The case involved a copyright dispute between a number of television networks and the provider of a new television viewing service AEREO.�� AEREO was held not to have interfered with any rights of the television networks through their unique service, described as an amalgamation of services each of which the court did not find contravened any rights.

The service AEREO offers is quite unique. It first uses antenna boards to pick up broadcast signals in the New 91��ɫ area. A customer can then select to either “watch” or “record” a broadcast program. In either case, AEREO - upon request - will record a unique copy of the broadcast program, either to be buffered and immediately transmitted to the customer over the internet (or mobile device), or stored as a copy for later viewing. AEREO argued therefore that their service (for which they charge a monthly fee) could be described as a consumer owning a combination of a TV antenna, a DVR, and a slingbox.

In the determination of whether the AEREO service violated any of the rights of the networks, Justice Droney, writing for the majority, focused on the similarity between AEREO’s system and other services that have been litigated on. Being a decision from the same court and concerning a nearly identical service, the court particularly relied upon the case of . Cablevision used a device called an RS-DVR to make individual copies of broadcasts for customers upon request.�� In the same way as with AEREO’s system, these copies were only reproduced for the customers who actually ordered them. The Court of Appeal was clear that this service did not infringe any networks’ reproduction, public performance or transmission rights. Faced with that decision, the networks decided to give up its claim that AEREO’s making of copies was infringement, but they maintained that the service still infringed both their rights related to and .

The following are the four main points on which Justice Droney based upon:

1. If an individual transmission is "capable of being received by the public" the transmission is a public performance; if the potential audience of the transmission is only one subscriber, the transmission is usually not a public performance.
2. Private transmissions (not capable of being received by the public) should not be aggregated. It is therefore irrelevant to the "Transmit Clause" analysis whether the public is capable of receiving the same underlying work or original performance of the work by means of many transmissions.
3. There is an exception to this no-aggregation rule when private transmissions are generated from the same copy of the work. In such cases, these private transmissions should be aggregated, and if these aggregated transmissions from a single copy enable the public to view that copy, the transmissions are public performances.
4. Any factor that limits the potential audience of a transmission is relevant to the Transmit Clause analysis.

The AEREO set-up was found not to be a public performance, mainly because it failed to fall within the exception to an "aggregate transmission" in the same way that a cable transmission does.

From the foundational principle of stare decisis, the decision in AEREO can be viewed as only an extension of the same legal principles which were discussed in Cablevision. In my opinion, Justice Droney's analysis was somewhat flawed when he engaged in a comparison of a cable transmission to AEREO’s system. With former case law against them, the networks had argued that AEREO’s system should nonetheless be considered a public broadcast because of its similarity to cable transmissions, which were specifically legislated against in 1976. In Justice Droney’s discussion of this argument, he did make an analysis of legislative intent behind the , but only briefly.�� He also stated clearly that the AEREO system is similar in many ways to a cable transmission system, but failed to explain why the legislature would not have considered the AEREO system infringement, if they had been aware of it.�� In my opinion (and likely in the opinion of the networks), it is clear that cable broadcasts were specifically addressed in the 1976 Copyright amendments due to the potentially massive financial impact they would have on the networks, and therefore, it is strange that a similar system wouldn’t be considered infringing.

Naturally, there is always the argument that the decision is correct because the AEREO service is simply an amalgamation of devices that a private consumer can secure for themselves.�� The significant difference, from my perspective, is that it may not be considered infringement because it would be private consumers gaining benefits from the combined use of these devices; that is simply not the same situation as with the AEREO service, which is offered on an ongoing basis and for a fee.

The networks may have actually been better served in this decision if they had advanced a reproduction rights claim.�� Although apparently settled by the Cablevision decision, continuing to press the issue would force the court to do a “Fair Use” analysis, since copying is arguably being done. In that analysis a series of market factors would have been considered and the court may have ruled in favour of the networks without needing to overrule Cablevision. Since those arguments were not presented and the court found that there was no public performance, there waso need to consider "Fair Use" factors as a part of the legal analysis.

