Although the Trudeau government focused much of its attention in the recent federal budget with the continuing fight against the COVID-19 pandemic, buried deep in the document were promises to tackle data and intellectual property (IP) issues which it says will be key as a digital economy becomes the norm for many.

With more and more of people’s lives happening online — and the pandemic forcing individuals to move their workstations from gleaming towers to cozy home offices — the federal government is saying a digital economy that serves and protects Canadian business is vital for long-term growth, but Canadians must be able to trust that their data is protected and being used responsibly.

To that end, the federal Liberals are promising to create an office of data commissioner aimed at informing government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace.

Pina D’Agostino, founder and director of the Intellectual Property Law and Technology Program at Osgoode Hall Law School (IP Osgoode), said appointing a data commissioner is “basically signalling the importance of data as a new currency.”

“Ownership and governance issues of data are not privacy issues, so it would be beyond the mandate of a privacy commissioner,” she said. “The signal is that it’s not just about privacy that matters, there are other social implications — what they speak about in artificial intelligence is that data can tend to privilege certain demographic groups in society, so we want to ensure that doesn’t happen and someone like a data commissioner would be mindful of that.”

Marc Yu, a privacy and data management lawyer with Edmonton’s Field Law, said the concept of a data commissioner is “interesting” for Canada.

“It is a fairly short description in the budget as to what the data commissioner is intended to do, so it is likely there will be further details once the commissioner’s office is developed in the future and becomes operational,” he said. “I would think one of the data commissioner’s roles would be to streamline information sharing amongst the public sector, so amongst the federal agencies and federal departments we would have a clearer process in terms of how data might be shared between these different agencies and departments to help them further their objectives and functions in this digital environment, while also maintaining the personal privacy of individuals to whom this information belongs.”

In addition to creating a data commissioner’s office the budget also contains several direct investments in intellectual property, building on the national intellectual property strategy announced in the government’s 2018 fiscal plan. Ottawa is promising to establish ElevateIP, a program to help accelerators and incubators provide startups with access to expert intellectual property services, and allow companies to expense the cost of some investments in digital and IP assets.

These initiatives would be complemented by a strategic intellectual property program review, which would be a broad assessment of intellectual property provisions in Canada’s innovation and science programming, from basic research to near-commercial projects.

D’Agostino said the funding is welcome because the costs associated with many intellectual property matters, such as filing patents, are very high. And she noted a setting up a review “really speaks to the issues which we have seen in the IP system.”

“It is not useful to have siloed approach — we have a Patent Act, a Copyright Act and a Trademark Act that don’t speak to one another and at the same time develop polices in isolation,” she said. “We need to look at all of them and how they benefit innovation and science generally because they all work together, and ensuring there is no siloing and how the laws and the programs we have can really benefit research commercialization and ultimately innovation for Canada.”

More information on the federal budget can be found .

If you have any information, story ideas or news tips for please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

Ian Burns is a Digital Reporter for The Lawyer's Daily.

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It is a common occurrence to see people checking the directory in a mall to get the location of the most popular stores. But what is less well known is that some malls have begun using those directories to identify shoppers’ age and gender, and legal analysts are noting they are walking a tightrope in ensuring those scans are not violating people’s privacy.

Late last month, a steely-eyed shopper at Calgary’s Chinook Centre posted a photo to social networking site Reddit that showed facial-recognition software running in the background. At the time, mall owner Cadillac Fairview said the mall does not record or store any of the content and that getting consent is not required as they are not capturing or retaining images.

But on Aug. 3, the Office of the Privacy Commissioner of Canada and Alberta’s Information and Privacy Commissioner both announced they were opening investigations into Cadillac Fairview’s use of the technology. The federal investigation will examine whether the practices are in compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Alberta commissioner’s investigation will determine what types of personal information are being collected, whether the data is being shared with third parties and what safeguards or security measures are in place to protect personal information.

As a result of the investigations, Cadillac Fairview announced it was suspending use of the technology pending resolution of the matter. Janine Rampiras, director of corporate communications for Cadillac Fairview, said the company will co-operate with the investigations and will not provide further comment.

But no consensus has emerged on what the ultimate outcome of the investigations could be. Brian Vail, who practises technology and privacy law at Field Law in Edmonton, noted the provincial Personal Information and Privacy Act (PIPA) applies to all private enterprise in Alberta, and deals with the collection, use or disclosure of personal information, which is defined as information about an identifiable individual. He said, if the software makes an individual identifiable, then it is caught by PIPA and therefore would require people’s consent.

“But I tend think it’s not identifiable information as long as they are just using it in the way they say,” he said. “But if they store it, even for a short period of time, then I think they’re storing a personal record of information. Then if that’s the case the Act applies.”

Vail noted the mall representatives “aren’t even pretending to get any kind of consent.”

“So the issue then is whether a reasonable person would consider this appropriate in the circumstances,” he said. “The fact that somebody who saw it actually put it on social media would suggest somebody was unhappy about it.”

Vail’s Field Law colleague Marc Yu said the basic privacy principles associated with facial recognition software don’t differ from those applied to other security measures in a mall, such as surveillance cameras. But he noted malls have to put up signs that indicate surveillance is taking place and “there is no question the mall is recording that surveillance.”

“In this instance the mall is saying no, as users approach this camera on our mall directory we’re not capturing a single image from them. What we’re doing is this video looks at that image and quickly produces an estimated gender and age,” he said. “I don’t know how that works but if the technology actually has to capture that image for even a split second, then there’s an argument that that’s an actual collection of personal information.”

Pina D’Agostino, founder and director of the Intellectual Property Law and Technology Program at Osgoode Hall Law School (IP Osgoode), said PIPEDA would also be applicable in this case because the legislation looks at any type of organization which is collecting personal information during its commercial activities, which would apply to Cadillac Fairview.

“One thing I found interesting was that the mall’s argument was they are not doing anything wrong because they’re not storing or actually collecting information,” she said. “But if you actually look at the Act, it is very specific about this. It protects information that is collected, used or disclosed. Clearly there is use, so even your use of this information could trigger a violation of PIPEDA in this case.”

D’Agostino said, in order to run the analytics to get the age and gender from the facial recognition technology images will likely have to be stored, even if for a couple of seconds. She said the situation is similar to the concept of ephemeral recording in copyright law, where broadcasters are allowed to make a single recording of a copyrighted work for archival and logistics purposes.

“And if you look at the big picture and all the other information that they are collecting in the course of someone entering the mall, it is very reasonable to think you can identify a person by putting together the gender, the age, the security camera footage and all of that which the mall is privy to,” she said.

Whatever the outcome of the investigations, it is generally accepted that the pervasive use of technology is something that people will have to deal with, whether they view it as a utopian ideal oran Orwellian nightmare. Vail noted a colleague once said to him in 20 years’ time people will be saying, “privacy, what the hell is that?”

“Trends tend to show that privacy is a concept that is becoming less and less important in the minds of people,” he said. “My father would say [the mall tracking technology] is unacceptable and I would probably say I’m uncomfortable with it, but a millennial would probably say I don’t care. There is a trend towards people wanting to have less privacy as they use social media and other things — it just becomes part of their lifestyle and personal privacy becomes less important to them.”

Ian Burns is a Digital Report for The Lawyer’s Daily.

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