Canadian Technology & IP Law : Canadian Technology Lawyers & Attorneys : Stikeman Elliott Law Firm : IP Law in Toronto, Montreal, Calgary, Ottawa & Vancouver

Recently, a court in the UK (Football Dataco Ltd et al. v. Sportradar GmbH) found that the location of a server determined the appropriate jurisdiction to regulate internet content. This is not entirely consistent with the Canadian approach.

Sportradar tried to argue that the court did not have jurisdiction to hear the claim that Football Dataco’s copyright and database rights had been infringed by Sportradar’s alleged reproduction of Football Dataco’s live scores and statistics. The content from Sportradar was stored on webservers in Germany and Austria, but was made available to users in the UK by Sportradar’s online betting sites. To determine what law should apply, the court focused on where the act of “making available” occurred. The court held that such an act occurs where the transmission takes place, and more specifically, where the server is located. Since Sportradar’s servers were located outside of the UK, the court found that it could not assert jurisdiction over certain of the claims.

• Comments
• Trackbacks
• Email This
• Print

On October 22, 2010, an American magistrate judge ruled that a plaintiff suing Universal Music Corp. for improperly sending a takedown notice under the Digital Millennium Copyright Act (DMCA) waived a number of heads of attorney-client privilege by discussing the details of her legal case by email and on a blog.

In Lenz. v. Universal Music Corp, the plaintiff claimed damages and attorneys' fees as a result of Universal Music Corp.'s filing of an allegedly fraudulent DMCA take-down notice seeking to have a home video of the plaintiff's child dancing to a copyrighted song removed from YouTube.

• Comments
• Trackbacks
• Email This
• Print

David Elder -

This week, the Supreme Court of Canada released a decision that has important implications for the interpretation and application of section 8 of the Canadian Charter of Rights and Freedoms, as well as for privacy law generally. The problematic decision, which includes two sets of reasons concurring in the result and a strong dissent by the Chief Justice and Justice Fish, seems likely to provoke significant debate and potential uncertainty in its application.

In R. v. Gomboc, 2010 SCC 55, the Court considered the limits on the ability of law enforcement to use as evidence subscriber records obtained without a warrant from third party service providers, and more broadly, offered guidance as to what constitutes a reasonable expectation of privacy with respect to such records.

• Comments
• Trackbacks
• Email This
• Print

The power of social media was on full display this past week, as the unauthorized publication of a recipe for apple pie drew a quick and virulent online response. The story begins on November 3, when blogger Monica Gaudio announced on her blog that Cooks Source, a small New England magazine, had republished an article on the history of apple pie (she had previously written it for another publication) without permission. While Gaudio was credited for her work, she never consented to, nor was she compensated for, the use of the article. After emailing the magazine’s editor, Gaudio received a response informing her that the internet is “public domain”. The email, which Gaudio published on her blog, sparked a fierce response from an online community that quickly coalesced on Facebook to disparage the magazine’s conduct.

• Comments
• Trackbacks
• Email This
• Print

Yesterday, the European Commission released a draft strategy for the protection of individuals’ data entitled “A comprehensive approach on personal data protection in the European Union”.  The strategy is the result of public and stakeholder consultation throughout 2009 and 2010.  While the protection of personal data is currently a hot topic, this strategy is not the first time the European Commission has addressed issues of data protection and electronic privacy.  In 1995, the   European Union release the Data Protection Directive (95/46/EC), which was a milestone in the EU’s protection of personal data. The Directive, however, has struggled to keep up with the rapid pace of technological advancement, particularly in the area of social media.

The new strategy appreciates the challenges of modern technology and recognizes that the protection of electronic information cannot be seen as a purely national concern.  The strategy focuses on the strengthening of individual rights, through the provision of control and autonomy over one’s own personal data, and aims at providing users with greater information about who has access to their data and when such data has been viewed.  Most interestingly, the strategy calls for a “right to be forgotten” whereby individuals have the right to completely remove their data from electronic forums, such as social networking sites, if and when they no longer want to participate.

The goal of the Commission is to propose a new general legal framework by mid-2011 that will protect personal data in the EU for all sectors. Currently, the EU has left the door open for public response with the deadline for comment set as January 15, 2011.

• Comments
• Trackbacks
• Email This
• Print

On October 28, 2010, the PCI Security Standards Council released version 2.0 of the PCI Data Security Standard (DDS) and the Payment Application Data Security Standards (PA-DSS) reflecting input from the Council’s global stakeholders.  This latest version, effective January 1, 2011, is designed to provide greater clarity and flexibility to facilitate improved understanding of the requirements and eased implementation for merchants.  A summary of the changes can be found here.  The standards, detailed summary of changes and supporting documentation can be found here.

The PCI Security Standards Council was formed by the major payment card brands American Express, Discover Financial Services, JCB International, MasterCard Worldwide and Visa Inc. to provide a transparent forum in which all stakeholders can provide input into the ongoing development, enhancement and dissemination of the DSS, PIN Transaction Security (PTS) requirements and the PA-DSS.

• Comments
• Trackbacks
• Email This
• Print

Epicept Corporation v. The Minister of Health and Canadian Generic Pharmaceutical Association (Intervener)

The Federal Court recently dismissed Epicept Corporation’s (Epicept) application for judicial review of a decision of the Minister of Health (the Minister).  The Minister had decided that Epicept’s drug product CEPLENE® (histamine dihydrochloride), which is used for remission maintenance therapy in the treatment of acute myeloid leukemia, was not an “innovative drug” pursuant to subsection C.08.004.1(1) of the Food and Drug Regulations (the Regulations).  This meant that the drug was therefore not able to receive the benefit of a period of market exclusivity under the data protection provisions of the Regulations.  Epicept’s application sought to reverse the Minister’s decision.

• Comments
• Trackbacks
• Email This
• Print

This past weekend’s Globe and Mail included an interesting article regarding the principle of droit de suite, which provides artists with a right to a percentage of the sale price on the resale of their works of art. The article counts 59 countries, including most of Europe as providing such a right and discusses the lobbying efforts of Canadian Arts Representation, which has argued for a 5% resale right in Canada. On a related note, Bill C-32, Canada’s Copyright Modernization Act (which includes no such right) is expected to receive second reading today.
 

• Comments
• Trackbacks
• Email This
• Print