Therefore we are left with a decision that it technically in keeping with the law, but seems inconsistent with the policy which underlies that law. Copyright law has always been a balance between protecting rights and increasing public access. That is the reason why the test for "Fair Use" in American Copyright law specifically considers market impact of a particular use. In my opinion, the courts are making a clear statement with decisions like these.�� That statement is “If you can find a find a loophole in copyright law, you can exploit it”. While it may be acceptable to accept that mentality in a tax law context, it is not appropriate in a system like copyright which is based on a balance between the rights of individuals.

It is my sincere hope that the court wants to use this decision to prompt action from the legislature to specifically address this case as they did in 1976 in reaction to cable television. It is because of decisions like these that we get statements like the one from FOX COO talking about the possibility of turning FOX into a pay channel which is no longer broadcast. In my view, this is a different scenario, on a fundamental level, than a single person buying an antenna or a DVR.�� AEREO is a transmission business - just like the cable television industry - and their operation will have a significant financial impact network television.

Adam Stevenson is an IPilogue Editor and a JD Candidate at Western University.

The post AEREO, Cable, What's The Difference? appeared first on IPOsgoode.

One of the IBCs other attractive qualities is that the inner plastic containers can be switched out after they are no longer viable, and new plastic containers can be inserted into the wire frame.�� Werit is a company that will swap out used containers for new plastic containers of a design not offered by licensee Schütz. Schütz argues that pursuant to their rights under the section 60(1) this swapping out of bottles is an infringement of their exclusive rights to make IBCs.

At , Floyd J. made note of the fact that the inventive element to the underlying patent had nothing to do with the bottles themselves.�� On that basis the Judge found that without any changes to the inventive physical compound of the patent, “…a Werit bottle does not amount to making the patented product”.��The UK Court of Appeal however, that decision on the basis that “[the] product (i.e. the IBC) ceased to exist when the bottle is removed".��Therefore it follows that "[w]hat remained at that stage was merely an important component from which a new IBC could be made", meaning refitting the IBC with a new bottle constituted a making.

On March 13, 2013 the gave its own opinion on whether swapping bottles could constitute making an IBC. In its assessment the court justified the distinction of fact between a repair and a making of a product.��Repair had been held as not infringing on any rights which a patent holder enjoys.�� Though the court conceded that replacing a component is sometimes seen as a repair, they acknowledged that the distinction is not obvious and should be treated with caution.

The court decided therefore to consider the importance of the bottle in connection with the patent as a whole.��The court determined that the degree to which the replaced component represented a primary aspect of the patent, the more likely the replacing of that component would be regarded as a making of the patented item. The question was also found to be one of fact.��In this case, weighing a variety of factors, the court supported Justice Floyd’s decision for similar grounds. The replacing of the bottle was found to simply be a repair, and not a making of the patented product.

Although I think the decision was highly fact driven, I think there was an additional legal argument which may have deserved some attention.�� That argument is based on the idea that when Werit replaced the Schütz bottles, they weren’t repairing an IBC, nor were they making one. Instead, they were making something new.�� Part of Schütz's argument (especially according to the court of appeal) is that the bottle itself was a fundamental part of the patent.��If such a fundamental component is replaced, is it correct to state that their patent was infringed?

As Justice Floyd discussed, the only inventive element to the patent was the wire cage around the bottle. This means that all other components of an IBC, including their combination, were not innovative. Since the cage wasn’t modified in any way, Schütz was left with asserting that an IBC is patented as a unit and can be infringed by removing a component and replacing it with something else, even if that component has nothing inventive about it. To make such an assertion would, in my opinion, limit the ability of improvement patents to be registered, since apparently replacing non-inventive components can constitute a making of the underlying product. Apart from issues of whether this was a repair in this case, I would have liked to see a discussion about the limits that this kind of assertion makes on novel products. However, I do believe that the reasoning used by the UK Supreme Court was correct and resulted in a proper conclusion.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

The post Innovative Distinctions between Make and Repair appeared first on IPOsgoode.

Christian Paradis, Minister of Industry, also noted that the legislation is well in keeping with public concerns about family safety and the safety of the community at large. But the extent to which this legislation’s remedies truly protect the public is somewhat misstated.

