Mr. Speaker, as always, it is an extreme honour to rise in this great House representing the people of Timmins—James Bay and to speak of their concerns.
I am pleased to speak tonight to this bill dealing with counterfeit goods. This is the kind of work we really need to do in Parliament.
The issue of the threat of counterfeit and bootlegged goods is major for economic innovation. It is certainly a question of intellectual development of technologies, such as those in the mining sector.
People in my region were concerned about Falconbridge, the great former Canadian company that was taken over under the Conservative government's watch. People were concerned at the time that it would be taken over by a foreign state-owned enterprise. They were concerned about the intellectual property. Falconbridge had made exceedingly progressive development with respect to ore bodies. These are issues of other interests taking over the intellectual property and undermining Canadian innovation.
We have to deal with the issues of knock-offs, counterfeit goods and unsafe products that are coming in at the border.
We have to put what we are actually talking about in context. We are talking about copyright and trademarks. We are talking about bootlegged items. We are also talking about generic goods and competition.
It is important that we are able to differentiate between the criminal knock-off elements and bootlegged products. Certain rights holders will claim counterfeit or copyright infringement because they feel it is a threat to their economic business model.
One of the fascinating things about innovation is that today's corporate best citizens were yesterday's pirates. Probably the best example of the most militant when it comes to taking on piracy is Hollywood and the Motion Picture Association of America. It lobbies strongly in the United States and the United States is more than willing to twist the arms of any of its allies around the world if they are seen as being a threat to Hollywood.
The market did not go out to California because the weather was nice. The market was in the east. Hollywood was set up because it was beyond the jurisdiction of the Thomas Edison corporation, which had the copyright on motion picture cameras. The market went out to Los Angeles because it was basically a free country there. It was outlaw country. Hollywood was set up outside the jurisdiction so the Thomas Edison corporation could not get them on stealing intellectual property and Hollywood developed. It is an interesting story.
John Philip Sousa tried to stop the development of the roller piano because it was seen as a threat to the livelihood of live musicians. We do not have roller pianos anymore. The American Music Publishers Association denounced the development of the gramophone because it undermined the need for roller pianos.
The pirates who were taking away from live musicians were then threatened by the development of the record player. People only had to buy the record player. They did not have to worry about the copyright that was being paid to the publishers.
Then radio came along. The record industry went after the radio industry because it believed the radio industry was stealing its intellectual property, which was in fact quite accurate. Between 1928 and 1931, the sale of recorded music dropped by 90% in the United States. Part of that drop was a result of the depression, but the other reason was the technological threat posed to the music industry, which was faced with two options at that time. The first option was to try to shut down the commercial use of radio. The other option was to remunerate the artists for what was being played on the air. The record industry rebounded.
FM radio was invented in the 1930s. It was certainly much superior to AM radio. For about 40 years congress did not push for the development of FM radio because RCA had bought up all the licences for AM stations. FM radio was seen as a threat to RCA's business model.
I am not in any way diminishing the issue of counterfeit goods. What I am talking about is the complexity of the issue that is going to face our people at the border. I am very glad we are going to have laws that deal with this because it is where the shipments are coming across.
However, we are asking our border guards to differentiate at times between very complex issues and sometimes there are competing interests. For example, we had a landmark case in the United States under the DMCA, the Digital Millennium Copyright Act, between two garage door opener companies. I think it was Chamberlain Group, Inc. that had invented a garage door opener. If people lost their garage door openers, they were stuck and had to buy a whole new system. Then Skylight Technologies, Inc. came along and said that it would make a generic garage door opener. That was considered a bootleg product and it went through the United States court system.
It is interesting. The U.S. has very heavy protections for intellectual property. However, if we look at what the U.S. courts have ruled on intellectual property, very similar to Canada, France and Europe, it is the balancing act between innovation and sometimes things that are seen as economic threats and actual economic innovation.
In Bonita Boats, Inc. v. Thunder Craft Boats, Inc., there was a unanimous court decision by Justice O'Connor, who said:
From their inception, the federal patent laws have embodied a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy
Two years later, Justice O'Connor repeated similar views in the Feist Publications, Inc. v. Rural Telephone Service Co. He said:
It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed this is not “some unforeseen byproduct of a statutory scheme”.... It is, rather, “the essence of copyright”...
