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Compliance Not Optional: Crown Not Immune from Copyright Act

Posted in Case Comments, Intellectual Property, Media

Is the Crown immune from paying tariffs under the Copyright Act? On March 31, 2004 and March 31, 2009, the Canadian Copyright Licensing Agency, operating as Access Copyright, filed proposed tariffs claiming royalties for the reproduction of published works by employees of the provincial and territorial governments other than Quebec. The provinces and territories objected to the tariffs and, as a preliminary matter, challenged the ability of the Copyright Board of Canada to consider the proposed tariffs claiming they were immune from the Copyright Act. The Board dismissed this challenge on January 5, 2012, and some of the

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This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based ”value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit

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Order in the Court? The Van Breda Trilogy – Part V – Constitutional Issues

Posted in Conflict of Laws, Constitutional, Features, Media, Procedure, Torts, Van Breda Trilogy

The constitutionalization of private international law has been one of the major projects of the Supreme Court of Canada since the decision in Morguard. However, the precise relationship between the Constitution, and the “real and substantial connection” test, has yet to be fully defined. In the Van Breda Trilogy, the Supreme Court returned to this issue, and sought to provide private international law with a clearer constitutional foundation. Paradoxically, the result is a new approach to the role of superior courts and provincial legislatures in the Canadian federation, which raises more questions than it answers.

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Hot Off the Press – World Class Actions: A Guide to Group and Representative Actions Around the Globe

Posted in Aboriginal, Class Actions, Communications, Construction and Real Estate, Energy, Financial Services, Franchise and Distribution, Health, Insurance, Media, Municipal, Procedure, Professions, Securities, Transportation

In the newly published World Class Actions: A Guide to Group and Representative Actions Around the Globe, McCarthy Tétrault litigators David Hamer and Shane D’Souza co-authored the “Multijurisdictional and Transnational Class Litigation: Lawsuits Heard ‘Round the World” chapter. The chapter offers guidance to international lawyers who represent clients involved in cross-border, multinational and international class actions.

World Class Actions is a practical guide for lawyers, clients, legal support professionals, academics, policymakers and judges on the procedures available for class, group and representative actions internationally. Each chapter is written by a local attorney familiar with the laws, best practices, legal … Continue Reading

“Idea Theft” Lawsuits Gain New Life in United States

Posted in Case Comments, Contracts, Intellectual Property, Media

Introduction

In a case with several important echoes to Canadian appellate law, the United States Court of Appeals for the Second Circuit has revived the actor’s Hayden Christensen’s “idea theft” lawsuit against the USA Network this week in the Forest Park Pictures v. Universal Television Network Inc. decision.

Background

In 2005, the plaintiffs developed a concept for a television show called “Housecall,” in which a doctor, after being expelled from the medical community for treating patients who could not pay, moved to Malibu, California, and became a “concierge” doctor to the rich and famous. The plaintiffs created a written series … Continue Reading

Order in the Court? The Van Breda Trilogy – Part IV – Choice of Law

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

At the Supreme Court of Canada, choice of law has always been the poor cousin of private international law. While the Court has shown fascination with jurisdiction simpliciter, forum non conveniens and the recognition and enforcement of foreign judgments – cases such as Morguard, Amchem, Hunt, Beals, Pro Swing and Teck Cominco come to mind – it has issued but a single judgment, Tolofson, that addresses choice of law in the modern era. The comments of American scholar Laurence Tribe, cited by the Supreme Court of Canada in Unifund, describe the traditional situation

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Order in the Court? The Van Breda Trilogy – Part III – Forum Non Conveniens

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

Among the significant changes introduced by the Van Breda Trilogy is guidance from the Supreme Court of Canada on the forum non conveniens test. Although in many respects the judgments in Van Breda, Black and Éditions Écosociété would appear to simply reaffirm the existing forum law, LeBel J.’s judgments are notable for three reasons. First, the language in the Trilogy suggests that motion courts will continue to be given considerable discretion in decisions on forum non conveniens and that reviewing courts will not have a clear framework with which to assess the propriety of decisions at first instance. The

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Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and predictability to disputes about assumed jurisdiction. Whether this will come to pass remains to be seen; it may be that Van Breda will simply change the language of assumed jurisdiction, but that actual outcomes will remain as unpredictable as ever. The list of presumptive

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Second Circuit Hears YouTube DMCA Cases

Posted in Case Comments, Communications, Intellectual Property, Media

In mid-October, the influential United States Court of Appeals for the Second Circuit heard oral arguments in a $1-billion battle over the responsibility of Internet intermediaries for infringing content posted by third parties on their systems. The appeal in Viacom Intl. v. YouTube Inc. involves crucial questions that may have a ripple effect on litigation taking place across the world. Along with the Veoh case being heard by the Ninth Circuit and the iiNet appeal being heard by the High Court of Australia this year, the results in the YouTube appeals will set important ground rules for Internet litigation for … Continue Reading

OCA to Consider Contractual Termination Right Due to Tarnished Reputations

Posted in Case Previews, Contracts, Media

The Ontario Court of Appeal will consider whether a party to a sponsorship agreement can terminate the agreement where the counterparty suffers a loss of public reputation.

This case involved a sponsorship relationship between the Canadian Soccer Association and Hyundai Auto Canada Corporation. Hyundai agreed to be a sponsor of the Association, agreeing to pay annual fees for broadcast and related rights.

In late 2007, the Association suffered adverse media coverage after it hired and then within a very short period of time terminated its chief operating officer. The president of the Association resigned shortly thereafter, leading to press reports

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