One of the biggest changes to help combat counterfeit products are sections of the bill which relate to the seizure of imported or exported items that are potentially infringing on copyright or trade-mark rights.�� (See to read more about some of the proposed revisions to the Copyright Act and Trade-marks Act contained within the bill).�� A customs officer may now detain items (for a set period of time) which they believe infringe on these rights. In addition, the rights holders themselves can apply for assistance from customs to enforce their rights in relation to items which they believe infringe upon their intellectual property rights. Rights holders will also have access to information from officers relating to any detained or suspect items. During the time of detention, neither the officer nor the government will be liable for any damages done to the detained items.

Additional criminal sections have also been proposed for the Trade-marks Act. The new provisions would capture anyone involved in an infringing scheme that had knowledge of the infringement. Punishment for intentional infringement is up to $ 1,000,000 in fines, up to 5 years in prison, or both. This section clearly increases the courts ability to punish infringers from the broad and understated relief provisions in section of the current Trade-marks Act.

see this legislation as an attempt by the Canadian government to further comply with the Anti-Counterfeiting Trade Agreement (ACTA). ACTA had recently taken a great deal of public opposition in the resulting in a lack of support for the act by EU government officials.

It is important, however, to take account of why the EU opposed ACTA in the first place. Opposition to ACTA, at least from the EU public’s perspective, seems to have been based primarily on ACTA’s privacy and fair-dealing provisions. Therefore, it is doubtful, in my mind, that even if the Canadian public was more aware of the effects of bill C-56, there would be widespread opposition. The new bill clearly increases the protections that copyright or trade-mark owners enjoy, but not in a way that directly concerns the general public. On an individual level, I doubt whether the average Canadian would ever notice that these new protections exist. The protections target commercial behaviour, specifically the importation or exportation of goods, and therefore it may only affect Canadians on a business level.

That said, there are clear concerns, on a commercial level, with the bill as it has been proposed. The most obvious of which is that customs officers are now put in a position to make legal judgments as to whether imported goods violate IP rights or not. The rights holders themselves will be in a position to direct the attentions of customs officers to further their own goals. In my most cynical imagination, I envision rival businesses reporting copyright/trade-mark infringement to customs officials in relation each other’s imported goods rather than going to court. Without the need for any court direction, the customs officer is now put in a position to detain the impugned goods, potentially interrupting business for a period of time. The possibility of abuse of these new remedy provisions is clear.

Aside from the issues with implementing these new provisions, I also have concerns over the way that this bill was marketed. When the Minister of Public Safety, Mr. Toews makes statements like :

"Counterfeiting poses health and safety risks to Canadians. Goods made using inferior or dangerous materials may lead to injury and even death. Proceeds from the sale of counterfeit goods may be used to support organized crime groups,"

It makes it seem as though this bill is targeting public safety. While I have no doubt that some infringement is the result of counterfeit products which are of an inferior and perhaps dangerous quality, infringement might also be purely accidental. Just because products or services happen to infringe copyright or trade-mark rights that does not necessarily make them a public danger. What this act clearly does is allow greater protection for right’s holders through increased enforcement mechanisms. Therefore, in my opinion, this act has primarily business purposes. Any increase in public safety is, at best, a secondary concern. I think that portraying the bill as addressing public safety unnecessarily clouds the bill’s true purpose and damages it credibility.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

The post Bill C-56 Remedies: Rights Holders Can All Feel a Little Safer appeared first on IPOsgoode.

T2, an up-and-coming DJ in the nightclub industry, came back to the recording in 2007 and altered it to be released as a single in the emerging “Bassline” genre.�� Bassline is so named because of the bass prominent rhythm pattern featured in a song.�� The altering process included adding a beat track which fit within the Bassline genre and editing Henderson’s vocals in a way which made them better suited to the genre.�� The single was released in 2007 and came to the attention of record company All Around the World in the summer of 2007.�� From there, the single quickly became the most popular song in the Bassline genre and enjoyed significant success.

