Intellectual Property Law Commons^™

Harmonizing European Copyright Law: The Challenges Of Better Lawmaking, Mireille Van Eechoud, P Bernt Hugenholtz, Stef Van Gompel, Lucie Guibault, Natali Helberger

Articles, Book Chapters, & Popular Press

Nobody likes today’s copyright law. Widespread unauthorized use of copyright material proliferates with impunity, while citizens and users protest that intrusive copyright and related rights law stifle cultural expression. Equipment manufacturers and intermediaries complain about yet more ’security’ features that complicate their products and services and encumber marketing, while content owners desperately want enforcement to work. And of course it is crucial that whatever regulatory instruments come into play must not age prematurely in Internet time. The European Union faces the daunting challenge of articulating coherent copyright policies that satisfy these contradictory multiple demands. Yet the legal framework must conform …

Demythologizing Phosita: Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain & Foster Innovation, Matthew Herder

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical “selection patent” case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped the Court’s attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the “person having ordinary skill in the art” (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding of innovation, …

Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho

Articles, Book Chapters, & Popular Press

South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …

Accommodating The Needs Of Iconsumers: Making Sure They Get Their Money’S Worth Of Digital Entertainment, Lucie Guibault

Articles, Book Chapters, & Popular Press

The current methods of distributing music and film on the mass-market, either off-line or on-line, raise two types of consumer protection issues. First, consumers are not always in a position to know what they can and cannot do with their digital hardware and content. A lack of proper information and the ensuing failure of the products to meet the consumer’s expectations inevitably leads to discontent. In addition, as weaker party in the transaction, consumers have often no other choice but to accept or refuse the restrictive terms of use, even if these could be regarded as unfair. This paper examines …

Asking For Money Back - Chilling Commercialization Or Recouping Public Trust In The Context Of Stem Cell Research?, Matthew Herder

Articles, Book Chapters, & Popular Press

As publicly funded institutions have increasingly embraced the goal of commercializing scientific research, concerns about private appropriation have become familiar refrain. One commonly suggested remedy is to create some kind of 'recoupment' provision whereby the State, on behalf of the public, receives a certain percentage of profits realized. The Bayh-Dole Act originally included a recoupment provision but it was deleted by a legislative committee. Countries around the globe attempting to emulate Bayh-Dole have, whether by design or default, reinforced the underlying logic against recoupment, which is essentially as follows: obligations to provide direct financial returns undermine the commercialization process and …

Network Neutrality: Justifiable Discrimination, Unjustifiable Discrimination, And The Bright Line Between Them, Noel Semple

Canadian Journal of Law and Technology

This paper proposes a bright line test to guide the Canadian Radio-television and Telecommunications Commission (‘‘CRTC’’) in regulating ‘‘network neutrality’’. When Internet service providers seek to discriminate between uses and users in administering their networks, the CRTC should ask whether the proposed discrimination is a reasonable effort to make the price paid by each user commensurate to the demands which his or her use places on the network. Discrimination which meets this description should be tolerated if not actively encouraged, because it encourages the economically efficient allocation of scarce bandwidth. All other forms of ISP discrimination — including discrimination based …

Electronic Records As Documentary Evidence, Ken Chasse

Canadian Journal of Law and Technology

The new electronic record provisions that are now part of almost all of the Evidence Acts in Canada are as important as any statutory law or common law concerning the use of records as evidence. They bring six important improvements to the evidentiary law of business records. It is argued, however, that their most serious defects are that they: (1) perpetuate the best evidence rule — a rule rendered redundant by electronic records and information management (RIM); (2) do not deal with hearsay issues; (3) do not cure the defects of the business record provisions in regard to electronic records; …

The Adverse Economic Effects Of Spectrum Set-Asides, Robert W. Crandall, Allan T. Ingrahm

Canadian Journal of Law and Technology

In February 2007, Industry Canada released a consultation that outlined a proposed auction design for spectrum Ifor Advanced Wireless Services. As part of its consultation, Industry Canada contemplated a spectrum set-aside in the AWS auction to facilitate the entry of a new wireless service provider in Canada; however, it noted that a potential drawback of a spectrum set-aside is that it can induce uneconomic entry into the market. In this paper, we show that a set-aside for AWS spectrum in Canada is more likely to result in uneconomic entry than in a viable domestic entrant into the Canadian wireless industry. …

