:
I'm going to try to race through. Do you have a copy of my text already? That has been circulated. Okay. I can answer questions at the end in both languages, but I'll do my introduction in French mostly.
[Translation]
My name is Charles Vallerand and I am Executive Director of the Coalition for Cultural Diversity and the General Secretary of the International Federation of Coalitions for Cultural Diversity. I am accompanied by Mr. Daniel Drapeau, Counsel at Smart & Biggar and member of the Canadian Anti-Counterfeiting Coalition who will speak to you about the Anti-Counterfeiting Trade Agreement (ACTA).
I do not think that I have to remind you of the role played by civil society in the adoption of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. My brief, which I will leave with you—as well as the additional information I will distribute—focus on the pivotal role we have played over the past ten years and more specifically on the leading role Canada has and continues to play internationally.
I would also like to point out that Canada was the first country to ratify the UNESCO convention and also contributes to the International Fund for Cultural Diversity. Canada is therefore, actively involved in implementing the Convention. This is the reason why the coalition is following the negotiations between Canada and the European Union with such great interest.
I will now pick up my prepared brief at item 19 on page 3. Several people believe that once the Convention has been adopted, it is mission accomplished. This is far from the case. It’s like thinking that the adoption of the Universal Declaration of Human Rights somehow eliminated all abuse and inequality. Indeed, we’re only at the starting point of a long process.
I would now like to focus on two urgent issues relating to the Convention. The first of these challenges is the need to build co-operation between countries of the north and those of the south to provide southern countries with the resources to implement the Convention as well as the technical capacity to develop and sustain cultural industries and artists. This is also crucial to ensure that UNESCO has the necessary financial resources to support the implementation process.
Our specific focus today is to ensure the UNESCO Convention be given its full legal and political weight with regard to other international mechanisms. The original idea behind the Convention was to develop a completely fresh legal mechanism to offset and frame the specific and special situation of culture, which is a commodity or a service with a recognized commercial value but also, and more importantly, a cultural value. What is required now is to develop the legal value and the jurisprudence. These trade negotiations are so important because the Canadian Government has, right from the outset, clearly focused on developing an extensive, broad modern trading relationship with a significant economic partner. Indeed, this is why the coalition and its 31 member associations, such as the Writers Guild in English Canada and the Guilde des réalisateurs and the Union des artistes and other French-language associations in French Canada are watching these negotiations so closely.
We are following the talks with great interest because it would be unfortunate to see the gains made through the Convention negotiated away or weakened by a potential free-trade agreement.
The coalition was quick to make its position on the issue known by way of a letter to Minister Moore at Canadian Heritage and to the Minister of Foreign Affairs and International Trade at the time, Stockwell Day. They both wrote back informing us that the Canadian Government was committed to negotiating an agreement and a complete exemption for culture. We were reassured.
Quebec's Minister of Culture, Communications and the Status of Women and its Minister for International Relations gave the same undertaking. Unfortunately, it is clear that the talks are continuing and have now reached a critical point in the negotiation of issues yet to be resolved. Culture remains on the table. Obviously, reaching an agreement on a cultural exemption with the European Union is not as easy as might have been imagined. As you are aware, and referred to this last week—we represent civil society and as such, greatly appreciate these opportunities for consultation and dialogue with the senior negotiation officials.
We are aware of the challenges. We realize that the European Union and its negotiators have a different view of the cultural exemption and therefore, have to ask questions to understand our position and how it would apply across the agreement. The Europeans are asking some surprising questions given that the European Union and 26 of its 27 member states have ratified the UNESCO Convention. They are committed to diversity of expressions. Why are they asking these questions about the cultural exemption when Canada’s practice and approach have been well known for the past 20 years? They have requested clarification. Let’s hope that Canada is able to provide sufficiently reassuring clarification to coax the Europeans into signing an agreement. We have offered our co-operation and expertise in providing comprehensive answers to issues raised by our European counterparts.
We believe that just because the European Union is asking questions, does not mean that we should change our position or rush into an agreement just for the sake of it. Quite the opposite in fact. Canada has shown great leadership and must continue to do so. From the start of the process, France, which is a major player, as you know, has joined Canada in advocating a complete exemption. Premier Charest was in France recently. Both he and President Sarkozy stressed States’ legitimate right to enact cultural policies to preserve and promote their cultures.
