Evidence of meeting #58 for Industry, Science and Technology in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
President, Intellectual Property Institute of Canada
I think everybody in the chain bears some responsibility. The retailer has to be responsible for knowing who they're buying stuff from and what they're buying. I think the distributors and importers have to be responsible for knowing. The manufacturers, if they're sourcing goods, or distributors, if they're sourcing product from outside Canada, have to know who's making it and how they're making it and where it's being made. They're all responsible.
Professor, Internet Law, Ottawa University, As an Individual
I think I'd agree with that, and I'd even go further, in a sense. If you buy a high-value item in a dollar store, let's say, or in a discount store, surely as a consumer you have some recognition that there is perhaps some risk associated with it.
That's not to say it's a good thing when we see these incidents happen. They're very scary. But I think consumers as well often know when a good deal appears to be too good a deal. In many instances there is some level of awareness that perhaps it's not quite what they...that they're getting something they didn't quite know they were getting.
Lawyer-Partner, Ogilvy Renault
Everybody bears a responsibility, but the primary responsibility is with the retailer. Why? It's not necessarily because the retailer knows, but because the retailer is the only one against whom the consumer can have recourse. The source is probably not even in Canada.
As to whether the consumer knows he's getting a good deal, in a dollar store you're dealing with somebody who might only be able to afford a dollar store. Do you think that person has enough sophistication to know that the authentic product is much more expensive, so this must be a counterfeit? Maybe that person isn't even aware of the notion of counterfeit. All that person thinks is, “I'm getting a good deal.” That person is relying on the store owner.
Incidentally, your question is one of product liability, and if I'm not mistaken—I'm not a product liability lawyer—the retailer is liable under product liability law.
Conservative
Liberal
Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON
Thank you, Mr. Chair.
Thank you very much. It's a very interesting discussion.
When you consider the crime around issues of counterfeiting, philosophically how do we look at this crime? Is it theft? One of you mentioned somebody breaking into somebody's house, and we have a way of dealing with people caught in the act of selling hot goods. Is it like a drug crime? Is it like fraud? How do we generally treat this kind of crime philosophically? Is it like something else? I'd be very interested in seeing how we categorize this as a country. Then I'll go to part B of my questioning.
It's for any one of you, or all of you.
President, Intellectual Property Institute of Canada
I think the important thing is to start to draw those analogies. Right now it really isn't treated like a crime; it's really treated with a slap on the wrist or as somehow being okay. The important thing is to realize that it has a criminal element to it, and for the same reasons—that people make a lot of money doing it. And maybe in some cases the same people who import and sell drugs because they can make a lot of money will import and sell fake products. In fact, there's more incentive to sell counterfeits, because the chances of having to pay a fine or, worse yet, go to jail are practically nil. If you get caught trafficking drugs, you'll probably go to jail. If you get caught trafficking knock-off handbags or watches or even electrical parts—batteries that blow up—it's very unlikely that you'll be punished.
Professor, Internet Law, Ottawa University, As an Individual
I sat on the Minister of Industry's national task force on spam, and we spent a lot of time in that year, as part of that task force, working with law enforcement at the Department of Justice, as well as the RCMP, trying to address the issue. I came to appreciate during that time just how hard it is to get the resources from the RCMP and Justice and law enforcement officials generally to turn their attention to some of these issues. The RCMP has put IP crime among its top five priorities and has escalated the number of charges they've laid over the last number of years, so that we're now in the thousands over a period of time—and this is just the RCMP, not local law enforcement—and it does, in my view, an enormous disservice to our law enforcement across the country to suggest somehow that this isn't prioritized. It quite clearly is prioritized.
The issue here, and let's be frank, is that law enforcement has made clear that their priority in this area is health and safety. That's not the priority of the person who is selling the little alligator on their shirt. But I think we ought to recognize that law enforcement has prioritized this issue and, indeed, has been very active, taking resources away—in our case we couldn't get them to deal with spam, and spyware, and identity theft—because they were focusing on some of those other issues.
Lawyer-Partner, Ogilvy Renault
The question that was put was philosophically how do you characterize this? I find that very interesting, because that's the reflection process we're involved in. I would characterize it as three different types of violation.
First, it is a theft on the right owner. There's the reproduction of the trademark or reproduction of the copyrighted work. That's stealing intellectual property.
Secondly, and my apologies, I do not have the English term, but I would use the French term, une voie de fait. The translation services will probably reflect that on the transcript. If I were to translate that loosely into English, I would call it an attack on the distinctiveness of a trademark, which is separate from the theft of the trademark itself. You're diminishing the value of that trademark.
Thirdly, it is a deception and a fraud on the consumer and on the general public.
While it was not an answer to your question, the issue of law enforcement being proactive on health and safety, thank God. For things that are not health and safety, create more communications with law enforcement. Give rights owners better tools to fight this problem. But by the same token, be aware that rights owners are not there to police the values that we, as a society, hold dear.
Liberal
Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON
So very quickly, it would seem that generally we don't give it the status of being a crime, if that's what you're saying, so we have counterfeit drugs being treated the same as counterfeit purses. The damage potential for the two is quite different. So if you had $100 to spend on the front end—and I call the front end the border—or the back end, which is the street or the store or the Internet, where do you spend your $100? A hundred dollars at one end, or 50-50?
President, Intellectual Property Institute of Canada
I would spend the money two ways. I would spend it on better border enforcement and I would also spend it on seizing and prosecuting the people who do it. For want of any better—
Liberal
President, Intellectual Property Institute of Canada
Sure. I would certainly focus on the health and safety, but I wouldn't ignore the rest.
Professor, Internet Law, Ottawa University, As an Individual
Given that our copyright laws provide for statutory damages of $20,000 per infringement, that $100 isn't going to get us very far. I'd be spending more of the money on the back end in terms of trying to educate law enforcement, particularly on the health and safety side of things. To me, that's where the primary concern lies.
Lawyer-Partner, Ogilvy Renault
About the statutory damages of $20,000, they've only been awarded once, and that was last December by the Federal Court in a Microsoft decision, so I don't think that is run-of-the-mill.
How to spread it? Spread it however you want—50-50, 75-25. I'd probably do 50-50, but add a plus value by amending your laws so that, aside from your $100, you'll have money spent by others.
Conservative
The Chair Conservative James Rajotte
I'm sorry, I should have explained this at the beginning of the meeting. Members are given very limited time to ask questions, and the members want to go through the panel because it's a very interesting discussion, but everyone is going way over their time, and I want to make sure all members get a chance to ask their questions. That's my role as the chair. I'm a glorified timekeeper.
So we need a brief question and a brief statement; otherwise members will not get a chance to ask questions.
So there, I've said that, and those are the rules.
We'll go now to Mr. Shipley for five minutes.
Conservative
Bev Shipley Conservative Lambton—Kent—Middlesex, ON
I want you to know that somebody just took a lot of my time.
Conservative
Bev Shipley Conservative Lambton—Kent—Middlesex, ON
I appreciate it.
We understand the whole issue. I don't want to talk about Gucci watches. I want to talk about, for example, the breakers we had sitting in front of us the other day that were installed in hospitals, in intensive care units. They're electrical cords your family and my family would buy that melted away. They had CSA stamped on them, and they had the company trademark stamped on them. These are cords that burn down your house when you go away, and burn it down with your kids inside. Those are the things that concern me.
Does everyone agree that we're dealing with organized crime?