Category Archives: Intellectual Property

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

By: Nigel Bankes

PDF Version: Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

Case Commented On: Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125

In reserved reasons, a unanimous Court of Appeal has affirmed Justice Eidsvik’s decision at trial (2016 ABQB 230) in this contentious proceeding. This litigation has pitted the seismic company, GSI, against most, if not all, of the major exploration and production companies operating in Canada, as well as the federal regulators, the National Energy Board, and the Canada/Newfoundland Offshore Petroleum Board. GSI claims that seismic data that it generated is protected by copyright for the usual term of the Copyright Act, RSC 1985, c C-45 and that the various (and many) defendants have breached that protection by copying or facilitating the copying of protected materials once the confidentiality period protecting data filed with the regulators has expired. Continue reading →

Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

By: Nigel Bankes

PDF Version: Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

Case Commented On: Geophysical Services Incorporated v Encana Corporation, 2016 ABQB 230

This decision involves rights to seismic data. Under Canadian law (and here specifically the rules established for federal lands in the north and the east coast offshore) seismic data filed with government is treated as privileged or confidential for a period of years. The principal issue in this case was the question of what rules apply once that protection comes to an end. Is it open season or do the creators of the seismic data retain some rights and in particular their copyright entitlements? In her decision Justice Kristine Eidsvik has decided that it is open season.

The decision is part of complex case-managed litigation commenced by Geophysical Services Inc (GSI) in 25 actions against the National Energy Board (NEB), the Canada-Newfoundland Offshore Petroleum Board (CNOPB) (the Boards) and numerous oil and gas companies, seismic companies and companies providing copying services. GSI claims that copyright subsists in seismic data and that its copyright protection survives the confidentiality period. Furthermore, it claims that access to the seismic information after the loss of confidentiality is governed by the Access to Information Act, RSC 1985, c A-1 (AIA) and that there is no open season on access or copying.

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Copyright in the School Setting: Interpreting “Private Study”

PDF version: Copyright in the School Setting: Interpreting “Private Study”

Decision commented on: Alberta (Education) v Canadian Copyright Licensing Agency, 2012 SCC 37.

As a first year student last year, I remember various professors telling us that, due to the University of Calgary’s copyright policy, they were no longer able to post certain materials to Blackboard (a digital course management system); instead we were given instructions to download the materials ourselves. At the time I remember internally questioning this artificial distinction and how it really protected copyright since in either case I was responsible to read the required material at the direction of the professor.

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Leave Granted in Fair Dealing in Education Case

Application Commented On: Supreme Court of Canada Leave to Appeal decision in Alberta (Education) v. Access Copyright

On May 5, 2011, the Supreme Court of Canada granted leave to appeal Alberta (Education) v. Access Copyright, 2010 FCA 198, in which the Federal Court of Appeal decided that it is not fair dealing under the Copyright Act for a teacher to copy copyrighted materials for distribution to his or her class. This decision has been criticized as being inconsistent with the approach to fair dealing followed in SOCAN v. Bell Canada, 2010 FCA 123, which found that streaming music previews to consumers is fair dealing, and in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339, in which the Supreme Court of Canada found that copying legal research materials for lawyers is fair dealing.

This is an important case which could clarify the law of fair dealing in education. I will be blogging on this case in due course.

Use of a corporate name or registered trade name does not prevent liability for passing off

Cases Considered: Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618

PDF Version: Use of a corporate name or registered trade name does not prevent liability for passing off

Charisma Snyder registered a trade name “Divine Doggies Grooming & Boutique” on July 27, 2007 and “Divine Doggies Spa & Boutique” on August 14, 2007. A later name search did not reveal “Divine Pet Spa”, either as part of a corporate name or a trade-mark, so she incorporated Divine Doggies Spa & Boutique Inc. on September 8, 2007. It commenced dog grooming services in June, 2008. As early as 2006, however, Divine Pet Spa Ltd. had engaged in significant marketing of its cat and dog grooming business in order to create goodwill in the Calgary marketplace. In Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618, Madam Justice C.L. Kenny of the Alberta Court of Queen’s Bench granted Divine Pet Spa Ltd. an interlocutory injunction against Divine Doggies Spa & Boutique Inc., restraining it from using and advertising the name “Divine Doggies Spa”. This decision is a reminder that, by using its corporate name or registered trade name, a business can be liable in tort law for passing off its products or services as those of another business.

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