What we are hearing might seem somewhat contradictory, in that copyright is not just a protection to the creator, but it is also a limitation on the rights of the creator to say that an innovative economy is going to develop through imitation.
This goes back to the beginning, in 1841, when Lord Macaulay, during the copyright debates, referred to the people trying to bring laws in as the “knaves who take the bread out of the mouths of deserving men”. People were actually ripping off the books and selling them cheaply on the streets of London, because it was the book wars at that time.
Lord Macaulay also said that it was important they would not just create monopoly rights for a small clique of book owners because the development of the English identity would not be possible unless they opened up the market, that they had to create enough of a space to allow the innovation and the proper remuneration to the creators, but they could not create a simple monopoly right that would limit future competitors, today's pirates who are coming in and wanting to get into the market.
I am using the word “pirate” in the sense that we are defending the people who are dealing in bootleg products and bringing in unsafe products.
What I am talking about is the need for us to also recognize that when we have trademark and counterfeit and copyright protection, we will have conflicts that go through the courts between some of the upstarts and some of the big players. It is not in the interests of the big players to ever have competition. We have to ensure that happens. Therefore, when we look at our laws, we want to ensure they happen in a form we can differentiate.
I mention this again because a lot of this will be dealt with at the border where there will be a lot of judgment calls being made. It certainly is important that we give our border officials the ability to seize the goods at the border that need to be seized.
It is funny. When I look at the government's record on standing on intellectual property, it has been a little less than competent. We have a number of examples.
In December 2006, the famous member for Beauce met with the U.S. ambassador, David Wilkins, according to what came out in the WikiLeaks documents. He promised him that our copyright legislation would be just in line with the United States and even promised to show the legislation to U.S. officials before it was brought to Parliament. That would have been an extremely terrible breach of the privilege of the members of the House.
Fortunately, the member for Beauce never got the chance because he went and lost other documents at his girlfriend's house, and so he went back to the backbenches. That little incident did not happen.
We are being told that we need this legislation because of the U.S. 301 watch list. This watch list is a special trade list for countries that are far beyond the norm—the outliers. The countries that are on the 301 watch list are like Yemen and North Korea. They are the countries that the U.S. trade officials say are beyond the laws of intellectual property. They are countries where bootleg products and corrupt practices are the norm.
In April 2009, the special assistant to the now President of the Treasury Board, Zoe Addington, the director of policy for the minister, met with the U.S. trade officials. Again, this comes to us thanks to WikiLeaks, “In contrast to the messages from other Canadian officials, she said that if Canada is elevated to the Special 301 Priority Watch List (PWL), it would not hamper — and might even help — the [Government of Canada's] ability to enact copyright legislation.”
This is staggering. The right hand of one of the key ministers of the government tells American officials to put us on the most notorious watch list as though none of the intellectual property standards in this country were legitimate at all and that we are a complete outlier.
What does that do for Canada's international trade reputation? Here is a government that promotes trade to Canadians in the House. Although the Conservatives do not have much to show for it, they are always promoting their trade agenda. Yet, they go to our number one trading partner and beg them to put us on an international watch list as an outlier country. Can members guess what happened? A couple of weeks later, Canada was added to the 301 watch list as a country that could not be trusted because of its abuse of intellectual property.
Now, we did not hear a peep from government members standing up for the Canadian industries that are actually trying to work in the United States and Europe. They did not defend the fact that we did have intellectual property rights and that we did respect intellectual property. No, the Conservative government was promoting us as an outlier.
However, it was interesting when the Computer and Communications Industry Association, which represents the biggest intellectual property groups in the United States, such as the Googles and Yahoos, went before the United States trade representative to give a special hearing and spoke up for Canada. There was no Canadian representation there, but we had the Computer and Communications Industry Association saying that the very legitimacy of the U.S. 301 watch list was obviously being put in question by the dubious plan to have Canada listed as an international outlier. They said that the attempt to use trade policy to force through domestic policy was fundamentally flawed.
