements, in particular through preventive measures and ‘notice and take-down’ policies.”

Other EU Directives also employ a variety of means to incent or procure ISPs to cooperate with rights holders to reduce online infringement. For example, under the EU Directive on ecommerce (as in the USA, Australia and elsewhere), ISPs cannot obtain the benefit of safe harbors (exceptions from liability) when they provide hosting services, if they have actual or constructive knowledge that their systems are being used to facilitate infringement and they fail to remove or disable access to the infringing conduct. EU Member States must also under Article 8(3) of the EU Copyright Directive give their courts the power to grant injunctions against ISPs to enjoin the use of their systems by third parties who use them to infringe copyright. This jurisdiction has been used in countries such as Italy and Belgium to require ISPs to block foreign pirate sites such as The Pirate Bay.

Notwithstanding these laws, the report referred to the findings in the Staff Working Paper that accompanied the report indicating that the currently available legislative and non-legislative instruments were not powerful enough to combat online infringements of intellectual property rights effectively. The report stated that “Given intermediaries’ favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.”

The report also considered whether there was a need to increase damages in IP infringement cases to ensure that they play a dissuasive role on infringements. The report observed that “Measures, procedures and remedies provided for by the Directive must be effective, proportionate and dissuasive. However, “present, damages awarded in intellectual property rights cases remain comparatively low.” The report explained that damages need to be high enough to really be dissuasive.

According to information received from rightholders, damages awards do not currently appear to effectively dissuade potential infringers from engaging in illegal activities. This is particularly so where damages awarded by the courts fail to match the level of profit made by the infringers.

The main aim of awarding damages is to place the rightholders in the same situation as they would have been in, in the  absence of the infringement. Nowadays, however, infringers’ profits (unjust enrichment) often appear to be substantially higher than the actual damage incurred by the rightholder. In such cases, it could be considered whether the courts should have the power to grant damages commensurate with the infringer’s unjust enrichment, even if they exceed the actual damage incurred by the rightholder.  Equally, there could be a case for making greater use of the possibility to award damages for other economic consequences and moral damages.

In cases where the infringer is a legal person and the rightholder fails to obtain damages because the infringer has no assets, has been liquidated or is in any other way insolvent, an assessment could be made as to whether the rightholder is able to claim damages from the company’s managing director(s) under national law, and if so under what conditions.

The report acknowledged that infringements of intellectual property rights taking place outside of the EU also constitute a major source of concern. The report stated that the Commission is addressing them in different ways, for instance by including ambitious chapters on intellectual property rights in bilateral trade agreements (such as CETA) and through participation in international initiatives such ACTA.

The EU report provides an interesting lens to compare the divergent approaches of Canada and the EU when it comes to intellectual property rights protection. For example, as noted above, the EU already has copyright laws that promote cooperation between ISPs and rights holders. This is achieved, inter alia, by conditioning ISP safe harbors on ISPs not having knowledge of infringement or taking down or disabling infringing content when knowledge of infringement becomes apparent and through measures like Article 8(3) of the EU Copyright Directive. Yet, the EU has recognized that effective measures will require even more active cooperation by ISPs.

By contrast, under Bill C-32, ISPs have almost no legal incentives to cooperate with rights holders. For example, the Bill does not condition the hosting safe harbor on ISPs taking steps to remove or disable access to infringing content even if infringement is apparent (except in the rare case where there is a take down order of a court). Moreover, there is nothing comparable to Article 8(3) of the Copyright Directive. There is only the relatively ineffective requirement to pass on notices of infringement under the notice and notice system.

The EU report also stresses the importance of damages to act as a deterrent against infringements. By contrast, Bill C-32 would make statutory damages unavailable against the most virulent pirates on the internet who are liable for enabling infringement. The Bill also could make statutory damages unavailable against pirate sites and services and other infringers which operate without motive of commercial gain.

