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Archive for the ‘Intellectual Property’ Columns

For Want of a Distinction: The Copyright Act and the York University Appeal

A year ago in this blog, I addressed York University’s appeal of the federal court’s decision against its clams to “fair dealing” in its instructors’ reproduction of course materials in Canadian Copyright Licensing Agency (CCLA) v. York University. I am returning to this case, even as the appeal proceeds, because I’ve begun to think that it reveals the extent to which the Copyright Act is currently unable to serve both party’s legitimate rights and interests.

Judge Michael L. Phelan’s ruling in the original case, rendered July 12, 2017, denied York’s claim that the copying of materials by instructors . . . [more]

Posted in: Intellectual Property, Legal Publishing

Patent File Wrapper Estoppel Comes to Canada

In a move that surprised many in the IP community, a budget bill that received royal assent before the holidays, introduced file wrapper estoppel to Canadian patent law.

Bill C-86 (link) included a number of changes to intellectual property legislation including enacting the College of Patent Agents and Trade-mark Agents Act, reforming the Copyright Board, and numerous amendments to the Patent Act, Trade-marks Act and Copyright Act.

One of the changes to the Patent Act, allows for the patent file wrapper or file history to be used to rebut claim construction of a patent. The file wrapper refers . . . [more]

Posted in: Intellectual Property

New 2018 Cost of Data Breaches Study Released

An important resource for those who study the impact of data breaches is updated for 2018. The 2018 Cost of Data Breach Study: A Global Overview was released by Ponemon Institute, LLC.

The Ponemon Study covers numerous countries and includes a continuing focus on Canada. Some Canadian statistics show the financial impact of data breaches.

Globally, Canada has the highest direct costs from a breach at $81 USD per record including such items as engaging forensic experts, specialist law firm assistance, purchase of identity protection services and the like. Also Canada had the second highest indirect costs at $116 USD . . . [more]

Posted in: Intellectual Property

USMCA – More IP Changes Coming to Canada

In early October, the governments of Canada, Mexico and the United States announced the USMCA trade agreement to replace NAFTA. The agreement anticipates several changes relating to intellectual property touching on copyright, patents, data protection, trade secrets and anti-counterfeiting.

Some of the changes have been controversial and seen as significant concessions by Canada to the United States. One article in the Financial Post, was titled, “Canada ‘caved’ on intellectual property provisions in USMCA trade deal, experts say”. Jim Balsillie, who has been vocal on innovation in Canada, was quoted in a statement as saying that, “Provisions in this . . . [more]

Posted in: Intellectual Property

Cyber Security – Loss Due to Social Engineering Attack Covered Under Insurance Policy

As the number and sophistication of social engineering attacks increases, victims are examining their insurance policies to see if they are covered. In The Brick Warehouse LP v. Chubb Insurance Company of Canada, 2017 ABQB 413, and in Taylor & Lieberman v. Federal Insurance Company, 2017 WL 929211 (March 9, 2017 9th Cir.), fraudulent emails, as part of a social engineering attack, were sent to company employees who acted on them transferring money from the insured’s account. In both cases courts held that coverage under the Fund Transfer Fraud policy was denied as the victim knew or consented to . . . [more]

Posted in: Intellectual Property

The United States-Mexico-Canada Agreement: A Call for a Little Give and Take

After much Trump-inspired drama over Canada’s participation in his new North American trade accord, the United States-Mexico-Canada Agreement (USMCA) was issued on September 30, 2018 (with final ratification by the three countries still pending at this point). While there is much ado about cheese, milk, and automobiles to it, intellectual property rights also figures prominently in the agreement. Its intellectual property provisions seek “the promotion of technological innovation… to the mutual advantage of producers and users… [in] a balance of rights and obligations.” While this would seem to make it all about patent regulation, it also allows for a need . . . [more]

Posted in: Intellectual Property, Legal Publishing

Human Error and Data Breaches

With Canada implementing mandatory private sector breach reporting under the federal Personal Information Protection and Electronic Documents Act (PIPEDA) on November 1, 2018, it is worth noting that many breaches are due to human error. These breaches can be minimized with proper policies, practices and employee education as well as regular monitoring and review of an organization’s privacy policies.

Data Commissioners or Information Commissioners often report details around the number, type and sources of breaches that are reported to them.

The UK’s Information Commissioner’s Office is the public body responsible for monitoring data breaches. This office monitors breaches of personal . . . [more]

Posted in: Intellectual Property

How Long Does It Take to Get a Patent?

I am often asked how long it will take to get their patent granted. The answer is, as with most questions asked of lawyers, “it depends”. Of the patents granted by the Canadian Patent Office in the first half of 2018, the time from filing to being granted ranged from less than 6 months (see CA2,976,719) to over 18 years (see CA2,360,927) – a huge range! Some of the time was outside the control of the patent applicant, such as due to backlog at the patent office, but there are many aspects of the patent process that affect . . . [more]

Posted in: Intellectual Property

Where the Sunshine List Don’t Shine

In 2015, the Alberta government extended coverage for disclosure of public servant salaries (aka the sunshine list) to those who make more than $125,000 per year. The new legislation was celebrated by all political parties as a victory for “transparency” and “open government”, and the right of taxpayers to know how public money is being spent. The legislative record is replete with these platitudes yet devoid of any specific policy objective.

When Ontario created their list back in 1996, the immediate goal seemed to be to shame public servants as a prelude to government cutbacks. If the longer term objective . . . [more]

Posted in: Administrative Law, Intellectual Property

What the Canadian Copyright Act Fails to Recognize: The Intellectual Properties of Research and Scholarship

This post forms part of what is now a series of arguments for reforming intellectual property law in Canada (and elsewhere) to better serve researcher and public interests in the publishing of research and scholarship. Given this country’s statutory review of the Copyright Act during 2018, I have submitted a brief to the Parliamentary committee on this theme, while utilizing this series of posts to focus on particular parts of the argument, in this case, the Act’s failure to recognize changes in how research and scholarship circulate even as such works represent a major Canadian undertaking and investment.

While Canada’s . . . [more]

Posted in: Intellectual Property, Legal Publishing

CRTC Issues $250,000 in Penalties for Malware Distribution

Canada’s anti-spam law (CASL) addresses much more than unwanted commercial messages. CASL also prohibits, among other things, installation of software onto a person’s computer without consent. The Canadian Radio-television and Telecommunications Commission (CRTC) exercises enforcement powers in respect of the software provisions of CASL.

The CRTC reported on July 11, 2018 that their Chief Compliance and Enforcement Officer has issued Notices of Violation to Datablocks and Sunlight Media for allegedly aiding in the installation of malicious computer programs through the distribution of online advertising. This is the first time the CRTC has taken action against the installation of malicious software . . . [more]

Posted in: Intellectual Property

Innovation Strategy

As part of World IP Day on April 26, 2018, the federal government announced a National IP Strategy to “help Canadian businesses, creators, entrepreneurs and innovators understand, protect and access intellectual property”. The strategy, led by the Minister of Innovation, Science and Economic Development, has a number of initiatives, and $85 million in funding, which will be rolled out over the upcoming months and years. New resources, tools, opportunities and legal changes may be interest to many in innovation oriented businesses.

IP Awareness and Tools

In addition to specific tools, a big focus on the strategy is increasing IP awareness. . . . [more]

Posted in: Intellectual Property