Privacy Law Reform: the OPC 2018-2019 Annual Report

December 12th, 2019 by Barry Sookman No comments »

The Office of the Privacy Commissioner of Canada just published the 2018-2019 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act. Unlike other reports, this report’s focus was on privacy law reform. In fact, it was so titled as Privacy Law Reform – A Pathway to Respecting Rights and Restoring Trust in Government and the Digital Economy.

The Annual Report is a must read for everyone concerned about privacy including members of the general public and organizations whose privacy practices and compliance burdens would be significantly affected if some or all of the proposals were accepted and enacted into law.

Site blocking orders come to Canada: GoldTV.biz

November 18th, 2019 by Barry Sookman No comments »

In an important decision released Friday, the Federal Court of Canada issued the first Canadian site blocking order against sites that predominantly facilitate copyright infringement. The order made by Justice Gleeson, in a carefully reasoned decision in Bell Media Inc. et al v GOLDTV.BIZ 2019 FC 1432, ordered certain ISPs in Canada to block access to pirate subscription streaming sites (GoldTV.biz and GoldTV.ca) that were infringing the copyrights of the plaintiffs Bell Media Inc., Groupe TVA Inc, and Rogers media Inc.

Hard lessons in dataset licensing to create commercial products: 77m v Ordnance Survey

November 11th, 2019 by Barry Sookman No comments »

If you are interested in database licensing, the intrigue of how complex geo-spatial based services are developed, electronic mapping and polygons, the legality of scraping, how online terms governing databases are construed, and database rights, then the recent UK decision in 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch) (08 November 2019) is for you.

The dispute in the case was between a start-up company 77m and Ordnance Survey (OS), the national mapping agency of Great Britain. 77m created a dataset called Matrix consisting of an up-to-date, detailed and accurate list of the geospatial coordinates of all the residential and non-residential addresses in Great Britain containing 28 million records.

When copyright in a work transfers to the Crown: Keatley v Teranet

September 26th, 2019 by Barry Sookman No comments »

When does copyright transfer to the Crown under the Copyright Act? The Supreme Court clarified this in a landmark ruling released earlier today in Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, authoritatively interpreting Section 12 of the Act.

The Court did so in delivering two sets of reasons, the majority written by Justice Abella  (Moldaver, Karakatsanis and Martin JJ. concurring) and by Justices Côté and Brown JJ. (Wagner C.J. concurring). All seven Judges agreed that the decision of the Court of Appeal (2017 ONCA 748) which sided with Teranet should be affirmed. In the result, the Court unanimously agreed that when surveyors register or deposit plans of survey in a public registry system (including land titles) and those plans are made available to the public by the Ontario Government or its service provider Teranet, the copyright in the surveys passes to the Crown.

OPC drops transborder transfer of data consultation

September 24th, 2019 by Barry Sookman No comments »

Earlier this year the Privacy Commissioner launched and then relaunched a consultation that caused shockwaves among privacy lawyers, the tech community, and just about every organization that has third parties process data for them. The OPC sought to change its longstanding interpretation of Canada’s privacy law, PIPEDA, to require the consent of individuals to transfer personal information to a third party for processing.

The OPC received numerous submissions opposing the change including from the CLHIA, Centre for Information Policy Leadership, PMAC, and Canadian Chamber of Commerce. I also wrote a personal submission opposing it and explaining why such a change could not be justified under the wording of PIPEDA or as a matter of policy.

OPC consultation on trans-border data flows: my submission to the consultation

August 6th, 2019 by Barry Sookman No comments »

Dear M. Therrien:

Thank you for the opportunity to provide input into the consultation on whether consent is or should be required for transborder data flows for processing.

Introduction

By way of introduction, I am a senior technology lawyer with McCarthy Tétrault. I have significant experience in outsourcings of all types, both domestic and trans-national. I have been involved in some of Canada largest and most complex outsourcing transactions. In this connection, and as part of my privacy practice, I regularly advise clients on privacy issues associated with transfers and disclosures of personal information. I also teach privacy at Osgoode Hall Law School as part of an intellectual property law course. I also have written extensively about privacy issues including a major chapter in my eight volume book on Computer, Internet, and ecommerce Law. As such, I respectfully submit I am well positioned to provide both theoretical and practical input into the consultation.

Developments in computer, Internet and e-commerce law: the year in review (2018-2019)

June 14th, 2019 by Barry Sookman No comments »

I gave my annual presentation yesterday to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covers the period from June 2018 to June 2019. The developments include cases from Canada, the U.S. the U.K., EU, Australia, South Africa, India and other countries.

The developments are organized into the broad topics of:

  • Privacy / Big Data / AI
  • Employee / HR
  • E-commerce / Online Agreements
  • Online Remedies / Governance / Jurisdiction
  • Copyright

The cases and other documents referred to are below.

Privacy / Big Data / AI

Shifting Paradigms: the Heritage Committee study on copyright

May 17th, 2019 by Barry Sookman No comments »

Earlier this week the Standing Committee on Canadian Heritage released its report Shifting Paradigms. The Committee studied remuneration models for artists and the creative industries including the challenges and opportunities for creators. The Committee found several major themes that connected testimony throughout the study:

  • the increasing value gap (a disparity between the value of creative content enjoyed by consumers and the revenues that are received by artists and the creative industries)
  • the decline in the artistic middle class
  • the negative impact of technology on creative industries, and
  • changes in consumer culture and the Indigenous perspective on copyright

Internet and Technology: New Regulatory Paradigms

April 18th, 2019 by Barry Sookman 1 comment »

I was pleased to speak earlier today at the McCarthy Tétrault  8th Annual Technology Law Innovation Summit. My topic was Internet and Technology: New Regulatory Paradigms. A copy of my slides are set out below.

Barry Sookman 8th_Annual_Technology_Law_Innovation_Summit_Slides

 

The Unintended Equustek Effect: a reply to Michael Geist

April 2nd, 2019 by Barry Sookman 1 comment »

Cyberspace is not a “No Law Land”. That was the title to a study conduced for Industry Canada in 1997. It started with this quote from Bill Gates, Microsoft’s co-founder:

It’s always surprising how old concepts carry into the new medium. It’s overly idealistic to act like, Oh, the Internet is the one place where people should be able to do whatever they wish: present child pornography, do scams, libel people, steal copyrighted material. Society’s values have not changed fundamentally just because it’s an Internet page.