The paper disclosed the algorithm used to activate the security system, the Megamos Crypto chip, which Volkswagen uses for its vehicles. According to the facts, a group of  academics - the parties to this lawsuit - were able to crack the security system and discover its flaws. However, the problem arose when these academics proposed to publish a paper at a conference, a paper which would reveal the algorithm to the public. Due to the confidential nature of the  information at stake, the defendants first notified Volkswagen, the proprietor of this information, prior to the paper's publication. Nonetheless, they did not inform Volkswagen until shortly before the date of the conference. Volkswagen contacted Garcia and his associates, requesting that they redact the vehicles’ security codes. The scientists refused to honour the request, arguing that the public has a right to see the weaknesses exposed. Volkswagen subsequently sought an injunction against the researchers on the grounds that revealing the codes used to activate the ignition systems would facilitate criminal activity.

Flavio Garcia and his associates purchased and used software called Tango Programmer, produced by a Bulgarian company called Scorpio. A central question in the case was whether the software used was legitimate. Justice Birss concluded that the  software was legitimate and the fact that it originated from Bulgaria had no significance in this respect. He further dismissed the claimant’s inference that the software's presentation in “broken English” as proving its illegitimacy.

The defendants contended that Volkswagen had no right to sue. According to the facts, the principal developer of the Megamos Crypto algorithm is the company Thales. Although not a party to the lawsuit, Justice Birss found that Thales is a "proper and necessary" party to the dispute and added them to the action. He went on to state that in following the decision of the court in , the confidentiality in the Megamos Crypto algorithm most likely belongs to Thales, as the algorithm's creator. Nevertheless, the court also found that Volkswagen had a legitimate interest in being a co-claimant.

The defendants also contended that Volkswagen had no claim to sue for misuse of confidential information. In making its ruling regarding reverse engineering, the court referred to . In that case, the court had ruled that it was not a misuse of confidential information to reverse engineer a product bought to acquire information encrypted for security. Judge Birss held that, in this case, there would be a breach of confidence because the legitimacy of Tango Programmer was successfully called into question by the claimants.

The defendants further contended that there was a strong public interest in the publication of the paper and that they had acted in accordance with responsible disclosure principles. Justice Birss considered , , and the Cream Holdings judgment. According to the court, the standard for not allowing publication is a flexible one, and that the court should be "exceedingly slow" to make interim orders if it is not satisfied that the claimant is likely to succeed at trial. For the court, there seemed to be a reasonable belief  that either Thales or Volkswagen would most likely succeed at trial. This finding satisfied the first requirement.

As for the strong public interest argument, Justice Birss stated that freedom of expression and academic freedom are of major importance. However, in balancing freedom of expression with public safety, the court decided in favor of the latter. He stated,"I recognise the high value of academic free speech, but there is another high value, the security of millions of Volkswagen cars."

The judge granted the injunction sought by Volkswagen and ordered for "redaction" of the paper the defendants had written.

The present case is an illustration of the evolution of the society vis-à-vis the conservatism of the way law is applied. The court’s ruling, in my view, entails a significant future danger in that it places an obstacle for academics in the UK and abroad when it comes to conducting research and publishing about flaws in security systems. Judges around the world will eventually have to deal with cases like this one and may have to re-strike a balance between freedom of expression and confidentiality, potentially leading to a more responsive public or greater potential harm caused by disclosing secret security information of this nature.

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal.

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The Protect America Act allowed the government to obtain data on foreign intelligence targets without a warrant. After its expiration in February 2008, it was replaced by the (“FISA”). FISA gives the FISC authority to order Internet companies to reveal user data but forbids publication with respect to whether the FISC has issued such an order. FISA was cited by the US government as the legal authority for seizing data from service providers under the PRISM program.

The recent directs the government to report to the court by July 29^th, 2013 and provides for redaction of information that the government considers sensitive to national security. More specifically, Judge Walton states, inter alia, that “[t]he Government shall conduct a declassification review of this Court’s Memorandum Opinion of [Yahoo’s case] and the legal briefs submitted by the parties to this Court in this matter. After such review, the Court anticipates publishing that Memorandum Opinion in a form that redacts any properly classified information.”  Judge  Walton also added that “priority should be given” to the review of the opinion.

