Published by the Technology, Intellectual Property and Communications Group
McCarthy Tétrault FRANÇAIS VOL.6,
Technology Law Quarterly

Letter from the TLQ Editor (Volume 6, Issue 2)
Welcome to Volume 6, Issue 2 of McCarthy Tétrault Co-Counsel: Technology Law Quarterly (TLQ). In the last quarter, the federal government introduced a few bills that could impact the information and communication technologies sector. Bill C-28 deals with spam and spyware and is similar in many respects to its predecessor, the Electronic Commerce Protection Act, which died on the order paper. Bill C-32 represents the government’s third attempt in recent years to update the Copyright Act. And Bill C-29 proposes significant amendments to Personal Information Protection and Electronic Documents Act.


Federal Government Tables Anti-Spam and Anti-Spyware Laws in Bill C-28
The Canadian government recently tabled legislation that would impose stiff penalties for sending unsolicited commercial electronic messages (spam) or surreptitiously installing malicious software programs on computers without the owner’s consent (spyware). Bill C-28, Fighting Internet and Wireless Spam Act (FISA), also contemplates amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act.

Exporting Software and Technology Abroad — Controls on Ancillary Encryption to be Liberalized

In what will come as welcome news to Canadian tech companies, Canada is planning on easing export controls over "ancillary encryption" items. These are items designed to work with encryption but encryption is not their primary function. Recently, the Canadian government agreed to implement an exemption to the current export permit requirement for these goods, software and related technology, provided they meet certain criteria.


Technology Contracting

Limits on Contractual Limits of Liability – Part II
While courts have declined to enforce contractual limitation of liability (LOL) clauses that are ambiguous, unconscionable or contrary to public policy, pre-contractual warranties can also undermine the effectiveness of these clauses.

IT Pilot Project for Temporary Foreign Workers to End

Once the IT Pilot Project comes to an end on September 30, 2010, Canadian employers will no longer be able to take advantage of the expedited process for bringing foreign information technology (IT) specialists to Canada, unless they are hiring for positions in Québec. In Québec, the facilitated process will remain in place for a limited time.


Technology Finance

Taking Your Company Public — Part II
This is the second in a series of articles about taking a company public. "Going public" is the process of issuing shares to the public pursuant to a prospectus or through a reverse take-over or other process that results in significant disclosure about the financial and other aspects of the company.

Intellectual Property — Copyright

Modernizing Canadian Copyright Laws — Federal Government Introduces New Copyright Bill
At long last, the Canadian government has introduced its proposed copyright amendments. Bill C-32, the Copyright Modernization Act, aims to address gaps in the current Copyright Act created by the Internet and other digital technologies and to bring the Canadian legislation in line with international standards. The changes include measures to implement the World Intellectual Property Organization (WIPO) treaties, a cap on statutory damages, a new exception for "mash-ups," clarification on the liability of Internet service providers (ISPs) for infringement by their subscribers, and a new cause of action for secondary infringement.

Internet Previews of Music can be Fair Dealing under Copyright
The Federal Court of Appeal recently released an important ruling on the scope of the fair-dealing exception, in a judicial review of the Copyright Board’s decision on SOCAN Tariff 22.A. At issue was whether online music services have the benefit of the fair-dealing exception in Section 29 of the Copyright Act when they offer customers previews of music files of up to 30 seconds to help them select music to purchase. The court, following the decision of the board, ruled that they do.

US Court Finds LimeWire Liable for Inducing Copyright Infringement
The recording industry recently won a major victory in its copyright piracy lawsuit against LimeWire, one of the most popular remaining peer-to-peer (P2P) music-file-sharing services in the US. A US District Court granted summary judgment in favour of several record companies on their claims against LimeWire for inducement of copyright infringement, common law copyright infringement, and unfair competition.

UK Passes Digital Economy Act
The UK House of Commons recently passed the Digital Economy Act (DEA), which introduces several major policies designed to regulate and stimulate the UK digital economy. Although it includes provisions governing video game ratings and registration of domain names, it is the provisions aimed at curbing file-sharing that have been the primary focus of attention.

Intellectual Property — Patents

US Supreme Court Rules on the Eligibility of Business Methods for Patenting
Recently, the United States Supreme Court issued its long-awaited judgment in Bilski v. Kappos, which deals with important questions surrounding the patentability of business methods and other subject matter, including software and other process-related innovations. The Supreme Court determined that Bilski's patent application is related to an abstract idea and, as such, is not patentable subject matter.

Intellectual Property — Trade-marks

Labelling Non-Food Products — Enforcement Guidelines for "Product of Canada" and "Made in Canada" Claims now in Effect
Manufacturers and processors making "Product of Canada" and "Made in Canada" claims on non-food products will now have to comply with new guidelines from the Competition Bureau — or risk enforcement action. The enforcement guidelines, which recently came into effect, describe the Bureau’s approach to assessing these claims under the false or misleading representations provisions of the Competition Act, the Consumer Packaging and Labelling Act, and the Textile Labelling Act.


Proposed Amendments to PIPEDA to Include Breach Notification Requirement
The Canadian government recently introduced Bill C-29, which proposes to amend Personal Information Protection and Electronic Documents Act (PIPEDA) to add new exceptions to consent requirements, specify what constitutes "valid consent," and — most significantly — impose mandatory breach notification obligations.


Changes to Alberta’s Private Sector Privacy Legislation now in Force
Now that amendments to the Alberta’s Personal Information Protection Act (PIPA) have come into force, organizations operating in the province’s private sector should review their privacy policies and practices to ensure they still comply with the new requirements.

Location-Based Services and Privacy Law – Part I

Location-based services provide significant benefits to users but also present some novel and finicky legal issues, chief among them in the privacy area. This article discusses some of the business and technological aspects of LBS, while the next edition’s article will focus on the related legal questions.



McCarthy Tétrault Lawyers Publish Seminal Communications Texts
Members of the Communication Group at McCarthy Tétrault have recently published three authoritative texts in the areas of broadcasting and telecommunications. The Communications Law and the Courts in Canada, the Canadian Broadcasting Regulatory Handbook, and the Regulatory Guide to Canadian Television are available for purchase on the firm’s website.