Lawyers are using the power of the law to stop Canadian corporations from suing foreign nationals over things like copyright infringement.
It’s part of the way the Canadian Intellectual Property Office is tackling an escalating number of cases involving intellectual property violations.
In March, Canada’s Intellectual Property Tribunal announced it would begin hearings on the rights of foreign nationals who want to sue for copyright infringement in the country.
The government has also been pushing for the case to be heard in the US.
That means that lawyers in Canada are not limited to dealing with US copyright infringement cases, but are also working to help Canadian firms take a more aggressive approach.
“We’ve been looking at how do we work together with the US to address IP related issues,” said Jody Sauer, an IP law specialist at the University of Toronto.
“It’s not a one-off issue, it’s part and parcel of a larger international trend of countries working together in the IP arena.”
Sauer added that it’s been “really challenging” to find a way to “go forward” without resorting to the use of “patent trolling” tactics.
The tactic is to sue a foreign entity for infringement and then seek to have the courts declare that foreign entities are infringing copyright.
“When you bring a case to the court, you’re trying to prove that it was infringed by someone else, and you’re not relying on the fact that it may be an infringing act or a legitimate use,” Sauer told CBC News.
The problem is that, while Canada has laws to protect foreign copyright holders from lawsuits from citizens, those laws are relatively weak, said Sauer.
“If the foreign company can show that they’re the victim of a copyright infringement, they may not have a good case,” she said.
That’s why lawyers are taking the IP office to court to protect the rights and interests of Canadian companies.
The Canadian Intellectual Properties Office says it’s working on more ways to help foreign firms avoid these types of lawsuits.
But there’s a long way to go before it can become a tool for Canadian firms to help defend against infringement.
“To be honest, it is not as easy as you might think, especially in the case of copyright, where the courts are very slow to rule in favour of an individual,” said Saper.
“And it is the most complicated case that the court system can get to because of the number of parties involved.”
The Canadian government hopes to introduce new legislation to make it easier for companies to sue foreign nationals and has also asked the federal government to create a new “anti-piracy” fund.
In an attempt to address the “patently frivolous” nature of these cases, the Canadian government has asked foreign nationals to contribute $100 million to the fund, with the government then paying half of that money to the victims of copyright infringement suits.
“The money that will be invested in this fund is intended to go towards paying lawyers to defend the victims against these types, frivolous claims,” said Canadian Intellectual IP Office spokesperson, Elizabeth Tzong, in an email to CBC News in March.
The money will be used to pay “lawyers, accountants, accountancy firms and other specialists in copyright law” to defend companies that have been the subject of lawsuits, and also to help victims of lawsuits “with their legal costs.”
The money, however, won’t be available to Canadian firms for “patented trolling” cases.
That is, a foreign company is claiming that a Canadian firm has infringed a copyright, but the Canadian company has actually not.
“There are some limitations on that, for instance, the jurisdiction that’s allowed, so if we’re facing a claim that we think might be infringed, we can’t take it to the United States and argue in the courts there,” Tzink said.
The idea is that while the money could go to lawyers, accountant fees, or lawyers themselves, the rest of the money would go to the foreign nationals that are actually victims of the case.
If Canada can’t find a solution that works for all parties involved, she said, “the solution will be that the money will go to these foreign nationals, to pay lawyers and accountants.”
The “patents trolling” controversy is just one example of how the Canadian IP office is dealing with cases of alleged copyright infringement by foreign nationals.
In April, the IP Office filed an application for a patent against a Chinese company, the Global Center for Intellectual Property (GCIP), that it alleges is responsible for the development of a “smart phone” that would allow users to access the internet and share copyrighted content.
The patent claims the company is responsible, in part, for the fact the device’s software doesn’t properly recognize that a user is accessing the internet.
That software also doesn’t recognise that the device is being used to download copyrighted content, so the patent doesn’t apply.
The Global Center has not responded to requests for comment.
“Our patent application is a patent troll lawsuit that we filed against Global Center in China