A Visit to Canada’s “Notorious Market”, The Pacific Mall in Toronto

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The Pacific Mall in Toronto’s northern suburb of Markham enjoys the dubious distinction of being the only “notorious market” for the physical sale of counterfeit and pirated products in Canada or the US to be specifically highlighted in both the USTR’s Out-of-Cycle Review of Notorious Markets (2017) and the EU’s Copyright and Piracy Watch List published just last month, the first time such a document has been released by the European Commission. The EU document mentions a few other flea markets in the Greater Toronto Area and one in Quebec, but the bulk of its report on Canada is dedicated to the Pacific Mall. In the USTR report the Pacific Mall finds itself in such undistinguished company as the infamous Silk Market in Beijing, El Tepito in Mexico City, the Grand Bazaar in Istanbul and the Tan Binh market in Ho Chi Minh City. The EU Commission’s comparison list is even more extensive. With regard to Pacific Mall, the Commission reported;

“The Pacific Mall…allegedly offers for sale a high volume of counterfeit clothes, footwear, toys, car spare parts, cameras, cellphones, computers and other electronic appliances, cosmetics, perfumes, health and beauty products, housewares, jewellery, watches and optical products. It …has around 500 retail shops selling allegedly mainly counterfeit goods of Chinese origin”.

That is quite a long list of “alleged” nefarious activity. After the USTR Notorious Market report came out in January of 2018 naming the Pacific Mall, pressure clearly increased on local police to take action. On June 27 more than 30 officers from the York Regional Police raided the Mall and executed seven search warrants, seizing clothes, handbags and cellphone accessories. Subsequent investigation confirmed that large amounts of the products seized were in fact counterfeit, and charges are apparently pending. This is not the first time the Mall has been raided and I can recall stories of the Mall being a hotbed of counterfeit and pirated products going back more than a decade. However until very recently I had never personally visited Pacific Mall.

Having some free time on my hands over the Christmas/New Year’s holiday while in Toronto visiting family, I decided to see for myself. On New Year’s Day, when just about everything else in Toronto was closed, my wife and I drove to Pacific Mall–which was wide open for business. In fact, it is open 365 days a year. I mean, why miss a commercial opportunity for anything as mundane as a public holiday? Out we drove through unusually light traffic to the northern reaches of Greater Toronto. The traffic may have been light enroute but when we got to the Mall it was packed. There was hardly a parking spot to be found. The building is huge—allegedly the largest Chinese Mall in North America—and has an industrial cavernous feel to it. In fact the more than 500 retail outlets are mostly small kiosks erected in what feels like an aircraft hangar. Most of the clientele and merchants are ethnically Asian, predominantly Chinese. Having lived for a number of years in Hong Kong, the Mall immediately brought back memories of shopping in some of the alleyways and lower-end malls in that territory. I felt like the proverbial gweilo (the widely used term for foreigners in Hong Kong, technically meaning “foreign devil” but now widely used by foreigners and Chinese alike to denote resident westerners) back in Asia. We were a very distinct minority as we wandered the halls of the Mall. Pacific Mall consciously portrays itself as a Hong Kong-style Asian market, even to its Chinese name (Tai Gu Guang Chang), an identical translation of Pacific Place in Hong Kong (which is, however, a much more upscale shopping complex).

So what did we see? Were there piles of knock-offs crammed in the narrow aisles, being sold at knock-down prices? Did anyone try to sell us obvious copies of branded merchandise or cut-rate DVDs? Somewhat surprisingly to me, having read the USTR and EU Commission reports and given the illicit markets that Pacific Mall is lumped with, this was not the case. I have visited many pirate markets over the years, from Itaewan in Seoul when we lived in Korea in the 1990s (it is just a few steps away from what at the time was the main US Army base, Yongsan, which probably provided some of Itaewan’s best customers) to the Silk Market in Beijing (where I used to go to buy costume jewellery for my wife). My experience at Pacific Mall however was different. Admittedly, the marketing of counterfeit and pirated goods has changed over the years, but you can still get touts pushing “fake Rolex” and “copy watches” on you on Nathan Road in Kowloon, and can see obvious fakes for sale on many street corners in China. The prices alone give them away. But at Pacific Mall it was more subtle. First, there are large numbers of legitimate enterprises, everything from outlets for Chinese food products to nail salons and hairdressers. Kiosks selling cellphone accessories and actual phones are in abundance, but so are the major telco providers, Bell, Rogers and Telus. There are lots of optical stores, many of them selling well known international brands of eyeglass frames. It was not possible to know if these were genuine or not, but the pricing suggested that perhaps they were the real thing. The prices were on the low end for products like Gucci and Bulgari but not so low as to be obvious fakes. It was a different experience from walking into the Silk Market in Beijing in the old days and being accosted on the front steps by vendors with bags full of $1 DVDs.

Perhaps this is the North American version of a market selling fakes—not so “in your face”. And of course things have changed somewhat over the years, particularly with regard to pirated copyright products. Whereas knock-off DVDs and CDs were the product of choice a few years ago (Pacific Mall was raided in 2009, with a resulting seizure of 50,000 DVDs, 100,000 blanks and over 200 DVD burners), now the piracy method of choice is streaming and downloading of copyright infringing content over the internet. Indeed, as the USTR report notes, copyright-intensive industries today focus much more on notorious markets in the online rather than physical environment whereas trademark-based industries tend to identify both physical and online markets as being problematic. In some countries, physical markets continue to be a problem for copyrighted content, with trade still being conducted in infringing physical media such as CDs, DVDs, video-game cartridges, pre-loaded set top boxes, streaming devices and thumb drives. This did not appear to be the case at Pacific Mall although what options were offered inside the many cellphone and electronic gadget kiosks is difficult to say.

