Good evening. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law, and I am a member of the Centre for Law, Technology and Society. I appear today in a personal capacity, representing only my own views.
I'm pleased to have the opportunity to discuss the intellectual property provisions found in Bill C-86. As you know, budget 2018 prioritized a national IP strategy, and while aspects of that strategy involve investment in issues such as IP education, there were several legal and policy commitments that required legislative reform.
Many aspects of Bill C-86's IP provisions, I would argue, are both long overdue and welcome. Since abusive intellectual property rights may inhibit companies from innovating or discourage Canadians from taking advantage of the digital market, crafting rules that address misuse can be as important as providing effective IP protection.
There are several examples of how the bill addresses the issue of IP misuse. For example, misuse of Canada's copyright notice and notice system, which was formalized in 2012 to allow rights holders to forward allegations of copyright infringement to Internet users through their internet service provider, has been an ongoing source of concern. The bill amends the Copyright Act to ensure that settlement demands are excluded from the notice and notice process, thereby restoring the original intent of the system.
Patent changes to address patent trolling provide another important reform, I would argue. The bill seeks to combat patent trolls by creating new minimum requirements for patent demand letters, which should discourage the sending of deceptive letters. The rules also include the right for a recipient of one of those letters to pursue damages or injunctions at the Federal Court.
The bill also includes provisions that expand prior use rights, address standard essential patents and create safeguards for research, with a rule that deals with acts committed for the purpose of experimentation not being an infringement of the patent. In doing so, I think the bill restores a better balance to support innovation within the patent system.
Bill C-86 also includes notable reforms to the Copyright Board, including an important reference to considering the public interest in the decision-making process. That's something that the board would say that it would do. Making it explicit in the legislation, I think, is the right thing to do.
It also rightly does not include an expansion of statutory damages among the extensive reforms. Arguments in favour of expansion were unconvincing and would have usurped the role of the industry committee, which is currently engaged in a detailed review of copyright. I think that issue will still be hotly debated as part of the copyright review, but that committee is the appropriate place for discussion of statutory damages, not within a package of largely administrative and governance reforms to the board.
While this represents the positives in the bill, I think there is still some room for improvement. I want to quickly touch on three recommendations.
First, the implementation of some of the reforms, including the patent reforms that I've just described, is likely to be delayed for years, since they are structured to require regulations to define issues such as the requirements to be contained in a patent demand letter. Officials on a call just last week indicated they already know what they'd like to see included. The long delays undermine the likely success of the government's IP policy and innovation strategy. I see little reason not to include those requirements within this bill, as I don't see any reason for the issue to be left to the regulation-making process.
Second, the notice and notice copyright fix is good, but we can still do better. There should be penalties for sending abusive notices. We know that many Canadians, thousands of Canadians, have unknowingly paid hundreds or even thousands of dollars in these cases, and we need penalties for those who abuse the law in this way. There should be common standards established to make it easier for Internet providers to identify compliant notices.
Third, budget 2018 includes several references to artificial intelligence, AI, one of Canada's most important innovative sectors, yet despite the prioritization of both AI and the IP strategy, it leaves a major AI copyright barrier untouched. Several of the world's leading AI companies, including Canada's Element AI, Microsoft and members of the Business Software Alliance, have pointed to the need for an exception for text and data mining or informational analysis. Without such an exception, Canada trails badly behind competitor jurisdictions such as the United States, Europe and Japan, which have already addressed this issue by allowing for data mining without the risk of copyright liability.
Canada should not wait years to address this commercialization barrier. Given the budget's inclusion of both AI and intellectual property as priority areas, Bill C-86 is an obvious place to fix the problem.
I look forward to your questions.
