Thank you, Mr. Chair.
Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I'm also a syndicated weekly columnist on law and technology for the Toronto Star and the Ottawa Citizen.
As I prefaced when I last came before you during your review of telecommunications reform, I appear before the committee today strictly in my personal capacity, representing my own views.
I actually appeared last week before the Standing Committee on Public Safety and National Security on the counterfeiting issue as well, and rather than simply repeat those remarks, I've provided the committee with a copy of my prepared comments, and I believe a full transcript will be available shortly.
I do, however, want to briefly reiterate four points that I made last week and then expand on two other issues.
The first of the four points—and this is in a sense stating the obvious—is that counterfeiting is not a practice that anybody with any credibility supports. When Mr. Drapeau talks about being on one side of the fence, there are only people on one side of the fence on this issue. Counterfeiting is not a good or a bad issue; I think it's broadly recognized as a bad issue. At its worst, it may pose a public safety issue. Even when viewed in the best possible light, when some activities may be relatively harmless, it's not a practice to be condoned.
The issue, though, is not whether counterfeiting is bad or good, but whether or not it merits a strong legislative response, and I believe that depends on two things: one, the state of counterfeiting in Canada; and two, the state of Canadian anti-counterfeiting law. On these issues I would submit that the situation is far less certain. Indeed, once we get past the attention-getting props and dig into the details, I believe it becomes clear that there is an awful lot we don't know.
Second, I think that public safety and security concerns should be accorded the highest priority with the counterfeit file. As a parent of three young children, I too find stories of exploding batteries and counterfeit pharmaceuticals deeply concerning. That said, I note that according to the RCMP, significant physical harm from counterfeiting is extremely rare. In fact, a recent B.C. case that involved fake pharmaceuticals that may have led to the death of a woman is the first such case in Canada on record.
Third, while I appreciate the impatience with perceived inaction, I think it's important to reiterate that Canadian law has not left law enforcement powerless. Canada is compliant with its international copyright obligations. Moreover, claims of police inaction do a great disservice to law enforcement across the country who are active in pursuing IP crime.
Indeed, the RCMP notes that from 2001 to 2004 it conducted more than 1,800 investigations and laid charges against 2,200 individuals and more than 100 companies, and just last week, before this committee, those numbers were updated, with the RCMP indicating that in 2005 there were 700 charges laid. With roughly two charges per day, this is a country that has laws to address counterfeiting and a law enforcement community that is committed to doing so.
Fourth, while advocates for reform argue that there is an obvious blueprint for addressing counterfeiting, we know that there is no silver bullet. Indeed, the experience elsewhere illustrates that most anti-counterfeiting measures have been exceptionally unsuccessful. The proof is in the data. Counterfeiting is widely viewed as a growing international phenomenon, even in those countries that have adopted tougher border measures or criminal penalties. Despite U.S. action, for example, it is easier to obtain counterfeit products in Manhattan than it is in Markham, home to the much-discussed Pacific Mall.
If we know anything, we know that many legal reforms will do no more than provide the illusion of dealing with the counterfeiting issue.
With this background, let me spend my last couple of minutes focusing on two additional issues.
First is the issue of inconsistent data. I believe this committee could make an enormous contribution in addressing counterfeiting by calling for the collection of better independent data. As I'm sure you know, the RCMP has acknowledged that there has been no comprehensive independent study on counterfeiting.
While we know that only a fraction of counterfeit goods are actually manufactured in Canada, that organized crime is involved in some, though certainly not all, counterfeiting, and that counterfeit and genuine products are not perfect substitutes, I would disagree with my fellow panellists. I think it is rather obvious that a person who purchases a $10 fake Rolex watch knows they're not getting the $5,000 genuine article and has no expectation that that is so.
Consider, for example, the issue of camcording in Canadian movie theatres and allegations that Canada is a leader in contributing to DVD piracy. Earlier this year there were reports that Canada was responsible for 50% of camcorded movies that later appeared on pirated DVDs worldwide. Over the weeks that followed, industry sources began to alter that number with suggestions that the figure was actually 20%, then 23%, then 30% or 40%. In fact, just this morning there was a report out of New York that indicated that New York City is home to 40% of all global camcorded movies that are used for pirated purposes.
The reality, I would submit to you, is that we simply do not know. In fact, some of the data I've seen from the industry suggest that the number is closer to 3% of all motion picture released movies, as opposed to the 50% that we've heard.
When combined with the fact that few, if any, Canadian movies are said to be affected, and that Canadian copyright law already addresses the issue—it's an infringement to camcorder movies, and camcording a movie for the purpose of distribution brings with it the prospect of huge fines and jail time—the issue highlights the need to avoid knee-jerk legislative proposals by instead focusing on obtaining independent, reliable data.
Secondly, I want to talk for a moment about the absence of a connection between the World Intellectual Property Organization's Internet treaties and counterfeiting. I must say that I think there's been a surprising link made between counterfeiting and the fact that Canada has yet to ratify the WIPO Internet treaties. I believe it's important to understand that there is simply no connection between the two. Indeed, I believe that the inclusion of the WIPO Internet treaties within this debate has actually slowed progress on the counterfeiting front. I say this for two reasons.
First, the heart of the WIPO Internet treaties is anti-circumvention provisions that provide legal protection for technological protection measures. These provisions do nothing to address counterfeit pharmaceuticals, counterfeit clothing, counterfeit handbags, counterfeit watches, or dozens of other counterfeit targets. Moreover, they do nothing to address counterfeit DVDs and CDs since the act of commercial counterfeiting is simply not addressed in the treaties.
Second, the WIPO Internet treaties are extremely controversial. In recent months there has been public opposition from Canadian security companies. Four Canadian privacy commissioners have voiced misgivings. Consumers are deeply troubled by the potential impact, and many artists' groups have themselves come out against ratification of these treaties. Indeed, even the U.S. architect of the treaties has admitted that they have been a failure.
With the inclusion of the treaties within the counterfeiting issue, I believe that addressing counterfeiting becomes unnecessarily controversial. As I said, everybody is on the same side of the fence here. The committee would do well to bifurcate this issue by clearly stating that the counterfeiting file should proceed independently from the WIPO Internet treaties and the broader issues of copyright reform.
In conclusion, once again, no one supports counterfeiting, but I believe we should all support a reasoned, effective approach based on hard data and realistic goals. I fear that some of the possible Canadian reforms would do little to advance the battle against the real problems associated with counterfeiting in Canada.
Thank you.