For us the real issue here is developing the jurisprudence that I referred to earlier. This is important because there are very few legal texts, court decisions or international trade mechanisms that establish or recognize the legitimacy or even the very existence of the UNESCO Convention that we fought so hard to achieve.
Not only should the clause be watertight, we would suggest it also be reviewed and modernized to include new types of cultural industries, such as the new media and convergence. As you know, these are virtually an extension of audiovisual today.
Has any thought been given to reviewing the wording of the exemption clause in preparation for the future? Is there a reference in the agreement itself to the necessary consistency between the exemption, UNESCO Convention and the trade agreement? Achieving that and developing mutually satisfactory wording would help to develop jurisprudence. This would be a major step. We are lucky to be dealing with a major trading partner, which supports our position. These are perhaps the only bilateral trade negotiations where this will ever be the case.
I would like to share one caveat with regard to the review of the clause that officials working on this file have expressed to us. Be proactive, be modern and prepare for the future but do not open the door to a review of existing bilateral trade deals and agreements. We should ask legal experts to do an in depth assessment of my proposal to ensure that it does not create more problems than opportunities.
I would now like to address the Cultural Co-operation Agreement or Protocol. Quebec has played the lead, through its negotiator Pierre-Marc Johnson, in promoting this idea. I have to tell you that there is no consensus or unanimous support for this proposal. Why? The problem does not lie in any way with the concept of co-operation. The issue is really one of format.
How can we reconcile the desire for greater co-operation with the Europeans with the goal of achieving a cultural exemption in the comprehensive trade agreement? We believe that we have to clearly distinguish the two issues. The exemption is our primary goal. Canada has to endeavour to negotiate a loophole and weakness-free exemption as well as, if possible, clarification of the exemption as regards the international mechanism. As far as a co-operation agreement is concerned, we support co-operation and we will take part in talks on the development of such an agreement if we are invited to do so. However, this should only be tackled after the main agreement has been signed. Let’s sign the agreement, agree on the exemption and then discuss culture.
If we do decide to go ahead with these talks, do not entrust them to trade officers but rather to cultural experts and officials, who really understand the issues in this field.
One of the issues we have is with the use of the word protocol. The word protocol seems akin to a binding agreement, which some see as implying restriction. It would look like there were two separate conflicting agreements and an attempt to move the discussion to a separate forum.
If I have understood the Quebec proposal properly, it is suggesting generous, open co-operation, exchanges of experts, information and best practices. If this is the case and if the terms of reference are properly defined, it will go some way towards allaying concerns. If we are to do this, let’s do it properly by developing a monitoring mechanism.
As you know a joint committee on audiovisual has existed for a number of years. It has enabled experts and officials from participating countries to… Let’s develop the necessary financial resources as well as a mechanism to monitor the co-operation agreement. A declaration of intent announcing improved co-operation between Canada and the European Union without the necessary multi-year funding might end up being just some vague initiative gathering dust somewhere.
I will conclude here. We believe this is a historic opportunity that Canada must seize. Canada has always shown leadership. The provinces, or at least, Quebec, support the Federal Government on this file. I think that if we develop the right formula and answers to the questions we are asked, Europe will also sign this agreement that includes a cultural exemption.
Thank you.
:
Thank you very much, Mr. Chairman.
I have a couple of things. First of all, you should know that I've always been of the opinion that this conversation should be happening at the international trade committee, where they actually deal with international trade and the various treaties that have been signed over time. This is the Canadian heritage committee, and I'd love to be talking about things like the War of 1812, but instead we're here debating the Canada-EU trade negotiations, which I'm sure members are interested in.
I certainly see the incredible importance of signing bilateral trade agreements, not just on things like manufactured goods and obviously other industrial exports, financial or otherwise, but certainly for heritage and cultural exchanges as well. I think everyone here would agree that while we do have a business relationship in the arts with Europe, it could always grow. I think one of the great ways to grow that is to expand our relationship with them.
Notwithstanding all of those things, I really appreciate your appearing here today and providing the presentation you've made.
