Bill C-8 (Historical)

Combating Counterfeit Products Act

An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts

This enactment amends the Copyright Act and the Trade-marks Act to add new civil and criminal remedies and new border measures in both Acts, in order to strengthen the enforcement of copyright and trade-mark rights and to curtail commercial activity involving infringing copies and counterfeit trade-marked goods. More specifically, the enactment
(a) creates new civil causes of action with respect to activities that sustain commercial activity in infringing copies and counterfeit trade-marked goods;
(b) creates new criminal offences for trade-mark counterfeiting that are analogous to existing offences in the Copyright Act;
(c) creates new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
(d) enacts new border enforcement measures enabling customs officers to detain goods that they suspect infringe copyright or trade-mark rights and allowing them to share information relating to the detained goods with rights owners who have filed a request for assistance, in order to give the rights owners a reasonable opportunity to pursue a remedy in court;
(e) exempts the importation and exportation of copies and goods by an individual for their personal use from the application of the border measures; and
(f) adds the offences set out in the Copyright Act and the Trade-marks Act to the list of offences set out in the Criminal Code for the investigation of which police may seek judicial authorization to use a wiretap.
The enactment also amends the Trade-marks Act to, among other things, expand the scope of what can be registered as a trade-mark, allow the Registrar of Trade-marks to correct errors that appear in the trade-mark register, and streamline and modernize the trade-mark application and opposition process.

[Mark Schaan]

Then we'll switch to the Trade-marks Act changes. This is part 4, division 7, subdivision B, clauses 214 to 242.

Just by very quick way of background, this is in part related to concerns from trademark stakeholders about the possibility for what some people call “trademark squatters”, individuals who take out trademarks with no intention of using them for the purposes of trying to shake down individuals who they believe are already using that trademark in a non-trademarked way, or likely will anticipate the need of someone for that trademark.

What this does is a number of things. First, it adds bad faith as a ground of opposition to the register of a trademark and for the invalidation of a trademark.

Second, it prevents the owner of a registered trademark from obtaining relief for acts done contrary to that trademark during the first three years after the trademark is registered, unless the trademark was in use during that period or special circumstances exist that excuse the absence of use.

Very quickly, without getting into too much of the technical details of trademark law, one of the exceptions to use in the trademark process is during the first three years of a trademark, because, in many cases, you will have trademarked a good, but you can't use it because you're just getting going.

Our concern was that it could be a trademark squatter who is hiding under that three-year exception to be able to potentially still use that three years to shake someone down for cash. What we have said is that, during those three years, you have no access to remedies, so you can't pursue damages against that individual if you're not using the trademark.

We also clarify that the prohibitions in subparagraph 9(1)(n)(iii) do not apply in section 11 of the act with respect to a badge, crest, emblem or mark that was the subject of a public notice of adoption and used as an official mark if the entity that made the request for the public notice is not a public authority or no longer exists.

Very briefly, this relates to the system of official marks in Canada. Official marks are, by and large, relegated or are subscribed to public authorities and public entities. The Canada Wordmark is a good example. There is a whole host of other badges and crests that are official marks. They're put on the registry by public authorities. There are a lot of them, and one of the challenges is that some of the people who put them on the list weren't public authorities under the definition, so when people seek to use that official mark, they're prevented from doing so because this public authority put the official mark on the registry.

The other thing is that many of them no longer exist. There are many official marks related to the 1976 Montreal Olympics. There are many related to Canada Games in most cities and provinces across the country, and many for events that took place decades ago. People are prevented from using those official marks currently, despite the fact that they can't reach an agreement with the entity to use them, because the entity doesn't exist anymore. This, essentially, will allow people to be able to use those official marks without having to seek an entity when the entity is no longer in place.

We then also modernized the conduct of various proceedings before the registrar of trademarks under the act, including by providing the registrar with additional powers in such proceedings. This is essentially to give some additional teeth to the trademarks opposition board, including the opportunity for case management and the ability to potentially levy costs in cases where people are making frivolous use of the trademarks opposition board.

Finally, we make certain housekeeping amendments to provisions of the act that are enacted by the Economic Action Plan 2014 Act, No. 1, and the Combating Counterfeit Products Act, which is essentially to bring us in line with changes in anticipation of Canada's accession to the Madrid protocol and that lay on from these provisions that I laid out earlier.

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate chamber His Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

C-3, An Act to enact the Aviation Industry Indemnity Act, to amend the Aeronautics Act, the Canada Marine Act, the Marine Liability Act and the Canada Shipping Act, 2001 and to make consequential amendments to other Acts—Chapter 29.

S-213, An Act respecting Lincoln Alexander Day—Chapter 30.

C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act—Chapter 31.

C-8, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts—Chapter 32.

S-1001, An Act to amend the Eastern Synod of the Evangelical Lutheran Church in Canada Act.

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Algoma—Manitoulin—Kapuskasing, Aboriginal Affairs; the hon. member for Ottawa—Vanier, Consumer Protection.

Message From the Senate

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed the following bill:

Bill C-8, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts.

[Denis Martel, Director, Patent Policy Directorate, Marketplace Framework Policy Branch , Department of Industry]

Thank you for the opportunity to be here today to talk about the changes to the Patent Act and the Industrial Design Act.

As you know from the study of this committee on the IP regime in Canada, it concluded that Canada's IP's regime is strong. In many areas Canada provides more than the minimal requirement than what is required under our international obligations. As you've heard there were some areas where Canada's system could be strengthened. One area was regarding enforcement, and the government introduced Bill C-8 on combatting counterfeit products.

The other area that the committee identified was the need for support for Canadian businesses on the global stage to ensure that the administration of Canada's IP regime is internationally compatible and streamlined. To do so, the committee recommended that the government ratify key international IP agreements, including the Patent Law Treaty and the Hague agreement for industrial design. It is the latter recommendation that brings us here today.

The first step took place in January 2014, when the government tabled five international intellectual property treaties in the House, that had to do with trademarks, patents and industrial designs. This followed up on a recommendation by the Standing Committee on Industry, Science and Technology.

The first phase of the economic action plan contained the necessary amendments to comply with trademark treaties. Now, the second budget bill proposes amendments to the Patent Act and the Industrial Design Act.

This is to allow Canada to ratify and accede to the remaining two treaties: the PLT and the Geneva Act of the Hague agreement. The purpose of the amendments to the Patent Act and the Industrial Design Act is to give legislative and regulatory powers to accede to the PLT and the Hague agreement. Both treaties deal strictly with administrative matters. They do not consider substantive issues related to either patents or industrial design. Those two treaties are applicant-friendly. They require fewer forms, allow for electronic means of communications, notification of missed deadlines, and longer grace periods before sanctions could be taken.

Just to give a sense of the international agreement in terms of the Hague, it's an international registration system that provides an opportunity to obtain protection for industrial design in several jurisdictions with one single application.

