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Teresa Scassa

Teresa Scassa

A recent decision of the Federal Court has caused a small stir over language that, taken at face value, would have a dramatic impact on trademark law in Canada. In Homeaway.com, Inc. v. Hrdlicka, Justice Hughes considered an application to have the respondents registered trademark VRBO, for vacation real estate listing services, expunged from the register. The applicant was the owner of the U.S. based website VRBO.com, which offers vacation real estate listings on a worldwide basis. The applicant argued that the respondent’s trademark registration was invalid as Hrdlicka was not the person entitled to register the mark in Canada.

 

The person entitled to register a trademark in Canada is the one who has first used it or made it known in this country. The “making known” provision of the Trade-marks Act is designed to protect well-known foreign trademarks from being registered by Canadian businesses with the likely consequence of creating confusion among Canadian consumers already familiar with the foreign mark. Unfortunately, as Justice Hughes noted in his decision, the “making known” provisions were drafted in the technological dark ages and specifically refer to marks that have been made known through the print or broadcast media. Notwithstanding this, there is still hope for a foreign trademark owner that has actually used its trademark in Canada; if they were the first to use the mark in this country, then they are the party entitled to register it.

 

The Trade-marks Act contains a definition of “use” that varies depending on whether the mark is registered for wares or services. In this case, the VRBO mark related to services. For a mark to be used in relation to services, it must be “used or displayed in the performance or advertising of those services.” (s. 4(2)) The VRBO mark appears on the VRBO website and in its URL. However, the case law also makes it clear that for there to be use in Canada, it is not sufficient for there to be advertising featuring the mark in Canada, the services must also be offered in Canada.

 

This is where the decision of the Federal Court has caused confusion and controversy. In discussing “use”, Justice Hughes makes the apparently bold statement that “a trade-mark which appears on a computer screen website in Canada, regardless where the information may have originated from or be stored, constitutes for Trade-marks Act purposes, use and advertising in Canada.” (at para 22) On the one hand, the statement offers nothing particularly surprising – it is not controversial to find that use on a website can constitute “advertising” for the purposes of determining use in relation to services under s. 4(2). However, the statement falls short in that it fails to clarify that this finding is limited to use in relation to services; a mark being featured on a web site is, on its own, not a use in relation to wares. Further, the statement appears to conflate the issue of whether featuring a mark on a website is advertising with the broader issue of whether a trademark has been used in Canada. As noted earlier, the person entitled to register the mark is the person who has first used the mark in Canada, and the case law is clear that for this to happen the services in question must not just be advertised in Canada – they must also be offered in Canada.

 

Although the statement taken at face value is controversial, the decision in the case is not particularly troubling. Indeed, Justice Hughes is aware of the importance of the services being offered in Canada, even though he does not refer to the relevant case law. He finds that HomeAway not only advertised its services in Canada, it entered into contracts with Canadians to list their vacation properties, and the site was used by Canadians to find vacation rental properties. It is just unfortunate that the rather elliptical way in which the decision was framed can lead to the impression that a trademark will be considered to be “used” in Canada simply by virtue of the fact that it can be seen on websites accessible to Canadians over the Internet. This is certainly not true in the case of wares, and is only true, in the case of services, if the services are also genuinely available to Canadians.

Monday, 07 January 2013 10:51

Copyright in Public Documents

Who owns copyright in documents created by private individuals for public purposes? This issue has been raised in at least two recent motions for certification of class action law suits for copyright infringement in the Ontario Superior Court.

The first of these, Waldman v. Thomson Reuters Corporation, resulted in the certification of a class action in February 2012. The plaintiff represents lawyers in private practice who object to the incorporation of court documents authored by lawyers into the defendant’s commercial databases without consent or compensation. The documents at issue include pleadings, notices of motions, affidavits and factums. All of these documents must be filed in court, and become part of a public record during the course of litigation. These court documents are already available to the public through different channels – for example, the public can obtain copies of documents in court records by visiting a court office and by paying the prescribed fees. Some documents are also now made available online by courts. The plaintiff in the class action suit in Waldman objected to the inclusion of these same documents in a commercial, for-profit service.

