What’s really interesting is this case provides a glimpse into the internal workings of Telus as it processes text messages from its mobile subscribers.

It starts off quite normally, just like any other service provider:

When Telus subscribers send a text message, the transmission of that message takes place in the following sequence.  It is first transmitted to the nearest cell tower, then to Telus’ transmission infrastructure, then to the cell tower nearest to the recipient, and finally to the recipient’s phone.  If the recipient’s phone is turned off or is out of range of a cell tower, the text message will temporarily pause in Telus’ transmission infrastructure for up to five days.  After five days, Telus stops trying to deliver the message and deletes it without notifying the sender.

But then things get interesting:

Unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a period of 30 days. Text messages that are sent by a Telus subscriber are copied to the computer database during the transmission process at the point in time when the text message enters Telus’ transmission infrastructure. Text messages received by a Telus subscriber are copied to the computer database when the Telus subscriber’s phone receives the message. In many instances, this system results in text messages being copied to the computer database before the recipient’s phone has received the text message and/or before the intended recipient has read the text message.

This is interesting for a few reasons:

1. If the sender or recipient of a text message is on Telus, then the text message will be stored for at least 30 days, and
2. In light of this SCC ruling, Telus will give up the contents of all your text messages for the last 30 days when given a specific warrant under Part VI of the Criminal Code that authorizes the interception of private communications. However, for other mobile providers which don’t routinely store text messages like Telus, even when given such a specific warrant for the interception of private communications, they will be unable to supply the police with the contents of your previous text messages because no record of it exists.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. Anti-spam law enacted in Canada
2. Are emails at work confidential or privileged?
3. Ontario court confirms new privacy tort

Generally, communications between a client and her lawyer are subject to solicitor-client privilege, and may not be revealed in court.

However, if the client contacts her lawyer from work, and in particular uses her work smartphone, work computer or her employer’s Internet connection, her employer may have access to her communications with her lawyer.   This applies even if the client uses her work computer but uses her own web-based email (like Gmail or Hotmail) to send and receive emails with her lawyer.

This is because most employers have an information technology policy which allows the employer to have access to all data stored on an employee’s work computer, as well as access to all data transfers in and out of an employee’s work computer.  There is likely a similar policy with respect to smartphones issued by the employer as well.

If an employee absolutely needs to contact a lawyer while at work, I recommend that the employee use their own personal email account on their personal smartphone to do so.

And please remember to make sure the personal smartphone is using your cellular provider’s network, and not the employer’s wifi network.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

The Copyright Board of Canada has recently allowed new tariffs to be collected for playing recorded music at events such as weddings, parades, karaoke bars, and fairs. The cost varies depending on how many people attend the event, the type of event, and interestingly, would double if people are dancing at the event. For example, a wedding where the DJ plays a song from a CD with less than 100 attendees and at least one attendee dancing would cost an extra $18.50 per day, and a parade where recorded music is played on at least one float must pay at least an extra $32.55 per day.

It’ll be up to the event organizers to self-report and pay the royalty on their own initiative. If you have a wedding this summer, be sure to ask your event organizer whether or not these new tariffs apply to you.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Just because something is under copyright doesn’t mean it cannot be copied or used by someone other than the author. Colbert and Stewart, as pundits who report on current events, criticize and perform parodies and satire, can rightly claim “fair use” under US copyright law in their use of news clips on their shows to avoid copyright infringement.

Similar to fair use in the US, under the fair dealing provisions of the Canadian Copyright Act, the Canadian general public can also use a copyrighted work without infringing copyright.

In general, fair dealing for the purpose of research, private study, criticism or review, or news reporting does not infringe copyright.  As long as the reproduction was “fair”, there is no copyright infringement.

The second step, whether the dealing is fair, depends on the facts of each case.  In CCH v. LSUC, 2004 SCC 13, the Supreme Court of Canada set out six non-exhaustive factors to determine whether a dealing is “fair”:

1. the purpose of the dealing;
2. the character of the dealing;
3. the amount of the dealing;
4. alternatives to the dealing;
5. the nature of the work; and
6. the effect of the dealing on the work.

These “fairness” factors mean that, for example, a wholesale copying of an entire show would probably not be considered “fair”, even if it was for the purpose of news reporting or criticism. But it does allow for short reproductions of clips a few seconds long, just like the clips reproduced on The Daily Show or the Colbert Report.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. SCC will hear copyright in education case
2. Now Is The Time To Speak Out On Copyright Reform
3. Be sure to question candidates on copyright reform

The court held that BBM Canada, offering “BBM” as a specific brand of broadcast measurement services, is not entitled to a broader monopoly outside the broadcasting and advertising industries even though it had been using its trade-mark much longer than RIM, as the nature of the products and services provided by BBM Canada and RIM vary significantly.  BBM Canada’s focus is on impartial measurement of ratings data and sophisticated market research for a narrow and distinct group of consumers in the advertising and broadcast media industry, while RIM makes smartphones intended for the general public. The court also found no evidence of actual confusion by consumers, no finding of passing off and no depreciation of goodwill.

