Most advertisements are disappointing. They suffer from gimmicky jingles, exaggerated punchlines, and fake endorsements. Yet every once-in-a-while there comes an ad that is witty, sophisticated, and original. Such an ad, more often than not, .  But what happens when the ad runs headlong into the law of trademarks and personality rights?

Such may be the case with a recent ad from SWEEP and SARCAN.

is a non-profit corporation established by manufacturers, retailers, and other stakeholders for the purpose of coordinating the collection and recycling of obsolete electronic equipment. SWEEP was established for the purpose of complying with . The regulations require all first sellers of electronic equipment  (eg. manufacturer, distributor, owners, vendor, importer, etc.) to either operate or have someone else operate, a product management program. This program is to provide a recycling option to the population of Saskatchewan for their waste electronic equipment including desktop computers, laptops, displays, televisions, mp3 players, etc. SWEEP partnered with SARCAN, a private Saskatchewan waste disposal firm, to provide these disposal and recycling services.

The challenge with such a program is seldom the logistics or technical requirements for recycling electronic waste. Rather, the difficult task lies in garnering public support to fund the program, and generate awareness so that the services are used. SWEEP and SARCAN have been running a series of transit, radio and TV ads meant to inform the public of SARCAN’s electronic recycling depots, and to secure support for the Electronic Handling Fee consumers are charged on new electronic equipment.

One of their well-crafted bus ads parodies the 1940s movie classic Gone with the Wind. The ad depicts a picture of Clark Gable looking longingly at an old, yellowed computer monitor piled next to a stripped computer chassis. Across the top in bold, orange lettering the ad reads “GONE WITH THE WINDOWS 95". Along the bottom are the quoted words: “ ‘FRANKLY MY DEAR, YOU SHOULD SWEEP IT TO SARCAN’ ” The standard “SWEEP IT TO SARCAN” logo appears in the top left corner.

Why parody an old movie? Perhaps this ad targets the older generation who could be more likely to recognize and relate to the film and less likely to recycle electronic waste. Or perhaps re-using an old movie is a theme that resonates with SWEEP/SARCANs goals of re-cycling old electronic waste. Whatever their reasons, SWEEP/SARCAN may have come dangerously close to exposing themselves to liability.

Misappropriation of Personality Rights

The first issue is in regards to the personality rights of Clark Gable. The tort of misappropriation of personality allows an individual a proprietary right in the exclusive marketing, for gain, of his personality, image and name, and the law entitles that individual to protect that right if it is invaded (see Krouse v. Chrysler Canada).

The leading case in Canada on the elements of the tort is Athans v. Canadian Adventure Camps. The court held that for a plaintiff to succeed in the tort of misappropriation of personality, the plaintiff must prove that

1)    They have a reputation;

2)    There was a misappropriation of the plaintiff’s personality for the defendant’s gain;

3)    It caused damage to the plaintiff; and

4)    There is no public interest to precluding a finding.

The court also noted that there is no need to see if there is consumer confusion – what matters is the misappropriation.

In the present case it would appear that the elements of the tort are met. Despite insisting that with enough courage you can do without one, Clark Gable undoubtedly has a reputation. Clark Gable (or his estate) suffered damages (assuming he was not compensated) because of the use of his personality. There is no public interest to preclude a finding. And SWEEP/SARCAN used Clark Gable’s endorsement for their own gain. The endorsement was not simply limited to the use of Clark Gable’s picture, but also included a quote telling on-lookers to use the services of SWEEP and SARCAN: “FRANKLY MY DEAR, YOU SHOULD SWEEP IT TO SARCAN”.

It may be argued that Clark Gable has been dead for close to 50 years and that this right should terminate upon death. Yet In , the court commented that there is no reason why personality rights should not be divisible to heirs. The court was clear that personality rights should last at least 14 years and insinuated that 50 years after death is not an unreasonable length of time given that copyright protection has that length of term. The law is not certain on this point, however, and despite the court’s comments in Gould, it is not entirely clear that personality rights should extend past the life of the personality anyways.

There is a difference between copyright and personality rights. The value of personality rights lies not in the work but rather in the endorsement of a product or service by someone who the public recognizes and holds in high esteem. Advertisers believe that consumers would be more likely to purchase their products or services if there is a positive endorsement from a personality, or if the personality is somehow associated with their product or service. The consumer psychology goes something like this:

You, personality, use or are associated with this product/service and if I purchase it, I can be more like you / we will have something in common.

Alternatively the consumer may think:

You, personality, like this product/service and since I think highly of you for one reason or another, I will value your opinion in this regard and purchase this product/service.

Despite this author’s personal view that paid endorsements are unconvincing, the continued use in every industry suggests otherwise. Even so, after the death of the personality, the consumer psychology rational must surely breakdown.  How can someone who is deceased truly provide an endorsement? If consumers weren’t incredulous of a personality’s remunerated endorsement while living, surely consumers would be unable to believe a personality’s postmortem endorsement from the grave. Such an endorsement should not be more likely to cause consumers to purchase a product, thus, the endorsement would not be of any value to an advertiser.

Conceivably one exception would be where the personality provided their endorsement of the product/service/organization just prior to their death, and the organization would like to continue to use this endorsement. The value of the endorsement, however, would still erode with time as the products/services/organization changed.

Depreciation of Goodwill in a Trademark

The second issue is with regards to the use of the Windows 95 mark. Sections 19 and 20 of the Trade-marks Act would not prohibit the use of the mark, as it is quite obvious the words “Windows 95” is not functioning as a trade mark to identify the services of SWEEP/SARCAN. That said, section 22 may pose a problem for the ad. Section 22 prohibits another person from using a registered trade-mark in such a way as to depreciate its goodwill. For there to be infringement, section 22 requires that (1) a casual observer would recognize the mark, (2) the goods or services need not be the same, (3) that there is section 4 “use”, and (4) the likely effect is to depreciate the value of the goodwill attached to the mark.

The first and second elements are easily satisfied. The third element is also satisfied. For wares, an advertisement would not be sufficient to amount to section 4 “use”. However, SWEEP and SARCAN are not offering wares, they are offering services. And as per s. 4(2), a “trade-mark is deemed to be used in association with a service if it is…displayed in the … advertising of those services.”  The fourth element is more difficult to prove. One possible argument is that the ad depreciates the goodwill in the Windows 95 mark by suggesting it is obsolete and should be disposed of.

