The Department of Justice has been providing legal support to the departments with lead responsibilities on the enforcement of intellectual property rights.
You heard Nancy refer to counterfeit and pirated goods. Before I describe the legal framework I thought it might be useful to simply distinguish between counterfeited goods on the one hand and pirated goods on the other. I appreciate that the title for today's hearings relates to counterfeit, but for all practical purposes there are equivalences here in enforcement.
When we talk about pirated goods, for example, we're talking about goods that represent commercial infringement of copyright. So we're talking about DVDs, camcording, software, and music. When we talk about counterfeit goods we're talking about goods that represent a commercial-scale infringement on trademarks. So we link counterfeit with trademarks, and pirated with copyright.
The enforcement often looks very much the same, but there are different legislative regimes, depending on whether it's counterfeit or copyright, and I think you'll find that most of the witnesses today are linking the two in their presentations. In other words, we're trying to combat both counterfeit and piracy.
Today I intend to outline the legal regime we have in place with reference to counterfeit and pirated goods. I think the first thing is to appreciate--and forgive my using this word--the architecture of customs enforcement in Canada.
The Border Services Agency personnel enforce the legislation of other departments where goods are prohibited, controlled, or regulated. For example, the Hazardous Products Act is legislation for which Health Canada is responsible, but customs does the enforcement at the border on behalf of a client department, in effect. So customs personnel are enforcing the Hazardous Products Act at the border on behalf of the client department in whose legislation the goods are either prohibited, controlled, or regulated.
It's important to appreciate that customs has the same repertoire of powers and prerogatives for border enforcement in relation to all of their client departments. Put another way, to take this particular example, the prohibitions on hazardous products don't show up in any customs legislation. They have standard protocol procedures and prerogatives for enforcement of hazardous products. The prohibition per se on hazardous products is in the legislation of the host department, in this particular case Health Canada.
It's important to appreciate that, because it means if there were amendments in relation to counterfeit or pirated goods, they wouldn't be in the legislation on customs, generally speaking. They would be in the legislation of Industry Canada, in this particular case, which is responsible in large measure for the Copyright Act and the Trade-marks Act. That architecture is common to the U.S., Australia, the European community, and the U.K.
It's important to appreciate as well that in Canada we do not prohibit the entry of counterfeit or pirated goods at this time. That leaves Canada Border Services with a relatively limited role in relation to counterfeit and pirated goods.
Specifically, there are procedures that permit rights holders to apply to a court of superior jurisdiction to obtain an order intercepting goods at the border. So Border Services are authorized to intercept goods on court order. They also have a role in relation to RCMP criminal enforcement. It is possible, for example, for the RCMP to share intelligence with the CBSA on suspected importations of counterfeit or pirated goods. In those particular cases there's a role for the Border Services Agency to establish a lookout, intercept the goods, and advise the RCMP. The RCMP will effect a seizure, and there may or may not be a criminal prosecution.
Canada Border Services also have a role in reporting to the RCMP shipments of suspected counterfeit or pirated goods. In those particular cases the RCMP may attend, effect the seizure, and initiate criminal proceedings. But having said that, the principal role of Canada Border Services is to respond in civil cases to court orders, and collaborate with the RCMP in criminal investigations to advise of suspicious shipments or intercept them on intelligence from the RCMP.
Our intellectual property regime invests our border services personnel with a rather smaller role than you'll find in the other jurisdictions I mentioned. In the U.S., for example, the border services agency is the competent authority for making determinations about whether goods are counterfeit or pirated, and the U.S. border services agency will effect the seizure, store the goods, and destroy the goods, largely at the expense of the U.S. government.
You have to appreciate that the U.S. government is itself a source of considerable intellectual property. The interests of the intellectual property industries are coincidental with the interests of the U.S. government. It's said to be a $810-billion industry in the U.S. Its copyright goods are said to be its single largest export, so you can appreciate that the U.S. government will go to considerable length to enforce intellectual property rights, because often as not they're American intellectual property rights.
In the other jurisdictions of the EU, the U.K., and Australia, the tendency is to facilitate the enforcement of intellectual property rights by the rights holder. Generally speaking, in those jurisdictions I mentioned, the costs of enforcement are borne not by the government but by the rights holders. The rights holders would be responsible for the costs entailed in operating registration schemes, storing counterfeit and pirated goods, and in the destruction of those goods. Generally speaking, in the other jurisdictions I mentioned, those costs are borne by the rights holders themselves through a registration scheme compounded with bonds, sureties, and guarantees.
To sum up, basically Canada has not invested its border services with significant authorities in relation to counterfeit or pirated goods; other jurisdictions have rather more. The only real difference between those other jurisdictions, with the U.S. on the one hand and the EU, the U.K., and Australia on the other, is the point at which a determination is made with respect to whether the goods are counterfeit or pirated. The second point of decision is who's going to bear the costs of enforcement.
In the U.S., as I say, the interests of IP rights holders are considered synonymous with the U.S. government's. The other jurisdictions look on this question as being how much state support is going to be supplied to the enforcement of what are essentially private economic rights. As I say, in the U.S.A. the U.S. government supports the system; in the other jurisdictions, by and large the costs are borne by the rights holders.
That's the scheme, Mr. Chairman.