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Copyright Law
: Michael GeistSupreme Court Will Lead Tech Law in 2011
By Michael Geist
With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place. Canada's highest court has lined up a tech-heavy docket that will have a major impact Canadian law.
First up is a series of decisions arising from hearings last
fall.
These include Masterpiece
Inc. v. Alavida Lifestyles Inc., a trademark
law case that raises questions about the standard for likelihood of
confusion between two competing trademarks. There are also several
cases involving access to government information under the Access to
Information Act. With the mounting interest in open government and
access to public documents, the cases will help identify how far the
current legislation extends.
The most anticipated Internet law decision is Crookes
v. Newton, a case
that will determine the potential liability for hyperlinking.
Given
the widespread use of links in emails, webpages, Facebook updates, and
Twitter postings, the prospect of being held legally responsible for
the content on the page being linked to could have a chilling effect on
Internet speech.
The court has already agreed to address at least two additional cases
this year with major implications for the Internet. In March, it
will
be asked to consider the limits of Internet jurisdiction in an appeal
of Black
v. Breeden, Conrad Black's lawsuit over postings such as press
releases and reports on the Hollinger International, Inc. website that
he claims were defamatory.
When Black sued the company's directors, advisers, and one company
employee for defamation in Ontario, the defendants in the case brought
a motion to dismiss on jurisdictional grounds, arguing that the
province was not the appropriate venue for the case since both
Hollinger and Black are located in the U.S. In a unanimous
decision
issued last summer, the Ontario Court of Appeal sided with Black,
noting that the press releases posted on the Internet specifically
provided contact information for Canadian media and that the company
"clearly anticipated that the statements would be read by a Canadian
audience and invited Canadian media to respond."
Later this year, the court will hear at least one
case that examines
the scope of the Copyright Act's fair dealing provision. At issue is
whether "research" within fair dealing can be extended to song previews
that are made available on sites like iTunes where a consumer can
freely listen to roughly 30 seconds of a song.
The Copyright Board of Canada ruled in 2007 that a broad and liberal
interpretation of fair dealing meant that it could be included since
the preview was effectively consumer research on whether to purchase
the song. The Federal Court of Appeal affirmed the Copyright
Board's
interpretation last May, opening the door to many other consumer
research possibilities under the current fair dealing provision.
With a second fair dealing case involving copying in schools also a
distinct possibility for a high court hearing, the Supreme Court is set
to play a lead role in technology law in 2011 regardless of what
transpires on the political front.
Full post as published by Michael Geist on January 11, 2011 (boomark / email).
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