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MINUTES OF PROCEEDINGS

Meeting No. 7

Monday, December 2, 2013

The Standing Committee on Industry, Science and Technology met at 3:30 p.m. this day, in Room 228, La Promenade Building, the Chair, David Sweet, presiding.

Members of the Committee present: Chris Charlton, Ed Holder, Hon. Mike Lake, Anne Minh-Thu Quach, Hon. Judy Sgro, David Sweet, Glenn Thibeault and Mark Warawa.

Acting Members present: Dan Albas for Phil McColeman, Hélène LeBlanc for Kennedy Stewart, Susan Truppe for Brian Jean and Dave Van Kesteren for Cheryl Gallant.

Other Members present: Elizabeth May and Louis Plamondon.

In attendance: House of Commons: Mike MacPherson, Legislative Clerk . Library of Parliament: Mathieu Frigon, Analyst ; Maxime-Olivier Thibodeau, Analyst.

Witnesses: Department of Industry: Paul Halucha, Director General, Marketplace Framework Policy Branch; Michael Ryan, Senior Analyst, Copyright and Trade-mark Policy Directorate. Canada Border Services Agency: Megan Imrie, Director General, Border Programs; Christopher Nelligan, Counsel.

Pursuant to the Order of Reference of Monday, October 28, 2013 and the motion adopted on Monday, October 28, 2013, the Committee resumed consideration of Bill C-8, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts.

The witnesses made statements and answered questions.

The Committee commenced its clause-by-clause study of the Bill.

Pursuant to Standing Order 75(1), consideration of Clause 1, Short Title, was postponed.

The Chair called Clause 2.

Clause 2 carried.

Clause 3 carried.

Clause 4 carried.

On Clause 5,

Anne Minh-Thu Quach moved, — That Bill C-8, in Clause 5, be amended by adding after line 2 on page 4 the following:

“(2) For greater certainty, and subject to section 27.1, nothing in sections 44 to 44.12 should restrict the importation, distribution or sale of any copy of a work, whether tangible or digital, that has been made or distributed outside Canada with the consent of the owner of the copyright in the work in the country where the copies were made or distributed.”

After debate, the question was put on the amendment of Anne Minh-Thu Quach and it was negatived.

Glenn Thibeault moved, — That Bill C-8, in Clause 5, be amended by adding after line 19 on page 5 the following:

“(6) No request for assistance is to be considered if the Minister is of the opinion that the request is frivolous or vexatious or was made in bad faith.

(7) If the Minister decides not to consider a request for assistance, he or she must, as soon as practicable, give notice of the decision, with reasons, to the copyright owner.”

After debate, the question was put on the amendment of Glenn Thibeault and it was negatived.

Judy Sgro moved, — That Bill C-8, in Clause 5, be amended by adding after line 30 on page 5 the following:

“(2) If, after examining the samples provided pursuant to subsection (1), the owner of copyright confirms, in a written notice sent to the customs officer, that the importation or exportation of the copies are prohibited under section 44.01 and that he or she has not filed a request for assistance under section 44.02, or that the request was not accepted by the Minister, the customs officer shall inform the importer or exporter and send them a written notice giving them 60 days to indicate their intention to contest that conclusion before a court.

(3) Despite sections 44.04 to 44.12, in the case where the importer or exporter has not sent the customs officer a notice of contestation within the time set out in subsection (2), the copies of the work or other subject-matter may be destroyed if the customs officer is able to demonstrate that he or she took the necessary measures to inform the importer or exporter.”

After debate, the question was put on the amendment of Judy Sgro and it was negatived.

Mike Lake moved, — That Bill C-8, in Clause 5, be amended by adding after line 19 on page 7 the following:

“(3) For greater certainty, subsection (2) does not prevent the confidential communication of information about the copies for the purpose of reaching an out-of-court settlement.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Pursuant to the order adopted by the Committee on Monday, October 28, 2013, the following amendment, submitted by Claude Patry for the consideration of the Committee, was deemed moved:

That Bill C-8, in Clause 5, be amended by replacing line 26 on page 7 with the following:

“44.07 (1) The importer who has”

After debate, the question was put on the amendment and it was negatived.

Mike Lake moved, — That Bill C-8, in Clause 5, be amended by replacing line 37 on page 9 with the following:

“if their owner, importer, exporter or consignee furnishes”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

By unanimous consent, it was agreed, — That the result of the vote on the previous amendment be applied to the following amendment which is therefore also adopted:

That Bill C-8, in Clause 5, be amended by replacing line 29 on page 10 with the following:

“the owner, importer, exporter or consignee of the”

Glenn Thibeault moved, — That Bill C-8, in Clause 5, be amended by replacing line 38 on page 10 with the following:

“dismissed or discontinued or if the request for assistance is determined to be frivolous or vexatious or made in bad faith.”

