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Thursday November 08, 2012 |
The Supreme Court of Canada this morning shocked the pharmaceutical
industry by voiding
Pfizer's patent in Canada for Viagra. The unanimous decision
provides a strong reaffirmation of the policy behind patent law,
namely that patents represent a quid pro quo bargain of public
disclosure of inventions in return for a time limited monopoly in
the invention. The Supreme Court describes it in this way:
The patent system is based on a "bargain", or quid pro quo: the
inventor is granted exclusive rights in a new and useful invention
for a limited period in exchange for disclosure of the invention
so that society can benefit from this knowledge. This is the basic
policy rationale underlying the Act. The patent bargain encourages
innovation and advances science and technology.
Disclosure is therefore a crucial part of the patent bargain.
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Thursday December 22, 2011 |
The Supreme Court of Canada this morning ruled
that the federal government's plan to create a single securities
regulator is unconstitutional since it stretches the federal trade and
commerce clause too far into provincial jurisdiction. The ruling is a
wake-up call on the limits of federal powers, even where many may agree
that the policy rationale for federal intervention is a good one. The
court ruled that most of the securities regulatory activities deal with
day-to-day contractual regulation within the provinces and that "these
matters remain essentially provincial concerns falling within property
and civil rights in the provinces and are not related to trade as a
whole."
While the immediate implications are obviously focused on the
securities industry, there are significant implications for several of
Canada's digital-focused laws including PIPEDA (the private sector
privacy law), the new anti-spam legislation, and the digital lock rules
found in Bill C-11. The privacy and anti-spam laws are
particularly
vulnerable since both rely on the same trade and commerce provision
that the court just addressed. There have been questions about the
constitutionality of PIPEDA since its inception (Quebec launched a
challenge that is now dormant, State Farm recently revived the
issue)
and today's decision will certainly stoke the fires for a
constitutional challenge, particularly given the Privacy Commissioner's
call for stronger enforcement powers. The anti-spam legislation, which
awaits final regulations before taking effect, faces similar questions
since it too relies heavily on the trade and commerce clause.
The constitutional questions of Bill C-11 do not arise from the trade
and commerce clause, but do involve similar questions about
encroachment into provincial jurisdiction over property and civil
rights. As I wrote earlier
this fall,
the government's own analysis of the bill confirms that the digital
lock rules envision potential violations of copyright even when there
is no copyright infringement. By removing the link to actual copyright
infringement (breach of the digital lock rules may occur without a
copyright infringement and without regard for traditional copyright
defences), the law ventures into property and civil rights. Several
scholars have argued that the approach is fundamentally about
contractual rights, not copyright, and thus falls within provincial
jurisdiction. Today's Supreme Court of Canada decision serves as a
reminder that there are limits on federal powers and that the C-11
digital lock approach may be more constitutionally vulnerable than its
supporters are willing to admit.
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Thursday May 05, 2011 |
The Supreme Court of Canada has granted
leave to appeal
the Federal Court of Appeal decision involving copyright and K-12
schools, which specifically addressed fair dealing in the context of
education. I wrote about the Federal Court of Appeal decision here.
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Tuesday January 11, 2011 |
Predictions about the upcoming year in technology law and policy in
Canada are particularly challenging given the prospect of a possible
election. My weekly technology law column (Toronto
Star version, homepage
version) notes that while there is no shortage of potential new
laws - bills on
privacy, copyright, and lawful access are all before the House of
Commons - an election call before the fall would likely mean that those
bills would die on the order paper.
With political uncertainty clouding even the best crystal ball, the
Supreme Court of Canada is set to emerge this year as the place where
much of the action will take place. Canada’s highest court has
lined
up a tech-heavy docket that will have a major impact Canadian law.
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