There are many clauses in the bill, but essentially there are four key ones that I would like to highlight. They relate to the content of an application, to simplify what is required to submit; clarification of the rules of design when someone seeks a registration; clarification of the rules regarding requests for priority; and increasing the term of protection from 10 to 15 years.

The major benefits are to protect the designs in several countries by filing one application, which could be done in one language and paying one fee.

With regard to the Patent Law Treaty, it's also a treaty that is administered by the World Intellectual Property Organization, which aims to simplify and harmonize administrative practices among intellectual property offices around the world.

Some of the key amendments in the bill that I would like to highlight are the following: reduce the requirements to obtain a filing date, again, less information that the applicant is required to submit; require that an applicant be notified for a missed due date before action is taken; allow applicants to perform certain administrative tasks themselves; and introduce grace periods before sanctions that affect rights.

Collectively, those amendments and the ratification of the PLT would allow reductions in red tape, simplify filing requirements, reduce risk of errors and loss of rights, and bring lower costs.

Thank you, Mr. Chair.

Combatting Counterfeit Products Act

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am pleased to be able to speak on Bill C-8, which is a bill that deals with quite sweeping changes to copyright infringement and intellectual property rights in Canada.

I presented numerous amendments to the bill before committee, and I am sorry to say that, shockingly, my amendments did not carry. I am afraid that this has become the custom due to the passage of, astonishingly, identical motions in 20 different committees at the same time, intended to deprive me of my rights to present substantive amendments at report stage. Since I have been going to many committees under this new edict, I have not had a single amendment carry at committee. However, I remain hopeful that one day the reasoned efforts I am making will meet with favour.

In the case of Bill C-8, as I mentioned, we would be making sweeping changes, perhaps the most sweeping changes in intellectual property rights law in Canada in over 70 years. We would make these changes without adequate hearings, study, or the proof of any need.

As a matter of fact, one prominent member of the Canadian bar, Howard Knopf, describes the effort to deal with counterfeiting and fake products with this headline: “Is Parliament Rushing to Respond to a Fake Crisis About Fake Products?”

So, we have copyright infringement and we want to protect, and I completely agree with all members of the House who have spoken to our desire to protect artists, innovators, and creators from having the products of their intellectual efforts pirated and stolen without adequate response. However, I will share with this House quite simply what we fear is happening here: we would create multiple offences for relatively minor matters, criminalize things that would normally be dealt with in civil efforts, and we would create new charges under the Criminal Code for offences for which we already have adequate measures within the Criminal Code to handle such infringements.

I want to first begin with the question of invasion of privacy, which is found at clause 59 of Bill C-8.

The definition of “offence” under the Criminal Code section dealing with wiretapping would be amended to include infringements found and created in Bill C-8. It is important to note that this section is not before us at the moment because when we are amending one legislation and creating Bill C-8, we do not always go back and look at the legislation we are changing. However, I think it is important for all members in this place to look at the Criminal Code section that Bill C-8 would amend.

Bill C-8, intended to deal with copyright and trademark, would amend section 183 of the Criminal Code. If we look at section 183, we find that the definitions of “offence” deal with the following: first is high treason; second is intimidating Parliament or a legislature; third is sabotage; then is forgery, sedition, highjacking, endangering the safety of aircraft, offensive weapons, breach of duty, using explosives.

This category of offences, I think all members of this House would agree—even those who do not have statutory interpretation training—are offences of a high order and significant, dangerous activities in the Criminal Code for which we want to be able to have access to wiretap. However, we would now add offences under copyright and trademark infringement, as created by this proposed act. Now, that is a step too far for the Green Party.

It means that, immediately upon passage of Bill C-8, we would see the day that people who, for instance, in a number of fact settings that we certainly do not contemplate as dangerous, could have their phones wiretapped. There is accidental downloading, as the hon. member for Timmins—James Bay mentioned, and most high school kids could break this proposed law any day of the week without planning to make a fortune for themselves or do anything other than download illegally from a website.

A noted lawyer in this area, Howard Knopf, was not a witness and was not allowed to speak before the committee. However, he mentioned that, “The DNA and fingerprints of the movie and record industries are all over this bill”. Why else would we want to allow the RCMP and law enforcement agents to have the ability to wiretap the phones of people they suspect have downloaded illegally?

Copyright infringement in this new scenario, the brave new world of Bill C-8, goes quite far into activities that one would not ordinarily consider dangerous at all, not even criminal, but they will be criminalized. For instance, under some sections of the bill, it would not be hard to imagine that someone had infringed copyright under the bill by playing at a private function, such as a wedding, tunes that normally would be played by disc jockeys at various events. That could prompt a wiretap if they were so inclined.

These changes are quite sweeping. I do not believe the Canadian public is aware of what Bill C-8 proposes to do or the complexities and confusion that would be created by the way this legislation is structured.

Under Bill C-8, if criminal remedy is available for anyone who knowingly distributes copies of a work in which copyrights exist, that could capture a kid downloading or using files on BitTorrent. We do not want to encourage those activities, but on the other hand, the level of criminality and the ability to wiretap for those offences is certainly extreme.

The trademark and copyright area is a difficult area. People who work in this area are concerned that the bill could also inadvertently capture parallel imports. Parallel imports are also referred to as grey products. They are in a murky area. A parallel import is not actually infringement of copyright at all. It is not a counterfeit or a piracy measure. I will use an example from New Zealand that I found when I was looking for a commonplace example to explain what I mean by parallel imports.

In New Zealand it is common for luxury car dealers to go to Malaysia, buy a Mercédes Benz, which is cheaper there, then import that vehicle legally into New Zealand and sell it at the price Mercédes Benz wants to sell that car for in the New Zealand market. People who go to the trouble of getting the car in Malaysia have not broken any law and they make a fair bit of money on this.

It is generally considered that parallel imports increase consumer choice, aid competition and keep prices low. The way the bill is structured, it could quite easily capture parallel imports inadvertently, not counterfeit nor pirate imports. Not only do we capture parallel imports, we could then have the ability to wiretap to find out what that group is doing.

This legislation has a lot wrong with it. The failure to make any effort to make it more precise is astonishing when one considers that these fundamental changes to our copyright law are being pushed through without adequate time to consider the implications.

My colleague from Hamilton made an interesting point. How could a border guard be expected to have sufficient grasp of this complex area of international copyright law to distinguish between a parallel import and a counterfeit or pirated good? It is simply beyond the scope of even people who practise this area of law full-time to make such a determination on the spot at the border.

