Copyright law seeks to regulate creativity. Nowhere is this regulation more apparent, or specific for that matter, than at the level of setting tariffs for copyright uses as set by the Copyright Board and administered by collective societies. As illustrated most recently in the Access Copyright v. York University decision, this system of collective administration is horribly broken. It is time to get creative about how we regulate creativity.

This is how copyright works. Authors (and their intermediaries) are compensated for their creations through a tradeable commodity known as copyright. The ability of some authors to make a living depends . . . [more]

Almost all aspects of intellectual property law are the subject of public consultations this summer and fall. Intellectual property lawyers and their clients were busy reviewing the upcoming changes, providing important comments and planning for their implementation. There are lots of changes to be aware of for clients building, maintaining or monitoring intellectual property rights.

Patents

A full replacement of the Patent Rules (link) was proposed to implement the Patent Law Treaty which standardizes some procedural requirements of the patent process. The Patent Rules provide the regulatory implementation details for the Patent Act and define most of the . . . [more]

With the advent of computer databases in the early 1970s, there was a general uneasiness about the power of the state becoming overbearing. The concern about individual privacy centred on the potential for governments to collect and process a vast amount of information about its citizens on a scale only imagined in sci-fi before. Appropriate safeguards were enacted, even if legal uncertainty over government department’s power to share data with each other became the major obstacle in completing e-government projects. (The Indian Supreme Court’s finding of privacy as fundamental right in response to the government’s compulsory biometric identity card system . . . [more]

Most lawyers and judges would cringe at the notion that courts develop policy when they interpret statutes. The legal profession indoctrinates that the role of the legislature is to enact policy through legislation and that it is for the courts to apply that law to resolve individual disputes. You would never hear a lawyer make an explicit appeal to policy when submitting statutory interpretation arguments before courts. Rather they invoke the intention of the legislature as the authority for their position. That the legal profession indulges in the fiction of a true or certain legislative intent in most cases speaks, . . . [more]

We live in an age of escalating cyber security threats. Many intrusion threats are social engineering attacks, which seek to gain entry to an organization’s computer systems via its personnel and not a hack to the computer systems. While not technical in nature these attacks can effect substantial harm on an organization and need to be taken as seriously as the technical attacks.

A classic risk mitigation step on every organizations checklist is to implement thoughtful internal controls with appropriate checks and balances to seek to prevent fraud.

Another classic risk mitigation steps on every organizations cyber perils checklist is . . . [more]

Under Canada’s Anti-Spam Law (“CASL”) not only may a corporation that fails to comply be liable to pay a monetary penalty but personal liability may also arise. Section 31 provides that “An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against”.

An example of application of Section 31 is the case of Mr. Halazon and TCC reported by the Canadian Radio-television and Telecommunications Commission (“CRTC”) in June . . . [more]

In patent infringement litigation, sufficient particulars of how an infringer infringes a patent must be included in a patentee’s pleading. How much detail is required? In a recent Federal Court decision, the court struck the statement of claim and dismissed the case because not enough details of how the defendant infringed each of the asserted claims. In Mostar Directional Technologies Inc. v Drill-Tek Corporation et al., 2017 FC 575, on a motion to strike brought by a defendant, the Prothonotary struck the pleading and dismissed the case on the basis the statement of claim pleaded no material facts . . . [more]

I am currently writing a book on Statutory Interpretation, to be published in late 2018 by Lexis Nexis. Enough books have been written on the topic both in Canada and elsewhere, so why do I feel the need to add another? For one thing, existing literature on the subject spends far too little time (if at all) on two fundamental questions: (1) why do statutes need to be interpreted and (2) what is the appropriate institutional role for the judiciary? In my opinion, we can not understand how to approach the task of interpretation without answering these two questions. More . . . [more]

Alberta joins those provinces and the Federal government who have enacted protection for intimate images to provide a legal framework to protect those who have such images wrongfully distributed.

Under the Act, Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, cP-26.9, which comes into force August 4, 2017, a person distributes an intimate image if that person knowingly publishes, transmits, sells, advertises or otherwise makes the image available to a person other than the person depicted in the image.

Once in force it will be a tort for a person who distributes an intimate image of . . . [more]

A key feature of litigation is the disclosure of relevant information and documents prior to trial through the process of discovery. For Canadian intellectual property proceedings, most of which take place in the Federal Court, disclosure of confidential materials is the norm, and confidentiality orders are typically obtained to keep sensitive information out of the public record and out of the hands of competitors. A couple of years ago, one judge commented that in intellectual property cases, confidentiality orders are “almost always granted as a matter of course” (see 2015 FC 403).

Confidential information that is often the subject . . . [more]

Everyone likes an anniversary. It offers a moment of reflection and perhaps a piece of cake. It calls for looking back, if only, in this case, to that afternoon in high school history class in which you were presented with the Protestant Reformation. This is the five hundredth anniversary of Martin Luther, “Master of Arts and Sacred Theology, and ordinary lecturer therein at Wittenberg,” letting the world know that he intended to defend what has become known as The 95 Theses (actually entitled Disputation on the Power of Indulgences): “52. It is vain to trust in salvation by indulgence . . . [more]

The oft-used cease and desist letter (“C&D letter”) may have significant implications for both intellectual property (“IP”) owner and alleged infringer alike. Although the test for an improper C&D letter may be well-established, there have been relatively few cases where such letters have been held to be improper, and no reported cases dealing with actual quantification of resulting damages. This fact, combined with the reality that interlocutory injunctions remain a difficult remedy to obtain in Canada, may very well mean that IP owners should consider taking the risk of sending out threatening communications to an infringer’s customers. In certain circumstances, . . . [more]