Could you just tell us, what was the motivation behind ACTA in the first place? Why did we sign this? What are its benefits? How has it worked? Are there things that you would improve? Perhaps you could just give us a little background on these sorts of things.
:
My opening statement will address some of the questions you've put forth.
First of all, I'd like to thank you all for this opportunity to assist you. I would like to thank Mr. Vallerand for allowing me to share some of his speaking time, because I am not a member of the Coalition pour la diversité culturelle.
My name is Daniel Drapeau. I am counsel with the law firm, Smart & Biggar. I conducted my first seizure of counterfeit goods 13 years ago and I've been active in that field since then. I'm also the past president of the Intellectual Property Institute of Canada's anti-counterfeiting committee, which I've represented within the IP Working Group of the Security and Prosperity Partnership with Canada, the United States, and Mexico.
One thing I noticed during my practice is that there's really something that does not work with the Canadian anti-counterfeiting system. When I took over the presidency of the anti-counterfeiting committee, I noticed that nothing is moving legislatively; hence, my interest in being here today.
Two years ago I took a year off, and as part of that year off, I met with various people in the anti-counterfeiting community: people at the World Intellectual Property Organization; people at the World Customs Organization; people at the Union des Fabricants and the Comité national anti-contrefaçon in Paris; and also rights holders, which are my clients.
I wanted to get a continental European perspective on how Canada is seen in the anti-counterfeiting world. We get beaten on the head quite often by the Americans, but I was wondering, maybe the Americans are exaggerating because we're always on their special watch list. Unfortunately, what I can report to you is that other countries don't see us any better than the Americans do.
[Translation]
When Mr. Vallerand invited me to share his speaking time, I was keen to put this opportunity to good use. Consequently, I will present my thoughts on the weaknesses of the Canadian system, throw out some suggestions for correcting these shortcomings and then talk to you about how the Anti-Counterfeiting Trade Agreement, or ACTA, can help. I have read the transcript of your January 31 meeting.
[English]
I will be in a position to provide you with some answers to questions that were made then but to which answers were not provided.
What is a counterfeit? It's important for you to understand what a counterfeit is, because a lot of people are going to try to confuse you by referring to things that are not counterfeits as counterfeit.
A counterfeit is a fake product bearing an indication that would lead the consumer to believe that it comes from a source from which it does not come. A classic example would be a fake Lacoste polo shirt. It's not made by Lacoste but it has a little alligator on it. You can find a host of other products. When I started my career, I did luxury goods. Now I do electrical boxes.
It's important to note that counterfeits are not grey goods. Grey goods are authentic goods that come into Canada in violation of the Canadian distributors' rights. That's what the Supreme Court decision in Euro-Excellence two years ago was all about. That's not counterfeit. But these items will often be confused with counterfeits.
Nor are counterfeits goods that bear a trademark that is confusingly similar to the genuine one, say, some other form of reptile besides the little alligator. These are not counterfeits. Counterfeits reproduce the trademark.
The reason I place emphasis on this is that it's really pretty cut and dried. You don't need to debate this ad nauseam. It's goods that are lying, basically.
As a parallel to counterfeits, you'll also hear about piracy. Piracy is the unauthorized copying of a work—like software, a book, or a movie. That was partly addressed right after Arnold Schwarzenegger paid us a visit in Canada. That's not what I'm here to talk to you about today.
ACTA is an initiative that was launched in 2006 by the Japanese and the American governments. One question that was asked at the January 31 hearing is, why was this done outside of WIPO? WIPO is the United Nations agency for the protection of intellectual property.
There's a simple answer to that question. WIPO, at least as far as anti-counterfeiting efforts are concerned, is paralyzed by a north-south conflict. The north wants to have protection on IP. The south wants to have access to IP and protection of traditional knowledge and traditional culture. Things aren't moving at WIPO in respect of anti-counterfeiting. Also, WIPO can only suggest. It doesn't have un pouvoir contraignant.
Another question asked on the 31st is, why was this done behind closed doors? This is a criticism that has been levied against the act of process quite frequently.
[Translation]
The answer is very simple. It enables countries with often diverging views of intellectual property protection to discuss the issue more openly.
