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Communications and copyright: IIC Canada ConferenceCommunications and copyright: IIC Canada Conference

I had the pleasure of speaking today at the Canadian Chapter of the International Institute of Communications annual conference, held virtually. I spoke chiefly about the following cases and developments:

CRTC’s troubling guidelines on CASL accessorial liabilityCRTC’s troubling guidelines on CASL accessorial liability

If you thought CASL wasn’t draconian enough, think again. The CRTC’s interpretation of CASL in the new Guidelines on the Commission’s approach to section 9 of Canada’s anti-spam legislation (CASL) (Compliance and Enforcement Information Bulletin CRTC 2018-415) has tightened the noose on Canada’s already speech impairing anti-spam law. Under the Guidelines, intermediaries of all stripes including telecom providers, ISPs, hosting companies, payment processors, advertising brokers, electronic marketers, software and application developers and distributors can be liable for CASL violations of their users – whether these intermediaries even intend or know that their users are using their products or services to violate CASL.

Equustek v Google: my Fordham talkEquustek v Google: my Fordham talk

Fordham Law School has the best annual  intellectual property conferences. I had the privilege of speaking at its 25th Annual IP Conference yesterday on the Equustek v Google case. In this case the Supreme Court of Canada is being asked to decide if Canadian courts have the jurisdiction to make global de-indexing orders against search engines like Google, and if so, the factors to be considered in making such orders. My slides from the talk are shown below.

What made my talk such a treat, was the presence of Mr Justice Arnold in the audience.

Information location tool and fair dealing copyright defenses rejected: Trader v CarGurusInformation location tool and fair dealing copyright defenses rejected: Trader v CarGurus

If you’ve ever shopped for a used car, you likely know the two popular services, and CarGurus. In a decision released earlier this week in Trader v CarGurus, 2017 ONSC 1841, Trader (the owner and operator of was awarded statutory damages of $305,604 against CarCurus for infringements of its copyrights in photographs of vehicles. The decision written by Justice Conway of the Ontario Superior Court contains some important interpretations of the Copyright Act including in relation to the scope of the new making available right, the copyright defenses for information location tools and fair dealing, and the calculation of statutory damages.

CASL’s private right of actionCASL’s private right of action

Canada has the most onerous anti-spam/anti-malware law (CASL) in the world. In less than a year, July 1, 2017, it is going to become even worse. That’s when the private right of action (PRA) comes into force.

Since its inception, the anti-spam and anti-malware portions of the Act (ss.6-9) have been enforced by the CRTC. But when the PRA becomes law organizations big and small including charities, small businesses and even children marketing their first lemonade stands – and their officers, directors and agents – could become liable for millions of dollars in penalties.

Technological neutrality, technological neutrality, technological neutrality: CBC v SODRAQTechnological neutrality, technological neutrality, technological neutrality: CBC v SODRAQ

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.

Privacy by Design certification framework launched by Ryerson and DeloittePrivacy by Design certification framework launched by Ryerson and Deloitte

This morning, Ryerson University and Deloitte announced a new certification framework based on Privacy by Design principles. Privacy by Design is a set of principles that builds privacy into the design, operation and management of a given system, business process or design specification. It is based on 7 Foundational Principles developed by Dr Ann Cavoukian, Executive Director of Ryerson’s Privacy and Big Data Institute and the former Information and Privacy Commissioner of Ontario.

Under the Privacy by Design framework, Ryerson will be responsible for certifying organizations that meet the necessary privacy criteria.

User’s Guide to Canadian Copyright TariffsUser’s Guide to Canadian Copyright Tariffs

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.

Canada’s most influential lawyers?Canada’s most influential lawyers?

Canadian Lawyer has announced the candidates nominated for the fifth annual Canadian Lawyer’s Top 25 Most Influential. Again this year, it will be picking the top 5 lawyers in 5 categories. I am nominated in the “Corporate-commercial” category. (Candidates have been placed in a category relating to their nomination, not necessarily reflecting their main area of practice.) You can cast your vote until June 9

 I would like to thank Pascale Daigneault, the president of the Ontario Bar Association for nominating me.

Managing Intellectual Property North America AwardsManaging Intellectual Property North America Awards

Last night I attended the Euromoney Legal Media Group’s Managing IP gala in Washington, DC. I was delighted to learn that my firm, McCarthy Tétrault, was honored with two of the 2013 North America Awards for excellence in intellectual property law.

McCarthy Tétrault was recognized as the top firm in Canada in the category of Patent Contentious. I won the award as Canada’s Outstanding IP Practitioner.

Other winners recognized for their excellence in IP including other Canadian winners can be found here.