By: Sarah Rashid, University of Windsor law student
Canada signed the historic Anti-Counterfeiting Trade Agreement (ACTA) on October 1, 2011 in Tokyo Japan, which signifies the path towards greater commitment in combating the international trade in counterfeit and pirated goods. ACTA is considered to be a groundbreaking initiative due to the international convergence on intellectual property rights (IPR) issues and is considered to be the ‘highest-standard plurilateral agreement’ in the enforcement of IPR. The three main areas that the agreement covers includes: improving international cooperation, establishing best practices for enforcement, and providing for a stronger legal framework for addressing issues of counterfeiting and piracy. Eight countries signed the agreement including the United States, Canada, Australia, Korea, Japan, New Zealand, Morocco and Singapore. The other negotiating parties including the European Union, Mexico and Switzerland were present at the ceremony, did not sign but confirmed their agreement to sign at a later date. ACTA will come into force after ratification by six signatories.
Minister of International Trade and Minister for the Asia-Pacific Gateway, Ed Fast, who signed the agreement, addressed the growing issue of the trade in counterfeit and pirated goods stating, “counterfeit and pirated goods are an increasingly global problem that requires a globally coordinated solution, we all have an interest in combating counterfeiting and piracy because these activities cost billions of dollars each year in revenue and trade losses, which translates into higher prices, lost income and lost jobs for people employed in a range of industries—from film and pharmaceuticals to electronics…” Minister Fast also noted the dangers that counterfeiting and piracy pose to the health and safety of consumers as producers of goods such as drugs and auto parts transit such goods without meeting the required rules, standards and guidelines in place.
Coincidentally, the signing of ACTA by Canada came after the Office of the United States Trade Representative (USTR) released its annual Special 301 Report in May 2011 which is an annual report that looks into the adequacy of protection of intellectual property rights provided by the U.S.’s trading partners. The USTR reviewed 77 trading partners and placed 42 countries on the Priority Watch List, Watch List or Section 306 Monitoring List. The Priority Watch List signifies the most significant concerns regarding a country’s intellectual property rights protections and enforcement laws. Guess what? In addition to China and Thailand, Canada was placed on this Priority Watch List probably stemming from the fact that Canada is the U.S.’s largest trading partner and that in the U.S.’s opinion Canada needs to update its copyright and IPR laws.
Not only in response to the USTR Report (since this is the third year that Canada has ended up on this list), but more so after signing ACTA, Canadais needs to introduce and implement new legislation to implement the agreement. Bill C-11 which addresses digital copyright requirements was reintroduced by the government while other legislation will be brought before Parliament as well.
ACTA and the USTR Report signify the pressure that is being placed on Canada to reform its existing intellectual property rights laws towards greater protection of intellectual property rights and more stringent enforcement mechanisms against trademark counterfeiting and copyright piracy. Some issues of debate arise from what these stronger intellectual property rights protections and enforcement mechanisms will look like. In the USTR Report, the United States encourages Canada to implement deterrent-level sentences for IPR violations and to provide Customs officials with ex officio authority to stop the transit of counterfeit and pirated products through its borders. As for fulfilling ACTA’s objectives, its legal framework includes civil enforcement measures including allowing for civil court proceedings and damages for rights holders; border enforcement measures including the finding and detention of imports and exports that may be infringing IPR; and criminal enforcement measures including establishing criminal offenses for commercial-scale trademark counterfeiting and copyright piracy. The future of IPR law in Canada remains to be seen.