Industry Committee on June 5th, 2007

[The Chair, Conservative, James Rajotte]

I'd like to call the meeting to order.

We have before us a number of witnesses, so I'll try to get to things as quickly as possible.

We have two sessions today. The first session has a number of witnesses on Bill C-47, and then hopefully we can move to clause-by-clause consideration of Bill C-47 at 10 a.m.

Today is the 66th meeting of the Standing Committee on Industry, Science and Technology. Pursuant to order of reference of May 17, 2007, we are studying Bill C-47, an act respecting the protection of marks related to the Olympic Games and the Paralympic Games and protection against certain misleading business associations and making a related amendment to the Trade-marks Act.

We have a number of witnesses before us. I'll go in the order I have them here. First of all, from the Intellectual Property Institute of Canada, we have Ms. Cynthia Rowden, the past-president.

We have, appearing as an individual, an Olympian, Mr. Jeff Bean, from freestyle skiing, the Canadian Olympic Ski Team.

From the Canadian Paralympic Committee, we have Mr. Brian MacPherson, chief operating officer.

From Own the Podium 2020, we have Mr. Roger Jackson, CEO.

From Athletes Canada, I believe we have two individuals: Mr. Guy Tanguay, the CEO; and Ms. Jasmine Northcott, athlete forums director and operations manager.

Finally, we have Mr. Lou Ragagnin, chief operating officer, from the Canadian Olympic Committee. Is that correct?

[Lou Ragagnin, Chief Operating Officer, Canadian Olympic Committee]

Correct.

[The Chair, Conservative, James Rajotte]

Because we have so many witnesses and we have limited time, I'd ask witnesses if they could keep their comments to between three and five minutes. Then we will go to questions from members from all parties.

We might as well go in the order that I listed.

Could we start with Ms. Rowden, please?

[Cynthia Rowden, Past-President, Intellectual Property Institute of Canada]

Thank you, Mr. Chair.

[The Chair, Conservative, James Rajotte]

Members, if you have Blackberries or cell phones, put them away from the microphone or just turn them off.

[Cynthia Rowden]

IPIC supports strong intellectual property laws, but we believe these laws should be applied fairly, consistently, and generally to all Canadians. In our view, the proposed bill gives VANOC, the COC, and CPC more rights than may be necessary to deal with the proposed threats of ambush marketing and counterfeiting during the Vancouver Olympic Games.

We have four main points for consideration. The first is that we agree that paragraph 4(1)(a) of the bill is valid; that's the paragraph prohibiting activities that misleadingly suggest an affiliation with the COC, VANOC, or CPC. We agree with this provision and believe that it will give VANOC and the others an opportunity to advertise the point that activities that unfairly suggest an affiliation are illegal.

Beyond that, we believe that other sections in the bill are unnecessary. Specifically, we looked at subclause 3(1), the broad prohibition against the use of certain Olympic terms, and also at the provisions in subclause 4(2) that require the court to consider certain combinations of words in assessing whether the activities are contrary to the act.

First of all, with respect to subclause 3(1), the existing framework of the Trade-marks Act already gives special protection to Olympic associations, and has been widely used by other organizations, including VANOC already—which owns hundreds of official marks. The existing framework of the Trade-marks Act also deals with activities such as infringement and passing-off.

We're concerned that the directions in the legislation may prevent small businesses and large businesses who now support individual athletes or teams from advertising the fact that they do so. In addition, given the strict language of the prohibitions, we believe that past Olympians or past Olympic athletes may be prevented from using that connection in their reasonable activities.

Secondly, we are concerned with the provisions that delete the requirement to show irreparable harm when bringing an application for an interlocutory injunction. Interlocutory injunctions are extraordinary court remedies; a court is being asked to order that certain activities stop before they've actually had a hearing on the issue, and therefore these injunctions are generally awarded very sparingly. This is part of the checks and balances of litigation. Taking out the need to show irreparable harm for the Olympics, VANOC, CPC, and COC puts them on a different footing before the courts from any other party—and there are lots of other businesses, sporting events, and entertainment events that would like to be on that same footing.

What we think would work as an alternative is a provision whereby activities that do reasonably show a not unlawful affiliation with the Olympics would be deemed to be evidence of irreparable harm.

Thirdly, we think it's dangerous to give sponsors the right to sue independently—and under the legislation they do have that ability in certain circumstances. The legislation provides extraordinary remedies and very, very strong rights, and we believe these should be used primarily by the organizations benefiting from those rights, and should be controlled by those organizations.