Yahoo began its push to unseal the court proceedings soon after Edward Snowden leaked classified documents in June that provided details regarding the alleged involvement of nine major Internet companies, including Yahoo, in the NSA’s PRISM Internet surveillance program. Yahoo filed its motion seeking to clear its name.

The US government’s secret surveillance programs have caused intense debates around the world. In the US, in particular, recently, civil liberties groups before the FISC expressing their support to technology companies like Google and Microsoft that attempt to publish information as to the frequency of requests for user information for national security reasons made by the US government by invoking federal law. Those developments have also bolstered constitutional discussions as to the US government’s constitutional reasoning for using surveillance plans. Some legal scholars and practitioners have argued that such policies violate users’ Fourth Amendment rights against unreasonable searches and seizures. Most recently, the (“E�ʱ���”) with the US Supreme Court challenging the NSA’s phone record surveillance program.

The reality in Canada, however, is somewhat different. Indeed, in Canada, we do have a secret court, the judges of which are  designated under the . The court deals with sensitive national security issues and other activities of the like. We also have (the Canadian equivalent of the NSA in the US) and the Canada Patriot Act is incorporated into the .

What we also have, however, is a certain level of transparency in how these procedures are followed - this is a very state of affairs when compared to the operation of the FISC in the US. Canadian privacy lawyer David Fraser has recently where amici curiae have assisted the secret court  by arguing positions in opposition to the Canadian government’s requests.

Yahoo’s victory is seen as a major one paving the way for increased transparency when decisions have a significant impact on peoples’ civil rights even if sensitive national security issues are involved. The road, however, is still long and it will take more than an incidental judicial decision like this one to achieve sufficient transparency. One thing is certain, Yahoo not only won a legal battle but also many more clients.

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal.

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The report serves as an attempt to identify the existence of a lookalike effect and its subsequent impact on the relationship between manufacturers, brand-owners, and retailers. In that respect, the research methods used for the report included interviews with stakeholders in the fast-moving consumer goods sector, consumer surveys, and an analysis of sales figures for certain products to assess the impact of a lookalike entering the market.

The findings of the report are telling as to why the lookalike debate is still of essence. Key conclusions include:

1. Similar-looking products have similar product characteristics and similar origin, according to some consumers. This outcome reveals the existence of a “small, but statistically significant” lookalike effect on consumer behaviour.
2. A significant number of consumers reported that the accidental purchase of lookalikes had disadvantaged them. Yet, a similarly high number of consumers felt advantaged from any such purchase.
3. Brand-owners reported that advertising spending and research for new products has been negatively affected by the loss of sales to "own brand" products (products sold under a retailer's brand).
4. It is uncertain whether “lookalike packaging generally diverts sales or if the effect of that packaging is negligible.” That said, the report notes that only in a “very limited number of product categories, an association was found between a reduction in the sales of the brand leader and an increase in the sales of lookalike.”
5. There is a fine line between confusing packaging and using generic cues to provide useful signals to customers.
   
   

The report employs a working definition of the term “lookalike” product as the product “sold by a third party which looks similar to a manufacturer brand owner’ s product and, by reason of that similarity, consumers perceive the lookalike to share a greater number of features with the manufacturer brand owner than would be expected simply because the products are in the same product category.”  The research also suggests a statutory definition of a “lookalike” as a “good which by virtue of their name, shape, colour, packaging or labeling or any combination thereof, are similar in overall appearance to the goods; but excluding any of those things where they are descriptive, functional or commonplace.”

The report delves into the and concludes that it is likely to prevent certain lookalikes by evoking the . The Regulations constitute the implementation of the EC Directive in the UK and forbid any unfair commercial practices in business-to-consumer cases. Nonetheless, the report stresses that the Directive is a maximal measure which hinders any member state from enacting legislation that goes beyond its scope. The report also raises the issue of introducing a private right of action under the Regulations. (An amendment to the  ("IP Bill") on lookalikes was tabled on June 11^th. It proposed broadening the law of passing-off. The amendment, however, was withdrawn on June 18^th, 2013.)