More recently, the Ontario Supreme Court has refused to certify a class action lawsuit brought by a land surveyor who objected to the inclusion of land survey documents in Ontario’s online land registry system Teranet. Copies of documents in Teranet are available to the public for a fee. The plaintiff in Keatley Surveying Ltd. v. Teranet Inc. argued that the survey documents were works in which copyright subsisted and their inclusion in the database without licence or compensation was a violation of those copyrights.

Both cases raise interesting issues regarding privately authored documents that are drafted as part of public processes, and that must necessarily be accessible to the public as a matter of public policy. Indeed, David Vaver has argued, in an article about the specific issue of copyright in legal documents, that in addition to the usual fair dealing exceptions in the Copyright Act, there may also be arguments around custom and public policy that permit copying without need for permission. Of course, this does not address the issue of whether a private company can commercialize access to the public documents without licence or compensation, and it will be interesting to see the outcome of the Waldman case.

The Keatley motion to certify was rejected by the court because it did not meet any of the criteria for certification of a class action. Among other things, the court was not convinced that there was an identifiable class of similarly affected individuals for the plaintiff to represent. This was because many prominent surveyors and land survey companies were involved in the design and creation of Teranet, and it was not clear whether any other surveyors in Ontario shared the plaintiff’s views on the copyright issues. Further, the court noted that membership in the proposed class would depend on the outcome of the litigation – the proposed class defined itsmembers as those who were holders of copyright in land survey documents, and one of the issues to be determined was whether land surveyors actually had copyright in their documents. If they did not, there could be no member of the class.

Nevertheless, there were some interesting issues raised in the lawsuit, and it is unfortunate that their consideration must be left to another day. For example, Teranet argued that if there is copyright in the land surveys, it lies with the provincial Crown. Crown copyright arises under s. 12 of the Copyright Act where a work is “prepared or published by or under the direction or control of Her Majesty or any government department”. Teranet argued that the provincial laws and regulations governing the creation and use of plans of survey amounted to direction or control over the creation of the works by the Crown. In the words of the court, “Legislation dictates the manner in which the survey is conducted, the content of the plan of survey, the form of the plan, and even details of the plan’s physical appearance, such as the type of paper used, the shape of the paper and the type of ink used.” (at para 102). If this type of direction or control can be said to give rise to Crown copyright, it might have interesting implications for a very broad range of other documents and data prepared under strict rules, standards or guidance – including, perhaps, some legal documents prepared for and submitted to courts.

Teranet also argued that Ontario’s Land Titles Act and the Registry Act both provide that deposited and registered plans are the “property of the Crown” and that this supports a finding of Crown copyright in the documents.. Of course, this same wording could easily be interpreted to refer to property rights in the physical document and not the underlying intangible intellectual property rights. Since copyright is a matter of federal jurisdiction and since s. 12 of the Copyright Act specifically addresses the circumstances in which Crown copyright arises, an interpretation of provincial legislation that creates a new basis for Crown copyright (the deposit and registration of documents) might take the legislation beyond the scope of provincial competence. Nevertheless, the court was of the view that “a compelling case can be made that copyright belongs to the Crown, based on s. 12 of the Copyright Act and the statutory regime that governs plans of survey”( at para 113), although it stopped short of actually drawing this conclusion. This is a complex and interesting question, and one with implications in many other contexts.

While Waldman will not answer these specific questions, it may provide some important insights on issues of fair dealing, custom and public policy (certainly, in the case of land surveys there has been a longstanding practice of providing copies to members of the public for a fee – even prior to the development of Teranet). These arguments, which provide a justification for the exercise by others of the exclusive rights of authors, seem far preferable to arguments that the state has expropriated these same rights through the creation of a registry system.