Presumably, VANOC, the COC, and CPC will control the granting of sponsorships, and they should therefore control the activities of the sponsors. It should be up to them to control the access to the courts and the way in which the bill is interpreted. Letting sponsors have the ability to go into court has the risk that sponsors will exercise that activity and right unfairly, leading to inconsistent results and unpredictability in the application of the law.

Lastly, because of the very special rights they're being granted by this legislation, and the fact that the legislation is justified by the upcoming Vancouver Olympics, we believe that any legislation should be restricted to the Vancouver Olympics and should be sunsetted at the termination of the Olympic Games.

I have further comments with respect to issues of clarity and drafting, which are in our submissions, and I'd be happy to answer your questions afterwards.

Thank you very much.

[The Chair, Conservative, James Rajotte]

Thank you very much.

We will now go to Mr. Bean, please.

[Jeff Bean, Olympian, Freestyle Skiing, Canadian Olympic Ski Team, As an Individual]

Thank you very much, Mr. Chair and committee, for letting me speak here today in support of Bill C-47.

For the past 12 years, I have been a member of the Canadian free style national team. In that time, I have had the honour to represent Canada in competition at the past three Olympic Winter Games—Nagano 1998, Salt Lake City 2002 and most recently Turin 2006. However, I have made the important decision to retire at the end of this season. I would really like to be able to do that at 30. I'm going to retire from hurling myself in the air to do quadruple twisting triple back flips.

Looking back at my career, I will be forever grateful for my Olympic experiences, and I know that none of them would have been possible without significant contributions of official Olympic sponsors. That is why I am here today to support the passage of Bill C-47, which protects the Olympics investment of corporate sponsors, and in doing so, encourages ongoing support of Canadian sport and Canadian Olympic athletes like me.

At my first winter games in Nagano, I was taken aback at the sheer size and scale of the event. The venues were filled with tens of thousands of spectators and the village was a small city unto itself, with every modern amenity one could imagine. They ranged from dentists to haircuts. Basically anything you would see in a normal little village, that's what happens in an Olympic village. As I continued on to Salt Lake City and to Reno, the villages and the services and amenities offered in those villages just grew.

All that is to say I've had, first-hand, an enormous amount of knowledge of the resources required to host a successful winter games. I cannot believe for a minute that they could happen without the hundreds of millions of dollars contributed by Olympic sponsors.

Beyond simply investing in the Vancouver winter games, official Olympic sponsors here in Canada are supporting the success of Canadian athletes. For example, through support provided by Own the Podium 2010, the Canadian freestyle ski team has been able to hire three new coaches, install a leading-edge video playback system at our summer water out-training facility, and host a first-ever physical conditioning camp for the entire team for six weeks, which was held in Whistler this spring. I know similar improvements have been made across other Canadian winter sports and I know Canada's results at the 2010 winter games will reflect all of this crucial support.

On a personal note, I'm what is known as an RBC Olympian. RBC has developed this program, which not only supports athletes financially, but also offers an opportunity for athletes to gain real-world work experience while still training and competing. At this point in my life, the skills and experiences I am acquiring will be invaluable in my non-sporting career.

All this being said, when I first read Bill C-47 I did have some reservations regarding the ability of athletes to promote themselves as Olympians and Paralympians. I was contacted by AthletesCAN and we shared some of these same concerns. However, after posing these questions to VANOC, I've been adequately reassured that the spirit of this legislation does not impede the rights of the athletes. Furthermore, I'm encouraged in hearing that VANOC is willing to support any amendment agreed necessary by committee that will formalize the abilities of athletes to refer to themselves as Olympians and Paralympians.

With all the contributions official Olympic sponsors have made to the Vancouver winter games and to Canadian athletes, I feel that at the very least Canada owes them the sufficient protection for their investment provided in Bill C-47.

Thank you, Mr. Chairman. I would be happy to answer any questions you or the other members of the committee may have.

Thank you very much for your time.

[The Chair, Conservative, James Rajotte]

Thank you very much, Mr. Bean, for your presentation.

We'll now go to Mr. MacPherson, please.

[Brian MacPherson, Chief Operating Officer, Canadian Paralympic Committee]

Thank you, Mr. Chair.

Good morning, everyone, and thank you for this opportunity to speak to you this morning. I'll start with a brief statement and then be more than happy to answer any questions you may have.

The Canadian Paralympic Committee supports any initiative that benefits Paralympic athletes, and Bill C-47 benefits Paralympic athletes. Let me explain.

