Finance Committee on Nov. 5th, 2018

[Mark Schaan]

The goal of the strategy was very much to ensure that we had sufficient protections and that we were preserving the balance necessary in the intellectual property realm. These are provisions that bring our regime, which has been modernized consistently over the last decade, even more into the comparator regime of our trading partners.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

That's it.

[The Vice-Chair, Conservative, Pierre Poilievre]

Please continue, Mr. Schaan.

[Mark Schaan]

Then we move on to part 4, division 7, subdivision C, which is related to the Copyright Act “notice and notice” regime.

Here's a reminder for those of you who may not embrace the notice and notice regime every day, although you probably do. The point of the notice and notice regime in the copyright system in Canada is essentially that rights holders are provided an opportunity.... It's a mandatory regime set out in the Copyright Act that requires Internet intermediaries, such as Internet service providers, to forward notices from copyright owners to Internet subscribers alerting them that their Internet accounts have been linked to alleged infringing activities, such as the illegal downloading of movies.

One of the problems encountered since Canada put in place its notice and notice regime is that people were using it to pass along notices that included settlement demands or requests for personal information. Famously, I think the case was of an 86-year-old grandmother in Manitoba who was passed on a notice for the supposed illegal downloading of a zombie apocalypse murder game, which she had no recollections of downloading. The notice indicated that she could make the infringement go away for the low price of “insert number here”.

This provision will return the notice and notice regime back to its consumer information intent, by banning settlement demands and the request for personal information in the notice regime.

[The Vice-Chair, Conservative, Pierre Poilievre]

Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

What is the penalty when that happens?

[Martin Simard, Director, Copyright and Trademark Policy, Marketplace Framework Policy Branch, Department of Industry]

The approach has been to take on the problem at the source, so to speak. ISPs are only required to pass on a notice related to a number of things listed in the Copyright Act. We've added the flip side, which is the things you cannot include in a notice, and then we've added a regulatory power to be able to add other things to that list.

The concept is that ISPs are no longer required to forward a notice, so hopefully fewer notices would reach the end-user, because some of this is automated. If a notice does reach the end-user, it will allow for much clearer communication from the ISP to their users.

The practice ISPs have developed over the years is to add a wrapper ahead of the notice to describe the law and say, “This is a notice. I'm Rogers,” or “I'm Bell. I'm forced by law to forward you this notice, but know these facts about the law.” Now they'll be able to add in the wrapper, “If there is a settlement demand, if there's a demand for personal information, you're not required by law to pay it and this is probably an invalid notice,” and then perhaps they'll ask the user to report it or call the consumer hotline. The idea is to take on the problem at the source.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Okay. I see the section. It says, it shall not contain “an offer to settle the claimed infringement”, a request “for payment or for personal information”, or “any other information that may be prescribed by regulation”.

If there is a notice that does request payment—and this happens frequently now—at this point there are no penalties. There is no way to stop that company from doing that.

[Mark Schaan]

ISPs have developed a structure to be able to pass along those notices. They would be contravening the law set out by indicating that the notices can't contain that information. There are no direct penalties.

The goal is, as per the structure of the entire system, to inform the consumer of the potential infringement of the right and also to present them with options with respect to how they may access that content legally. We think with consumer education this is getting at the bad practice, as Martin said, at the source, but then it's also allowing for much clearer communication with the consumer about what they may be receiving in their email.

[The Vice-Chair, Conservative, Pierre Poilievre]

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

Mr. Simard, I am going to follow in the same vein as Mr. Julian.

Mr. Schaan said that in the warning preceding the notice, the Internet providers must tell people that they are not obliged to provide their personal information, nor anything else, as they are asked to do further on. However, companies like WarnerMedia, for example, might consider that to be a breach of the law.

Mr. Schaan already answered my question, but I'd simply like to know whether it would be possible to make that more user-friendly. I'm afraid this will be too complicated for a grandmother in Manitoba, for instance, who would have to read the warning and the notice as such. Could we not simply prevent companies like WarnerMedia from asking for this personal information? It seems that we are blowing hot and cold at the same time.

[Mark Schaan]

First of all, following the notice and notice regime, ISPs and rights holders and the major rights holders got together to talk about a standard format for notices, including plain language. The vast majority of rights holders are working with the ISPs to ensure that notices are actually effective for both parties, that they are understood by the consumer and that they actually convey the information that the rights holder was hoping to.

