Industry Committee on June 4th, 2007

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

Thank you, witnesses. I appreciate your coming.

I was taking a look through some of the information. You say there will be 5,000 Olympic athletes and officials, some 80 countries, 40 participating countries for the Paralympics, 10,000 members of the media, and about three billion viewers. I suspect that with those numbers there will always be some element of concern that arises in making everything flow smoothly. We're trying to bring in those things that will take away some of the issues that will detract from the Olympics. Quite honestly, this is all about the Olympians; it's about the people.

Could you expand on the ambush marketing, for example? I know you mentioned it in a cursory comment, but how much work is actually being done to protect our small businesses prior to this happening, so those concerns don't come about the small family businesses, as Ms. Hedy Fry has indicated? We don't want to capture those people in a problem. What education program is taking place to help raise the awareness of ambush marketing and protect the Olympic brand?

[Susan Bincoletto]

As I said earlier, this bill starts kicking in, when and if it passes, for any new uses past March 2, 2007, so any currently existing businesses that have been using certain marks that would be protected under this bill would not be affected by the bill.

That would apply as well for ambush marketing. The application of the ambush-marketing provision would kick in after the coming into force of this bill and would end at the end of December 2010, so it is for a period of time. For anything that happened before that, the remedies available under this bill would not be available to the VANOC for the period of the coming into force until the end of 2010 or the COC and CPC afterwards.

It is an extraordinary means for a finite period of time. It's a snapshot of additional protection that is being granted to the organizing committee in order to secure the marketplace from unfair practices by commercial activity that has not really sought to become a full partner in the Olympics game.

Before March 2, this bill does not apply.

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

What's the education program that you—

[Susan Bincoletto]

Well, the government sets this framework. This is a piece of legislation that will be out there. This provides for some rights and protections for private parties. The government is not in the business of educating private parties as to how this bill will work.

You will hear from VANOC after us. You will hear how they intend to use this additional protection and these remedies that would be provided under this bill in order to educate small businesses and those who may be affected by it to clarify what is acceptable and what is not.

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

From your perspective, then, how can we get some assurances to know that VANOC will actually use these special or additional powers judiciously?

[Susan Bincoletto]

Well, again, you will hear from VANOC after me that they will publish—

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

Yes, but I'm asking the industry where that protection's going to be, so that the people know that the VANOC will.

[Susan Bincoletto]

Mr. John Furlong, the CEO of VANOC, has written to the Minister of Industry to confirm his and VANOC's commitment to actually publish guidelines that will allow the participants in the marketplace to better understand the process for exercising these new rights in a transparent and fair manner, a manner that will clarify that they are not going to be abusive. They will be better positioned to tell you how they plan to conduct that, but the commitment has been made to the Minister of Industry in this regard.

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Shipley.

We'll go to Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for appearing here today.

One of the things raised as a concern is the issue around exemptions. Wouldn't it make sense to have, for example, exemptions for aboriginal bands and not-for-profit community groups that have been traditionally using inukshuks and other symbols in part of their promotions on a regular basis? Maybe a third party, such as the City of Whistler or the City of Vancouver, could then issue licences or have a fee for licences for those groups. I understand that as the legislation is written right now, there's nothing compelling VANOC to have to actually deal with that. I'm sure they would probably want to do so, but given what's going to be descending on the Olympics, having an independent ability outside the process to issue those licences might be beneficial for all parties involved.

[Susan Bincoletto]

First of all, not-for-profit institutions that are not connected with a business wouldn't fall within the scope of this piece of legislation. Therefore, we'd have to look at it on a case-by-case basis. In certain cases community centres or aboriginal groups that don't conduct business per se might not fall within the scope of the legislation; therefore, there might not be any need for an exception.

Second, this is intellectual property; intellectual property, generally speaking, belongs to the rights holder, and the rights holder has the exclusive right to determine what he or she wants to do with it. To that extent, I think this mirrors conceptually what intellectual property is all about. The Olympic brand belongs to a few, and therefore it is up to them to decide how best to license that brand.

