Government responds to IP enforcement criticism, proposes changes
One of the longstanding demands from lobby groups seeking reforms to Canada's IP enforcement rules has been changes to the Proceeds of Crime Program. The POCP permits the forfeiture of wealth accumulated through criminal activities. While many statutes qualify, the Copyright Act does not. The rationale for excluding the Copyright Act was to ensure that creators - not the government - received whatever assets could be seized arising from cases of infringement. As the government now notes:
Under the Copyright Act, a copyright owner is able, pursuant to section 35 of the Act, to claim damages and profits from infringers. Because of a concern that the application of the proceeds of crime provisions could undermine a copyright owner’s ability to recover damages and profits in a potential civil action launched for copyright infringement, the Copyright Act and its offences were excluded from the application of Part XII.2. However, experience has shown that very few civil claims against criminal infringers have been made. Indeed, representatives from the intellectual property industry have sought to have the Criminal Code’s confiscation of proceeds regime apply to the proceeds obtained from the commission of copyright offences.
The government reports that it consulted with several copyright groups, including ACTRA, CFTPA, CMPDA, ESA, CRIA, and MIAC. In light of their support, it is proposing to remove the exclusion of the Copyright Act from the scope of the POCP (hat tip: Rick Theis).
Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.