The Harper government has introduced a bill to bring Canadian law in line with a controversial copyright treaty that many critics thought was dead.
Critics fear the bill and the treaty it’s meant to enforce will turn Canadian customs officers into de facto enforcers of copyright law, empowered to seize suspected copyright-infringing materials without judicial oversight.
Bill C-56, introduced on Friday, is designed to make Canada compliant with some controversial aspects of the Anti-Counterfeiting Trade Agreement (ACTA), an international treaty negotiated in unusual secrecy that was roundly rejected by the European Parliament last year, leading many observers to conclude the treaty was dead.
But the arrival of Bill C-56 would suggest Canada and the United States -- which has largely been behind the push to create ACTA -- still expect the treaty can come into force.
ACTA was the target of mass protests across Europe last year, amid concerns the treaty’s provisions would lead to censorship on the internet and the criminalization of small-scale, not-for-profit downloading of copyrighted material.
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Opponents were especially critical of an ACTA provision that would allow customs officers to search for and seize copyright-infringing material, which led to concerns that travelers would have their phones and laptops searched for songs they downloaded without permission.
The bill introduced by Ottawa on Friday does indeed empower customs officers to search for copyright-infringing material, but makes an exception for individual travelers who have material solely for personal use.
“The decision to grant border guards increased powers without court oversight or review raises serious concerns,” tech law expert Michael Geist wrote on his blog. “Customs officials are not copyright and trademark experts, yet they may now be forced to assess infringement cases including determining whether any copyright exceptions apply.”
The bill also increases criminal penalties on copyright and trademark infringement, introducing possible prison terms for trademark violations -- up to five years for an indictable offence, or up to six months for a summary offence.
Numerous critics of the treaty questioned the timing of the bill’s introduction: It was made public the same day the U.S. Trade Representative’s office released its 2013 trade policy agenda, which included a strongly worded request that Canada “meet its Anti-Counterfeiting Trade Agreement obligations by providing its customs officials with ex officio authority to stop the transit of counterfeit and pirated goods throughout its territory.”
“Canada did not miss a beat to satisfy this demand,” wrote Maira Sutton on the blog of the Electronic Frontier Foundation, which has been closely following the ACTA controversy.
Sutton argued Canada’s customs officers would end up mirroring the U.S. Immigration and Customs Enforcement, which has “seized domain names for allegedly hosting infringing content without a court ruling.”
She concluded: “Extrajudicial takedowns of websites violate our rights to free expression by presupposing guilt and enacting punishment where legitimate content and speech is suppressed. Overall, this new bill is a glaring indication of how willing Canada is to cave to U.S. pressure on intellectual property enforcement.”
Other aspects of ACTA have also raised concerns among consumer and digital freedom advocates. Provisions in ACTA would make internet service providers liable for copyright infringement, which could lead them to filtering or blocking content, or cutting off internet users without judicial process.
Critics also decry the treaty’s plan to create an international ACTA enforcement committee that would be composed of unelected members, as well as the secretive process by which the treaty was negotiated.
Eleven countries, including Canada, signed ACTA in October, 2011. But the treaty only comes into force when six of those countries ratify the treaty in their own legislatures.
Japan is the only country to have ratified the treaty so far. The European Parliament’s rejection of the treaty last summer was seen by observers as having killed the deal, but the treaty can still come into force if five more countries ratify it.