Sunday, January 30, 2011

Privacy law up for review this year

Parliament recently approved Federal Privacy Commissioner Jennifer Stoddart's re-appointment for an additional three-year term. In a speech at the University of Ottawa, she outlined some of her priorities for her new term: 1) ensuring social networking and online dating sites respect privacy, 2) educating Canadians to better understand their privacy rights and to make well-informed choices, and 3) ensuring privacy complaints made to her office are dealt with in a timely manner.

Stoddart also indicated that she wants to strengthen PIPEDA, the Personal Information Protection and Electronic Documents Act. With PIPEDA facing a mandatory review by Parliament this year, it is likely that at least some legislative change will take place. In a future post I'll explore some of the possible changes to PIPEDA.

Friday, January 21, 2011

The meaning of "sold in Canada" - statutory interpretation

Statutory interpretation - figuring out what a piece of legislation (a law) means - is a complex issue. As the following case shows, even a simple word like "sold" may have different meanings even within the same piece of legislation.

On Thursday, the Supreme Court of Canada released Celgene Corp. v. Canada, 2011 SCC 1 and clarified the law on the scope of the Patented Medicine Prices Review Board’s price‑regulating and remedial authority. At issue is the meaning of the phrase "sold in any market in Canada".

Celgene owns a Canadian patent on the drug Thalomid and distributes it in Canada under the Special Access Programme ("SAP"). Under ordinary commercial law definitions as used in other patent cases relating to infringement (such as Dole Refrigerating and Domco Industries), Thalomid would be considered "sold" in the US: the medicine is packed in the US and shipped Free on Board (“FOB”) to the requesting doctor in Canada, the invoice was prepared in the US and mailed to Canada, payment is in U.S. dollars and is mailed to Celgene in the US, no Canadian taxes are paid, and the drug is never redistributed in Canada.

However, the Patented Medicine Prices Review Board concluded that Celgene’s Thalomid sales to Canadians pursuant to SAP were "sold in any market in Canada" and fell within both its authority for price investigation and its related remedial powers.

In siding with the Board and rejecting the technical commercial law definition advanced by Celgene, the Supreme Court recognized that the mandate of the Board includes balancing the monopoly power held by the patentee of a medicine with the interests of the purchasers of those medicines. In order to comply with that mandate, sales “in any market in Canada” were interpreted to include sales of medicines that are regulated by the public laws of Canada, that will be delivered in Canada, to be dispensed in Canada, and where, in particular, the cost of the medicine will be borne by Canadians — patients or taxpayers, as the case may be. In this case, Celgene's Thalomid SAP sales met that criteria and thus falls within the Board's authority.

As this case shows, defining the meaning of a word in a piece of legislation is a complex issue - even a simple word like "sold" may have different meanings even within the same piece of legislation. If you are reading a piece of legislation concerning an issue that is important to your business, be sure to consult a lawyer for advice.

Monday, January 17, 2011

Now's The Time To Speak Out on Copyright Reform

Last year, Bill C-32 (An Act to Amend the Copyright Act) entered second reading. Bill C-32 included many reforms to the Copyright Act, including the addition of legal protection for digital locks.

Since early December, the Parliamentary Legislative Committee on Bill C-32 has invited Canadians to provide their views on the bill.  The Committee has set the following parameters for submissions from interested Canadians:

In order for briefs on Bill C-32 to be considered by the Committee in a timely fashion, the document should be submitted to the Committee's mailbox at by the end of January, 2011. A brief which is longer than 5 pages should be accompanied by a 1 page executive summary and in any event should not exceed 10 pages in length.

Now is the time to speak out about your views on copyright reform.  Even if you've already written your MP or Minister, do so again before Jan 31.

For a more detailed examination of C-32 and Canadian copyright, see From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda, a book published in October 2010 that includes 20 essays on a wide range of copyright reform issues.  The book is available in paper version or as a free Creative Commons licenced download.

Write the legislative committee and let your views be known by emailing the Committee's mailbox at before Jan 31.  If you've always thought copyright laws should be reformed, now's your chance to get your wish.  Below is my submission to the committee; you may use all or part of it in your submission as you wish:

Dear Legislative Committee on Bill C-32 (CC32),

I write to you with regard to Bill C-32, An Act to Amend the Copyright Act. As a Canadian, an author and a consumer, I am both a content creator and a consumer of content. However, I am deeply concerned with Bill C-32 in its currently form as it fails Canadians.

Firstly, the Bill’s approach to digital locks is must troublesome. The Supreme Court has stated in CCH that fair dealing is a user’s right, a consumer’s right, and fair dealing is a required and necessary part of a just and democratic society in its exercise of criticism, education, and news reporting. Yet under Bill C-32, any copyrightable work protected by a digital lock trumps all other copyright rights, including all fair dealing and consumer rights. The digital lock provisions must be amended to ensure that it is only a violation of copyright to circumvent a digital lock when the underlying purpose and intent is to infringe copyright. This approach, which has been adopted by countries such as New Zealand and Switzerland, would ensure that the law could be used to target clear cases of commercial piracy but that individual consumer and user rights are preserved. This position retains legal protection for digital locks and still complies with the WIPO Internet treaties but ensures that digital locks do not trump all other copyright rights by preserving fair dealing and consumer rights.

Secondly, extending the private copying levy to iPods and other devices should not be considered. There has been criticism about the cost of administering the levy, the fairness of how the levy is distributed to Canadian artists, and what Canadian consumers are getting in return for paying the levy. Rather than expanding the levy, the government should phase out the levy and instead commit to continued funding for Canadian artists and programs via existing grant programs.

Thank you for considering the views of this concerned Canadian, content creator, and consumer.

Wednesday, January 12, 2011

Business Methods appeal to be heard this summer

As posted earlier, the Federal Court in Amazon v. Canada, 2010 FC 1011 held that a method of doing business (a "business method") can be patentable subject matter.  The Department of Justice on behalf of the Canadian Intellectual Property Office is appealing this decision, in court file A-435-10.

From the documents filed at the court earlier this week, it's likely that the hearing will be heard in Ottawa in May of this year, and a decision should be rendered before the end of 2011.  Depending on the appeal decision, we might see the Supreme Court tackle this issue in 2012.

Thursday, January 06, 2011

Employees and Inventions

An employee working in a candy store invents a new and cheaper way to make chocolate. Who owns the invention? The candy store employer or the employee?

Depending on the employer-employee relationship, either the employer or the employee may legally claim ownership of the invention. Just because the employee works at the candy store does not automatically entitle the candy store to claim ownership of the new way to make chocolate.

Many factors of the employment relationship must be considered, including the employment agreement, the nature of the job, how the invention was made, and many other factors. In such situations, it's important to consult an intellectual property lawyer to determine who is entitled to claim the invention and to apply for a patent covering the invention.