Recalibrating Copyright Law?: A Comment on the Supreme Court of Canada\u27s Decision in CCH Canadian Limited et al. v. Law Society of Upper Canada

The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada marks a second recent decision by the Court that has major implications for the development of copyright law in Canada. In Théberge v. Galerie D’Art du Petit Champlain, the majority of the Court provided a significant articulation of the balance to be struck between the rights of creators and the rights of users of copyright-protected works. In doing so, it embraced an approach to copyright typical of U.S. copyright law in its heyday. The unanimous Court in CCH Canadian makes it clear that Théberge was not an isolated case; in an area of law where Parliament has been strongly lobbied to restrict users’ rights, the Court seems poised to take an interpretive approach that places limits on the scope of the rights of owners of copyright. In CCH Canadian, the Court does this on a number of fronts. The decision sets a new standard for originality in Canadian copyright law, reigns in the scope of certain acts of infringement in the technological context, and signals an open and expansive approach to interpreting the fair dealing defences

Data Ownership

The rapid expansion of the data economy raises serious questions about who “owns” data and what data “ownership” entails. In most jurisdictions, data that are kept confidential can be protected as confidential information. However, such data are vulnerable to exposure through hacking or leaking by third parties. In many instances, significant stores of data cannot be kept confidential, and protection must be sought elsewhere. Copyright law has long treated facts as being in the public domain, but will provide protection for compilations of facts that meet the threshold for “originality.” Such protection is considered to be “thin,” as it does not extend to the underlying facts, applying only to their original selection or arrangement. In the European Union, database rights offer a more robust protection for compilations of data, but they also fall short when it comes to protecting the facts that make up such compilations

The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide by William Charnetski, Patrick Flaherty and Jeremy Robinson (Toronto Canada Law Book Inc., 2001)

The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide (the Guide) is the second book to be published in English in Canada dealing expressly with the Personal Information Protec- tion and Electronic Documents Act (PIPEDA). The Guide is different from the earlier work, in that it is not a section by section discussion or annotation of the provisions of PIPEDA. Rather, it is organized into eight chapters, each addressing a distinct theme or topic. The Guide is also aimed at a more professional audience than the earlier work. In its introduction, and in its choice of content, it focuses more on specific problems and interpretive issues under PIPEDA, than on giving a general overview and explanation of the legislation. The authors of the Guide reflect the more profes- sional and practice oriented nature of the book. All three authors are lawyers whose areas of practice include varying aspects of privacy law. Their objective in preparing the work is clear; it is meant to identify legal issues of importance to lawyers and entrepreneurs. The brief introduction to the book refers to the legislation as ‘‘consumer protection for the digital economy’’, and cautions that: ‘‘no business or other entity to which the Act potentially applies can afford either to ignore it or to attempt to comply with its provisions in an ad hoc fashion’’

Moving on From the Ombuds Model for Data Protection in Canada

Both the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act adopt an ombuds model when it comes to addressing complaints by members of the public. This model is also present in other data protection laws, including public sector data protection laws at the provincial level, as well as personal health information protection legislation. The focus of this short paper is the model adopted in PIPEDA and its ongoing suitability. PIPEDA was designed to apply across the full range of private sector actors and is increasingly under strain in the big data society. These factors may make it less well suited to the ombuds model than public sector and health sector data protection laws. This paper argues that it is time to move on from the ombuds model for data protection in Canada. This will not simply require the addition of new enforcement powers for the Privacy Commissioner, but will also entail a more substantial reform of PIPEDA

Annotated Language Laws of Canada: Constitutional, Federal, Provincial and Territorial Laws

Many of Canada\u27s language laws represent an attempt by governments to articulate national or provincial linguistic identities. How fitting, therefore, that Annotated Language Laws of Canada is a work which is itself in search of an identity. There is, in fact, some dissonance between what this book claims to be and what it actually is. Although its cover suggests that it is part of a series of New Canadian Perspectives, there is little that is new (in the sense of original) in the work, other than the actual compilation. As for perspectives-one of the most striking absences in this work is any kind of perspective. The authorial voice is singularly lacking. Annotated Language Laws of Canada is a bare compilation of language legislation which contains no overarching definitions of language or language legislation. The organizational structure, choice of materials and even annotations are, for the most part, unexplained, and the silence on these points may serve as a metaphor for the ambiguity and inconsistency that is reflected in much of Canadian federal and provincial language policy

Information Privacy in Public Space: Location Data, Data Protection and the Reasonable Expectation of Privacy

This article considers whether the permissive disclosure provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and its substantially similar counterparts mean that law enforcement agents have ready access to information about our movements and activities, or whether s. 8 of the Charter plays a role in limiting the circumstances in which disclosure without notice or consent may take place

Privacy and Publicly Available Personal Information

This article begins with a review of the structure of PIPEDA in order to situate the exception within its statutory context. This is followed by a detailed consideration of the exception for publicly available information. The article then offers a discussion of whether the scope of this exception should be expanded, and offers an alternative