Thursday, 06 December 2012 10:25

Canada's New Draft Open Government Licence

The federal government has released a new proposed Open Government Licence – Canada (OGL-C) through its Open Data Portal. This licence agreement is not currently in effect; data available through the portal is still licensed under the existing Licence Agreement. The planned release of the OGL-C is in the spring of 2013.

The OGL-C has been a very long time in the drafting, and this draft is most welcome. The government is now seeking feedback on it – at the conclusion of the licence posted online is a fillable form that invites direct comments by the end of January 2013. The Licence Agreement currently in effect is also an open licence, but it suffers from excessive legalese. In contrast to other open licences it sets a tone that might make anyone feel that they should seek legal advice before using the government’s data sets. It contains language such as the following: “Intellectual Property Rights in any modification, translation or further development of the Data or in Value-Added Products made by you in the exercise of your rights under this Agreement, shall vest in you, in such person as you shall decide, or as determined by law.” It is hardly transparent and inviting language.

The proposed OGL-C is much more along the lines of Britain’s Open Government License (OGL), and indeed, the explanatory paragraphs that accompany the licence note that it is based upon this license. Interestingly enough, British Columbia also modified the British OGL, and has been using its modified version of this licence for some time now. The OGL-C and the BC-OGL are similar, but there a number of differences. Some of these are attributable to the distinct licensing parties, other differences may be due to a desire to further simplify the licence, and still others are difficult to understand.

There are several features of the OGL-C which deserve a second look before it becomes operational. First, “information” is defined in the licence as “information protected by copyright or by database right offered for use under the terms of this Licence” [emphasis added]. Since there is no database right in Canada, it makes no sense for this term to be included (it is also used in the definition of “Use”, where it refers to “doing any act which is restricted by copyright or database right”). The reference to database rights is found in the British OGL, since in that jurisdiction there are separate database rights. However, there is simply no reason why reference to rights that do not exist in Canada should be included in a licence meant to be simple, open and accessible. The BC-OGL, adapted to the Canadian context, refers only to copyright.

Like the BC-OGL licence, the OGL-C explicitly excludes any right to use personal information. Unlike the BC-OGL, however, the OGL-C uses the term “personal data” and provides no definition of this term. Since federal data protection laws (both PIPEDA and the Privacy Act) govern the collection, use and disclosure of “personal information”, it makes sense to use this term, rather than “personal data” (which is the British term, used in the British OGL). It should also be noted that the French version of the licence uses “renseignements personnels”, which is normally translated as “personal information” in the federal legislation. Further, it would be helpful to provide (as is the case in the BC-OGL) a definition of “personal information” as this is an important concept, and one which goes well beyond, for example, name and address information. This can be done by reference to the governing privacy statute (as is done in the BC-OGL and the British OGL), or it could also be done through the use of the common portion of most Canadian definitions of personal information: “information about an identifiable individual.”

The licence is also somewhat muddy in its use of two terms – “the Information Provider” and the “Licensor”. The BC OGL uses only “Information Provider” and defines this as Her Majesty the Queen in right of the Province of British Columbia. By contrast the British OGL uses the same structure as the OGL-C, and separately defines the Information Provider and the Licensor. However, the definition of Licensor in the British OGL is much more detailed. It is not clear that this complicated distinction needs to be carried through to the OGL-C. Indeed, the complexity of the British definition of “Licensor” is abandoned in the OGL-C, with the result that under the OGL-C, the “Information Provider” is defined as “the person or organization providing the Information under this Licence” and the “Licensor” is defined as “any Information Provider which has the authority to offer Information under the terms of this Licence”. Defined in this way, using two separate terms seems unnecessary and confusing. Further, there is no mention that the actual holder of copyright in government data or documents is Her Majesty the Queen in right of Canada, and that if any third party rights have been licensed to the Crown, Her Majesty will also be the one authorized to licence them further. What the double terminology seems to suggest instead is that Information Providers are Licensors only when they have the “authority” to license the information, presumably from Her Majesty the Queen in Right of Canada. This implies that there might be some rogue Information Providers who do not qualify as Licensors. It would be far simpler to adopt the structure used in the BC-OGL and simply acknowledge that where the information is provided by a department or agency of government, the Information Provider is acting on behalf of Her Majesty, and is entitled to licence the Crown copyright in the information. In other words, the legalistic term Licensor should be ditched in favour of Information Provider, and the Information Provider should be, ultimately, her Majesty the Queen in Right of Canada.