It would seem that it would be difficult to succeed on either an action in infringement or depreciation of goodwill. This is indeed fortunate for SWEEP and SARCAN who are . And this is especially fortunate for those who enjoy a good parody since it is true what they say: “A good ad is hard to find.”

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The United States Supreme Court recently decided the case of , holding that § 411(a) of the Copyright Act is not jurisdictional.  At issue were the rights of freelance authors in their unregistered works.  This case is part of the aftermath from the Supreme Court’s decision in .

Before publishers had recognized the possibility of digitizing their article archive, their contracts with freelance authors only contemplated and granted licences to publish works in print copies.  Once digitization became a reality, publishers began publishing freelance authors' works electronically and charging users access fees. This was done without the freelance authors’ permission.  Tasini, and a few other freelance authors commenced an action and brought their case all the way up to the Supreme Court alleging copyright infringement. The Supreme Court held in Tasini that the Copyright Act requires specific permission from authors to print works electronically.

After the Tasini decision, a number of class actions were brought by freelance authors against newspapers and magazines. These class actions were eventually consolidated into one. Similar to Canada, US law allows copyrighted works to be registered. The consolidated class contained a small number of authors who had registered their copyright. The vast majority of the class, however, was composed of authors who had not registered their copyright.

For more than three years the freelance authors and publishers negotiated. Finally a settlement class was certified and settlement agreement approved by the District Court despite objections from some freelance authors. Objectors opposed the motion and appealed to the Second Circuit on the ground, inter alia, that the settlement was inadequate and unfair to unregistered copyright holder claimants because they were paid less than registered copyright holders, and singled out for claim reduction if the total of the claims exceeded $18 million.  It was also alleged that the unfair agreement was the direct result of the inadequate representation in negotiations of class members who possessed unregistered copyright. The defendants responded that unregistered copyright holders were adequately represented and treated fairly because their claims were essentially worthless. Unlike the Canadian Copyright Act, the US Copyright Act requires copyright holders to register their work before they can sue for copyright infringement.

The Second Circuit court disposed of the matter Sua Sponte concluding that the to certify the class or approve the settlement. They held that a copyright holder’s failure to comply with section 411(a)’s registration requirement deprives a federal court of jurisdiction to adjudicate his copyright infringement claim.

The Second Circuit court’s decision was appealed to the US Supreme Court. All parties to the settlement disliked the Second Circuit court’s reasoning to such an extent that no side would argue the merits. The Supreme Court appointed an amicus curiae to support the Court of Appeal’s judgment.

The Supreme Court held in no uncertain terms that the "section 411(a) registration requirement is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction." In arriving at this conclusion, the Court reasoned that jurisdiction is about a court’s power to hear and decide certain classes of cases (subject matter jurisdiction) and classes of persons.  The power of the court to hear and decide an outcome is granted either by statute or constitutionally. There is a difference between the powers of a court and the rights or obligations of the parties.  The difficult task is to decide whether copyright registration specifies a jurisdictional condition (power of a court) or a claim-processing rule (right or obligation of the party).

The Court then engaged in statutory interpretation and a comprehensive review of the case law to support its position that indeed s. 411(a) is a claim-processing rule and not a jurisdictional condition.

Fortunately the Supreme Court was able to correct the Court of Appeals' error in law, yet one wonders how the Second Circuit court could have ever arrived at their conclusion. It was legal philosopher Joseph Raz who said “Government is arbitrary if its actions depart from the reason of the law.” (See Timothy Endicott’s article The Impossibility of the Rule of Law, Oxford University Press, 1999, Vol 19) So too would a court’s decision be arbitrary if it departed from the reasons of the law. The Second Circuit’s decision seems to fly in the face of the rule of law and provides a good example of Raz and Endicott’s characterization of arbitrariness. What purpose would there be in limiting federal courts from deciding cases of copyright infringement when it involves unregistered copyright holders?  Interestingly the registration requirement only applies to US works. Registration is not needed for an infringement action for non-US works, actions involving attribution or integrity issues, or if the registrar initially refused registration.

What is it about registration, specifically for US works, that would suddenly grant a federal court jurisdiction? It is not as though another level of court has jurisdiction over unregistered copyright holders. It may be argued that copyright registration is an important public goal and that there needs to be an incentive to register. Perhaps the Second Circuit court had the specific issue of in mind and the repercussions on the Google Book Settlement when arriving at their decision. Yet the court did not engage in any purposive analysis of section 411(a) with respect to its legislative history nor try to ascertain inconsistencies with other provisions. For example, if there is no claim to copyright infringement until registration, then a claim can never be time-barred as the statue of limitations would never run (see " by Emily M. Bass).

While most would agree that the Supreme Court arrived at the correct outcome and foreclosed a number of problems created by the Second Circuit court, it is still disconcerting that the Court completely avoided a policy discussion. It seems like the Court was more interested in making sense out of precedent then justifying their decisions on sound policy reasons specific to copyright.  Perhaps the Supreme Court was also cognizant of the Google Book Settlement and wanted to create certainty in the law to foreclose a similar argument being made in the lower courts. In any case, it means that this 18-year-old saga, beginning with Tasini is almost at an end.

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Technology blogs are still buzzing over Apple’s recently filed lawsuit against . In their filing, Apple claims that various HTC phones (including but not limited to phones running the Google Android OS) infringe a number of Apple’s patents currently used in the iPhone. Engadget’s Nilay Patel completed a good of the Apple patents allegedly infringed by HTC.

Among the 20-odd patents claimed, three Apple patents stand out in particular:

Patent issued June 28, 2007 is entitled “Unlocking A Device By Performing Gestures On An Unlock Image”. The patent describes and claims a method for unlocking a Touch Screen device with an interactive virtual graphic of a slide lock.

Patent issued December 23, 2008 is entitled “List Scrolling And Document Translation, Scaling, And Rotation On A Touch-Screen Display”. The patent title is misleading. Though it discloses the invention of iPhone’s multi-touch actions such as pinch-to-zoom, rotation, and de-acceleration animation while scrolling, the actual claims are limited to the iPhone’s scroll, bounce-back and dampen animation when the border limits of a document, list, email, etc, have been reached.

Patent # issued July 23, 2002 is entitled “Object-Oriented Event Notification System With Listener Registration Of Both Interests And Methods”. The patent describes and claims a method to propagate changes in an object’s state to other objects interested in that change. For example, in the Mac OS X operating system a user can change the computer’s output volume via the top menu bar.  Any change in the volume will also be reflected in the Sound Preferences pane in the Output Volume option instantaneously. There are many ways to program this feature, however the method Apple uses (and has patented) involves a variation on the standard programming paradigm called .