This is what we have seen again and again with the Conservative government.
However, continuing on with intellectual protection, do members remember the famous iPod press conference? The present Minister of Canadian Heritage and Official Languages and the President of the Treasury Board, the one who was begging the United States to damage our trade reputation, stood at a mall tilting at windmills. It was like they were Don Quixote and Sancho Panza, raising their fists for consumers, saying that they would stop that dreaded NDP $75 iPod tax. I think they meant the $21-billion NDP iPod tax or whatever it was, but they would never allow this iPod tax. This was a job-killing iPod tax. They stood out there like two ridiculous figures doing this dance while people at the mall were wondering what they were talking about.
They were talking about Canada's long-standing levy on blank cassettes and CDs, which was seen as a model around the world for allowing some manner of remuneration to artists for the massive amount of copying that was going on. This was actually considered an extremely progressive step.
I met with the Copyright Board and found out what it was looking at. There was no such thing as a $75 job-killing NDP iPod and carbon tax. No, it was talking about a $3 levy on a $200 iPod that would have gone into a fund for artists because we know that there is all manner of copying going on.
That fund, according to the Copyright Board, would have created a $35-million fund for the artists to continue their work. We see how the entertainment industry in Canada and North America has been devastated by the development of digital culture. This is not against digital culture, but the market has not been able to recover. We need new models to re-establish the incredible arts community, but we had these two ministers doing a song and dance of deceit over this $75 tax, they were calling it. At the time, nobody believed it.
The Edmonton Journal said that the New Democratic Party's position on the levy was “perfectly reasonable”, and that the Minister of Industry misrepresented its content and that the NDP's position was thoughtful and it upheld basic Canadian values. The National Post said, “The government's nonsensical, 'Boo! Hiss! No new taxes!' response…is just dumb”.
Of course, we did not know just how dumb it was when it turned around and, wait for it, what did it put on the iPod? It put on a tax. It put its own iPod tax on, so boo hiss dumb. How dumb can the Conservatives get if they get their two key ministers to stand out there and do a ridiculous song and dance to defend consumers while they are undermining the rights of artists and taking $35 million out of the recording industry that is promoting Canadian entertainment, and then turn around and put an iPod tax on.
The government has failed in some key areas of intellectual property. I am glad to see that we are going forward right now and dealing with the issue of counterfeit. I hope that the Conservatives will actually be able to see through some of the problems in terms of ensuring that we have the resources.
I would like to follow up on my colleague from Skeena—Bulkley Valley, who asked a very straightforward question. If the Conservatives are cutting $143 million from border security, how will they be able to deal with the counterfeit and bootleg products that come in? I talk to rights holders and they tell me that when they go to a mall in Toronto and see piles of bootleg DVDs and CDs, who do they call? The RCMP? They do not have the resources. The Toronto police will not do anything, so what it creates instead is a culture where the rights holder is forced to go to litigation.
If it is a big player, it can go to litigation, but if it is a small player, it is very difficult. If the player cannot stop the product, if it is not going to seize the product, but can go to litigation, it is a recipe that puts rights holders continually at a disadvantage.
I would like to think that within this House we could work on a bill that would ensure that there are other resources to seize the products that need to be seized, but that we are not getting caught up in battles between rights holders as to what is legitimate and what is generic. We have also seen in Europe where medicines have been seized. It was claimed they were counterfeit when they were not counterfeit; they were generic. These are important things because they have actually become part of trade disputes, and our front-line officers will have to deal with it.
That being said, in the New Democratic Party, we want action on the bootleg goods that are threatening not just the health and safety, but the innovation of our economy. It will be the balance. Going back through copyright and trademark infringement laws across the world could be issues that we need to have balanced. Fortunately, we see the word “balance” in the dictionary. If we were looking up antonyms we might see the Conservative Party of Canada.
What we need to have here is, out of the work of all the committee members in this chamber, to ensure that we have the right balance and then we have the resources and the tools. If we say we will be serious about dealing with the counterfeit and bootleg products that are undermining our economy, then the police and the appropriate authorities would have the power to deal with this as it comes through.