Unfortunately, Prof. Geist himself fails to accurately separate fact from fiction when it comes to explaining Bill C-32. As examples are his assertions about legal protection for TPMs. Prof. Geist continues to contend that the legal protection of TPMs in Bill C-32 is not required by international law and in particular the WIPO Internet Treaties. In particular, he repeatedly and inaccurately asserts that:  

• The legislative history and international practice related to the WIPO Treaties demonstrates that Bill C-32  is more stringent than what the WIPO Treaties require because (i) there is no treaty obligation to protect access-control TPMs; (ii) there is no treaty obligation to prohibit the manufacture and distribution of circumvention tools; and (iii) the treaties can be complied with by prohibiting circumvention only when it is for an infringing purpose and by permitting circumvention of TPMs and trafficking in circumvetion tools for any other purpose including making private copies and to engage in other “consumer rights”.
• The “Bill C-32 model is one of the most restrictive approaches in the world” .
• Most of the world does not protect TPMs in the robust way C-32 does.
• Bill C-32 provides more extensive  protection for TPMs than does the DMCA.
• A leaked EU document related to ACTA shows that access control TPMs do not need to be protected and are not protected in the EU.

I previously pointed out Prof. Geist’s inaccuracies on the subject of TPMs including the inaccurate assertions made above in various blog postings including here, here, here, here, here, here, and here. I have not been the only person to do so, however. Dr. Mihaly Ficsor, the Assistant Director General of WIPO at the time the treaties were negotiated, has also written several papers criticizing Prof. Geist’s opinions on the minimum requirements necessary to comply with the WIPO Treaties. Prof. Geist disagreed with Dr. Ficsor’s views in his paper “The Case for Flexibility in Implementing the WIPO Internet Treaties” published in From ‘Radical Extremism’ to ’Balanced Copyright:’ Canadian Copyright and the Digital Agenda .

In a comprehensive paper just published entitled “TPMs and Flexibility (’The Ability of Bending Without Breaking’) – Why Should the TPM Provisions of Bill C-32  Protect Access Controls and Prohibit ‘Preparatory Acts”, Dr. Ficsor responded to Prof. Geist, fully rebutting all of the assertions summarized above as well as other claims made by Prof. Geist about the WIPO Treaties including its history and the international practices concerning its implementation.  Prof. David Vaver, in introducing Dr. Ficsor’s paper on IP Osgoode, says, “The paper restates Dr Ficsor’s views that Bill C-32 correctly includes both forms of control in its TPM provisions and deals comprehensively with Professor Geist’s criticisms.”

Dr. Ficsor’s paper, contains a summary of his conclusions in which he highlights the reasons that Prof. Geist’s claims about the WIPO Treaties and Bill C-32 are not accurate:

(1)   Prof. Geist does not pay sufficient attention to the key interpretation source of any treaty provisions; namely to their plain language (the ordinary meaning of their terms). . . .[I]t may be deduced from this key source of interpretation alone that

(i)     the Internet Treaties’ TPM provisions cover all categories of TPMs and not only some of them; thus, they apply to both access-control and copy-control measures – contrary to M. Geist’s allegation that they do not apply for access-control measures;

(ii)   no adequate protection may be provided for TPMs as prescribed in the Treaties without establishing a defense line already in the stage of so-called “preparatory acts” – contrary to M. Geist’s allegation according to which it is sufficient to simply prohibit the very acts of circumvention (in the stage of which alone there is no real hope anymore for such protection);

(iii)  an adequate, rather than more than sufficient, level of protection requires appropriate norms to guarantee the applicability of exceptions to copyright justified by relevant public interests; this, however, requires cautious regulation duly balancing between the various interests and it cannot take the form of simply providing direct free access for any beneficiaries of any exceptions in any possible format by eliminating the applicability of any kind of TPM – contrary to Prof. Geist’s allegation according to which the purpose of the application and protection of TPMs, and through it, the adequate protection and normal exploitation of copyright, could be achieved also by allowing the circumvention of TPMs for anybody in order to directly enjoy any exception (for example, a “private copy” exception by each member of the huge Internet population, and in fact anybody who wants at all a copy) or to get access to works otherwise (for example, in order to receive freely any online communication of works citing the fact that such acts are not directly controlled by copyright).

(2)    Prof. Geist insists on flexible interpretation and implementation of the TPM provisions, and alleges that those who do not agree with him – such as me – are the advocates of inflexible interpretation and implementation. The truth is that everybody – including myself, as I have clearly stated – is of the view that the TPM provisions offer flexibility. The difference between us is only that, while Prof. Geist – as he quite clearly states – is in favor of an unlimited flexibility, myself and others are of the view that the requirement of adequate protection sets limits in this respect.