The different outcomes of the research serve as indicia of what the public and the various stakeholders feel and expect with regard to the lookalike effect. The report does not provide responses to these outcomes. On the contrary, it raises more questions as to how the lookalike effect might be dealt with more effectively, most notably in the area of enforcement. The newly proposed IP Bill provide an opportunity to address some of these concerns. The Bill is currently at the House of Lords and the report stage will take place on July 27^th, 2013.

In Canada, the law provides a number of different avenues to deal with unfair commercial competition and the protection of the public from such practices. confers a private right of action to any person who has suffered loss or damage in some cases. These include: breaching of one of the provisions under Part VI of the Competition Act, or if failing to comply with an order issued by the Competition Tribunal or a court under the Competition Act. Further, prohibits any form of deceptive marketing practice, the use of misrepresentations in describing the goods of competitors or the use of a trade-name that is confusingly similar to that of another business. Also, it is important to note the common-law tort of passing off with regard to business-to-business cases.

Finally, special interest presents the “look-alike, sound-alike” 2006 policy that enables Health Canada to grant or reject the brand name of any health product on the basis of confusion. This review process is additional to the one done from the Canadian Intellectual Property Office. The point of the policy is to deal with the errors in prescribing or administering a product caused by names that are similar when written or spoken. Earlier this year, Health Canada initiated consultations with various stakeholders for the .

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal. 

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The Commissioner’s thesis is that the (“PIPEDA”) is currently outdated and ineffective due to the rapid changes in technology. Information technology currently allows organizations to collect, store, and use Canadians’ personal information in order to create new products and services. This poses several challenges with respect to the security of data but also with respect to the way this data is handled by those organizations. Risks of theft and hacking are increasing and putting Canadians in danger.

The Report calls for the following four key changes to PIPEDA:

1.���������� Enhancing the enforcement powers of the Commissioner

Under the current version of the Act, the Commissioner’s powers are limited to those of an administrative investigator. The Commissioner has the power to initiate investigation of breaches of PIPEDA and to name and shame organizations who contravene the Act. No direct enforcement powers exist in order to enable the Commissioner to incentivize protection of personal data. The Report makes it clear that under the existing powers accorded to the Commissioner, its position becomes more and more deficient in protecting Canadians’ personal information in the digital era. The Commissioner makes three suggestions in that respect:

• Introduce statutory damages which will be administered by the Federal Court when certain PIPEDA provisions are being breached.
• Give the Commissioner order-making powers. The Commissioner would be able to order organizations that contravened certain PIPEDA provisions to comply with the Act. In the event of an organization’s failure to obey the order, the Commissioner could have it enforced by the Federal Court as its own order under the court's contempt powers.
• Give the Commissioner the power to impose Administrative Monetary Penalties (“AMPs”). The purpose of the AMPs would be to encourage compliance with PIPEDA and would not have a punitive character.
  
  

2.���������� Obligation to report breaches and notify affected individuals

The Commissioner argues that under PIPEDA, organizations are not obliged to report any breaches, further risking potentially affected individuals. Further, the Commissioner reports that the current law permits inequality among the organizations; some organizations report breaches voluntarily and as a result will incur damage to their reputation, while others may purposely fail to report in an effort to avoid such penalties. The Report calls for a mandatory reporting and notification system that would require these groups to report any breaches to the Commissioner and notify the affected individuals.

3.���������� Obligation to report unlawful disclosure to authorities

Section 7(3) (c.1) of PIPEDA currently allows organizations to disclose personal information to governmental authorities and institutions for the purpose of enforcing any law of Canada. The Commissioner argues that the present system lacks transparency since there is no available data regarding how often this provision is used to access information and what kind of personal information is being provided to governmental authorities. Therefore, the Commissioner recommends that a more transparent regime be established. It suggests that organizations be required to publicly report, on a quarterly basis, the frequency of disclosures being made to government institutions without the knowledge or consent of the individuals affected and without judicial warrants.