Why are these patents of particular interest? Each of these patents can help explore the nature of computer programs. Such an exercise is a worthwhile endeavor.

Despite what some may argue, the debate over software patenting has been alive and well for three decades.  In 1989 Professor Reichman, Professor of Law at Duke Law School, published a paper called Computer Programs as Applied Scientific Know-how: Implications of Copyright Protection for Commercialized University Research.  In his paper, Professor Reichman describes the need for a conceptual model about (a) the purposes to be served by a protection statute for computer programs, and (b) the nature of the subject matter to be protected with respect to computer programs.

The debate regarding software patents today is not focused on the purpose of protection.  It would seem most are in agreement that the purpose is to increase innovation. There is certainly no party advocating for a decrease in innovation.

Rather, today’s debate is centered on how the purpose of protection should be brought about. While this is certainly needed, it may be taking away from a more important discussion about the nature of computer programs.

In her still relevant article entitled , Professor Johnson argues that:

The aims and strategies of copyright and patent law seem right on target in seeking to create an environment in which invention can flourish. In this respect they are not bad laws. But while their aims are right, they seem to lack the conceptual tools to handle the issues posed by computer technology.

One of those conceptual tools must certainly be, as Professor Reichman describes, a model about (b) the nature of the subject matter to be protected. Exploring and understanding the nature of computer programs will hopefully lead to deciding what should be protected and what should not.  A good example of this in practice can be found in the USPTO patent examiner manual.

The USPTO differentiates between functional descriptive material and nonfunctional descriptive material in (the Canadian equivalent is ).  The purpose of this section is to try to draw a line between computer programs (functional) and literary works, music, abstract ideas, and compilation or mere arrangement of data (nonfunctional). This is necessary since both these functional and nonfunctional elements can be represented as data and stored in a computer-readable medium. Without differentiating, one could theoretically claim patent protection over a piece of music simply by storing in a computer readable format (eg. midi or mp3).

So what does Apple’s three patents teach us about the nature of computer programs?

In its most basic form, patent ‘849 is simply a virtual representation of the physical unlock button found on any Ipod or portable CD player. Similarly, patent ‘381 is an animation using real-world kinematics. This would seem to indicate that computer programs can emulate manipulable physical elements found in the real-world. One may argue that such patents are surely not novel and thus do not deserve patent protection. The Apple patents, however, indicate how such emulation is not necessarily a straightforward implementation. Software metaphor do not always match real-world examples because of the inherent differences in working in a virtual environment. If there is inventiveness with respect to how real-world items are manifested in virtual ones, then should this not be protected?

Patent ‘354. The Model View Controller programming paradigm, as discussed above, is partially a method that makes it easier for the developer to design, program, and debug an application. The MVC paradigm is not so much a theoretical construct as a pragmatic solution to real software development problems. Graphical User Interface-centric applications, unlike command line (eg DOS) driven ones, are inherently more complex to code. Being able to compartmentalize functions into isolated sections that operate independently can simplify the process. The same is true for higher level programming languages that allow for an Object Oriented paradigm implementation.

The ‘354 patent also partially describes an algorithm for improving the efficiency of code that implements MVC. The effect is likened to that of using a binary sort algorithm instead of a bubble sort algorithm.  The quality of the information is not improved, rather, the information is more efficiency generated or manipulated. This shouldn’t be confused with efficiency gains from porting manual mathematic calculations to a computer (which would surely suffer from a lack of novelty). Efficiency gains from better computer algorithms may make all the difference when trying to solve information problems with technology (eg. )

A model of the nature of computer programs can also assist with other aspects of encouraging software innovation and protection. For example, it may aid in developing a better classification system so that examiners can easily find prior art. It may also give developers a more readily accessible database for solutions to difficult problems along with more certainty about what IP rights have been granted and to whom.

More than after the first personal computer, the debate about software patentability and protection continues.  No doubt if Apple and HTC do make it to court, arguments from both sides will be heard on why each others’ software patents should not have been granted in the first place. One can only hope that the court, in deciding the case, supports their reasons with foundational principles by discussing the true nature of software.

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A patent system is a balancing act. On one hand, a patent system provides incentives to innovate, commercialize, and disclose innovations to society. On the other hand, a patent system discourages the proliferation of innovations in society by giving a monopoly on disclosed inventions. Opponents have long argued that the deleterious effects of a patent system on society outweigh the beneficial effects. Indeed, there was a period in the 1860s and 1870s when patent systems all around the world were abolished. Prussia abolished their patent system in 1863, the Netherlands abolished their system in 1869, and Japan in 1873. The US’s attempt to abolish their system barely failed at the Senate by 3 votes.

Attitudes towards patent systems have since changed. Today, there is a generally held belief by most modern states that the benefits of a patent system outweigh the deleterious effects. This is no doubt due to the refinement of patent law as well as the maturation of industrialization. Yet despite the return of patent systems, some subject-matter continues to remain un-patentable or subject to significant limitations. Many countries are still reluctant to grant patents for software fearing that technological progress in this volatile industry would be impeded. But, what is so unique to software that, should patenting be allowed, it tips the scale in favour of the deleterious effects and impedes technological progress instead of promoting it as in other patentable subject-matters? Has not the software industry matured significantly?

A recent on the PatentlyO blog canvasses some of software’s material differences as compared to other subject-matter. Based on these differences, O’Riordan advances arguments on why the patenting of software should not be allowed. O’Riordan observes that there are a small number of large companies with well-known products, and there is a mass of small companies. He attributes this structure to the low cost of entry for software development firms. Research and development resources are inexpensive and the skills required can be self-taught. All that is required is a computer, an operating system, a compiler, and a programming book/resource. Most, if not all, of these tools can be found for cheap or free. But how does low entry cost and industry structure have any effect on whether the patenting of software should be allowed? O’Riordan fails to explain how this supports his position. He does seem to imply, however, that small firms will be discouraged from patenting their software because of the prohibitive costs, and large firms will patent all of their software thus restricting and discouraging smaller firms from entering the market and developing. This would prima facie be undesirable since small software firms can make some very innovative and useful products. Perhaps the software industry differs from other industries where it is predominantly the large companies that make the truly innovative products due to research and development costs.

