Teresa Scassa - Blog

Teresa Scassa

Teresa Scassa

“Consumer Privacy and Radio Frequency Identification Technology” (with Theodore Chiasson, Michael Deturbide and Anne Uteck, (2005-2006) 37 University of Ottawa Law Review 215-248

Radio Frequency ID tags are poised to replace the UPC barcode as a mechanism for inventory control in the wholesale and retail contexts.  Yet the tiny chips offer a range of potential uses that go beyond the bar code.  In this paper we define RFID technology and its applications.  We explore the privacy implications of this technology and consider recent attempts in the U.S. and European Union to grapple with the privacy issues raised by the deployment of RFIDs at the retail level.  We then consider the extent to which Canada’s Personal Information Protection and Electronic Documents Act  will apply to RFID technology, before making recommendations for initiatives to proactively address the privacy issues that RFIDs will raise.

“Distinguishing Functional Literary Works from Compilations: Issues in Originality and Infringement Analysis”, (2006) 19 Intellectual Property Journal 253-269

In CCH Canadian v. Law Society of Upper Canada, the Supreme Court of Canada set out the standard for originality in Canadian copyright law.  Originality was a central issue in the recent decision of the Quebec Court of Appeal in Bonnette c. Dominion Blueline Inc.  In this paper, the author examines how the Court of Appeal applied the new standard of originality.  In the course of the analysis, the author establishes the importance of properly distinguishing between functional literary works and compilations both for an analysis of originality and for the infringement analysis.

“Using Copyright Law to Prevent Parallel Importation:  A Comment on Kraft Canada, Inc. v. Euro Excellence, Inc.”, (2007) 85 Canadian Bar Review 409-432

In Kraft Canada, Inc. v. Euro Excellence, Inc., the Federal Court of Appeal ruled that the secondary infringement provisions of the Copyright Act could be used to prevent the parallel importation into Canada of chocolate bars, due to copyrights in the trade-mark logos on the product labels.  The effect of this decision, currently on appeal to the Supreme Court of Canada, is to give trade-mark holders a tool to prevent parallel importation in contexts where trade-mark law has generally been ineffective.  While the use of copyright law to achieve a result in these circumstances is problematic, the author argues that the solution lies in legislative amendment rather than in creative interpretations of the Copyright Act.

“Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization” (2007) 6 Canadian Journal of Law and Technology 29-60. (With Stephen Coughlan, Robert Currie and Hugh Kindred) PDF Available here.

The reach of national law is often greater than its grasp. Canada, like other countries, has effective legal power over its territory and all within it. However, one consequence of the current process of globalization, for good or ill, is that Canadian interests are no longer contained exclusively within Canadian borders. Canada thus finds it increasingly necessary to consider asserting its legal jurisdiction beyond its frontiers. In this we consider issues of jurisdiction, distinguishing between territorial and extraterritorial jurisdiction, and defining and discussing legislative/prescriptive jurisdiction, executive/enforcement jurisdiction, investigative jurisdiction and judicial/adjudicative jurisdiction. We discuss the mechanics of extraterritorial action, and  the means by which extraterritorial action is taken.  We also consider the policy justifications which have primarily motivated Canada to act extraterritorially in the past. In the second part of the paper, we consider whether the lessons of the past are applicable to the future. Primarily we will do this by pursuing four “case studies” of areas of law which raise new and challenging issues. These include i) the internet; ii) personal data protection, iii) human rights and iv) competition in the marketplace.

“The Doctrine of Functionality in Trade-mark Law Post-Kirkbi”, (2007) 21 I.P.J. 87-115.

The doctrine of functionality has long served to prevent the creation of trade-mark monopolies over the functional features of wares. In Kirkbi AG v. Ritvik Holdings Inc., the Supreme Court of Canada emphasized the policy basis for the doctrine which it described as “a logical principle of trade-marks law”.  In this article, the author examines the Kirkbi decision and identifies a number of issues which remain unresolved by the Court’s reasons.  These include the reconciliation of approaches to functionality in earlier court decisions, the role of prior patents, the scope of the doctrine of functionality, issues of utility and ornamentation, and the subject matter to which the doctrine applies.

“Information Privacy in Public Space:  Location Data, Data Protection and the Reasonable Expectation of Privacy”, (2009) 7:2 Canadian Journal of Law and Technology 193-220. PDF available here.

The sheer volume of location data that is now being collected by private sector companies in relation to a wide range of products and services poses serious challenges for privacy and data protection law.  This paper considers a central challenge to privacy posed by the collection and compilation of location data  -- the accessibility of this data to law enforcement agents through exceptions to the general principles of consent for disclosure that exist under private sector data protection legislation in Canada.  Recent court interpretations of these exceptions – primarily in the internet context – paint a muddled picture of their relationship to the right to be free from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms.  This paper considers whether the permissive disclosure provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and its substantially similar counterparts mean that law enforcement agents have ready access to information about our movements and activities, or whether s. 8 of the Charter plays a role in limiting the circumstances in which disclosure without notice or consent may take place.

“Intellectual Property and the Licensing of Canadian Government Geospatial Data: An Examination of Geoconnections’ Recommendations for Best Practices and Template Licences”, (2010) 54:3 Canadian Geographer 366-374 (with Elizabeth F. Judge) PDF Available here.

In Canada, Crown copyright permits government to assert control over its works.  These Crown rights have often been justified on the basis that government must assert intellectual property rights so as to be better able to control the accuracy, integrity, and quality of any information that reaches the public through Crown works. In this article, the authors examine GeoConnections’ template agreements for the licensing of government geographic data.  They argue that not only is the basis and scope of claims to intellectual property rights uncertain, the objectives of quality control, data integrity, and accuracy do not appear to motivate the licence terms. The uncertainty as to the legal basis of the intellectual property claims is significant, as licences of this kind may give support to otherwise weak downstream claims by third parties to copyright in data products generated through the use of geographic data provided by the Crown.

“Overbalancing:  The Supreme Court of Canada and the Purpose of Canada’s Copyright Act”, (2010) 25:2 Canadian Intellectual Property Review 181-204


This paper examines how this concept of ‘balance’ evolves in decisions of the Supreme Court of Canada, from the landmark decision in Théberge c. Galerie d’Art du Petit Champlain to the most recent decision in Euro-Excellence Inc. v. Kraft Canada. It offers a critique of the notion of “balancing” as developed by the Supreme Court of Canada.  The paper argues that this “balancing” approach is not supported by the language of the Copryight Act, that it is incoherent as a tool for statutory interpretation, and that it is ultimately inconsistent with the role of the judiciary.  The paper argues that rather than being in opposition to one another, the goals of protecting the rights of creators and encouraging access to and dissemination of works are often served by the same measures.  The paper suggests that the deep divisions at the Supreme Court of Canada in Robertson v. Thompson Corp. and in the Euro-Excellence case illustrate the failings of the Court’s “balancing” approach, and it argues for a more nuanced view of the public policy underlying copyright law.



“The Inadvertent Disclosure of Personal Health Information through Peer-to-peer File Sharing Programs”, in JAMIA 2010 17: 148-158 ( Journal of the American Medical Informatics Association) (with K. El Emam, E. Neri, E. Jonker, M. Sokolova, L. Peyton, & A. Neisa)

There has been a consistent concern about the inadvertent disclosure of personal information on peer-to-peer file sharing networks. Examples of personal health and financial information being exposed have been published. This paper estimates the extent to which personal health information (PHI) is leaking in this way, and compare that to the extent of leakage of personal financial information (PFI). The paper concludes that there is a real risk of PHI leakage on peer-to-peer file sharing networks, although the risk is not as large as for PFI. Custodians of PHI should not install file sharing applications on their computers, and individuals need to be educated about the proper use of file sharing tools to avoid inadvertent disclosure of their, their family’s, their clients’, or patients’ PHI.

Journalistic Purposes and Private Sector Data Protection Legislation: Blogs, Tweets, and Information Maps” (2010) 35 Queen’s Law J. 733-781

This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems which will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exception in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions pertaining to the purpose and scope of these exceptions. Recent case law serves to illustrate the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege cases, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She compares how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.

 

 

This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems which will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exception in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions pertaining to the purpose and scope of these exceptions. Recent case law serves to illustrate the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege cases, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She compares how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.

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