E-TIPS

It seems that Canadians do not like answering telemarketers’ calls during dinner-time. The national do-not-call list (DNCL) was launched just after midnight on September 30th and within hours it was overwhelmed by people wanting to register their telephone numbers. By 4 pm on Day 1, the DNCL web site had received nine million hits, and there had been 1.5 million attempts to call in. The result was that the Canadian Radio-television and Telecommunications Commission’s (CRTC) web site crashed, and its toll-free phone lines gave callers a busy tone.

In a previous issue of E-TIPS® ("Transmission of Ring Tones to Customers is a Communication Protected by Copyright," Vol 6, No 15, January 30, 2008) , it was reported that the Federal Court of Appeal, in Canadian Wireless Telecommunications Association v Society of Composers, Authors and Music Publishers of Canada (2008 FCA 6), found that wireless transmission of ring tones from wireless carriers to the cell phones of their subscribers constituted communication to the public by telecommunication. As a result, the Copyright Board of Canada (Board) could subject ring tones to copyright royalties in respect of the copyright owners' telecommunication rights.

The US Court of Appeals for the First Circuit has affirmed a lower court finding that an Internet-based retailer was liable for trade-mark infringement for embedding its competitor's trade-mark on its web site.

In mid-September, a new Facebook group and application were developed, directed at the upcoming Canadian federal election. The first such group and application's title was "Anti-Harper Vote-Swap Canada" [the reference here is to the Canadian Prime Minister, Stephen Harper]. The group formalizes vote swapping between Canadian voters and was inspired by the popularity of "vote pairing" used during both the 2000 and 2004 elections in the United States.

The Chief Judge of the US District Court for the District of Minnesota, Michael Davis, has vacated a decision ordering Ms Jammie Thomas to pay $222,000 to copyright owners for making copyrighted music available online (see "A Significant US Copyright Award for File-Sharing", E-TIPS® Vol 6, No 8, October 10, 2007).

Two recent decisions of the Privacy Commissioner of Canada (Commissioner), highlight the importance of privacy considerations when conducting business and the requirement to obtain informed and meaningful consent from customers.

In a previous issue of E-TIPS®, it was reported ("Travelers' Laptops May be Detained at US Border", Vol 7, No 4, August 13, 2008) that the US Department of Homeland Security (Agency) released an advisory dated July 16, 2008 (Policy) entitled Policy Regarding Border Searches of Computers. The Policy stated that US custom officers may detain original documents or copies of persons seeking entry and also may retain electronic devices for a reasonable period of time to perform a thorough border search.

On October 5, 2008, amendments to the Canadian Industrial Design Regulations came into force (also see E-TIPS®, "CIPO Accepting Comments on Proposed Amendments to the Industrial Design Regulations", Vol 6, No 25, June 18, 2008). The amendments provide greater flexibility in colour and size requirements of design applications, permit increased clarity for illustration of a design, an article and the environment in drawings and photographs and include minor administrative amendments.

In R v Ward (2008 ONCJ 355), Mr. Justice Lalande of the Ontario Court of Justice found that an internet service provider (ISP) customer, David Ward, who had been charged with possessing and accessing child pornography, had no reasonable expectation of privacy in respect of his name and address. As a result, Justice Lalande found that the ISP’s disclosure of Mr. Ward’s name and address to the RCMP without a warrant did not infringe Mr. Ward’s rights.

The Innovation Partnership, a non-profit IP consulting firm organized through McGill's Centre for Intellectual Property Policy, has released a report that supports more collaboration and sharing of knowledge among stakeholders of biotech IP rights.

Legal outsourcing is the practice of a law firm obtaining legal or non-legal support services from an outside law firm or legal support services company. On August 5, 2008, the American Bar Association (ABA) released a formal opinion accepting legal outsourcing as a permissible practice. The ABA opinion supports legal outsourcing so long as there is protection for client confidentiality and preservation of attorney-client privilege.

In April, the Data Protection Working Party of the European Commission issued an Opinion that recommended search engines delete or anonymize user search data after six months.

On September 8, 2008, Judge Robert Patterson of the US District Court for the Southern District of New York ruled in favour of author JK Rowling in her copyright infringement lawsuit against a fan who attempted to publish a Harry Potter lexicon.

A private bus company has asked the Ontario Highway Transport Board (OHTB) to ban PickupPal.com, a service that arranges ride-sharing through the internet. A similar service, Allo-Stop, had been banned in Ontario in 2000.

The Trade-marks Opposition Board (TMOB) is accepting comments on proposed changes to the current practice notice on trade-mark opposition proceedings. The TMOB proposes to simplify and clarify the granting of extensions of time, introduce a cooling-off period for parties to pursue settlement negotiations and introduce a new practice for the scheduling of hearings.

In Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd [2008] FCA 1225, the Federal Court of Australia has found that an “innovative step”, which is required in an “innovation patent”, is a significantly lower hurdle to meet than the “inventive step” requirement for a standard patent.

DataTreasury Corporation (DataTreasury), a US-based corporation, launched an action against a number of Canadian banks (Banks) in the Federal Court for allegedly infringing its patent rights pertaining to cheque imaging and processing technology. On a preliminary motion to settle the terms of a protective order (Datatreasury Corporation v Royal Bank of CanadaDatatreasury Corporation v Royal Bank of Canada (2008 FC 955)), the Court was faced with balancing the risk of the disclosure of personal information with the requirement that documents relevant to ongoing litigation be produced.

McMaster University (University) in Hamilton, Ontario received requests under the Freedom of Information and Protection of Privacy Act (FIPPA) for information relating to clinical trials, including trials suspended for safety concerns, trials involving deaths, trials involving adverse events, and trials involving certain vulnerable subjects.

In a split decision, the US Court of Appeals for the Ninth Circuit (Court) has upheld a lower court ruling that Monsanto Inc (Monsanto) should be blocked from selling its herbicide-resistant alfalfa seed until federal regulators have completed a full environmental assessment.

The Identity Theft Resource Center (ITRC) released its updated 2008 US report (Report) which indicates that so far, 2008 has seen more data breaches than all of 2007. The ITRC found that as of August 22nd, the number of confirmed data breaches in 2008 stood at 449, surpassing 2007's 446 breaches. To qualify as an ITRC data breach, each breach must include the unauthorized release of personal identifying information that could lead to identity theft.