Liability of ex-employees for breach of confidence: Vestergaard Frandsen v Bestnet Europe

May 27th, 2013 by Barry Sookman 1 comment »

The UK Supreme Court just released a decision examining the scope of the common law (or equitable) duty of confidence. One of the main issues in the case was whether a person can be liable for breach of confidence by acting in common design with others who are in breach of confidence when the person is not aware that trade secrets are being used in violation of the duty of confidence. The Court in Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors [2013] UKSC 31 (22 May 2013) ruled that liability cannot be imposed in these circumstances.

Are smartphones computer systems under the Criminal Code? R v Cockell

May 21st, 2013 by Barry Sookman 3 comments »

Every now and again you read decisions that make you shake your head. Mine felt like a salt shaker when I read the decision of the Alberta Court of Appeal last week in R. v. Cockell, 2013 ABCA 112. In this case the Court reversed the conviction of an accused on three counts of child luring using a computer system under s 172.1(1) of the Criminal Code. Why? Incredibly, because it wasn’t proved the BlacKBerry smartphone used to commit the offense was a computer system.

Privacy Commissioners speak about Getting Accountability Right at CLHIA Conference

May 14th, 2013 by Barry Sookman No comments »

Last week I had the pleasure of listening to a great talk titled “Privacy: Getting Accountability Right” at the 2013 Compliance and Consumer Complaints Annual Conference organized by the Canadian Life and Health Insurance Asscoiation Inc. Taking place in sunny Vancouver (see below), the speakers were Barbara Bucknell of the Office of the Privacy Commissioner of Canada, Jill Clayton, Information and Privacy Commissioner, Alberta, and Elizabeth Denham, Information and Privacy Commissioner, British Columba.


Vancouver Harbor


Here is a summary of their remarks.

The first question addressed to each panelist was the trends they were seeing in relation to privacy in the insurance industry.

Problems with copyright assignments: Righthaven, Tremblay and POPS

May 10th, 2013 by Barry Sookman No comments »

Copyright assignments. There are a myriad of ways for them to be challenged or be ineffective. Three recent cases illustrate their potential frailties; one from the US and two from Canada.

Yesterday’s decision of the Ninth Circuit Court of Appeals in Righthaven LLC v Hoehn 2013 WL 1908876 (9th.Cir.May 9, 2013) spells the end of the copyright troll Righthaven. It gained substantial notoriety by commencing lawsuits alleging copyright infringement in articles published in the Las Vegas Review-Journal reproduced online by websites without permission.

Fair use for Australia? A report from the Kernochan Centre

May 6th, 2013 by Barry Sookman No comments »

During the copyright reform process leading up Bill C-32 (the Copyright Modernization Act), some proponents of reform had advocated broadening the Copyright Act’s fair dealing exception to a US style fair use regime. This was opposed by a wide spectrum of the Canadian creative community. Eventually the proposal was not adopted when Bill C-11 was finally proclaimed into force. See, Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation

Courts busy with copyright: Meltwater UKSC, Viacom v YouTube, UMG v Escape, Cariou v Prince

April 29th, 2013 by Barry Sookman No comments »

It was another busy two weeks in copyright with courts in the UK and US canvassing whether browsing a work, hosting a user generated content site, and creating appropriation art, infringes copyright. The opinions of the three courts (finding no liability in each case) on copyright policy was perhaps as interesting as the holdings themselves. On top of that, a U.S. appeals court ruled that the DMCA hosting exception does not apply to pre-1972 sound recordings.

World intellectual property day

April 26th, 2013 by Barry Sookman No comments »

Here is a message from the WIPO Director General Francis Gurry on World Intellectual Property day:

On World IP Day we encourage people to reflect about the role of intellectual property in our changing world. I believe there is a certain genius in intellectual property. What it does is create a unique incentive for investment in research and development, in innovation, and in cultural creation and production.

How does it do that? By creating a mechanism for buying, selling and sharing access to the benefits of innovation and cultural creation. Our challenge is to ensure that the conditions for access are fair and balanced, so that the benefits are widespread, and so that it fosters a truly dynamic, creative global society in which the next generation will thrive.

CRTC reports on CASL consultation

April 16th, 2013 by Barry Sookman No comments »

The CRTC recently published a Report on the Informal Consultation of 25 February 2013 among Industry and Consumer Groups and CRTC Staff on Canada’s Anti-Spam Legislation. The consultation followed the Commission’s release of guidelines on CASL.

The objective of the informal consultation “was to facilitate a focused conversation and gather useful information regarding issues that businesses and consumer groups foresee when CASL comes into force.” The discussions focused on six topics:

  • Proof of consent
  • Section 66 of CASL and the three-year transitional period
  • Obtaining consent to send a commercial electronic message (CEM) – seeking consent for affiliates

Access Copyright moves to collect royalties

April 8th, 2013 by Barry Sookman No comments »

Access Copyright has taken legal action on three fronts. It sued York University for reproducing works covered by its repertoire without payment of royalties under the Interim Tariff approved by the Copyright Board. It also filed an application for an interim tariff covering copying in elementary and secondary schools. Last, Access Copyright filed a proposed post‐secondary tariff for the period of 2014‐2017. Access Copyright’s press release is here. A copy of the Statement of Claim is here.

Cablevision: How It and Its Doctrines Have Fared Around the World

April 8th, 2013 by Barry Sookman No comments »

The annual Fordham IP law conference is, in my view, second to none. This year”s Fordham’s 21st Annual Conference on Intellectual Property Law and Policy was sensational. Great program and fabulous international faculty. IPkat reported on some of the sessions.

On Friday, I was on a panel Performance Rights in Copyright: Public, Private or “Digital”? The speakers and panelists with me were Profs. Tyler Ochoa (Santa Clara U. School of Law) and Jane Ginsburg (Columbia), David Ellen (GC Cablevision), Dr. Silke von Lewinski (Max Planck Institute for IP) and Janet Cullum (Cooley). It was a very timely panel, especially given the recent release of the opinion in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013). Judge Chin who delivered the powerful dissent in the Aereo case was in the audience.