These criticisms aside, the OGL-C is a marked improvement over previous attempts at drafting open licences for federal government data. The licence is meant to be simple and accessible, and is designed to encourage rather than stifle the re-use of government information. Its reliance on the British OGL shows a willingness not only to build on the experience of others, but also to develop a licence that will have some measure of interoperability with other open licences around the world. Let’s hope that the process remains on track, and that the revised licence will indeed be adopted for use by spring 2013.

 

Electronic Commerce and Internet Law in Canada, 2nd Edition, CCH Canadian Ltd., 2012 (with Michael Deturbide).

Electronic Commerce and Internet Law in Canada, 2nd Edition is a definitive resource on Internet and e-commerce law from Canada’s leading IT law experts, Teresa Scassa and Michael Deturbide.With a Foreword written by Justice Thomas Cromwell of the Supreme Court of Canada, this latest edition’s extensive coverage addresses the vast changes that have taken place in this dynamic and rapidly evolving field.Highlights in the new edition include:

* New Copyright Act amendments

* Trademark issues online

* Online contracting, including browse wrap agreements

* Personal information protection in the private sector

* Software and e-business patents

* Consumer protection online

* Canada's new anti-spam legistlation

* Online Anonymity

* Regulation of online speech

* Intermediary liability

* Web-based competition

* Internet domain names

* Jurisdictional issues

A foodie furore has erupted in Ottawa over the decision of Service Ontario to cancel the registration of the name “Union Local 613” for an Ottawa restaurant. The popular and well-reviewed restaurant has been in operation since July 2012 and its website indicates that the name was chosen to reflect a “Brotherhood of Cookers, Eaters & Drinkers”. The number 613 is the area code for the Ottawa region.

The decision by Service Ontario was made under the Business Names Act, which provides, in section 4(7) that the registrar of business names may cancel a registration where the name “does not comply with the prescribed requirements” of the legislation. These requirements are set out in the Restrictions Respecting Names. Article 4(7) of the regulations states that “A name shown in a registration must not use a word or expression that would suggest that the registrant is a form of organization that the registrant is not.” Clearly, the concern of the Registrar is that the reference to a union local might suggest to the public that the restaurant is run by or affiliated with a union. The owners of the restaurant have a right to appeal the decision of the Registrar to the Divisional Court.

The wording of the regulation is such that it is triggered where a name “would suggest” a different form of organization. This is not a confusion standard – the issue is not whether there is a likelihood that the public would be confused or misled into thinking that the restaurant is somehow associated with a particular union. Clearly, the uproar in the blogosphere regarding the province’s decision would suggest that actual and prospective patrons of this popular eatery are not at all confused. The restaurant’s website gives prominent place to its slogan “Brotherhood of Cookers, Eaters & Drinkers”, and for those who visit the restaurant or its website, the risk of confusion seems small. Yet with a much lower threshold for rejecting the name in the regulations – a mere suggestion – the chances of success on appeal may be small.

The principle served by article 4(7) is a legitimate one. To allow names that might lead members of the public to think they were dealing with charities, unions, non-profits, or other types of organizations when in fact they are not, could put the public at risk of potentially harmful deception. Yet in this case, any “suggestion” that the restaurant is somehow union affiliated seems utterly remote since the kinds of services offered by unions to their membership typically do not involve food. One cannot help but feel sympathy for the restaurant owners who have already built considerable goodwill in a name that was chosen specifically to evoke a spirit of foodie solidarity in the Ottawa region.

