Fordham Law School has the best annual intellectual property conferences. I had the privilege of speaking at its 25th Annual IP Conference yesterday on the Equustek v Google case. In this case the Supreme Court of Canada is being asked to decide if Canadian courts have the jurisdiction to make global de-indexing orders against search engines like Google, and if so, the factors to be considered in making such orders. My slides from the talk are shown below.
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If you’ve ever shopped for a used car, you likely know the two popular services, autotrader.ca and CarGurus. In a decision released earlier this week in Trader v CarGurus, 2017 ONSC 1841, Trader (the owner and operator of autotrader.ca) was awarded statutory damages of $305,604 against CarCurus for infringements of its copyrights in photographs of vehicles. The decision written by Justice Conway of the Ontario Superior Court contains some important interpretations of the Copyright Act including in relation to the scope of the new making available right, the copyright defenses for information location tools and fair dealing, and the calculation of statutory damages.
Canada has the most onerous anti-spam/anti-malware law (CASL) in the world. In less than a year, July 1, 2017, it is going to become even worse. That’s when the private right of action (PRA) comes into force.
Since its inception, the anti-spam and anti-malware portions of the Act (ss.6-9) have been enforced by the CRTC. But when the PRA becomes law organizations big and small including charities, small businesses and even children marketing their first lemonade stands – and their officers, directors and agents – could become liable for millions of dollars in penalties.
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.
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.
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.
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.
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.
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.
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.