Bill C-86 has
already been given second reading and is at the Finance Committee of the House
of Commons. Yesterday, November 7, 2018, in the Finance Committee, there were about
10 minutes in total testimony by Grant Lynds, past President of the Intellectual
Property Institute of Canada(“IPIC”) and Michael Geist in his own capacity on There
were some subsequent questions. This takes place in the second hour of
the webcast.
IPIC is the main professional association that represents intellectual
property lawyers and agents in Canada. (I have been a member of IPIC forever
and have spoken at many IPIC annual meetings). Michael Geist needs no
introduction.
Mr. Lynds made
some important points about file wrapper estoppel and how an immediate change
may impact pending prosecutions and litigation. He also raised some important points
about the proposed College of Patent and Trademark agents.
Michael Geist was
largely positive about the package but concerned about the need for regulations
re patent and copyright trolling notices and a need for an exception for informational
analysis for text and data mining exception. Michael did not deal at this time with the
issue of whether the existing copyright law is adequate to implement the
necessary regulations to prohibit the inclusion of settlement demands in s. 41.25
and 41.26 notices. In my humble opinion, it is, and it is inexplicable that
this hasn’t been done in the last six years.
The question of patent trolling notices and demand letters is potentially
much more complex and controversial and may yet not be ripe for specificity in the
form of a detailed statutory requirement or even a regulation.
Both Grant and Michael
were invited to provide “one line” drafts of amendments about their concerns.
Their concerns are
not necessarily susceptible to one-line cures – at least not without
considerable potential controversy. And both have many concerns that go way
beyond one-line solutions. And needless to say, these two people – able as they are – can hardly speak for all in the IP community.
Neither Grant nor
Michael were critical of the omnibus process of this bill, which was disappointing.
Even if they mostly like this bill – apart from the serious concerns both
raised which are not fixable by one-line amendments – this sets a dreadful precedent
for the future. I’m surprised that neither made that point.
It was noted, if I
heard correctly, that amendments must be proposed by November 15, 2018 and “clause
by clause” will take on November 20, 2018.
There’s no
downside in carving out the 100 pages or so of IP provision in C-86 and putting
them into a separate IP bill – for which there are many precedents – which could
get a few days worth of necessary, dedicated, and informed committee hearings
and debate.
Instead, it looks
like this will get literally only a few minutes – with perhaps of couple of “one
line” token amendments… that may well be controversial and will certainly deal
only with the tip of the iceberg.
There is no
precedent in Canadian IP history for this massive bypass of parliamentary
democracy. There is no urgency here to justify
this departure from democracy.
While none of the
provisions are obviously “evil”, some are potentially complicated and fraught
with uncertainty and unintended consequences.
On the good news
front, the LEGISinfo site indicated that the Senate Banking, Trade and Commerce
Committee, which include Senator Joe Day – a former IP practitioner – and which
has done good IP work before, for example on the Copyright Board, will hold hearings
on the IP part of his bill even before it gets to the Senate.
On the bad news
front, it also is unusual for the Senate to do is review in advance and this confirms
the unseemly and completely unnecessary haste inherent in this unprecedented
and unwarranted omnibus approach to IP law review in Canada.
HPK
No comments:
Post a Comment