The lawsuit itself arose due to the ongoing relationships between Henderson, Tawonezvi, Tawonezvi’s managers 2NV and All Around the World primarily because Henderson had yet to be paid.�� The action was for breach of Henderson’s performer’s rights under Part II Chapter I of the for the initial release of the single which Henderson alleged not to have consented to.�� The Honourable Judge Birss that although Henderson had consented to being recorded, she had never consented for the recording to be released as a single.�� Although it was clear from the facts that Henderson never explicitly consented to the release, the judge also made a finding that Henderson had never impliedly consented to the release.�� Not finding an implied consent was, upon reading the facts, surprising in the legal context.

Without delving into the numerous disputed facts in the case, it is clear that at various times during the success of the single Henderson was involved in the creation of that success.�� She attended events promoting the single and is included in the music video.�� What the judge focused on primarily, although Henderson appeared to support the single��publicly, was Henerson’s negative interactions with the other interested parties in Heartbroken.�� The Judge found that because Henderson protested various elements of the single’s success she had never truly given an implied consent to the single’s release.

For example, when initially released, Tawonezvi only credited himself as composer, having the song appear as “T2 – Heartbroken”.�� Upon protest from Henderson, the title was renamed to include her as a featured artist of the track although Henderson felt that she deserved the majority of credit for the song’s creation.�� Later, in the filming of the video for the single, Henderson claimed that she agreed to take a less prominent role because All Around the World threatened to exclude her altogether from the video if she did not accept the lesser role.

The best rationality for the result in this case, despite all the actions of Henderson, is the quasi-legal compassionate grounds which the judge includes in the reasons for judgment.�� The judge characterizes those individuals at the record company as “” and notes that their actions suggest that they were “stringing [Henderson] along”.�� Without being present at the trial I can only guess at the extent of the testimony which caused the judge to make these character judgments, but by having made them, the judge provides grounds for having sided with Henderson. ��The fact that Henderson was young at the time all these events transpired, naturally gives compassionate grounds to offer her more than the usual protections of the law.

From a legal stand-point, I think that generally when an artist endorses a single they have implied a consent to the single being released.�� The fact that the artist may have been unhappy about some element of the deal is probably insufficient to invalidate that consent.�� Having said that, given the specific facts in this case, I think that the judge came to the correct decision.�� Since the finding in the case was so fact-specific and based at least somewhat on the age of the artist, I doubt whether this result could be relied upon in a general way by subsequent courts.

Adam Stevenson is a JD Candidate of Western University, faculty of law

The post Her Story Left the Judge HEARTBROKEN appeared first on IPOsgoode.

That part of the decision dealt with whether a website provider could be liable for breach of database protection by providing a link which, if accessed, would necessarily result in infringement.��The English Court of Appeal found that there would be liability for such a person in that scenario.

Stan James (bookmakers) are website providers whose website allowed users to access an entire database of information which neither the users nor Stan James had a right to access.�� On the Stan James website, there was links for “Live Scores” which, if clicked, downloaded an entire database on European football (compiled by FDC) onto a user’s computer.�� Though the information was downloaded in an encrypted form, a user could decrypt individual data sets through subsequent links on the Stan James website.�� This type of download was found to be infringement.�� The court also found that when infringement necessarily occurs as a result of a user clicking a link on a website both the user and the website provider will be liable for infringement.

The court came to this judgment by drawing a distinction between websites that might infringe database rights and websites which will necessarily infringe rights if used in the standard way.�� For example, the Justice used the example of someone using a website such as EBay to link to protected materials and distinguished that at law from the nature of the Stan James website.�� Individual users of EBay might use the website in order to violate protections on databases or infringe copyright.�� Therefore, the EBay website provider is not directly responsible for what user’s might use their website for.�� In the case of the Stan James website, it was the website provider themselves who was supplying links to infringing materials.�� It was also important that Stan James was regarded in the case as a primary infringer rather than a secondary one.�� This finding allowed the court to dismiss the defence of innocence, where Stan James argued against liability on the grounds that they were not aware the database was downloaded to the user’s computer.

