Developments in Computer, Internet and E-Commerce Law (2013-2014)

June 5th, 2014 by Barry Sookman No comments »

 

Earlier today, I gave my annual presentation to the Toronto Computer Lawyers’ Group on developments in Computer, Internet, and e-commerce Law. The slides cover the period from my last presentation in June 2013, Developments in Computer, Internet and E-Commerce Law (2012-2013).

The cases summarized in the slides below canvass developments in a number of countries and include cases from Canada, United States, and the EU.

CANADA

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 2013 SCC 62

(AOM) NA Inc. et al v. Reveal Group, 2013 ONSC 8014

Canada’s most influential lawyers?

June 2nd, 2014 by Barry Sookman No comments »

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.

 

Canada ratifying WIPO Internet Treaties

May 24th, 2014 by Barry Sookman No comments »

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.

Google must comply with EU data protection laws including the right to be forgotten: Google v AEPD

May 13th, 2014 by Barry Sookman No comments »

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.

Mihály Ficsor on Svensson and communications to the public

May 11th, 2014 by Barry Sookman No comments »

The Svensson opinion of the CJEU has gained considerable attention. The focus has primarily been on the controversial topic of whether hyperlinks to a work on the Internet should be considered as making the work available and hence be part of the author’s right of communication to the public. However, the opinion also further extends precedents of the CJEU how to determine whether communications are “to the public”. In a seminal paper, Dr. Ficsor the former Deputy Director General of WIPO carefully examines these precedents and points out errors in the opinions. A summary of his paper is below.

Oracle v Google: APIs protected by copyright; copying for compatibility not a defense to copyright infringement

May 10th, 2014 by Barry Sookman No comments »

The U.S. Court of Appeals for the Federal Circuit released an important decision yesterday in the ongoing battle between Oracle and Google over copyright protection for the Java APIs Goolge used in developing Android. In Oracle America, Inc. v Google Inc. 2014 WL 1855277 (CAFC. May 9, 2014), the Court reversed the District Court on practically every legal finding made by that court and ruled that, subject to a possible fair use defense, that Google infringed Oracle’s copyright.

Fordham’s debate about Canada’s unlocatable copyright owner regime

May 9th, 2014 by Barry Sookman No comments »

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):

CRTC releases new CASL FAQs

May 8th, 2014 by Barry Sookman 1 comment »

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?

Transition

Once the law comes into force, how does it affect consent?

Liability

What are the penalties for committing a violation under CASL?Can directors and officers be liable too?

Sending Messages

General

Does the legislation prohibit me from sending marketing messages? When does section 6 of CASL apply?

CASL: insights into Canada’s anti-spam law at the Lexpert conference

May 6th, 2014 by Barry Sookman 5 comments »

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:

CASL and Freedom of Expression –The Writing Is on the Wall

May 2nd, 2014 by Dan Glover No comments »

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.