Science and Technology Law Commons^™

L'Affaire Huntsman C. Soderbergh Ou Le Droit D'Expurger Les Films, René Pépin

Canadian Journal of Law and Technology

Deux éléments nous motivent. D’abord, comme on le devine, la technologie évolue à un rythme rapide en ce domaine. On n’en est plus au temps où les films étaient produits unique- ment sur une véritable pellicule de plastique qu’un censeur pouvait insérer dans une machine qui lui permettait littéralement de couper des parties indésirables et de recoller les embouts. L’informatique a envahi ce domaine. Il y a maintenant des logiciels sophistiqués qui agissent comme interface entre un disque DVD et l’écran, permettant au consommateur de choisir lui-même les séquences qui seront enlevées dans un film. On comprend que ceci pose …

Rising Governmental Use Of Biometric Technology: An Analysis Of The United States Visitor And Immigrant Status Indicator Technology Program, Lisa Madelon Campbell

Canadian Journal of Law and Technology

This article explores increased governmental interest in the use of biometric measurements as a means of identifying individuals and tracing their movements. Private industries, of course, are equally interested in biometrics, and often similarly capable of collecting and storing biometric information. For example, merchants in the United Kingdom require customers who pay by cheque to provide a thumbprint as an additional security measure against potential fraud. The issues raised by the use of biometrics in the private sector are somewhat different than those that arise in the public context. This article explores the increased reli- ance upon individual biometric measurements …

Review Of Eloïse Gratton's Internet And Wireless Privacy: A Legal Guide To Global Business Practices (Toronto: Cch Canadian Limited, 2003), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Who Controls The Controllers? Jon Festinger's Video Game Law (Markham: Lexisnexis Canada Inc., 2005), Steve Coughlan

Canadian Journal of Law and Technology

No abstract provided.

Virtual Playgrounds And Buddybots: A Data-Minefield For Tweens, Valerie Steeves, Ian R. Kerr

Canadian Journal of Law and Technology

This article examines the online places where tweens play, chat, and hang out. We argue that the vision behind these places is defined by commercial imperatives that seek to embed surveillance deeper and deeper into children’s playgrounds and social interactions. Online marketers do more than implant branded products into a child’s play; they collect the minute details of a child’s life so they can build a ‘‘relationship’’ of ‘‘trust’’ between the child and brand. Although marketing to children is not new, a networked environment magnifies the effect on a child’s identity because it opens up a child’s private online spaces …

I Click, You Click, We All Click - But Do We Have A Contract? A Case Comment On Aspenceri.Com V. Paysystems, Charles Morgan

Canadian Journal of Law and Technology

It is trite to say that e-commerce has exploded over the last several years. Canadian individuals and businesses are entering into thousands and thousands of contracts online all the time. Yet, oddly enough, there is surprisingly little legal certainty or consistency regarding an essential legal question: what approach to online contract formation will create a binding legal contract? Such legal uncertainty is unfortunate, since buyers need to know when to ‘‘beware’’, merchants need to be able to manage risk, and courts need to have clear guidelines in order to be able to render informed, coherent decisions.

The issue of online …

Intelligent Agents: Authors, Makers, And Owners Of Computer-Generated Works In Canadian Copyright Law, Rex M. Shoyama

Canadian Journal of Law and Technology

The central objective of this article is to propose a clarification of copyright law as applied to works created by intelligent agents. In Part I, the concepts of artificial intelligence and intelligent agents are introduced. Part II identifies the challenges that are presented to the tests of originality and authorship in the application of copyright to works generated by intelligent agents. It is argued that works created by intelligent agents may meet the tests of originality and authorship. It is also argued that the con- cepts of ‘‘author’’, ‘‘owner’’, and ‘‘maker’’ are distinct from one another in Canadian copyright law. …

Biotechnology Unglued: Science, Society, And Social Cohesion By Michael D. Mehta, Ed. (Vancouver: Ubc Press, 2005), Chidi Oguamanam

Canadian Journal of Law and Technology

In Biotechnology Unglued, Mehta and his thirteen-member interdisciplinary team, comprising mainly of social scientists using a number of ‘‘case studies’’, explore in nine essays ‘‘how advances in agricultural, medical, and forensic biotechnology may threaten the social cohesiveness of different kinds of communities and at different scales’’. In a way, the project is a successful attempt to underscore the theme of (and imperative for) social accountability of science and bio/technological innovations. This 208-page collection of nine essays in a corresponding number of chapters is a remarkable effort. It is a departure from the traditional concerns regarding biotechnology innovations which, hitherto, emphasized …

Genetic Use Restriction (Or Terminator) Technologies (Gurts) In Agricultural Biotechnology: The Limits Of Technological Alternatives To Intellectual Property, Chidi Oguamanam

