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

Forgotten television by the autowitch (CC BY-NC-SA 2.0) https://flic.kr/p/nUaS

The Future of Television Review is the CRTC’s Make or Break Moment

When Canada’s broadcast regulator embarked on the third and final phase of its consultations on the future of television regulation earlier this year, it left little doubt that a total overhaul was on the table. The Canadian Radio-television and Telecommunications Commission (CRTC) raised the possibility of eliminating longstanding pillars of broadcast regulation by creating mandatory channel choice for consumers, dropping simultaneous substitution and genre protection, as well as allowing virtually any non-Canadian service into the market.

For the growing number of Canadians hooked on Netflix or accustomed to watching their favourite programs whenever they want from the device of their choosing, none of this seems particularly revolutionary. Indeed, policies that reduce options, increase costs, or add regulation run counter to a marketplace in which public choice determines winners and losers.

My weekly technology law column (Toronto Star version, homepage version) notes the CRTC seems to understand that this is a make-or-break moment since policies that worked in a world of scarcity no longer make sense in a marketplace of abundance. Yet the first batch of responses from Canada’s broadcasters, broadcast distributors, and creator community suggests that most see the changing environment as a dire threat to their existence and hope to use regulation to delay future change.

July 16, 2014 — 1 comment — Columns

Cross Border Action: The People's Round on the Trans Pacific Partnership by Caelie_Frampton (CC BY-NC-SA 2.0) https://flic.kr/p/dy8srf

Why The Secrecy on the TPP Talks in Ottawa This Week? Because There is Something to Hide

Trade agreements have emerged in recent years as one of the federal government’s most frequently touted accomplishments. Having concluded (or nearly concluded) free trade deals with the likes of the European Union and South Korea, senior government ministers such as International Trade Minister Ed Fast and Industry Minister James Moore have held dozens of events and press conferences across the country promoting the trade agenda.

The next major agreement on the government’s docket is the Trans Pacific Partnership, a massive proposed trade deal that includes the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Japan, Peru, and Chile. While other trade talks occupy a prominent place in the government’s promotional plans, the TPP remains largely hidden from view. Indeed, most Canadians would be surprised to learn that Canada is hosting the latest round of TPP negotiations this week in Ottawa.

My weekly technology law column (Toronto Star version, homepage version) argues the secrecy associated with the TPP – the draft text of the treaty has still not been formally released, the precise location of the Ottawa negotiations has not been disclosed, and even the existence of talks was only confirmed after media leaks – suggests that the Canadian government has something to hide when it comes to the TPP.

July 7, 2014 — 17 comments — Columns