You Must Remember This: The Copyright Conundrum Of "Translation Memory" Databases, Francie Gow

Canadian Journal of Law and Technology

Translation memory databases (compilations of texts linked with their translations) can be valuable resources in the process of translating subsequent texts. This article explores the circumstances under which such compilations might be considered sufficiently original to attract copyright protection that is independent of any copyright already subsisting in the underlying translations and source texts. Various characteristics of the tools and the translation industry in general make the analysis highly fact-specific; whether particular translation memory databases attract protection, and, if so, who can claim to be their ‘‘authors’’, must be evaluated on a case-by-case basis. Any protection that is granted may …

L'Affaire Xm Satellite Radio: La Légalité Des Appareils Qui Enregistrent La Radio Par Satellite, René Pépin

Canadian Journal of Law and Technology

Aux Etats-Unis, la radio par satellite existe depuis le nouveau millénaire. Mais les compagnies qui œuvrent dans ce domaine font face depuis 2006 a des poursuites devant les tribunaux par les grandes compagnies de disques. Elles paient pourtant les tarifs convenus avec les entreprises qui s’occupent de gestion collective des droits d’auteur sur les disques. Le probleme vient du fait que depuis leur entrée en ondes, des progrès technologiques leur permettent d’offrir à leurs abonnés des appareils qui sont bien plus polyvalents qu’un simple appareil radio récepteur. Les nouveaux modèles peuvent enregistrer plusieurs heures d'émissions, et ils peuvent transmettre à …

Virtual Property, Real Law: The Regulation Of Property In Video Games, Susan H. Abramovitch, David L. Cummings

Canadian Journal of Law and Technology

This article considers property created and used in the virtual realm of video games, which is often given real- T world value. From the unauthorized copying of designer clothes sold on Second Life for in-game cash, to real court damages awarded against game operators’ deletion of player-earned swords on Mir 3, a bridge has been taking shape from video gaming’s virtual economies to real-world economies. However, virtual property created in virtual worlds has yet to be formally recognized by North American courts or legislatures. This article attempts to touch on some of the legal considerations paramount in determining how such …

Authorizing Copyright Infringement And The Control Requirement: A Look At P2p File-Sharing And Distribution Of New Technology In The U.K., Australia, Canada, And Singapore, Jeffrey C.J. Lee

Canadian Journal of Law and Technology

The doctrine of authorizing copyright infringement has been used to deal with the marketing of new Ttechnology that might be employed by a user to infringe copyright, from the distribution of blank cassette tapes and double-cassette tape recorders to photocopiers. It is being tested yet again with the distribution of peer-to-peer file-sharing software that enables the online exchange of MP3 music and other copyrighted files. This article looks at the different positions adopted in several Commonwealth jurisdictions, and examines the policy considerations behind these positions. It looks at, in particular, the recent Australian case of Universal Music Australia Pty Ltd. …

Layered Rights: Robertson V. Thomson, Gregory R. Hagen

Canadian Journal of Law and Technology

In Robertson v. Thomson Corp., the Supreme Court of Canada (‘‘ the Court ’’) considered ‘‘ whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers — without compensation to the authors and without their consent’’. Curiously, while deciding that publishers are not entitled to reproduce the individual articles without the consent of the freelancers, it also held that the publishers do have a right to reproduce the articles in a CD- ROM database ‘‘as a part of those collective works — their newspapers . …

Should Scientific Research In The Lead-Up To Invention Vitiate Obviousness Under The Patented Medicines (Notice Of Compliance) Regulations: To Test Or Not To Test?, Ron A. Bouchard

Canadian Journal of Law and Technology

This article is an analysis of case law pertaining to whether scientific research in the lead-up to invention should vitiate a finding of obviousness in pharmaceutical litigation under the Patented Medicines (Notice of Compliance) Regulations (the ‘‘NOC Regulations’’). The NOC Regulations belong to a class of legal instruments referred to as ‘‘linkage regulations’’ that tie patent protection for marketed pharmaceuticals to the Canadian drug approval process. Therefore, the NOC Regulations control entry of generic drugs into the market and access by the public to affordable medication. The issue of testing arises out of the complex and inverse relationship between inventiveness …

Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction In The Age Of Globalization, Stephen Coughlan, Robert Currie, Hugh Kindred, Teresa Scassa

