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Canadian Anti-Counterfeiting Network Calls for Graduated Response

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The Canadian Anti-Counterfeiting Network is back in the news today with a refreshed version of its 2007 report that recommended new border measure powers, legal reforms, and a massive increase of public tax dollars for enforcement and education programs. Many of those same recommendations are back with claims that the government should pour millions into anti-counterfeiting activities, increase criminal penalties, expand seizure powers, and ratify the Anti-Counterfeiting Trade Agreement.

On the Bill C-11 front, the CACN wants to gut many of the balancing provisions, including limiting the scope of the already overly restrictive digital lock exceptions, dropping the ISP notice-and-notice approach in favour of a graduated response that could lead to terminating Internet service for individual users, and removing the distinction between commercial and non-commercial infringement for statutory damages despite the fact that Canada is one of the few countries to have such damage provisions (which would pave the way for more Hurt Locker-style lawsuits against individuals).

Some context is required as in the years since the last report, there is mounting evidence that Canadian law has been used to effectively target counterfeiting concerns. Consider:

  • Canadian courts have awarded significant multi-million dollar awards in counterfeiting cases. For example, this past summer the Federal Court of Canada awarded millions in damages arising from a counterfeiting case launched by Louis Vuitton. The case is one of a growing number of decisions with significant damage awards. As Canadian experts have noted, the courts have sent a strong signal of a tougher approach on trademark and copyright infringement with some of the biggest financial penalties in the world.
  • Several studies indicate that Canadian counterfeiting and piracy rates are declining. The OECD found that Canada is among the lowest sources of counterfeit products, the Business Software Alliance has said that Canada's piracy rate is at an all-time low, the Canadian Motion Pictures Distributors Association has said that unauthorized camcording has all but disappeared in Canada.
  • The RCMP and other law enforcement agencies regularly report on seizures of counterfeit products. In recent weeks, there have been reports in Toronto, Sarnia, and Winnipeg to name a few. While the CACN would no doubt point to this as evidence of a counterfeiting problem, RCMP action points to law enforcement prioritization and the effectiveness of current Canadian law.

While everyone is opposed to counterfeiting that raises health and safety concerns, the CACN is pushing for a massive public investment into private enforcement matters at the very time when the evidence suggests Canada already has strong legal rules against counterfeiting and a clear commitment from law enforcement to take appropriate action.

This post originally appeared on www.michaelgeist.ca.

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