 

NOTE: October 25, 2012 - It is reported in the news that Service Ontario has decided to allow Union Local 613 to keep their name. Apparently, the fact that the name had initially been registered, and that the restaurant had already acquired substantial goodwill under that name, prompted a reconsideration. The media attention to the issue probably also played a role.

 

Volunteered geographic information (VGI) is a relatively recent and rapidly emerging phenomenon. In general terms, it involves the dissemination of geographic information, or of other information placed in geographic context, by individuals or groups of individuals. This would cover collaborative online mapping projects such as Wikimapia and OpenStreetMap, where individuals contribute geographical information to crowd-sourced maps. It would also cover a broad range of other types of user-generated map content. This can include the mapping of information by an individual or group of individuals (see, for example, the maps created by Patrick Cain), or the crowd-sourcing of information that is placed in a geographic context (consider, for example, the disaster maps created in the wake of the Fukishima nuclear disaster, or the earthquake in Haiti). While VGI projects may be led by amateurs, VGI is increasingly being considered as an important source of geographic information by private sector companies and by governments. For example, both TomTom and Google have found ways to incorporate geographic information supplied by users into their products, and governments are also considering ways in which VGI may be used to enhance existing maps or databases.

Volunteered geographic information may simply be raw geographic data (such as the co-ordinates of a point of interest). However, there is no limit to the kind of information that can be placed in geographic context. VGI may include geo-referenced photographs; it may also include text descriptions of places, objects or phenomena, audio or video content. It is a form of user-generated content (UGC) that is distinctive because the content is situated in relation to physical space. VGI shares other characteristics of the broader UGC phenomenon in that it is made possible by the broad accessibility of the tools and devices necessary to enable ordinary individuals without special skills or training to participate in the creation and dissemination of knew knowledge and content. Easily available tools such as the Google Maps application programming interface (API), or sites such as Tagzania.com or Wayfaring.com support the creation of maps by non-experts. Hand held GPS devices (now available on most smart phones) also give ordinary individuals powerful tools to record and transmit relatively precise geographic data.

Volunteered geographic information may be relied upon for a variety of reasons. As with other crowd-sourcing initiatives, VGI may offer an alternative to commercial products. In some cases, crowd-sourced maps may fill in gaps in the market, as where the mapping of a particular region or phenomenon is not a priority for commercial map publishers. Projects that place other types of information in geographic context can offer new ways of thinking about social, economic or political phenomena. Crowd-sourced disaster maps may offer real-time tools for dealing with rapidly developing events. In some cases, VGI initiatives offer a means of gathering information that might otherwise be too difficult or too costly to collect.

The legal and ethical issues raised by the VGI phenomenon are only now beginning to be explored. The mapping of VGI can raise a wide range of privacy issues. Further, as with many other types of UGC, intellectual property rights issues may frequently arise. Concerns have also been raised about the potential liability not just of those who publish or host VGI-based maps, but also of those who contribute data to such projects. In a recent article I explore identify and examine a number of these issues from the perspective of the host of VGI content, the supplier of VGI, and the user of VGI-based products or services.

I recently blogged for FreeSpeechDebate.Org about free speech, ambush marketing and the London Olympics. The posting is available here:

http://freespeechdebate.com/en/discuss/guilt-by-association-the-london-2012-olympics/

On July 12th the Supreme Court of Canada handed down five decisions on copyright law. Collectively these five judgments send a strong message as to the interpretation of the rights of both owners and users of copyright protected works.

