Teresa Scassa - Blog

“Overbalancing:  The Supreme Court of Canada and the Purpose of Canada’s Copyright Act”, (2010) 25:2 Canadian Intellectual Property Review 181-204

This paper examines how this concept of ‘balance’ evolves in decisions of the Supreme Court of Canada, from the landmark decision in Théberge c. Galerie d’Art du Petit Champlain to the most recent decision in Euro-Excellence Inc. v. Kraft Canada. It offers a critique of the notion of “balancing” as developed by the Supreme Court of Canada.  The paper argues that this “balancing” approach is not supported by the language of the Copryight Act, that it is incoherent as a tool for statutory interpretation, and that it is ultimately inconsistent with the role of the judiciary.  The paper argues that rather than being in opposition to one another, the goals of protecting the rights of creators and encouraging access to and dissemination of works are often served by the same measures.  The paper suggests that the deep divisions at the Supreme Court of Canada in Robertson v. Thompson Corp. and in the Euro-Excellence case illustrate the failings of the Court’s “balancing” approach, and it argues for a more nuanced view of the public policy underlying copyright law.

“The Inadvertent Disclosure of Personal Health Information through Peer-to-peer File Sharing Programs”, in JAMIA 2010 17: 148-158 ( Journal of the American Medical Informatics Association) (with K. El Emam, E. Neri, E. Jonker, M. Sokolova, L. Peyton, & A. Neisa)

There has been a consistent concern about the inadvertent disclosure of personal information on peer-to-peer file sharing networks. Examples of personal health and financial information being exposed have been published. This paper estimates the extent to which personal health information (PHI) is leaking in this way, and compare that to the extent of leakage of personal financial information (PFI). The paper concludes that there is a real risk of PHI leakage on peer-to-peer file sharing networks, although the risk is not as large as for PFI. Custodians of PHI should not install file sharing applications on their computers, and individuals need to be educated about the proper use of file sharing tools to avoid inadvertent disclosure of their, their family’s, their clients’, or patients’ PHI.

“Journalistic Purposes and Private Sector Data Protection Legislation: Blogs, Tweets, and Information Maps” (2010) 35 Queen’s Law J. 733-781

This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems which will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exception in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions pertaining to the purpose and scope of these exceptions. Recent case law serves to illustrate the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege cases, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She compares how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.

This paper explores how changes in the ways in which information is consumed and disseminated by myriad individuals in myriad forms may impact data protection law in Canada. The author uses examples of blogs, Twitter and information maps to illustrate the problems which will inevitably arise when trying to discern which individuals and which information will properly fit into the journalistic purposes exception in Canadian data protection statutes. She suggests that exceptions for the collection, use or disclosure of personal information for journalistic purposes raise vital questions pertaining to the purpose and scope of these exceptions. Recent case law serves to illustrate the difficulties faced by decision-makers in defining the scope of these exceptions, particularly given the need to balance the public right to be informed with individual privacy rights. The author considers the journalistic purposes exceptions in light of the role of journalists by analyzing how reporters’ privilege cases, defamation law (“responsible journalism”) and ethical codes of conduct might affect and inform current Canadian case law. She compares how journalistic purpose exceptions are configured and applied in Australia and the United Kingdom. In the conclusion, the author considers the direction that data protection law in Canada should take. She suggests that a reasonableness test, which attempts to balance the various conflicting interests, should govern decisions on whether information is being provided for a journalistic purpose or for some “other” purpose.

“Geographic Information as Personal Information”, (2010) 10:2 Oxford University Commonwealth Law Journal 185-214

The rapid proliferation of applications using geographical information combined with the growing accessibility of vast quantities of data of all kinds has given rise to the mapping of information on an unprecedented scale. Information maps are created by governments, private sector actors, and even by individuals; they may be sole-authored or crowd-sourced. These maps are frequently made available over the internet. Information maps have a serious potential to impact on personal privacy. This paper gives an overview of developments in the mapping of information. It then explores a key question in the data protection context: when is geographical information personal information? Particular challenges in answering this question include the way in which geographical information may be a key to re-identifying de-identified data, and how it can be used to link aggregate geodemographic data to specific individuals.

