E-TIPS

On September 29, 2023, the Federal Court of Appeal (the FCA) issued its decision in Google LLC v Canada (Privacy Commissioner), 2023 FCA 200, dismissing Google LLC’s (Google's) appeal and finding that Google’s search engine is subject to the Personal Information Protection and Electronic Documents Act (PIPEDA), as it does not fall under PIPEDA’s journalistic purposes exemption.

On September 27, 2023, Innovation, Science and Economic Development Canada (ISED) published Canada's Voluntary Code of Conduct on the Responsible Development and Management of Advanced Generative AI Systems (the Code). The Code is the result of extensive stakeholder consultations (as previously reported by the E-TIPS® Newsletter here), and is intended to provide voluntary guidance for those developing or managing the operations of generative artificial intelligence (AI) systems before future AI-specific regulation comes into force.

On September 19, 2023, the Office of the Privacy Commissioner of Canada (OPC) released the results of its investigation into whether Canada Post’s collection of personal information located on the outside of delivered envelopes and parcels for use in its marketing program violated the Privacy Act (the Act). The OPC found that Canada Post did not obtain proper authorization for this practice and, therefore, violated the Act.

On September 19, 2023, the Authors Guild (a professional writers’ organization) and several individual authors (collectively, the Plaintiffs) filed a class action complaint against several OpenAI entities (the Defendants) in Authors Guild v OpenAI LP, S.D.N.Y., No. 1:23-cv-08292, alleging copyright infringement under the US Copyright Act.

On September 19, 2023, the Office of the Privacy Commissioner of Canada (OPC) tabled its 2022-2023 Annual Report to Parliament (the Annual Report) on the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA). The Annual Report underlines the OPC’s efforts over the past year to protect and promote the fundamental privacy rights of Canadians in the digital era.

On September 1, 2023, the Federal Court of Canada (the Court) in Industries Certico Inc. v Mastrandrea Commercial Bakeries Limited, 2023 FC 1193, dismissed an appeal brought under section 56 of the Trademarks Act (the Act). The appeal contested the Trademarks Opposition Board’s (TMOB’s) finding that the FORNO MAGNIFICO & DESIGN mark (the Mark) was unregistrable based on a likelihood of confusion with the registered FORNO & DESIGN mark and previously used FORNO CULTURA SQUARE & DESIGN mark.

Certain amendments to Canada’s federal Competition Act (the “Act”), came into effect on June 23, 2023. The purpose of this advisory is to provide an overview of the: (i) changes under the Act prohibiting wage-fixing, non-solicit, and no-hire agreements; and (ii) requirements for compliance under the Act.

Regular readers of the E-TIPS® Newsletter will know that the backlog of the examination of Canadian trademark applications has been a source of commentary for the past several years. 2024 may bring with it some reason for optimism.

Earlier this year, Health Canada published a proposal relating to a cost-recovery regime for natural health products (NHPs). Health Canada proposes to start charging fees for NHP regulatory activities on April 1, 2025.

On August 28, 2023, the Canadian Centre for Cyber Security (the Centre) released its cyber security guidance document entitled “Baseline Cyber Threat Assessment: Cybercrime” (the Assessment), which describes the historical and current threat that global cybercrime poses to Canada and Canadians.

On August 24, 2023, the Office of the Privacy Commissioner of Canada issued a joint statement on data scraping and the protection of privacy (the Joint Statement).

On August 16, 2023, Innovation, Science and Economic Development Canada (ISED) launched a public consultation seeking stakeholder feedback on a new code of practice (the Code) for generative artificial intelligence (AI) systems. The Code is meant to offer interim guidance for companies currently developing and using AI systems until the Artificial Intelligence and Data Act (AIDA) comes into force.

On August 15, 2023, the British Columbia Court of Appeal (BCCA) in Insurance Corporation of British Columbia v Ari, 2023 BCCA 331, upheld the Supreme Court of British Columbia’s finding that the Insurance Corporation of British Columbia (ICBC) was liable for its employee’s violation of its customers’ privacy under the British Columbia Privacy Act.

On August 1, 2023, the Government of Canada published its “Privacy Implementation Notice 2023-03: Guidance pertaining to the collection, use, retention and disclosure of personal information that is publicly available online” (the Notice) pursuant to paragraph 71(1)(d) of the Privacy Act.

On July 21, 2023, The Biden-Harris Administration (the Administraiton) announced that seven leading Artificial Intelligence (AI) companies have committed to managing the risks posed by AI by moving towards the safe, secure and transparent development of AI technologies (the Announcement).

On August 7, 2023, the Canadian Intellectual Property Office (CIPO) launched a public consultation on a proposed regulatory framework for providing a patent term adjustment (PTA) to compensate patent owners for unreasonable delays in the processing of patent applications.

On July 17, 2023, the Federal Court of Canada (the Court) issued its public judgement and reasons for Janssen Inc. v Canada (Health), 2023 FC 870, dismissing Janssen Inc.’s (Janssen’s) application for judicial review of a decision from the Office of Submissions and Intellectual Property (OSIP), in which OSIP refused to list Canadian Patent No. 3,113,837 (the 837 Patent) on the Patent Register against the drug, STELARA.

On July 26, 2023, the Federal Court of Appeal (FCA) issued its decision in Canada (Attorney General) v Benjamin Moore & Co., 2023 FCA 168, allowing the Attorney General’s (AG) appeal from an order of the Federal Court (FC) directing the Commissioner of Patents (the Commissioner) to adopt a specific legal framework in its assessment of the patentability of computer-implemented inventions.

On July 14, 2023, the Canadian Centre for Cyber Security published a guidance document (the Guidance) on the potential risks associated with generative artificial intelligence (AI) and possible mitigation measures for organizations and individuals.

On June 28, 2023, the Federal Court of Canada (the Court) in Warner Bros Entertainment Inc v Tyler White DBA Beast IPTV, 2023 FC 907 sentenced the Defendant to incarceration for 60 days after being found guilty of contempt of court for disobeying numerous provisions of an interim order.