(3)   The “preparatory work” (“negotiation history”) of the Treaties confirms the interpretation reached on the basis of the plain language of the TPM provisions in the sense indicated above. During the preparation of the Treaties, there were animated debates, in certain stages of which there were some delegations which had doubts about the need and justification of TPM provisions. However, contrary to Prof. Geist’s suggestion, it is irrelevant from the viewpoint of the interpretation of a unanimously adopted text requiring adequate protection of TPMs that previously there were some delegations which at that time were not yet ready to support such protection by the Treaties. More importantly, in the debates, again contrary to what Prof. Geist suggests, no delegation made any proposal or comment to the effect that access-control TPMs should be excluded from protection (the comments aimed at taking care of the applicability of certain exceptions, but it is a different thing than just allowing general and direct free access to digital contents by denying protection for the measures controlling regulated access that is also normal in the traditional analogue world). Furthermore, it also transpires from the preparatory documents and the reports that, where there were debates regarding “preparatory acts” (circumvention-defeating devices, etc.), those debates mainly – nearly exclusively – concerned the definition of devices to be prohibited and not the general scope of protection in the sense that it should also extend to the protection against certain “preparatory acts.” Thus, Prof. Geist’s allegation is unfounded regarding the general scope of the requirement of adequate protection; there was no understanding whatsoever according to which access-control TPMs would be excluded from the treaty obligations or that adequate protection was regarded possible without providing it already in the stage of “preparatory acts.”

(4)   The “subsequent practice” of countries party to the two Treaties implementing the TPM provisions indicates that Canada’s major trading partners have duly implemented the treaty obligations as outlined above (not limiting protection to copy-control TPMs, but equally applying it to access-control TPMs and also prohibiting relevant “preparatory acts”). Prof. Geist suggests the contrary. His examples covering certain developing and “transition” countries and countries which have not acceded yet to the Treaties, along with extremely few isolated other cases, are not suitable to justify his position.

(5)   The consistently applied international provisions on the interpretation of treaties do not list views expressed in legal literature as relevant separate sources of interpretation. Nevertheless, all the authoritative sources of legal literature based on a truly thorough analysis do agree that the Treaties’ TPM provisions cover both access-control and copy-control TPMs and that in order to provide adequate protection it is necessary to prohibit “preparatory acts.” Prof. Geist tries to present some other literary views collected from all kinds of sources about which he believes that they may support his contentions. In connection with this, two comments are justified. First, not all of those literary sources are truly suitable to serve as “witnesses of prosecution” against Bill C-32, since they do not necessarily state what M. Geist would like to prove. Secondly, with minimum efforts, one can collect and present a number of scholarly views to support any kind of legal position – and also a number of scholarly views to support exactly the opposite position. Therefore, what may only be relevant at all is what follows from truly authoritative sources and – in close connection with this – what kinds of legal analyses and arguments the views expressed are based.

Dr. Ficsor also demonstrates that the so-called “leaked” EU document relied on by Prof. Geist erroneously describes EU law as it relates to protecting TPMs. Dr. Ficsor says: “Very briefly: if such an analysis were “leaked” let us say to the European Court of Justice… it would declare it to be completely groundless and being in head-on crash with the acquis communautaire”.

Prof. Geist consistently misinterprets the WIPO Treaties to support his policy views that Canadian copyright reform should provide virtually no legal protection for TPMs. His policy proposals on TPMs provide  illusory protection for artists or creators. His proposals would not fulfill the policy objective of enabling artists and creators to protect their works in a way that supports innovative business models and allows them to be paid for their creative efforts and investments. Not surprisingly, as Dr. Ficsor authoritatively documents, Prof. Geist’s proposals do not provide adequate legal protection or effective legal remedies against the circumvention of TPMs and clearly would not comply with the requirements of the WIPO Treaties or the practices of Canada’s trading partners.

• Traditionally viewed as being victimless, Intellectual Property (IP) crime has become a source of health and safety concern in Canada. Health, safety, and economic damages from the consumption and usage of counterfeit goods are being reported on an international scale. Victims of IP crime include, among others, people suffering from life threatening diseases who unknowingly use counterfeit medicines containing little or too many active ingredients, or toxins.
• There has been a tangible economic impact not only in terms of lost government revenue, but also on legitimate retailers having to deal with the loss in revenue to online file sharing and the availability of cheaper counterfeit products on Internet websites. Some legitimate retailers have reported difficulty in competing with vendors selling counterfeit goods at unfairly low prices, some having had to lay off staff in order to remain in operation. In more extreme cases, some have had to shut down their business.
• Loss of economic integrity is a threat posed by IP crime to Canadians and the international community. In a knowledge-based economy such as Canada’s, innovation is a key driver of economic growth, productivity and competitiveness. The creative industry has been estimated to encompass 7.4 percent of Canada’s Gross Domestic Product (GDP), and employs more than one million Canadians. The protection of Canadians’ IP Rights (IPR) is therefore vital to support innovation, creativity, and, consequently, to ensure Canada’s long-term economic prosperity.
• The depressed economy and the availability of such goods may play a role in the increasing demand for counterfeit and pirated products.
• Counterfeiting and piracy techniques have become more sophisticated rendering detection more difficult than ever.
• Counterfeiters utilize a variety of methods to evade detection at Canada’s international borders.
• IP Criminals make up an eclectic demographic ranging from organized crime groups, to small-scale retailers who sell small quantities of IP-infringing goods to supplement their income.
• In Canada, the fact that IP crime is difficult to detect, that limited enforcement resources are dedicated to it, and that sentences are not sufficiently significant to deter all serve to generate an attractive criminal undertaking, especially when compared to other crimes such as drug trafficking.
• Given criminals’ increasing awareness of the benefits of counterfeiting, more individuals, criminal networks, and organized crime groups are expected to include IP crimes in their portfolios. Furthermore, given the increasing availability of technology, counterfeiting techniques are expected to improve, rendering detection more difficult than ever.
• Although the RCMP investigated nearly 1,500 cases of IP crime between 2005 and 2008, these numbers are believed to be a fraction of the true IP crime situation in Canada.
• The total retail value of seizures reported by the RCMP alone, from 2005 to 2008, is estimated at more than 63.6 million CAD, highlighting that IP crime is a profitable line of business.
• China (including Hong Kong) is the most common source/transit country for counterfeit goods imported into Canada.
• Canada has been identified as a source of pirated DVD and CD media, primarily for domestic consumption. However, some investigations have revealed Canada as a source country for pirated media found online, as well as a transit country for various IP-infringing goods.
• Current Canadian copyright and trade-mark laws have been criticized by domestic stakeholders and majors trading partners for failing to address IP crime. This criticism stems from the fact that Canada has not implemented an “ex officio” border regime that would enable customs officers to target and detain suspected counterfeit and pirated goods, that Canada has not remedied the perceived ineffectiveness of trademark offences in the Criminal Code, and that Canada has not implemented the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT).
• The notion that current legislative provisions do little to deter IP crime in Canada is generally felt by both private industry and law enforcement. Even after a successful prosecution, penalties imposed are typically mild and reflect, for the accused, the cost of doing business rather than serving as a deterrent. Judges are still faced with sentencing difficulties as there is no precedent, at this time, for imposing stiff penalties.
• International trade has systematically increased the movement and distribution of goods. As a result, border services worldwide, which are the first line of defense in identifying and preventing illicit goods from entering the country, are burdened with increases in transnational shipments.

The RCMP report re-enforces what many who have studied the problem have also concluded. Canada has a significant counterfeiting and piracy problem that is not adequately being addressed by our weak laws and enforcement practices. The porous nature of our borders and the need to upgrade our border controls to world standards to reduce counterfeiting and piracy in Canada has, for example, been noted by two parliamentary committees, three Canadian trade associations, and our major trading partners. Parliamentary Standing Committee on Public Safety and National Security, Parliamentary Standing Committee on Industry, Science and Technology, Ontario Chamber of commerce, Canadian Chamber of Commerce, U.S. Trade Representative,  U.S. Congressional Anti-Piracy Caucus, European Union, and Canadian Anti-Counterfeiting Network (CACN).

