Mr. Chairman, ladies and gentlemen members of the committee, thank you for inviting us to appear today.
My name is Pierre-Emmanuel Moyse and I am a professor at McGill University and member of the Intellectual Property Policy Centre at that same institution. My comments will be limited to a fairly theoretical point which is at the heart of international trade concerns—namely, exhaustion and, primarily, international exhaustion.
Very briefly, copyright has to do with reproduction and communication, but not only that. In some provisions, copyright also makes it possible to control the circulation of the copies themselves as tangible objects.
That copyright control over tangible objects runs the risk of creating a form of interference with the circulation of goods, and it is in this context that the concept of exhaustion was first developed. Exhaustion can be either national or international.
At the national level, the principle is exceedingly simple. Once the author has produced a work and, with the author's authorization, that work is on the market, the buyer or owner of the good is free to dispose of it as he sees fit. In other words, there is no longer any copyright control over the destination or the ultimate use that is made of the copy, which explains the fact that books can be sold on the used book market or that someone can buy a poster and change the format, as demonstrated in the famous case of Théberge v. Galerie d’Art du Petit Champlain inc.
This point is not particularly problematic. What is of more concern is international exhaustion of rights. That has been the Achilles' heel and focus of all the policy discussions on harmonizing rights in Europe. It has also been the focus of discussions on amendments and reforms to copyright in Australia, a country which imports value-added products.
Copyright does come into play and can make it possible to control the circulation of works, particularly through import rights. In that regard, there are two relatively dangerous or worrisome trends. The first relates to the use of that import appeal process in areas that may give us pause. The best example is the Euro-Excellence Inc. v. Kraft Canada Inc., et al. case where copyright was recently used to prohibit the importation of chocolate bars, or at least to hinder such imports.
The second point relates to an anomaly in the bill. On the one hand, it provides for international exhaustion. Under the new paragraph 3(1)(j) which would be added to the current legislation, as soon as the object of the copyright is put into circulation abroad, the right is exhausted. Furthermore, it includes import provisions which restore control over the circulation of these tangible objects to the author. In other words, international exhaustion, as provided under paragraph 3(1)(j), and the import provisions could be contradictory and cause trade policy issues.
Thank you.