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Archive for the ‘Intellectual Property’ Columns

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

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