4.���������� Demonstrating accountability; Incorporation of “enforceable agreements”; and Broadening the scope of Federal Court review

The Report argues there is a lack of resources with respect to monitoring the compliance of organizations. The Commissioner recommends the modification of the accountability principle so that a requirement to demonstrate accountability be put in place. Organizations should be able to show that they have a modern and functioning privacy program. Further, the Report argues for the introduction of the concept of “enforceable agreements”. Under this system, an organization that has been put under investigation would have to agree, at the end of the investigation, to comply with the Commissioner’s recommendations and to demonstrate such compliance within a specific period of time. An organization’s failure to do so would result in action taken by the OPC. Lastly, the Commissioner calls for the expansion of the scope of the provisions under section 14 that the Federal Court can review.

Comments and Analysis

The world is becoming all-the-more interconnected through the use of social media, and as a result, we are developing into a virtual society in which the sharing of personal information is the norm and not the exception. At the same time, people demand more transparency and accountability with respect to the handling of their personal data by private and public organizations. The way this data is used has so far been, intentionally or not, vague with respect to privacy, and the majority of public and private organizations’ attempts to rectify the problem have been superficial.

, the government’s own bill to amend PIPEDA, sits stagnant in Parliament for the time being.  Under this Bill, businesses can decide whether or not to inform affected individuals and report to the Commissioner only when a breach is considered material. Furthermore, the Commissioner only has the power to investigate complaints. Evidently, Ottawa is reluctant to move any privacy reform forward.

The Commissioner’s report is a significant start for serious reform because it openly addresses major problems in Canada’s data protection legislation.  The recommendations found in the report are not novelties. They exist and have been implemented in other legislative texts in some Canadian provinces and abroad. Expanding the powers of the Commissioner and requiring businesses and organizations to report security breaches would promote the aims of PIPEDA and make it an effective legislative tool in the advancement of privacy protection in the era of “Big Data”. It remains to be seen whether Parliament will take any further action to translate the Commissioner's recommendations into law.

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal.

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According to the facts of the case, General Motors (“GM”) used an image of Einstein in an advertisement in November 2009 in which Einstein’s face was digitally pasted onto a muscled physique with the catchphrase “Ideas are sexy too.” The Hebrew University of Jerusalem (“HUJ”) claimed ownership of Einstein’s publicity right under Einstein’s will. As a beneficiary, HUJ would have the exclusive control of the exploitation of Einstein’s name and likeness. HUJ brought an action for unauthorized use of Einstein’s image. It is important to note that the will is silent regarding the devise of any right of publicity, and Einstein did not claim or receive any monetary compensation for the use of his persona during his lifetime.

In March 2012, the Court allowed HUJ to proceed to trial in order to prove that GM had violated Einstein’s, and consequently HUJ’s right. HUJ sought a ruling as to what New Jersey’s highest court would likely determine to be the postmortem duration of that state’s common law right of publicity.

Einstein died while domiciled in New Jersey. Under , California's postmortem right of publicity statute is limited to California domiciliaries. Thus, the Court looked to New Jersey's right of publicity law. Under , the duration of California’s statutory postmortem publicity right is 70 years. In the state of New Jersey, the issue of duration was discussed only in the case . However, the court did not decide the issue. The court in Presley found that the state legislature was to determine the question of duration and that the federal could be of assistance.

In this case, Judge Matz concluded that “the New Jersey Supreme Court would likely find that the postmortem right of publicity endures no more than 50 years after death”. According to the Court’s reasoning, a maximum of 50 years postmortem duration was found to be “a reasonable middle ground” for a deceased celebrity’s heirs to make use of the right of publicity and benefit from it. Further, Judge Matz found that the Court’s ruling “aligns with the majority of current state statutes limiting the right’s postmortem duration”. Finally, the Court found that its decision properly balances the “meaningful enforcement” of a celebrity’s right of publicity and “the public’s interest in free expression”. Judge Matz denied HUJ’s motion and dismissed the complaint as untimely filed.

In Canada, the right of publicity can be found under the term “tort of appropriation of personality” defined in . Under Canadian law, celebrities receive a preferential treatment, as opposed to ordinary people, since their rights are considered to be property that can be licenced or transferred, and that is descendible to the estate after death. As Prof. Vaver puts it in the second edition of his Intellectual Property book: "[d]eath brings no respite: fame survives the grave”.  Former IPilogue Editor Anna Shahid . Quoting the famous decision in , she concluded:

“[T]he personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’”.

