E-TIPS

As noted in the preceding issue of E-TIPSâ„¢ (Vol 2 No 22 April 14, 2004), several pharmaceutical companies are taking steps to choke off the cross-border flow of cheaper medicines from Canadian Internet pharmacies to consumers in the US. Supplies to some Canadian wholesalers are reported to have been restricted where the wholesalers have continued to facilitate US exports via Internet ordering.

As anticipated by many commentators, the Canadian federal government has formally exempted from the scope of its comprehensive private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), the collection, use or disclosure of personal information that occurs within the provinces of Alberta or British Columbia by organizations, other than a "federal work, undertaking or business", to which either the Personal Information Protection Act, SA 2003, c P-6.5 (Alberta) or the Personal Information Protection Act, SBC 2003, c 63 (British Columbia) applies. This follows from the federal government's finding that the provisions of the legislation in these two provinces are "substantially similar" to those of PIPEDA. (Such an exemption has already been granted regarding comparable legislation in Quebec).

In a case concerning Internet defamation, the BC Supreme Court ruled that the British Columbia Federation of Foster Parents Association (the Federation) acted reasonably in responding to defamatory material posted to a chat room on its web site.

New regulations expected to take effect May 1, 2004 under European Union competition laws may complicate technology licensing in Europe. The European Technology Transfer Block Exemption Regulation (TTBER) provides a blanket exemption from EU competition law for patent, know-how and software copyright licenses that meet certain specified criteria. However, changes in the Regulations may make it more difficult to know in advance which license terms will be permitted.

As reported in the E-Tips Special Report (Vol 2, No 21, March 31, 2004), the Federal Court of Canada dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who allegedly traded music on the Internet.In reaching its decision, the Court made three key findings:

On March 24, 2004, a WTO panel made its interim finding that the twin island nation of Antigua and Barbuda (population 67,000) was successful in its complaint against the United States: "United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services" (WT/DS285). The complaint alleged that US federal and state legislation making it an offence for US banks to process online gambling transactions violates the General Agreement on the Trade of Service (GATS). Such US legislation effectively prohibits all supply of gambling services from outside the US, even though US companies carry on gambling businesses both domestically and internationally. In effect, argued the successful complainant, the US had engaged in anti-competitive protectionism of its domestically-owned gambling industry.

While the importation of drugs via Canadian Internet pharmacies remains an issue hotly debated in the US by federal and State governments, individual US residents continue to purchase prescription drugs from these pharmacies. Not surprisingly, therefore, pharmaceutical companies are taking steps to constrain this cross-border activity.

Almost a year ago, Internet service providers Microsoft, AOL, and Yahoo formed the Anti-Spam Technical Alliance (APTA) and undertook to develop technical standards and guidelines that would work for any software or hardware systems in the fight against spam. These ISPs, together with Earthlink, were in the news recently for launching their first joint legal attack against bulk e-mailers under the US Can-Spam Act, see E-TIPSâ„¢ (Vol 2, No 21, March 31, 2004). However, a technical solution may be more effective than a legal one to combat the continuing flood of spam which, it is estimated, makes up 50 to 90 per cent of all e-mail and costs US companies $1 billion per year in security, human resources and productivity.

© 2004, Deeth Williams Wall. All Rights Reserved By: Colin Adams, Student at Law (April 14, 2004) As reported in the E-Tips Special Report (Vol 2, No 21, March 31, 2004), the Federal Court of Canada dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who allegedly traded music on the Internet.

In a highly anticipated decision, the Federal Court of Canada today dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet.

On March 24, 2004, the European Commission (EC) concluded a five-year investigation of Microsoft by imposing a fine of €497.2 million (over US$600 million) for anti-competitive practices in relation to its server and digital media player software in the European Union (EU).

