Monthly Archives: May 2021

Canadian Privacy Commissioner Unimpressed with Bill C-11 as it Currently Stands

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The Canadian Privacy Commissioner recently voiced serious concerns with Bill C-11, a piece of legislation meant  to replace the Canadian law relating to  personal information. Though it is meant to upgrade Canadian legislation, Commissioner Therrien believes the revised law would actually lessen the protection of personal information for Canadians.

As you may remember, the Canadian Parliament tabled new bill called C-11, back in September, meant to overhaul our the Canadian personal information protection statute. This bill is currently being studied, including as changes which may be required before it should become law.

Mr. Therrien recently spoke about this bill at an online conference put together by the Option Consommateurs, where he gave us his take on C-11, namely that this bill falls short of adequately protecting Canadians.

For one thing, the Canadian Commissioner says the new law should make it harder for businesses to use obscure or vague language, when requesting consent from individuals, but it does not. Even under the new statute, businesses could continue to ask for consent using language that is unclear or not specific enough. According to him, Bill C-11 would lower the standard to apply to consents from individuals.

Not too surprisingly, the Commissioner also disagrees with the Legislator’s decision to create a new system whereby penalties would be heard by a new administrative tribunal, as opposed to the office of the Privacy Commissioner of Canada. He believes this new structure will only result in process that is even more cumbersome in cases of violation of the privacy protection statute.

The Commissioner also reiterated that he believes Canada should be enshrine the individuals’ rights to the protection of their personal information, for example in Constitution-like documents meant to confer on that right a charter-like protection. Sadly enough, Canada has yet to protect the righto to the protection of personal to that extent. According to the Canadian commissioner, this weakens what Canadians can expect in terms of protection from the law.

Court Rejects Outright Infringement Proceedings Against IKEA Relating to Stuffed Animals

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The Québec Superior Court (the “S.C.”) recently threw out a copyright infringement lawsuit alleging that IKEA had copied a line of stuffed animals from a local artist. Notwithstanding the resemblance between the concepts of the stuffed animals at issue, the court rejected the suit offhand, because it did not relate to any work recognized as such by the Canadian Copyright Act.

The case at issue, Bouchard v. Ikea Canada (2021 QCCS 1376), which pitted a Québec-based artist to the international retailer, alleged that IKEA had illegally copied a line of stuffed animals from Ms. Bouchard, which it then sold in its stores as the Sogoskatt collection. Faced with what she perceived to be a copy of her works, Ms. Bouchard filed copyright infringement proceedings against several parties, including IKEA, before Québec courts.

Unfortunately for Ms. Bouchard, Ikea managed to torpedo her lawsuit at an early stage. To do so, it filed a motion to throw out the case outright because, at law, there really was no real issue to be tried. After examining the motion at issue, the S.C. agreed this case did not present any real issue the judicial system should bother analyzing and taking on. Since this case was introduced as a copyright matter, without any “works” to justify the proceedings at issue, the courts should refuse to further hear the case. Period.

The explanation of this rejection of the case resides in what Ms. Bouchard argued was hers and which IKEA had illegally copied. Namely, the artist testified that, notwithstanding IKEA’s own stuffed animals being different from her own creations, she considered that there were substantial similarities reproducing the distinctive “style” or “look” of her own line of stuffed animals. Unfortunately for her, as you probably know, copyright law does NOT deal well with abstracts like inspiration, ideas, concepts, styles, etc. Rather, copyright is generally concerned with specific works being copied to a substantial degree. Before looking at the substantial degree to which a work has been copied, however, you first need to have… well… a “work”, as defined by the Copyright Act. No work, no possibility of any infringement.

In the case at issue, the works which the artist alleged had been copied had not been copied, or if there was a copy, it was the copy of a style, of a certain look or that of a certain way to make stuffed animals. This, of course, did NOT constitute a copy of the works (the actual stuffed animals) themselves, only of a sort of concept for stuffed animals such as these.

As a result, the S.C. had little trouble throwing out Ms. Bouchard’s case against IKEA. Sorry, but alleging you have a monopoly over a certain style of something does not a monopoly make. Sure, you may be the inventor of a new style or concept of something, but that does not mean you have the exclusive rights to it, at least certainly not by virtue of copyright law. Had this case been presented based on invention or patent rights, industrial designs or trademarks, it may have stood a chance but copyright does NOT extend to abstracts like concepts, ideas and styles. It never did and never will.

3D Printing Plans for Guns Back Online

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The American media recently reported something that continues to be a major problem: 3D printing firearms or, more specifically, what to do about the fact that anyone can now purchase a 3D printer and start producing almost anything, including guns. Though it has huge potential, this relatively new technology causes a big headache for the U.S. and no doubt numerous other jurisdictions, Canada included.

The problem is what they call ghost guns (i.e., unregistered guns without so much as a serial number) and it stems from the combination of 3D printing and the online availability of plans to print gun parts. Although 3D printers are now relatively commonplace and cheap, the plans to replicate actual gun parts are another matter.

In 2015, an American court allowed the addition of 3D printing plans (for gun parts) to the “State Department’s Munitions List,” a list of things that can only be exported (or put online) with the U.S. government’s authorization. For a short while, publishing such plans online was illegal under American law. However, the ban was relatively short-lived, as litigation by one manufacturer lead the Trump administration to repeal its ban and (again) allow the online publication of such plans.

Since then, several American states have sued the federal government in an effort to get 3D printing parts blacklisted again, and get them yanked from the Web. This has led to a recent California appeals decision which concluded that the federal government had indeed the right to withdraw such plans from the Munitions List and, thus, that there is no reason for anyone at this point in time prohibiting anyone from publishing 3D printing plans for gun parts.

As one might guess, this ruling has a lot of people worried in the U.S., a jurisdiction already awash in firearms and now facing a new source of guns, this time by individuals creating firearms from the Internet, so to speak. In 2019, one third of all guns seized in the state of California were ghost guns—the problem is very real and far from being merely theoretical. Heck, we’re even starting to see this creeping-up in Canada, as demonstrated by this Alberta news story from last September.

Faced with the resurgence of this problem, many are already calling for the U.S. to legislate specifically to address the problem, and prohibit the online publishing or sharing of ghost-gun plans.

No doubt about it: 3D printing will continue to challenge how society deals with many issues, as more and more types of items become “printable,” including guns, armour and even houses. Hey, you can’t halt progress.