It is doubtful, however, whether other industries are really so different from the current software industry. Basement inventors still innovate and create inventions with very little resources (eg. ). The better counterargument, however, may be that the current industry structure may actually be caused by the lack of software patentability. Without software patents large companies have been able to copy the innovations of smaller firms. The most recent example of this has occurred with individual application developers for mobile devices such as . Why should small companies invest significant time and resources in developing truly innovative software if a larger company is able to copy without consequence? This also impacts the ability for a small company to grow as investors will not invest money to commercialize a product if there is no guarantee of protection. The story is a good example of how a software patent was able to secure the necessary venture capital funding for expansion. The i4i story also supports the contention that large software companies do copy the innovations of small software firms.

O’Riordan goes on to argue that software patents will be too restrictive on software developers that sit in IT departments of medium sized companies. These developers are responsible for keeping email flowing, making internal software, and extending existing software. “The timelines and budget for patenting are out of sync with the speed and costs of writing software.” There are two problems with this argument. First, it is doubtful whether IT departments are really developing sophisticated pieces of software that would merit patent protection or would infringe existing software patents. Furthermore, software development is not as frenzied as O’Riordan seems to suggest. For example, many companies still maintain legacy mainframe systems that house core business applications. Software may undergo slight modification to accommodate unique business requirement, however, the core functionality and framework typically remains unchanged for many years. The number of slight software modifications that may merit or infringe a patent is probably quite low. The second problem is that if, in-fact, a truly innovative piece of software was developed in-house, then a patent system would allow that company to recoup the costs of the development. If the time and effort is invested in developing an application that may outlast the hardware upon which it runs, why should not the time and effort be invested to patent the software? This would also provide a much-needed incentive for companies to disseminate their in-house innovations. Without this incentive companies are not likely to disclose for fear of giving away competitive advantages.

Lastly, O’Riordan argues that software patents will discourage and inhibit user communities of open source software from developing free or cheap software. Should a portion of that free software be subject to a patent then the patentee would effectively have a veto over its distribution. O’Riordan cites Linux as an example of the impact open source software can have and how patents could impede such important developments. These difficulties are not unique to the software industry however. For example, generic pharmaceutical companies are restricted from selling their imitation drugs at substantially discounted prices because of the monopoly granted to brand name companies. This is the price that is paid for all the other benefits that come along with a patent system. Furthermore, if innovation is truly what is desired, then duplication of already existing software should be avoided. Patent protection will encourage open source developers to develop software that is innovative, not imitative. Despite the lack of Canadian cases concerning software patents, the Canadian Intellectual Property Office on the filing of software patents. Other jurisdictions are also taking a closer look at the merits of software patents. The European Patent Office held a in 2007 specifically examining the issues. If volatility and maturity of the software industry were the initial justification for disallowing software patents, certainly it is about time the subject-matter be re-examined in light of the progress achieved to-date and the structure of the industry.

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On February 11, 2010, IP Osgoode and the Hennick Center for Business and Law hosted their second conference on Intellectual Property, Innovation and Commercialization. Similar to last year’s conference the speaking panel and audience were composed of various stakeholders from government, industry and academia representing a wide array of ideas and views.

focused on the key challenges of commercializing innovations.  This year’s conference had a slightly different tack. Speakers and panelists challenged many fundamental preconceptions about innovation and commercialization. Here are some of the ideas discussed at this year’s conference:

Having a valid patent on a good idea is enough. Keynote speaker Loudon Owen, Chairman of i4i, recounted the i4i patent litigation story.  The i4i story is a good reminder for small, medium-sized businesses that simply holding a patent may not be enough. Being able to enforce a patent is equally important. Mr. Owen had a number of lessons to share from his experience holding and enforcing i4i’s patents. First, there is very little incentive for large corporations to not infringe a small company’s patent. Except for legal fees, in the worst-case scenario, the large company will simply have to pay what it should have paid in the first place. Very few small companies can afford to sue and enforce their patents against a significantly larger opponent. The second lesson is that patent litigation is a lifestyle and not about the money. It is a deep commitment. If it is about the money it is simply easier to settle.  Third, the press can be a very powerful force. And fourth, business is about people and so is patent enforcement. If the board of directors of a small/medium-sized organization is approached with a patent problem, they become concerned. There are a number of challenges and difficult questions board members are not likely able to answer: What does the patent cover? Is there evidence of infringement? Is the return worth the risk? Should a licence be negotiated, should there be litigation, can the infringement be ignored? How is litigation going to be funded? Will the company management and inventors be willing to testify?  So far successful in their patent enforcement litigation, i4i’s experience provides good lessons for companies (particularly SMEs).

Complex technology transactions are symptoms of the problem with IP laws. One of the issues discussed at last year’s conference was how inventors, academics, and students frequently do not have the necessary legal and business skills to commercialize their innovations. Some blame has been placed on IP laws for not accommodating these individuals by adding unnecessary complexity. Panelist Professor Sean O’Connor from the University of Washington School of Law provided sound arguments, however, on why IP and licensing are actually a good thing and can work to the interest of innovators. Though IP laws and licensing can be confusing, hard to navigate, and time consuming, innovative licensing can be used to help small companies stay afloat and organically grow. Panelist Professor Johnston provided a number of case studies where complex technology licensing with customers and suppliers were useful in providing income for further research and development. In some cases the true value of the innovator’s IP (and the most viable business idea) was the process or components of the invention, not the product or the invention itself.

The failure of a new company is a bad thing and efforts should be made to avoid this. Panelist Marc Castel is the Director of Commercialization in the Waterloo Region, Centre of Excellence for Commercialization of Research.  In his talk he characterized some of the ways startup companies can go wrong.  They include: 1) Not starting with a customer in mind, not staying on budget or meeting development deadlines, not having enough resources at the outset to commercialize, not having the necessary technical, business and legal expertise or guidance, and not managing IP effectively. Despite these issues, one of the most significant problems he highlighted during his talk was that failing ventures are not allowed to fail fast. In the US, failing is frequently viewed as a badge of honour. Entrepreneurs take pride in how many companies they have failed and how much money they have spent trying. Such a view coincides with Silicon Valley’s innovation lifecycle as discussed at last year’s conference by guest speaker James Isbester. In Canada, however, Marc Castel found that failing is accompanied with stigma and that significant efforts are made to avoid failing. Such an attitude, he feels, is dangerous and companies should either succeed quickly or fail quickly. Failing slowly just takes resources (R&D time and money) from other ideas and firms which have greater chances of success.

