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border crossing it will show up at, then apply to the courts to get an order to seize it," says Mikus. "So again we're looking at the issue of costs and under this, the border authorities could act on their own volition as even if you pursue the offenders, they often don't have any assets." He also points out that a large por- tion of copyrighted and counterfeit products originate in Asian countries that aren't participating in the ACTA meetings. He says he has assisted cli- ents with tracking down web sites that post copyright materials wherein the host is able to hide its identity, while Asian countries are known for their piracy of copyrighted products. As well, in Canada, the courts have not yet asserted any prohibition for service providers who facilitate file sharing of copyrighted materials on the Internet, or required them to dis- close users who violated the copyright- ed materials. Mikus cites the Federal Court's decision in BMG Canada Inc. v. John Doe in which the court declined to require the ISP to provide names of its users who had accessed materials free of charge; the Federal Court of Appeal essentially upheld the decision, with a few changes to the wording. "After that decision, it was understood that peer-to-peer exchanges are acceptable," says Mikus. For that reason, he says any explana- tion once the ACTA agreement is intro- duced in Canada should be communi- cated plainly and prominently so the general public will know and under- stand the new parameters of the law. "It is important to have clear ground rules in this context as this is something that is lacking in Canada. It is an issue of public perception" regarding the free- for-all access to copyrighted materials, he says. "But the average citizen doesn't have the means to contact a lawyer to find out whether this is an infringe- Michael Geist's blog has links to ACTA documents, official and leaked, at michaelgeist. ca/content/view/4730/125. ment or not, so we'll need clear rules so the average Canadian will know how intellectual property is enforced as these are not huge multinational corporations," Mikus says of artists and innovators who contribute largely to Canada's identity and culture. He adds that he too doesn't expect ACTA will be finalized soon. "This is very much a work in progress." In Canada's effort to ensure its laws can continue its relationship and reputa- tion as an international trading partner, ACTA proponents view the initiative as a necessity rather than an option. "This is a very serious treaty that will require some significant changes to Canadian legislation and as a lawyer, this is going to be very helpful," says Green. "If you're acting for the rights owners, you'll finally have some pretty powerful weapons." Client's IP at Risk? Our bite is even worse than our roar. We are accomplished trial lawyers with years of study in science and engineering and we have the courtroom successes to prove it. It's treacherous out there, so if your client's IP is threatened – talk to us. it all starts somewhere www.ridoutmaybee.com Editors of the Canadian Patent Reporter www. C ANADIAN Law ye rmag.com JULY 2010 49 dout_CL_July_10.indd 1 6/17/10 3:10:05 PM