In terms of owners’ rights, two of the decisions deal with the scope of the economic right to communicate a work to the public by telecommunication. A third decision addresses the scope of the neighboring right of performers and makers of sound recordings to be remunerated for performances of these works in public or for their communication to the public by telecommunication. The core issue in Entertainment Software Association and Entertainment Software Association of Canada v. SOCAN was whether a tariff could be applied to music incorporated into video games downloaded over the internet. Music is frequently a part of video games, and the makers of video games negotiate the rights to include this music in their products. No separate tariff is applied when such games are purchased by consumers from brick and mortar stores. The issue in this case was whether when the games were sold over the internet as downloads, the songs were communicated to the public by telecommunication. This would implicate a separate economic right of the music copyright holders, and would thus eligible for the imposition of a tariff. Similarly, in Re: Sound v. Motion Picture Theatre Associations of Canada the issue was whether a right of remuneration for music that formed part of movie soundtracks, the use of which would already have been negotiated with the rights holders, was triggered by each time the movie was screened, streamed or broadcast In Rogers Communications Inc. et al v. SOCAN, the issue was whether music streamed over the internet to consumers “on demand” was a communication to the public by telecommunication, to which a tariff could be applied.

In reaching its decisions in these three cases the Court demonstrated both a commitment to the “balancing” approach it had initiated with its 2002 decision in Théberge, and a concern that the Copyright Act be interpreted in a technologically neutral manner. The Court found that in the case of music incorporated into video games, the right to incorporate the music into the game had already been negotiated and paid for by the makers of the video games. The only distinction between the context in which the game was sold in stores and where it was sold over the internet was the manner in which the game was delivered to the consumer. According to the majority of the Court, “it makes little sense to distinguish between the two methods of selling the same work.” (at para 1). To decide otherwise, according to the majority, would “violate[] the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”(at para 2). In the context of online sales of the games, the internet functioned simply as a means of delivering the work to the customer who paid for the work. The majority rejected an approach that would allow for two fees – one for reproduction and one for communication – to be charged simply because of the mode of delivery chosen for the work. The decision has significant ramifications for any work that is made available online for legal downloading, whether it is a movie, game, musical work or electronic text.

In Rogers, the court distinguished between using the internet to download music files from the internet (which would be analogous to the purchase of a video game over the internet, and thus not subject to a separate royalty for communication to the public) and the streaming of music to customers over the internet. In the latter case, musical works were being communicated over the Internet, and these communications were to “the public” notwithstanding the fact that “pull” technology was used such that the works communicated were dependent upon the choices of individual consumers. In reaching the decision the Court also emphasized the principle of “balance” noting that such a balance “is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same.” (at para 40). Thus in the case of consumers acquiring copies of musical or other works, the internet is used as a delivery mechanism and the work is not “communicated” in a broadcasting sense. By contrast, where the work is streamed, the act is one of communication in a manner that is equivalent to broadcasting.

The Court’s decision in Re: Sound is along the same lines. The Copyright Act provides that performers and makers of sound recordings have a right of remuneration with respect to the performance in public or the communication to the public by telecommunication of their performances or sound recordings. The Act contains an exception; the definition of a “sound recording” excludes “any soundtrack of a cinematographic work where it accompanies the cinematographic work”. On the face of it, this appears quite straightforward. The producers of a movie that is to include a musical work must clear the rights to use the work in the movie; the licensing fee would no doubt take into account the fact that the movie is intended to be shown in cinemas and made available for broadcast or other forms of communication to the public by telecommunication. Therefore, it is unnecessary to provide for additional remuneration for rights holders in these circumstances. This is, indeed, the interpretation adopted by the Supreme Court of Canada.

These decisions on the rights of copyright owners seem eminently sensible. They respect the right of the copyright owner to be remunerated for a commercial use of their work; at the same time, they resist what seems to have emerged as an industry practice to layer rights and royalties on single economic acts. The result is clear, straightforward, practical, and ultimately balanced.

