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On June 6, Harry Page, CEO of UBM TechInsights, appeared before the House of Commons’ Standing Committee on Industry, Science and Technology to discuss the effectiveness of Canada’s intellectual property laws and their role in fostering Canadian innovation and leading edge technology. As CEO of a company that routinely assists IP rights-holders in detecting and proving infringement, Mr. Page was ideally suited to provide insight into the role IP protection plays in promoting innovation. Mr. Page commended the government for its efforts to modernize and improve Canada’s copyright laws but also expressed his concern that Canada’s various IP laws, and those of our trading partners, may not always operate together to most optimally promote innovation. He noted, for example, that while anti-circumvention provisions of the amended Copyright Act can provide a strong tool in preventing certain types of copyright infringement, they could also unintentionally hinder rights-holders in detecting and proving the theft of their other IP rights, including patent and trade secret rights. Mr. Page urged the Committee to ensure that each of Canada’s respective IP regimes operate together, and in harmony with the equivalent laws of our trading partners, to protect the continued development and commercialization of new ideas in Canada.
As a practical matter, IP rights are almost entirely self-policed. This means that the burden of monitoring the relevant marketplace for infringement, assessing whether something is infringing, and then enforcing those rights rests squarely on the shoulders of the IP rights-holder. Couple this with the fact that modern technology continues to become smaller, more distributed, more specialized and more complex than ever before, and a rights-holder may be faced with significant obstacles in fully realizing the protection of their IP rights and thus the economic incentive for innovating. Fortunately, UBM TechInsights has decades of experience in using highly advanced and cutting edge forensic and reverse-engineering techniques to support rights-holders in both identifying the misappropriation of their rights and also in providing sufficient evidence to properly enforce those rights. A further benefit of reverse-engineering in this context is that an ability to establish clear and incontrovertible proof of infringement is one of the few meaningful ways for innovators to settle IP disputes through negotiation rather than via the uncertain and expensive court system. This is particularly significant for start-ups and small and medium sized enterprises that lack the resources needed for full-blown patent litigation.
In this regard, UBM TechInsights has 25 years experience developing cutting-edge reverse engineering techniques to detect and prove IP infringement. UBM TechInsights and the Ottawa-based reverse engineering technology cluster of similar companies continue to be faced with significant demand for their investigative services with annual revenues approaching $250M in 2011. As such, UBM TechInsights plays a critical role in detecting IP infringement and supporting cost-effective enforcement strategies for both Canadian innovators and foreign companies alike.
Underlying this practical reality of IP rights enforcement is the legal reality: the interplay between the various IP regimes and those of the relevant foreign markets is not easy to navigate. For example, there are numerous different types of intellectual property under Canadian law, such patents, trade secrets, and integrated circuit topologies, and the legal regimes that protect them may overlap or conflict in some contexts and may differ in sometimes subtle, but rarely insignificant ways, from their foreign counterparts. To put it mildly, this interplay gives rise to a level of complexity that can be difficult to manage, especially when seeking to protect one’s investments in developing an idea and then bringing it to market. Given this complexity, it is essential to the continued competitiveness of Canadians that our IP laws do not interfere with those of our trading partners – or for that matter Canada’s other IP laws.
In this regard, UBM TechInsights has flagged concerns that certain aspects of the amended Copyright Act may have unintended consequences with respect to the protection of other forms of IP, particularly patents and trade secrets. Specifically, anti-circumvention provisions could create a legal uncertainty discouraging the use of reverse engineering to detect infringement by restricting access to a device that may contain copyrighted works, even if such works are in fact unrelated to the object of the reverse engineering effort. While it appears that the legislation to amend the Copyright Act will soon be enacted, UBM TechInsights continues to work with the government and officials to ensure that the regulations and policy directives relating to these provisions of the Act are clear and precise so that they will not hinder the full and forceful protection of Canadian IP and the protection of IP creators and owners in international markets.
To be clear, UBM TechInsights does not believe that the intent or the effect of these amendments is to prevent reverse engineering activities. That being said, the broad scope of the proposed legislation could allow an infringer to deliberately attempt to deter this activity by, for example, commencing a court proceeding on the grounds that reverse engineering may circumvent access control measures for copyrighted works, and then continue their infringing activity while the courts clarify this legal uncertainty inherent in the broad provisions. This would clearly be an unintentional and even nonsensical outcome: to permit infringers and counterfeiters to use the Copyright Act to avoid responsibility for breaching another party’s patent or trade secret rights.
In order to avoid this clearly unwanted effect, UBM TechInsights believes that some legislative or regulatory clarification is required. This may include linking circumvention to a presumed intent to infringe copyrighted works, where such intent could be rebutted by demonstrating that the circumvention was for another legitimate activity. A more tailored exception could also include broadening the current investigative exception to include breaches of all laws of Canada (including judge-made law, which is how trade secrets are protected in Canada) as well as the laws of its trading partners. Other exceptions could include clarifying that that the fair dealing exceptions apply to the anti-circumvention provisions, thus permitting circumvention for certain prescribed purposes, and amending the exception regarding interoperability to include other forms of technology, rather than just computer programs.
UBM TechInsights is the market leader in this space and is recognized globally as a champion for the IP rights of creators and owners, and this role will only continue to grow in importance and market scope. On behalf of UBM TechInsights, Mr. Page was thankful to have the opportunity to express his support and his concerns regarding the government’s continued focus on the development and protection of innovation in Canada. Such focus, both by industry and by the government, is absolutely essential in ensuring that Canadians keep pace globally in knowledge-based industries. UBM TechInsights is committed to continue working with the government to do everything possible to ensure strong and effective IP regimes, not only in each of its respective forms and manifestations, but also in respect to how those regimes operate together and with those of Canada’s trading partners.
For more information: Jill PerrySenior Manager, MarketingUBM TechInsights3000 Solandt Rd. Ottawa ON K2K 2X2T: +1 613 599 6500 x4444F: +1 613 599 6501E: email@example.comW: www.ubmtechinsights.com
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