Archive for the ‘Uncategorized’ category

Technological neutrality, technological neutrality, technological neutrality: CBC v SODRAQ

November 27th, 2015

The Supreme Court released a landmark judgment yesterday in the closely watched case, Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57. The 7-2 judgment of the Court was delivered by Rothstein J (with whom McLachlin C.J., Cromwell, Moldaver, Wagner, Gascon and Côté JJ agreed).

The judgment established the following principles.

Broadcast‑incidental copying engages the reproduction right. While balance between user and right‑holder interests and technological neutrality are important principles under Canadian copyright law, they are interpretive principles which do not trump, and cannot change, the express terms of the Act. The Court rejected the argument advanced by the CBC and CIPPIC, which intervened in the appeal, that the reproduction right should be interpreted in light of the principle of technological neutrality to apply only where the right would be consistent with the purposes of the Copyright Act.

Privacy by Design certification framework launched by Ryerson and Deloitte

May 25th, 2015

This morning, Ryerson University and Deloitte announced a new certification framework based on Privacy by Design principles. Privacy by Design is a set of principles that builds privacy into the design, operation and management of a given system, business process or design specification. It is based on 7 Foundational Principles developed by Dr Ann Cavoukian, Executive Director of Ryerson’s Privacy and Big Data Institute and the former Information and Privacy Commissioner of Ontario.

Under the Privacy by Design framework, Ryerson will be responsible for certifying organizations that meet the necessary privacy criteria. Organizations must first undergo an assessment by Deloitte, Ryerson’s exclusive assessment arm for the certification framework, against the 7 Foundational Principles.

User’s Guide to Canadian Copyright Tariffs

January 24th, 2015

Ever have trouble figuring out what tariffs have been certified by the Copyright Board for the uses of copyright? If so, the new book entitled User’s Guide to Canadian Copyright Tariffs written by McCarthy Tétrault lawyers Peter Grant, Grant Buchanan, Dan Glover and Keith Rose is for you.


This 350 page book is an annotated guide to Canadian copyright tariffs relating to the use of music, the reproduction of literary works, media monitoring, private copying, and the retransmission of distant radio and television signals. The book includes the full text of the most recent version of all tariffs certified by the Copyright Board of Canada, along with explanatory tables and editorial notes.

Canada’s most influential lawyers?

June 2nd, 2014

Canadian Lawyer has announced the candidates nominated for the fifth annual Canadian Lawyer’s Top 25 Most Influential. Again this year, it will be picking the top 5 lawyers in 5 categories. I am nominated in the “Corporate-commercial” category. (Candidates have been placed in a category relating to their nomination, not necessarily reflecting their main area of practice.) You can cast your vote until June 9

 I would like to thank Pascale Daigneault, the president of the Ontario Bar Association for nominating me.


Managing Intellectual Property North America Awards

March 20th, 2013

Last night I attended the Euromoney Legal Media Group’s Managing IP gala in Washington, DC. I was delighted to learn that my firm, McCarthy Tétrault, was honored with two of the 2013 North America Awards for excellence in intellectual property law.

McCarthy Tétrault was recognized as the top firm in Canada in the category of Patent Contentious. I won the award as Canada’s Outstanding IP Practitioner.

Other winners recognized for their excellence in IP including other Canadian winners can be found here.

Charities, non-profits and CASL

February 21st, 2013

Some people mistakenly think that only businesses find Canada’s anti-spam law (CASL) to be burdensome, unworkable, and counter-productive. However, this view appears to be shared by every sector that is faced with compliance including charities and not for profit organizations, universities, colleges and hospitals.

Industry Canada has now received submissions to the consultation from organizations representing the entire charitable and non-profit sectors. The submissions include calls by each of the Ontario Nonprofit Network, Imagine Canada, and the Association of Universities and Colleges of Canada (AUCC) for a complete exemption from CASL. They, along with Canadian Bar Association, provide example after example of how CASL’s “ban all” approach to regulating electronic messages with any direct or indirect commercial content or links will have very deleterious implications, in this case for charities and not for profit organizations.

Privacy protects anonymity in cyberbulling case says Supreme Court

September 28th, 2012

The Supreme Court released its reasons in the A.B. v. Bragg Communications Inc., 2012 SCC 46 case yesterday. The main issue in the case was whether the privacy interests of a child to keep her identity anonymous in legal proceedings outweighed the open court principle.

The case arose from a 15-year-old girl finding out that someone had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references. The page was removed by the internet provider later that month.

Was the $675,000 damage award against Joel Tenenbaum for file sharing excessive?

August 24th, 2012

Was the statutory damages award of $675,000 against Joel Tenebaum for downloading and distributing 30 music files over peer-to-peer networks excessive? Did it violate US due process? According to a decision released by a U.S. District Court yesterday in the Sony BMG Music Entertainment v Tenebaum 2012 WL 3639053, (D.Mass., Aug. 23, 2012) case, the answer to both questions is no.

After a five-day jury trial, the jury found that Tenenbaum’s infringement was willful as to each of the thirty sound recordings in issue, and returned a verdict within the US statutory range of $22,500 per infringement, for a total damages award of $675,000.  After an appeal of the jury verdict, the Court was charged with the duty of determining whether the award was excessive under the common law remittitur doctrine and whether it violated due process.

ISPs not broadcast undertakings says Supreme Court

February 9th, 2012

The Supreme Court delivered its reasons this morning affirming the decison of the Federal Court of Appeal  in the  Broadcasting Reference case. The Court ruled that ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users.

The reasons for the decison were given as follows:

Ontario recognizes privacy tort of intrusion upon seclusion

January 18th, 2012

The Ontario Court of Appeal formally recognized today the existence of a tort for an intrusion upon seclusion. In the widely watched case of Jones v Tsige 2012 ONCA 32, the Court reviewed the prior case law from around the country, the US and the Commonwealth. After doing so, it concluded that Ontario has already accepted the existence of a tort claim for appropriation of personality and that it was appropriate for the Court to confirm the existence of a right of action for intrusion upon seclusion. “Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”