A member of the Uniform Law Conference – Electronic Commerce (ULC-ECOMM) email list points out that the electronic version of the Ontario Reports is announced by an email to members with a link to the latest edition and that states:
This communication is intended for use by the individual(s) to whom it is specifically addressed and should not be read by, or delivered to, any other person. Such communication may contain privileged or confidential information.
He asks, given that the material in the ORs is all likely available on library shelves or elsewhere: "Does this make any sense?"
Presumably the Law Society claims copyright in the contents of the Ontario Reports, though its claim to copyright in judicial decisions themselves is negligible, or laughable, or otherwise not worth taking seriously. (Now the Crown, OTOH, …. but we don’t have to go there!) The copyright in the rest of the contents is not really debatable.
But is it an element of the exercise of copyright to say that one cannot pass on a printed version of a copyrighted text, if one does not copy it?
Is that different from forwarding an electronic version, if one does not keep a version for oneself? And why should the Law Society or LexisNexis care if I pass on the e-version even if I keep one myself? Is there an actual commercial market for this material outside the Ontario Bar, which already gets the reports?
It would make sense to prevent people from stripping out content and republishing it commercially, e.g. setting up online classified ads populated by material from the Ontario Reports. That could be prevented (or at least made subject to appropriate civil liability) by a simple copyright notice.
Why is not the electronic notice quoted above ‘excess copyright’, as a certain fellow blogger might call it?
Observe further that the URLs in the announcing emails appear to be unique to each subscriber. Such URLs almost certainly enable the electronic publisher to make reasonably accurate inferences about which subscribers might be sharing their subscriptions with other people.
Moreover, obscure, uniquely identifying URLs of this nature might further be said to be a type of technological protection measure (TPM), an electronic copyright protection mechanism, a "digital lock".
You can test this "digital lock" by trying to visit the relevant OR weekly part's URL, such as <http://digital.ontarioreports.ca/ontarioreports/20100716>, but omitting your subscriber ID (the "?sub_id=xyz" part of the URL), after clearing your browser's cache, and you will likely find that you are "locked out" of the content on their web server.
Furthermore, if each digital version of the Ontario Reports is unique to the individual subscriber, does that allow the Law Society or Lexis/Nexis to determine whether any particular subscriber ever reads an issue, or how much time he or she spends on particular features of an issue? Could this information be passed on to advertisers, either in bulk ("Five hundred people spent more than one second on your latest ad") or individually ("lawyer X spent a minute looking at your latest ad")?
Would existing privacy laws prevent any such use of the information, by the Law Society, the publisher or the advertiser?
(The Recaptcha clues for this comment are 'held porcupine' – I suppose a number of Slaw posts involve prickly people and thorny issues.)