The decision is important for a number of reasons.�� First, it reiterates the position that a truly neutral party, who simply transfers user generated content but is unaware as to whether that content is infringement or not, is not liable for the infringement.�� For example, Google would not be liable for breaches of copyright which result from Google images searches; however, the website providers hosting the infringing content would likely be held liable.�� Second, it stands for the position that website providers who publish links to infringing materials are liable for infringement.�� And lastly, as discussed in the case, it stands for the position that ignorance of the infringement is not a defence to primary infringement findings.

This case serves as a warning to website providers to be extremely careful when creating links to other materials.�� If clicking on one of those links necessarily results in infringement, you will be liable regardless of whether you knew the information was protected or not.

A similar case regarding liability for links on a website arose in .�� In that case the court suggested that posting a link to defamatory statements could be considered defamation, but only when the hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content.����With the addition��of this recent case, the argument that you can be responsible for the materials that you provide links for on your website is all the more persuasive.

Findings such as these simply stand for the position that providing links to material is fundamentally the same as offering that material on your own website.�� I consider that to be a reasonable thing.�� There should not be a loophole in our system of law which allows you to avoid liability while at the same time benefit from legally actionable materials.�� There is no doubt that Stan James benefitted from its links to football scores and other info with increased traffic to the site.�� Making these people��liable for breaching protected rights is simply logical.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.����

The post A Link to Infringement appeared first on IPOsgoode.

The incentive theory posits that copyright law encourages the creation of new works by giving authors a financial incentive to produce new works.�� The DiCola study was designed to measure copyright's financial incentive by analyzing what percentage of��musicians' total income is directly related to revenue generated from copyright protection.

The primary method used to accumulate this data was an online survey conducted through the Future of Music Coalition in which 6,700 self-proclaimed musicians took part.�� While not all of these musicians completed the survey in full, almost all answered questions��related to their income, which was the key data set for DiCola.

In setting out the hypotheses of the study, DiCola identifies the preconceptions that he and his researchers shared about the effectiveness of copyright law.�� First, they hypothesized that musicians would have a variety of revenue streams, especially those in the classical music genre.�� Second, they hypothesized that a musician’s focus on a particular aspect of the industry would also affect their revenue stream.�� Third, they hypothesized that those musicians who focused on composing would see diminished revenue streams due to concerns such as unlicenced downloading.�� Lastly, DiCola and his team hypothesized that a majority of musicians would have indifferent opinions towards the internet despite unlicenced downloading.

The study revealed that, on average, musicians only gained 6 percent of their income from sound recordings and another 6 percent on songwriting.�� But before we take those numbers as proof that musicians don’t truly rely on copyright law for their income it is important to note the drawbacks of the study.

The first is that in order to qualify as a musician in the study, one simply needs to make money in the music industry or have made money there in the past.�� It is also important to note that while the average income of “musicians” in the study was $55,561 USD, over 70 percent of participants reported making less than $50,000 USD in the music industry, which indicates that most musicians have income streams outside of the music business.�� However, while the issues with the combined data are apparent to DiCola, he provides a more detailed breakdown of income which takes some of these variables out of the picture.

One of the��notable��aspect about DiCola’s study is that it provides an in-depth analysis of income based on a variety of factors in the music industry. For example, he provides income statistics based on the genre of music that the musicians identified themselves with.�� In doing so, the income numbers became more predictable.�� The composer of classical music, for example, gained more than 6 percent of his or her income through songwriting.�� But the breakdown of the data by these factors does more than make DiCola’s results more predictable, it also supports one of his suggestions going forward.

DiCola makes the point that copyright law��may be altered in creative ways to benefit the musicians who actually rely on that income while increasing public access.�� The study demonstrates that all musicians do not need the same protections and provides the groundwork data for creative changes to copyright legislation.

On the whole the study can be commended for doing the following:��(1) It reports its findings in a number of ways allowing the reader to draw more succinct conclusions from the data; (2) The author is upfront about all its shortcomings and offers suggestions for future research, and; (3) The author explores multiple theories and suggests which one the data supports.�� More importantly, DiCola's initial study will encourage more directed research in this area.

Adam Stevenson is a JD Candidate of Western University, faculty of law��

The post Peter DiCola: A Study of Income from Copyright Protected Sources appeared first on IPOsgoode.