[English]
The real answer as a Canadian is that it's a lot less embarrassing for us if the comments are made privately than if they're made publicly.
There have been some comments that ACTA was brought about to bring Canada in line. ACTA is now at a stage where the final text was approved in Tokyo in October 2010. The parties that we expect will become signatories are Australia, Canada, the EU, New Zealand, the U.S., and Switzerland, but also Mexico, Morocco, the Republic of Korea, and Singapore, so two Asian countries and two countries that are not part of the first world.
As you can see, there are a lot of countries that act in the counterfeiting world that are not present among those signatories. The agreement is currently in the process of being translated into the languages that will be considered official, and one would assume that after that the treaty will be adopted.
This treaty is divided into a number of chapters. The meat of the treaty is found in chapter 2, which itself is divided into four sections. Section 2 is on civil enforcement, so here you're talking about the work that I do, obtaining injunctions, obtaining damages, and doing civil seizures. The next chapter deals with border measures. So what does customs do? We have big problems in Canada in terms of the weakness of our customs program in terms of anti-counterfeiting. I'll talk about that later. The next section talks about criminal enforcement, and I'll go into that in more detail a little later. Finally, there's a section that was also added with respect to the digital environment. This section deals with Internet service providers and the circumvention of anti-copying devices.
My comments will focus on this chapter 2. I thought it would be interesting for you to know what the link is between current legislation in Canada and ACTA and where we're going. Four years ago, I testified before the parliamentary committee on industry, science, and technology. I identified for the committee what doesn't work in the Canadian anti-counterfeiting system, and I provided recommendations as to how to make our system better.
All my recommendations were adopted by the committee. Four years later, I can tell you that we're no further advanced. However, I'm pleased to report that my recommendations are found in ACTA, so this should help us remedy our system. So I think ACTA will actually help us make our anti-counterfeiting system better. What I deplore is that we're completely behind the curve. While we should be a leader, we're really a follower here, and actually a follower that's been dragged along.
I hope you all have my handout. Do you?
:
In my handout, you can see my observations on the weaknesses of the Canadian system, which are on the left, and my recommendations, which are on the right. In the middle I've added a column on the relevant provisions of ACTA.
Now please note--and I know there's a lot of discussion on Bill and on the Copyright Act--ACTA will impact not just on copyright. ACTA also impacts on trademarks, and a number of my comments today will be directed to trademark protection, which receives very little temps d'antenne.
The problems I've identified and that are dealt with in ACTA are in the left-hand column. I'll go through them briefly. From a criminal point of view, the RCMP and crown prosecutors do not act under the Trade-marks Act for the very simple reason that there are no criminal dispositions under the Trade-marks Act. We need criminal law, because fighting counterfeiters only under civil terms is basically fighting crooks by the books: it doesn't work. From a cooperation point of view, we have a blockage of information. The RCMP and Canada Customs cannot provide information to rights holders, which impedes their ability to institute civil actions in a timely fashion.
And finally, from a deterrence point of view--which I think is the worst part of our system--we have no statutory damages under the Trade-marks Act. The maximum penalty under the Copyright Act is $20,000, which is completely not comparable to the profits that are made by counterfeiting, and this maximum amount has been awarded only three times, in three cases where the plaintiffs were represented by our firm, since 2006.
Finally, case law is very ill equipped to deal with this. We still have some notions that the cost of the fight against counterfeit is the cost of business and should not be paid by the counterfeiters. This is jurisprudence from the Federal Court.
The solutions--and I have 30 seconds left--that I propose to you, which you have on the right side of my handout, you can implement either through piecemeal legislation--you can amend the Trade-marks Act to provide for criminal dispositions, statutory dispositions, and statutory damages--or you could have an omnibus bill with civil and criminal components that would ensure parity between trademarks and copyright, so not a different outcome, depending on which rate you can fit yourself under.
:
First of all, on C-32, my overall comment is that ACTA aims to “responsibilize” various people, including Internet service providers, and to provide remedies against anti-circumvention devices. When one reads Bill C-32, one gets the impression that the aim is to “de-responsibilize”.
