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.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
I know, Mr. Geist, you have your position. I want to ask Mr. Erdle first.
President, Intellectual Property Institute of Canada
Yes, I agree as well, absolutely. I see the same problem with the two-tier approach, if you will, or trying to say that this type of counterfeiting is harmful and this counterfeiting is not. It's all harmful.
And you're right that it's similar to robbing a bank and saying that if you rob a bank it's a crime, but if you rob a corner store and no one gets hurt, well, that's okay. It's not okay. And counterfeiting, I think, falls in the same category.
So yes, it should be a criminal offence.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
I want to ask another question too. When we talk about criminal offences, to me it's evident and obvious that organized crime is really involved. To what extent do you think countries are participating? Do we have blood on our hands too? I've heard some reports that the Americans are saying that this is rampant in this country too. Organized crime is involved, but are countries turning a blind eye to this whole situation and having this thing just grow without anybody stopping it?
Professor, Internet Law, Ottawa University, As an Individual
We just heard that the RCMP itself has found that upwards of 90% of counterfeiting comes from outside the country.
The U.S., which even just this week released its “Special 301” report, where it identifies various countries, chose not to elevate Canada, and has identified at least a dozen other countries that are seen as being more problematic, in its perspective, despite a lot of pressure that said Canada is, as you say, a real source of the problem. The USTR chose not to recognize that and kept us with dozens of other countries where it's more of a trade irritant than anything else.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
So we're not in the same vein as the others. None of them are here, but we took a trip to China, and they say that's a real problem in China too. They're starting to combat this. It's starting to affect theirs, as well.
Can we get some consensus with countries and ask for some agreement that, when this happens, we're going to have help on all sides of the border so we can stamp this out? Is that something we should be striving for as well—nternational agreement?
All three can answer.
President, Intellectual Property Institute of Canada
I think international agreements are important.
When you look at China, I find it very interesting—A lot of our patent work now is work dealing with inventions that come from China. They are starting to become innovators. And now they're starting to get interested in enforcing intellectual property. They realize they now have something they need to protect as well. So they're not going to turn a blind eye any more to the counterfeits that come from China.
I think the same thing applies here. We have to take action to deal with counterfeiters. We rely so much on innovation; we have to protect it and we have to be seen around the world as protecting it.
Professor, Internet Law, Ottawa University, As an Individual
Canada did. The most obvious forum internationally is the World Trade Organization. And Canada has joined as a third party, as I'm sure you're aware. The U.S. complained against China. The U.S. itself identifies China and Russia as its top priorities and almost a dozen other countries. So Canada has played a role internationally, most recently in the last couple of weeks, in trying to pursue that line.
Lawyer-Partner, Ogilvy Renault
I was at the third world anti-counterfeiting summit in Geneva in January, and there definitely is a will internationally to see that treaty. But don't wait for an international treaty to do something. In the fight against counterfeits, you can't act against the source of supply, which is outside the jurisdiction. So we can't do anything about that. But you can act at the border. You can act against the people selling it in Canada. But also, by strengthening legislation, you can act on the Canadian culture. Sending a message that buying counterfeits is not good, you can make it not interesting for people to buy counterfeits and associate a social stigma with it.
Conservative
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Thank you very much, Mr. Chair.
Very quickly, Mr. Drapeau—I want to question Mr. Geist on some other things—you brought up the U.S. 301 list.
Lawyer-Partner, Ogilvy Renault
I did not bring it up. What I mentioned is that I specifically did not refer the U.S. 301 list.
Lawyer-Partner, Ogilvy Renault
I don't want stronger laws because the U.S. says we should have them.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Might I ask you a question? Based on the criteria that have been established, should the U.S. be on the U.S. list? Are they—
Professor, Internet Law, Ottawa University, As an Individual
I'm a Canadian lawyer, not a U.S. lawyer. I'm not able to answer your question.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Okay, fair enough.
I do want to ask Mr. Geist this. On the whole issue of values—and I can appreciate very sincerely that health and safety does form a particular priority—am I wrong in thinking the following? I often buy my son Spider-Man pyjamas, not because he really likes Spider-Man. It actually makes it more difficult to get him to bed because he's wearing Spider-Man pyjamas now that he's a little more active. But I buy Spider-Man pyjamas because I go with an assumption that in order to get that licence the company that manufactures them and receives the licence from the Spider-Man company, whoever that is, Walt Disney or whoever, has to manufacture them under a certain standard—fire retardant, and so on and so forth. In other words, the quality of the goods I buy is actually elevated based on adherence to an intellectual property standard that is imposed by the holder of the licence, of the copyright and the trademark. Under the infringement of trademark and/or copyright, by buying a counterfeit good, I'm actually putting my son at risk in a health and safety issue because I'm not confident anymore that it's a flame-retardant product.
