Telus records all your texts

Yesterday, the Supreme Court in R. v. Telus, 2013 SCC 16 made an interesting ruling on what types of warrants are applicable to text messages under the Criminal Code. What's interesting isn't the ruling - as expected, the Court decided that text messages are "private communications" and require a more specific warrant authorizing the interception of private communications rather than a general warrant order. What's really interesting is this case provides a glimpse into the internal workings of Telus as it processes text messages from its mobile subscribers. It starts off quite normally, just like any other service provider:

When Telus subscribers send a text message, the transmission of that message takes place in the following sequence. It is first transmitted to the nearest cell tower, then to Telus’ transmission infrastructure, then to the cell tower nearest to the recipient, and finally to the recipient’s phone. If the recipient’s phone is turned off or is out of range of a cell tower, the text message will temporarily pause in Telus’ transmission infrastructure for up to five days. After five days, Telus stops trying to deliver the message and deletes it without notifying the sender.

But then things get interesting:

Unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a period of 30 days. Text messages that are sent by a Telus subscriber are copied to the computer database during the transmission process at the point in time when the text message enters Telus’ transmission infrastructure. Text messages received by a Telus subscriber are copied to the computer database when the Telus subscriber’s phone receives the message. In many instances, this system results in text messages being copied to the computer database before the recipient’s phone has received the text message and/or before the intended recipient has read the text message.

This is interesting for a few reasons:

1. If the sender or recipient of a text message is on Telus, then the text message will be stored for at least 30 days, and
2. In light of this SCC ruling, Telus will give up the contents of all your text messages for the last 30 days when given a specific warrant under Part VI of the Criminal Code that authorizes the interception of private communications. However, for other mobile providers which don't routinely store text messages like Telus, even when given such a specific warrant for the interception of private communications, they will be unable to supply the police with the contents of your previous text messages because no record of it exists.

Are emails at work confidential or privileged?

A reader wondered about communicating with her lawyer from work.  In particular, she wondered if such communications are confidential or privileged.

Generally, communications between a client and her lawyer are subject to solicitor-client privilege, and may not be revealed in court.

However, if the client contacts her lawyer from work, and in particular uses her work smartphone, work computer or her employer's Internet connection, her employer may have access to her communications with her lawyer.   This applies even if the client uses her work computer but uses her own web-based email (like Gmail or Hotmail) to send and receive emails with her lawyer.

This is because most employers have an information technology policy which allows the employer to have access to all data stored on an employee's work computer, as well as access to all data transfers in and out of an employee's work computer.  There is likely a similar policy with respect to smartphones issued by the employer as well.

If an employee absolutely needs to contact a lawyer while at work, I recommend that the employee use their own personal email account on their personal smartphone to do so.

And please remember to make sure the personal smartphone is using your cellular provider's network, and not the employer's wifi network.

New fee to play recorded music at parties

Weddings are expensive. Thanks to a recent decision by the Copyright Board, it's going to become a little bit more expensive starting this summer.

The Copyright Board of Canada has recently allowed new tariffs to be collected for playing recorded music at events such as weddings, parades, karaoke bars, and fairs. The cost varies depending on how many people attend the event, the type of event, and interestingly, would double if people are dancing at the event. For example, a wedding where the DJ plays a song from a CD with less than 100 attendees and at least one attendee dancing would cost an extra $18.50 per day, and a parade where recorded music is played on at least one float must pay at least an extra $32.55 per day

It'll be up to the event organizers to self-report and pay the royalty on their own initiative. If you have a wedding this summer, be sure to ask your event organizer whether or not these new tariffs apply to you.

Colbert and Stewart: Copyright fair dealing

Have you ever wondered how Stephen Colbert or Jon Stewart can reproduce news clips without being sued for copyright infringement?

