I had the pleasure of speaking yesterday at the Law Society of Upper Canada 20th Annual IP Law: The Year in Review. I spoke on the topic of Copyright and Technological Neutrality: CBC v SODRAC. My slides are shown below and can be downloaded here.
Just before the holidays last year, the Federal Court of Appeal released its decision in Red Label Vacations Inc v 411 Travel Buys Limited 2015 FCA 290. It affirmed the lower court decision of Justice Manson which had held that, on the facts of the case, the use of metatags on web pages did not constitute passing-off, trade-mark infringement or depreciation of goodwill. It did so primarily based on findings of fact by the trial judge which the court found were not subject to any palpable and overriding error.
This is a copy of my op-ed published in the Financial Post. As the article notes, the views expressed are further elaborated on my blog. See, TPP and trade secrets: a wonderful idea and TPP, copyright, e-commerce and digital policy: a reply to Michael Geist.
The intellectual property chapter of the Trans-Pacific Partnership (TPP) has been misunderstood and attacked by several commentators, and the public is understandably confused. Much has been misinterpreted by those who oppose the TPP, or at least its intellectual property (IP) provisions.
The intellectual property chapter of the Trans-Pacific Partnership (TPP) is certainly misunderstood. An example is Article 18.78 which sets minimum standards for trade secret protection among TPP partners. Prof. Dan Breznitz, in a recent Op-Ed in the Globe and Mail, Trans-Pacific Partnership is a wonderful idea – for China, claims it will “seriously restrict entrepreneurship, diminish competition and limit the basic economic freedom of individuals”. He says that, as a result, the TPP is “The delight of Beijing”.
There has been a considerable amount of information published about the IP and e-commerce chapters of the TPP. Not all of it accurate as I pointed out in a recent post, nor fully explaining the potential benefits of these chapters of the treaty to Canadians. Richard Owens, a Toronto lawyer, adjunct professor of law at the University of Toronto, and the former Executive Director of the University of Toronto Centre for Innovation Law and Policy, has published an important commentary on the TPP titled “Debunking Alarmism Over the TPP and IP: Why the Trans-Pacific Partnership is a Good Deal for Canadian Innovators”.
The Trans-Pacific Partnership (TPP) is a comprehensive and complex agreement. It presents major economic opportunities for Canada. It deserves, as Lawrence Herman, the former head of the Economic and Treaty Law Section of Canada’s External Affairs Department, pointed out, “careful, reasoned and balanced assessment”. Some individuals have stepped forward to do that with respect to the intellectual property and e-commerce chapters, such as:
- Nathaniel Lipkus The TPP’s IP provisions put Canada on level ground
- Richard C. Owens: Crying wolf over the Trans-Pacific Partnership https://t.co/WQDJOIwsAI
- Hugh Stephens The TPP’s Intellectual Property Provisions: The “Worst Public Policy Decision in the Country’s History”? Let’s Have Some Perspective!,
Another day, another article slamming CASL. Yesterday it was called “a bad law” in an FP Comment. Today’s article titled CASL: A high-level look at the looming disaster called CASL “draconian” and stated “It’s hard to believe that antispam legislation can be this disastrous, but it’s true.” Well these authors can join an esteemed club. CASL has been ridiculed by the press which has called it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid, and a sledgehammer that is ludicrous regulatory overkill. Its all that and more including almost certainly being unconstitutional.
CASL is a bad law and cannot reasonably be justified on any basis. On that issue, I recommend you read a feature article in the Financial Post today The great anti-spam cash grab. Here are a few choice extracts from the article.
CASL is a bad law. It offers no benefit to consumers, yet imposes red tape and additional costs on businesses. Worse still, it reduces competition, actually harming consumers. Finally, it is inconsistent with Canada’s free market economy and very likely unconstitutional…
CASL cannot work. It is incapable of stopping most spam…
Meanwhile, CASL imposes large costs on businesses…
The Supreme Court released a landmark judgment yesterday in the closely watched case, Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57. The 7-2 judgment of the Court was delivered by Rothstein J (with whom McLachlin C.J., Cromwell, Moldaver, Wagner, Gascon and Côté JJ agreed).
The judgment established the following principles.
Broadcast‑incidental copying engages the reproduction right. While balance between user and right‑holder interests and technological neutrality are important principles under Canadian copyright law, they are interpretive principles which do not trump, and cannot change, the express terms of the Act. The Court rejected the argument advanced by the CBC and CIPPIC, which intervened in the appeal, that the reproduction right should be interpreted in light of the principle of technological neutrality to apply only where the right would be consistent with the purposes of the Copyright Act.