The second thing is that I also make decisions as a consumer based not on pills or hospital equipment, but on raw, ugly consumer goods, because I like to make sure that the companies I buy from have good labour standards and do not manufacture utilizing child labour. Copyright infringement, trademark infringement, actually lowers that standard for me as a consumer because I don't know where my products are coming from.
Finally, you say 90% of all products that come into Canada that are probable trademark and copyright infringements come from the outside. We regulate Canadian industry nearly to death. They voluntarily comply with various certification standards. How can I, even on those raw consumer goods as the lowest of the low on the totem pole, so to speak, judge what should be prioritized?
I've listed three examples of health and safety being a potential issue, my societal values of raising a norm or standard of behaviour that has been infringed, and I'm also undermining those within my own country who would seek to elevate certain standards, and I'm actually creating a circumstance where those standards are being eroded.
Mr. Geist, how would you respond to those three things I've raised?
Professor, Internet Law, Ottawa University, As an Individual
You raise a lot there.
I'd note, with respect to your question about the special 301 list, that it is a good point. The reality is that the U.S. itself is not fully compliant with its international copyright obligations, and so were there to be a list, you could easily put the U.S. on it, although I would argue that it has as much credibility as the U.S. reviewing our gun laws and saying that our gun laws are overly strict and we should make it easier for people to have access to guns. Or that our environmental laws aren't good enough. It is just one country's opinion on a set of laws when we are truly internationally compliant.
With respect to the specific issues you pointed out, we ought to be hesitant to create a clear link between something that has a logo attached to it with trademark protection and the issue of quality. It is true that in some instances a party who licenses out a product will want to ensure that the product itself bears a certain level of quality, but by no means in every instance. There are lots of trademark products that are of shoddy quality and the like. This isn't a quality issue.
The concern is where someone fails to meet basic Canadian safety standards and the like. From my perspective, that ought to be fraud, if it isn't already fraud, and there's no question that in those kinds of instances there is a role to play for law enforcement to try to stop that activity from occurring. I think it would be a mistake to suggest that simply because something is trademarked or, indeed, copyrighted—everybody gets copyright on anything they write—that it is effectively an assurance of quality.
Indeed, the Canadian Standards Association is where the mark really comes in, in terms of indicia of quality, and where there is counterfeiting of a CSA logo, that is unquestionably a problem, I would agree, and one against which action ought to be taken.
Liberal
Gerry Byrne Liberal Humber—St. Barbe—Baie Verte, NL
Then if we apply the CSA standard and prosecute on a CSA standard basis, you'd support stiffer penalties for trademark infringement and for copyright infringement.
Professor, Internet Law, Ottawa University, As an Individual
What I suggested is that where someone is deceiving the public by affixing as CSA logo, they are trying to tell the public that it is of a certain quality when it is not. Again, that is not a trademark issue, and once you move into the realm of stronger protection for trademark and copyright, there are other consequences, because once that legislation gets established, the impact is not so narrowly tailored to your son's pyjamas but has an impact on a broad range of activities, some of which may be seen as negative.
Lawyer-Partner, Ogilvy Renault
A trademark can be linked to quality. A trademark can be linked to absence of quality. It depends what the underlying product is.
The issue here is that you have certain trademarks that have been built over the years as being indicia of a quality product, a product that everybody wants, a product that's designed, a product that's in demand. There can be other trademarks that have not benefited from the same investment, that don't have the same underlying quality product. Those trademarks aren't counterfeited. The trademarks that are counterfeited are the trademarks that are indicative of a product that's hot, a product that's quality, a product that people want. Counterfeiting only exists if the authentic is in demand.
Conservative
The Chair Conservative James Rajotte
Thank you.
Thank you, Mr. Bryne.
One of the reasons I try to be tough with time is that then I actually get a chance to ask some questions myself as the chair. I'll take the next Conservative spot. I have three issues that I want to raise.
On the first one, Mr. Geist, you mentioned in your presentation about inconsistent data. I think that is certainly real, but my concern there is that I don't know if we'll ever actually have certain, or real, or valid data, just because of the nature of what we're dealing with—counterfeiting and piracy. Do you suggest a method, or is there a way for us to actually get data that we could call certain, reliable data that we could then base public policy on?