The patent application��provides that when a game is purchased, the medium itself (game disk) would contain a unique identification tag which would be read by the reproduction device of the gaming system (Playstation 3 for example).�� The first time the disk is inserted into the gaming system, the reproduction device would record the disk ID and player ID, and use an authentication process to confirm that the combination satisfies Sony’s terms of use. ��If the combination of IDs does not meet the terms of use on any subsequent use of the game, the game will not start. ��The effect of the technology would be similar to having a single licence for the game and will not require internet access to work.�� This process nullifies any resale value of the game (unless you sold the system at the same time).

It is worth noting that this isn’t the first tactic the game developers such as Sony have employed to try and limit the resale of games.�� In the , Sony has attempted to employ the use of passwords to unlock games, but was unsuccessful as passwords could be shared between first-time buyers and subsequent ones.�� Online passes, which limited online play to the first online user of a game were also less effective because they could not limit offline gameplay.�� One method that I experienced first-hand was a bar-code on a game package which prevented resale to commercial businesses such as EB Games. ��The newest tactic by Sony creates a stronger protection by introducing protection measures into the hardware and essentially marrying game disks to game systems.�� This would prevent any second-hand user from playing the game in any capacity.

Despite the effectiveness of the method described in Sony's patent application for preventing the resale of games, there are some obvious unintended�� of this process.�� The first absurd result occurs in a situation where a game system is irreparably damaged.�� As inconvenient as having to buy a new system can be for gamers, if Sony adopted their game to a��system marriage method, it would effectively require gamers to purchase new copies of all of their games in the event��their system broke down. ��It also potentially eliminates the commercial rental market since a game disk will be permanently married to the first system it is played on.�� And though it may be possible for Sony to address these problems in some way, doing so will either be burdensome on the consumer or diminish the effectiveness of this new protection method.

The new applied for��method also greatly affects the rights of consumers.�� The history of the gaming industry until this point has been that games can always be sold, given away, or shared after initial purchase at the whims of the initial purchaser.�� That expectation through past experiences of the gaming community is also reflected in the copyright laws which apply to games.�� One of the fundamental principles of copyright is the (US Copyright section 109) which states that the holder of exclusive rights to sell copies only has that right in-so-far as the first sale of the copy.�� And while the new protection measure doesn’t technically violate the US Copyright Act (you could still sell a disk for zero value), the protection does violate the purpose of the copyright system.

Even if a court would disagree that the first-sale doctrine is violated by this patent, there is a simpler reason why the gaming community shouldn’t worry about this patent.�� That reason is that Sony would have to offer this technology to its competitors in order to affect the gaming industry as a whole.�� If they do not, then consumers will be given the option of purchasing a Sony system, which has these restrictions, or a competitors system (ex. Microsoft system) which does not.�� Since many modern games are produced for multiple systems, Sony’s new protection process will likely hurt their sales.�� Sony also has a number of patents on products that were never introduced into the market therefore it’s possible that this protection patent will never be anything more than theoretical. ��As a result, I doubt the gaming community will need to worry about the widespread adoption of the method described in Sony's patent application��any time soon.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

The post Does Sony's New Patent Signal the End of Second-hand Games? appeared first on IPOsgoode.

In the case, purchasers of a Netherlands corporation (Fairstar) operating a shipping business were trying to gain access to the email correspondence between the former CEO of Fairstar (Adkins) and a Chinese shipyard which had been commissioned to build new ships for Fairstar.�� Since the deal was arranged prior to the purchase of Fairstar, certain specific details of the deal were only ever in the email correspondence between Adkins and the shipyard.�� Therefore, Fairstar’s goal was to gain access to the emails in question, which were stored on the personal server of Adkins.�� Fairstar claimed that their right to access these emails was proprietary in nature.�� Their arguments for access were limited to this proprietary right rather than on the basis of any fiduciary obligation Adkins owed to Fairstar, or on the basis that the information was confidential.