The other two decisions of the Supreme Court of Canada dealt with the ‘users’ right’ of fair dealing. Prior to the decision in CCH Canadian, fair dealing had been treated in Canada as a rather limited exception to the rights of copyright holders. In CCH Canadian, the Supreme Court of Canada established it as a users’ right, and emphasized its role in maintaining the balance between public and private interests under the Copyright Act. In SOCAN v. Bell Canada, the Court was asked to consider the scope of fair dealing in relation to the practice of online music sites of providing previews consisting of short excerpts of musical works to customers searching for music to download from their sites. The collective societies sought a tariff that could be applied to such previews, arguing that they constituted a communication to the public by telecommunication of a substantial part of each work, thus engaging the economic rights of the copyright owner. The music providers argued that previews were consulted by customers as a form of research into the music they wished to purchase; as a result, they were fair dealing for the purposes of research under the Copyright Act. The unanimous Court ruled that these previews were fair dealing. They reiterated the view that fair dealing rights must not be interpreted restrictively, and maintained that “research” must be given a large and liberal interpretation. The Court rejected the idea that “research” could only refer to activities that led to the creation of new works or new knowledge. They maintained that “[t]o do so would ignore the fact that the dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest.” (at para 21). The Court found that there was a low threshold for qualifying activities as ‘research’ and that this threshold was met in this case. On the issue of whether the dealing was ‘fair’, it had been argued that the music sites made previews available to customers for essentially commercial purposes, mitigating against a finding that the dealing was fair. However, the Court was of the view that it was the purpose of users that should be considered; in this case, they used the previews “to help them research and identify musical works for online purchase.” (at para 34). The Court examined the nature of the dealing, noting that the excerpts were of 30 to 90 second portions of the work and were of a quality inferior to the musical work available for sale. The Court also rejected an approach to evaluating the volume of dealing with the work on an aggregate basis (i.e., not in relation to the portion of each work accessed, but rather the aggregate number of excerpts accessed by consumers). They noted that such an approach might undermine the goal of technological neutrality, since it would mean that “most of what online service providers do with musical works would be treated as copyright infringement.” (at para 43) The court noted as well that the previewing of musical works did not have a negative effect on the economic rights of the owner of copyright; rather, the goal of providing previews was to facilitate sales of the works, for which the copyright owners would be compensated.

The decision in Province of Alberta v. Access Copyright is likely to be the most controversial of the five decisions. This case addressed a dispute over what types of in-school copying activities could be captured by the tariff for reprography. As photocopying that was fair dealing would be excluded from the tariff, the dispute focussed on whether copies made of excerpts from text books for distribution to students for class instruction amounted to fair dealing. According to a 5-4 majority of the Court, it did. The majority declined to separate the teachers’ purpose (instruction) from that of the students (private study). Instead, they characterized the role of the teachers as to support and facilitate the research and private study of their students. The majority wrote: “It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.” (at para 23). The majority described this as a “symbiotic purpose” between students and teachers. They characterized the provision of photocopied materials to students by teachers as “an essential element in the research and private study undertaken by those students.” (at para 25) Further, the majority rejected an interpretation of “private study” that focussed on the term “private” – in their view, this term “should not be understood as requiring users to view copyrighted works in splendid isolation.” (at para 27)

Having found that the copying of excerpts was for “research or private study” the court next considered whether this dealing was “fair”. They found that it was. As in SOCAN v. Bell, they rejected an approach that considered the volume of dealing on an aggregate basis; instead each excerpt had to be considered in relation to the work from which it was taken. The majority found no reasonable alternative to the dealing; purchasing the books for each student was not a reasonable alternative given that only short excerpts were required. The Court also found the evidence of the economic impact of the copying on textbook publishers to be unconvincing. They noted that there was no causal link between a decline in textbook sales and the copying of short excerpts, and that other factors could more easily explain the decline in sales. Further, they found that it was not reasonable to assume that if the copying did not take place, that the books from which the excerpts were taken would be purchased for all students. The court noted that “it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.” (para 36).

