My opening statement will address some of the questions you've put forth.
First of all, I'd like to thank you all for this opportunity to assist you. I would like to thank Mr. Vallerand for allowing me to share some of his speaking time, because I am not a member of the Coalition pour la diversité culturelle.
My name is Daniel Drapeau. I am counsel with the law firm, Smart & Biggar. I conducted my first seizure of counterfeit goods 13 years ago and I've been active in that field since then. I'm also the past president of the Intellectual Property Institute of Canada's anti-counterfeiting committee, which I've represented within the IP Working Group of the Security and Prosperity Partnership with Canada, the United States, and Mexico.
One thing I noticed during my practice is that there's really something that does not work with the Canadian anti-counterfeiting system. When I took over the presidency of the anti-counterfeiting committee, I noticed that nothing is moving legislatively; hence, my interest in being here today.
Two years ago I took a year off, and as part of that year off, I met with various people in the anti-counterfeiting community: people at the World Intellectual Property Organization; people at the World Customs Organization; people at the Union des Fabricants and the Comité national anti-contrefaçon in Paris; and also rights holders, which are my clients.
I wanted to get a continental European perspective on how Canada is seen in the anti-counterfeiting world. We get beaten on the head quite often by the Americans, but I was wondering, maybe the Americans are exaggerating because we're always on their special watch list. Unfortunately, what I can report to you is that other countries don't see us any better than the Americans do.
When Mr. Vallerand invited me to share his speaking time, I was keen to put this opportunity to good use. Consequently, I will present my thoughts on the weaknesses of the Canadian system, throw out some suggestions for correcting these shortcomings and then talk to you about how the Anti-Counterfeiting Trade Agreement, or ACTA, can help. I have read the transcript of your January 31 meeting.
I will be in a position to provide you with some answers to questions that were made then but to which answers were not provided.
What is a counterfeit? It's important for you to understand what a counterfeit is, because a lot of people are going to try to confuse you by referring to things that are not counterfeits as counterfeit.
A counterfeit is a fake product bearing an indication that would lead the consumer to believe that it comes from a source from which it does not come. A classic example would be a fake Lacoste polo shirt. It's not made by Lacoste but it has a little alligator on it. You can find a host of other products. When I started my career, I did luxury goods. Now I do electrical boxes.
It's important to note that counterfeits are not grey goods. Grey goods are authentic goods that come into Canada in violation of the Canadian distributors' rights. That's what the Supreme Court decision in Euro-Excellence two years ago was all about. That's not counterfeit. But these items will often be confused with counterfeits.
Nor are counterfeits goods that bear a trademark that is confusingly similar to the genuine one, say, some other form of reptile besides the little alligator. These are not counterfeits. Counterfeits reproduce the trademark.
The reason I place emphasis on this is that it's really pretty cut and dried. You don't need to debate this ad nauseam. It's goods that are lying, basically.
As a parallel to counterfeits, you'll also hear about piracy. Piracy is the unauthorized copying of a work—like software, a book, or a movie. That was partly addressed right after Arnold Schwarzenegger paid us a visit in Canada. That's not what I'm here to talk to you about today.
ACTA is an initiative that was launched in 2006 by the Japanese and the American governments. One question that was asked at the January 31 hearing is, why was this done outside of WIPO? WIPO is the United Nations agency for the protection of intellectual property.
There's a simple answer to that question. WIPO, at least as far as anti-counterfeiting efforts are concerned, is paralyzed by a north-south conflict. The north wants to have protection on IP. The south wants to have access to IP and protection of traditional knowledge and traditional culture. Things aren't moving at WIPO in respect of anti-counterfeiting. Also, WIPO can only suggest. It doesn't have un pouvoir contraignant.
Another question asked on the 31st is, why was this done behind closed doors? This is a criticism that has been levied against the act of process quite frequently.
The answer is very simple. It enables countries with often diverging views of intellectual property protection to discuss the issue more openly.
The real answer as a Canadian is that it's a lot less embarrassing for us if the comments are made privately than if they're made publicly.
There have been some comments that ACTA was brought about to bring Canada in line. ACTA is now at a stage where the final text was approved in Tokyo in October 2010. The parties that we expect will become signatories are Australia, Canada, the EU, New Zealand, the U.S., and Switzerland, but also Mexico, Morocco, the Republic of Korea, and Singapore, so two Asian countries and two countries that are not part of the first world.
As you can see, there are a lot of countries that act in the counterfeiting world that are not present among those signatories. The agreement is currently in the process of being translated into the languages that will be considered official, and one would assume that after that the treaty will be adopted.
This treaty is divided into a number of chapters. The meat of the treaty is found in chapter 2, which itself is divided into four sections. Section 2 is on civil enforcement, so here you're talking about the work that I do, obtaining injunctions, obtaining damages, and doing civil seizures. The next chapter deals with border measures. So what does customs do? We have big problems in Canada in terms of the weakness of our customs program in terms of anti-counterfeiting. I'll talk about that later. The next section talks about criminal enforcement, and I'll go into that in more detail a little later. Finally, there's a section that was also added with respect to the digital environment. This section deals with Internet service providers and the circumvention of anti-copying devices.
My comments will focus on this chapter 2. I thought it would be interesting for you to know what the link is between current legislation in Canada and ACTA and where we're going. Four years ago, I testified before the parliamentary committee on industry, science, and technology. I identified for the committee what doesn't work in the Canadian anti-counterfeiting system, and I provided recommendations as to how to make our system better.
All my recommendations were adopted by the committee. Four years later, I can tell you that we're no further advanced. However, I'm pleased to report that my recommendations are found in ACTA, so this should help us remedy our system. So I think ACTA will actually help us make our anti-counterfeiting system better. What I deplore is that we're completely behind the curve. While we should be a leader, we're really a follower here, and actually a follower that's been dragged along.
I hope you all have my handout. Do you?