The lawyer for Fairstar presented the court with a number of cases which suggested either explicitly or implicitly that information contained in emails could be the subject of property claims.�� However, all of these cases were distinguished by Justice Edwards-Stuart because they failed to provide definitive reasons why information contained in emails could be someone’s property. ��For example, in one of the cases,��, an employer’s database was accessed via email by a former employee and a judge held that the information was the property of the employer. ��Justice Edwards-Stuart was not convinced that the same rights should be extended beyond databases to include all information contained in emails.

Without any direct precedent on the point, Justice Edwards-Stuart was in a position to consider whether there could reasonably ever be property in an email based on current practices and consequential analysis.�� Justice Edwards-Stuart considered 5 possible cases of a person or persons holding property in an email.�� He considered that either:

(1) that title to the content remains throughout with the creator (or his principal);

(2) that, when an e-mail is sent, title to the content passes to the recipient (or his principal) - this being by analogy with the transfer of property in a letter when one person sends it to another;

(3) as for (1), but that the recipient of the e-mail has a licence to use the content for any legitimate purpose consistent with the circumstances in which it was sent;

(4) as for (2), but that the sender of the e-mail has a licence to retain the content and to use it for any legitimate purpose; and

(5) that title to the content of the message, once sent, is shared between the sender and the recipient and, as a logical consequence of this, is shared not only between them but also with all others to whom subsequently the message may be forwarded

He rejected each possibility in turn on the basis that to accept that there exists property in an email would bestow upon the property owner a level of control over emails which does not conform with our traditional understanding of the email system.�� Since Fairstar made no other legal claims for access to Adkins’ email except on the basis of a proprietary right, their application to inspect the emails could not succeed.

The basis of the Justice Edwards Stuart’s reasoning is unsurprising.�� Information����traditionally protected on the basis of a pure proprietary right.�� Justice Edwards-Stuart����to the possibility of success for Fairstar had they expanded their legal argument to include some extra-proprietary rights to have access to the emails.�� Although there were reasons having to do with the����of Fairstar which may have caused the lawyers for Fairstar not to raise these arguments, failing to do so may have cost them access to certain information they needed to run their business successfully. ��In my opinion, whether or not some different legal claim may have succeeded, the court was right to rule that an email is not property.

Adam Stevenson is a JD Candidate of Western University, faculty of law.

The post Owning an email: Bad in Theory, Worse in Practice appeared first on IPOsgoode.

On November 21, 2012 the U.S. Bankruptcy Court for the Southern District of New 91��ɫ����Hostess' motion, and the company began the process of selling their assets.

The market for well established brands appears to be quite good.�� In 2009,����bought Polaroid^TM��adding to their collection of well-established brands��bought from companies in bankruptcy.�� Armed with the brands, Gordon Brothers and Hilco remarketed goods to consumers by changing the underlying business models, which failed, into ones that work.�� By acquiring these well-established brands, companies such as Gordon Brothers and Hilco can capitalize on the consumer recognition of the product without needing to be burdened by any of the original company`s mistakes.

In the food market especially, selling food with a recognized brand appears to be crucial.�� With grocery stores only stocking shelves with their highest selling products, it is becoming harder for midsize food companies to compete.�� The result is that companies which offer fewer food products are selling their product brands to larger food companies.�� One example, from earlier in 2012, is Proctor & Gamble who sold the��^TM��brand and related assets to Kellogg’s for $2.695 billion dollars.

There are several food industry giants that might be willing to purchase the Hostess brands.�� One obvious candidate is Flowers Foods (hereafter “Flowers”), a rival of Hostess, whose����have jumped since the announcement of Hostess’s bankruptcy proceedings.�� In 2011, Flowers����the Tasty Baking Company when that company was in a similar financial state as Hostess.�� With the purchase, Flowers gained access to the Tastykake^TM��brand, another fine example of a cream-filled confection. ��When asked to comment about the purchase,��, Chairman and CEO of Flowers Foods, said that “We recognize that consumers hold Tastykake in very high regard when it comes to product quality and freshness”.�� Clearly, Mr. Deese recognized the advantage of purchasing an established brand.�� Perhaps Flowers will end up taking the same view when it comes to the Twinkie^TM, or other Hostess brands, should they decide to purchase any of their brands. ��However, Flowers has yet to comment about the possibility of purchasing Hostess brands.