I will turn quickly to the recommendations that Howard Knopf would have made had he been allowed to speak at committee. I will quote from an article he wrote. The first recommendation was:

The numerous references apparently intended not to interfere with the free flow of parallel imports are inconsistent and present potentially serious drafting problems that require further study. The bill should propose appropriate declaratory language for both the Copyright Act and Trade-marks Act that makes is absolutely clear that, with the exception of the sui generis book importation scheme now found in s. 27.1 of the Copyright Act, neither of these acts shall in any restrict the importation, distribution or sale of any product...

The second recommendation was:

It would be mistaken and harmful to criminalize routine copyright and trade-mark infringement activity and there is no need to add additional criminal sanctions, much less wiretap enablement provisions or any provisions that would authorize the warrantless search of travelers to determine whether they have infringing items in their baggage...

The third recommendation was:

The bill should contain no provisions that are not essential for the purpose of combatting counterfeit...

I urge this place to accept that this legislation will require massive amendments very soon.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, I am rising today to speak to Bill C-8, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts.

Today, I want to express my support for this bill. It is difficult to disagree with the principle. Clearly, combatting counterfeiting is important for Canadian businesses and consumers. I will certainly not speak out against virtue.

However, I would like to express a few reservations that I have, particularly with regard to this government's true commitment to protecting copyright in Canada and the enforceability of the bill. I hope that the government will listen to what I have to say and that my comments will help to improve the measures that will be taken if this bill is passed.

I think that everyone here can agree that we have to crack down on counterfeiting, both because of the negative impact that counterfeit goods can have on our economy and the economies of our neighbours and because of the danger they can pose to Canadians' health.

The clandestine nature of counterfeiting prevents us from being able to accurately determine the scope of the problem for our economy. According to the RCMP, in 2011, 80% of counterfeit goods came from China, a 46% increase as compared to 2005.

According to Industry Canada, counterfeiting has increased in recent years:

The retail value of counterfeit goods seized by the RCMP increased from $7.6 million in 2005 to $38 million in 2012.

Of course, that is only counting the goods that were seized.

In 2009, in a report entitled “Magnitude of Counterfeiting and Piracy of Tangible Products: An Update”, the OECD estimated the value of counterfeit and pirated goods in international trade at $250 billion. These numbers speak for themselves. There is an urgent need for effective measures to combat this growing phenomenon.

The Standing Committee on Industry, Science and Technology recently conducted a study on intellectual property. Many businesses testified in support of taking action at the border to fight the increase in illegal counterfeit goods.

In its 2013 report entitled “Intellectual Property Regime in Canada”, the committee made a number of recommendations regarding action to be taken at the border to prevent the import of counterfeit goods.

Similarly, in a dissenting opinion, the NDP members of the committee argued that the Canada Border Services Agency should be given sufficient funding to combat counterfeiting without compromising the other important responsibilities it has in protecting Canadians and defending our border.

Of course, because this was an NDP recommendation and would require an increase in government spending, even though this measure would protect the Canadian economy, the NDP was forced to submit it in a written dissenting opinion, because the Conservatives are too blinded by their ideology to see the benefits of such a measure for our industries. It makes no sense, but this is not the first time something like this has happened, and it probably will not be the last.

This government is full of contradictions. Only now has it come forward with Bill C-8, a nice collection of good intentions, although for years now, our American neighbours have been calling on Canada to bring in tougher measures against counterfeit products.

In its 2012 Special 301 Report, the Office of the U.S. Trade Representative made a statement regarding the Americans' position.

It said, in part, that the United States “continues to urge Canada to strengthen its border enforcement efforts, including by providing customs officials with ex officio authority to take action against the importation, exportation, and transshipment of pirated or counterfeit goods”.

This bill adds two new criminal offences under the Copyright Act for the possession or export of infringing copies and creates a prohibition against importing or exporting infringing copies and counterfeit goods.

Those are great principles. This could help fight counterfeiting, thereby protecting copyright, and help prevent counterfeit goods from entering the Canadian market—which hurts our economy—or passing through our borders and entering the U.S. The problem is that this will take mare than just words.

I actually have to wonder how this government can possibly claim to be serious about fighting counterfeit goods when in their 2012 budget, the Conservatives announced cuts totalling $143 million over three years to CBSA funding. Some $31.3 million was cut in 2012-13 and $72.3 million in 2013-14, for a total of $143.4 million that will be cut from the CBSA budget by 2014-15.

It is not hard to see that these very cuts will reduce the number of front-line officers and impair our ability to monitor our borders.

What is more, this year's report on plans and priorities indicates a loss of 549 full-time equivalent jobs by 2015 at the Canada Border Services Agency. This will reduce the agency's ability to discharge its responsibilities.

In other words, the government is speaking out of both sides of its mouth yet again. On one hand it says it wants to fight fraud, which is a good thing, but on the other hand it makes cuts that will prevent our border services from doing their job.

This bill gives even more responsibilities to CBSA just as the government keeps reducing the agency's ability to discharge them. Is that really what the government is proposing? I fail to see the logic in that.

Jean-Pierre Fortin, national president of the Customs and Immigration Union, commented on the 2012 budget cuts to the Canada Border Services Agency and how they would reduce border officers' ability to do their work:

These proposed budget cuts would have a direct and real impact on Canadians and our communities across the country: more child pornography entering the country, more weapons and illegal drugs will pass through our borders, not to mention terrorists, sexual predators and hardened criminals.

That is frightening.

In 2012, the union president was already saying that the agency would have a hard time protecting our territory. I wonder where the government thinks the necessary resources will come from for combatting the import of counterfeit goods, protecting Canadian industries, their transit from Canada to the United States, or for protecting Canadians from counterfeit products that might be dangerous for their health and safety, when it keeps cutting the agency's budget.

To effectively combat the entry into Canada of counterfeit goods, we need a lot more than words and good intentions. We need the means.

The NDP supports the measures that would help Canadian businesses keep jobs and production here, instead of transferring them to countries that have stricter copyright protections.

The NDP also wants to ensure that enough funds will be available so that laws like the one proposed in Bill C-8 can realistically be enforced, and so that the agencies responsible for enforcing them do not have to make choices that could compromise their other responsibilities, thus jeopardizing the safety of Canadians.

In this case, if the government is truly serious about wanting to crack down on counterfeit products coming into our country, it will have to give Canada Border Services the means to fulfill all of its responsibilities. The government will have to revise its decision to decrease the agency's budget and reverse the trend of reducing the number of front-line officers.

As I mentioned at the beginning of my speech, the New Democrats support the underlying principles of the bill and will vote in favour of the bill. We just want to ensure that this is not in vain.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, it is a great honour to rise in the House and speak to Bill C-8 on counterfeiting measures.

I have spoken many times over the last 10 years on these issues. In terms of legislative issues, often the issues regarding copyright, counterfeit, and trademark have been blurred, and there is a need to come up with coherent policies that protect citizens and rights holders.

