E-TIPS

Masato Nakatsuji, the creator of a malicious computer virus, was recently convicted in Japan, not of creating a virus, but of copyright infringement, thereby putting into question the efficacy of laws available to fight such offences. The case should also raise questions in the international community about the adequacy of protection available against cybercrime in Japan, and prompt a closer look at the laws available elsewhere, including Canada.

In Genencor International Inc v Canada (Commissioner of Patents) 2008 FC 608, Justice Gibson of the Federal Court dismissed an appeal from the decision of a patent re-examination board (Board) to cancel all claims of Patent No 2093422 (Genencor Patent), owned by Genencor International Inc (Genencor).

In October 2007, Canada's Department of Foreign Affairs and International Trade announced that it would engage in discussions with countries including the United States, Mexico, the European Union, Switzerland, Japan, South Korea, and New Zealand to develop an Anti-Counterfeiting Trade Agreement (ACTA). The goal of ACTA is to combat counterfeiting and piracy by focusing on international cooperation, enforcement practices and legal frameworks. By March 2008, informal discussions had taken place and formal negotiations are expected soon.

In October 2007, Canada's Department of Foreign Affairs and International Trade announced that it would engage in discussions with countries including the United States, Mexico, the European Union, Switzerland, Japan, South Korea, and New Zealand to develop an Anti-Counterfeiting Trade Agreement (ACTA). The goal of ACTA is to combat counterfeiting and piracy by focusing on international cooperation, enforcement practices and legal frameworks. By March 2008, informal discussions had taken place and formal negotiations are expected soon.

In 2004, the federal Government established a Task Force on Spam to oversee implementation of an Anti-Spam Action Plan. In its Final Report to the Minister of Industry in 2005 the Task Force recommended that the Government "establish in law a clear set of rules to prohibit spam and other emerging threats to the safety and security of the Internet (e.g. botnets, spyware, keylogging) by enacting new legislation and amending existing legislation as required". (For further information, see ETIPS®, "Canadian Minister of Industry Announces Anti-Spam Task Force", Vol. 2, No. 25, May 26, 2004).

The Premier of Ontario, Dalton McGuinty, announced that he is considering banning the use of electronic devices, not just cell phones, on the province's highways.

The practice by an ISP of limiting customers' Internet usage, known as traffic shaping, has prompted a level of opposition based on considerations of privacy and a principle of "net neutrality". Recently, the Canadian Radio-Television and Telecommunications Commission announced that it would probe ISP traffic shaping (see E-TIPS®, "CRTC Launches Probe into Internet Traffic Management Practices", Vol 6, No 23, May 21, 2008).

The Canadian Internet Registration Authority (CIRA) is implementing changes to the public registry of ".ca" domain name holders. Currently, when a registrant registers a ".ca" domain name, the registrant's contact information and e-mail address is posted in a publicly accessible database (WHOIS database).

The Canadian Radio-Television and Telecommunications Commission (CRTC), the governing body that deals with Canadian broadcasting and telecommunications issues, has launched an information probe into Internet traffic management practices. The probe is to gather information in preparation for making a final disposition in a dispute between Bell Canada and the Canadian Association of Internet Providers (CAIP) over alleged “traffic shaping”. CAIP had applied to the CRTC for an interim injunction to stop Bell’s wholesale Internet traffic management practices. The CRTC refused to grant the injunction in a decision released last week.

The Canadian Radio-television and Telecommunications Commission (CRTC) has issued a call for comments on the topic of broadcasting in new media, that is, the effect on broadcasting of the new digital technologies and platforms. Specifically, the CRTC would like to hear from the public on:

In a summary judgment motion brought by seven recording labels suing music downloaders, Judge Neil Wake of the Arizona District Court in the case of Atlantic Recording Corporation v. Howell found that there is no "making available" right under US copyright law and that the downloading of music by third parties does not constitute "distribution" by the person making those files available.

As of May 12, 2008, the Industrial Design office of the Canadian Intellectual Property Office has eliminated fees for the recordal of documents, except assignments and licences. The fee of $100 per design will still apply for recordal of assignments and licences. The Industrial Design office has indicated that the purpose of the change is to encourage owners of industrial designs to update ownership information.

In the US District Court for the District of Oregon, Payless Shoesource Inc (Payless) was found to infringe Adidas of America Inc's (Adidas) THREE STRIPE trade-mark in the recent decision of Adidas America Inc et al v Payless ShoeSource Inc (No. 01-1655).

Charter Communications Inc (Charter), an ISP and the third largest cable operator in the US, plans to test a web-tracking program in four cities which will track its customers' web browsing, including search terms and URLs visited, and use that information to provide targeted advertising.

The Los Angeles County Board of Supervisors (County) recently passed an ordinance which declares music and video piracy a public nuisance. In doing so, the County was supported by the Recording Industry Association of America and the Motion Picture Association of America. The new ordinance authorizes:

On April 8, 2008, the government introduced a new Bill, C-51, which proposes to make extensive changes to the Food and Drugs Act and other corresponding legislation. The changes would include a complete repeal of all schedules to the Food and Drugs Act (including Schedule “A”, which prohibits all claims to certain serious conditions and diseases), increased recall powers and higher penalties, a tremendous increase in regulation making authority, an apparent removal of the direct-to-consumer (DTC) advertising ban, and, less controversially, the wholesale modernization of the drug, device and food approval regime. Given the minority status of the Conservative government, the fact that this bill has only received first reading and has not yet been studied by committees, it is difficult to know whether the changes proposed in Bill C-51 will become law.

We previously reported that eBay Canada Limited and eBay CS Vancouver Inc. (collectively "eBay") were ordered by the Federal Court to disclose contact information and sales volumes of top sellers ("PowerSellers") to the Minister of National Revenue (Minister) (see ETIPS®, "Court Orders E-Bay to Disclose Sellers to Canadian Tax Authority", Vol. 6, No. 8, October 10th, 2007).

In Scotch Whisky Association v. Glenora Distillers International Ltd. (2008 FC 425), Justice Harrington of the Federal Court found that the word "glen" used in association with whisky has become recognized in Canada as designating that the whisky is made in Scotland, and so whisky producers from elsewhere are prohibited from adopting it as a trade-mark.

Recently, the Canadian Government proposed additional amendments to the Patented Medicines (Notice of Compliance) Regulations ("NOC Regulations"). The amendments remove the requirement that a patent submitted for listing on Canada's patent register before June 17, 2006, must be "relevant" to the submission for a notice of compliance ("NOC") to which the patent list relates. A drug company seeking regulatory approval to sell and market a generic drug in Canada must address the patents listed on the patent register for the innovator's version of that drug.

In a recent decision of the US Court of Appeals for the Federal Circuit (Litecubes v. Northern Light Productions (GlowProducts) (Fed. Cir. 2008)), the Court of Appeals found that a Canadian company, GlowProducts, infringed a US patent owned by Litecubes, even though the legal title of the product was transferred outside the US.