More R&D is better for the economy. Panelist Professor Moren Levesque described a recent study she undertook on the role of entrepreneurs and research and development (R&D) as necessary conditions for economic growth.  She found that there is not always a positive correlation between economic growth and investment in innovation. Empirical results show that some states invest heavily in R&D but see no economic growth. Using these empirical results Professor Levesque developed a mathematical model. Her model showed that innovators are not the only group affecting economic growth. Imitators – people who take an innovative idea and copy it - also have an important function. Her model suggests a balance is needed between imitators and innovators to maximize economic growth.

Video recordings of all the presentations from the conference, including the power point presentations, are archived on the IP Osgoode website and are available .

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Over the last two months, Professor Jim Gibson from the University of Richmond School of Law, has written two articles identifying how Copyright law has for many centuries, and to this day, been used as a tool to censor works.

Professor Gibson began his chronicling the use of copyright as a means to censor works. The first attempt to limit the use of copyright for censorship purposes occurred three hundred years ago in the Statue of Anne. The gave individual authors exclusive rights to their works. This replaced a system where the distribution of books was controlled by the government through royal charters, which granted monopolies over printing and empowered the chartered firms to seize unauthorized books and bring their publishers before the courts.

Despite the Statute of Anne, Professor Gibson argues that Copyright continues to be used as an instrument of censorship. Censorship continues in two forms: direct and indirect. Direct censorship arises from the court’s judgment about the immorality of certain publications. There are a long line of cases both English and American where courts have refused to grant copyright protection for works that were lascivious and immoral. The most recent example of this type of censorship is the 1979 case of Mitchell Brothers v. Cinema Adult Theater. In Michelle Brothers, the exclusive licensee of a pornographic film sued another theater for their unauthorized exhibition of the film. At trial, the US district court recognized the long line of cases that refused to protect immoral works, judged the film obscene and denied it copyright protection.  Though the decision was reversed on appeal, the decisions shows how recent this attitude is within the American courts.

The - indirect censorship - occurs when the Copyright owner is motivated by desires to suppress expression rather than disseminate. This type of censorship deserves greater scrutiny.

Professor Gibson argues that Copyright law operates under the assumption that the author wishes to disseminate his or her work to the public for a fee. Accordingly, to incentivize authors to create works, the threat of unauthorized and uncompensated copying needs to be minimized. If the assumption is false, however, and the Copyright owner does not wish to publish their work, then copyright law can be used to prohibit and censor materials.  A prime example of this is rapper Eminem’s use of copyright law to he wrote in his youth. Professor Gibson questioned whether parties should be allowed to use copyright law to hide their dirty laundry from the public. Infringement of copyright in these cases would not result in an economic injury, but something more akin to privacy. He answered his question stating that copyright is ill-suited to deal with such concerns: “Its constitutional goal is to promote the dissemination of information, not retard it.”

There are two issues with Professor Gibson’s argument that copyright is an indirect censorship tool. Professor Gibson recognizes these problems upfront. The first problem is that Fair Use (Fair Dealing in Canada) regulates to some extent the tension between privacy and the public interest. In some cases infringment of copyright is justified if it is in the public interest. A good example of this is the UK case of Hubbard v. Vosper. Vosper, a long time Church of Scientology follower and member of the inside circle, left the Church and published criticism of church books and confidential material. In the criticism, Vosper copied substantial parts of the Church’s books authored by church founder Hubbard. Hubbard sought an injunction and Vosper went to court to lift. Under the fair dealings defence, the UK Court held that breach of copyright was fair and justified given that it was in the public interest to expose the material.

The second problem with Professor Gibson’s argument is that the idea/expression dichotomy makes copyright an ineffective censorship tool.  Copyright only protects the expression and not the ideas captured within the expression. Paraphrasing the racist lyrics of Eminem would not violate copyright law.

Despite these weaknesses, Professor Gibson may still generally be correct in his assertion that US Copyright law is ill-suited to handle concerns of censorship. If an author was not incentivized to create a work because of the profits they would receive from that work, why should copyright law apply to them?  These authors fall outside the purpose of the copyright act. The work would have been created irrespective of whether the author would have a monopoly to sell the work. The underlying assumption is of course that the sole design of copyright law is to “encourage the creation and dissemination of expression.”

It is in this regard that Professor Gibson’s argument suffers a fundamental dint however, especially with respect to copyright law in other countries. Not all copyright laws exist for the sole purpose of encouraging the creation and dissemination of expression. As the Supreme Court of Canada stated in Galerie d'art du Petit Champlain inc. c. Théberge at paragraph 116:

[I]t is important to recall that Canadian copyright law derives from multiple sources and draws on both common law tradition and continental civil law concepts. As Moyse observes, supra, at p. 562:

[TRANSLATION] What the term "copy-right" very certainly reveals is the actual function of copyright. It is an exclusive right and, as it applies to the part that relates to the commercial exploitation of the work, a true monopoly on reproduction. ...Canadian law inherited that aspect while remaining receptive to the French doctrines, particularly because of Quebec's influence. This does great credit to our law since the Canadian Parliament is more inclined than any other legislature to stay attuned to external developments in order to mould its own rules. ...

... Thus, in Canadian statutes, the intention is to establish both a right that is centered on the person of the author, this being derived from the civil structures of the right of ownership, and a definitely dynamic right centered on its economic function, which reflects the theories underlying the concept of monopoly [.]

Canadian statutes must therefore be interpreted in light of their historical context, domestic case law and legislative developments, and international conventions.

Moral rights are an example of the continental civil law influence on copyright. Section 14.1 of Canada’s Copyright Act gives authors a right to be attributed with their work (including the right to anonymity and a pseudonym), a right to prevent their work from being mutilated or distorted should it prejudice the author’s honour or reputation, and a right to not have their work associated or linked with a certain product, cause, service, etc. These moral rights are founded on the belief that a work is an extension of the author’s personality. If such a continental understanding is applied in determining the purpose of copyright law, then it becomes apparent that copyright law does not only incentivize authors to create and disseminate their work. Assuming this continental view, should not the author of a personal journal of intimate thoughts be able to exclude all from reproducing in the same way that they are entitled to anonymity or a pseudonym with respect to their work? Are these rights not consistent with one another?