Canadian Journal of Law and Technology

The reach of national law is often greater than its grasp. Although Canada has effective legal power over its territory and all within it, Canadian interests are no longer confined exclusively within Canadian borders. Canada thus finds it increasingly necessary to consider asserting its legal jurisdiction beyond its frontiers. Such extraterritorial assertion of Canadian legal authority may run into strong opposition from other countries, who might view Canada as attempting to intervene in their own national territories and domestic affairs. Likewise, other states, under the same pressures of globalization, may try to extend their legal reach into Canadian territory, where …

Privacy, Crime And Terror: Legal Rights And Security In A Time Of Peril By Stanley A. Cohen (Markham: Lexisnexis Butterworths, 2005), Teresa Scassa

Canadian Journal of Law and Technology

It is now trite to say that the events of September 11, 2001 have had a profound impact on our national security, in terms of its institutional and normative dimensions, and also in terms of a more general public anxiety. The hastily enacted Anti-terrorism Act of 2001 brought about significant changes to a wide range of statutes including, among others, the Criminal Code, the Official Secrets Act, the Canada Evidence Act, and the Proceeds of Crime (Money Laundering) Act. An early conference and resultant book on the Anti-terrorism Act raised serious concerns about the potential impact of the changes on …

Regime Tension In The Intellectual Property Rights Arena: Farmers' Rights And Post-Trips Counter Regime Trends, Chidi Oguamanam

Dalhousie Law Journal

Recognizing the transitions that have occurred in the global intellectual property arena since the TRIPS Agreement, this article identifies and examines key sites of the counter regime trends in intellectual property rights with a focus on farmers' rights. It invokes farmers' rights to highlight the conceptual and juridicalhurdles facing the new issue-linkages that propel attempts to redress the shortcomings of the TRIPS' trade-centred approach to intellectual property. The author argues that the existingjuridical framework for farmers 'rights,especiallyunder the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), although inchoate, is stymied and not competent to realize the expectations …

Step In The Wrong Direction: The Impact Of The Legislative Protection Of Technological Protection Measures On Fair Dealing And Freedom Of Expression, Graham Reynolds

Canadian Journal of Law and Technology

This paper will investigate whether legislation granting protection to TPMs infringes the freedom of expression (s. 2(b)) guarantee as contained in the Canadian Charter of Rights and Freedoms. This paper will proceed in five parts. Part I will discuss Bill C-60 and the legislative protection of TPMs in Canada. Part II will discuss the effect of TPMs on fair dealing. Part III will analyze whether the freedom of expression guarantee can be used to challenge provisions in the Copyright Act. Part IV will evaluate whether amendments to the Copyright Act granting protection to TPMs are consistent with the freedom of …

Intellectual Property: The Law In Canada By Daniel Gervais & Elizabeth F. Judge (Toronto: Thomson Carswell, 2006), David Lametti

Canadian Journal of Law and Technology

No abstract provided.

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Electronic Trespass In Canada: The Protection Of Private Property On The Internet, James Macdonald

Canadian Journal of Law and Technology

This paper argues that Canadian courts can, and should, adopt electronic trespass as a viable cause of action for the protection of property rights on the Internet. Of course, this conclusion presupposes that property rights in fact exist on the Internet. While American courts have accepted the existence of property rights on the Internet without any real controversy, a significant body of criticism has developed around American jurisprudence. Part III examines the critiques levelled against the assumption of property rights inherent in electronic trespass, and argues that there are property rights that need to be protected on the Internet. Part …

Nanotechnology And The United States National Plan For Research And Development In Support Of Critical Infrastructure Protection, Lisa Campbell

Canadian Journal of Law and Technology

In an effort to predict and avert threats to national security, governments in general, and that of the United States in particular, have devoted considerable resources to developing technological systems that gather information about individuals. In the past five years, the U.S. government has collected information about the movement of individuals across and within its national borders from various sources, including border security stations, law enforcement officials, and immigration authorities. Until recently, it seemed impossible for the U.S. government to draw useful analyses from all of the data it is collecting. The sheer volume and complexity of the information made …

The Crtc's Enforcement Of Canada's Broadcast Legislation: 'Concern', 'Serious Concern' And 'Grave Concern', Monica Auer

Canadian Journal of Law and Technology

This paper describes results from a quantitative study of the enforcement by the Canadian Radio-television and Telecommunications Commission (CRTC or Commission) over the last several decades of Canada’s broadcasting legislation and its own regulations. Established by Parliament in 1968, the CRTC is a quasi-judicial regulatory agency that administers Canada’s Broad- casting Act, 1991 as well as the nation’s telecommunications legislation. Parliament has accorded the CRTC a broad range of discretionary powers over broadcast licensees, from granting, denying or revoking licences, to issuing mandatory orders. It is one of many federal regulatory agencies that administer and enforce Parliament’s legislation.