Here are a couple of examples for you. I was talking about statutory damages. Currently they are $20,000, and you get $20,000 for each work that is infringed upon, no matter how many rights owners are pursuing a given infringer. Usually when counterfeiters sell, they don't just sell one brand; they sell a number of brands. Under C-32, we now have statutory damages reduced from $20,000 to $5,000, and we have this new rule, which I'll describe in French, because we have a term that describes it so accurately: au plus fort la poche. So you have five rights holders who are suing an infringer. Well, the first rights holder who sues gets the $5,000. The others get diddly-squat.
My view on C-32 is not a very positive one. Also, the way the liability of ISP service providers is framed, it seems as if we're dealing with the exceptions rather than the liability.
In terms of the impact ACTA is going to have on C-32, I read the testimony of January 31, and initially I wasn't in agreement that C-32 complies completely with ACTA. That's because I was reading earlier versions of ACTA, mainly the version that immediately preceded this one. With the one we have right now, yes, C-32 complies. But once again, we're not ahead of the curve. We're not showing the way to anybody.
:
We're actually making it applicable for opportunities where it does not apply right now. It's important that it's established in law.
I think you need to understand what the complexities in copyright are. There are two main groups that will oppose copyright no matter what. There's a group on the left that I call the “sticking it to the man” group. In other words, they don't want industry to make any money. Whatever you try to do that might push money into industry, where somebody might make money, they don't like that.
The other side is the extreme right. They're the libertarian group. They're the “stay the hell out of my life” group.
Those are the two groups, right? Most people are somewhere in the middle. But if you want to appeal to the voters on either side of that, then you take a position that is inherently opposed to them.
Now, most of the interventions I'm hearing at Bill --certainly a lot of them from my colleagues opposite—seem to be appealing to the sticking-it-to-the-man group. They're very concerned about the creators. But whenever you talk about trying to re-establish a marketplace or an opportunity for groups to earn money legitimately, that doesn't appeal. What we need instead is a system of levies, taxes and so forth, that we can send out through various bodies, because we all know you can't have a marketplace. I actually think that's....
Unfortunately, your comments will be interpreted as being against Bill , because you don't believe that Bill C-32 does anything to re-establish a marketplace. And that's unfortunate.
:
Can I finish what I have to say?
An hon. member: Sure. Go ahead.
An hon. member: Give him five minutes.
The Chair: There was a misunderstanding on the part of the chair, for which I apologize.
I understood that these two witnesses were appearing as part of one organization. I accorded Monsieur Vallerand an opening statement of ten minutes on behalf of that organization. I did not realize that Monsieur Drapeau was appearing in a separate capacity regarding the anti-counterfeiting accord.
My apologies for the misunderstanding, but we have afforded, in our orders of the day, only one hour for this panel. We have two motions to consider—one is yours, Mr. Angus—and we have the consideration of this draft report.
At this point, I am going to suspend the meeting for a minute--
:
I find this shocking, that the international community said they're worried about Canada; they can't hurt our feelings. You've certainly done a good job of painting us as international pariahs, yet the global intellectual property index ranks us sixth out of 22 in terms of property, trademark, patent protection.
We're ranked fourth in the World Economic Forum. The recent February study to the USTR by major software competitors said that the ranking of Canada as an outlaw state was completely irresponsible. And it's not helpful.
You can come in and you can get everybody worked up, but the issue here is how we separate legitimate counterfeit issues from the fact that you set up a secret process that circumvents the WTO and sidesteps the WIPO treaty when this is where we deal with intellectual property.
Now you might say WIPO is not strong enough, but that has been, since 1996--and before that going back to the Berne Convention--how we do this. Now suddenly we have a whole separate deal. So we have a small, select club that is involved in ACTA. Who gets to join? Are we going to take this to WIPO and be WIPO-compliant, or does ACTA supercede the provisions that we've all agreed to internationally for WIPO?
That is where we deal with intellectual property. We deal with the other issues at the WTO. Now we have a whole different private setup among, what, six, seven, ten countries when the majority are outside of that. I don't see why that's of benefit to Canada.
:
We're back in public session.
Before we go on to the consideration of two motions, I just want to bring two items to committee members' attention. The first item I want to bring to your attention is that a bill has come to us from the House. It's Bill . It is sponsored by Mr. Warkentin, and we, as a committee, have to deal with it by May 31. So we have quite a bit of time, and if needed, we can always seek an extension. That's the first item I want to bring to members' attention.
