Columns

europe infinite copyright by Jose Mesa (CC BY 2.0) https://flic.kr/p/amMHBV

How Canada Shaped the Copyright Rules in the EU Trade Deal

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

August 21, 2014 — 7 comments — Columns

The Ring of ccTLDs #3 by Grey Hargreaves (CC BY 2.0) https://flic.kr/p/9KttQB

Does Anyone Own a Country’s Domain Name?

Earlier this year, a group of U.S. litigants launched an unusual domain name lawsuit. The group consisted of family members of victims of terror attacks they claim were sponsored by the governments of Iran, Syria, and North Korea. The group had succeeded in winning over a billion dollars in damages in several lawsuits filed in U.S. courts.

Unable to collect, they sued the Internet Corporation for Assigned Names and Numbers (ICANN), the body that administers the Internet’s domain name system. Their goal: seize the dot-ir, dot-sy, and dot-kp domain name extensions (the respective country-code domains) by ordering ICANN to transfer them as compensation.

My weekly technology law column (Toronto Star version, homepage version) notes the notion of seizing a country’s domain name extension may sound implausible, but the case is proceeding through the U.S. court system with ICANN filing a brief late last month. ICANN is unsurprisingly seeking to dismiss the case, arguing that the domain name extensions are not property that is capable of seizure (I am a board member of the Canadian Internet Registration Authority, Canada’s dot-ca administrator, but this article represents my own views and not those of CIRA).

August 12, 2014 — Comments are Disabled — Columns

Patents are only for the old machine by Alexandre Dulaunoy (CC BY-SA 2.0) https://flic.kr/p/zw2KV

How a 20 Year Old Patent Application Could Up-End Canada’s Biggest Trade Deal

In the early 1990s, pharmaceutical giant Eli Lilly applied for patent protection in Canada for two chemical compounds, olanzapine and atomoxetine. The company had already obtained patents over the compounds, but asserted that it had evidence to support new uses for the compounds that merited further protection. The Canadian patent office granted the patents based on the content in the applications, but they remained subject to challenge.

Both patents ultimately were challenged on the grounds that there was insufficient evidence at the time of the applications to support the company’s claims. The Federal Court of Canada agreed, invalidating both patents. Eli Lilly proceeded to appeal the decision to the Federal Court of Appeal and later to the Supreme Court of Canada. The company lost the appeals, as the courts upheld the decision to invalidate the patents.

My weekly technology law column (Toronto Star version, homepage version) notes that under most circumstances, that would conclude the legal story as nine Canadian judges reviewed Eli Lilly’s patent applications and ruled that they failed to meet the standards for patentability. Yet in June 2013, the company served notice that it planned to file a complaint under the North American Free Trade Agreement claiming that in light of the decisions, Canada is not compliant with its patent law obligations under the treaty. As compensation, Eli Lilly is now seeking $500 million in damages.

August 5, 2014 — 17 comments — Columns

The Battle Over Tariff 8: What the Recording Industry Isn’t Saying About Canada’s Internet Streaming Royalties

Over the past month, Music Canada, the lead lobby group for the Canadian recording industry, has launched a social media campaign criticizing a recent Copyright Board of Canada decision that set some of the fees for Internet music streaming companies such as Pandora. The long-overdue decision seemingly paves the way for new online music services to enter the Canadian market, yet the industry is furious about rates it claims are among the worst in the world.

The Federal Court of Appeal will review the decision, but the industry has managed to get many musicians and music labels worked up over rates it labels 10 percent of nothing. While the Copyright Board has more than its fair share of faults, a closer examination of the Internet music streaming decision suggests that this is not one of them.

The Music Canada claim, which is supported by Re:Sound (the copyright collective that was seeking a tariff or fee for music streaming), is that the Canadian rates are only 10 percent of the equivalent rate in the United States. That has led to suggestions that decision devalues music and imperils artists’ livelihood.

My weekly technology law column (Toronto Star version, homepage version) argues the reality is far more complex.

July 29, 2014 — 6 comments — Columns

Come Back With a Warrant doormat, Cindy's place, Noe Valley, San Francisco, CA by Cory Doctorow (CC BY-SA 2.0) https://flic.kr/p/bB3VJN

Come Back With a Warrant: How Will the Canadian Government Respond to the Supreme Court’s Reshaping of Privacy Law?

Canadian Internet and telecom providers have, for many years, disclosed basic subscriber information, including identifiers such as name, address, and IP address, to law enforcement without a warrant. The government has not only supported the practice, but actively encouraged it with legislative proposals designed to grant full civil and criminal immunity for voluntary disclosures of personal information.

Last month, the Supreme Court of Canada struck a blow against warrantless disclosure of subscriber information, ruling that there is a reasonable expectation of privacy in that information and that voluntary disclosures therefore amount to illegal searches.

My weekly technology law column (Toronto Star version, homepage version) notes the decision left little doubt that Internet and telecom providers would need to change their disclosure policies. Last week, Rogers, the country’s largest cable provider, publicly altered its procedures for responding to law enforcement requests by announcing that it will now require a court order or warrant for the disclosure of basic subscriber information to law enforcement in all instances except for life threatening emergencies (warrantless disclosures may still occur where legislation provides the lawful authority to do so). Telus advised that it has adopted a similar approach.

July 21, 2014 — 12 comments — Columns