“Ambush Marketing and the Right of Association: Clamping Down on References To that Big Event with All the Athletes in a Couple of Years”, now published in the Journal of Sport Managemet. PDF available here

“Privacy by the Wayside: The New Information Superhighway, Data Privacy, and the Deployment of Intelligent Transportation Systems”, (2011) 74 University of Saskatchewan Law Review 117-164 (with Jennifer Chandler and Elizabeth F. Judge)

Intelligent Transport Systems (ITS) integrate vehicles and surface transportation infrastructure with information, communication, and sensory technologies to improve the safety, efficiency, security, service, accessibility, environmental responsibility, and reliability of the transportation system. The term ITS covers a very broad range of transport-related activities involving federal, provincial, and municipal governments as well as private sector actors. In its broadest sense, ITS enables an integrated and intelligent network of services for both public and private transportation systems. In this article, we discuss the data protection and privacy issues raised by the use of ITS in Canada.  We begin with an overview identifying the central privacy issues that arise with ITS. We then provide an introduction to the legal and institutional privacy framework in Canada. This is followed by a closer analysis of Canada’s data protection regimes and their application to ITS. 

Dana Ellis, Teresa Scassa & Benoit Séguin, “Framing Ambush Marketing as a Legal Issue: An Olympic Perspective”, (2011) 14:3 Sport Management Review 297-308.

This paper examines the emerging trend of host countries using legislation to protect the Olympic brand and control ambush marketing. More specifically, it will discuss Canada’s Olympic and Paralympic Marks Act in depth. Issues related to framing ambush marketing as a legal issue as opposed to a business issue are examined. The consequences of placing ambush marketing in a legal context are considered from a legal and business management perspective.

“Interests in the Balance”, Book Chapter in Michael Geist, ed., In the Public Interest – The Future of Canadian Copyright Law, Irwin Law, 2005 (pp. 41-65)

In this paper, the author explores the ambiguities and inconsistencies in the Supreme Court of Canada’s latest articulation of the balance to be struck in copyright law. She considers whether the balancing of interests is to be approached by courts based on, or independently of, the balance struck in the legislation. She argues that the identified interests of ‘creators’, ‘users’ and the public should be understood in a textured way, and that the interests of ‘owners’ should neither be forgotten nor conflated with those of creators of works.

“Patent Law at the Supreme Court of Canada: A Healthy Balance?”, in Jocelyn Downie & Elaine Gibson, eds., Health Law at the Supreme Court of Canada. Irwin Law Books, 2006, pp. 337-364

In the health care context, the boundaries of private ownership rights over innovation in the fields of biotechnology and pharmaceuticals and the scope of the public domain have important implications for research and development, for cost to both the public purse and to private individuals, and ultimately for access to treatment. An approach which places limits and sets boundaries is therefore often favoured by those concerned about these areas of activity. By contrast, the pharmaceutical industry has emphasized the importance of strong and broad patent rights, arguing that they provide the necessary incentive for continued research and development.

This paper explores these tensions in the context of the decisions of the Supreme Court of Canada. The first section of the paper explores the Court’s recent statements on the purpose of patent law, with a particular focus on statements of purpose in health law related cases. After a consideration of the general statements of purpose made in the cases, the paper examines how these statements influence the interpretation and outcomes in key cases.

            The second section of the paper examines the Court’s approach to interpreting the scope of patents. As the Court has pointed out, a patent is a regulation within the meaning of the Interpretation Act. Thus the interpretation of the scope of the patent granted, also referred to as “claims construction,” is a second level of judicial interpretive activity. The paper considers recent key decisions of the Court in which it details the proper approach to claims construction in light of the stated purposes of patent legislation.

“The challenge of trademark law in Canada’s federal and bijural system”, in Ysolde Gendreau, ed., An Emerging Intellectual Property Paradigm: Perspectives from Canada, Queen Mary Studies in Intellectual Property Law, Cheltenham, UK: Edward Elgar, 2008, 3-21

Canada’s constitution divides jurisdiction over the full range of legislative subject matter between federal and provincial governments. While intellectual property subjects have typically fallen within federal jurisdiction, some aspects of intellectual property protection are provincial in nature. This is particularly the case in the area of trademarks. Further, Canada is a mixed jurisdiction. While the three territories and nine of the ten provinces draw on the common law legal tradition, Quebec’s private law is drawn from the French civil law tradition. This federal and bijural nature of Canada’s legal system presents some challenges for trademark law. The challenges cut across a variety of lines. This book chapter explores the issues which arise from the tension between the federal and provincial levels of government and between the co-existing common and civil law traditions. Primary focus is given to the issue of the division of powers. The tension between jurisdiction over registered and unregistered marks is explored. Issues such as the constitutionality of various provisions of the Trade-marks Act, and the Trade-marks Act itself are considered, as well as the interrelationship between provincial legislation governing business names and registered trademarks. The paper also explores the harmonization of principles of “passing off” in the private law of both Quebec and the common law provinces.