This decision was rightly decided, in my view, as generally the nature of the products and services used in association with a trademark defines the scope of the trademark monopoly.  BBM Canada doubtlessly knew this from the beginning.  Perhaps BBM Canada thought its use of the mark since 1944 gives it a fighting chance at a the court recognizing a broader scope for its trademark.  In this case, they were wrong.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. Trademark registration and a search for prior use
2. Trademarking a sound in Canada
3. What’s a registered trademark and why do I want one?

In 2009, the Quebec Superior Court agreed with Claude Robinson and found Cinar guilty of copyright infringement. You can read all about the similarities the court found, in addition to comparative screenshots from Robinson Curiosité and Robinson Sucroë in the link above.

Cinar was ordered to pay more than $5.2 million in damages, including $1 million in punitive damages.

Cinar appealed. In 2011, the Quebec Court of Appeal held that Cinar did indeed infringe Robinson’s copyright, but reduced the damages to $2.7 million, including $150,000 in punitive damages.

Yesterday, the Supreme Court of Canada agreed to hear the case. Of particular interest here is the issue of the calculation of damages and punitive damages in relation to copyright infringement. Win or lose, I hope Claude Robinson’s 16 year ordeal will be resolved soon.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. RIM sues Kik for patent infringement
2. Kik’s defence to RIM’s infringement lawsuit

This means that previously unprotected marketing materials such as jingles, vocal slogans, and song snippets that are used to identify with a brand can now be under trademark protection in Canada.

To register a sound mark, the application for the registration of a trade-mark should:

1. state that the application is for the registration of a sound mark;
2. contain a drawing that graphically represents the sound;
3. contain a description of the sound; and
4. contain an electronic recording of the sound.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. Trademark registration and a search for prior use
2. Different types of intellectual property rights
3. What’s a registered trademark and why do I want one?

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are:

• the defendant’s conduct must be intentional, within includes reckless conduct;
• the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns;
• a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

Proof of harm to a recognized economic interest is not required. However, given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be modest.

The court also emphasized that the types of intrusions covered are to be decided objectively:

Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

This new development in tort law is welcome as previous cases were unclear whether a tort of privacy actually exists in Ontario. Businesses which keep financial or health records should make their employees aware that such a tort of privacy exists and should take steps to further protect their customers’ information.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. BC court confirms website terms of use enforceable as legal contracts
2. Privacy law up for review this year
3. Federal Privacy Commissioner outlines proposed changes to PIPEDA

In Ontario, the Ontario Securities Commission regulates the Toronto Stock Exchange (TSX), while in BC the British Columbia Securities Commission regulates the Vancouver Stock Exchange (VSE). However, there is no single capital markets regulator covering all of Canada.

A nationwide regulator covering all of Canada would ensure that Canada’s financial markets are regulated with the same laws and enforced with the same rigor, fueling Canada’s economy and maintaining Canada’s financial stability. With that aim in mind, the federal government has been trying to create a nationwide securities regulator for Canada for some time, under its proposed Securities Act.  Unfortunately, the creation of a nationwide securities regulator was dealt a setback by the Supreme Court of Canada in the Reference re Securities Act released today.

The problem is that under the Canadian constitution, the federal government has a general power to regulate trade and commerce but each provincial government has the sole power to regulate matters over property and civil rights and matters of a local or private nature within their own province.  The Court held that as it is currently drafted, the proposed Act is not chiefly aimed at genuine federal concerns, but is principally directed at the day‑to‑day regulation of all aspects of securities and is thus unconstitutional.

The Court however recognized that there are specific aspects of the Act aimed at addressing matters of genuine national importance that is distinct from provincial concerns, including the management of systemic risk and national data collection, which the provinces, acting alone or in concert, lack the constitutional capacity to sustain a viable national scheme.

The next step for the federal government then would be to redraft the Securities Act taking into account the Supreme Court’s ruling, and hopefully reintroduce it later on in 2012.  A nationwide regulator is important for Canada as a whole, and the federal government should make it a priority in the new year.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

If you’re buying a home (or any real estate) in Canada from a seller who normally does not live in Canada (called a non-resident), you may be liable for additional taxes if you are not careful.  Under section 116 of the Income Tax Act of Canada, a buyer who buys Canadian property from a non-resident may be liable for up to 25% of the capital gains the non-resident seller made on the sale.

In such cases, the buyer must obtain a Clearance Certificate issued by the Canada Revenue Agency under section 116 to relieve them of this tax liability.  The process to obtain this certificate can be complex and must involve the seller’s lawyer and the seller’s accountant working together.  In some cases, CRA can take a few months to issue the certificate.  If you are a non-resident seller, or are buying property from a seller who normally does not live in Canada, consult your lawyer about the s. 116 clearance certificate process.

Copyright David Lam, Barrister and Solicitor. This post is from the David Lam Law Blog and contains general information only and should not be relied upon as legal advice. Please see our policies for details.

Further reading

1. Status certificates are an essential resource when buying a condo