After debate, the question was put on the amendment of Glenn Thibeault and it was negatived.

Chris Charlton moved, — That Bill C-8, in Clause 5, be amended by adding after line 9 on page 13 the following:

“ANNUAL REPORT TO PARLIAMENT

44.13 Within one year after the coming into force of this section and every year thereafter, the Minister shall prepare a report on the administration of sections 44 to 44.12 during the preceding year. The Minister shall table a copy of the report in each House of Parliament within the first 15 days on which that House is sitting after the completion of the report, which shall include:

(a) the number of requests for assistance filed under section 44.02;

(b) the number of requests for assistance in respect of which the Minister extended the period of validity under subsection 44.02(3);

(c) the number of detentions made under section 44.03 and, of those, the number that could have had health and safety implications;

(d) the number of examinations conducted by customs officers for the purpose of enforcing section 44.01; and

(e) the total cost for the storage and handling charges for the detained copies — and, if applicable, for the charges for destroying them — and the percentage of those charges covered through the liability of the owner of copyright referred to in subsection 44.07(1).”

After debate, the question was put on the amendment of Chris Charlton and it was negatived.

Clause 5, as amended, carried.

Clause 6 carried.

On Clause 7,

Chris Charlton moved, — That Bill C-8, in Clause 7, be amended by replacing lines 10 to 12 on page 14 with the following:

“guishes the goods or services in association with which it is used by its owner from the goods or services of others or is adapted so as to distinguish them;”

After debate, the question was put on the amendment of Chris Charlton and it was negatived.

Mike Lake moved, — That Bill C-8, in Clause 7, be amended by replacing lines 10 to 12 on page 14 with the following:

“guishes the goods or services in association with which it is used by its owner from the goods or services of others or that is adapted so to distinguish them;”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Clause 7, as amended, carried on division.

By unanimous consent, Clauses 8 to 18 inclusive carried severally.

By unanimous consent, Clauses 19 and 20 carried severally.

Clause 21 was negatived.

On Clause 22,

Mike Lake moved, — That Bill C-8, in Clause 22, be amended by replacing lines 17 to 19 on page 20 with the following:

“22. Subsection 20(1) of the Act is replaced by the following:

20. (1) The right of the owner of a registered trade-mark to its exclusive use is deemed to be infringed by any person who is not entitled to its use under this Act and who

(a) sells, distributes or advertises any goods or services in association with a confusing trade-mark or trade-name;

(b) manufactures, causes to be manufactured, possesses, imports, exports or attempts to export any goods in association with a confusing trade-mark or trade-name, for the purpose of their sale or distribution;

(i) the person knows or ought to know that the label or packaging is intended to be associated with goods or services that are not those of the owner of the registered trade-mark, and

(ii) the sale, distribution or advertisement of the goods or services in association with the label or packaging would be a sale, distribution or advertisement in association with a confusing trade-mark or trade-name; or

(d) manufactures, causes to be manufactured, possesses, imports, exports or attempts to export any label or packaging, in any form, bearing a trade-mark or trade-name, for the purpose of its sale or distribution or for the purpose of the sale, distribution or advertisement of goods or services in association with it, if

(i) the person knows or ought to know that the label or packaging is intended to be associated with goods or services that are not those of the owner of the registered trade-mark, and

(1.1) The registration of a trade-mark does not prevent a person from making, in a manner that is not likely to have the effect of depreciating the value of the goodwill attaching to the trade-mark,

(a) any bona fide use of his or her personal name as a trade-name; or

(b) any bona fide use, other than as a trade-mark, of the geographical name of his or her place of business or of any accurate description of the character or quality of his or her goods or services.

(1.2) The registration of a trade-mark does”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Clause 22, as amended, carried.

By unanimous consent, Clauses 23 to 27 inclusive carried severally.

On Clause 28,

Judy Sgro moved, — That Bill C-8, in Clause 28, be amended by deleting line 22 on page 23 to line 26 on page 24.

After debate, the question was put on the amendment of Judy Sgro and it was negatived.

Anne Minh-Thu Quach moved, — That Bill C-8, in Clause 28, be amended by replacing line 23 on page 23 to line 26 on page 24 with the following:

“may destroy after making a digital copy.”

After debate, the question was put on the amendment of Anne Minh-Thu Quach and it was negatived.

Clause 28 carried.

By unanimous consent, Clauses 29 to 37 inclusive carried severally.

On Clause 38,

Judy Sgro moved, — That Bill C-8, in Clause 38, be amended by replacing lines 20 to 22 on page 32 with the following:

“(3) The Registrar must correct any error in an entry in the register that is obvious from the”

After debate, the question was put on the amendment of Judy Sgro and it was negatived.

Clause 38 carried.

By unanimous consent, Clauses 39 to 41 inclusive carried severally.

