Combatting Counterfeit Products Act (Bill C-8)

Elizabeth May: Mr. Speaker, I am pleased to be able to speak on Bill C-8, which is a bill that deals with quite sweeping changes to copyright infringement and intellectual property rights in Canada.


I presented numerous amendments to the bill before committee, and I am sorry to say that, shockingly, my amendments did not carry. I am afraid that this has become the custom due to the passage of, astonishingly, identical motions in 20 different committees at the same time, intended to deprive me of my rights to present substantive amendments at report stage. Since I have been going to many committees under this new edict, I have not had a single amendment carry at committee. However, I remain hopeful that one day the reasoned efforts I am making will meet with favour.

In the case of Bill C-8, as I mentioned, we would be making sweeping changes, perhaps the most sweeping changes in intellectual property rights law in Canada in over 70 years. We would make these changes without adequate hearings, study, or the proof of any need.

As a matter of fact, one prominent member of the Canadian bar, Howard Knopf, describes the effort to deal with counterfeiting and fake products with this headline: “Is Parliament Rushing to Respond to a Fake Crisis About Fake Products?”

So, we have copyright infringement and we want to protect, and I completely agree with all members of the House who have spoken to our desire to protect artists, innovators, and creators from having the products of their intellectual efforts pirated and stolen without adequate response. However, I will share with this House quite simply what we fear is happening here: we would create multiple offences for relatively minor matters, criminalize things that would normally be dealt with in civil efforts, and we would create new charges under the Criminal Code for offences for which we already have adequate measures within the Criminal Code to handle such infringements.

I want to first begin with the question of invasion of privacy, which is found at clause 59 of Bill C-8.

The definition of “offence” under the Criminal Code section dealing with wiretapping would be amended to include infringements found and created in Bill C-8. It is important to note that this section is not before us at the moment because when we are amending one legislation and creating Bill C-8, we do not always go back and look at the legislation we are changing. However, I think it is important for all members in this place to look at the Criminal Code section that Bill C-8 would amend.

Bill C-8, intended to deal with copyright and trademark, would amend section 183 of the Criminal Code. If we look at section 183, we find that the definitions of “offence” deal with the following: first is high treason; second is intimidating Parliament or a legislature; third is sabotage; then is forgery, sedition, highjacking, endangering the safety of aircraft, offensive weapons, breach of duty, using explosives.

This category of offences, I think all members of this House would agree—even those who do not have statutory interpretation training—are offences of a high order and significant, dangerous activities in the Criminal Code for which we want to be able to have access to wiretap. However, we would now add offences under copyright and trademark infringement, as created by this proposed act. Now, that is a step too far for the Green Party.

It means that, immediately upon passage of Bill C-8, we would see the day that people who, for instance, in a number of fact settings that we certainly do not contemplate as dangerous, could have their phones wiretapped. There is accidental downloading, as the hon. member for Timmins—James Bay mentioned, and most high school kids could break this proposed law any day of the week without planning to make a fortune for themselves or do anything other than download illegally from a website.

A noted lawyer in this area, Howard Knopf, was not a witness and was not allowed to speak before the committee. However, he mentioned that, “The DNA and fingerprints of the movie and record industries are all over this bill”. Why else would we want to allow the RCMP and law enforcement agents to have the ability to wiretap the phones of people they suspect have downloaded illegally?

Copyright infringement in this new scenario, the brave new world of Bill C-8, goes quite far into activities that one would not ordinarily consider dangerous at all, not even criminal, but they will be criminalized. For instance, under some sections of the bill, it would not be hard to imagine that someone had infringed copyright under the bill by playing at a private function, such as a wedding, tunes that normally would be played by disc jockeys at various events. That could prompt a wiretap if they were so inclined.

These changes are quite sweeping. I do not believe the Canadian public is aware of what Bill C-8 proposes to do or the complexities and confusion that would be created by the way this legislation is structured.

Under Bill C-8, if criminal remedy is available for anyone who knowingly distributes copies of a work in which copyrights exist, that could capture a kid downloading or using files on BitTorrent. We do not want to encourage those activities, but on the other hand, the level of criminality and the ability to wiretap for those offences is certainly extreme.

The trademark and copyright area is a difficult area. People who work in this area are concerned that the bill could also inadvertently capture parallel imports. Parallel imports are also referred to as grey products. They are in a murky area. A parallel import is not actually infringement of copyright at all. It is not a counterfeit or a piracy measure. I will use an example from New Zealand that I found when I was looking for a commonplace example to explain what I mean by parallel imports.

In New Zealand it is common for luxury car dealers to go to Malaysia, buy a Mercédes Benz, which is cheaper there, then import that vehicle legally into New Zealand and sell it at the price Mercédes Benz wants to sell that car for in the New Zealand market. People who go to the trouble of getting the car in Malaysia have not broken any law and they make a fair bit of money on this.

It is generally considered that parallel imports increase consumer choice, aid competition and keep prices low. The way the bill is structured, it could quite easily capture parallel imports inadvertently, not counterfeit nor pirate imports. Not only do we capture parallel imports, we could then have the ability to wiretap to find out what that group is doing.

This legislation has a lot wrong with it. The failure to make any effort to make it more precise is astonishing when one considers that these fundamental changes to our copyright law are being pushed through without adequate time to consider the implications.

My colleague from Hamilton made an interesting point. How could a border guard be expected to have sufficient grasp of this complex area of international copyright law to distinguish between a parallel import and a counterfeit or pirated good? It is simply beyond the scope of even people who practise this area of law full-time to make such a determination on the spot at the border.

I will turn quickly to the recommendations that Howard Knopf would have made had he been allowed to speak at committee. I will quote from an article he wrote. The first recommendation was:

The numerous references apparently intended not to interfere with the free flow of parallel imports are inconsistent and present potentially serious drafting problems that require further study. The bill should propose appropriate declaratory language for both the Copyright Act and Trade-marks Act that makes is absolutely clear that, with the exception of the sui generis book importation scheme now found in s. 27.1 of the Copyright Act, neither of these acts shall in any restrict the importation, distribution or sale of any product…

The second recommendation was:

It would be mistaken and harmful to criminalize routine copyright and trade-mark infringement activity and there is no need to add additional criminal sanctions, much less wiretap enablement provisions or any provisions that would authorize the warrantless search of travelers to determine whether they have infringing items in their baggage…

The third recommendation was:

The bill should contain no provisions that are not essential for the purpose of combatting counterfeit…

I urge this place to accept that this legislation will require massive amendments very soon.