It is apparent Professor Gibson’s arguments were not directed toward Canadian copyright law or nations with similar moral rights. However, may also impact Professor Gibson’s argument specifically with respect to the purpose of American copyright law. The difference between moral rights and economic rights is arguably a false dichotomy. In Jacobsen v. Katzer, the federal court commented that authors of open source works might be able to sue for copyright infringement on conditions typically considered moral rights. The court said that prima facie non-economic license restrictions such as attribution, should actually be considered economic benefits and thus be protected under copyright. The court reasoned that just because an author gives a license for no monetary consideration, does not mean that they have relinquished all economic rights. While a license for monetary consideration may be the standard method of licensing to create income, releasing for free public use can also provide economic benefits because the author creates a reputation and generates market share for their programs.

The inextricable link between an author’s personality and their economic interest is perhaps best captured in a 1777 quote from P.A. Caron de Beaumarchais, founder of the Société des Auteurs:

[TRANSLATION] It is said in the theatre lobby that it is not noble for authors to write for the worthless pursuit of money, they who pride themselves on their claim to fame. Indeed, they are right, fame is appealing. But they forget that nature condemns us to dine 365 times in order to bask in glory merely for a year. For the authors, they are not defending a privilege, but the sacred right of all rights to retain ownership of their works... .
(M. Pagnol, Preface, in J. Boncompain, Le droit d'auteur au Canada (1971),  at p. 9.)

Professor Gibson is correct that: “[I]f there is an injury to be articulated here, it is different from the economic loss that results from the usurpation of one’s right to profit from one’s own expression.” But Jacobsen v. Katzer supports a more expansive view of the types of economic loss American copyright law protects against. Accordingly, if an author can require attribution for their free, open-source code should they not also be able to remain anonymous or not have their work published if it would have some impact on their economic interests? Does this not fall within the purpose of American copyright law?

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In November of last year, as part of the 31st International Data Commissioners Conference, privacy experts from around the world met in Madrid Spain to draft It does not come as a surprise that the new Standard significantly overlaps with the drafted in 2005 at the 27th International Data Protection Commissioners Conference in Switzerland. Both the GPS and Madrid Standard were created with an eye to fundamental privacy principles and appear to be compatible with one another.  The purpose of the GPS was to provide a single instrument that reflected universal privacy principles. The Madrid Standard, however, was created with the ambitious goal of eventually becoming a binding international instrument. As such the GPS, for the most part, is written in more general language while the Madrid Standard fleshes out more of the details. It is apparent, though that the Madrid Standard is still in its infancy and far from ready to be adopted by states as a binding international agreement.

First, a number of important principles in the GPS were not included in the Madrid Standard. While the Madrid Standard explicitly recognizes the concept of “data minimization” – a concept first introduced in the GPS requiring data processors to make reasonable efforts to limit the use of personal data to the minimum necessary – it was disappointing to see that the GPS guidance statement was dropped. The GPS states that:

“the design of programs, information technologies, and systems should begin with non-identifiable interactions and transactions as the default and that wherever possible, identifiability, observability, and linkability of personal information should be minimized”

It was strange that this statement was not included given that the Madrid Standard is full of non-binding guidance statements (s. 22). The Madrid Standard should have taken the guidance statement one step further and added some mandatory language around it so as to add some teeth to the data minimization principle.

Second, one of the important ongoing privacy debates is in defining what information is private and subject to privacy standards. Should information that could only result in a real harm (eg. pecuniary harm, arbitrary discrimination, identity theft) be considered personal information, or should the definition be expanded to include perceived harm?  Perceived harm is an amorphous concept and highly dependent on the individual and the situation. For example, an individual may not feel it is an invasion of their privacy if others were made aware of their purchase habits. They may feel, however, that their privacy has been infringed if their location is processed and communicated without their consent irrespective of whether this resulted in any negative consequences. In some situations the consequences may be remote and difficult to foresee but still possible and highly dependent on the situations.  In 2007, Facebook enabled a service called which tracked a user’s purchases made on affiliate sites such as eBay North America and Travelocity, and then notified the user’s network of these purchase. Except for erotic materials, it would be difficult to see how the communication of someone's purchases could result in any harm. Harm nevertheless did occur. One commenter on a described how he had purchaed a diamond engagement ring for his girlfriend from Overstock.com. Without hours he received a call from one of his good friends to congratulate him on his engagement. The problem was that up until that point he had not told anyone of his purchase nor proposed to his girlfriend. Without his permission, Beacon and Overstock.com had posted his engagement ring purchase along with the amount paid and a link to the item on his Facebook profile for all his friends to see. Harm certainly did result, but who could have foreseen such a situation?

The Madrid Standard defines “personal data” in s. 2 as: “any information relating to an identified natural person or a person who may be identified by means of reasonably likely to be used.” Section 6 provides further guidance on what constitutes “personal data”. It says that: “Any processing of personal data that gives rise to unlawful or arbitrary discrimination against the data subject shall be deemed unfair.”

Even with s. 6, the definition of personal data is less precise than Article 2 of the which has been criticized for not providing enough guidance.  Article 2 of this Directive defines personal data as:

Any information relating to an identified or identifiable natural person. An identifiable person is one who can be identified directly or indirectly…by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Contrast this with the GPS which defines “personal data” this way: “An individual possesses a physical, social, and informational identity that relates to his or her private domain. We refer to this as personal information – recorded or oral information related to an identifiable individual.”

If one were to only use the Madrid Standard, it would be difficult to say whether, for example, an IP address, a picture of someone on the street (e.g. Google Streetview), or GPS location coordinates paired with a unique mobile phone identification number, would fall under the definition of “personal data”.

The Madrid Standard does attempt to provide a more precise definition of “personal sensitive data”:

"Data which affects the data subject’s most intimate sphere or data likely to give rise, in case of misuse, to: unlawful or arbitrary discrimination or a serious risk to the data subject. In particular, those personal data which can reveal aspects such as racial or ethnic origin, political opinions, religious or philosophical beliefs as well as those data relating to health or sex life, will be considered sensitive data." (s. 13)

Despite this definition, the Standard fails to specify how “sensitive personal data” should be treated differently from “personal data”. The Standard leaves it up to individual states to legislate additional conditions for processing sensitive data.