This is not an easy situation, because we are in a market that has transformed itself incredibly since Lord Macaulay, in 1841, talked about the need to protect the writers of the time. He said we have to stop “the knaves who take the bread out of the mouths of deserving men”. Lord Macaulay believed there needed to be copyright provisions, but he also said there had to be a balance, that it was not about creating a monopoly for a certain group of book holders in London to stop upstarts who wanted to come in.

We know the story of the reason Hollywood exists. It is because California at that time was beyond the copyright laws of the Thomas Edison corporation. They moved out to the desert, not because it was beautiful but because they were the original pirate culture. They set themselves up and created an industry. The issue of these balances throughout history is a difficult act.

We have seen WIPO and ACTA, the secretive anti-counterfeiting trade agreement that received great international backlash from ordinary citizens because it was blurring the roles between domestic copyright policies, citizens' rights policies, and the issue of counterfeit.

Where this comes in is that we need to ensure that we can protect our rights holders and citizens from the counterfeit goods and bootleg operations that are undermining our economy. We need to ensure that we have the tools to go up against them.

When we see large corporate rights holders say they want to spread that across the board, we end up with an overreach, as with my colleagues in the Liberal Party saying we should go after individuals when a kid downloads a song and sends it to three friends.

The United States attempted, through its Digital Millennium Copyright Act of the 1990s, to create a legalistic response to the issues the digital culture was creating. After 35,000 lawsuits against citizens, the market did not come back. What was missing from the market at that time was a coherent plan for the remuneration of artists, who were facing some very difficult and challenging conditions because of the ease of copying. It used to be the only people who could actually copy were the ones who had the means of production, the bookbinders and record companies, but suddenly ordinary citizens could make copies, so the right to make copies became very challenged.

Canada had come up with one of the those solutions, which was the private copying levy. We recognized in Canada that people were going to make all manner of copies and that it would be impossible to remunerate artists for all the copying going on, so for every cassette that was produced, a few pennies were put aside into a fund for artists. The decision by the Conservative government to kill the private copying levy has cost the Canadian music industry $25 million a year. Given the conditions of the music industry in Canada, that is $25 million we cannot afford to lose.

Under the latest copyright act, the government killed the mechanical royalties for musicians and for the record industry, which is millions more. At a time when the artistic culture of our country is suffering very much, the need to remunerate those artists has been steadily whacked away. There is the issue of collective copying regimes in schools. It certainly needs to be updated because of the digital culture, but to simply undermine it would leave artists working for free and would make the intellectual and artistic development of our country much more challenged.

The other issue we are seeing now is the copyright board's rules on live streaming. In the United States, it is an abysmal situation. As an example, Lady Gaga was paid $162 in royalties for over a million plays. I think that was through Spotify, the streaming service.

For someone of the magnitude of Lady Gaga to receive a $162 cheque shows you just how impossible it is for any other mid-size artist to make a living and run a business doing the kind of music that is Canada's premier export. We can talk about our oil and gas and mining, but the talent that has come out of Canada in terms of music, our artists, playwrights, internationally, this is an industry that we cannot afford to undermine anymore.

In the United States the streaming royalties set by its copyright tariffs are so low that it is undermining the ability of any artist to survive. The Copyright Board of Canada has set it at 10% of the American rate. Therefore, they are living as paupers in the United States with what their copyright board has set for this new medium and in Canada it is only 10% of what the rate is in the United States. We would assume then if Lady Gaga had one million plays in Canada, she would get $16.50, which would make anyone decide to go and work at Tim Hortons rather than be an artist in this country.

Those are the issues we are facing in terms of the need to protect our artists. How do we protect our artists? We do not criminalize the consumer. We create a monetary stream. That is a reasonable solution. In terms of counterfeiting we have to separate the issues around protecting our artists and giving them the tools they need to be able to prosper, from the issues around being able to go after the counterfeit gangs.

I will stay on the artists' situation for one more minute. Where we have small businesses or small creative artists, if their trademarks or arts are taken by some counterfeit gang in China and reproduced, they have no mechanisms to go after them. Individual and small rights holders have no ability to go after these counterfeit operations. Sony and Warner Bros. can, but the individual creative rights holders who has their work stolen has no ability. If we are looking at international trade agreements, how do we provide provisions so that the small creative artists who are having their works stolen can respond?

The bill is really an attempt to bring Canada in line with what came out of the ACTA negotiations, which were secretive. It was an overreach. It was a process too beset by lobbyists to be credible and when it came to the public, there was a huge backlash. It was interesting to see that the backlash was in Europe. Therefore, we see some of these provisions have been modified somewhat.

Now the border guards are able to seize counterfeit goods at the border. That is a good provision because rights holders actually had to go to court and get a court order before, so it was very difficult. Giving border guards the ability to seize goods at the border is a reasonable solution to dealing with criminal counterfeiters. Counterfeit operations undermine our economy and they also undermine basic health and security in this country.

Again, I want to point out that our Liberal colleagues wanted to extend this to be able to go after individuals who are travelling, which would have made it the ultimate harassment tool for anyone travelling anywhere internationally. You could be pulled out of a line and told that officials wanted to look at your iPod and go through every one of your songs. My kids send me songs that they have downloaded, maybe from iTunes, but I would be liable for that. That would be an overreach, so the Liberal position of going after individuals and criminalizing individuals when the focus of our border guards should be going after the criminal gangs is very wrong-headed and out of step with pretty much the rest of the world, although maybe North Korea might side with them on that one.

If we are going to have counterfeit laws we need the resources so that border guards can go after counterfeiters. We have seen massive cuts in border services. We also need resources for the police because they still do not often see that this is an issue, going after the knock-off goods, going after the bootlegged DVDs. Perhaps we need to look at provisions that provide our police services with the incentive to clean up some of the illegal trades in goods that have undermined our economy and undermined safety for Canadians.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, as a parent I am very concerned about some of these counterfeit items. I talked about batteries exploding, and a number of Canadians have died from these sorts of products.

As a father of two children, I am very concerned, especially about batteries and such, because my son uses batteries in a number of different gadgets that he has.

The other case I pointed out was on the airbags that were being sold into the United States by an individual from my city. He has been jailed for six months in the United States. This is a very recent case. One would think that airbags would deploy and work properly when they are needed.

These are very serious health and safety issues for all Canadians. To detect these products and ensure that they do not come into the market, we need CBSA officers to inspect the goods that are coming in, so making cuts to the numbers of those officers is not going to help.

