A NAFTA Arbitration Panel has dismissed Eli Lilly's claim for compensation from the Canadian government for the invalidation of two of its patents by the Supreme Court of Canada. Lilly claimed that Canada's utility standard under patent law failed to meet its NAFTA obligations, and that the invalidation of its patents amounted to an expropriation that entitled it to a remedy under NAFTA's investor protection provisions.
Lilly's argument sought to leverage international trade investor protection provisions to shape the general contours of substantive intellectual property law. The Panel rejected that invitation, declining to challenge courts' supervisory role over patentability in the Canadian patent system, stating that "a NAFTA Chapter Eleven tribunal is not an appellate tier" and that it would be inappropriate for a NAFTA tribunal to assess judicial conduct against NAFTA obligations other than in "exceptional circumstances, in which there is clear evidence of egregious and shocking conduct."
The Federal Court of Canada has found that obtaining, reading and distributing paywalled articles for the purposes of assessing and responding to the contents of those articles constituted fair dealing under the Copyright Act.
Given the outcome of its fair dealing analysis, Justice Barnes saw no need to address the Government's claim that Blacklock's practices constituted copyright misuse, although he did note that there are "certainly some troubling aspects to Blacklock's business practices". The Court awarded costs to the Government.
The trial in Blacklock’s Reporter v Attorney-General Canada ended today with the parties’ closing arguments.
Justice Barnes opened the day inviting the parties to make submissions focusing on the legal implications of what happened between the parties.
Plaintiff’s counsel opened argument with a brief review of the documentary evidence, and suggested that there were four issues: (1) infringement, (2) fair dealing, (3) copyright misuse, and (4) damages.
Voltage Pictures and its litigation partners - the applicants in a file-sharing "reverse class action" - have been granted a Norwich Order in respect of a single John Doe. The Court limited its Order to the name and address of the Rogers subscriber (the Applicants had sought additional information such as email address) and required payment to Rogers at its hourly fee for providing the subscriber data (the Applicants had argued that the new notice and notice provisions of the Copyright Act meant that Rogers had to provide this information for free). CIPPIC intervened in the motion on the narrow issue of the privacy protections and limits that might be required of any such order. It is possible that Voltage and its partners might appeal the decision on the issue of paying ISP costs. However, with the Order in hand, Voltage and its litigation partners are in place to begin discovery against the Doe with the goal of having the Doe appointed as the representative defedant and moving towards certification of its controversial reverse class proceeding.
UPDATE: On Friday, August 5, 2016, Voltage filed a Notice of Appeal, FCA File No A-278-16, with the Federal Court of Appeal, challenging the Federal Court's conclusion that it cannot pass the cost of enforcing its rights on to Rogers' customers. Voltage did not seek a stay of the Proposed Class Action Proceeding and, as a result, it appears as though the class proceeding and the appeal will proceed in parallel.
CIPPIC and Carleton University’s Geomatics and Cartographic Research Centre have proposed the creation of a Traditional Knowledge open licensing scheme to help overcome some of the challenges associated with granting and obtaining permission for the use and sharing of traditional knowledge. The scheme envisions a series of open licenses - similar to Creative Commons licenses - responsive to the needs of granting communities that help overcome some of the obstacles parties routinely encounter in granting and obtaining permission for the use and sharing of traditional knowledge.
Canada Post has agreed to discontinue it's copyright infringement lawsuit against Geolytica. The case involved a claim that Geloytica's use of a crowd-sourced database of postal codes mapped to geographic addresses infringed intellectual property rights Canada Post alleged that it enjoyed in those postal codes.
While the terms of settlement are confidential, the parties have prepared an agreed statement:
Canada Post commenced court proceedings in 2012 against Geolytica Inc. for copyright infringement in relation to Geolytica Inc.'s Canadian Postal Code Geocoded Dataset and related services offered on its website at geocoder.ca. The parties have now settled their dispute and Canada Post will discontinue the court proceedings. The postal codes returned by various geocoder interface APIs and downloadable on geocoder.ca, are estimated via a crowdsourcing process. They are not licensed by geocoder.ca from Canada Post, the entity responsible for assigning postal codes to street addresses. Geolytica continues to offer its products and services, using the postal code data it has collected via a crowdsourcing process which it created.
While undoubtedly a good outcome for Geolytica, the settlement leaves unaddressed the legal claims advanced by Canada Post.
FAQ on privacy and copyright issues raised by photography-related activities.
c e t a
In 2002, the European Commission and the Government of Canada agreed
to “design a new type of forward-looking, wide-ranging bilateral trade agreement covering…new generation issues and outstanding trade barriers.”
On May 6, 2009, Canada and the European Union (EU) announced the launch of formal negotiations towards the new trade and investment agreement, the Comprehensive Economic and Trade Agreement (CETA).
CETA is intended to build upon previous economic cooperation agreements between Canada and the EU, starting with the 1976 Framework Agreement for Commercial and Economic Co-operation, as well as the 1998 EU-Canada Trade Initiative.
While the scope of CETA is broad, this F.A.Q. will focus on intellectual property issues.
The Anti-Counterfeiting Trade Agreement, or "ACTA", is a controversial trade agreement negotiated by a number of nations, including Canada. ACTA addresses standards of enforcement of intellectual property rights. ACTA's content has the potential to impact civil liberties and divert public resources towards the enforcement of private rights.
Bill C-61 was a bill to amend Canada's Copyright Act. The bill died on the order paper with the election of 2008. However, the present government has indicated in its Throne Speech that it intends again to introduce legislation to amend the Copyright Act. Accordingly, we keep this FAQ available to the public.
Over the past few years, file-sharing - i.e., the sharing of files over peer-to-peer (P2P) networks - has become a popular way for music lovers to sample and gather music from a wide range of performers. However, most of the music downloaded and shared by consumers is copyrighted and hence, subject to laws limiting the rights of consumers to reproduce and distribute it.
Digital Rights Management (DRM), also sometimes called ECMS, or electronic copyright management systems, are technologies designed to automatically manage rights in relation to information. This can include preventing copyright works and other information from being accessed or copied without authorization and establishing and enforcing license terms with individuals.
Copyright is a system of laws for promoting both the creation of and access to artistic, literary, musical, dramatic and other creative works. It is usually presented as a balance between promoting the public interest in the encouragement of the creation and dissemination of works of the arts and intellect, and obtaining a just reward for the copyright holder
Bill C-60 was a proposal to amend Canada's Copyright Act. The Bill died on the order paper with the fall of the Martin government in 2005. However, the issues that motivated the government to table this Bill remain with us.
Copyright law reform
SOCAN v. Bell (2011)
CIPPIC is seeking leave to intervene is SOCAN v. Bell, a copyright case that will consider the scope of fair dealing for research purposes.
Blacklock’s Reporter v AG Canada Case opens in Federal Court
On March 4, 2004 the Supreme Court of Canada released its decision in the case of Law Society of Upper Canada v. CCH Limited  S.C.J. No. 12, (2004) 236 D.L.R. (4th) 395 holding (i) that the Copyright Act's fair dealing exception should be liberally interpreted to prevent undue restraint of users' rights and (ii) that the provision of self-service photocopiers does not equal an infringement of copyright.
The Supreme Court of Canada heard arguments on Dec.3, 2003 from Internet Service Providers (ISPs) and music industry representatives in an important case that will decide, among other things, the extent to which Canadian ISPs are liable for content flowing through their networks, and the extent to which foreign actors who target communications to Canadians may be liable under the Canadian Copyright Act.
Edit: Decision released! (November 26)
In a 7-2 decision
, the Court upheld the Copyright Board's decision to characterize broadcast-incidental copies as "reproductions" for the purposes of the Copyright Act
, but overturned the Board's method of calculating fees payable for such activities. The majority found no reason to depart from long-standing caselaw on the character of ephemeral copies as reproductions for the purposes of the Act, and concluded that the separation of synchronization and broadcast‑incidental licences does not offend technological neutrality or impose new layers of protection or fees based solely on technological change. However, the majority concluded that the Board failed to consider the principles of technological neutrality and balance in valuing the ephemeral licence. The Court concluded that balance between user and right‑holder interests requires that the Board assess the respective contributions of the user and the copyright‑protected works to the value enjoyed by the user. Factors relevant to this balance include:
the risks taken by the user,
the extent of the investment made by the user in the new technology, and
the nature of the copyright protected work’s use in the new technology.
National Post/Warman v. Fournier, Federal Court of Appeal, File Nos. A-394-12 & A-395-12
Voltage v. Doe, Federal Court, 2013
CIPPIC has filed a Statement of Defense on behalf of its client, Geolytica, in response to a lawsuit filed by the Canada Post Corporation in the Federal Court of Canada (File No. T-519-12) claiming that it owns copyright in its database of postal codes and that Geolytica has infringed that copyright by "crowd-sourcing" data for its own database of postal codes mapped to street addresses.
The case raises fundamental copyright issues, including the scope of protection afforded compilations of data, the subsistence of copyright in factual address identifiers such as postal codes, and the availability of defenses such as fair dealing to developers of research tools such as Geolytica's Canadian Postal Code Geocoded Dataset. The case will have significant implications for downstream innovators and analysts looking at using datasets for research and to facilitate the research of others.
Copyright Pentalogy (SCC, 2012)
Following through on its threat, the Canadian Recording Industry Association (CRIA) launched a lawsuit in the Federal Court (Trial Division), in Toronto Ontario, on February 10, 2004 against 29 unnamed alleged music file-sharers.
Canada's 2010 Digital Economy Consultation
To better understand the basics of copyright law, Prof. Samuel E. Trosow (Western Ontario University)
presents to us his master class: Introduction to Copyright Law and prospects for new legislation.
In 2005, parliament considered revisions to the Copyright Act
in order to ensure that Canada's copyright framework remained relevant in the rapidly changing digital environment. The Canadian government introduced a long-awaited bill to amend the Copyright Act on June 20, 2005.
As Parliament considers legislated protection of Digital Rights Management (DRM) technologies (designed to detect and stop copying of digital works), the Privacy Commissioner of Canada has indicated her intent to "initiate a dialogue" with the departments of Heritage Canada and Industry Canada "to ensure that privacy risks" associated with any copyright legislation "are addressed." Some of the Commissioner's provincial counterparts have signaled their support of her initiative.
On May 12, 2004 the Standing Committee on Canadian Heritage, chaired by Sarmite D. Bulte, M.P. released an interim report listing a number of recommended reforms to Canadian copyright law. The first round of hearings for the report were launched in October 2003 where the Committee heard from a panel of invited witnesses including representatives from Canadian Heritage, Industry Canada, the Canadian Internet Policy and Public Interest Clinic, the Canadian Association of Internet Providers and the Canadian Motion Picture Distributors Association among others. As a result of these consultations, the Committee came up with a number of recommendations.
In September 2003, the House of Commons Standing Committee on Canadian Heritage ("Heritage Committee") began its review of the Section 92 report published by Industry Canadain October 2002.