Monday, December 17, 2012

Canadian Statement at WIPO Today re Proposed Treaty for the Blind

I've been advised that Canada today made this statement - taken from the "live feed" - which means that it may contain errors (e.g. ?) and require editorial correction:
CANADA: Thank you, Mr. Chairman.
Canada is pleased to address this Assembly on the important issue of improving access to works for the visually impaired. We would like to take this turn to reiterate (?) our support of a development on a Treaty on limitations and exceptions for visually impaired persons and person with print disabilities. And the convening of a [Diplomatic Conference] in 2013 aimed at concluding such a Treaty. We appreciate the role that limitations and exceptions in national copyright laws can play in facilitating access for the print disabled. Canada recently brought into fruition(?) amendments to [its] copyright exceptions framework as part of the copyright modernization act that addressed this issue directly. Canada would like to extend its thanks to our fellow delegations for their [hard] work in advancing the working text to its current statement. Given that there is not yet a consensus on certain elements in the draft text, we strongly encourage all Members to work diligently with an objective to address these outstanding matters prior to the Diplomatic Conference.
And to this end, we consider the proposal to contravene -- to convene an intersessional meeting of stand standing [committee] in February 2013 as a positive step to achieving this objective. We will continue to work with the other delegations to advance the text with a view towards [concluding]a new Treaty for visually impaired person and person with print disabilities.

Sunday, December 16, 2012

High Voltage and High Stakes: Voltage Pictures Seeks Disclosure of Customers' Names and Addresses from Teksavvy

There have been many recent reports (e.g. here, here, here, here and here) about Voltage Pictures’ second attempt at mass copyright litigation in Canada and its motion to force Teksavvy, an innovative and independent Chatham, Ontario based ISP known for its consumer friendly advocacy, to disclose the names and addresses of 2,000 of its subscribers who are currently identified only by IP address. These subscribers have allegedly infringed Voltage’s alleged copyrights in certain listed cinematographic works, such as “Balls to the Wall.”  Interestingly, the Statement of Claim does not refer to “Hurt Locker”, a Voltage picture that was the subject of a 2011 mass litigation effort, also in the Federal Court, against customers of some Quebec ISPs. That action was discontinued on March 28, 2012.

If the motion remains unopposed and is granted, the result could immediately affect 2,000 Teksavvy customers and help to pave the way for future mass litigation - or the threat thereof in order to obtain vast numbers of “settlements” - in Canada in the future.  Such litigation would be new to Canada.

I have no involvement at this time in this litigation. That said, I should disclose that I was lead counsel for CIPPIC back in 2004 and 2005 when CIPPIC actively intervened in the BMG litigation in support of the public interest and to assist the Court with respect to copyright and privacy issues.  At that time, certain major record companies were targeting only 29 alleged infringers spread amongst five large ISPs. Now we have one plaintiff (Voltage Pictures) suing 2,000 subscribers of one small Canadian ISP, namely Teksavvy.  It should be emphasized that none of those objecting to or intervening in the motion in 2004 were there in support of what is sometimes called “piracy” by the alleged downloaders and file sharers. The battle was all about privacy – and when it can or should be breached, mindful among other things of the severe consequences of ordinary citizens being dragged into complex and costly litigation, quite possibly by mistake based upon unreliable information.

Although Teksavvy has indicated that it “will not provide personal information to a 3rd party when copyright infringement is alleged unless ordered to do so by a court”, it has, however, decided in the end not to oppose the motion seeking such an order. It has decided not to cross-examine on Voltage’s affidavit material and not to file any written material. In a recent blog post entitled “Why we are not opposing motion on Monday”, Teksavvy’s CEO explains why his company has taken this position:
Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case. Our place is to ensure that we provide adequate notice and also to make known to others that these requests have occurred and that the best way to make sure to avoid being involved is to simply not engage in such activities. If somehow you end up involved and you feel its not right, the place to voice your concern is the hearing on Monday. If you intend to appear, please let us know also.

I will be there on Monday to ensure your privacy is taken seriously however we will not be making a case against the merit of what they are alleging. That's for those affected and others to do if they wish to. Our role has been to provide notice and to take every step to alert and to some degree educate people that the laws have now changed and apparently so too have the technologies used to collect evidence in these cases. If they were not enforcing these laws in the past, they are certainly doing so now, whether the laws are right or not is not for us to judge.