Bill C-32 does not specifically address many of the legal shortfalls in our copyright, trademark, criminal, and customs laws that are needed to alleviate the health and safety, economic and criminal problems associated with counterfeiting and piracy. The RCMP report is a further reminder that there is an issue of public importance that needs legislative and other solutions.

This posting is hardly worth responding to, except that some of his readers and syndicated readers might actually believe there is any merit in his claims.  The post is replete with bizarre assertions not backed up by any evidence or logic. set rhetoric to stun

Prof. Geist claims that Russian raids against NGOs “using the pre-text of intellectual property enforcement” “is surely connected to efforts by the U.S. government and copyright lobby groups to actively encourage Russia to increase its IP enforcement”?  What evidence does he rely on for this claim? None.

Prof. Geist relies simply on false logic. A government raids voices of opposition using the pretext of enforcing IP laws. Therefore, having effective  IP laws leads to these types of civil rights abuses. A logical conclusion? Of course not. A government not constrained by the rule of law and looking for a pretext to silence or deter opposition could use any pretext to seize property. Theft, tax evasion, bribing officials, securities violations and a myriad of other criminal offenses all come to mind as pretexts that have been used in the past to silence political opposition. Prof. Geist’s argument leads to the illogical conclusion that it would be dangerous and misguided for any countries with poor records of respecting civil rights and the rule of law to pass effective laws of any kind because they could potentially be abused, regardless of the overall social welfare associated with such laws. If the Russian government had seized the computers in issue based on a pretext that the computers were stolen, could anyone logically have concluded that general laws prohibiting theft had caused the abuses of civil liberties and that tough laws against theft are therfore dangerous and misguided?

Prof. Geist claims that “The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list.” He suggests this is connected to the Russian raids. But, what evidence does Prof. Geist rely on to connect that report to the Russian crackdown on dissidents? None.  

Prof. Geist claims that “The IIPA pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases.” Where does he connect the IIPA report to the crackdown on Russian dissidents? He doesn’t. It is also ludicrous to contend that a call for better enforcement of IP laws against piracy could be a reason for the Russian government to quell political dissent.

Prof. Geist also doesn’t mention that the IIPA pointed out that Russian criminal law had undergone several amendments in recent years, making the existing methodology prepared by the General Prosecutor’s Office outdated. The IIPA therefore recommended that the Ministry of the Interior, the General Prosecutor’s Office, and the Investigational Committee jointly prepare a new official uniform methodology.

Prof. Geist then turns to ACTA claiming that it “will provide Russia with a template to follow on IP enforcement” and will “export tougher enforcement measures …without including the exceptions, due process, and balancing provisions”.  However, in making these claims Prof. Geist inaccurately describes what is publically known about the draft treaty from recent leaks.

ACTA does not create any new IP rights (Art.1.3.2), nor remove any exceptions that may be available under copyright. Parties to ACTA must also ensure that enforcement procedures are “applied in such a manner as to…provide for safeguards against their abuse”. (Art 2.1) The draft Internet Chapter, for example, contains an express requirement that “Each Party’s enforcement procedures shall…  be implemented in a manner… consistent with each Party’s law, preserves principles relating to freedom of expression, fair process, and privacy [EU: , among other [US: fundamental] principles]”. (Art.4.2) Each party is also obligated to “endeavor to promote cooperative efforts within the business community to effectively address {US: copyright and related rights}{EU/J: intellectual property rights} infringement while preserving legitimate competition and consistent with each Party’s law, preserving principles relating to freedom of expression, fair process, and privacy, [EU: among other [US: fundamental] principles]”. (Art.4.3)

Prof. Geist’s claim is even more illogical when one considers the principles behind ACTA. ACTA is an attempt to codify best international practices related to the enforcement of IP including practices in Japan, the EU, Australia, and the US. If Prof. Geist’s thesis is correct, one would expect to find rampant civil liberties violations in these countries attributed to the enforcement of IP laws. Of course, Prof. Geist does not make this claim. Rather, his unsubstantiated claim is that these best practices when exported to other countries would have these effects.

Prof. Geist concludes his post with the assertion that the “recent Russian case highlights why” enforcement of tough IP laws and ACTA “is such a dangerous and misguided approach that is apt to cause more problems than it solves.” The recent Russian incident establishes nothing of the sort. set rhetoric to stun