Canadian Journal of Law and Technology

This article examines the adequacy of terminator technology as a potential substitute for traditional intellectual property. It acknowledges that the technology provides a stronger protection and reward mechanism than that offered by the traditional intellectual property rights regime. However, terminator technology or any other technology for that matter, is outside the pantheon of intellectual property regimes. Fundamentally, terminator is a technological answer to the quest by private sector interests to improve appropriability of returns on investments in agrobiotech. It potentially represents a panacea to the long standing industry struggle over the profitability of private research in agrobiotech and the need …

New Federal And Provincial Personal Information Protection Legislation And Its Impact On Physicians And Public Hospitals, Evguania Prokopieva

Canadian Journal of Law and Technology

The focus of this article is to examine the implications of the new federal and Ontario personal data protection legislation for physicians and public hospitals. This article also inquires into whether the new legislation will contribute to the protection of patient privacy. By ‘‘physician’’ I mean a doctor in a broad sense – i.e., ‘‘a person who has been educated, trained, and licensed to practice the art and science of medicine’’. This will include family doctors, paediatricians, psychiatrists, surgeons, and other medical doctors covered by the Regulated Health Professions Act. By the term ‘‘public hospitals’’ I will refer to not-for-profit …

"Tpms": A Perfect Storm For Consumers: Replies To Professor Geist, Barry Sookman

Canadian Journal of Law and Technology

This article has its origins in an article written by Professor Michael Geist and published in the Toronto Star entitled ‘‘‘TPMs’: A perfect storm for consumers’’. Following the publication of the article, John Gregory made a posting to the e-commerce listserv he moderates asking if anyone had any comments to the article. I responded on February 13, 2005 with a reply to John’s request. Professor Geist replied to my comments on February 17, 2005. On March 9, 2005 I posted a further reply to Professor Geist. The article set out below is based substantially on my two postings to John …

Leveraging Knowledge Assets: Can Law Reform Help?, Margaret Ann Wilkinson, Mark Perry

Canadian Journal of Law and Technology

This paper asks whether there is a need for law-makers to aid in the efficient transition to a new knowledge-based economic and social environment through the use of intellectual property devices. The use of such devices was effective in assisting with the transition to an industrial society that, combined with developments in commercial law and secured transactions, further fuelled economic growth in Canada. Can these disparate areas of law be brought together to provide opportunities for the growth of knowledge-based business? The Law Commission of Canada instigated a two-part investigation into these questions. The investigation culminated in the Commission's report …

Whazup With The Whois?, Sheldon Burshtein

Canadian Journal of Law and Technology

The WHOIS is a database directory of domain names and relevant contact information maintained by each top-level domain (TLD) registry, which lists all relevant registrant contact information for each domain name registration. Through its contracts, the Internet Corporation for Assigned Names and Numbers (ICANN) requires registries and registrars to collect and display technical information and contact details for all registrants. The WHOIS is an important component of the domain name system (DNS). The WHOIS is used for a wide variety of purposes by registries, registrars, registrants, law enforcement authorities, consumers, and the general public. The WHOIS may enable identification of …

A Review Of Canadian Radiocommunications Law Around "Jammers", Tyson Macauley

Canadian Journal of Law and Technology

This comment argues that the Radiocommunications Act should be amended to relax the prohibition on specific types of ‘‘smart’’ jamming in the Industry Science Medicine (ISM) bands. Specifically, the legislation requires increased flexibility and granularity to accom- modate new wireless technologies in the ISM bands — particularly wireless LAN (WLAN) technologies like IEEEE 802.11b/IEEE 802.11g (WiFi), and IEEE 802.11a (henceforth collectively know as ‘‘ISM radios’’).

The availability of cheap, mass-produced ISM radios hardware and the proliferation of applications using the ISM spectrum bands of 2.4Ghz and 5Ghz present a variety of security and privacy concerns that cannot be effectively addressed …

Fundamentals Of Information Technology By Sunny Handa (Markham: Lexisnexis Canada Inc., 2004), Barbara Darby

Canadian Journal of Law and Technology

In the early 1990s, I purchased my first stereo with a CD player. I found myself trapped in a conversation with someone who tried to convince me that it was utter folly not to buy a turntable, because CD technology simply couldn’t replicate the ‘‘warmth’’ of vinyl. Had I only Handa’s book to hand, I could have provided a straight- forward and understandable explanation for why my records were well enough left in my parents’ basement; although ‘‘digitization . . . fails to record all characteristics of analog data, even at the highest finite sampling rate . . . Complete …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Of Neighbours And Netizens, Or, Duty Of Care In The Tech Age: A Comment On Cooper V. Hobart, Robert J. Currie