The second item is that four orders in council have been given to us for four appointments. There are two appointments to the board of trustees of the Canadian Museum of Immigration; one appointment to the board of trustees of the Canadian Museum of Nature; and the reappointment of Kevin MacLeod as Canadian secretary to the Queen.
If members of the committee wish to review any of these four appointments, let the chair know and we'll figure out when we'll call those witnesses.
Those are the two points of information I draw to your attention.
We'll now go to the consideration of the notice of motion from Mr. Angus.
Mr. Angus, would you care to move your motion?
:
Yes, I'd like to move my motion forward and speak to the issue.
February 9 is the closing date for public comment on a change in regulations of the Canadian Radio-television and Telecommunications Commission in terms of the obligations of licence holders of television, radio, and specialty television networks in order to maintain accurate reporting. The actual wording is “not to disseminate false or misleading news”.
The CRTC was approached on this issue back in 2000 by the parliamentary regs committee. Now it's not the committee's function to say whether they like a regulation or not; it's to ensure that the language is clear enough and that it would meet any legal challenge. Nobody has ever challenged the CRTC regulations. In fact, in the CHOI-FM decision in 2005, in which the CRTC pulled the licence from CHOI-FM because of many of its outrageous comments, it was upheld in the Federal Court that the CRTC had a right to hold the licence holder accountable for its use of the airwaves in many belligerent and misleading manners.
The question that the regs committee put in 2000 to the CRTC was in light of the Supreme Court decision on Zundel that had struck down some language about the dissemination of false and misleading news. It had asked for clarification. This seems to have gone nowhere for the better part of 10 years.
It was raised again. Again, is the language clear enough? The CRTC seems to have come back with the words—and this is the change—“knowingly misleads and endangers human life”. The “endangers human life”, as part of the obligation of violating a licence, is new. The word “knowingly” would certainly change the criteria for licence holders because you would have to prove definite culpability of the licence holder, and that isn't in there at this time. And there is concern that it actually would be struck down by the court.
I brought this forward to committee not because we believe we want to second-guess the CRTC on every single decision it makes, but if we change the broadcast standards that we have in Canada, it could have profound implications, not only for the way news is covered but for the way we relate to our airwaves. I think it would be worth hearing from the CRTC and from some representatives from civil society in terms of the potential implications of such a regulatory change.
:
I heard my colleague's concern about free speech, and again, I think we have to clarify what this regulation is about. This is about the licence holders. It's not about journalists. It's not about people who go on and have opinions.
One of the great things in Canada is that we have a pretty rough and tumble media. They aren't prima donnas. We read all matter of partisan commentary. We see journalists speaking out on all manner of things. None of that comes under the issue of the regulations we're dealing with.
The licence holder regulation is about the fact that there is a stated social commitment under the Broadcasting Act. Subsection 3(1) of the Broadcasting Act is very clear that a licence holder has to maintain a high standard of journalistic integrity. So you can allow your journalists to have many different points of view, and many times maybe those journalists might provide information that's inaccurate--maybe they made a mistake--but the licence holder has to have an overall obligation to some standard.
The issue of allowing false and misleading information as long as it doesn't endanger human life is a pretty low bar. I don't think you could get lower than that. How would you even be able to prove that they endangered human life? This is the horrific discussion that's happening in the U.S., that putting a target on a politician's forehead leads someone to shoot them. We could never quantify that answer, but someone did get shot, and there is a huge backlash in the United States.
This isn't about suppressing anybody's opinion. This is about ensuring that those who have the licences to broadcast on television and radio have to meet a certain obligation. For example, say in the middle of an election, one television network or radio station decided they were going to supply false information about a politician they didn't like, which could fundamentally change the outcome of the election, change the political dynamic. It would be okay because they didn't get him killed; they just misrepresented who he was. We see that in the U.S. It has happened. It's something we have to be concerned about.
I would like the CRTC to come and explain this to us. I'd like to hear from some civil society groups that might be able to give us a perspective on what the wording should be if there are changes to the regulations so they come in line with law, but certainly what's being offered is much too low a standard.