Finance Committee on June 4th, 2015

[The Chair, Conservative, James Rajotte]

Okay. Merci.

We'll go to Mr. Brison, please.

[Scott Brison, Liberal, Kings—Hants, NS]

I have some comments regarding changes to the intellectual property regime. Most of this division of clauses 44 to 72 are housekeeping measures, but we've heard from a number of stakeholders who are worried about provisions here that grant privilege to patent or trademark agents and their clients.

Mr. Martel said there were consultations with the law societies. The Federation of Law Societies of Canada says:

As we stated in correspondence to Industry Canada in October 2014, the proposal to protect from disclosure the communications between patent and trade-mark agents and their clients raises complex issues and would have significant implications not only for the patent and trade-marks system, but also for the legal profession, other professions, and for the administration of justice.

The Law Society of Upper Canada says:

In the Law Society’s view, there is no public policy rationale for granting solicitor-client privilege to the communications between patent or trade-mark agents and their clients, no evidence that privilege plays a role in the selection of a patent and trade-mark agent, lawyer or non-lawyer and, as Industry Canada’s November 2013 discussion paper noted, “…little evidence of an overarching harm that needs to be remedied”.

The offending measures are contained in clauses 54 and 66, and we will oppose those two.

To Mr. Côté's point, whether it's industry or justice, would it be better for these kinds of changes to be discussed and ultimately voted on by parliamentarians on committees with a greater level expertise in those areas? I'm not a lawyer. I'm not an intellectual property expert, so I rely on informed stakeholders like the law societies, and as I just noted the words of the Law Society of Upper Canada. I take their advice very seriously. That's why we're voting against clause 54 and 66.

[The Chair, Conservative, James Rajotte]

Okay. Thank you.

(Clauses 44 to 53 inclusive agreed to)

(On clause 54)

We'll move then to clause 54. We have PV-13 and PV-14, and they are identical. Therefore, we'll go to PV-14.

Mr. Hyer, please.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Thank you, Mr. Chair.

There are very good reasons for and against extending privilege to patent agents. However, this needs to happen in a separate intellectual property bill, partly because it's extremely controversial. In the meantime, things could be clearer if these common law principles were present here. This amendment seeks to incorporate the elements of the Wigmore test.

Thank you, Mr. Chair.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Hyer.

On this, Ms. Bateman, please.

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Thank you, Mr. Chair.

First, on this, the government's approach is to align Canada's rules with those of the many other jurisdictions that recognize confidential communications between IP agents and clients as privileged. The approach in the bill does that, ensuring that Canada is not a weak point in the context of global litigation. The proposed amendment would incorporate conditions that are not found in foreign privilege rules and would undermine the objective of international alignment.

The second point I think is important to make is that the proposed amendments would undermine business certainty by making privilege subject to two additional conditions, making it very difficult for businesses and agents to know whether their confidential information would be protected against disclosure. This amendment would create a chilling effect that would undermine the benefits of privilege that it's intended to achieve.

Thirdly, the proposed amendments would undermine the objectives that providing privilege to the clients of IP agents is intended to achieve. Those objectives are to remove confusion around the type of communication that is privileged to avoid exposing Canadian companies in international litigation, to give assurances that Canada is indeed a safe place to invest in IP and R and D, and to promote open and frank discussions with IP agents and higher quality IP advice.

I think the final point I want to make, Mr. Chair, is that the Intellectual Property Institute of Canada—an institute that, by the way, is the professional organization and association for not only patent agents and trademark agents but also lawyers specializing in intellectual property—came and spoke to this very committee this morning giving testimony that not only had there been wonderful consultation to their community in this instance, but they were fully supportive and thought that this was getting us on a competitive footing with the world.

With respect, we do not support this amendment.

[The Chair, Conservative, James Rajotte]

Okay. Thank you.

(Amendment negatived [See Minutes of Proceedings])

[Raymond Côté, NDP, Beauport—Limoilou, QC]

I want to comment on the changes to the Patent Act, specifically.

You will recall, Mr. Chair, that, in the past, the NDP has tried to make the government listen to reason by calling on it to split omnibus budget bills. Obviously, the government has systematically refused that request, flying in the face of the conditions needed to put the public interest first. I just wanted to make perfectly clear how appalling that is.

Thank you.

[The Chair, Conservative, James Rajotte]

Shall clause 54 carry?

(Clause 54 agreed to on division)

(Clauses 55 to 65 inclusive agreed to)

(On clause 66)

We have clause 66. We have two amendments, but they are identical. Therefore, I will go to Green Party amendment 16 and I'll ask Mr. Hyer to address PV-16, please.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

This one will be very short.

This amendment would do exactly the same thing as PV-14 but for trademark agents. I should perhaps use that bit of extra time to explain the Wigmore test. It was summarized by the Supreme Court in 1991, in the Gruenke case:

The Wigmore test as to whether or not a communications is privileged requires that: (1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be [diligently] fostered; and (4) the injury...to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Hyer.

Ms. Bateman, on this point.

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Mr. Chair, for exactly the same reasons that I gave previously for clause 54, the government does not support this amendment. Indeed, the Intellectual Property Institute of Canada met with us this morning at this committee and they are fully in support of the inclusion of this.

We are not supporting this amendment.

[The Chair, Conservative, James Rajotte]

Okay. I will call the vote on PV-16.

(Amendment negatived [See Minutes of Proceedings])

Do you want to speak to clause 66?

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

Everyone will recall that the previous amendments to the Trade-marks Act, further to the last omnibus bill, faced strong opposition from the Canadian Chamber of Commerce, as well as a large swath of Canada's private sector. It was quite a problem. Clearly, they were condemning a process that resulted in amendments that weren't necessarily in their best interest at the time or, at the very least, the fact that an in-depth study had not been done. The amendments before us could easily be detrimental to Canadian business.

A huge number of economic interests come into play when trademarks are involved. Significant amounts of money are at stake. Amending these provisions without first giving the committee directly responsible an opportunity to conduct a detailed study could very well end up costing us dearly. Above all, these changes could jeopardize the survival of countless businesses by putting them at a competitive disadvantage, especially small businesses.

In the new economy, holding a trademark without overly easy challenges from abroad is probably one of the biggest concerns of small businesses.

As in the case of the other acts being amended, I condemn the process. The Standing Committee on Industry, Science and Technology should have had the opportunity to study the amendments from top to bottom. As was the case in the previous omnibus bills, our party's calls to split the legislation out into sections for further study were flatly rejected without serious consideration by the government. I just wanted to point that out.

Thank you.

[The Chair, Conservative, James Rajotte]

Okay, thank you.

(Clause 66 agreed to)

(Clauses 67 to 72 inclusive agreed to)

(On clauses 73 to 80)

[The Chair, Conservative, James Rajotte]

We'll thank our officials from Industry Canada for being with us.

We'll bring forward officials for division 4. Division 4 deals with compassionate leave and benefits. If I am allowed I will group clauses 73 to 80, and we'll go to Mr. Rankin on those clauses.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

I just want to indicate that the NDP will be supporting clauses 73 to 80, which deal with the compassionate care benefits. We're once again pleased the Conservatives have adopted our proposal to extend the EI compassionate care benefits from six weeks to up to 28 weeks or about six months, so Canadians have enough time to care for critically ill loved ones.

I'm sure a lot of us were lobbied heavily on this. I know I was by seniors' organizations and health care organizations. It's something we've been working on for years. My own concern with this, frankly, is the serious narrowing of the eligibility criteria by the Conservatives. As I understand it, only if a doctor provides a certificate that a loved one is going to die within 26 weeks or six months will they be eligible. We think that's much too restrictive. We think other critically ill patients should be covered as well.

But having said that, it's a step in the right direction and we congratulate them for following the NDP's lead.

[The Chair, Conservative, James Rajotte]

Okay, thank you, Mr. Rankin.

Mr. Brison.

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Chair, I want to thank the NDP for having supported this initiative by one of my colleagues from the province of Nova Scotia and the island of Cape Breton. Mark Eyking, who is a Liberal member of Parliament, has been a champion for this change for some time, and I want to thank the NDP and ultimately the Conservatives for having come on board and supporting it.

It's good when we can agree on some level of progressive social policy from time to time in this place, so I want to thank both the NDP and the Conservatives for their support on this.

[Murray Rankin, NDP, Victoria, BC]

What is the word for revisionism in French?

[The Chair, Conservative, James Rajotte]

Thank you.

Are there any further comments?

[An hon. member]

Let's have a recorded vote.

[The Chair, Conservative, James Rajotte]

Can we apply it to clauses 73 to 80? Okay, we'll do a recorded vote that applies to these clauses.

(Clause 73 to 80 agreed to: yeas 9; nays 0)

I want to thank our officials. I'm sorry we didn't have any tough questions for you today, but clearly you did your work very well.

(On clause 81)

We will then move to division 5 dealing with the Copyright Act, and we'll ask the officials from Heritage to come forward. Welcome to the committee and thank you for being with us.

Colleagues, we have four amendments, but two are identical, so we'll deal with PV-18 and PV-20 and we'll go to Mr. Hyer.

Mr. Hyer, you can speak to them separately or together as you so wish.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Together is fine. It makes sense, they do the same thing.

This bill changes the years of copyright for a song recording, not a song, but a recording from 50 years to an astounding 70 years. The big three foreign record companies lobbied the Prime Minister directly for this, and this came hidden here in this omnibus budget bill with no study or consultation.

Our amendments will change it back to 50 years, still very long, but more reasonable. Numerous studies in Europe have shown that extending the copyright for sound recordings does not benefit artists at all, but does benefit the big record labels. The artists quite often don't hold the copyright for the sound recording, while they do for the actual song, which goes for 50 years after death.

Thank you.

[The Chair, Conservative, James Rajotte]

Okay, thank you very much, Mr. Hyer.

On this point, Mr. Cannan.