On Clause 42,

Mike Lake moved, — That Bill C-8, in Clause 42, be amended by

(a) replacing line 27 on page 33 with the following:

“a trade-mark, if that sale or distribution is or would be contrary to section 19 or 20 and the person knows that”

(b) deleting lines 35 to 37 on page 33;

“their distribution on a commercial scale, if that sale or distribution would be contrary to section 19 or 20 and the person knows that”

(d) deleting lines 14 and 15 on page 34;

(e) replacing line 18 on page 34 with the following:

“trade-mark, if that sale or advertisement is contrary to section 19 or 20 and the person knows that”

(f) deleting lines 26 to 28 on page 34;

(g) replacing line 37 on page 34 with the following:

“if that sale, distribution or advertisement would be contrary to section 19 or 20 and the person knows that”

(h) deleting lines 11 to 14 on page 35;

(i) replacing line 18 on page 35 with the following:

“any form, if the sale, distribution or advertisement of goods or services in association with the label or packaging would be contrary to section 19 or 20 and the person knows that”

(j) by replacing, in the English version, lines 27 and 28 on page 35 with the following:

“has not consented to having the label or packaging bear the trademark.”

(k) by replacing lines 29 to 32 on page 35 with the following:

“(5.1) In a prosecution for an offence under any of subsections (1) to (5), it is not necessary for the prosecutor to prove that the accused knew that the trade-mark was registered.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Clause 42, as amended, carried.

On Clause 43,

Anne Minh-Thu Quach moved, — That Bill C-8, in Clause 43, be amended by adding after line 2 on page 37 the following:

“(2) For greater certainty, nothing in sections 51.02 to 51.12 should restrict the importation, distribution or sale of goods, whether tangible or digital, that have been manufactured or distributed outside Canada with the consent of the owner of a registered trade-mark for such goods in the country where the products were manufactured or distributed.”

After debate, the question was put on the amendment of Anne Minh-Thu Quach and it was negatived.

Judy Sgro moved, — That Bill C-8, in Clause 43, be amended by deleting lines 19 to 23 on page 37.

After debate, the question was put on the amendment of Judy Sgro and it was negatived.

Glenn Thibeault moved, — That Bill C-8, in Clause 43, be amended by adding after line 31 on page 38 the following:

“(6) No request for assistance is to be considered if the Minister is of the opinion that the request is frivolous or vexatious or was made in bad faith.

(7) If the Minister decides not to consider a request for assistance, he or she must, as soon as practicable, give notice of the decision, with reasons, to the trade-mark owner.”

After debate, the question was put on the amendment of Glenn Thibeault and it was negatived.

Mike Lake moved, — That Bill C-8, in Clause 43, be amended by adding after line 31 on page 40 the following:

“(3) For greater certainty, subsection (2) does not prevent the confidential communication of information about the goods for the purpose of reaching an out-of-court settlement.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Mike Lake moved, — That Bill C-8, in Clause 43, be amended by replacing line 11 on page 43 with the following:

“if their owner, importer, exporter or consignee furnishes”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Mike Lake moved, — That Bill C-8, in Clause 43, be amended by replacing line 42 on page 43 with the following:

“owner, importer, exporter or consignee of the goods.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to.

Chris Charlton moved, — That Bill C-8, in Clause 43, be amended by replacing line 9 on page 44 with the following:

“discontinued or if the request for assistance is determined to be frivolous or vexatious or made in bad faith.”

After debate, the question was put on the amendment of Chris Charlton and it was negatived.

Chris Charlton moved, — That Bill C-8, in Clause 43, be amended by adding after line 9 on page 44 the following:

“ANNUAL REPORT TO PARLIAMENT

51.13 Within one year after the coming into force of this section and every year thereafter, the Minister shall prepare a report on the administration of sections 51.02 to 51.12 during the preceding year. The Minister shall table a copy of the report in each House of Parliament within the first 15 days on which that House is sitting after the completion of the report, which shall include:

(a) the number of requests for assistance filed under section 51.04;

(b) the number of requests for assistance in respect of which the Minister extended the period of validity under subsection 51.04(3);

(c) the number of detentions made under section 51.05 and, of those, the number that could have had health and safety implications;

(d) the number of examinations conducted by customs officers for the purpose of enforcing section 51.03; and

(e) the total cost for the storage and handling charges for the detained goods — and, if applicable, for the charges for destroying them — and the percentage of those charges covered through the liability of the owner of a registered trade-mark referred to in subsection 51.09(1).”

After debate, the question was put on the amendment of Chris Charlton and it was negatived.

Clause 43, as amended, carried.

Clause 44 carried.

At 5:30 p.m., the Committee adjourned to the call of the Chair.

Andrew Bartholomew Chaplin
Clerk of the Committee

2014/03/17 10:41 a.m.