What does an international treaty have to do with ripping songs to your iPod?  You may not have heard much about the Anti-Counterfeiting Trade Agreement (ACTA), but this international treaty may have significant impacts on the domestic copyright reform process in Canada. ACTA is an international round of trade negotiations that addresses counterfeiting, which in turn deals directly with copyright infringement. The draft text of the agreement was released last week. 

Copyright infringement - what it means, when it occurs, who is responsible, and what penalties should be levied - is central to the anticipated reform of Canada’s Copyright Act.  The government has again hinted that it will introduce a copyright reform bill  in this session of Parliament.  The related debate about iPod levies should also be addressed in the reform process.   

There is little doubt that ACTA will play an important role in influencing domestic copyright policy. In this environment of international pressures, intense lobbying, proposed levies, and heightened public awareness of copyright issues, the government will have a hard time pleasing everyone as it navigates this intellectual property minefield.  Even if proposed legislation is introduced this spring, the bill will die if there is a fall election. 

Federal elections? That’s one little detail that ACTA need not worry about, and the treaty is expected to be finalized by the end of 2010.

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If someone engages in online defamation, online copyright infringement or any number of other illegal acts on the internet, the first question is who is actually committing the act in question? One of the main issues facing litigants in Canada is the identity of anonymous actors who are shielded by mysterious usernames, aliases or cryptic email addresses. 

In a recent decision in Nova Scotia, a judge ordered Google and a local paper to disclose the identity of individuals who are alleged to have posted defamatory statements on a local website.  The judge declared: “The court doesn’t condone the conduct of anonymous Internet users who make defamatory comments. They, like other people, have to be accountable for their actions.” The decision flies in the face of other Canadian court decisions where judges have erred on the side of caution by protecting the identity of online users.

In an online defamation case on the other side of the country, the BC Court of Appeal decision in Crookes v. Newton (see our previous post) is heading to the Supreme Court of Canada (SCC).  Leave to appeal was granted earlier this month and the decsion of the SCC should clarify this area of law, particularly the extent of liability for hyperlinks to defamatory content. 

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Do you have a patent in the US or are you a licensee of a US patent? Are your products marked correctly?

Canadian patent owners should review patent marking requirements in the US, in light of the recent Forest Group decision (Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009)).  This decision has reinterpreted the false marking provisions of U.S. patent law to expand the fines that can be imposed on patent owners and their licensees.  If an article is falsely marked with an incorrect patent number, the fine can be up to $500 for each falsely marked article. An article is falsely marked, for example, if the patent number is incorrect, or if there is a false suggestion that a patent is issued or pending, or a false claim that a particular issued patent covers the product.  

The U.S. law permits anyone to sue for the penalty and split any award with the federal government, so this has become another strategic tool in the marketplace.  Since the December 2009 decision, competitors have been scrutinizing (and suing) each other to determine if there is any basis for a false-marking suit.  

Canadian patent owners, licensees and manufacturers are advised to obtain advice to review their internal patent-marking policies, and to review the terms of patent license agreements to address patent-marking obligations.

Related Event: See our Events page (link to the right)

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Regardless of what you are distributing - shrink-wrapped CDs, online applications or smartphone apps - software licensing takes on an added layer of complexity when open source software issues are part of the mix.  The law in the US has been clarified thanks to the Jacobsen v. Katzer case, which was finally dismissed last month after the parties reached a settlement. As part of the settlement, a permanent injunction was entered, stipulating that Katzer must refrain from “reproducing …modifying … or distributing” the open source material.  (See our previous post: Open Source Update: Cisco Sued & New Ruling in Jacobsen vs Katzer).

To avoid GPL violations, make sure you get good advice on an OSS policy for your organization, and avoid the fate of Best Buy, Samsung, Westinghouse, and JVC - all of whom were named in a copyright infringement lawsuit filed by the Software Freedom Law Center (SFLC) in December 2009.

Richard Stobbe will be speaking at a conference in Calgary on April 9 on the subject of Open Source Licensing: Copyright & Beyond

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