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• The Canadian Government introduced an Act to amend the Copyright Act on June 20th, 2005.
  The highlights of the Act provide:
  (i)Copyright holders get the following new rights: (a) a reproduction right for performers; (b) new moral rights for performances, (c) the ability to control the first distribution of material in a tangible form; and the removal of some provisions allowing photographers some rights in commissioned photographs;
  (ii) the right of copyright holders to utilize protective rights management information and technological measures;
  (iii) an amendment that revises the definition of telecommunication to the public to include making a work available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them;
  (iv) makes it illegal to circumvent or tamper with technological measures for the purpose of infringing copyright;
  (v) the copyright holder has the exclusive right to decide who is allowed access to their material which could extend to prohibit illegal peer-to-peer file sharing;
  (vi) Internet Service Providers (ISPs) are
  (a) exempted from liability for simply providing Internet related services in the absence of actual knowledge of the copyright infringement;
  (b) required to implement a notice and notice system where the ISPs would be responsible for forwarding notices received from a rights holder that a subscriber is hosting or sharing copyrighted material to that subscriber;
  (c) must retain relevant information about the alleged infringement for a set period of time;
  (d) If the ISPs fails to comply, then they are liable for statutory damages.
  Although this controversial Act was scheduled to become law in Spring 2006, a federal election scheduled for January 23, 2006, has killed the Act; however, look for amendments to the Copyright Act to appear in 2006.

• In a recent case decided in November 2005, Autosurvey Inc. v. Prevost the Court held that where a litigant, on the advice of its solicitors, conducts an unauthorized act of search and seizure of another litigant's documents, including privileged and private communications with its solicitors without a court order and without procedural safeguards, the Court held not only that the solicitors be removed , but that there be a stay of the action. This case can be located at the CanLII link at the Sources & Links in this Site.

• Satellite Radio: On September 9, 2005, the Liberal government upheld the CRTC's decision to award three licences in the budding satellite radio market in spite of allegations that two of them were not offering enough Canadian content or French-language programming. There is concern that a reduction in Canadian content could result in damage to the relatively successful Canadian music recording industry.

• The United States Supreme Court held on June 27, 2005 in the peer-to-peer (P2P) software case, Metro-Goldwyn-Mayer v. Grokster Ltd. that Grokster was liable for the infringing acts of the users of its software because it distributed its software with the object of promoting its use to infringe software. Although the ruling is seen as a major victory for the entertainment and recording industries over unauthorized P2P file-sharing firms, many believe that it will do little to stem the flow of illegal downloads.


• BMG v. Jane Doe : In this case issued May 19, 2005 about whether an Internet Services Provider (ISP) must disclose the name of its clients who are accused of copyright infringement using P2P software, the Canadian Federal Court of Appeal gave BMG a limited right of disclosure by describing a rigorous test for ISP Disclosure of Users’ Identity of peer-to-peer Internet users accused of copyright infringement:
  The test involves establishing that:
  (a) the applicant shares some sort of relationship or connection with the third party against whom discovery is sought; and
  (b) the third party is the only practicable source of information available. When granting the disclosure order, the Court will give further consideration to:
  (i) costs incurred by the respondents in assembling the information;
  (ii) whether the public interest outweighs the legitimate privacy concerns of the person(s) sought to be identified;
  (iii) ensuring that privacy rights are invaded in the most minimal way; the length of delay between the time the request for the identities is made and the time the information is collected; and
  (iv) whether the plaintiffs will potentially extract private information not related to copyright infringement in breach of privacy laws.
  Also, an order for disclosure should include specify the type of information to be disclosed and the manner in which it can be used.

  In a follow up motion to obtain the identities of the 29 users who identified themselves with pseudonyms, BMH was denied this information by the Federal Court of Appeal: " ... because of the age of the data and its consequent unreliability, the privacy interests of the 29 persons outweighed the public interest concern in favour of disclosure." "Ultimately the issue is whether the identity of persons who are alleged to infringe musical copyright can be revealed despite the fact that their right to privacy may be violated. Each side presents compelling arguments and the difficulty lies in reaching a balance between the competing interests."




• An independent contractor gets stung for one year's profits in the amount of $ 37,000 plus costs when an independent contractor acts directly for a major client of the computer technology services company's client. Although there was not a written contract that provided the usual non-competition and confidential clauses, the Court held for the services company because the independent contractor had breached his "duty of good faith" by billing the services company's clients directly without advising it and transferring a domain name. The factors that the court relied up include: evidence of contractual expectations and of a great deal of reliance by the services company upon the independent contractor: see TSP-Intl. v, Mills et al 74 O.R. (3d) 461 (Superior Court of Justice, Feb. 17, 2005) which can be accessed via the E-Laws link in Sources & Links. It shows the importance of having a written agreement reviewed by your lawyer!
  Note: This case was reversed on appeal on the narrow grounds that the services company did not plead "duty of good faith."

  Past CIPS SIG LAW4IT.COM SEMINARS

  1. October 2, 2006
     "Independent Contractors Agreement - from an Accounting, Insurance & Legal Perspective"
     Discover the Practical Effects of Law On Your Business!
     WHAT: Special Interest Group
     Topic: "Independent Contractors Agreement - from an Accounting, Insurance & Legal Perspective"
     Of Interest To: All Businesses & Organizations that use Independent Contractors & all Consultants
     Presenters:
     
     Robert Novoselac B.Admin., C.A.; Wall & Associates P.C.
     
     Joe McCabe and LMS PROLINK
     the insurance source for CIPS members.
     
     George Eyre, LAW4IT.COM
     Cyberspace Lawyer.
     Read His Presentation Here
     
     WHERE: Metro Hall 55 John Street, Meeting Room 313
     WHEN: November 7, 2005 6 p.m. to 7:30 p.m.
     COSTS: Free to CIPS Members and Free Your First Time; otherwise $10

     CIPS - the Canadian Information Processing Society, founded in 1958 represents the interests of IT Professionals. CIPS, Toronto is the Toronto Branch. ISP is the only professional designation for IT professionals sanctioned by a government in Canada. For more information visit CIPS - Toronto by clicking on Sources & Links above.

Are ISP's Liable for the Downloading of Music Pursuant to Tariff 22?? Click Newsletter [2004] 7

What are the terms and conditions of a internet access agreement? What are the insurance requirements for computer professionals? See: Click Newsletter [2002] 3

Does your company need a web site hosting agreement? Click Newsletter [2002] 2

Does your company need a web site development agreement? Click Newsletter [2002] 1

Are online contracts valid in the Province of Ontario? Click Newsletter [2001] 1

As an independent computer contractor, what are the terms and conditions that should be considered in your contract? See: ISP Agreement

If you need practical expert advice from someone who has worked in and understands your business, please contact LAW4IT