E-TIPS

On May 27, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that it had finalized the rates that large companies can charge competitors to access their high-speed broadband networks under the industry’s existing wholesale aggregated model. This decision resolves a long-standing dispute under the industry’s current wholesale framework and allows the CRTC to now shift its focus towards the industry’s new disaggregated wholesale model that is set to be implemented in the future.

On May 13, 2021, the Québec government introduced Bill 96 An Act respecting French, the official and common language of Québec (Bill), which proposes amendments to the Charter of the French language. One of the proposed amendments in the Bill requires non-French-language marks to be registered under the Trademarks Act in order to appear on public signs, posters and commercial advertising. The proposed amendments no longer recognize common law trademarks as “recognized trademarks” in Québec.

On June 1, 2021, the Federal Court of Canada (the Court) in Schneider Electric Industries SAS v Spectrum Brands, Inc., 2021 FC 518, dismissed an appeal challenging the Registrar of Trademarks decision, 2019 TMOB 94, finding that an opponent in a trademark opposition proceeding is not required to amend its statement of opposition in order to rely on an amended trademark registration which extends the statement of goods or services.

On May 11, 2021, the Privacy Commissioner of Canada released his submission to the House of Commons Standing Committee on Access to Information, Privacy and Ethics on Bill C-11 (the Bill), the federal government's proposed new private-sector privacy legislation introduced in November 2020 that would replace the current regime under the Personal Information Protection and Electronic Documents Act (as previously reported by the E-TIPS® Newsletter here).

On May 19, 2021, the Privacy Commissioner of Canada alongside provincial and territorial privacy commissioners and the ombuds of Manitoba and New Brunswick (the Commissioners) issued a joint statement on privacy considerations for COVID-19 vaccine passports (the Joint Statement). In the Joint Statement, the Commissioners recognized the substantial public benefit vaccine passports may offer, but stressed that privacy should be “front and centre” for governments and businesses considering vaccine passports as a tool to help Canadians return to normal life.

On May 13, 2021, the Federal Court of Canada (the Court) issued its decision in Canadian Broadcasting Corporation v Conservative Party of Canada, 2021 FC 425, in which it dismissed the copyright infringement claim brought by the Canadian Broadcasting Corporation (CBC) against the Conservative Party of Canada (CPC) for “attack ads” shown at the time of the 2019 federal election.

On May 13, 2021, the Office of the Privacy Commissioner of Canada (the OPC) announced that it has closed its file on a complaint against the Liberal, Conservative, and New Democratic Parties (the Parties), noting that the activities in the complaint are not subject to the privacy obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA).

The Federal Court of Appeal of Canada (the Court) recently dismissed the appeal in Apotex Inc. v Shire LLC, 2021 FCA 52. This was an appeal of a decision holding that the claims of Canadian Patent No. 2,527,646 (CA 646), directed to L-lysine-d-amphetamine (LDX), were valid. In this decision, the Court outlined that a selection patent is subject to the same requirements and vulnerable to the same attacks as any other patent, and in particular, that the validity analysis does not change depending on whether the patent was classified as a selection patent.

Canada’s Intellectual Property Office (CIPO) recently announced steps to attempt to address the growing backlog of unexamined Canadian trademark applications. However, progress is still expected to be slow.

On May 5, 2021, the Biden administration announced its position to support a temporary global waiver in intellectual property (IP) protection for COVID-19 vaccines to expand vaccine manufacturing and distribution around the world.

On April 24, 2021, the proposed Regulations Amending the Patented Medicines (Notice of Compliance) Regulations (the proposed Amendments) were published in Canada Gazette, Part I that intend on expanding the definition of ‘claim for medicinal ingredient’ under the Patented Medicines (Notice of Compliance) Regulations (the Regulations). This change would permit patents containing a claim related to a different salt form of an approved medicinal ingredient to be eligible for listing on Canada’s patent register.

On April 9, 2021, the Federal Court of Canada (the Court) issued its decision in Boulangerie Vachon Inc. v Racioppo, 2021 FC 308, in which it granted Boulangerie Vachon Inc., Vachon Bakery Inc., and Canada Bread Company, Limited (collectively, the Plaintiffs) damages for infringement of the trademark HOSTESS.

On April 19, 2021, the Government of Canada announced its 2021 budget (Budget 2021) with goals to finish the fight against COVID-19, ensure a strong economic recovery, and position Canada for a prosperous future. To accomplish its objectives, the government has set aside funding for proposed expenditures in the areas of intellectual property (IP) and technology.

On April 14, 2021, in Canada (Health) v Glaxosmithkline Biologicals SA, 2021 FCA 71, the Federal Court of Appeal of Canada (FCA) interpreted the Certificate of Supplementary Protection Regulations (the CSP Regulations) for the first time. Overturning the Federal Court decision, the FCA held that the decision of the Minister of Health (the Minister) to refuse the issuance of a Certificate of Supplementary Protection (CSP) in respect of the Canadian Patent No. 2,600,905 (the 905 Patent) and the SHINGRIX® vaccine was reasonable.

On April 21, 2021, the European Commission (EC) released a proposal for a regulation (the Draft Regulation) laying down harmonised rules on artificial intelligence (AI) aimed to ensure the protection of fundamental European Union (EU) rights and safety of AI system users, as well as trust in the development and uptake of AI.

On April 14, 2021, the Government of Canada (the Government) launched a consultation on whether the copyright framework for online intermediaries, (entities that facilitate access to copyright-protected content) appropriately reflects the evolving digital world. The Government recognizes the evolution of the dissemination and use of copyright-protected content on the internet through proliferated and diversified online intermediates, and considers whether the extent to which the current copyright framework for online intermediaries still achieves its underlying objectives, including protecting and encouraging the use of copyright-protected content online, safeguarding individual rights and freedoms in an open internet and facilitating a flourishing digital market.

On April 15, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) issued a news release outlining a number of measures that Canada’s dominant telecommunication service providers must implement in order to promote sustainable competition and affordable options for Canadians.

On April 5, 2021, the Supreme Court of the United States (SCOTUS) issued its decision in Google LLC v Oracle America Inc, 593 US ___ (2021), holding that Google’s copying, and incorporation into its Android mobile platform, of approximately 11,500 lines of code from the Oracle-owned application programming interface Java SE (the API) was not copyright infringement and constituted fair use. The decision, delayed by a year due to the COVID-19 pandemic, marks the end of a decade-long litigation between the tech giants, in which Oracle initially claimed damages in the amount of nearly 9 billion USD for Google’s alleged copyright infringement (previously reported by the E-TIPS® Newsletter here).

On April 3, 2021, Business Insider reported that information relating to over 530 million Facebook accounts had been made publicly available online. It is estimated that 3.49 million accounts belong to Canadians and the leaked data included names, locations, birthdates, email addresses, and other identifying information.

On March 24, 2021, the Office of the Privacy Commissioner of Canada (OPC) published its submission in response to the Department of Justice’s public consultation on modernizing the Privacy Act, Canada’s public sector privacy law, which has not been substantially amended in nearly 40 years.