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Archive for the ‘Intellectual Property’ Columns

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

Reconciling Property Rights and Human Rights When It Comes to Knowledge. Part II.

In Part I of this two-part column, I examined the fate of a current California legislative initiative intended to expand access rights to state-sponsored research. While the bill continues to move through the legislature, my previous post discusses how the publishers lobby swiftly managed to amend the bill, eliminating its six-month reduction of the twelve-month embargo period (allowed publishers to delay providing open access after publication). While attesting to their support for open access, in principle, the publishers held that reducing (by six months) the public’s wait to see this research violated their property rights and threatened the future . . . [more]

Posted in: Intellectual Property, Legal Publishing

Protecting Journalistic Privilege

We rely on journalists to expose wrongdoings in society and provide facts and opinion that contribute to informed debate that lies at the heart of a vibrant democracy. Yet this enterprise is undermined and threatened on all fronts. With the internet, news is difficult to commodify and budgets for investigative journalism are meagre to non-existent. Access to information laws in this country are horribly outdated and ineffective. Whistleblower laws, while newer to the scene, are equally inadequate. Political debate is increasingly based on spin, misinformation, or outright lies, which media sources are more inclined to repeat than to investigate.

Journalistic . . . [more]

Posted in: Intellectual Property

514-BILLETS Pays $100,000 – CASL Still Being Enforced After Critical Reviews

Canada’s Anti-Spam legislation (CASL) is a complex, onerous and ambiguous legislative system. The ambiguities were identified in a constitutional challenge that the CRTC acknowledged but ruled did not go to the point of undermining the legislative regime. Parliament’s 5 year review obtained considerable consultation identifying numerous compliance issues arising from the uncertainties that the law creates. The Standing Committee on Industry, Science and Technology report did identify a number of items where clarification would reduce the uncertainty with respect to the interpretation of many of the law’s provisions, as well as to avoid overly burdensome costs of compliance The government . . . [more]

Posted in: Intellectual Property

Mandatory Breach Notification Across Canada

By Order in Council 2018-0369 on March 26, 2018, mandatory breach notification under the federal Personal Information Protection and Electronic Documents Act (PIPEDA), comes in force November 1, 2018 for to all entities subject to its jurisdiction.

The PIPEDA rules follow Alberta’s leadership, which has had mandatory breach notification for 8 years. In Canada, provincial health privacy laws in Ontario, New Brunswick and Newfoundland and Labrador also contain reporting requirements. Most US states have mandatory breach notification requirements. It is recognized that notification of the affected individuals is a key factor in mitigation of risk in instances of cyber . . . [more]

Posted in: Intellectual Property

Number Three Million

In the first days of April, the Canadian Patent Office announced that it had allocated patent application number three million. This was the one millionth patent application since the ‘New Act’ Patent Act came into force in 1989.

Over the last several years, approximately 35,000 patent applications have been filed per year in Canada. The years with the highest annual filings were 2006 and 2008 when approximately 42,000 patent applications were filed.

The numbering for patent applications was restarted to two million starting when the ‘New Act’ came into force in October 1, 1989 for patent applications filed after that . . . [more]

Posted in: Intellectual Property

Five Ways to Make Law School More Rigorous and Engaging

Next year will be year 30 since I graduated from law school. It will also mark 15 years since I began teaching law. What is perhaps most remarkably similar about both experiences is how little curriculum design and teaching methods have changed over the course of this time. Sad to say (and even harder to admit) is that law school is often neither rigorous in its methods nor very engaging the content it offers.

The format of a typical course, from a student perspective, is to read through a punishing amount of turgid prose found in judicial decisions, passively listen . . . [more]

Posted in: Intellectual Property, Legal Education

Cyber Security – Spear Phishing Covered Under Insurance Policy Where Code Manipulated

Increasingly insureds faced with cyber fraud losses are going to the courts to interpret their policies. 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 the instructions given to its bank . . . [more]

Posted in: Intellectual Property

Patent Term Adjustments Come to Canada

Patents granted in Canada based on patent applications filed in the last couple of decades have been given terms of exclusivity of twenty years. The twenty year term starts from the date the patent application was filed in Canada, even if it takes several years to be examined and granted by the patent office or if the underlying products take time to be approved by the regulatory agencies.

That has now changed as part of compromises made during the negotiations for CETA, the trade agreement with Europe. Amendments to the Patent Act and implementing regulations came into force in September . . . [more]

Posted in: Intellectual Property

The Saga of the Canada’s “Making Available Right” in Three Acts

Act One

Our opening scene begins with the internet wreaking havoc on a peaceful copyright countryside where copying and performing are distinct activities that never mix. The internet is changing the way works are distributed for consumption so that now they can be both performed (e.g. streamed) and copied (i.e. downloads) online. Moreover, pre-internet language of one of the performance rights – the telecommunication right – is broad enough to include both activities. The more foreboding menace is that the internet has facilitated widespread piracy through peer to peer networks (P2P). Partly because of the ambiguous nature of these rights . . . [more]

Posted in: Intellectual Property