I encourage the government to provide the resources so that we can properly implement Bill C-8.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the NDP will support Bill C-8. Of course we will, because this bill will protect Canadians. We are in favour of that, just as we are in favour of day care and minimum wage. Voting for a good law is fine, but making sure it gets implemented is essential. This is becoming quite scandalous; an experienced leader like the Leader of the Opposition would never have done such a thing. In this particular case, what can we expect from the legislation when the people responsible for enforcing it have had some 500 positions cut? What can we expect from a bill that does not apply to generic prescription drugs? There are criteria governing the quality of patented drugs, but the government takes no responsibility for generic drugs. That is the problem. I would like an answer about that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, with all due respect to my hon. friend from Surrey North, we have limited time to debate Bill C-8 in this place, and his response has gone slightly off topic unless there are Iraqi goods to which counterfeiting measures would apply.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, the member for Hamilton Mountain made a very passionate and eloquent speech on this particular bill, and I would like to thank her for providing that very useful information to the House.

I rise today on behalf of my constituents in Surrey North to speak to Bill C-8, the combating counterfeit products act. The title of the bill requires that we all agree to issues like this in the House. It is very rare that all parties agree on certain issues in the House and move forward an agenda that is in the best interests of Canadians.

It is a pleasure to speak to the bill today to support a piece of legislation on which all parties are in general agreement. Often in the House, it seems impossible to move forward and create meaningful legislation that all parties can agree on. Of course, no piece of legislation will ever be perfect to every party, but when we have the opportunity to advance the legislative agenda in this country and create legislation surrounding important issues, I gladly welcome the progress.

As members of the official opposition, it is our duty to ensure that legislation is carefully considered and questioned, and that dissenting opinions are publicly expressed and debated. However, as embodied by our late leader, Jack Layton, there is also great value in working together. I believe that the bill will be a step forward for all Canadians.

Issues surrounding counterfeiting, copyright and trademark infringement, and intellectual property are, without a doubt, complex matters that may seem far removed from the lives of normal Canadians. However, in reality, these issues have a direct impact on all Canadians, especially with regard to their health and safety. I truly believe that as elected officials, we should work to make this country as safe as possible for all citizens. Counterfeit goods have the potential to put the health and safety of Canadians at risk, and as such, it is time that we strengthened our laws against counterfeit goods.

Dealing with counterfeiting and infringement is important in protecting Canadian consumers who may unsuspectingly purchase counterfeit goods that could put their health and safety at risk. As the member for Hamilton Mountain pointed out, there is a lack of awareness with regard to counterfeit goods across the country, with many consumers not knowing whether a particular product is counterfeit or not. Certainly, more education and information for consumers would be another step that we could take to inform consumers, but that is another issue.

The talk of counterfeit products intuitively brings to mind images of the knock-off designer handbags, sunglasses and watches that we frequently see. I am sure that it is hard to imagine how these products might pose a risk to the health and safety of Canadians. These types of products breed different problems in that they undermine the value of the original product and capitalize on the creativity of another company by infringing on its intellectual property. By dealing with counterfeiting and infringement, as we are attempting to do with the bill, we will hopefully also cut down on counterfeit products of this nature, which are serious infringements on rights holders.

What concerns me most are the products that pose a health and safety risk to Canadians. While researching the bill, I read about counterfeit batteries that exploded in the desks of police officers who had stored them there. I also learned that acid leaking from counterfeit batteries has caused burns to at least eight Canadian children.

I am a parent myself. My young son is eight years old and he has a number of electronic gadgets that he plays with. It is not just my son who plays with these toys, as his friends from around the neighbourhood play with them, too. The batteries often run out and he comes to me or his mom and asks for new batteries for those gadgets. It scares me to think there are counterfeit batteries out there that my son or another child could be exposed to, which could be hazardous to their health. As a parent, I am concerned. We need to take steps to ensure that these counterfeit products are not on the market.

It is terrifying to hear that these types of goods are in our society and our kids could be using them. It scares me to think that Canadians have to fear that the batteries their children use in their remotes for their video games or TVs might injure them. This is merely one example of an ordinary household product that we unassumingly utilize in our everyday lives. We hardly expect something like this to harm us.

I will give the House one more example of counterfeiting that poses a serious health and safety risk. Just a few days ago a man from Surrey was sentenced to six months in prison in the United States for selling counterfeit vehicle airbags. All Canadians would be seriously concerned if they found they had counterfeit airbags in their cars that might not deploy properly. This is a safety device that we often take for granted. On the rare occasion that they would be used, we assume they would protect us. The consequences of counterfeit products like this not working are serious. Serious injury or even death could result. This is a prime example of a safety risk stemming from a counterfeit product. We need to protect all Canadians from this type of counterfeiting.

The technical details of Bill C-8 would add two new criminal offences under the Copyright Act: the possession of and the exportation of infringing copies and selling or offering counterfeit goods on a commercial scale.

The bill proposes to create a prohibition against importing or exporting infringing copies and counterfeit goods and introduces a balance to the prohibition by creating two exemptions: for personal use and for items in transit control. I will speak to that aspect of the bill later in my speech.

Bill C-8 would also grant ex officio powers to border officials to detain infringing copies of counterfeit goods. This is a significant policy shift as until now border guards required the private rights holder to obtain a court order before seizing infringing copies of goods. This policy change would grant much greater power to front-line officers to prevent counterfeit goods from entering the country.

Additionally, Bill C-8 would grant new ex officio powers to the Minister of Public Safety and border officials to share information on detailed goods with the rights holder.

I have another serious concern with Bill C-8 in regard to how the provisions of this legislation would be implemented.

Over the last four years, I have seen the government bring in legislation which could basically be considered a paper tiger. Legislation needs to have teeth. There also has to be the necessary resources to implement legislation that the government brings into the House. That is the case with this legislation as well.

This legislation would help Canadians look after their health, but no resources have been allocated as to how the legislation would be implemented or how CBSA would implement some of the provisions in the bill. It is extremely unclear how CBSA would implement enforcement measures introduced in Bill C-8 in the face of the cuts from budget 2008.

Budget 2012 slashed $143 million in funding to CBSA, which in turn reduced front-line officers and weakened our ability to monitor our borders. The New Democrats understand that CBSA needs to be adequately resourced in order to carry out this new work that we expect from it in a manner that does not take away from the other very important work it already performs.

This $143 million in cuts to CBSA over three years will equate to a loss of 549 full-time equivalents between now and 2015, according to this year's CBSA Report on Plans and Priorities.

The changes proposed by Bill C-8 will require that CBSA dedicate additional resources to areas such as intelligence analysis, port of entry examination and officer training. However, to accomplish the goals set out in the bill without additional funds, CBSA will have to re-allocate internal sources. This puts at risk many of the other extremely important work that CBSA perform.

If we look at some of the other bills the government brought in, on one hand, it brings in some legislation that will be tough on crime. On the other hand, it cuts funding to preventive programs that require either monitoring of individuals or reintegration of some of the people who will be out of jail. The government is creating these paper tigers, while at the same time it is not only cutting the very people who will be enforcing the legislation, but it is also cutting some of the remedial funding that is needed to ensure these kinds of laws and regulations actually work in real life.