This decision is of great significance in the educational sector because of its broad definition of “research and private study” and its interpretation of the teachers’ role in their students’ activities. It is also of great significance because it will guide the interpretation of “education” as a new basis for fair dealing introduced by the recently passed Bill C-11. The educational sector in Canada has long been squeezed for royalties by Access Copyright. Resistance to Access Copyright’s licences has been growing, in part because of the under-inclusiveness of such licences when it comes to activities perceived as fair dealing. This decision by the Court sends a strong signal that fair dealing for the purposes research, private study, and now education must receive a large and liberal interpretation and must reflect the rights of users to access works, without payment of fees or need for a licence, to achieve these purposes.

Overall, the five decisions are a strong indication that the Supreme Court of Canada remains committed to the approach to copyright law which it laid down in Théberge and CCH Canadian. Their approach is pragmatic and straightforward. It rejects interpretations of the legislation that allow rights holders to layer economic rights in order to maximize revenues for discrete uses of works. It also makes it clear that fair dealing is a significant users’ right that should be given a generous construction consistent with the public interest it serves. The Court’s approach focuses on balance, and ultimately upon common sense.

Wednesday, 06 June 2012 09:39

Location-Based Services and Privacy

“Location-Based Services and Privacy”, (T. Scassa & Anca Sattler) (2011) 9:2 Canadian Journal of Law and Technology 99-134

The last decade has seen a rapid growth in the number and variety of location-based services that are available to consumers. While some of the older location-based services are tools such as GPS and other navigation systems, more recent innovations include applications that permit users to call up a variety of different information about their current locations, such as the nearest Italian restaurant, or the best deals at a favourite store. Location-based services (LBS) also allow individuals to share their location with friends in a wide range of social networking contexts. Location-based services are already shifting from pull to push applications. Information can now be pushed automatically to users based on their location. The options for such services are virtually limitless, and include mobile-marketing, public transportation applications, information about local points of interest, health care applications connected to remote treatment systems, or tools to find the closest election-day polling booth.

There is no doubt that many location-based services offer real benefits to users. Yet location-based services raise inevitable user privacy concerns. These concerns operate on multiple levels and involve many players. In some applications, privacy issues will arise between individual users, where, for example, applications permit the tracking of movements of family members, co-workers or “friends”. Location-based services may also result in the collection of a new layer of personal information about consumers by private sector companies. Information about individuals and their movements has meaningful commercial value, and the potential for the collection, use and disclosure of this information is significant. Location-based services also raise the spectre of state surveillance of individual activity – either concurrent with an individual’s movements (tracking), or retrospectively, through searching records of individual patterns of movement. These are just some of the contexts in which privacy issues are raised.

In this paper we describe location-based services, their evolution and their future directions. We then outline privacy issues raised by such services. We consider how current Canadian data protection laws apply to location-based services, and indicate where such laws fall short of addressing the full range of issues raised by location-based services. We also explore some technological methods to address the privacy challenges raised by location-based services. The paper concludes with a series of recommendations.

“New First Principles? Assessing the Internet’s Challenges to Jurisdiction”, (T. Scassa & R. Currie) (2011) 42:4 Georgetown Journal of International Law 1017-1082

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on any one substantive area. This article argues that while the Internet may push at the boundaries of traditional principles of jurisdiction in public international law, it has not supplanted them. The article explores the principles of jurisdiction, including the evolving concept of “qualified territoriality,” and demonstrates how these principles continue to apply in the Internet context. The article examines how states exercise their authority with respect to Internet activities by addressing governance issues, by engaging in normative ordering for the Internet, and by extending the reach of their domestic laws to capture Internet-based activities. Lastly, the article concludes by offering a set of “first principles,” in the form of policy precepts, to guide the evolution of public international law norms and to address problems particular to the context of the global Internet.

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