It's no secret that historically Paralympic athletes have not enjoyed the same level of support as Olympic athletes. In fact, up to the 2000 Paralympic Games, Paralympic athletes had to pay out of their own pockets to represent this country. The primary reason for this lack of Paralympic support was lack of corporate sponsorships.

Today, the Canada Paralympic Committee has eight major corporate sponsors. It fully supports and funds Canadians athletes to the Paralympic Games. In addition, the Canadian Paralympic Committee now delivers numerous athlete-support programs between the games.

The Canadian Paralympic Committee has corporate sponsors today because it has successfully cultivated, and grows, the Paralympic brand, a brand that corporate Canada now wants to be associated with and is willing to pay for that association. Integral to that association is the explicit understanding that the Canadian Paralympic Committee will take every measure possible to protect the brand. Bill C-47 has an opportunity to increase that level of brand protection, thereby increasing brand value and financial support from the corporate Canada sector to the Paralympic sports and to the Paralympic athletes.

Another example of how increased corporate Canada financial support is already helping Paralympic athletes is through the Own the Podium program. Through this program, our winter Paralympic athletes are enjoying unprecedented levels of support.

Let me read you an excerpt from an article that appeared in the Edmonton Journal on February 22. This article is an interview with Para-Nordic skier and multi-gold Paralympic medallist Shauna Maria Whyte. Shauna says:

In the past, I had only a few people helping me get to the podium. Now there's like an army, and that's a big help. The support is an amazing feeling.... When an athlete does get on the podium, yes I'm the one who's standing on the podium but it's a team effort getting us there...the team nutritionist, physiotherapist, psychologist, our head coach, my personal coach and all the Canadian taxpayers. That's an awesome feeling for me now, to realize that when I stand on the podium, it's for my country.

Looking forward, the more financially successful the 2010 games are, the more stories like Shauna's will be made possible. This is because the majority of any 2010 games operating-budget surplus will be placed into an amateur sport legacy fund, a fund solely dedicated to supporting athletes and coach development programs. Also, a successful 2010 games will make it easier for the Canadian Paralympic Committee to renew its sponsorships and recruit additional sponsors.

Benefits to Canada's Paralympic athletes--this is why the Canadian Paralympic Committee supports Bill C-47.

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you very much, Mr. MacPherson.

We'll now go to Roger Jackson.

[Roger Jackson, Chief Executive Officer, Own the Podium 2010]

Thank you very much, Mr. Chair.

Good morning, everybody. It's a pleasure to appear before you this morning and to offer unequivocal support for Bill C-47, on behalf of Own the Podium 2010.

In my prior experience as president of the Canadian Olympic Committee and as a leader of the 1988 Olympic Winter Games, I understand the importance of official Olympic sponsors contributing to the games. I'm also very much aware of the need to ensure that the value of these sponsorships, namely the exclusivity of association with the Olympic brand, is adequately protected.

This understanding has only deepened in my current role as chief executive officer of Own the Podium 2010. Launched in January 2005, Own the Podium is a national collaborative initiative, supported by all 13 of the winter sports in Canada, both Olympic and Paralympic, the Canadian Olympic Committee, the Canadian Paralympic Committee, the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, the Government of Canada, and several corporate sponsors.

There will be 80 countries participating in the Olympic Games in Vancouver and the Paralympic Games. Own the Podium 2010's goal is ambitious but obtainable: to win the greatest number of medals of any country in the world at the Olympic Winter Games, and to finish third at the Paralympic Winter Games.

Own the Podium 2010 partners believe that we can make this goal a reality. Together they have committed $110 million over five years to support the national sports organizations and their athletes. Of our total funding, half—or $55 million—comes from the Government of Canada, and $5 million comes from the Government of British Columbia. The remaining $50 million comes from the VANOC corporate sponsors, including corporations such as Bell Canada, General Motors, Hudson's Bay Company, McDonald's, Petro-Canada, RONA, and the RBC Financial Group.

Make no mistake, these organizations were not contractually obligated to support Own the Podium 2010, and thus Canada's Olympic and Paralympic athletes, as part of their agreements with VANOC. Instead, they did so voluntarily to help Canada's athletes succeed during our games.

With this in mind, I respectfully submit to the committee that Bill C-47 will serve Canadian sports extremely well. In protecting the investment made by Olympic and Paralympic sponsors, Bill C-47 will encourage ongoing support and new partnerships between Canadian sports and the private sector. Indeed, without the protection of Bill C-47, the interest of the corporate sponsors to generate funding for Canadian athletes is dramatically reduced, and our Canadian goals will certainly not be met.

