Intellectual property: the most important issue no-one talks about.
The Globe and Mail recently published a long op-ed by Jim Balsillie, in which he argues that Canada needs an American-style innovation lobby to push for public policies that adequately support the growth of Canadian tech companies and that help protect IP rights of Canadian companies in the global marketplace. This article kicked off a series of columns in The Globe and Mail looking at innovation and intellectual property in Canada and how IP policy affects businesses’ opportunities for growth (the second instalment can be found here). So far, the unifying themes are that Canada’s businesses and policymakers need to do far more to strengthen our intellectual property protection, and that strong IP protection is critical to our innovation economy.
Meanwhile, south of the border, several significant IP-related bills are being debated, including the TROL Act, which would make it more difficult for non-practicing entities (NPEs) to enforce IP infringement. Supporters of limiting NPE litigation claim that these measures protect companies actually commercializing innovation from frivolous lawsuits. However, some opponents argue that laws intending to target only patent trolls can inadvertently harm innovation by stacking the playing field against universities (who are also NPEs) and small firms that innovate in favour of big business (the National Venture Capital Association seems to think this bill strikes the right balance between these concerns).
Others in the US, including Robert Reich (whom Matt discusses in his Links post this week) have called for a general weakening of IP rights as an antitrust measure, counteracting what they see as an increasingly consolidated market that is less competitive, innovative or equitable. Reich also speaks out strongly against the Trans-Pacific Partnership (a free-trade agreement amongst many Pacific nations including the US and Canada), of which strengthening international intellectual property rights is a significant component, for similar reasons, saying it will only serve to further erode worker protections and concentrate wealth at the top. Here, I disagree sharply with Reich, and come out on the same side as Balsillie and Obama in favour of both strong IP rights and the TPP as in the best interests of both the US and Canada in the long run.
Particularly for Canada, a relatively small player in the global economy – and one that I hope aspires to extend its economic power beyond resources to innovation – free trade and a strong IP position are essential. For those concerned with the power of large monopolies to litigate small players out of business, I would much prefer to see greater restrictions on the granting of weak patents – those that cover overly broad concepts and overlap with much prior art (and that can be invalidated only through litigation), before I would start trying to weaken protections on strong defensible patents.
Sound intellectual property policy is one of the most important things our governments can do right to drive economic growth in Canada, and yet this area hardly ever receives media attention. None of the major federal party platforms have been scrutinized in this area and little is known about where the leaders stand (Harper and Turdeau have come out in support the TPP, while Mulcair seems to be more lukewarm toward it and free trade in general). Since IP is a field that is not as easily accessible as others, it is one that I would strongly encourage voters to take some time to learn more about.
Now that the public sees the NDP as a serious party, they need to field a full slate of serious candidates in the federal election.
In the wake of Rachel Notley’s surprise majority victory in Alberta, the federal NDP has seen a surge in the polls, now leading the race according to one recent poll. While I would not put my money on an NDP government just yet, there is no denying that the NDP has become a serious party in the eyes of the Canadian public, both locally and federally.
Now they need to start acting like one. For starters, this means they need to field a full slate of serious candidates in the upcoming Federal Election. The Orange Waves, in Quebec in the last federal election and in Alberta this year, elected several candidates who spent no time campaigning and who had questionable credentials to be leading a large government. These included several college students in both. For example, soon after being elected in a Calgary riding, and before even being sworn in, Mount Royal sociology student Deborah Drever has already been suspended from the NDP caucus after several of her social media postings surfaced, including her flipping off the Canadian flag, mugging with a pot leaf, posing in a sexual assault scene (for the album cover of a metal band) that was seen by some as promoting violence against women, and posting a picture of Jim Prentice and one of his ministers with doodles drawn on them implying they were in a gay relationship. Most Canadian media outlets have (correctly in my view) pointed out that these posts do not paint the picture of a vehemently misogynistic and homophobic person who is a product of a larger misogynistic and homophobic campus culture, but instead of a very typical college student, most of whom are known to occasionally do and say dumb things for shock value (however, I’m not sure the media narrative would have been the same had she been male).
Typical college students are not who I’d like to see running our government. I mean no offense to my college-aged self, but I certainly lacked the maturity and still, almost a decade later, certainly lack the breadth of experience and systems-level understanding of society required to lead a large government covering so many walks of life (for example, I would love to hear Drever’s knowledge of and positions on intellectual property). Nor would I like to see people who clearly were not vetted by their party nor made any effort to campaign given the endorsement of party leadership. With one third of the Canadian population now supporting the NDP, there should be no shortage of qualified candidates to choose from. Given the potential for vote splitting between the Liberals, NDP and Greens, I hope the NDP will just sit out in ridings they can’t find a serious candidate to run in.