Just because something is under copyright doesn’t mean it cannot be copied or used by someone other than the author. Colbert and Stewart, as pundits who report on current events, criticize and perform parodies and satire, can rightly claim “fair use” under US copyright law in their use of news clips on their shows to avoid copyright infringement.

Similar to fair use in the US, under the fair dealing provisions of the Canadian Copyright Act, the Canadian general public can also use a copyrighted work without infringing copyright.

In general, fair dealing for the purpose of research, private study, criticism or review, or news reporting does not infringe copyright.  As long as the reproduction was “fair”, there is no copyright infringement.

The second step, whether the dealing is fair, depends on the facts of each case.  In CCH v. LSUC, 2004 SCC 13, the Supreme Court of Canada set out six non-exhaustive factors to determine whether a dealing is “fair”:

1. the purpose of the dealing;
2. the character of the dealing;
3. the amount of the dealing;
4. alternatives to the dealing;
5. the nature of the work; and
6. the effect of the dealing on the work.

These “fairness” factors mean that, for example, a wholesale copying of an entire show would probably not be considered “fair”, even if it was for the purpose of news reporting or criticism. But it does allow for short reproductions of clips a few seconds long, just like the clips reproduced on The Daily Show or The Colbert Report.

The BBM trademark and Research in Motion

Finally some good news for Research in Motion this morning, as the Federal Court dismissed a lawsuit by BBM Canada challenging the use of the trade-mark “BBM” by Research in Motion Limited (RIM) in the promotion of its BlackBerry Messenger service.

The court held that BBM Canada, offering “BBM” as a specific brand of broadcast measurement services, is not entitled to a broader monopoly outside the broadcasting and advertising industries even though it had been using its trade-mark much longer than RIM, as the nature of the products and services provided by BBM Canada and RIM vary significantly.  BBM Canada’s focus is on impartial measurement of ratings data and sophisticated market research for a narrow and distinct group of consumers in the advertising and broadcast media industry, while RIM makes smartphones intended for the general public. The court also found no evidence of actual confusion by consumers, no finding of passing off and no depreciation of goodwill.

This decision was rightly decided, in my view, as generally the nature of the products and services used in association with a trademark defines the scope of the trademark monopoly.  BBM Canada doubtlessly knew this from the beginning.  Perhaps BBM Canada thought its use of the mark since 1944 gives it a fighting chance at a the court recognizing a broader scope for its trademark.  In this case, they were wrong.

Robinson Sucroë and copyright infringement

For the last 16 years, Claude Robinson has been fighting television giant Cinar in Quebec court, alleging that Robinson Sucroë, an animated television series from Quebec, was plagiarized from Robinson Curiosité, an earlier work by Claude Robinson.

In 2009, the Quebec Superior Court agreed with Claude Robinson and found Cinar guilty of copyright infringement. You can read all about the similarities the court found, in addition to comparative screenshots from Robinson Curiosité and Robinson Sucroë in the link above.

Cinar was ordered to pay more than $5.2 million in damages, including $1 million in punitive damages.
Cinar appealed. In 2011, the Quebec Court of Appeal held that Cinar did indeed infringe Robinson’s copyright, but reduced the damages to $2.7 million, including $150,000 in punitive damages.

Yesterday, the Supreme Court of Canada agreed to hear the case. Of particular interest here is the issue of the calculation of damages and punitive damages in relation to copyright infringement. Win or lose, I hope Claude Robinson’s 16 year ordeal will be resolved soon.

Trademarking a sound in Canada

Great news for marketers, as starting today, the Canadian Intellectual Property Office will accept trademark applications for a mark consisting of a sound.

This means that previously unprotected marketing materials such as jingles, vocal slogans, and song snippets that are used to identify with a brand can now be under trademark protection in Canada.



To register a sound mark, the application for the registration of a trade-mark should:

1. state that the application is for the registration of a sound mark;
2. contain a drawing that graphically represents the sound;
3. contain a description of the sound; and
4. contain an electronic recording of the sound.