Moreover, the Trade-marks Act stipulate that if the deceased’s “portrait or signature” is used for trade purposes without the estate’s permission, then legal action may be taken up to thirty years after death. Finally, under the Copyrights Act ss. &, an author’s works may be protected by its estate from being “used in association with a product, service, cause or institution” until the copyright expires.

The situation changes though when commercial appropriation of personality is considered under the various Privacy Acts in Canada. The statutory right is more limited for celebrities than its common law counterpart, and it dies with the person without being transferable. Like in the United States, personality rights in Canada are limited by public interest values such as freedom of expression. Therefore, the courts always need to strike a balance between those two fundamental rights in order to avoid strengthening one to the detriment of the other.

Albert Einstein, like , now belongs to the public. His persona as the symbol of genius may be freely appropriated and is bound to survive death for many years to come.

Georgios Andriotis is a second year law student at Université de Montréal. 

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Abraham Moon is a fully integrated woolen mill based in 91��ɫshire, famous for its high-end fabrics and clientele. Abraham Moon designed a fabric called “Skye Sage” in 2004 as part of the company’s new direction in selling furnishing fabrics. “Skye Sage” went to market in 2005 and quickly became a success. In 2010 Abraham Moon noticed Art of the Loom’s “Spring Meadow” fabric, which he claimed to be a copy of his own “Skye Sage”. It is important to note that Art of the Loom was selling its fabric to some of the claimant’s customers.

Abraham Moon brought an action for copyright infringement. The defendants denied infringement by arguing that the “Spring Meadow” fabric was designed independently of “Skye Sage”. Additionally, they contended that there was no existing copyright in “Skye Sage”; therefore “Spring Meadow” could not have infringed it in any case.

The stipulates that copyright subsists in original or artistic works. The Act defines “artistic work” as a “graphic work, photograph, sculpture or collage irrespective of artistic quality”. Further, and of the Act require that copyright is infringed by reproducing the whole or a substantial part of a work in a material form, where the copying is without a licence, where the public is issued with copies of the work or where the literary work is adapted.

In this decision, the PCC found that the “Spring Meadow” ticket was an infringing copy of the “Skye Sage” one. Judge Birss found that the “Skye Ticket Stamp” was an original literary work within the scope of of the 1988 Act and that a substantial part of it was reproduced and adapted in the “Spring Meadow Ticket”. However, the PCC ruled that “although the Spring Meadow ticket was an infringing copy of the Sky Sage Ticket Stamp”, the “Spring Meadow” fabric itself was not. In addition, Judge Birss found that the “Skye Ticket Stamp” was an artistic work within the meaning of of the 1988 Act, best described as a “graphic work”. According to the PCC, “Spring Meadow infringes the artistic copyright because it reproduces the appearance of Skye Sage” on the basis that “the ticket is not simply a set of instructions which can be performed on a loom, it is also a record of an image and the image has been reproduced”. Judge Birss concluded on this issue that artistic copyright “should be a ‘content’ copyright and not a ‘signal’ copyright”. Finally, the PCC found that all the defendants orchestrated the copying of Skye Sage and therefore, ruled that all of them are liable for infringement of copyright.

In Canada, of the Copyright Act stipulates that no “method or principle of manufacture or construction” is protectable. This follows in which the Supreme Court found that the coloured rods manufactured by South West Imports Ltd using Cuisenaire’s book, “were not things in which copyright [could] be had”. More specifically, the Court reaffirmed the principle that “there is a clear distinction between the book which describes it, and the art or mechanical device which is described”. In rejecting that finished articles are reproductions of the literary work, the Court adopted the analogy cited in the Australian decision : “everybody who made a rabbit pie in accordance with the recipe in Mrs. Beeton's Cookery Book would infringe the literary copyright in that book.” Therefore, given the Court’s syllogism in Cuisenaire, it would be hard to imagine that a fabric design could be protected on the basis that a ticket stamp has a visual significance because skilled designers can visualize the instructions, although laymen cannot. It is my opinion that in a factually similar case the Canadian Supreme Court would reaffirm its previous decision and the principle that ideas, procedures or methods are not protectable under copyright law.

It is only a matter of time to see whether the clash of the tartans will be continued on appeal…

Georgios Andriotis is a second year law student at Université de Montréal.

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