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LEGAL REPORT: INTELLECTUAL PROPERTY effectively; and the increase of damages and penalties under the Copyright Act. MacDonald adds that the IBA report addresses issues that people are already thinking about. "Legislative change is re- quired to make it easier to enforce at the border particularly," he says, adding that if there is one change needed in Canada, it would be the ability to stop goods at the border. Christine Collard, a partner with Borden Ladner Gervais LLP in Ottawa and publications offi cer with the IBA intellectual property and entertainment law section, says the issues raised by the IBA are issues that could apply to Canada. "I think that one of the issues here is the low damage awards as compared to some other countries . . . [with] big damage awards you're going to see a bigger deterrence," she says. In Canada, there are a lot of Anton Piller orders given by the court, she notes, which provide for the right to search premises and seize evidence without prior warning, and have a big effect in this area. Ira Nishisato, an IBA member and partner at BLG's Toronto offi ce, says these kinds of surveys are a valuable contribution, as they serve to keep the issue front and centre. "[It] signals another warning for us that our laws are woefully defi cient for the enforcement of IP rights," he says, noting that the industry has been mushrooming in size in Canada, while enforcement has not kept up. Nishisato, who participated in a panel discussion entitled "Measures for combating counterfeiting and piracy" at the 2007 IBA annual conference, also says Canada has a lack of an effective enforcement regime for IP rights. The U.S., as well as European states, have enacted signifi cantly higher penalties and put more resources to this issue, he says, while in Canada, the burden has often been left on rights holders to take civil action. Many of the counterfeit goods also include items that involve public safety, he adds, including pharmaceuticals and auto parts. MacDonald says it is "also important for consum- ers to understand that it is a broad spectrum of goods." Collard adds: "I know specifi cally with respect to the U.S. because this is a big problem we face. We have a lot of U.S. clients who call us and want to get trademark registrations or copyright registrations registered at the border with customs, so that they can stop shipments coming into the country, and they look at us and expect us to have similar enforcement pro- visions at the border as the U.S. does. . . . Compared to the U.S. system, we have a signifi cant problem, certainly at customs. I think, looking at some of the damage awards as well . . . the damage awards are much lower and we're just not seeing the deterrence that you see in other countries." In terms of whether a report such as the IBA's survey may serve to start improvements when it comes to anti-counter- feiting and anti-piracy measures in Canada, Collard says, "I think it certainly helps. There's been focus on counterfeiting for quite some time with a number of international organi- zations who have been trying to make changes," including the International Trademark Association, the IP Institute of Canada, and the IBA. "It certainly starts that discussion. It's got the specifi c guide- lines that are saying here's what needs to be done. And you know, really before you can address a problem is fi rst you have to know exactly what the problem is, so I think these kinds of surveys go a long way to that, and then being able to take the specifi c guidelines to the government here or to the right people here, to the stakeholders, and try and get action from there, I think the surveys go a long way in that," she says. "It would be nice to see more action from the government, but with a minority government, the question is, how much can they do and is this at the top of their priority list." With fi les from Kelly Harris. it's easy. The IBA's report on its INTERNATIONAL SURVEY on ANTI-COUNTERFEITING AND PIRACY is available on its web site at: www. int-bar.org/ENews_Archive/IBA_October_2008_ENews_ Anticounterfeiting.aspx 3/31/08 12:55:20 PM 54 JANU AR Y 2009 www. C ANADIAN Law ye rmag.com