For the 2010 winter games to be successful in the eyes of Canadians, our athletes must be adequately supported to rise to their full potential and be able to win at home. Through their generosity, our corporate sponsors have demonstrated their commitment to this end. In return, they deserve nothing short of the protection that Bill C-47 provides.

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you very much, Mr. Jackson.

I believe Ms. Northcott will be making a presentation.

[Guy Tanguay, Chief Executive Officer, AthletesCAN]

Good morning, Mr. Chairman, members of the committee. On behalf of AthletesCAN, I would like to thank you for the invitation to meet with you this morning. I am going to hand over to my colleague, Jasmine Northcott, but I would like to retain the right to intervene during the question and answer session, should it be necessary.

[Jasmine Northcott, Athlete Forums Director and Operations Manager, AthletesCAN]

Good morning, Mr. Chairman, committee members. On behalf of Canada's national team athletes, the board of directors of AthletesCAN, our chief executive officer, and myself, thank you for this opportunity to sit with you this morning to share our collective concerns and feedback regarding Bill C-47.

AthletesCAN is the collective voice of national team athletes in Canada, and we represent over 2,500 active national team athletes, including Olympic, Paralympic, Commonwealth Games, Pan-American Games, and aboriginal athletes. We work diligently on their behalf to provide these athletes with programs of leadership, advocacy, and education to ensure a fair, responsive, and supportive sports system.

AthletesCAN has extensively reviewed the content of Bill C-47 and consulted with our athletes and partners, and as a result we are here today to support the government's efforts to better high-performance sport in Canada.

We recognize the need to support the sponsors and licensees who have contributed and will contribute significant resources to the 2010 Olympic and Paralympic Games. However, we bring to the committee's attention the need to entrench athlete rights within this bill.

The opportunity to create and foster an environment for sponsors and licensees that protects their right to associate themselves with the Olympic and Paralympic Games is a great step forward for the Canadian sports system. However, we need to address the direct legislative implications that this legislation will have on the individuals who are central to our country's sporting success: our athletes.

We believe it is possible to create an environment that protects both the rights of the sponsors and licensees and the rights of the athletes. It's our recommendation to the committee that the protection of athletes can be provided under Bill C-47 with the adoption of a simple amendment, which we have identified as the protection of identity for Olympians and Paralympians. Olympians and Paralympians are those athletes who have competed at Olympic and Paralympic Games. These athletes have earned the right to refer to themselves and their sponsors as Olympians and Paralympians.

However, there is concern among the athlete community that their ability to foster relationships with businesses and communities could be adversely affected by this legislation, as this type of support and endorsement could fall under the commercial parameters of this legislation.

Unlike companies that use the Olympic and Paralympic marks for ambush gains, athletes who are successful in garnering the support of businesses and communities do so to support the significant costs of training and competition at an international level. We've looked to the committee to provide provisions within Bill C-47 to protect the rights of athletes. In Australia, where similar legislation exists, provisions were made to protect the rights of athletes. Canadian athletes deserve this same right.

It is the recommendation of AthletesCAN that Bill C-47 include a provision by way of amendment to protect the rights of athletes to identify themselves as Olympians and Paralympians who have participated at past Olympic and Paralympic Games, to be able to speak to their accomplishments, and the right to reference as factual experience to either promote themselves or be promoted by their sponsors without penalty.

We would like to thank the industry committee for this opportunity to provide the collective concerns of Canada's national team athletes and offer a simple suggestion that could be easily implemented to protect the rights of athletes.

Thank you. I welcome the opportunity for questions from the committee.

[The Chair, Conservative, James Rajotte]

Thank you very much, Ms. Northcott.

Finally, Mr. Ragagnin, please.

[Lou Ragagnin]

Thank you, Mr. Chair.

I will touch briefly on what I think are two primary benefits from this bill. One is legacies, quite simply the legacies that are left behind for the COC and its member organizations, the 51 national sport federations that are members of the Canadian Olympic Committee and their athletes and coaches, and the legacies that result from games. We saw it in 1988 with Calgary; we'll see it again for 2010 in Vancouver and Whistler, and we hope to see it again in the future when Canada hosts winter or summer games. Those legacies are critical to support high-performance sport in this country, and we believe this bill helps to support those legacies.

We believe that sport is an important part of Canada's culture. To protect an important part of that culture, we need bills like Bill C-47 to assist in that protection. So we're very much in favour of that.

The second thing I wanted to mention as far as benefits of this bill is the fact that we've established public-private partnerships with the federal government, the Canadian Olympic Committee, VANOC, our member organizations, and the funding programs we've developed with the federal government that need to be sustained well beyond 2010. This bill helps to foster those partnerships leading up to 2010 and hopefully well beyond 2010.