I’d also like to see the NDP release a full platform and budget. While they have released several notable election promises, like universal public childcare, restoration of home mail delivery and no new taxes on individuals (except for repealing income splitting), a complete platform and budget would give the voter a much better idea of what an NDP government would look like federally, and how they would navigate the compromises and trade-offs that a governing party has to face. As an undecided voter, I’d certainly like to learn more about them. But, no matter what their platform looks like, I think I’ll take a pass on the NDP if they run a second-year sociology student in my riding.
11 thoughts on “Ian’s Links: The importance of intellectual property, the NDP getting serious”
I agree that IP is important, and that Canada’s fledgeling tech industry is important to our economic growth, but after reading your article and all three articles you link, I don’t see any specific proposals for policies that Canada should introduce. I appreciate that patent law and IP are complex subjects, but since you do have significant expertise, can you give a concrete example of what you policy-changes you would like to see? If experts don’t articulate what they mean by ‘strengthen our intellectual property protection’, how can they expect policy-makers (even mature, life-experienced ones) to help them out?
I’ve been out of Canada too long. What does Universal Public Childcare entail? Normally childcare is something like $2000/month. Are we giving every family $24000 a year? Isn’t that going to be expensive?
Maybe I won’t be moving back to Canada if I have to subsidize everyone’s kids. Or maybe I will move back when I have a few kids of my own 😛
We currently subsidize other families’ health care, education, and safety. Is that a bad thing (by the same logic)? Access to affordable childcare is important to creating equal opportunity (also the NDP proposal is for 15$/day out of pocket so the cost would be less than 24 000 a year per child). I hope they fully cost their proposal though.
On the subject of the NDP being a serious party or not, one thing I had forgotten about but was reminded of by the article you linked, Ian, is the Sherbrooke Declaration. The idea that the NDP might repeal the Clarity Act is a huge red flag for me. I suspect they wouldn’t in practice, but then I wonder if they would eventually see their coalition with the soft separatists collapse like Mulroney’s did.
Policy recommendation #1: support the TPP. The US *may* have legitimate concerns about the ramifications of the TPP (even there I am not sure), but companies in a small country like Canada are dead in global markets without these measures (unless selling resources like oil).
2. Lobby for international IP standards that are uniform and include infringement remedies. Right now, the patchwork of standards only benefits lawyers. I’d like to see standards of obviousness and patentability tighter than current US standards, but with strong enforcement. But before we have to negotiate against the US in this last point, let’s keep on their side for stronger cross-border enforcement. Contrary to Warren et al, this will mostly lead to US and Canadian companies getting more from foreign courts (eg China, Japan) and not the other way around.
3. The last thing balsillie et al recommend that I agree with is a cultural change in Canadian startup ecosystems to take more of an offensive view of IP. This is not primarily something governments can do on their own, but they can probably invest more in legal support for entrepreneurs at places like MaRS instead of some of the more questionable advisory service people they hire.
4. MaRS and related public accelerators should implement results-driven and industry focused employment models, and move away from public sector models. The union-driven red tape and related government culture driving the speed and risk aversion level at which things are done there is incompatible with the volatility and competitiveness of the startup market. This is where a lot of PPPs go bad.
One more point on #4: Accelerator advisors are hardly minimum wage workers so union busting here would be hardly a race to the bottom. They need to hire the best, pay them well, but fire them if they don’t deliver (and promote them and give raises when they do)
On your last point, I would note that removing union CBA provisions that entrench nepotism over meritocracy does not require ‘busting’ (which usually means removing or crippling) the union. So the choice between nepotist unions and a race to the bottom is a false choice. In general, I think the answer to nepotistic and undemocratic union practices (of which there are certainly some examples) is legislating against those practices, rather than tearing down unions (which on balance do way, way more good than harm to economic growth and social equity in the long-run). If you don’t believe me, just Google ‘unionization and inequality (in Canada/in the U.S.)’ There are some pretty amazing graphs – especially for the U.S. (where there has been a lot more union-busting), but also to some extent for Canada.
By the way, European patent standards are generally tighter than in the US, so any global free-trade agreement will provide leverage to extract these concessions from the US in exchange for expanded cross-border litigation rights.
Asian standards are even tighter.
Two good recent op-eds on Canadian patent policy in the Globe
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