The goal with this change is that it will actually allow for the vast majority of those notices never to be sent, because we think ISPs will actually have the capacity to stop them at the source because they violate the law. The goal is to remove the vast majority. The goal is to end the practice, so the ISPs will not be sending those on any further. We've also noted that because of the few that do may make it through the system are so clearly a violation, it's much easier to communicate about them because they're not stuck in this mass of potentially people who have been misusing the system by sending false notices.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I misunderstood. So, the providers are not obliged to send a message. They must make the assessment themselves to determine if this is in keeping with the law, and afterwards they can send the information.

[Mark Schaan]

Yes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

In any case, there will be a notice saying that you're not obliged to provide this personal information or anything else; is that correct?

[Mark Schaan]

Yes.

[The Vice-Chair, Conservative, Pierre Poilievre]

Mark, continue.

[Mark Schaan]

Great. I will switch to part 4, division 7, subdivision D.

This is the one that pertains to your question, Mr. Vice-Chair.

Subdivision D of division 7 of part 4 enacts, through clauses 247 to 264, the college of patent agents and trademark agents act. The act establishes the college of patent agents and trademark agents, which is to be responsible for the regulation of patent and trademark agents in the public interest.

Among other things, the act requires that agents obtain a licence and that licences comply with a code of professional conduct. It authorizes the college's investigation committee to receive complaints and conduct investigations into potential professional misconduct. It authorizes the college's discipline committee to impose disciplinary measures. It also creates the new offences of claiming to be a patent agent or trademark agent, and unauthorized practice before the patent office or the office of the registrar of trademarks.

Very quickly, by way of background, patent and trademark agents are an essential part of the intellectual property system. The regulations of the Canadian Intellectual Property Office require in the cases of patents that actions before the office are pursued by a registered agent. In the cases of trademarks, while individuals can pursue their own trademarks, a significant practice of expertise has been built up by the trademark agent community.

Under our existing governance framework for patent and trademark agents, the system is both opaque and incomplete. Right now the commissioner of patents has the capacity to list agents to the registry of registered agents before the office and to remove them from that list, but those are the only powers she possesses. In the case where an infraction, were there to be one, necessitated potentially some other remedial measure, the only option available currently to the commissioner of patents is to simply remove the person from the ability to practice before the office.

Second of all, right now there's no guidance or transparency to the process to investigate complaints. There is no set-upon approved process by which someone may want to take issue with their agent, nor, potentially, transparency to the process through which that individual would be able to either resuscitate their reputation or potentially have the offence confirmed.

Third, part of the reason we're also creating an independent self-regulating body is that the same office that currently grants people access to become registrants is the same office for which those agents litigate their matters. One can imagine that there could be a perceived conflict of interest there. We don't believe there is one. The office acts in extremely good faith. But an agent who consistently and significantly appeals all of their decisions before the office may be perceived as potentially problematic, and should there ever be a movement to remove them from the list, there could be a perceived conflict of interest that perhaps they were being removed not because of the offence they were being accused of but in fact because they were a challenge to the office.

This creates a self-regulating body with significant checks with respect to the public interest to ensure that this doesn't constrain access to the profession or access to the services of the profession.

[The Vice-Chair, Conservative, Pierre Poilievre]

Is it the commissioner right now or the registrar who grants licences to practice? Is it a licence they get right now?

[Mark Schaan]

The way it works right now is that the Canadian Intellectual Property Office works with the Intellectual Property Institute of Canada to set out the exams to become a patent or trademark agent. At the completion of that examination process, which is jointly run by the profession and the office, they receive accession to being put on the registry to be able to act before the office.

The process right now and those exams are conducted by the Canadian Intellectual Property Office in conjunction with volunteers from the Intellectual Property Institute of Canada.

[The Vice-Chair, Conservative, Pierre Poilievre]

There is an exam right now.

[Mark Schaan]

There's a four-part exam, yes. It's actually an extremely strenuous process to become a patent and trademark agent. It's one of the more comprehensive and difficult sets of examinations in the professional community. It sets very high standards for how to pursue intellectual property matters before the office.

[The Vice-Chair, Conservative, Pierre Poilievre]

How long does it typically take someone to prepare for and pass this exam?

[Mark Schaan]

It varies enormously. The pass rate on the first try for the hardest of the four exams is extremely low. The process is usually done in conjunction with acting as a professional. You can't act before the office, but the archetypal journey to becoming a patent trademark agent is that you get picked up by a firm that pursues patent and trademark work. You essentially stage—you work and you do your exams—and then eventually you get your licence. It depends on how much work you're doing and how much time you have to dedicate to the exam process, but it's usually a couple of years to be able to become an agent.

[The Vice-Chair, Conservative, Pierre Poilievre]

That's for a patent agent.

Is the trademark agent roughly the same?