It was recently noted (in a news report no longer available on the web site), that CanadaRx Corp (CanadaRx) has brought an action in the Federal Court of Canada to prevent Health Canada from inspecting its facility. Although Health Canada has taken the position that the proposed inspection was merely part of its program of random inspections of Internet pharmacies, CanadaRx claims that it was being penalized for selling its cheaper drugs to Americans.

The results of a recent survey put into question the effectiveness of the US CAN-SPAM Act, America's first federal anti-spam legislation, which came into force on January 1, 2004. The statute represents an attempt to regulate spamming by prohibiting some common spamming techniques such as falsifying senders' true identities, using misleading subject lines and improperly harvesting e-mail addresses.

Recently, the decades-old US embargo against trade with Cuba has been invoked against Canadians, this time involving business activity carried on over the Internet. Hola Sun Holidays Limited (Hola) has been designated by the US Treasury Department, Office of Foreign Asset Control, as a Cuban-controlled entity. As a result of this designation, anyone governed by US jurisdiction is prohibited from doing business with Hola under the US Trading With The Enemy Act (1917). (While newspaper reports speculated whether the US designation derived from a mistaken perception that the Toronto owner of Hola, Fidel Ferrer Castro, is a relative of the Cuban dictator, nevertheless the designation stands).

On February 20, 2004, the District Court for the Southern District of New York ruled on a motion to dismiss several claims advanced by a Canadian plaintiff corporation, IMS Inquiry Management Systems (IMS). The case involved the unauthorized use and alleged content appropriation of IMS' web-based advertising tracking software, "e-Basket", by the defendant, Berkshire Information Systems Inc (Berkshire).

On March 4th, the Supreme Court of Canada released a landmark decision, CCH Canadian Ltd v Law Society of Upper Canada, overturning earlier rulings that the Law Society of Upper Canada had infringed copyright in certain publishers' works. The Law Society maintains and operates the Great Library, a research library with one of the largest collections of legal materials in Canada. It provides a request-based photocopy service for authorized researchers and self-service photocopiers for use by its patrons. The respondent legal publishers had brought copyright infringement actions against the Law Society in 1993.

As previously reported in E-TIPSâ„¢, (Vol 2, No 2, July 3, 2003 and Vol 2, No 9, October 9, 2003), attempts were made through Bill C-36 to amend the Canadian Copyright Act to extend the term of copyright to December 31, 2017 over unpublished works of authors who died between 1930 and 1948. The heirs of Lucy Maud Montgomery, author of the Anne of Green Gables stories, were particularly interested in protecting the 10 volumes of diaries written by Ms. Montgomery, which remained unpublished until after she died in 1942.

Depending on the outcome of two pending cases in New Hampshire and Illinois, US state law enforcement agencies may have to revise their methods when investigating and collecting information on individuals from Internet chat rooms. Under state wiretapping laws, evidence acquired through software that "recorded" the Internet chat room conversations may be inadmissible in criminal proceedings.

Radio frequency identification (RFID) technology has been often in the news lately, including a recent move in California to regulate its use. RFID technology uses radio waves to communicate a signal over a short distance between an RFID tag and a reader. Each tag is able to communicate a unique identifier, just as does a bar code. Because the tags and readers are small and inexpensive, a network of tags and readers can be easily and unobtrusively implemented in a location such as a retail store or a warehouse. The tag's signal is picked up by only one reader at a time. When a reader receives a signal from the tag, the reader's location can be correlated with the tag identifier to get a reasonably accurate location of the tag.

In a recent arbitration award involving the transference of domain names, a Domain Name Dispute Resolution Panel (Panel) established by the Canadian Internet Registration Authority (CIRA) refused to rule on the issue of bad faith, in apparent contravention of its Domain Name Dispute Resolution Policy (CDRP). Diners Club International Ltd (DCI) brought a complaint against Planet Explorer Inc. (PEI), which had registered the domain names and . PEI registered the domain names for the purpose of warning potential customers about DCI's business practices and to gather support for a class action lawsuit against DCI.