It is very discouraging that we are trying to protect the health of safety of Canadians, of balancing that with the copyrights, while at the same time cutting the funding for the very officers who would be monitoring all of this. That is very troubling.

The men and women of the Canada Border Service Agency have the extremely important job of defending our borders in every respect, and they put their lives on the line every day to ensure our borders and our citizens are safe. The New Democrats believe that CBSA needs to be adequately funded in order to carry out the provisions of the bill effectively so it can continue to do its job without compromising its other important responsibilities in protecting our borders and our citizens. I hope the government will take steps to ensure CBSA has the resources needed to perform the duties that are being asked of it under Bill C-8.

As I mentioned earlier, I want to speak to the exceptions that are included in the bill, including the exception for personal use and for items in transit control. The personal use exemption means that border officials would not be permitted to seize copies that would be in one's possession or baggage. The provision for items in transit is also important in providing balance in the bill for items that may be destined for a location to which they are being imported lawfully. These are important exemptions to ensure that on the whole, this system is workable and cost effective.

As I mentioned earlier, budgetary restrictions on border officers already pose challenges to the implementation of the bill. These exemptions would ensure that Bill C-8 would not create longer border delays, increased searches of individual travellers as well as put an additional burden on CBSA officers.

I come from Surrey, which is only a 10 or 15-minute ride from the border, and I have already seen long lineups at the border going both ways. In the Lower Mainland of B.C., a lot of the jobs are created by tourism. As we know, one of the best places to live is British Columbia, in Surrey, Vancouver and greater Vancouver. There are a lot of visitors from the states and, likewise, Canadians go south of the border. Many times I have seen hours and hours of long lineups either to get into the United States or to come to Canada.

There should not be cuts to the very people who look after our borders. The cuts to CBSA over the last number of years, and cuts that will happen in the next few years, have put extra burden on these individuals. I hope the government takes into consideration that cutting the very people who are patrolling our borders, CBSA officers and RCMP, is going to have an impact not only on the movement of people from one side to the other, but also goods, which would hurt the economy in which we operate. It also hurts jobs. Cutting the funding for these border services officers will impact not only how we implement this bill, but will have an impact on the movement of goods and services across the border.

The New Democrats believe that intellectual property requires an approach that strikes a balance between the interests of rights holders and the interests of users and consumers. These exceptions are important provisions that work to maintain this delicate balance.

I am glad to see the Conservative government put forward legislation that essentially all parties can agree on. That is an important step in protecting both businesses and consumers in Canada. Although I am not hopeful, I hope the government will take my comments about the need for more resources to be allocated to CBSA under advisement and work to ensure the bill is implemented effectively.

The member for Hamilton Mountain talked about the New Democrats introducing amendments that would improve the bill. I have seen in other committees where the government brings in legislation, many experts testify before committee and offer very thoughtful suggestions that could improve bills further to ensure they are workable, in the best interests of Canadians and close any sort of loopholes. As usual, time after time, whether it is this bill or other bills, the government has failed to take those suggestions into consideration.

Surely, after many thousands of suggestions, whether by the official opposition, the New Democrats, or experts from many different organizations across the country, the government would consider some of those suggestions to improve bills. Time after time, it has not accepted amendments offered by us.

I hope the governing party takes my advice with regard to providing more resources and implementing Bill C-8.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I want to thank my colleague for the question. On raising the integrity of medicines and the health and safety of Canadians with respect to the medications that they take, he is, of course, spot on.

I think the member was referring to matters that we raised in question period here on this side of the House with respect to Apotex and the fact that the Parliamentary Secretary to the Minister of Health effectively said that they raised the issue of unsafe drugs with the company but the company refused to act, as if that somehow were good enough for Canadians. Clearly, it was not.

Now, in Bill C-8, we have that issue before us again. We moved amendments in committee to make sure, as I said, that consumers would still be able to take generic drugs with the confidence that they were taking the right medication. We are now able to have generic drugs with the same shape, colour and size as the original medications precisely so that consumers can have confidence in the system. That is absolutely imperative.

The other question we have to ask ourselves is this. If we are creating this framework to keep Canadians safe, why are we cutting the resources for both the RCMP and Canadian border officials, which would make it impossible to enforce that regime?

Those resources have been cut dramatically. Over 500 full-time jobs will be gone. How can Canadians have confidence that, even with this new regime, the necessary enforcement will be there to keep them and their families safe?

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I would like to thank my distinguished colleague for having so ably defended Bill C-8.

Clearly, the NDP always sides with Canadian consumers. The best example of that is when it comes to medication. The government waited three years to take medication with major defects off the market. That is a mistake that an honest and experienced leader, such as the Leader of the Opposition, would never have made. He would not have waited three years, I can tell you that.

Like all our policies, Bill C-8 is very much in line with our support for the minimum wage, our insistence that the health care cuts be reversed and our call for an inquiry into missing aboriginal women. In other words, with Bill C-8, is the NDP not demonstrating that it wants the government to work for Canadians, first and foremost?

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, trying to get into the heads of my Liberal colleagues is a very daunting proposition. I am not really prepared to do that.

I do know that when we were at committee my colleagues on our side of the committee room were quite surprised at the Liberals' approach. Every bit of expert testimony we had suggested that their proposed amendment would be a huge infringement on civil liberties. We found ourselves in the very strange position as New Democrats of voting with the Conservatives in maintaining the balance. It is indeed a very crucial balance that we tried to achieve in the bill between consumer rights and still being able to go after counterfeit goods.

I very much appreciate the question. I do not have an answer. I have no idea why the Liberals wanted to infringe civil liberties through the implementation of Bill C-8. It certainly made no sense to us.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, it is my pleasure to rise in the House today to speak to Bill C-8, the combating counterfeit products act. What a great short title for a bill. Who could possibly not be against counterfeit products coming into our country, especially when they may pose serious health and safety risks for Canadians? Certainly New Democrats are against that. However, despite the fact that the bill tries to frame the debate in the now infamous George Bush way of suggesting “you are either with us, or you're against us”, my NDP colleagues and I take our responsibilities here in the House very seriously, and we proposed a number of amendments that would have vastly improved the bill. So yes, despite supporting the thrust of the bill, we were at times critical of some of its provisions.

Let me not get ahead of myself. I will speak to our proposed amendments in due course. First though, let me spend a moment commenting on the bill as a whole. Bill C-8 would amend both the Copyright Act and the Trade-marks Act so as to strengthen enforcement of copyright and trademark rights and to curtail commercial activity involving infringing copies or counterfeit trademark goods.

To that end, the bill would add two new criminal offences under the Copyright Act, for possession and exportation of infringing copies, and create offences for selling or offering counterfeit goods on a commercial scale. It would also create a prohibition against importing or exporting infringing copies and counterfeit goods and introduce some balance to that prohibition by creating two exceptions: one, for personal use, meaning items in one's possession or baggage; and two, for items that are in transit.