Interested readers should read the whole statement and the many comments that follow from Teksavvy’s often very savvy readers. Teksavvy also has a statement on its website where it states that:
We believe that our customers have a right to:
1.   Have their privacy safeguarded.
2.   Be notified that a request for their personal information has been made by a third party.
3.   Have an opportunity to defend themselves when claims are made against them.
TekSavvy will do everything in its power to protect its customers. However, we must comply with all court orders requiring us to disclose the personal information of our customers.

Despite Teksavvy’s openness concerning this issue, questions are still bound to arise why Teksavvy is not actually opposing this disclosure motion in 2012, as Shaw and Telus actively and successfully did in 2004, with Bell and Rogers taking a similar if less vigorous position. In this regard, it is interesting to compare Voltage’s material with the BMG et al material filed in 2004 that was rejected by the Federal Court and Federal Court of Appeal at that time as inadequate in a very comparable situation, as a result of which we now have clear and binding appellate case law.

Teksavvy did go to some length to specifically notify its potentially affected customers. However, it would be very surprising if any of them are willing and able to retain counsel to assume the burden of opposing a determined and experienced plaintiff and to assume the risk of an adverse costs award. In any event, the lack of time probably renders the possibility of such activity by individual Teksavvy subscribers effectively completely hypothetical. 

On Friday afternoon, December 14, just three days after Voltage’s materials were filed, CIPPIC sent a lengthy letter to the Court asking for the matter to be adjourned so that CIPPIC could intervene and providing a preview of some of the issues that may be raised, if the Court allows the adjournment.  The letter makes several allegations, the most important of which are that:
  • According to CIPPIC, this is not “bona fide” litigation. In CIPPIC’s words, “this plaintiff has a track record in the United States of demanding subscriber data of internet service providers for the purposes of demanding exorbitant payments to settle under threat of litigation, with no bona fide intent to prosecute such litigation”
  • According to CIPPIC, there is heavy reliance by Voltage on “hearsay” evidence. In CIPPIC’s words, “even a generous reading of the applicant’s motion materials discloses abundant reliance on hearsay evidence, including the key paragraphs in Mr. Logan’s affidavit describing the gathering of the evidence of infringement (paras. 10-11, at page 10 of the Applicant’s Motion record).”
  • According to CIPPIC, “it is worth noting that the plaintiff has pleaded that the John and Jane Does have engaged in commercial infringement. We suggest that even a generous reading of the applicant’s materials fail to make our even a bona fide case of commercial infringement.”
  • According to CIPPIC, the Statement of Claim also raises questions regarding jurisdiction issues in relation to non-statutory claims; and the question of joinder.

If CIPPIC is substantially right about the issues it raises in its letter of December 14, 2012, it might have been quite feasible for Teksavvy to successfully oppose the motion seeking to force it disclose its subscribers’ identity, as was done in 2004.   

The law about all of this was clearly laid out by the Federal Court of Appeal in 2005.  Here is a very balanced discussion of this presented by myself and one of my worthy opponents in that case, Richard Naiberg.  The key criteria for potential success in a disclosure motion such as this is that there must be substantial, admissible, non-hearsay, and reliable evidence in the form of affidavit material and at least a bona fide case.

The disclosure motion will be heard in the Federal Court in Toronto at 180 Queen Street West at  9:30 AM or possibly not long thereafter on Monday, December 17, 2012. The hearing will presumably be open to the public, although these court rooms typically have very limited seating for spectators.


PS - The Federal Court apparently took note of CIPPIC's letter and a request by Teksavvy to adjourn was granted until January 14, 2013. It will be interesting to see if Teksavvy now decides to actually oppose and if CIPPIC is permitted to intervene, and if so on what terms. See Michael's update.    

