User’s Guide to Canadian Copyright Tariffs

January 24th, 2015 by Barry Sookman No comments »

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.

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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.

CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline

January 14th, 2015 by Barry Sookman No comments »

The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) came into on July 1, 2014. The “malware/spyware” computer program provisions come into force on January 15, 2015.

Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law. Over 80% believe it will not be effective against the most harmful sources of spam. 63% believe that it will make business more difficult for them.  Most believe CASL’s consent, disclosure and unsubscribe requirements are disproportionate and unreasonable. 56% believe CASL will impede the creation of a business environment driven by entrepreneurs that encourages jobs, growth and long term prosperity for Canadians.

Copyright law 2014: the year in review

January 2nd, 2015 by Barry Sookman No comments »

As the creative industries continued to grow economically in importance in 2014, so have the stakes in copyright litigation. Increasingly, the courts have been challenged to resolve complex disputes arising from new uses of works and other subject matter brought about by innovations in technology. While content is often a core and indispensable element of new and innovative services, products or offerings, frequently parties dispute whether the use requires permission and payment to rights holders or can be engaged in without permission or payment. This post reviews some of the highlights of the court battles of 2014 in Canada and other Commonwealth countries, the United States and the European Union.

Cell phone searches legal say SCOC: R v Fearon

December 11th, 2014 by Barry Sookman No comments »

A divided Supreme Court ruled that individuals cannot be secure that their most personal information will be protected from warrantless searches when arrested. In a 4 to 3 ruling, in R v Fearon, the Court held that if a person is lawfully arrested, a search is conducted that is incidental to the arrest, the search is tailored to its purpose, and the police take detailed notes, police may search the person’s cell phone.

The Pirate Bay blocked in France

December 8th, 2014 by Barry Sookman No comments »

Blocking orders against web sites and services that engage in or enable copyright infringement are common in the European Union. BitTorrent sites like The Pirate Bay are a frequent target of such orders. See, Keeping The Pirate Bays at Bay: using blocking orders to curtail infringements; Blocking orders against ISPs legal in the EU: UPC Telekabel Wien.

The “Right to be Forgotten” Guideline from the Article 29 Working Party

December 1st, 2014 by Barry Sookman No comments »

In the landmark ruling in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (case no. C-131/12, May 13, 2014), the Court of Justice of the European Union (CJEU) recognized that search engines are controllers of the personal information they process. As such, they have the obligation, in appropriate cases, to de-list links to personal information in their search results.

The Gonzales decision left open questions about the scope of the duty and the criteria to be used in determining what links must be delisted, something which Google, data protection authorities, and others had disagreed about. The Article 29 Data Protection Working Party has now released a Guideline addressing these controversial issues.

Proving copyright infringement: John Kaldor Fabricmaker v Lee Ann Fashions

November 25th, 2014 by Barry Sookman No comments »

To prove copyright infringement, the claimant has the onus of proving two things: first the alleged infringer created his or her work by copying from the copyright owner’s work (copying in fact); second, that all or a substantial part of the original work was copied (illicit copying). The analytical steps in each inquiry have been considered in numerous cases. For example, the Supreme Court of Canada reviewed the steps a Canadian court should follow in establishing illicit copying in a “altered copying” case in Cinar Corporation v. Robinson, 2013 SCC 73 (summarized here).

CASL: getting consents for upgrades to computer programs on pre-installed and resold devices

November 24th, 2014 by Barry Sookman No comments »

Canada’s anti-spam law (CASL) requires a person installing updates or upgrades to computer programs on another person’s computer system to obtain an express consent. This can be a challenge. If a person is able to get a consent to the installation of the program before installing it, the person can get consent to the installation of the update or upgrade at that time. The person cannot get consent for updates or upgrades that require enhanced disclosure under s.10(5) of CASL at that time, unless, of course, the person knows about them and can get a consent for them in advance.

CASL: when is a computer program installed or caused to be installed according to the CRTC

November 18th, 2014 by Barry Sookman No comments »

The computer program provisions in Canada’s anti-spam law (CASL) are very hard to apply in practice. One of the most difficult interpretive challenges involves determining what the phrase “install or cause to be installed” means. CASL only applies where a person installs or causes to be installed a program on someone else’s computer. The CRTC released a Guideline that attempts to clarify what CASL means by that phrase. In information sessions last week to IT.Can and ITAC members, Dana-Lynn Wood and Lynne Perrault of the CRTC attempted to provide even further guidance on this issue. However, after fielding a series of questions on the issue, they agreed the issue was still unclear and that it was necessary for them to give further consideration to the issue.

CASL Spamaflop not constitutional

November 17th, 2014 by Barry Sookman No comments »

I have argued many times on this blog that Canada’s anti-spam law (CASL) would not survive a Charter challenge. It’s “ban all” approach to regulating commercial speech, with limited exceptions, cannot be justified.  Professor Emir Crowne,  Associate Professor, University of Windsor, Faculty of Law, just published a paper together with Stephanie Provato agreeing with this opinion, Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1.

The abstract of the article says the following: