In Club Resorts Ltd. v Van Breda, 2012 SCC 17, the Supreme Court clarified the rules for when a Canadian court can assume jurisdiction over a claim against a party located outside the jurisdiction. Specifically, it clarified the rules for applying the real and substantial test to determining if there is a sufficient connection between the subject matter of the action and the jurisdiction for determining jurisdiction simpliciter. The Van Breda case did not, however, address how that test would apply to cases involving infringement of copyright.
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 and have the obligation, in appropriate cases, to de-list links to personal information in their search results. A recent decision in Mosley v Google Inc & Anor  EWHC 59 (QB) (15 January 2015) has recognized that a right to get a blocking order against a search engine might also exist in the United Kingdom under the UK Data Protection Act 1998. The case also illustrates the challenges individuals have in vindicating their privacy interests in the Internet context.
On January 22, I gave a talk at the Law Society of Upper Canada’s 19th Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in 2014. I previously published a paper that summarizes leading cases from Canada, the United States, elsewhere in the Commonwealth and the European Union called Copyright law 2014: the year in review and is available at the link on my blog.
My slides from the LSUC talk are reproduced below and summarize the following cases:
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.
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.
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.
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.
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.
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.
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).