The Canadian Government has now deposited instruments of ratification as the final steps to ratifying the WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WCT). Most of the amendments to implement the treaty provisions went into effect in November 2012 when The Copyright Modernization Act was proclaimed into force. Some of the provisions pertaining to the WPPT including the making available right for sound recordings will only come into effect when the treaty ratification process is final. This will occur on August 13, 2014, 90 days after the deposit of the WPPT instruments of ratification with WIPO.
In a bombshell opinion released earlier today, the CJEU ruled that Google Inc. is subject to EU data protection laws even where its servers are located outside of the EU. The Court ruled that when Google spiders the web and indexes the globe’s data, it is a processor with respect to personal information and a controller of such information. In the case before the Court, this meant that Google was required to de-index links to personal information, even though the information was accurate and without any showing that making the information available was prejudical to the data subject. The case is bound to lead to many further questions about the scope of the duties of search engines like Google under EU laws. I raised this issue in an interview with CTV News.
Fordham has the best IP conference. It stimulates vigorous debates about IP issues at and after the conference. A case in point is the usefulness of Canada’s orphan works regime.
I was a panelist at Fordham which addressed the challenges associated with orphan works. I provided a summary of Canada’s Unlocatable Copyright Owner process highlighting its usefulness. I later did a blog post on the topic, Orphan works: the Canadian solution.
The debate about Canada’s regime started at Fordham when Howard Knopf (a persistent Fordham questioner) disagreed with my assessment stating the following (according to the Fordham unedited transcript of the panel):
Earlier today, the CRTC released a new set of FAQs related to CASL. The topics covered are set out below. I will be providing comments on these FAQs in subsequent blog posts.
Coming Into Force
When does the legislation come into force?Will the coming-into-force dates and the compliance date be different?
Once the law comes into force, how does it affect consent?
What are the penalties for committing a violation under CASL?Can directors and officers be liable too?
Does the legislation prohibit me from sending marketing messages? When does section 6 of CASL apply?
Last Wednesday I had the pleasure of chairing a conference on Canada’s anti-spam/spyware law (CASL). The Lexpert conference covered the anti-spam, computer program and Competition Act aspects of the new law. The speakers brought useful insights into interpreting CASL and its regulations as well as practical guidance on implementing compliance programs. The slides from some of the speakers are set out below.
The conference was attended by Philip Palmer, a former Justice Canada lawyer and one of the individuals who played a lead role in drafting CASL and the initial regulations. He was on an “Ask the Experts” panel with David Canton and I. In the course of the conference and during the panel discussion he provided some helpful personal opinions about CASL that are worth sharing. Among them:
On May 1, I participated in a vigorous discussion on the constitutionality of CASL at the 17th Biennial National Conference on Communications Law and Policy hosted by the Law Society of Upper Canada and the Canadian Bar Association in Ottawa. My talk was on whether CASL could survive a Charter challenge based on freedom of expression grounds. I focused on the recent United Food decision at the Supreme Court of Canada, which struck down the Alberta Personal Information Protection Act for disproportionately impinging on expression rights in order to achieve privacy objectives, and pointed out that CASL might also fall to a similar challenge. Further, I commented on the possibility that even if CASL were found to be Charter-compliant, its implementation by the CRTC and other regulators still might not pass Charter muster, a point raised by the recent Doré decision at the Supreme Court. My slides are shown below.
I had the pleasure of being a panelist at the 2014 Annual Fordham Law and Policy IP Conference. My panel was on the topic of orphan works and mass digitization. My contribution was to provide a summary of Canada’s orphan works regime. The following are some of my speaking notes from the panel.
S.77 of the Act sets out the basis for granting licences to works and other subject matter where the owner cannot be located after reasonable efforts. S. 77 reads as follows:
77 (1) Where, on application to the Board by a person who wishes to obtain a licence to use
I had the pleasure of speaking at the Institute for New Economic Thinking and the Centre for International Governance Innovation (CIGI) Toronto 2014 Conference called Human After All. The topic of my talk was “Law and Innovation: Is Intellectual Property a Path to Progress”. The speakers with me on the session were Giovanni Dosi, Director, Institute of Economics, Scuola Superiore Sant’Anna in Pisa and Mariana Mazzucato, Professor, University of Sussex. The paper I prepared for the talk is below. (A PDF version of the paper can be accessed here.) My slides can be accessed here.* .