In addition, rather than providing clarification and consistency, s. 6 and s. 13 may actually result in more confusion. Information that falls under the definition of “personal data” in one state may not fall under the definition in another state because of geo-political differences.  For example, if an individual’s political views are disclosed in Canada, it is unlikely it would result in arbitrary discrimination or a serious risk to the individual. In China, however, it is conceivable that the communication of an individual’s political views could indeed result in arbitrary discrimination or serious risk. Point in case, Googlethat it had been targeted by a sophisticated cyber attack on its corporate infrastructure.

Google concluded that the primary goal of the attackers was to hack into the Gmail accounts of Chinese human rights activists. The attackers appeared, however, to succeed at obtaining access to only two accounts. That access was limited to basic account information, such as the date the account was created and the subject lines of e-mail, not the content of the correspondence. Based on the Madrid Standard’s definition, would this information be considered “personal data”? Assuming the Madrid Standard was in-force in both US and China, would Google be required to disclose such a breach only in China, but not in the US?

Finally, the Madrid Standard also fails to address some of the concerns raised in the . Among the many issues discussed in the Declaration, it specifically mentioned that privacy laws and institutions have failed to take full account of the risks to vulnerable groups such as children. The Madrid Standard as well, fails to provide additional protection for children with respect to privacy. The Declaration also urged countries to ensure that individuals are promptly notified when their personal information is improperly disclosed or used in a manner inconsistent with its collection. The Madrid Standard, however, only requires that individuals be informed of security breaches if it could “significantly affect their pecuniary or non-pecuniary rights.” (s. 20(2))

Finally, The Madrid standard lacks the look and feel one would expect from an international instrument. This is evidenced by the inconsistent use of words such as “shall”, “should”, and “must” to refer to obligations, the use of vague terms to describe important rights and powers, and the use of colloquial expressions throughout. This may be a minor point on instrument drafting, but it is important if this standard is to eventually govern the processing of personal data at the national and international level.

Despite these issues, certain aspects of the standard are commendable and forward-looking. For example, individuals are explicitly given privacy rights (s. 16-19). The Madrid standard recognizes that sensitive personal data includes more than just information creating a risk of tangible harm. It was also interesting to see an accountability principle included in the Standard. Accountability requires organizations to have the necessary internal mechanisms in place for demonstrating the observance of the other principles and obligations to the data subject and the supervisory authority. Note that Canada has a similar (but more detailed) clause in the Schedule 1.

Despite these comments, one should bear in mind that the Madrid standard is still in draft form. It was only intended to be the next step towards the development of a binding international instrument. It will be interesting to see whether there is enough momentum and leadership to continue to build out this Standard in subsequent International Data Protection Commissioner Conferences.

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A long time ago in a galaxy far, far away, an epic copyright war was being waged across the world….

This, perhaps, might have been a better introduction for the UK High Court of Justice Court of Appeal (Civil Division) in one of their most recent copyright decisions . The central question on appeal was whether copyright protection subsists in Star Wars stormtrooper armour and helmets.

In the course of making the first Star Wars film, Lucasfilm hired an expert in vacuum moulding plastics, Mr. Ainsworth, to create life-size plastic stormtrooper armour and helmets. A number of years later, after the films’ success, Ainsworth began producing and selling copies of the stormtrooper helmet and armour as well as producing plastic stormtrooper action figures. Lucasfilm brought an action against Ainsworth for copyright infringement in the US and obtained a default judgment for trade-mark and copyright infringement in the sum of $20 million (USD). Lucasfilm then proceeded to bring an action against Ainsworth in the UK to enforce their US judgment.

Justice Mann heard the . Mann J held that the stormtrooper helmet did not have independent copyright as a sculpture or work of artistic craftsmanship. Mann J did, however, uphold Lucasfilm’s claim to equitable ownership and required Ainsworth to assign all copyright resulting from the creation of the original works to Lucasfilm.

On appeal, the Court confirmed Mann’s J decision that there was no copyright in Ainsworth’s Star Wars sculptures under UK      law. In arriving at this decision the Court of Appeal conducted an interesting review of the legislative history of the term “sculpture” tracing its definition through the Copyright Act, Sculpture Copyright Act, Designs Act 1850, and the Patents, Designs and Trade Mark Act. The Court then went on to analyze Mann’s J guiding factors for determining whether an object falls under the definition of a sculpture in the Copyright Act.

Mann J confined the term “sculpture” to the normal use of the word but cautioned that no judgment regarding the artistic worth of the object can be made. While not every three-dimensional representation can be regarded as a sculpture, what matters is the purpose of the creation – the “intrinsic quality of being intended to be enjoyed as a visual thing”. The fact that the object has some other use does not necessarily disqualify it from being a sculpture either. Furthermore, the process of fabrication is relevant but not determinative. A purely functional item should not be treated as a sculpture simply because it is carved (sculpted) out of wood or stone.

The Court of Appeal accepted Mann’s J multi-factorial approach despite recognizing that the guidelines suffer from borderline cases. The Court of Appeal also felt Mann J correctly applied the guidelines. The Appeal Court was particularly persuaded by the Trial Court’s test which examined the purpose for which the object was made.

“Although invented, the helmet and armour are still recognisable as such and have a function within the confines of the film as the equipment of the stormtrooper. They are, to that extent, no different from and serve the same purpose as any real helmet or armour used in a film. The judge made this point by referring to the primary function of the helmet and armour as being utilitarian and lacking in artistic purpose. This is simply a shorthand for the application of the various considerations set out in his [118]. He was, in our view, entitled to come to that conclusion on the facts of this case. We also think that he was right to do so. Neither the armour nor the helmet are sculpture.” [para 80]

The Court of Appeal also addressed whether the action figures were subject to copyright protection:

“[I]n most modern cases toy soldiers, whether real or fictional, will not be works of art.…. They will be playthings registrable for their design qualities but nothing else. This distinction may be difficult to draw in some cases but we suspect that the cases which will qualify for protection under the Copyright Act will be relatively rare. …We are not dealing here with highly crafted models designed to appeal to the collector but which might be played with by his children. These are mass produced plastic toys. They are no more works of sculpture than the helmet and armour which they reproduce.” [para 82]

This distinction was important for the Court of Appeal to make. The Trial Court’s decision had previously been criticized for failing to appreciate that action figures could indeed be more than just play-things. Action figures (especially for iconic science fiction movies like Star Wars) can be collectors’ items and have a strong purely visual appeal thus warranting copyright protection as a sculpture (based on Mann’s J criteria). Though the Court of Appeal confronted this issue head-on in its decision, it is difficult to believe that Furthermore, by commenting on the amount of crafting that went into the models, the Court of Appeal also contradicted itself. It was passing judgment on the artistic worth of the action figures despite explicitly agreeing with Mann J that this was not permissible.