My impressions are not meant to suggest that selling of fakes at Pacific Mall does not occur; in fact just the opposite appears to be true judging by the recent raids. But it is also worth noting that just seven kiosks out of over 500 were raided. Management of the Mall claims to be taking more active measures to combat selling of infringing products including hiring of investigators to conduct internal audits, issuing warnings, imposing a code of conduct and creating a website to increase consumer awareness. However, given the track record of the Mall over the past twenty years of its existence, one could be forgiven for being skeptical that this will curtail all selling of fakes at the location. It is a magnet for shoppers seeking bargains and there will always be the temptation to pass off inferior goods as the real thing. Nevertheless, while there was cheap luggage, footwear and clothing on sale, none of it came with any known branding that I could see. In fact I had never heard of most of the brands or labels attached to the products. Auto parts, optical shops and cellphone stores, on the other hand, advertised a number of known and respected brands. Were there fakes mixed among the genuine products? Hard to say. Maybe.

I was not there as an investigator but rather to get a sense of what the place was like. It was crowded, lively, animated, noisy—just what you would expect from an Asian mall. But whether it is a hub of counterfeiting (and formerly piracy) on a scale with the Istanbul Bazaar and the Beijing Silk Market, as suggested by the USTR and EU reports, is hard to say. Detailed undercover investigation is necessary, which likely explains why police attention to the problem is only sporadic. If you are going to Pacific Mall to walk away with piles of really cheap knock-offs you are going to be disappointed. And that’s a good thing. Keeping the spotlight on the Mall seems to have had a positive effect. Hopefully it will last.

Oh yes, and what did we buy while there? A delicious plate of dim-sum. It was the real thing.

© Hugh Stephens 2019. All Rights Reserved.

AVIA: The “New” Kid on the Block in the Asian Content Industry

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There is a new kid on the block in the broadcasting and video space in Asia, AVIA (pronounced eh-VIA, as in Canadian, eh?), with the acronym standing for the Asia Video Industry Association. While the name is new, and the mission refocussed, the new AVIA has emerged (like a butterfly from its chrysalis) out of CASBAA–The Cable and Satellite Broadcasting Association of Asia–an industry association established in 1991 at the dawn of the cable and satellite era in Asia. With these antecedents, AVIA is building on a solid base of work and reputation. However this is more than just a change of name; it indicates a refocus on video content across all platforms, including but not limited to cable and satellite broadcasting. AVIA stresses that it will speak on behalf of the full range of professional video production and those who help consumers to access it. It is no coincidence that Netflix has just become a member as content delivery increasingly moves online into the OTT (Over-the-Top) space. Continue reading “AVIA: The “New” Kid on the Block in the Asian Content Industry”

Looking Back at International Copyright Developments in 2018

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It’s that time of year when we cast an eye back over the past year (probably in a vain attempt to try to predict what the New Year will bring), reflecting on important developments in global affairs–including those affecting international copyright. Last year I wrote a similar blog and it is always instructive to look back at what seemed important a year ago, and then see how things actually developed. Continue reading “Looking Back at International Copyright Developments in 2018”

Canadian Copyright Review: My Submission on International Site Blocking

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The Parliamentary Committee undertaking the mandated five year review of Canada’s Copyright Act closed receipt of submissions on December 10 and its hearing of witnesses two days later. The next stage will be for the committee to digest the many submissions and hours of testimony it received and come forward with recommendations for the government to consider. Continue reading “Canadian Copyright Review: My Submission on International Site Blocking”

The Kevin Lindgren Prize for Copyright: Insights from Young IP Lawyers-To-Be in Australia

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On my recent trip to Australia I was honoured to be asked to participate as a judge in determining the winner of the annual Kevin Lindgren prize for the best copyright presentation by an Australian law student. Named in honour of Dr. Kevin Lindgren, AM QC, former Federal Court Judge and President of the Copyright Tribunal, this year was the third year that the prize has been presented by the Copyright Society of Australia. Dr. Lindgren was there and participated as one of the three judges, along with lawyer Alida Stanley, Australian Copyright Council Board member, and yours truly. Continue reading “The Kevin Lindgren Prize for Copyright: Insights from Young IP Lawyers-To-Be in Australia”

The Push for Platform Accountability is Going Global

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It’s no secret that the issue of internet platform accountability—holding massive internet intermediaries such as Facebook, Youtube and Google accountable for the way in which they deal (or more to the point, do not deal) with illegal content on their services– has become a hot button issue politically in many countries. The willingness to give a free pass to these internet giants, beginning some two decades ago in order not to “stifle” innovation in the digital era, has worn thin. The old adage of “don’t blame the telephone company for obscene phone calls” doesn’t cut it anymore, especially when the platforms clearly have the ability to curate and select content to push to users according to what they think individual users prefer, to identify various attributes of content on their platforms (through mechanisms such as ContentID) and to promote or demote search results, to cite some concrete examples. Continue reading “The Push for Platform Accountability is Going Global”

New Zealand Launches its Copyright Review: Calculating the Economic Benefits will be a Key Issue

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New Zealand has just launched its long-anticipated Copyright Act review, releasing an Issues Paper on November 23. This paper kick-starts a consultation process that will continue through to until next April. The release of the paper is the first stage of consultation in the review of the Act, and involves “identifying problems with the way the Copyright Act is operating or opportunities to improve its operation”. The paper outlines the background of copyright law in New Zealand, puts forward a number of factors potentially affecting the application of the law, and poses no less than 97 questions on which the Ministry of Business, Innovation and Employment is seeking input. These questions are wide-ranging and cover everything from the scope of fair dealing exceptions to the potential impact of copyright on Maori culture. Continue reading “New Zealand Launches its Copyright Review: Calculating the Economic Benefits will be a Key Issue”