The Canadian Do-Not-Call List (DNCL) goes into effect tomorrow. 

The CRTC (Canadian Radio-television & Telecommunications Commission) is coordinating the DNCL and starting September 30, Canadian consumers can register their telephone numbers on the DNCL for free.  The DNCL is designed to reduce the number of telemarketing calls and faxes directed to consumers, and is to be financed from telemarketers’ subscription fees. 

If consumers still receive telemarketing calls 31 days after registering on the DNCL, they may file a complaint, and violations may give rise to fines of up to $1,500 for individuals and $15,000 for corporations.  In practice, it is often difficult for consumers to determine which organization is calling, so complaints will likely be limited to situations where the telemarketer is easily identifiable.

Of course, there are limitations. Consumers must renew their registration every three years if they want their number(s) to stay on the National DNCL.  Exempt telemarketers include:

• registered charities seeking donations;
• newspapers looking for subscriptions;
• political parties and their candidates;
• companies that have an existing business relationship with a consumer (within the previous 18 months); and
• organizations directing calls and faxes to businesses.

Also, this is unlikely to prevent annoying calls from American telemarketers who will be beyond the reach of the CRTC. 

However, it is a good step forward.  Now the government needs to tackle national anti-spam legislation.

Calgary - 10:30 MST

With glowing hearts, we protect our brand.

VANOC, the organizer of the 2010 Olympics, has unveiled the new Olympic motto “WITH GLOWING HEARTS“.  Of course, some will criticise the choice because it lifts a line from the Canadian national anthem. I can understand why VANOC wants to use the motto with disposable cameras, stuffed mascots and athletic events… but “navigation of down hole probe assembly for oil drilling and drilling assemblies for routing underground utilities”?  Maybe they have an official supplier of downhole probe assemblies for drilling oil.

In any event, VANOC isn’t the only one registering parts of the anthem as a trade-mark.  Canadian patriots will be happy to know that our anthem is well-protected by other trade-mark owners:

OH CANADA (registered for use in association with whiskey)

HOME AND NATIVE LAND (registered for key chains, mugs, coasters and place mats)

TRUE NORTH (registered for footwear namely shoes, boots, slippers and sandals)

STRONG AND FREE (registered for T-shirts, sweaters, and hats)

WE STAND ON GUARD (registered for water purification systems)

Don’t worry, there are several brandable phrases still available. The Americans have the same problem. Someone registered the opening line: OH, SAY CAN YOU SEE? (Reg. No. 2089762) registered in 1997 for clothing.

Calgary - 12:00 MST

Lawyers are often asked how much copying will constitute copyright infringement.  Of course, every good lawyer will answer “It depends.”  The recent Harry Potter case illustrates this issue: Author J.K. Rowling claimed that a plan to publish a lexicon (essentially an alphabetized reference listing Harry Potter characters, names and other information) would be a violation of copyright in the Harry Potter series of novels, even though the novels themselves weren’t copied, but rather the character’s names and information about the characters.  Last week’s US ruling came down in favour of Rowling, and the proposed book will never see the light of day.

So, how much is too much?  In Canada, the Copyright Act refers to a “substantial part” but like many legal concepts, the exact meaning is up to the court to determine.  In one recent Alberta case, Flag Works Inc. v. Sign Craft Digital, 2007 ABQB 434 (CanLII) a company copied its competitor’s advertising brochure, changing only the name, and a few details in the text. The court had no trouble concluding that a “substantial part” was copied, and therefore copyright was infringed. 

At the other end of the spectrum, a recent US case (Veritas Operating Corp. v Microsoft Corp., No. 06-0703, 208 US Dist. LEXIS 8166 (W.D. Wash. Feb 4, 2008) made it clear that copying a mere 0.03% of software code (that’s 54 lines out of about 160,000 lines) may constitute copyright infringement, if the copied code is critical to the operation of the program.

A reproduction of about 5% (the copy comprised five lines out 116 lines of original text) was not considered a “reproduction of a substantial part of the whole” in the 2003 decision in Dolmage v. Erskine, 2003 CanLII 8350 (ON S.C.), and therefore did not constitute infringement.

Now you know why lawyers say “It depends”. 

Calgary - 13:10 MST

When the Liberal Party decided to brand their environmental policy earlier this year, they picked the name “Green Shift” …and walked right into a trade-mark lawsuit.  The mark GREEN SHIFT was already in use by a Toronto environmental consulting company.  The company promptly fired off a cease-and-desist letter, followed up by a trade-mark infringement suit in early July.  It would have been interesting, from a trade-mark law perspective, to see how a court would resolve the interplay of political brands and trade-marks. Alas, we’ll have to wait for the next case.  Election campaigns have a way of motivating settlement and yesterday the Liberal Party announced that they had resolved the dispute, and posted a notice on their site stating that: “The Liberal Party of Canada and Green Shift Inc. have resolved their dispute over the ‘Green Shift’ trademark. The Liberal Party of Canada will continue to use ‘Green Shift’ under license from Green Shift Inc.  Green Shift Inc. is not affiliated with the Liberal Party of Canada and the grant of the license does not constitute an endorsement by Green Shift Inc. of the Liberal Party of Canada.”

The business issues:

• For any new brand, trade-mark clearance searches are essential.  The Liberal Party may not have done a trade-mark search when picking a brand for their policy; it might not be standard procedure, considering that a polictical policy is not what we think of as a “product” or a “service” (not unless we’re thinking cynically).
• This shows the increasing complexity of brands and the cost of clean-up in the wake of the launch of a new brand that hasn’t been properly screened.

Calgary - 10:30 MST

With the announcement yesterday that Parliament is dissolved, and Canada is heading into a Federal election set for October 14th, the government’s copyright reform bill (Bill C-61) dies on the order paper.  Canadians will have to wait until the dust settles after the election to see what will happen to the copyright debate.  In the meantime, the copyright battles continue, and the latest salvo comes courtesy of isoHunt, a torrent site which has announced a pre-emptive lawsuit against the CRIA , seeking a declaratory judgement that isoHunt’s activities do not infringe copyright.

Calgary - 11:30 MST