Canadian Lawyer

June 2009

The most widely read magazine for Canadian lawyers

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LEGAL REPORT: INTELLECTUAL PROPERTY Two sides of the coin D BY KEVIN MARRON epending on who you speak with about it, the proposed Anti- Counterfeiting Trade Agreement (ACTA) is an essential step in protecting businesses and consumers from a tidal wave of potentially hazardous knock-off Proposed Anti-Counterfeiting Trade Agreement leaves some IP lawyers uneasy and others saying it's about time. goods. Or it is a shadowy move by the United States, Japan, and the European Union to restrict trade in the interests of powerful global corporations. Speculation and rumour has raged for months during preliminary treaty negotiations held behind closed doors. Details have been scarce since the draft being used for the negotiations has been kept under wraps, with the U.S. govern- ment citing national security concerns. This was the context in which leading IP lawyers attended a Canadian government briefing in April on the negotiations. Howard Knopf, counsel with Macera intellectual property CONFIDENCE & CARE Discover why many of the world's most original thinkers rely on Bereskin & Parr LLP for IP guidance. One of Canada's leading intellectual property law firms, we combine depth of expertise with a dedication to tailored service that builds lasting trust. & Jarzyna LLP, is far from optimistic. His personal point of view is that ACTA is using the problem of counterfeiting in much the same way the U.S. government used terrorism in the aftermath of Sept. 11 to suspend many civil liberties. He calls it "a smokescreen for collateral damage to the law." He sees ACTA as an attempt to control import and export, not only in knock-offs bearing labels of a legitimate brand, but also "parallel imports," grey market items that were legitimately made but imported against the wishes of the exclusive distributor. Controls on parallel imports, he says, would interfere with free trade and competition. Last month, the Office of the United States Trade Representative elevated Canada to its "priority watch list" on the adequacy and effectiveness of IP protec- tion. The USTR said Canada, which in recent years was on the "watch list," was elevated to the priority list that includes 12 countries, due to "increasing concern about the continuing need for copyright reform, as well as continuing concern about weak border enforcement." Knopf is also concerned the U.S. will www.bereskinparr.com 1.888.364.7311 TORONTO MISSISS A UG A WA TERLOO MONTRÉ A L pressure Canada and others to agree to a "three strikes law" requiring Internet service providers to cut off access to sub- scribers who ignore three warnings about illegal downloads. Knopf says France and 44 JUNE 2009 www. C ANADIAN Law ye rmag.com ntitled-4 1 5/12/09 10:19:49 AM

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