Some coincidences are nothing short of ironic.
On April 26, 2012, RCMP proudly reported on mass seizures of counterfeit goods on World Intellectual Property Day. According to RCMP’s report, the Mounties participated in an INTERPOL-coordinated operation aimed at IP crime. In just two weeks from March 1, 2012 to March 15, 2012, over a thousand interventions were made by police, custom officials, investigators and Intellectual Property crime experts at key locations on land, sea and airport border control points. During the same time, interventions in markets, shops and street vendors were made. In total, over a million items were recovered, and over 200 arrests were made. The total value of the seized counterfeit goods was over CA$7,100,000. The counterfeits included perfume, headphones, apparel, jewelry, handbags, cellular phones and machinery.
At about the same time, USTR (United States Trade Representative) released its 2012 Special 301 Report, where Canada remained on the Priority Watch List along with Algeria, Argentina, Chile, China, India, Indonesia, Israel, Pakistan, Russian federation, Thailand, Ukraine, and Venezuela. The findings in the Report regarding Canada are as follows:
Canada remains on the Priority Watch List in 2012, subject to review if Canada enacts longawaited copyright legislation. The Government of Canada has given priority to that legislation. The United States welcomes that prioritization and looks forward to studying the legislation once it is finalized, and will consider, among other things, whether it fully implements the WIPO Internet Treaties, and whether it fully addresses the challenges of piracy over the Internet. The United States also continues to urge Canada to strengthen its border enforcement efforts, including by providing customs officials with ex officio authority to take action against the importation, exportation, and transshipment of pirated or counterfeit goods. The United States 26 remains concerned about the availability of rights of appeal in Canadaâ€™s administrative process for reviewing the regulatory approval of pharmaceutical products, as well as limitations in Canadaâ€™s trademark regime. The United States looks forward to continuing its close cooperation with Canada on IPR issues, and will continue to work with the Government of Canada to resolve these and other matters.
Not surprisingly, Michael Geist has condemned the report, stating that “[t]he inclusion of Canada on the priority watch list is so lacking in objective analysis as to completely undermine the credibility of the report.” He quotes his submission with Public Knowledge, where he wrote, among other things: “Consequently, rates of infringement in Canada are low and the markets for creative works are expanding.”
The rates of infringement cannot be calculated in isolation from two important factors: what constitutes an infringement and how economically viable it is to enforce copyright in every case. In other words, if every unauthorized use of another’s works falls under one or the other form of exception, then it is only natural that infringement rates will be low. If there is no legal authority allowing copyright owners to go against ISPs for knowingly hosting infringing works, it is only natural that copyright owners do not waste their resources going against each and every individual who downloads these works, thus also contributing to the pink-glasses statistics.
Another reason for lack of the objective standards is the absence of clearly defined philosophy of why we have copyright protection at all. I wrote about it in much detail in my review of William Patry’s book “How to Fix Copyright”. If assessment of IP laws is guided by an elusive “balance” paradigm, then any conclusions may be drawn. It is equally plausible to claim that Canada’s IP laws are fully adequate or that they are completely inadequate.
Going back to the coincidence between the timing of the 301 Report and the RCMP report. One thing is clear. Border measures are crucial in today’s world for efficient enforcement of intellectual property. In this regard, the 301 Report makes perfect sense.
Are there countries where intellectual property is in greater disrespect compared to Canada? Of course! Is this sufficiently good reason to celebrate? Absolutely not!
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