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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law. This article was originally written as part of the IPilogue’s annual Year in Review but has instead been published as a standalone article.

2021 was a transformational year for Canadian privacy legislation. Following the changes made to the , several provinces amended their privacy legislation to protect their constituents’ interests. The private sector may be less welcoming to changes in many provinces which expose companies to . On the flip side, these proposed legislative changes will strengthen the privacy of Canadians in their everyday lives.

Provincial Legislative Changes

Quebec’s Bill 64 Passes Royal Assent 

The most significant development in privacy legislation is Quebec’s , An Act to modernize legislative provisions as regards the protection of personal information, which received royal assent on September 22, 2021. This legislation is significant because of its effects on the private sector. Starting September 2022, private sector organizations must inform the privacy regulator following any breach to compromised personal information that presents a “serious risk of injury” to affected individuals. To determine if there was a serious risk of injury to affected individuals, the province turns to the factors outlined in the “real risk of serious harm” section of the Federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). As , the gradual implementation of Bill 64 allows organizations the opportunity to update their processes and procedures to ensure compliance before September 2022. The Quebec legislation also takes inspiration from the European Union's General Data Protection Regulation (“G�ٱʸ�”), which has been touted as the “” privacy regime because of its strict privacy standards and its partiality towards consumers.

The omnibus bill included such as changes to company websites, assignment of a Privacy Officer, completion of Privacy Impact Assessments, and requirements for consent, individual rights, and automated decision making. To date, the analysis of the legislation compares the provisions to the European GDPR.

Companies operating in Quebec are now required to publish their company privacy policies on their websites. Such privacy policies must describe how companies plan to use personal information.

In the event of privacy infringements that violate individuals’ private information, individuals will now have recourse through administrative monetary penalties, penal offenses, and private rights of action.

Finally, similarly to the GDPR, Quebec introduced consent requirements for collecting personal information, including express consent before using sensitive information and parental consent for minors under the age of 14. 

Ontario Welcomes Consultations and Proposes Changes

Under the leadership of Patricia Kosseim, the Office of the Privacy Commissioner pursued their goal of passing an equivalent piece of legislation in 2021. In response to an op-ed piece that argued against provincial legislation in fear of redundancy and duplication, Kosseim recently regarding the potential for new provincial legislation to “fill in the gaps” of what Federal privacy legislation cannot accomplish.

In keeping with Kosseim’s motivation to strengthen privacy laws in Ontario, the Government of Ontario released a along with calls for consultation in June 2021. The White Paper, titled “Modernizing Privacy in Ontario,” set out several proposals the Ministry is considering to strengthen privacy protection for Ontarians. To strengthen such protections, the Ministry has proposed making privacy a fundamental right in Ontario. Ontario has also included suggestions to protect youth privacy online, regulate automated decision-making, and require more informed consent and data transparency from private corporations.

The Ministry allowed the public to provide comments and feedback until August 2021. The Office of the Privacy Commissioner applauded the provincial government for taking a “” with its proposal.

BC’s PIPA Committee Releases their Final Report

The British Columbia Legislative Assembly also created a special committee to review the British Columbia (“PIPA BC”) in February 2020. The objective of this committee was to publish a report proposing amendments to PIPA BC, which the committee completed in December of 2021. In the , the committee suggested aligning PIPA BC with PIPEDA and Europe’s GDPR. Like the recently passed Quebec legislation, the committee also suggested mandatory breach notifications if a breach surpasses the “real risk of significant harm” threshold as established in PIPEDA. The committee also recommended broadening the definition of personal information to address the potential issue of de-identification. Finally, the committee proposed that the Office of the Information Privacy Commissioner have greater enforcement powers.

