Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



WARNING! Potential Anti-Counterfeiting Agreement Put Everyone's Privacy at Risk

An article in the May 24, 2008 issue of Canada's National Post (page 2) takes laptop searches and PDA searches to a new higher level that should terrify everyone (except maybe the lobbyists for Hollywood and the music industry).  Don't misunderstand; I disagree with counterfeiting the works of others.  But, more than that, I oppose border officers searching laptops, cell phones, iPods, MP3 players and PDAs of honest travellers without probably cause or a reason to believe that the person has committed any crime.  I oppose putting too much power in the hands of customs officers.  I oppose allowing border officers to seize computers, cell phones, iPods, MP3 players and other PDAs of business people who use these devices in their business.

Back to the National Post article that can be obtained at the following link - http://www.nationalpost.com/news/story.html?id=536951

Vito Pilieci of Canwest News Service reports that the Government of Canada is secretly negotiating Anti-Counterfeiting Trade Agreement (ACTA) with the United States, Mexico, the members of the European Union, Switzerland, Japan, New Zealand and other countries to form an international coalition against copyright infringement.  ACTA would create rules and regulations regarding private copying and copyright laws. According to the article:

"The deal would create an international regulator that could turn border guards and other public security personnel into copyright police. The security officials would be charged with checking laptops, iPods and even cellular phones for content that "infringes" on copyright laws, such as ripped CDs and movies.

The guards would also be responsible for determining what is infringing content and what is not.

The agreement also proposes that any content that may have been copied from a DVD or digital video recorder would be open for scrutiny by officials -- even if the content was copied legally.

The leaked ACTA document states officials should be given the "authority to take action against infringers (i. e., authority to act without complaint by rights holders)."

Anyone found with infringing content in their possession would be open to a fine. They also may have their device confiscated or destroyed, according to the four-page document."

Was this expected and have Canadians been informed of this negotiation?  The Government of Canada posted a notice on October 23, 2007 in which Trade Minister Emerson informed Canadians that ACTA was being negotiated.  However, the scope and purposes was described in a more limited manner as follows:

"The main objective of an ACTA would be to develop international standards to better combat the trade in counterfeit trademarked and pirated copyright goods.  Provisions would focus of international cooperation, enforcement practices and legal frameworks, including enforcement systems....

Discussions toward an ACTA complement a number of activities that Canada is currently undertaking to combat counterfeiting and piracy.  These include international efforts at the G8, at APEC, and within the Security and Prosperity Partnership with Mexico and the United States, as well as the recent enactment of legislation to criminalize the unauthorized recording of films in movie theatres."

Earlier this year, the Government of Canada also had posted a notice of the ACTA and their desire to consult with Canadians (please see http://www.international.gc.ca/commerce/consultations/closed-IP-en.asp#acta
).  The closing date for the consultations was April 30, 2008.  The fact sheet did not point out that such options were even contemplated.  The highlights from the fact sheet are as follows:

  • "The proposed Anti-Counterfeiting Trade Agreement (ACTA) aims to establish new global standards for the enforcement of intellectual property rights (IPR) to more effectively combat the increasingly prolific trade in counterfeit and pirated goods. The ACTA would focus on 3 areas: a) increasing international cooperation, b) establishing best practices for enforcement, and c) providing a more effective legal framework to combat counterfeiting and piracy."
  • "International Cooperation: Cooperation among the parties to the agreement would be a vital aspect of the ACTA – specifically cooperation and sharing of information between law enforcement authorities, including Customs and other applicable agencies. Possible provisions in this area could include:

    • International cooperation among enforcement agencies; and
    • Capacity building and technical assistance in improving enforcement."
  • "Enforcement Practices: Proponents of the ACTA believe it is crucial to establish enforcement “best practices” that promote strong IP protection in collaboration with trading partners and right holders. These practices would support the application of the relevant legal tools. Areas for possible provisions include:

    • Formal or informal public/private advisory groups;

    • Fostering of specialized intellectual property expertise within law enforcement structures to ensure effective handling of IPR cases; and

    • Measures for raising consumer public awareness about the importance of IPR protection and the detrimental effects of IPR infringements."

  • "Legal Frameworks: The final pillar of the ACTA would strive to provide private citizens, law enforcement agencies, and the judiciary with the appropriate tools to deal effectively with counterfeiting and piracy through a strong and modern legal framework. Areas for possible provisions include:

    • Criminal enforcement;
    • Border measures;
    • Civil enforcement;
    • Optical disc piracy; and
    • Internet distribution and information technology."

The fact sheet can be obtained at the following link - http://www.international.gc.ca/trade-agreements-accords-commerciaux/fo/IP-factsheet-fiche.aspx?lang=en

The public announcements so far have not informed the Canadian public that ACTA may negatively affect privacy rights, due process rights, requirements to maintain confidentiality of legal documents, etc. There is nothing to indicate that Canada is considering giving foreign government increased powers to detain and search Canadians who must travel abroad for business or choose to travel for pleasure.

It is also interesting to look at the USTR announcements of the ACTA negotiations. (please see http://www.ustr.gov/Document_Library/Press_Releases/2007/October/Ambassador_Schwab_Announces_US_Will_Seek_New_Trade_Agreement_to_Fight_Fakes.html

Ambassador Schwab stated, in part:

"Counterfeiting and piracy threaten U.S. jobs and economic growth, striking at the reputation of U.S. brands and stealing the products of U.S. creativity and innovation.  Industry loss estimates run into hundreds of billions of dollars.  It poses a similar threat to U.S. trading partners around the world.  Developing countries are among the biggest victims, as counterfeiters passing off shoddy and unsafe goods undermine emerging local economies."

Based on this statement, I do not see the border searches of laptop computers, iPods, MP3s, cell phones and other PDAs as a means to address the stated concerns.

We should all be concerned that law-abiding citizens will be stopped at border crossings where they are foreigners.  We should all be concerned that law abiding individuals with be arbitrarily detained and will experience economic disadvantages, such as missed flights, unrecoverable hotel deposits, etc.). We should all be concerned that some governments will increase laptop searches under the disguised authority of ACTA and in reality to obtain personal information.  Lawyers and others who hold client information in confidence should be concerned about their responsibility to protect confidential information and the misuse of the information by low paid customs officers in other jurisdictions.

Most, if not all, business travellers will have at least one electronic device with them.  That means that almost all business travellers risk delays and problems even if they have never in their lives infringed any IP rights.  Any traveller with the choice of paying a fine or missing their flight will pay the fine even if they have done nothing wrong.  What rights will travellers have to dispute the conclusion of the customs officer?  Would their property be confiscated until lawyers are courts render decisions?  Court processes take time - would this mean that innocent people are guilty unless proven innocent?  What would be the negative effect of having a computer, cell phone or PDA confiscated while the dispute proceeds through the legal channels and can Canadians trust the legal processes in the foreign jurisdictions.

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