Canadian Journal of Law and Technology

The focal point of this comment will be the recent judgment of the Supreme Court of Canada in Cooper v. Hobart, which appears to have made some significant changes to the elements of ‘‘duty of care’’, the foundational negligence concept. The Court framed its decision as refining duty of care analysis in order to properly deal with ‘‘novel claims’’ (i.e., those for which there is not an established or analogous duty of care in the existing case law). Given that the growth of elec- tronic commerce and Internet usage continues to spawn ‘‘novel’’ legal issues, Cooper is an appropriate starting …

Recalibrating Copyright Law?: A Comment On The Supreme Court Of Canada's Decision In Cch Canadian Limited Et Al. V. Law Society Of Upper Canada, Teresa Scassa

Canadian Journal of Law and Technology

The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada marks a second recent decision by the Court that has major implications for the development of copyright law in Canada. In Théberge v. Galerie D’Art du Petit Champlain, the majority of the Court provided a significant articulation of the balance to be struck between the rights of creators and the rights of users of copyright-protected works. In doing so, it embraced an approach to copyright typical of U.S. copyright law in its heyday. The unanimous Court in CCH Canadian makes it …

Ef Cultural Travel V. Explorica: The Protection Of Confidential Commercial Information In The American And Canadian Contexts, Suzanne White

Canadian Journal of Law and Technology

Commercial information, once relegated to paper files stored in cabinets, is now more likely to be in digital form, allowing a myriad of people to access its contents. These electronic storehouses can subsequently be stored on the Internet, providing a handy but some- what risky means of archiving valuable information. The United States Court of Appeals (1st Circ.) judgment EF Cultural Travel v. Explorica1 is a clear indicator of the way in which the advent of the Internet has completely changed the constructive meaning of the traditional ‘‘office file’’. This paper attempts to provide an under- standing of the scope …

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …

Electronic Commerce - A Practitioner's Guide Edited By Alan M. Gahtan, Martin P.J. Kratz, And J. Fraser Mann (Toronto: Thomson Carwell, 2003), Harmonie Roesch-West

Canadian Journal of Law and Technology

At a time when there seems to be no clear consensus on how to regulate electronic commerce comes a much-needed discussion of the many salient factors impacting the matter in Electronic Commerce: A Practitioner’s Guide. The collaborative effort includes works from several authors, compiled by Alan M. Gahtan, Martin P.J. Kratz, and J. Fraser Mann. This guide is an excellent first step in clarifying the issues and summarizing the precedents and relevant statute law to date. Although the target is an audience of law professionals, other e-commerce stakeholders, including business pro- fessionals, will find this collection useful.

Following The Right Lead: Gutnick And The Dance Of Internet Jurisdiction, Mary Paterson

Canadian Journal of Law and Technology

As improving methods of travel and communication facilitated the shift from an agrarian to an industrial society, the common law courts increasingly faced interjurisdictional disputes. Although British paternalism dominated early cases in which courts assumed jurisdiction over people, property, and actions in distant lands, these cases and the imperial attitudes informing them were slowly replaced by more modest jurisdictional assertions based on a sense of comity. The shift from an industrial society to an information-based society and the simultaneous growth of a global infrastructure based on satellite, telephone, cable, and cellular technologies have stretched jurisdictional doctrines in new ways, calling …

Law As Film: Representing Justice In The Age Of Moving Images, Shulamit Almog, Ely Aharonson

Canadian Journal of Law and Technology

Two main theses are presented here. The first is that there is a conceptual resemblance between the ways in which messages are transmitted in the courtroom and the ways in which they are transmitted in the cinema. The second is that the evolution of legal procedure is being influenced by developments taking place in visual culture generally and film specifically. Taken together, these theses lead to the conclusion that the development of a theory of ‘‘law-as-film’’ can provide insights into the contemporary practice of law that might otherwise be overlooked.

Foreign Investment Restrictions As Industrial Policy: The Case Of Canadian Telecommunications, Robert Crandall, Hal Singer

Canadian Journal of Law and Technology

We assess the economic harms that would accrue if Canada were to adopt asymmetric rules of foreign ownership for incumbent carriers and entrants. We explain the current Canadian regulatory climate surrounding foreign investment in Canadian telecommunications. Competition in the telecommunications industry is generally robust, which suggests that rules aimed at favouring entrants are not necessary. Moreover, Canadian entrants are equally capable of attracting foreign capital as Canadian incumbents, which suggests that foreign investment rules aimed at favouring entrants are especially unwise.

Next, we review the U.S. attempt to stimulate competition in local telecommunications markets through an analogous form of asymmetrical …