Federal Legislative Changes

The Federal Office of the Privacy Commissioner (“���ʰ�”) did not introduce any new legislation in 2021. The Office was engaged in issues surrounding as well privacy issues resulting from the COVID-19 pandemic, including privacy with respect to and the rise in reliance on video teleconferencing platforms like Zoom and Microsoft Teams. The Canadian OPC, along with privacy authorities in Australia, Gibraltar, Hong Kong SAR, China, Switzerland, and the United Kingdom, to the videoconferencing companies regarding their rapid expansion during the pandemic to query and confirm that these technology companies were using appropriate privacy safeguards. The letter led to a series of video calls between the signatories and representatives from the companies. Finally, the signatories and suggestions to improve privacy going forward. Among the suggestions were the implementation of end-to-end encryption, the identification of secondary use data (as well as an opt-out system), and the option for users to choose where their data is stored.

Conclusion

New and amended privacy legislation continues to develop in Canada and worldwide. Follow the IPilogue and subscribe to our newsletter, the IPIGRAM, for any important legislative changes that emerge in 2022.

The post A Look Back at Canada's Privacy Legislation in 2021 appeared first on IPOsgoode.

Its Purpose is the Protection of Personality Rights

The Act was first introduced to the Minnesota Senate in the wake of the death of world-famous musician and Minneapolis native Prince, who died unexpectedly and without a will. The PRINCE Act, as reported, is short for , had its introduction and on May 9^th, 2016. The Act reportedly required to proceed quickly through the reading but failed to pass before the end of the legislature’s session.

The Act provided a potential plaintiff with a claim for by recognizing “a property right in a person’s name, voice, signature, photograph, or likeness [“Personality Property Rights”].”  Not only did the Act provide exclusive rights to the individual during their lifetime, it proposed the protection of those rights for a minimum of 50 years after death. After death, the rights would be transferred to an executor, administrator or heir, who would maintain ownership of the right until a successful claim of non-use for commercial purpose was made.

The Act would prohibit the unauthorised use of a persons’ protected personality property for commercial gain and provides a variety of remedies from an injunction to damages. Fair use, however, remains an important limitation. The limitation for fair use is a mirror of Title 17 of the United States Code: . As a result, any of the protected property types with connections with the news, public affairs or sports broadcast would be deemed fair use and therefore permissible under the act.

How does it compare to Canadian Law?

Currently, there are four Canadian common law provincial jurisdictions with —British Columbia, Manitoba, Newfoundland, Saskatchewan—that provide a cause of action for the unauthorized appropriation of another’s personality. In jurisdictions without a written statute, the common law tort for wrongful is used to protect proprietary rights similar to those that would be protected under the PRINCE Act had it been passed.  The tort prohibits the of another’s name or likeness without permission. Although there is some uncertainty as to how far the tort extends, Canadian suggests that it covers at least the use of another’s personality, image and name. A successful plaintiff must prove the defendant  their personality for commercial gain.

Notably, Canadian common law also protects one’s exclusive right to market his/her own personality. A plaintiff can recover damages resulting from an infringement, even without proving intentional appropriation for commercial gain.

Similar to the proposed PRINCE Act, the tort of misappropriation of personality has built within it a public interest limitation. In [Gould Estate] the plaintiff’s appropriation of personality action failed because the court deemed the impugned use of Glenn Gould’s photographs and interview material as a permissible use in the interest of the Canadian public. Consequently, it appears that thoughts, ideas, newsworthy events and matters of public interest are exempt from the tort of misappropriation of personality.

The Canadian common law and the PRINCE Act diverge on the topic of posthumous protection. The of British Columbia, Newfoundland and Saskatchewan provide that the common law protections on personality rights extinguish upon the death of the person holding those rights (Manitoba's , however, lacks such a provision). Despite three of four provincial acts prohibiting the survivability of the right, in the Ontario Court of Justice held that such an intangible proprietary right was akin to copyright and therefore should be devisable to heirs. The decision was later , albeit on different grounds. As a result, there is still much confusion as to whether the proprietary rights protected by the tort of appropriation of personality are indeed devisable and, if so, how long after death the rights would survive.