I'll leave you with those thoughts. Thank you very much.

[The Chair, Conservative, James Rajotte]

Thank you very much, and thanks to all of you for keeping your presentations very brief so we can get to questions.

For your information, the members will have questions in either five- or six-minute slots, so they have limited time to ask their questions. There are a lot of panellists here. Usually they will direct their question to one of you, but if someone else would like to add something, just indicate to me and I will endeavour to allow you to answer as well.

We'll start with Mr. McTeague. You have six minutes.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Chair, thank you.

Panellists, thank you for being here today. It's a very important piece of legislation, and I no doubt want to make sure that our questions reflect that we want to make a very serious study of the legislation.

Ms. Rowden, your suggestion is that somehow the bill before us here is perhaps, to a degree, unnecessary in that many of the protections already exist under the Trade-marks Act.

I'm wondering if you could tell us the definition of “irreparable harm”. Are we really dealing here with a question of timing? It seems to me that the time it takes to get an injunction would probably be far too late to arrest a difficult situation or a problem that might exist in which someone may be infringing on the trademarks. Can you explain to this committee how it is possible that the bill itself may not address that concern?

[Cynthia Rowden]

I think our concern is that we're changing the rules for access to the courts for interlocutory injunctions. The necessity to show irreparable harm is one of the special requirements, because an interlocutory injunction is, as I mentioned, a special remedy.

Our proposal is a midpoint between what is in the act and the current state of the law. That would be that activity that, on reasonable evidence, is contrary to paragraph 4(1)(a), which is the section that prohibits unlawful affiliation, would be deemed to be evidence of irreparable harm. There would still be a necessity for any party seeking an application for interlocutory injunction to show that it has a stronger prima facie case, and similarly, they would still have to show that they meet the balance of convenience test, which is the second of the third requirements for getting an interlocutory injunction.

I think the timing issues are probably more importantly dealt with under the balance of convenience tests than they are under irreparable harm. In order to access the court for a request for an interlocutory injunction, the party seeking the injunction has to show that the balance of convenience rests with it rather than the other party. In a situation where there's a very tight timeframe, the balance of convenience would normally rest with that party. So we think, given that particular background, changing the rule with respect to irreparable harm will meet the interests of the Olympic organizations.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

You made a number of recommendations here, amendments to some existing language, particularly I believe in clause 6, that the words “approved, authorized, or endorsed” be used as evidence of irreparable harm. If such an undertaking were to be considered by the committee, how do you believe this would address the immediacy of the impact of ambush marketing?

We're dealing with the question of a period of time for the Olympics and the Paralympics, over a very defined period. Would this be sufficient to deter or arrest the problem?

[Cynthia Rowden]

Llong before the Vancouver Olympics actually start, I think the parties will have identified the factual situations that will result in irreparable harm. Therefore, when a situation arises, they should be easily able to jump to it.

The current situation, where the Canadian Olympic Association owns hundreds of official marks, has not stopped it from jumping in very quickly. They have prepared their evidence, they know how to respond to these cases, and I'm fully confident that VANOC and the current organization will be similarly well prepared. Therefore, I don't think the timing issue is as important as changing the rules for irreparable harm. I think the timing issues will be met by a fairer consideration of the three requirements: a strong prima facie case, a balance of convenience, and the irreparable harm test as we're proposing.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Fair enough.

I'm wondering if you could also perhaps comment on your first section here, “Are all the provisions of Bill C-47 necessary?” You point out that many Olympic trademarks are already protected in Canada. We have a list, obviously, in the act that is far more extensive than that. You've called for sunsetting of the clause of the bill, that the bill would terminate immediately after, I take it you believe, the Olympics and the Paralympics as well. I think you said that.

[Cynthia Rowden]

What we're proposing is the sunsetting of the bill, yes.

I'm not sure what the members were given, but the Canadian Olympic Association and the Vancouver organizing committee have already used the Trade-marks Act to protect hundreds of marks. Virtually all of the marks that are in the bill are already protected as official marks, so this is a duplication.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Could the organizing committee, rather than going through the exercise of this bill, perhaps include the additional trademarks? Or does this seem like trademark ad infinitum? You could perhaps give several trademarks....

We were having this discussion yesterday with some of our colleagues as to what would constitute a proper trademark, but if I happen to walk in with my kids with “Team 2010” on.... I'm wondering if that would be considered overreach, in your view.