The drawback from buying brands rather than buying all assets of a bankrupt company is that employees are inevitably left without jobs.�� During the winding down process, Hostess only intends to����about 3,200 employees of the former 18,500 to assist in the process.�� Of those that��, 94% will find themselves unemployed within the first 16 weeks of the year-long process. ��Since Flowers Foods recently acquired all assets of the Tasty Baking Company, it is doubtful that they would attempt to buy the Hostess assets as a whole as well.�� If they decide to purchase any assets of Hostess, it will probably be limited to brands, and former employees of Hostess will be out of work.

Although it may not be Flowers, it does seem likely that Hostess brands like Twinkie^TM��will be bought by some other food company.�� Those people who are thinking of buying boxes of Twinkies on eBay can relax - The Twinkie probably isn’t going anywhere anytime soon.

Adam Stevenson is a JD Candidate of Western University, faculty of law.

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These obligations can include non-discriminatory treatment, protection against expropriation, and transparency during the process of investing.�� Though a FIPA treaty with China has been����since 1994, the process was delayed by China’s accession to WTO. ��This FIPA specifically contemplates intellectual property as one area of foreign investment which will benefit from these new protections.�� Though China is already party to many WIPO treaties (such as the����and the��), which govern international intellectual property rights, FIPA will provide certain additional protections which Canadian investors will benefit from.

Under the terms of the Canada-China FIPA, intellectual property rights will����“copyright and related rights, trade-mark rights, patent rights, rights in layout designs of semiconductor integrated circuits, trade secret rights, plant breeders’ rights, rights in geographical indications and industrial design rights.”�� This essentially captures all of the rights that Canada protects under our conception of intellectual property.�� For the most part, investments in intellectual property will have the same protections as all other investments under FIPA.�� However, certain articles of the agreement will not apply to intellectual property.

The non-intellectual property related articles����the Promotion and Admission of Investment, the Most-Favoured-Nation Treatment, and the National Treatment articles.�� These articles relate to the continuing relationships between contracting parties and their respective investors.�� Though neither nation will be bound by these specific articles, it is clear that both nations still have to����with their other international treaties which might regulate these relationships.

The other exception is that certain intellectual property measures such as the granting of compulsory licenses will not be protected against expropriation.�� To get a better sense for why these protections will not apply to intellectual property rights in the Canada-China FIPA it is useful to consider one of Canada’s other recent FIPAs.

The 2012 FIPA between Canada and the Slovak Republic also includes intellectual property under the definition of investments.�� However, it is clear that the protections relating to Most-Favoured-Nation Treatment, and National Treatment articles do apply to intellectual property rights.�� In addition, intellectual property measures such as compulsory licenses are not expressly exempt from the expropriation protections.�� In other words, the Slovak Republic FIPA appears to give investors in intellectual property the full protection of the agreement, while the Canada-China FIPA does not.

Is it possible that the increased protection is the Slovak Republic FIPA is simply because they are not members of additional treaties that affect intellectual property rights? ��The Slovak Republic is a member of the WIPO��, as well as the����and the����(which China is not a member of). ��It seems that the Slovak Republic is actually subject to additional international intellectual property treaties that China is not a member of.�� Therefore this first explanation does not appear to be accurate.

It might also be that the Slovak Republic FIPA is unusual, and simply offers more protection for intellectual property investors than FIPAs with other nations.�� The 1991 FIPA between Canada and the “” is more similar in style and limitations to the Canada-Slovak FIPA than to the Canada-China FIPA.�� Once again, intellectual property is not specifically excluded from any of the protections under the act.�� Again this explanation for the lack of certain protections for intellectual property investors does not appear to have merit.

There must have been something specific about the negotiations between Canada and China which caused the lack of these particular protections for intellectual property investors of both nations.�� It also appears that, given Canada’s other FIPAs with foreign nations,��the reasons for withholding these protections has something to do with intellectual property rights in China. Whatever the reason, the result is clear, intellectual property investments made between parties in China and Canada will not enjoy the same degree of protection as other investors under the Canada-China FIPA.

Adam Stevenson is a J.D. Candidate from Western University, faculty of law

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