Producers And Consumers In Eu E-Commerce Law, Banu Sit

Canadian Journal of Law and Technology

Rapid growth of technology in the last decades has given rise to electronic commerce (e-commerce) as a new mode of commerce. This new commerce environment has many characteristics that affect commercial relationships and parties. Of these characteristics, global and borderless commercial activity and the intangible nature of communication can be singled out.

From a legal perspective, e-commerce has developed new modes, of contract formation, performance of contracts for intangible goods, as well as payment. In this new borderless and transient sphere, certain interests of parties involved in commercial activities as buyers or sellers are in need of protection. In particular, …

It Waste Management In Canada: From Cost Recovery To Resource Conservation?, Meinhard Doelle

Canadian Journal of Law and Technology

The volume, composition and management of solid waste generated by households, governments, the commercial sector, and industry have all changed dramatically over the past century. Household waste contained mainly organic material a hundred years ago. Today, both residential and commercial waste is a complex mix of organics, plastics, paper products, metals and a variety of toxic material. Historically, individual households looked after their own waste, through efforts such as composting and burning. Over the past century, with significant increases in volume of waste generated, municipalities have taken over primary responsibility for solid waste management, initially mainly for aesthetic and sanitary …

Ests Under Canadian Patent Law: Useful Or Not?, Natalie C. Bellefeuille

Canadian Journal of Law and Technology

The following discussion will examine the utility requirement for patentability in the context of EST patents. Part I will provide background information regarding the utility requirement under patent law and will explain why it has been difficult to apply to ESTs. Part II will briefly examine how other jurisdictions, in particular the United States, have addressed the difficul- ties associated with applying the current utility require- ment to biological materials, in particular ESTs. Part III will look at how Canadian courts have interpreted and applied the utility requirement for patentability, and will suggest that ESTs have sufficient value to the …

Personal Medical Information: Privacy Or Personal Data Protection?, Wilhelm Peekhaus

Canadian Journal of Law and Technology

Some of the existing literature concerning the privacy of health information seems to suggest that medical information has a particularly special nature; either through its oft-cited association with dignity or the need for its ‘‘unobstructed’’ use by health care practitioners for a variety of reasons. It is against such a backdrop that this paper will review and compare a number of legislative mechanisms that have been designed to meet the challenge of safeguarding the privacy of personal information without completely hindering the continued flow of information required by economic and health care systems. An attempt will be made to situate …

E-Commerce Legislation And Materials In Canada: Lois Sur Le Commerce Électronique Au Canada Et Documents Connexes By Sunny Handa, Claude Marseille & Martin Sheehan (Markham, Ont.: Lexisnexis Butterworths, 2005), John D. Gregory

Canadian Journal of Law and Technology

This hefty volume is a useful compendium of the basic source materials for the law of electronic commerce in Canada. It offers the text of all the general-purpose legislation that removes legal barriers to the use of electronic communications, for all jurisdictions in the country. It then takes a dozen related areas of law, from domain names to taxation, from competition law to consumer protection, from security to standards, and offers a quick overview and the key documents applicable to each. In each case the commentary is in English then in French, and where the texts are available in both …

Liability For Botnet Attacks, Jennifer A. Chandler

Canadian Journal of Law and Technology

This paper will consider the possibility of using tort liability to address cyber insecurity. In previous work, I have proposed a hypothetical lawsuit by the victim of a DDoS attack against the vendor of unreasonably insecure software, the flaws of which are exploited to create the DDoS attack army. Indeed, software vendors are facing increasing public disapproval for their contributions to cyber insecurity. However, not all DDoS attack armies are assembled by exploiting flaws in software. Computers are also infected when users voluntarily open infected email attachments or download infected files from file-sharing networks. Accordingly, the cyber insecurity resulting from …

Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen

Books

Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed …