E-TIPS

When authorities in Quebec decided to prosecute two Drummondville men who had advertised in a local newspaper the sale of satellite dishes to catch US television signals, it is unlikely that they expected Canada's entire satellite broadcast regulatory system to be challenged. In R v Thériault, a Quebec Court judge has ruled that federal restrictions on the provision of direct-to-home satellite signals are invalid because they infringed the freedom of speech provisions of the Charter of Rights and Freedoms (Charter).

On October 20, 2004, Senator Donald Oliver re-introduced anti-spam legislation to prevent unsolicited messages on the Internet. Bill S-15 (the Spam Control Act) contains the following initiatives:

On October 19, 2004, British Columbia passed Bill 73, which amends the Freedom of Information and Protection of Privacy Act (FOIPP Act) to restrict the disclosure of personal information outside Canada and expand the scope of personal liability and sanctions in the legislation. The move was in response to fears that the increased outsourcing of data processing and the management of information might subject personal information sent abroad to uses inconsistent with Canadian law.

A previous issue of E-TIPSâ„¢ (Vol 3, No 10, October 27, 2004) included an article regarding US regulatory approval of broadband Internet access over power lines (BPL). While it is too early to know whether consumers will embrace BPL for residential high speed Internet access, alternative new uses for the technology are already beginning to emerge.

Although MAGLITE brand flashlights have been on display in museums and have been won international design awards, the EU Office for Harmonisation in the Internal Market (OHIM) refused to register trade-marks for the MAGLITE flashlight design on the basis that the designs were devoid of distinctive character.

On September 29, a Judge in the Southern District of New York struck down section 505 of the USA Patriot Act which authorized the issue of special administrative subpoenas for records – including information stored electronically – held by organizations, including ISPs, banks, public libraries, and others. The subpoenas (also known as National Security Letters), said the Judge, were not subject to sufficient judicial oversight and recipients were even prohibited from revealing that they had been served with a National Security Letter.

The Ontario Superior Court of Justice recently held in Big Pond Communications v Kennedy that absolute privilege in pleadings in civil cases extends to the metadata in those pleadings, in this instance, the file path and name that appeared printed at the bottom of most pages of the plaintiff's statement of claim. Although the statement of claim itself did not allege theft – only misuse of confidential information – the plaintiff's lawyers had saved the statement of claim document in an electronic folder entitled "theft", and this was included in the pathname which appeared at the bottom of the printed document filed in court.

The Standing Senate Committee on Social Affairs, Science and Technology recently convened to review draft legislation that would change the existing rules governing ownership of copyright in commissioned photographs. Introduced on October 7th, 2004, Bill S-9 aims to eliminate what some have seen as an anomaly in the Copyright Act which has treated photographers differently from other artists.

Soon you may be able to connect to the Internet by plugging into an electrical socket. In October, the US Federal Communications Commission (FCC) introduced rules allowing power lines to be used to access the Internet. Existing power lines would carry communication signals and Internet users would be able to connect using a special modem that plugs into an electrical outlet. Although the speed would be slower than through residential fibre optic lines, it would be comparable to cable and dial-up service.

The draft Regulations for Bill C-9, stemming from what is often referred to as the "Jean Chrétien Pledge to Africa", are open for public comments and questions. Submissions will be accepted until December 17, 2004. Passed by Parliament on May 14, 2004, Bill C-9 amends both the Patent Act and the Food and Drugs Act. The legislation was designed to implement the WTO decision of August 30, 2003 to waive certain trade obligations under the TRIPS Agreement which are thought to prevent effective responses to public health emergencies in developing countries, such as those caused by outbreaks of HIV/AIDS, malaria and tuberculosis.

The Ontario Government is proposing reforms that will force Internet Service Providers to disclose to authorities any information about web sites that contain child pornography. The Attorney-General, Michael Bryant, announced last week that the Task Force on Internet Crimes against Kids is developing the reforms, along with a number of other policy tools to reduce child porn.

Considering that patent cases are infrequently heard by the House of Lords, it is noteworthy that the UK's highest court has recently released two decisions in this area of the law: Kirin Amgen Inc v Hoechst Marion Roussel Limited and TKT (the Amgen case) relating to a biotechnology patent for the erythropoietin protein (EPO) used to treat anemia and Sabaf SpA v MFI and Menegetti (the Sabaf case), relating to a patent for gas hob burners. Each case involved fundamental patent issues such as claim construction, obviousness, anticipation and sufficiency. In both cases, the House of Lords found that the disputed patents were invalid.

A British Court has granted an interim order sought by the British Phonographic Industry (BPI) to force ISPs to release the names of 28 song-swappers. The order, granted without written reasons, was unopposed by the ISPs. An article in CNET news.com quotes Justice Blackburne of the High Court: "[o]n the face of it this appears to be a powerful case of copyright infringement".

The US 9th Circuit Court of Appeals has affirmed a damages award and an injunction remedy in a suit between rivals in the online trucking industry (Creative Computing v Getloaded.com and Martin, DC No CV-00-00476-BLW, October 15, 2004). The dispute arose when Getloaded.com (Getloaded) set up a web site in competition with Creative Computing's <truckstop.com>, a successful online service used by shippers and truck drivers to match their loads and trips.

© 2004, Deeth Williams Wall LLP. All Rights Reserved. By: Rosa Kim (October 13, 2004) The Ontario Ministry of Consumer and Business Services recently released a revised version of its draft Regulation under the Consumer Protection Act, 2002 (Act)1 following an official public consultation process2.

On September 30, 2004, the Canadian Creative Commons project was launched online. Led by the University of Ottawa's Canadian Internet Policy and Public Interest Clinic, it is designed to allow Canadians who create digital works, such as web sites, texts, courseware, music, film and photography, to share their works and allow others to copy, modify and redistribute them. The project attempts to create a balance between a system of total creative control ("all rights reserved"), and an unprotected public domain in which creators are vulnerable to exploitation. A creator using the Creative Commons (cc) licence will be able to publicize terms and conditions under which other creators may have access to the work's source code. In other words, it's a system of "some rights reserved".

It was recently reported in E-TIPS® (Volume 3, Number 1, June 23, 2004) that Canadian resident Eric Head, his brother, and his father had settled a lawsuit with Yahoo! Inc. The Heads were running a spamming operation, sending more than 94 million e-mails to users of Yahoo!'s e-mail service in one month alone, when they were sued in March under the US CAN-SPAM legislation. They agreed to stop sending unwanted e-mails and to pay Yahoo! at least US$100,000.

In Robertson v The Thomson Corporation et al (October 6, 2004, Court Docket C38148, not yet indexed by the Canadian Legal Information Institute), the Ontario Court of Appeal has ruled in a split 2-1 decision on several pre-trial motions involved in a class-action copyright dispute between freelance journalists and The Globe and Mail newspaper and other related parties, over the use of the journalists' articles in archival electronic databases.

In an effort to stem trafficking in infringing copyrighted works through "increasingly sophisticated electronic means, including peer-to-peer file trading networks, Internet chat rooms, and news groups", the US House of Representatives has passed the Piracy Deterrence and Education Act of 2004 (C 108:HR 4077). The legislation has the following implications:

In response to public pressure to stifle the spread of spyware, an anti-spyware bill was recently passed into law in California.