Though the Court of Appeal made it clear that Ainsworth could not seek any further selling in the US as he would be in breach of its copyright laws, the Court also held that Lucasfilm could not recover or enforce its $20 million US judgment. Given the large sum of money at stake and the potential ramifications of the decision for moviemakers in the UK, one would suspect this decision will be appealed.  Indeed a trilogy of court cases would be fitting for the sequel studded Star Wars franchise.

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On Tuesday, November 24th, the federal government tabled legislation mandating all . Bill C-58 requires that Internet Service Providers (ISPs) report the Uniform Resource Locator (URL) or Internet Protocol (IP) address where child pornography may be available to the public. If the ISP has reasonable grounds to believe that their internet services are being used to commit child pornography offences, then they must also notify the police and retain all computer data that is in their possession or control for 21 days. The ISP is also prohibited from disclosing to anyone they have made a report or notification. Failure to comply with the Act may result in a fine of $10,000 or imprisonment for sole-proprietors and $100,000 for corporations.

ISP has been broadly defined in the Act to include those that provide Internet access, Internet content hosting, or electronic mail. This would apply to typical ISPs such as Bell and Rogers, as well as unconventional ones such as Google, Facebook, and Microsoft.

While all agree that child pornography is a horrific social ill and that a substantial effort should be made to reduce the production and distribution of this content, some criticize the legislation as putting too great of a burden on ISPs (particularly smaller ISPs which host thousands of web pages) to monitor. This, however, is a mischaracterization of the legislation. In fact, section 7 of the Act makes it clear that nothing in the Act “requires or authorizes a person to seek out child pornography”.

One of the other concerns is that this will open a Pandora’s box of privacy issues for ISPs. The Canadian Civil Liberties Association's that “somebody may post a family picture or an artistic picture and if that is misinterpreted by somebody who works for an ISP and then feels compelled to tell police about it, all of the sudden that person…may find themselves being looked at a little more closely by police in a way that may invade their privacy.” Family and artistic photos are not the only types of content that may give rise to privacy issues. The recent phenomenon of may also generate content that an ISP would feel compelled to report.

Under section 3 of the legislation, the ISP only has to report content available to the public. Such reporting is unlikely to generate much privacy concerns. It is hard to believe that referring the police to content already in the public domain would invade a poster’s privacy.

The other reporting requirement, section 4, is of slightly greater concern. ISPs need reasonable grounds to believe that their internet services are being used or have been used to commit child pornography offences. The risk here is that an ISP providing email, private web pages, or newsgroups services, may need to retain this data and hand it over to the police, frustrating the users’ expectations of privacy for their innocent content.

Michael Geist has also criticized the legislation for . He believes “the real problems lies in dissemination of child pornography in newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58”. It is quite apparent though that the legislation does envision the private sphere of the Internet. Why else would it have such a broad definition of ISP that includes email providers? Admittedly, if an ISP has a policy of not reviewing users' private content, and the legislation does not require an ISP to seek child pornography within their network, then it is unlikely an ISP will have reasonable grounds to believe their services are being used to commit child pornography offences. Still, members or recipients of private content may report to the ISP suspected incidences of child pornography on their network.

Even if the Act does not specifically result in a greater number of ISPs reporting suspected incidents of child pornography, it still provides further dissuasion to individuals contemplating the distributing of child pornography in both the public and private internet spheres.

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On November 3rd, over 1000 privacy experts from 50 nations met in Madrid and Privacy organizations have touted the agreement as an expansive statement on the future of privacy. The agreement affirms that privacy is a fundamental human right and reminds “all countries of their obligations to safeguard the civil rights of their citizens and residents.”

Participants of the meeting hope the draft will serve as the basis for a universal, binding legal instrument on data protection. Only a snippet of the draft standard has been released to the media, but a full 2-page declaration was provided at the end of the conference. It remains to be seen how similar the “new” privacy standard is to the one which was drafted in 2005 at the 27th International Data Protection Commissioners Conference. Ann Cavoukian, Ontario’s privacy commissioner, chaired a working group of commissioners convened for the sole purpose of creating a single .  At the time, the working group recognized that a single law on data protection was beyond their reach, but felt it was possible to at least develop a single, global, privacy instrument.

Since then, other efforts at a global privacy standard have been undertaken. In September 2007, based on the . The standard came under criticism because it was too narrow in scope. The primary objective of the framework was to prevent misuse of personal information and the consequent harm to individuals. It failed, however, to account for the fact that a failure to protect privacy jeopardizes other freedoms such as expression, assembly, access to information, and non-discrimination. Indeed, constant surveillance by an authority can deter citizens from voicing opinions about that authority or society in general. The harm that could result to society from constant surveillance is much more intangible than the financial loss from one individual’s stolen credit card number.

As discussed in , Privacy is an amorphous concept which is difficult to define. Further evidence of this can be found in the , which tries to identify a plethora of privacy issues that are occurring around the world. The declaration may also provide insight into the contents of the newly drafted Global Privacy Standard.

The declaration first begins with a preamble highlighting that there has been an increase in secret surveillance and collaboration between government and vendors of surveillance technology. It notes that new strategies to pursue copyright and unlawful content investigations pose a threat to communication privacy and that some corporations are acquiring vast amounts of personal data through internet-based services without independent oversight. The declaration also observes that existing privacy laws and institutions have failed to account for the new surveillance practices, the fusion of data between public and private sectors, and the privacy risks to vulnerable groups such as children, migrants, and minorities. The declaration preamble concludes with a warning that a failure to protect privacy jeopardizes other freedoms including the stability of a constitutional democracy.

The declaration then reaffirms support for a global fair information practices framework and independent data protection authorities; urges countries to implement and enforce their own privacy laws which, at a minimum discloses breaches in privacy to individuals; recommends further research into “deidentifying” techniques; and calls for a moratorium on the development of systems of mass surveillance.

Finally, the declaration concludes with a call for a new international framework for privacy protection that is based on principles such as the rule of law, respect for fundamental human rights, and support for democratic institutions.

While the Madrid declaration contains a number of motherhood statements about preserving lofty ideals via privacy, the true test of the conference’s success will be whether these statements can be transformed into a well balanced standard that appropriately regulates all forms of intrusions of privacy, now and in the future.

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