The Competition Bureau has published its June Monthly Report of Concluded Merger Reviews. Advance Ruling Certificates were issued in five transactions with No Action Letters having been issued in eight transactions. Notified mergers included Glencore International plc / Xstrata plc and it appears at least one Chinese acquisition (Aluminum Corporation of China / Winsway Coking Coal).
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Earlier today, the Federal Government announced that the Minister of Industry has approved the acquisition of Viterra Inc. by Glencore International plc., a transaction announced last March. The Competition Bureau had already issued a no action letter in the transaction on May 4, 2012 (see: Competition Bureau Issues No Action Letter in Glencore/Viterra Merger).
In making the announcement, the Industry Minister made very brief comments saying only that he was “satisfied that the investment [was] likely to be of net benefit to Canada”, that he carefully considered Glencore’s proposed undertakings and referred to Glencore’s press release for details regarding commitments provided by Glencore. According to media reports, Glencore has agreed to increase capital expenditures in Canada by more than $100 million, contribute to Manitoba “grain industry initiatives” and maintain Viterra’s Regina head office.
Conventional wisdom is that the Competition Bureau will pursue most misleading advertising cases civilly, under section 74.01 of the Competition Act, not criminally (the Act also contains a criminal misleading advertising provision, section 52, as well as a number of other criminal deceptive marketing offences).
For example, in the Bureau’s 1999 Bulletin on the choice of the criminal or civil track for misleading advertising, which remains its leading statement on the question, the Bureau states that the civil track will be pursued in most instances (though it may proceed criminally where there is both clear evidence of intent – for example, continuing conduct after complaints are made – and a criminal prosecution is in the public interest).
Despite this expressed restraint to proceed criminally, there have been a steady stream of deceptive advertising and marketing cases over the past few years where the Bureau has commenced criminal enforcement proceedings. Some recent cases have involved deceptive telemarketing (see: here, here and here), employment opportunity schemes (see: here and here), a GST refund fraud scheme (see: here) and the sale of counterfeit cancer drugs on the Internet (see: here). In terms of criminal misleading advertising cases, the Bureau has appeared to be most concerned with deceptive telemarketing and fraudulent business directory schemes (although its efforts have not been restricted to those two categories of cases).
While imprisonment is rather rare in Canada for competition law offences, several individuals in these cases were also sentenced to imprisonment, ranging from conditional sentences in the community to 3 years, in addition to paying monetary penalties.
Guest post by Andrei Mincov (Mincov Law Corporation)
On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases (Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright); Re: Sound v. Motion Picture Theatre Associations of Canada; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada; and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada).
The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.
Howard Knopf in his post A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement.
You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.
Leaving the technicalities for a future post, I have three big problems with the 5 decisions.
My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:
[9] Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.
[10] Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.
This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.
Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).
The American Antitrust Institute (aai) will be hosting its 6th Annual Future of Private Antitrust Enforcement Conference on December 4, 2012 at the National Press Club in Washington, DC. For more information see: 6th Annual Future of Private Antitrust Enforcement Conference.
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The apparently perennially hard-working Daniel Sokol down in Florida has posted a number of new competition law papers and abstracts today, as per usual. They include: “Optimal Antitrust Remedies: A Synthesis” (William Page), “Adverse Effects of Patent Pooling on Product Development and Commercialization” (Thomas D. Jeitschko) and “An Agent-Based Model of Schumpeterian Competition” (Alessandro Calani).
For daily updates and new competition/antitrust law and economics papers visit Mr. Sokol’s very fine (and rather giant) blog at:
Antitrust & Competition Policy Blog
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“This publication gives a substantive account of the evolution of the WTO Doha Development Agenda (DDA) negotiations and the role of developing country coalitions and alliances. The reflections are those of the former and current developing country negotiators based on their first-hand experience in WTO negotiations, particularly on the development dimension. They have described the process including developments at key moments like the WTO Ministerial Conference in Cancun (2003) and Hong Kong (2005); and have drawn lessons from negotiating strategies and tactics applied to-date by developing countries.
The sixteen chapters included in the publication give a rich resume of increasing and more effective developing country participation in the WTO. Authors have brought to fore the twists and turns of the decade long Doha round, often based on their own experience and perspectives. Such intimate insights are rarely found in existing literature on the WTO negotiations. Authors have also offered suggestions to unlock the stalemate in the DDA and reach a balanced and development-friendly conclusion.”
For more information see:
Reflections From the Frontline: Developing Country Negotiators in the WTO
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The Offices of the Information and Privacy Commissioner of Alberta and British Columbia are hosting the 7th Annual PIPA Conference (2012) – entitled “Privacy on the Go” to be held from November 1-2, 2012 in Calgary:
“The PIPA Conference is a two-day annual event whose aim is to give businesses, non-profits, government and legal professionals the tools to enhance their privacy management program.
This one-of-a-kind conference offers an exciting mix of case studies, plenary lectures, and expert-led sessions, which has attracted more than 1,500 participants from around the world.
The 7th annual PIPA Conference will be held November 1 -2, 2012 at the Deerfoot Inn, in southeast Calgary. The theme of this year’s PIPA Conference is “Privacy on the Go,” and will feature practical, real-world problems and solutions. Businesses are constantly challenged by the privacy implications of new technologies, innovating techniques for managing employees and for delivering new products and services. “Privacy on the Go” will provide expert advice and concrete solutions to these and many more privacy challenges. Privacy experts will provide tools and tips for keeping pace with the rapidly expanding challenges to meeting privacy compliance in the fast-paced world of business.
Following from the success of last year’s pre-conference workshops, we will be offering four half-day workshops to take place on Wednesday, October 31st (extra charges apply). Please check back for further details as they come available.
The PIPA Conference is an event you will not want to miss! Join us for what will be a highly informative, practical and engaging educational experience.
Information about the conference will be posted on this website as it becomes available.”
For more information see:
PIPA Conference 2012 – “Privacy on the Go”
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