On the enforcement side, the bill would grant new ex officio powers to border officials to detain infringing copies or counterfeit goods. This is a significant policy shift. Until now, border officials required private rights holders to obtain a court order before seizing infringing copies or goods. I will have much more to say about that in a moment, but first let me continue with my quick overview of Bill C-8.

The bill would also grant new ex officio powers to the Minister of Public Safety and border officials to share information on detained goods with rights holders. Lastly, it would widen the scope of what can be trademarked to the features found in the broad definition of “sign”, including colour, shapes, scents, taste, et cetera.

There can be no doubt that dealing with counterfeiting and infringement is important to both Canadian businesses and consumers, especially as I said before, where counterfeit goods may put the health or safety of Canadians at risk. However the bill is only as good as its enforcement. The strongest laws in the world do not mean a thing if governments are not willing to dedicate the necessary resources to crack down on counterfeit products coming into our country. When I look at the Conservative government's track record in that regard, I fear that we might be creating a paper tiger.

It is very difficult to see how a bill like this would be implemented, when last year alone the Conservatives slashed $143 million in funding to the Canada Border Services Agency, which further reduced front-line officers and harmed the agency's ability to monitor our borders. In fact, CBSA's report on plans and priorities indicates a loss of 549 full-time employees by 2015.

When I asked the minister about that at committee, he said that no new resources would be needed to implement the bill, but that means that border officials and the RCMP would have to reallocate existing resources to enforce this new law and that begs two questions. Which of the functions that they are currently performing to keep Canadians safe are they going to drop to enforce Bill C-8; or are they really not going to get serious about combatting counterfeit goods, in which case, why are we passing this bill? We never did get a satisfactory answer to that question, but it is a point that we will continue to press because it is critical to the successful fight against counterfeiting.

I want to move on now to a different issue. Canadians will remember that my NDP colleagues and I have often criticized the Conservative government for failing to take a balanced approach to copyright legislation in the past. The government's record was far from stellar. I do want to give the government some credit where credit is due. Bill C-8 contains important measures to protect consumer and individual rights, and my NDP colleagues and I worked hard at committee to make sure that these measures were maintained and strong.

When dealing with intellectual property, it is imperative that we adopt an approach that strikes a balance between the interests of rights holders and the interests of users and consumers. At first, alarm bells went off when the deputy minister for the Department of Industry said that Bill C-8 would bring Canada in line with the Anti-Counterfeiting Trade Agreement. ACTA contains copyright provisions that have been heavily criticized for failing to achieve this necessary balance. The European parliament rejected ACTA after an unprecedented outcry because its benefits were far outweighed by the threats to civil liberties.

Those threats included the risk of criminalizing individuals, concerns about the definition of “commercial scale”, the role of Internet service providers, and the possible interruption of the transit of generic medicines. In the end, the European Parliament rejected the anti-counterfeiting trade agreement.

I was therefore happy to see that Bill C-8 is much narrower than ACTA and that it contains a number of provisions that offer balance. There are important personal-use exceptions and exceptions for goods that are in transit. Most important, the bill does not address Internet service providers. Therefore, while my NDP colleagues and I continue to be concerned about the broader provisions in ACTA, we are comfortable supporting Bill C-8.

Ironically, it was the Liberal Party that, at committee, threatened to undermine the important balance that Bill C-8 struck. In fact, it moved two amendments that we worked hard to defeat precisely for that reason.

The first Liberal amendment was to remove the personal-use exception for individual travellers, a provision my NDP colleagues and I believe is absolutely crucial to bringing some balance to the bill.

As Dr. Michael Geist, Canada Research Chair in Internet and E-commerce Law, put it in his blog:

Given that personal use exceptions are even included in the Anti-Counterfeiting Trade Agreement, it is shocking to see any party proposing their removal, which would result in longer delays at the border and increased searches of individual travellers...“this was one of the important provisions that brought some balance to the bill.”

Professor Jeremy de Beer added that:

...the personal use exception...[is] important...to make the whole system workable, manageable, and cost-effective. It's not possible to do everything within the resource allocations and the training parameters that our agents are provided with. So the system in the bill as it is creates a very pragmatic, workable starting point, and I would encourage us just to leave it there.

Thankfully, the Conservatives agreed with us, and the Liberal amendment was defeated.

The same was true of the Liberal amendment to add statutory damages to the bill. Having already proposed removing the personal exception for travellers and a simplified procedure for the seizure of goods that would remove court oversight in the destruction of goods in a greater number of cases, the Liberals proposed an amendment to add statutory damages, with a mandatory minimum of $1,000 and a maximum of $100,000 in liability. The provision would limit the discretion of judges to order damages based on the evidence.

Again, I am going to quote the expert testimony by Dr. Geist at our committee:

With respect [to trademarks], statutory damages...are unnecessary. Rights holders frequently cite the specific value of their goods and the harms associated with counterfeiting. If the claims are accurate, demonstrating the value for the purpose of a damage award should not be difficult.

Moreover, other countries have experienced problems with statutory damages for trademarks. For example, Taiwan reformed its trademarks statutory damages provision when courts began awarding disproportionate awards. In the U.S., statutory damages for trademarks has led to trademark trolls engaging in litigation designed primarily to obtain costly settlements against small businesses that can ill afford to fight in court.

Again, my NDP colleagues and I were adamant that this amendment be defeated, because it not only undermined the delicate balance achieved by Bill C-8 but actually went beyond what even ACTA had envisioned.

Not all proposed amendments were bad, however, and as I said at the outset, there were sections of the bill that could, and should, have been strengthened. To that end, I want to spend the remainder of the time available to me here to highlight just a few of the amendments my NDP colleagues and I moved in committee in a sincere effort to improve the bill.

The first was one that all parties ended up agreeing to, which was that we needed to return to the original definition of “distinctive” in the Trade-marks Act.

I understand that squabbling about definitions may seem as exciting as watching paint dry, but in this case, it was important that we get it right.

As the generic drug industry persuasively argued before our committee, there is significant case law to make it possible for a generic version of a drug to have the same colour, shape, and size as the brand-name drug with the same effect. This is absolutely crucial for the patients who are using those drugs, since any confusion could have deadly consequences.

To throw that case law into doubt by changing the existing definition for no demonstrably important reason made no sense to any of us on the committee.

I am pleased to say that the original definition is now restored in Bill C-8. Sadly, the spirit of co-operation did not extend to other amendments that would have been equally important to ensuring that the intent of the bill was actually reflected in its language. For example, the NDP moved amendments to Bill C-8 that would have ensured that parallel imports would be excluded from the bill's reach.