Wednesday, November 28, 2012

SOCAN's Position at the Copyright Board on SCC ESAC Judgment and Making Available Right

From:                     "Estabrooks, Matthew"
To:                            XXXXXXXXXXXXXXXXXX
CC:                          , "Watt, Lynne" ...
Date:                       28/11/2012 11:30 am
Subject:                  Making Available Right

Dear Counsel/Tariff 22 Objectors,
We are writing in connection with the recent coming into force of
several sections of Bill C‑11 (Copyright Modernization Act) on November
7, 2012.  Among those sections is the new section 2.4(1.1), which reads
as follows:

 2.4(1.1)  For the purposes of this Act, communication of a work or other
subject‑matter to the public by telecommunication includes making it
available to the public by telecommunication in a way that allows a
member of the public to have access to it from a place and at a time
individually chosen by that member of the public.
It is SOCAN's position that the new making available right ("MAR")
renders moot and inapplicable the recent conclusion reached by the
Supreme Court of Canada in ESA v. SOCAN, 2012 SCC 34, (and the Rogers
companion case) that the Act's section 3(1)(f) communication right does
not apply to downloads of musical works.  SOCAN's position is that, as a
result of new section 2.4(1.1), users of music on the Internet are
liable to pay communication right royalties to SOCAN when they post
musical works on their Internet servers in a way that allows access to
them by their end‑user customers, irrespective of whether the musical
works are subsequently transmitted to end‑users by way of downloads,
streams or at all.
We are aware that a number of objectors take a different position and
the legal implications of the new MAR will therefore have to be
determined by the Board.  The issue has already been put "on the table"
as part of upcoming proceedings for the determination of SOCAN Tariff
22.A for Online Music Services.  However, the issue is not limited to
Tariff 22.A uses and may be relevant to Objectors to the other
components of Tariff 22 as well.  For that reason, we suggest that the
Tariff 22.A procedure on this legal issue be expanded to include all
participants who may have an interest in its determination.  Our
understanding is that a number of Objectors would be amenable to
proceeding in that manner.
In SOCAN's view, this is a pure legal issue that can and should be
determined by the Board without the need of interrogatories and/or the
presentation of new evidence, with the following steps:
No later than Friday, December 21:        Filing of Legal Brief by SOCAN
No later than Friday, February 1:            Filing of Legal Briefs by
No later than Friday, February 15:           Filing of Reply by SOCAN

 Date to be determined for oral arguments, if deemed necessary.
We look forward  to hearing your response to SOCAN's proposal as soon as
Matthew Estabrooks
T 613‑786‑0211


Gowling Lafleur Henderson LLP
Lawyers * Patent and Trade‑mark Agents
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3 Canada
T 613‑233‑1781  F 613‑563‑9869


Tuesday, November 27, 2012

Teva Responds to Pfizer Motion to SCC to Amend or Re-hear

File:Viagra in Pack.jpg 

I wrote recently about Pfizer's unusual  motion to the Supreme Court of Canada to amend its judgment or to re-hear the Viagra patent case regarding the Court's declaration that the '446 patent is void in rem. Pfizer's material can be found on my earlier posting here.

TEVA filed its response on November 26, 2012 which is available here.

The Canadian Generic Pharmaceutical Association (CGPA) response is here.


Monday, November 26, 2012


As sent by the Copyright Board earlier today:

 From: []
Sent: November-26-12 3:51 PM
Subject: WORKING COMMITTEE / COMITÉ DE TRAVAIL (Copyright Board / Commission du droit d'auteur)


Having met with all of you in Ottawa, Toronto and Montreal to discuss issues of interest to the Board and its clients, I have now asked the Board’s General Counsel,
Mario Bouchard, to lead and facilitate a committee whose mandate is described below.

Glenn A. Bloom, Casey Chisick, Gilles Daigle, Mark Hayes, David Kent, Jay Kerr-Wilson, Colette Matteau and Marek Nitoslawski have accepted the Board’s invitation to participate in the committee. The committee may ask the views of others in the course of its deliberations.

I have asked the committee to prepare its terms of reference, including mandate, structure and operations. I expect that the committee will wish to focus generally on (a) proposing possible changes to procedures and processes that may lead to Board proceedings being more efficient and, possibly, less costly, (b) considering improvements to other aspects of Board processes and operations that may enhance the quality of the Board’s services to collectives, copyright users and the public in general, and (c) identifying other issues where improvements may be required and which may be addressed as time and resources allow. As part of this exercice, the committee might also wish to identify more specific recommendations, on a small number of issues, and that can be addressed relatively easily, in the hope of delivering significant improvements fairly rapidly.

I know you will join me in thanking in advance the members of the committee for their contribution.



