On Wednesday November 18, 2008 the Right Honourable Governor General of Canada Michaëlle Jean delivered the Government’s Speech from the Throne, and so dawned Canada’s 40th session of Parliament. The speech outlined the Conservative government’s goals for its term in power under the shadow of the current economic storm looming over the world. Though much of the speech focused on Canada’s vulnerability to the economic events happening beyond our borders, this pessimism was balanced with a silver lining of hope and certainty that Canada could weather these challenges and emerge stronger than ever.
Despite the extraordinary economic and social challenges the new government will be facing in this coming parliamentary session, Michaëlle Jean also made particular mention of the Conservative’s commitment to Intellectual Property and Copyright Law reform:
Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.
This may come as a surprise to those who believed IP reform in general and Bill C-61 specifically would be dead for a long time to come given the economic downturn. But the opposite may be the case. The speech reveals that the interest in IP and copyright reform is motivated by a vision to make Canada economically viable in the present climate of recession, frozen credit, and stock market crashes – evidence that copyright legislation similar to Bill C-61 may just be luffing; waiting for the ship of new government to sail.
Throughout the Speech from the Throne and Harper’s response to the official opposition, was the message that for Canada to succeed in the current economic environment it needed to remain competitive locally and globally through innovation:
Building a more dynamic economy will require new ideas and new investment. Our Government understands that advances in science and technology are essential to strengthen the competitiveness of Canada’s economy.
In addition to working with local industries to apply Canadian scientific and technological know-how and create innovative business solutions, the Conservatives also promised it would invest in new world-class research facilities such as Waterloo’s Institute for Quantum Computing, an emerging world leader in the areas of computer, engineering, mathematical and physical sciences. As well, innovations in the emerging green industry would be fostered, renewable energy technologies would be supported, and the National Forces air, sea, and surface fleets would be renewed. Harper added that they would implement a wide band Internet network across Canada, and establish a venture capital fund for new products to enter the marketplace.
Yet the vision of Canada as a leader in innovation also strikes a good balance between old industry and new. In building a dynamic economy, Canada’s traditional industries will not be left adrift; they too will be encouraged to innovate and remain competitive:
Canada’s traditional industries, such as fisheries, mining and forestry, sustain the economic well-being of many regions and communities. Our Government will continue to assist these industries through measures aimed at marketing Canadian products abroad and helping businesses to innovate.
With such a significant focus by the government on investment and invention, it seems only natural that a corresponding, modernized IP policy would also need to be implemented. This modern IP regime would be the much-needed wind in the sails of private industry that pushes them into innovation’s uncharted waters.
The message was also clear, however, that Canada will not lay at anchor in our own seas to weather this crisis, but will set sail looking for the steady wind of opportunity in the ports of our neighboring countries. IP reform was discussed under the Expanding Investment and Trade section of the speech and within the context of reform to the related areas of competition and investment law. A strong inference can be made that international IP treaties will also play an important role in Canada’s future as a leader in innovation.
To Canada’s IP law critics, this may come as positive news, but those seeking reform should maintain a cautious optimism. Michaëlle Jean said the government would “ensure stronger protection for intellectual property”, but what is precisely meant by this is not clear. Is this intended to mean increased protection in all areas of IP? Careful attention must be paid to how IP laws are reformed. In Professor Vaver’s IPilogue post: Canada’s IP Laws – Amiss and A Mess, he points out that:
Over time, the rights granted to IP holders internationally have expanded bit by bit through legislation and litigation, but less attention has been paid to basic rights of competitors and the general public.
Professor Vaver also highlights that besides the justice of the laws, the clarity and efficiency of legislation also need to be examined. He cites the following examples: a case that took sixteen years to resolve, gaps in law under provincial jurisdiction, outdated federal laws, and an overlap of protection.
On Canada’s first session of the 40th parliament, the Speech from the Throne was delivered under the title of “Protecting Canada’s Future”. As clouds of uncertainty approach, one can glean from the words of our Governor General that to navigate Canada’s future through the eye of the storm, it will require that public and private industry pull together and fly a sail declaring Canada a leader in innovation. For those seeking reform to intellectual property laws, there is also a ray of hope that improved IP laws will figure prominently in the currents of change.
The Speech from the Throne seems encouraging for IP reforms. However, looking back at history one has to wonder whether the Speech promises more than can be achieved. Parliament had tried to reform copyright in the past. Yet two bills [C-60, C-61] died on the order paper. Given the economic downturn and the unsuccessful attempts of government to address IP in the past, I remain doubtful as to whether we will finally see reforms in the IP field.
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