Columns

Supreme Court Serves Stunning Reminder of Patent Bargain

The House of Commons Committee on Industry, Science and Technology has spent the past few months hearing from a myriad of companies on the Canadian intellectual property system. With few public interest groups invited to appear, one of the primary themes has been the call for more extensive patent protections, as witnesses link the patent system to innovation and economic growth.

While policies that purport to help the economy unsurprisingly generate considerable support, my weekly technology law column (Toronto Star version, homepage version) notes the Supreme Court of Canada recently provided a powerful reminder about the true purpose of patent law in a decision involving Pfizer’s patent for Viagra, the well-known erectile dysfunction medication. Teva Pharmaceuticals, one of the world’s leading generic pharmaceutical manufacturers, had lost successive challenges against the Viagra patent, but managed to pull out a win when it mattered most. The decision has already had considerable fallout, as Pfizer has asked for a rehearing, had the patent confirmed as invalid in a Federal Court case with Apotex, and dropped its retail price to match the generic pricing.

November 22, 2012 — 5 comments — Columns

What the New Copyright Law Means For You

More than a decade of debate over Canadian copyright reform came to a conclusion last week as Bill C-11, the fourth try at reform since 2005, formally took effect. While several elements of the bill still await further regulations, the biggest overhaul of Canadian copyright law in years is now largely complete.

My weekly technology law column (Toronto Star version, homepage version) notes the wholesale changes have left many Canadians wondering how the law will affect them, as they seek plain language about what they can do, what they can’t, and what consequences they could face should they run afoul of the law.

November 13, 2012 — 29 comments — Columns

How Canadians Reclaimed the Public Interest on Digital Policy

The fall of 2007 was a particularly bleak period for Canadians concerned with digital policies. The government had just issued a policy direction to the CRTC to adopt a hands-off regulatory approach even as consumer prices for Internet and wireless services were increasing. Meanwhile, the Department of Public Safety held a semi-secret consultation on Internet surveillance where mandatory disclosure of subscriber information was assumed.

Moreover, the CRTC had largely rejected mounting concerns with the way Internet providers managed their networks (often called network neutrality), there were doubts about new wireless competitors entering the marketplace, Industry Canada had seemingly no interest in developing anti-spam laws or updating privacy legislation, the government agreed to participate in negotiations on the Anti-Counterfeiting Trade Agreement, and a copyright bill with virtually no user-oriented provision was being prepared for introduction.

My weekly technology law column (Toronto Star version, homepage version) notes that fast forward five years later and the CRTC has now positioned itself as a staunch defender of the public interest with consumer concerns at the centre of its policy making process, a lawful access bill was introduced in the spring but is viewed as politically dead, the CRTC has crafted and enforced new net neutrality rules, anti-spam legislation has been enacted, there are several new wireless providers and the removal of most foreign investment restrictions, the Anti-Counterfeiting Trade Agreement is discredited after being rejected by the European Parliament, and copyright reform is set to take effect this week with a host of user safeguards and rights.

November 6, 2012 — 2 comments — Columns

Supreme Court Confirms Privacy Survives in the Workplace

Millions of Canadians go to work each day, turn on their workplace computers, and wonder whether they have also shut off their privacy. Many employers seek to remove any reasonable expectation of privacy by telling employees that they should not expect any privacy when using workplace computers during company time.

Earlier this month, the Supreme Court of Canada grappled with the question of workplace privacy and arrived a somewhat different conclusion. My weekly technology law column (Toronto Star version, homepage version) notes it ruled that the workplace environment may diminish an employee’s reasonable expectation of privacy, but it does not remove the expectation altogether.

November 2, 2012 — 3 comments — Columns

CRTC Pushes Bill of Rights for Consumers

Earlier this month, the Canadian Radio-television and Telecommunications Commission invited the public to help create a national code of conduct for wireless companies such as Bell, Rogers, and Telus. The consultation is expected to generate widespread interest, providing frustrated consumers with an outlet for grievances on lengthy contracts, problematic terms and conditions, exorbitant roaming costs, or onerous cancellation fees.

My weekly technology law column (Toronto Star version, homepage version) notes the decision to embark on a national, enforceable code of conduct for wireless services supported by the wireless carriers represents a dramatic policy shift that was scarcely imaginable only a few years. Indeed, when then-Industry Minister Maxime Bernier pushed through a policy direction to the CRTC in 2006 aimed at limiting regulation by calling for “greater reliance on market forces”, consumer-focused regulations were viewed as an impossibility. Consistent with the market-led approach, the Canadian Wireless Telecommunications Association introduced a voluntary code of conduct in 2009 with no expectation of government regulation.

The move toward new regulations provides a valuable lesson on the role that the provinces can play to jumpstart otherwise stagnating issues. In the case of wireless services, the introduction of provincial consumer protections geared specifically toward the wireless sector ultimately encouraged the carriers to drop their opposition to new regulation as they recognized that a uniform federal policy was preferable to the emerging piecemeal provincial framework.

October 23, 2012 — 8 comments — Columns