Canadian Lawyer

August 2019

The most widely read magazine for Canadian lawyers

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Page 45 of 63

FEATURE 46 INTELLECTUAL PROPERTY Set for an overhaul? Key recommendations of two House of Commons reports concerning Canadian copyright law THIS SPRING, two House of Commons committees recommended changes to Canada's Copyright Act. The first, the Standing Committee on Canadian Heritage, released May 15, made 22 recommendations; and the report of the Standing Committee on Industry, Science and Technology, released June 3, made 36 recommendations for the Government of Canada. While some recommendations were anticipated, others were not, and some recommendations didn't go far enough, sources say. Here, Canadian Lawyer's panel of experts weighs in on the reports' key recommendations. CHPC Recommendation 6: That the government increase its efforts to combat piracy and enforce copyright. Under Canada's current regime, anti- counterfeiting measures enacted at the border are clunky and expensive, says Mark Biernacki, a partner at Smart & Biggar LLP in Toronto. When Canadian customs agents intercept suspect goods at the border, the rights owner must apply to court for an order for destruction within 10 days; if the importer doesn't respond to the rights holder, the rights holder must file a statement of claim. " There are other jurisdictions and simplified procedures where if the importer doesn't respond the goods [are] seized and destroyed," he says. "That's better and less expensive; it conserves judicial resources, results in more seizures and makes it more difficult to import counterfeit goods." INDU Recommendation 8: That the government introduce legislation amending the Copyright Act to provide creators a non-assignable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer, and that this termination right extinguish itself five years after it becomes available, take effect only five years after the creator notifies their intent to exercise the right, and that the notice be subject to registration. Extending the general term of copyright to 70 years from 50 years from the death of the last living author is necessary under the new Canada-United States-Mexico trade agreement, says Catherine Lovrics, a partner at Bereskin & Parr LLP in Toronto. That agreement requires Canada to modify its intellectual property framework to extend copyright protection to "life plus 70 years." Lovrics notes that "the INDU committee recommended that in order to enforce copyright for the next 20 years, the creator needs to register copyright." Although copyright arises automatically under international treaty, that treaty provides for only a 50-year plus life general term, "and so the Canadian government introducing this registration requirement to enforce

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