The world of technology law went out with a big bang in 2003. The last few weeks of the year witnessed headline-grabbing news — the prospect of lawsuits against individual music file sharers migrating to Canada, a Copyright Board of Canada decision that establishes a new levy on MP3 players and signals the board's view that downloading music on peer-to-peer services may be lawful in certain circumstances, and the Government of Quebec's initiation of a constitutional challenge against Canada's privacy legislation.
The twists and turns of technology law will certainly continue in the coming year as courts, legislators, business, and the general public grapple with how traditional legal rules apply to emerging technologies. The following top three issues lead the concerns that are likely to attract the most attention in 2004.
Privacy: The Canadian privacy community had long circled 2004 on their calendars as a critical year. Little did they know, however, just how important the upcoming months will be to the country's long-term privacy law framework. The Personal Information Protection and Electronic Documents Act (PIPEDA), the federal privacy law, took full effect on January 1 with all organizations in Canada now subject to some form of privacy legislation.
While businesses and consumers adjust to life with privacy legislation, they won't be the only ones. Jennifer Stoddart, Quebec's former privacy commissioner, has taken over as the federal privacy commissioner and will no doubt spend 2004 working to refurbish public confidence in her office in the aftermath of the Radwanski scandal.
Several provinces, including Ontario, may also become more active in the privacy arena by enacting their own provincial privacy laws, as Quebec did in the early 1990s and as Alberta and British Columbia did this past year. The growth of provincial privacy alternatives was envisioned as a key part of PIPEDA, since provinces are free to enact legislation that covers issues such as health privacy, an area off-limits to the federal government due to constitutional jurisdiction limitations.
The issue most worth watching is unexpected. In late December 2003, the Quebec government took everyone by surprise when it served notice that it will be challenging the constitutionality of PIPEDA. Quebec has long maintained that the federal statute represents an incursion into exclusive provincial rights and their legal challenge, which is likely to begin in the Quebec Court of Appeal sometime in 2004 and work its way up to the Supreme Court of Canada either late this year or early in 2005, will provide Canadians with a definitive legal ruling on the matter.
Internet marketing: Internet marketing emerged as a leading issue in 2003 as the Internet community began to call for legal solutions to the crushing deluge of spam. The United States, Europe, and Australia all passed anti-spam legislation last year. Canada may be next. The federal government shifted away from its previous position that opposed anti-spam legislation last year by initiating a consultation on the possibility of a Canadian anti-spam statute. While replication of the U.S. model isn't likely — Canada already has many of the key anti-spam provisions under existing law — establishing a private right of action to facilitate lawsuits against spammers and increasing criminal penalties for the most problematic spam would be a step in the right direction.
Courts around the world have been struggling with two additional Internet marketing issues. In recent months, several U.S. lawsuits have examined pop-up and pop-under ads, another practice reviled by many Internet users.
While two courts sided with the advertisers in denying requests to block their pop-up ads, most recently one U.S. site obtained an injunction to stop WhenU.com, a leading pop-up advertiser, from displaying its advertisements in connection with its site. Similar cases are likely to "pop up" this year as courts struggle to distinguish between users' visual experience and what is occurring from a technological perspective.
Search engines will also face increasing legal challenges to an important form of marketing — paid search results. Several leading search providers have already pulled paid search results relating to controversial areas such as online pharmaceutical sales.
Google, the industry leader, has been involved in several suits in recent months involving the purchase of search terms that correspond to trademarks. Courts in Europe have issued conflicting decisions on this issue, while Google launched a pre-emptive suit in the U.S. in the fall to declare its paid search policies lawful. In many respects, these suits represent an updated version of the domain name and metatag lawsuits of the 1990s as Web sites search for the most effective methods to attract attention.
While privacy, copyright, and marketing issues will lead the way, other issues — new International treaties on jurisdiction and e-commerce, legal battles and growing interest in open source software, and the global contest between the developed and developing world over Internet governance — will also headline a crowded agenda.
With activity on so many fronts, 2004 promises to be the most exciting yet in technology law.
Copyright: Identifying copyright as a key issue for 2004 hardly requires a crystal ball. Copyright took centre stage in 2003 for both courts and policymakers and the coming year looks no different.
Coming off a year in which hundreds of individuals were sued for file sharing in the United States by the Recording Industry Association of America, the Canadian Recording Industry Association, its Canadian counterpart, indicated last month that it may soon follow suit in Canada.
Such Canadian lawsuits are likely to prove even more contentious, however, in light of the Copyright Board of Canada's private copying decision released in mid-December. The board was surprisingly frank in stating its view that uploading music to file sharing services was not covered by the private copying exemption but that downloading music would be under certain circumstances.
The Supreme Court of Canada heard arguments in two important copyright cases in the fall of 2003. Of particular interest is the Tariff 22 case, which involves an attempt by the Society of Composers, Artists and Music Publishers of Canada, a leading copyright collective, to establish a royalty for online music. A decision from the court is expected in the spring.
Canada's copyright policy makers are presumably itching to move forward on several copyright policy fronts, but the change in federal leadership will likely stymie any significant reform at least until the fall.
At that time, look for Canada to establish a notice, notice and takedown system that will enable copyright holders to seek swift removal of infringing content from the Web. The system will allow copyright holders to notify an Internet service provider that they are hosting allegedly copyright-infringing content. The ISP will in turn notify their subscriber of the allegation and remove the content if presented with a court order requiring it to do so.