[Brian Masse, NDP, Windsor West, ON]

Yes, but there is a fine line between common use of the English and French languages and aboriginal symbols in intellectual property. This is the challenge. That's why I think some of you are looking for independent processes.

I want to quickly move on. I only have a few minutes to touch on a few issues.

Concerning the sunset clauses, I know there is one for schedule 2, but why not for schedule 3, as well? Why wouldn't there be a sunset clause in schedule 3?

[Susan Bincoletto]

Schedule 3, as I explained earlier, applies as a guide for the court to determine whether there has been ambush marketing. The court can decide to disregard completely the words that are in schedule 3, or it can use it as a guide to determine whether that, in combination with other factors, could actually make the case that there has been ambush marketing.

The ambush marketing provision ceases to exist at the end of December 2010. Therefore, the value of schedule 3 ceases to exist at the end of 2010 also, because one goes with the other.

I don't know if, technically, schedule 3 also ceases to exist.

[Darlene Carreau, Counsel, Industry Canada, Legal Services]

Well, it stays there and can be reactivated, but as it stands now, by regulation, the ambush marketing ends December 31, 2010, and so will schedule 3.

[Brian Masse, NDP, Windsor West, ON]

So you're saying that it's redundant. I want absolute assurances. You just said it could be reactivated.

[Susan Bincoletto]

It could be for future games. Let's assume that 10 years from now or 15 years from now we're fortunate enough to have another Olympic Games in Canada. Then we could reactivate certain sections of the bill to make them relevant for the new games.

But as of December 31, 2010, by regulation, the protection granted under the ambush marketing provision will cease to exist, and therefore, the relevance of schedule 3 will also cease to exist, because schedule 3 is only there to enable ambush marketing.

[Brian Masse, NDP, Windsor West, ON]

I have two other quick questions. First of all, one of the things that has been raised is electronic media and having a specific inclusion for them. I know you've discussed some of the things, but blogging and other electronic media do have symbols and so forth. Wouldn't it be worthwhile to actually enshrine that in the bill?

Second, has there been any concept of creating a kind of independent appeal process? For example, within 48 hours, if there was a questionable practice or use brought up, it could be done independently so VANOC isn't seen as being the judge and jury in the use of any of the symbols when questions are raised about them out there in the public.

[Susan Bincoletto]

We haven't looked at that, because we felt that the judicial system is there to do just that. If there is litigation, then the courts and the judge will decide if there has been frivolous litigation or whether there are actually grounds for an infringement case.

[Brian Masse, NDP, Windsor West, ON]

Might that process, though, hurt someone who is in a process in which they feel they're legitimately using the symbols correctly and so forth? Wouldn't going through the legal process put them at a disadvantage, as opposed to having some other process? Throwing it all on the courts as a strategy is maybe....

You know, why not maybe have some type of appeal process beforehand so it can be dealt with during the time period of the games and have a reporting process back in a due-diligent time?

[Susan Bincoletto]

That could be seen as being a little burdensome in terms of adding an additional step. I think what we are doing is relying on the natural venue, which is the courts.

I think you will hear from VANOC that they will put in place a mechanism so they can help educate people as to what they should or shouldn't be doing with marks, symbols, and logos that basically belong to them. So it will clarify the future use of those marks.

[Brian Masse, NDP, Windsor West, ON]

I think part of the difficulty we're having right now is that we're waiting to hear about that—

[The Chair, Conservative, James Rajotte]

It's your last question.

[Brian Masse, NDP, Windsor West, ON]

—and you don't even know what that is. I think that's the problem we're having right now. We would expect the government to have that type of answer now, as opposed to it being drawn out later on.

[The Chair, Conservative, James Rajotte]

Okay. Thank you. That will be a comment, then.

We'll go to Mr. Byrne.