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.
The CRTC announced yesterday that it bagged another CASL pelt – this time Rogers Media. The company agreed to an undertaking with the CRTC and to pay $200,000 to avoid expensive enforcement proceedings.
Rogers Media allegedly sent commercial emails (CEMs) containing an unsubscribe mechanism that did not function properly or which could not be readily performed by the recipient. In some instances, the electronic address used to unsubscribe was allegedly not valid for the required minimum of 60 days following the sent message. Rogers Media also allegedly failed to honour, within 10 business days, requests from some recipients to unsubscribe from receiving future commercial emails.
Is Google liable for defamation for not removing defamatory information in search results? Is Google liable for defamation as a secondary publisher by including hyperlinks to a website that contains defamatory materials when the hyperlink is included in search results? Finally, is Google liable for defamation when its Autocomplete and Related Search features produce suggested search inquires that are defamatory? According to the recent decision of an Australian Court in Duffy v Google Inc.,  SASC 170 (27 October 2015), yes to all, at least once Google has received notice of these activities and fails to stop them within a reasonable period of time.
Does by-passing a subscription paywall to access a news article violate the new prohibitions in the Copyright Act that make it an infringement to circumvent a technological protection measure (TPM)? Yes, according to a decision just released by an Ontario court in 395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association, 2015 CanLII 65885 (ON SCSM). Can a defendant rely on the new fair dealing defense for education to excuse the copying if the defendant illegally accessed the work by circumventing a TPM to do so? No, the fair dealing defense cannot apply where a work is obtained illegally.
The territorial reach and enforcement jurisdiction of European Union’s data protection law has become a lot more important these days following the decision of the Court of Justice in the Schrems case. In a case decided just a few days before Schrems, the same court gave Directive 95/46/EC a broad reading holding that the laws of a Member State apply to data controllers in another Member State who operate a website that processes data of residents of the first Member State. The Court, however, construed the enforcement jurisdiction of supervisory authorities narrowly ruling they do not have the ability to impose penalties on controllers not established in the Member State. The judgment of the Court in Weltimmo s.r.o. v Nemzeti Adatvédelmi és Információszabadság Hatóság, Case C‑230/14, October 1, 2015 has significant repercussions for EU and non-EU businesses that operate websites that target residents of a Member State and potentially for the territorial reach of the “right to be forgotten”.
Schrems, what the CJEU decided and why it is a problem for Canadian and other non-EU businesses (updated)October 12th, 2015 by Barry Sookman No comments »
On October 6, 2015 the Court of Justice of the European Union (CJEU) released a bombshell, but not completely unexpected judgment, invalidating a decision of the European Commission that underpinned the EU-US privacy safe harbor. In Schrems v. Data Protection Commissioner  EUECJ C-362/14 (06 October 2015), the CJEU held that supervisory data authorities in Member States have the joint right with the EU Commission to review whether non-EU countries provide adequate protection to personal data transferred to them from the EU despite a decision by the EU Commission that such protection is provided. It also invalided Commission Decision 2000/520 which had found that transfers of personal data to the US from the EU provided adequate protection where the recipient complied with the EU-US Safe Harbour Principles.