We now have our first court decision interpreting Canada’s new digital lock regime in Nintendo v. Go Cyber Shopping 2017 FC 246. Unfortunately, the decision glosses over two issues that future courts will need to look at more closely. The first is whether the regime extends to locks preventing mere access to a work, unaccompanied by any act of copyright infringement. The second is whether physical configurations, or other devices that play no direct role in bypassing a lock, are protected. Given uncontested facts (the Respondent did not tender any evidence before the court), there was no meaningful opportunity . . . [more]

Canadian pharmaceutical patent owners can expect two substantive changes in the next year following implementation of the Canada–European Union Comprehensive Economic and Trade Agreement (“CETA”):

• certificates of supplementary patent protection (“SPC”) of up to 2 years will be available to compensate for regulatory approval delay

• an overhaul of the NOC litigation procedure is expected, with current “not-so-summary” proceedings to be replaced by one action, similar to US ANDA litigation

The recently released draft implementing legislation (“Bill C30”) provides an overview of the timing and steps for SPC, with details to follow in subordinate regulations. Procedures regarding the modified NOC litigation . . . [more]

In an oil and gas patent proceeding, the court ordered a 27% royalty rate for sales made prior to the grant of the patent at issue and did not consider a manual process as being a non-infringing alternative. In a recently issued decision, Frac Shack Inc. v. AFD Petroleum Ltd., 2017 FC 104, the defendant was found to infringe several of the claims in a patent relating to a fuel delivery system used for hot refueling of equipment used for hydraulic fracturing.

If a patent is found to be infringed, the patentee, or person claiming under the patentee . . . [more]

In my first post on Slaw last summer, I highlighted 5 questions that face digital copyright law. There are of course many unanswered questions in this remarkably dynamic area of the law. Below I discuss 5 more issues that are elaborated upon in my Digital Copyright Law book:

1. What is a copy in the digital age?

The copy concept in copyright law was simple before the internet. An author received compensation for copies purchased by consumers. Digital technologies, which are copy dependent for the production and transmission of content has created new kinds of copies. These are “technical copies” . . . [more]

The federal private sector privacy regime operates on a consent basis. Unless an exception is applicable consent is needed to collect, use or disclose personal information of another. That consent can be express or implied.

In Royal Bank of Canada v. Trang[1] the Supreme Court of Canada took a practical and pragmatic approach to implied consent under the federal private sector privacy law, Personal Information Protection and Electronic Documents Act[2] (PIPEDA).

Facts

The plaintiff, Royal Bank of Canada (RBC), loaned the Trangs about $35,000. The Trangs defaulted on the loan and RBC obtained a judgment against the Trangs. . . . [more]

“FinTech”, the combination of technology and financial services is taking off with numerous startups and established players all trying to optimize, expand and disrupt the industry. The increasing use of mobile technology, cloud services and changing regulations is causing rapid change in the way services are being provided in many areas, including for financial services. Examples including new payment methods, mobile apps, lending and funding systems, such as crowdsourcing platforms, cloud based budgeting, accounting and finance software, and back office processing.

For companies innovating in this space, there are several types of protection being employed to try to maintain a . . . [more]

A recent decision of the Federal Court^[1] explicitly and repeatedly criticized a lottery ticket patentee for taking a “remarkable” “breathtaking” position on construction in an infringement action that was “entirely opposite” with prior representations to the Canadian Patent Office. At the same time, the court refused any inference of a “greater presumption of validity” because the patent had withstood 12 protests over 13 years brought by the impeacher/alleged infringer, and surprisingly (although reluctantly) accepted the patentee’s “new” construction approach in any event. The court found Scientific Games’ patent for lottery ticket codes to be obvious, ambiguous and not infringed . . . [more]

In Alberta v. University of Calgary the employer university refused employee access to information about herself on the basis of solicitor client privilege. The university then refused the privacy commissioner’s request to review that information which, under Alberta access to government information law, must be disclosed to the commissioner despite “any privilege of the law of evidence” being asserted. A majority of the Supreme Court sided with the university in holding that “any privilege of the law of evidence” does not include solicitor client privilege. If the commissioner’s office has a right to review claims of solicitor client privilege, the . . . [more]

The CRTC released a compliance and enforcement decision, CRTC 2016-428, October 26, 2016 in which it found that Blackstone Learning Corp. (Blackstone) committed nine violations of paragraph 6(1)(a) of Canada’s Anti-Spam Legislation (CASL) by sending commercial electronic messages (CEMs) without consent, and imposed an administrative monetary penalty of $50,000 on Blackstone.

The decision is noteworthy as it give more details and analysis than the CRTC’s prior press releases of enforcement action. As a result, it give a glimpse into the process used by the CRTC in an enforcement action. Importantly, it also confirms the CRTC views on the requirements to . . . [more]

An unusual five-member panel of the Federal Court of Appeal re-considered the appropriate standard of review in the Federal Court. The decision simplified the standard of review by focusing on the Housen standard described the Supreme Court of Canada (see 2002 SCC 33). The court also emphasized the importance of prothonotaries in the Federal Court, which is of particular significance to intellectual property proceedings which are almost always case managed by a prothonotary.

The court decided to expand its usual three member panel to a five-member panel in order to revisit its earlier Aqua-Gem decision (Canada v. Aqua-Gem . . . [more]

When does one pop song infringe the copyright of another pop song? US case law on the topic – which more or less mirrors Canadian law – shows the unpredictability of how music copyright infringement determinations are made. In two recent high profile US cases, one jury found for the plaintiff where the two songs had almost nothing in common (Gotta Give it Up and Blurred Lines) whereas in the other case, the jury found for the defendant even though there was significant borrowing from the plaintiff’s composition (Taurus and Stairway to Heaven).

There are many . . . [more]

A quote attributed to FBI Director Robert Mueller is “There are only two types of companies: those that have been hacked and those that will be”. The assessment of the Ashley Madison cyber-attack has lessons for all organizations who may face this risk.

July 15, 2015 a website run by Avid Life Media Inc. (ALM), called Ashley Madison targeted at people seeking a discreet affair, was breached by a group or person calling themselves The Impact Team. The personal information of members was threatened to be exposed unless ALM shut down the Ashley Madison and another ALM website. ALM did . . . [more]