Earlier today, the CJEU released an important decision on whether the making available right gives copyright holders a right to authorize the use of hyperlinks to copyright content. In Case C-466/12 Svensson v Retriever Sverige AB, (13 February 2014) the CJEU ruled that an ordinary “clickable” hyperlink makes a work available to the public. However, if the link is to a publically available portion of a website used by the rights holder to make work available to the same public as the link, it is not made available to a new public and the right is not infringed.
The Minister of Finance tabled the Government of Canada’s budget earlier today. Titled, The Road to Balance: Creating Jobs and Opportunities, the budget contained a few proposed plans related to intellectual property and the digital economy.
The Economic Action Plan proposes to modernize Canada’s intellectual property framework “to better align it with international practices.” These plans which had previoulsy been announced were described as follows:
Canada’s existing framework for protecting intellectual property is not aligned with international practices, creating unnecessary costs for our innovative businesses. Harmonizing Canada’s intellectual property regime with international norms will help Canada’s innovative businesses access international markets, lower costs and draw foreign investment to Canada by reducing the regulatory burden and red tape faced by businesses.
CASL compliance is a major challenge for Canadian organizations. The new legislation which regulates sending commercial electronic messages and the installation of computer programs is the toughest law of its kind anywhere.
To help organizations comply, McCarthy Tétrault has created a web page that compiles useful resources to help in developing and implementing compliance programs. It has also updated its very popular CASL Toolkit to take into account recent developments including the Industry Canada regulations and RIAS and the CRTC regulations and guidance documents.
Organizations that need assistance in understanding and complying with CASL can request a copy by following the directions at the McCarthy Tétrault website.
Yesterday, I gave a talk at the Law Society of Upper Canada’s 18h Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in Canada, the US and UK in 2013. My slides are shown below. The associated paper prepared in collaboration with Glen Bloom, with the help of others, is available here.
The following copyright cases from Canada, the USA, and UK are dealt with in the slides. The paper has additional Canadian cases.
A recent UK case addressed an important contract issue for IT lawyers. Will a limit of liability clause that prevents recovery of damages for a wrongful termination of an agreement be a ground for granting an injunction to prevent the irreparable harm associated with the breach for which full damages cannot be recovered? Alternatively, will the liability exclusion be accepted as the bargain reached by the parties for such breaches and not be a basis for a finding of irreparable harm? The court in AB v CD  EWHC 1 (QB) (03 January 2014) considered that the latter position was the law, but expressed doubts as to its correctness.
In the last decade, the Supreme Court of Canada has canvassed many important issues in copyright law including the scope of the rights of reproduction and authorization, what makes a work original, and how to apply the fair dealing defense. In its decision released yesterday in Cinar Corporation v. Robinson, 2013 SCC 73, a unanimous Supreme Court released an important precedent dealing with many other core areas of copyright including the framework for how to assess if a “substantial part” of a work has been reproduced, the assessment of damages for infringement including accounting of profits, non-pecuniary damages and punitive damages, the use of experts in a copyright case, the vicarious liability of directors for infringement, and whether copyright is protected by the Quebec Charter of human rights and freedoms. For copyright lawyers, this case is a goldmine – a treasure trove -of important copyright holdings by the Supreme Court.
The CRTC just released a new FAQ on CASL. It contains little that is new and repeats much of what it had been previously said including in its two Guidelines. The focus of the FAQ are the anti-spam prohibitions. Some highlights are.
These FAQs have been prepared by Commission staff in order to provide general information with respect to commonly posed questions about Canada’s Anti-Spam Legislation (CASL). This material is not to be considered legal advice, nor does it reflect a decision, policy or interpretation of CASL and/or its accompanying regulations, by the Commission, Office of the Privacy Commissioner, the Competition Bureau or, Industry Canada. Please note that this information may be subject to change.
If it was not clear enough before that there are many problems with CASL, it became evident when Industry Canada released the final regulations and the Regulatory Impact Analysis Statement (the RIAS). CASL takes an extremely broad “ban all” approach to regulating commercial messages and the installation of computer programs. This structure makes the exceptions particularly important because every CEM sent without consent (and following the prescribed rules) and every computer program installed on any computer (machine or device) without consent (and making the required disclosures) as part of a commercial activity will be illegal. The regulations purport to address some of the major necessarily inadvertent consequences with CASL’s breadth and structure. See, CASL Industry Canada regulations: summary and comments. However, they fall short in many very important respects.
Here are slides from a talk I gave earlier in the year to Justice Canada on the topic of approaches to Internet regulation. It used CASL of a case study of what not to do. The slides referred to the Alberta Court of Appeal decision in the United Food case. That decision has since been affirmed by the Supreme Court in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC (summarized here)
For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.