Intellectual property lawyer Howard Knopf told us:

The bill should propose appropriate declaratory language for both the Copyright Act and Trade-marks Act that makes is [sic] absolutely clear that, with the exception of the sui generis book importation scheme now found in s. 27.1 of the Copyright Act, neither of these acts shall in any way restrict the importation, distribution or sale of any product, whether tangible or digital, that has been manufactured or first put on the market anywhere in the world with authorization.

This is crucial, because parallel importation is an important tool for many businesses for participating in perfectly legal trade, which we would not want to discourage. Yet the bill is unclear as to whether trade like this could unintentionally get caught under this bill. We of course continue to expect that important health and safety standards are met by all parallel imports, but at the same time, we want to ensure that small and medium-sized businesses, and in fact businesses of every kind, can continue to engage in parallel importation.

We heard from Jeremy de Beer at committee. He said:

...I've consulted with a number of my expert colleagues, other intellectual property experts—we don't understand how this doesn't apply to parallel imports. If it's inadvertent, then it's an easy fix. If everybody agrees this shouldn't apply to parallel imports, then we just add an exception for parallel imports and the matter's closed.

We could not agree more, but unfortunately, the government rejected the amendments that would have added that much-needed clarity to the bill.

Our NDP amendments to create a duty to use the measures of the bill in good faith unfortunately met the same end. The intent of our amendments was to counter vexatious litigation and to prevent a rights holder from using detentions and delays to harm a competitor in cases where there was no legitimate counterfeit infringement concern. This is especially important for small-business owners whose businesses may not be able to survive the costs of malicious or bad-faith claims. Again, this was a concern that was raised in testimony to our committee.

Michael Geist made this clear:

...detention of goods can be used to harm small Canadian businesses that could find the goods they are seeking to import detained, oftentimes by competitors. The absence of a misuse provision in this bill is particularly notable in this regard.

Our amendments should have been seen as friendly. They were in keeping with the spirit of the legislation and simply sought to improve enforcement mechanisms without creating new barriers to competition. Sadly,the government rejected our good-faith efforts to improve the bill.

In a similar vein, we tried to amend Bill C-8 to address the costs that may be borne by small businesses for the wrongful and mistaken detention of goods. As the bill is currently written, it contains a “no liability” provision for the crown and provides for damages against rights holders in cases where court proceedings are dismissed or discontinued. In attempting to strike an appropriate balance between consumer and industry interests, Bill C-8 would place the cost of detaining suspect goods on the rights holder. However, as we heard during testimony at committee, Bill C-8 is clearly lacking misuse provisions to ensure that actors are not engaging in frivolous claims as a means of acting anti-competitively. As a result, our amendments sought to provide the courts with the clear authority to provide for damages where any court action is determined to be frivolous, vexatious, or made in bad faith.

Without creating a new barrier for rights holders to protect their copyright or trademark, this amendment would create a safeguard to ensure the integrity of the system and would protect small businesses from the possibility of a company abusing the provisions of Bill C-8 for anti-competitive purposes rather than for protecting their legitimate intellectual property. Although we again believed that these amendments would be deemed to be friendly by the government, we were mistaken. These two were defeated, and in our view, it was an important missed opportunity to make the bill stronger.

The last NDP amendment I want to highlight here was our effort to create a tool for assessing whether the bill would actually be effective in combatting counterfeit products, as the bill's title would have us believe it would be. When my NDP colleagues and I asked in committee whether it was possible to ascertain the extent of the problem of counterfeit goods coming into our country, the answer was a resounding no. At best, we know the value of the seizures that were made. As the RCMP told us, the retail value of counterfeit goods they seized increased from $7.6 million in 2005 to $38 million in 2012. However, that does not account for any of the goods that were not detected as they crossed our borders.

That is a significant concern, especially since, as I said earlier, the government has cut the ability of Canada Border Services to do its job by slashing the agency's budget by $143 million. That cut has seriously harmed our ability to monitor our borders.

We know that the problem is bigger than the numbers reflected in the RCMP's seizure stats, but accurately measuring the scale of counterfeit copies and goods in Canada remains difficult. This is owing to the clandestine nature of counterfeiting. In addition to the actual seizures, much of the data are estimates based on anecdotal information or are from industry itself, in which case, the collection methods may be unavailable to assess.

What we do know is that counterfeit products can pose risks to the health and safety of consumers, whether we are talking about counterfeit electrical components, faulty brake pads, or unsanitary stuffing in goose down jackets.

According to the Chamber of Commerce's Canadian Intellectual Property Council, counterfeit batteries have exploded in the desks of police who have stored them, and the acid leaking from counterfeit batteries has caused burns to at least eight Canadian children. It is precisely for those types of safety reasons that it is essential that we know the scope of the problem. How else can we know whether we are assigning the appropriate resources to dealing with the problem of counterfeiting?

When I raised this issue with the Minister of Industry in committee, he acknowledged that there are no more accurate estimates out there. When we asked the RCMP whether it had numbers, just with respect to the number of Canadian manufacturers who have been convicted of importing or exporting counterfeit goods, we were told that it had no figures for that either. Therefore, it seemed to us that the bill could create an important opportunity to require accurate information to be both collected and reported so that Parliament, and more importantly Canadians, would have a better way of evaluating whether we were being successful in addressing the concerns at the heart of this bill. In fact, we were simply echoing the recommendation of the industry committee in 2007, which called on the government to establish a reporting system that would track investigations, charges, and seizures for infringing copies and counterfeit goods as a means of collecting some data.

Our proposed amendment had the support of the Canadian Association of Importers and Exporters. Joy Nott, the president and CEO of the organization, responded to a question from me by saying:

Do I support the monitoring of this sort of thing? Absolutely I do. I think that's a great idea because, from a business perspective, business lives on metrics and on data. This is how they help to make decisions. Right now when it comes to copyright infringement, trademark infringement, and the ability to import into Canada, it's a little bit like the wild west in that there's nothing that stops these shipments at the border currently unless the owner of the trademark takes specific, very onerous action through Canadian federal courts to register something.

Since there seemed to be agreement that a reporting requirement would be an important improvement to Bill C-8, we moved an amendment to require an annual report to Parliament with information on detainments made under the bill. We had hoped for information on the number of detainments, the number of requests for assistance under both the Copyright Act and the Trade-marks Act, and the number of inspections conducted. Sadly, the government members voted to defeat this amendment, and once again confirmed for me that this government has complete disdain for evidence-based decision making.

Despite the fact that our amendments were defeated, we continue to be supportive of the bill as a whole. In this case, at least it is a start. Dealing with counterfeiting and infringement is important for both Canadian businesses and consumers. Members can rest assured that with or without a report back to Parliament, we will not stop holding the government to account on this important file. Without adequate resources for enforcement, C-8 will prove to be a paper tiger. That cannot be allowed to happen, especially when the health and safety of Canadians may very well be at risk.