Consumer Rights

Don’t sign a new cell phone contract until Dec 2, 2013

In a consumer-friendly move, the Canadian Radio-television and Telecommunications Commission (CRTC) released some new rules today governing new cell phone contracts.

The new rules will apply to new cell phone contracts that start on December 2, 2013.

In particular, the new rules:

  • allow consumers to terminate their cell phone contracts after 2 years without cancellation fees, even if they have signed on for a longer term
  • cap extra data charges at $50/month
  • cap international data roaming charges at $100/month
  • allow consumers to have their cellphones unlocked after 90 days, or immediately if they paid for the device in full
  • allow consumers to return their cellphones, within 15 days and specific usage limits, if they are unhappy with their service
  • allow consumers to accept or decline changes to the key terms of a fixed-term contract (i.e., 2-year)

Remember, in order to take advantage of these new rules, the cell phone contract must be signed on or after December 2, 2013.

New fee to play recorded music at parties

Weddings are expensive.  Thanks to a recent decision by the Copyright Board, it’s going to become a little bit more expensive starting this summer.

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.

Colbert and Stewart: Copyright fair dealing

Have you ever wondered how Stephen Colbert or Jon Stewart can reproduce news clips without being sued for copyright infringement?

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.

 

Defamation and linking to defamatory materials

The Supreme Court today tackled the issue of whether a hyperlink linking to another web page with defamatory material is itself defamatory.  The Court concluded that the use of a hyperlink to link to another page with defamatory material is not itself defamatory.

In Crookes v. Newton, 2011 SCC 47, the defendant Newton had posted material on his website linking to other websites that contained defamatory material about the plaintiff Crookes. Crookes sued Newton on the basis that two of the links he created connected to defamatory material, and that by using those hyperlinks, Mr. Newton was publishing the defamatory information.

The Court concluded that:

 Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

[…]

[…] the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed […]

As the plaintiff in a defamation suit must prove on that the defamatory words were “published”, the use of a hyperlink to defamatory material, without more, is not defamatory.

SCC will hear copyright in education case

Under the Copyright Act, anyone can make non-infringing use of copyrighted material provided the use is made for an allowed purpose and is fair.  This is known as fair dealing.  Allowed purposes under the Copyright Act include “research or private study” and “criticism or review”.

Late last year, the Federal Court of Appeal held in Alberta (Education) v. Access Copyright, 2010 FCA 198, that the tribunal “Access Copyright” made no error when it determined that the photocopying of excerpts from textbooks for use in classroom instruction for students in kindergarten to grade 12 was not fair dealing.  This is a major win for copyright holders as it clarified their scope of copyright in the context of education.

Today, the Supreme Court of Canada announced that it will hear an appeal of the Federal Court of Appeal’s decision in Alberta (Education) v. Access Copyright.  The outcome of this appeal, in addition to the landmark case of CCH v. LSUC, 2004 SCC 13, could clarify the law of copyright in Canada for years to come.

The New Consumer Product Safety Act

Late last year, the Canada Consumer Product Safety Act was enacted into law, as part of the government’s effort to protect the public from dangers to human health or safety from both imported and domestic consumer products.  The Act is expected to come into force on June 20, 2011.

Companies that manufacture, import, advertise or sell goods such as baby walkers, kite strings that may conduct electricity, lawn darts, and bisphenol A baby bottles need to be aware that this Act specifically prohibits these goods for sale in Canada.

Other notable aspects of this Act include a duty to report health and safety incidents and the power for mandatory recall orders, which will be discussed in a later post.

Federal Privacy Commissioner outlines proposed changes to PIPEDA

In a previous post I outlined some of the priorities of Federal Privacy Commissioner Jennifer Stoddart as she enters her new 3 year term.

One of her priorities is to strengthen PIPEDA, the Personal Information Protection and Electronic Documents Act, when it faces a mandatory review by Parliament later this year.

The main items that Stoddart has hinted she’ll push for include increased enforcement powers for the Federal Privacy Commissioner and tougher penalties for companies found to have failed to comply with PIPEDA, including publicly naming violators.

With regards to enforcement and penalties, Commissioner Stoddart notes that Canada has “become one of the few major countries where the data protection regulator lacks the ability to issue orders and impose fines.”  In contrast, “the CRTC has the power to to impose fines for violations of the do-not-call rules (and recently slapped Bell Canada with a record-setting $1.3-million penalty).”  In addition, “there are significant fines – $10 million for businesses – provided for in the new anti-spam law.”  Furthermore, privacy regulators like the UK Information Commissioner and the Spanish Data Protection Agent all use their enforcement powers to successfully signal that privacy violations will be met with financial penalties.

Finally, Commissioner Stoddart candidly admitted that there is a growing discomfort with the secretive nature of privacy investigations under PIPEDA:

It seems to me that not naming names is robbing the Canadian public of much of the educational value of our investigative findings.

Privacy law up for review this year

Parliament recently approved Federal Privacy Commissioner Jennifer Stoddart’s re-appointment for an additional three-year term. In a speech at the University of Ottawa, she outlined some of her priorities for her new term: 1) ensuring social networking and online dating sites respect privacy, 2) educating Canadians to better understand their privacy rights and to make well-informed choices, and 3) ensuring privacy complaints made to her office are dealt with in a timely manner.

Stoddart also indicated that she wants to strengthen PIPEDA, the Personal Information Protection and Electronic Documents Act.  With PIPEDA facing a mandatory review by Parliament this year, it is likely that at least some legislative change will take place.  In a future post I’ll explore some of the possible changes to PIPEDA.

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