Vous ayant tous rencontré à Ottawa, Toronto et Montréal afin de discuter de questions intéressant la Commission et sa clientèle, j’ai maintenant demandé à l’avocat général de la Commission,
Mario Bouchard, d’agir à titre de leader et de facilitateur d’un comité dont le mandat est décrit plus bas.

Glenn A. Bloom, Casey Chisick, Gilles Daigle, Mark Hayes, David Kent, Jay Kerr-Wilson, Colette Matteau et Marek Nitoslawski ont accepté l’invitation de la Commission de participer au comité, qui pourra demander le point de vue d’autres personnes dans le cadre de ses travaux.

J’ai demandé au comité d’établir son cadre de référence, y compris son mandat, sa structure et son fonctionnement. Je m’attends à ce que ses efforts visent généralement (a) à proposer des changements de procédure et de processus pouvant permettre aux affaires devant la Commission de se dérouler de façon plus efficiente et, possiblement, moins coûteuse, (b) à envisager des améliorations à d’autres aspects du fonctionnement de la Commission, lui permettant de livrer des services de meilleure qualité aux sociétés de gestion, aux utilisateurs du droit d’auteur et au public en général, et (c) à identifier d’autres aspects susceptibles d’amélioration et dont on pourrait traiter en fonction des disponibilités en temps et en ressources. Dans le cadre de cet exercice, le comité voudra peut-être également préparer des recommandations précises visant un petit nombre de questions relativement facile à aborder, afin de permettre des améliorations significatives de façon assez rapide.

Je sais que vous vous joindrez à moi pour remercier à l’avance les membres du comité pour leur contribution.
 Claude Majeau
Vice-Chairman & CEO / Vice-président et premier dirigeant
Copyright Board of Canada
Commission du droit d'auteur du Canada
56 Sparks - Suite/Bureau 800
Ottawa ON  K1A 0C9
Tel: 613-952-8625

Thursday, November 22, 2012

Competition for Viagra on the Rise

It didn't take long after the SCC's decision of November 8, 2012  for the generic drug companies to get their Notices of Compliance for SILDENAFIL CITRATE  to compete with Pfizer's popular brand name drug VIAGRA.

Here's the current list of approved manufacturers:

    NOC Date: 2012-11-16
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: Not Applicable
    Manufacturer: PHARMASCIENCE INC
    NOC Date: 2012-11-13
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02371626, 02371634, 02371642
    Manufacturer: DOMINION PHARMACAL
    NOC Date: 2012-11-13
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02389592, 02389606, 02389614
    NOC Date: 2012-11-09
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02248201, 02248202, 02248203
    NOC Date: 2012-11-09
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02383101, 02383128, 02383136
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02393069, 02393077, 02393085
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02392577, 02392585, 02392593
    Manufacturer: NOVOPHARM LIMITED
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02308738, 02308746, 02308754
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02372053, 02372061, 02372088
    Manufacturer: TEVA CANADA LIMITED
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02319640, 02319659, 02319667
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02318806, 02318814, 02318822
    Manufacturer: PHARMASCIENCE INC
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02317559, 02317575, 02317583
    NOC Date: 2012-11-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02365375, 02365391, 02365405
    NOC Date: 2012-09-06
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02392682
    Manufacturer: PFIZER CANADA INC
    NOC Date: 2010-09-16
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: Not Applicable
    Manufacturer: RATIOPHARM INC
    NOC Date: 2010-06-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02319500
    Manufacturer: PFIZER CANADA INC
    NOC Date: 2010-01-14
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02341611
    NOC Date: 2007-02-16
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02291991, 02292009, 02292017
    Manufacturer: PFIZER CANADA INC.
    NOC Date: 2006-05-26
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02279401
  20. VIAGRA
    Manufacturer: PFIZER CANADA INC.
    NOC Date: 2006-03-10
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: Not Applicable
  21. VIAGRA
    Manufacturer: PFIZER CANADA INC.
    NOC Date: 2004-03-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: Not Applicable
  22. VIAGRA
    Manufacturer: PFIZER CANADA INC.
    NOC Date: 1999-03-08
    Medicinal Ingredients: SILDENAFIL CITRATE
    DIN: 02239766, 02239767, 02239768