Difficulties ahead

It is unclear how broad in scope the fair use exemptions with be under the PRINCE Act, if it is eventually passed. The courts may gradually carve out its scope on a case-by-case basis. The definition of fair use in the PRINCE Act and the public interest limitation in Canadian common law seem to protect altruistic uses in which the object is to provide the public with information. It will be particularly interesting to see how the court handles situations in which such altruistic pursuits lead to material commercial gain by another.

Olivia McKenzie is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

The post Is This What it Sounds Like when Doves Cry: The PRINCE Act and Canadian Privacy Law appeared first on IPOsgoode.

Beyond a suggested resurgence of the principles that were last year, C-56 contains many backdoor revisions to the Trade-marks Act that do not pertain to counterfeiting. In addition to an extensive list of remedies (see Adam Stevenson's article ), including the creation of multiple (and stricter) , C-56 would extensively broaden the definition of a trade-mark. The proposed amendment to the definition reads:

“49. If a sign or combination of signs is used by a person as a trade-mark for any of the purposes or in any of the manners mentioned in the definition “certification mark” or “trade-mark” in section 2, no application for the registration of the trade-mark shall be refused and no registration of the trade-mark shall be expunged, amended or held invalid merely on the ground that the person or a predecessor in title uses the �ٰ������-����������or has used it for any other of those purposes or in any other of those manners.” [underlined text indicating proposed amendments]

One key addition here would be the “combination of signs”, which would vastly expand the scope of what can comprise a trade-mark beyond the traditional forms. As of the first reading of the bill, signs would now include: “a word, a personal name, a design, a letter, a numeral, a colour, a figurative element, a three-dimensional shape, a hologram, a moving image, a mode of packaging goods, a sound, a scent, a taste, a texture and the positioning of a sign.” These changes would mean that you could register trade-marks for purely intangible sensory phenomena such as scents, tastes, and sounds (which has been ). Also, in a semantic modernization, the entire Trade-marks Act would be amended to replace “wares” with “goods”, to reflect common modern language.

The bill also suggests clarity of the registration of marks related to utilitarian features. Specifically, it would amend s. 12(2) to prohibit the registration of trade-marks where “its features are dictated primarily by a utilitarian function”. Moreover, s. 20 would provide clarity that trade-marks can not be used to prevent others from using utilitarian features affiliated with the trade-mark. Another change associated with promoting public use and progressiveness is the proposed s. 18.1 which would allow application to the Federal Court to expunge a registered trade-mark that “unreasonably limits the development of any art or industry”. This would bring the trade-mark system in Canada more in line with the underlying principles of the as a matter of public interest. These suggested provisions would represent a shift more toward “user rights”, which was also seen with the expansion of fair dealing provisions in the Copyright Act last year with .

A number of the proposed amendments to the Trade-marks Act pertain to the power of the Registrar, reflecting recent caselaw. The Registrar would have the right to refuse an application with respect to one or more of the goods or services specified and accept it with respect to others. He would also have the power to strike any part of an improperly pleaded Statement of Opposition, so long as it was done prior to the filing of the applicant’s  counterstatement (s. 38). The application process would be substantially changed, including the power being assigned to the Registrar to set regulations to establish the dates of registration for divisional applications to be re-merged (another new aspect of the Act; s. 39.1). Further clarity into the role of the Registrar includes the right to destroy records related to stale applications and registrations, within 6 years of the date of the final decision (s. 29.1) and a right to keep electronic records (s. 64). Finally, while the Registrar typically exercises no jurisdiction over correcting obvious errors in the records (it is presently subject to application to the Federal Court), ss. 41 and 48 would allow the Registrar to correct obvious errors within 6 months of entry and to remove registration of improper transfers, respectively.

Undoubtedly, the proposed amendments to the Trade-marks Act represent a modernization of the Act similar to that imposed by C-11 on the Copyright Act. However, a problem lies in the intention of the bill, which is purported to target counterfeiting. In my opinion, this bill mirrors the type of ‘omnibus’ legislation that drastically and broadly reformed the , in the form of the wildly controversial . While some of the reforms suggested here will be welcomed to update archaic or out-of-date aspects of the legislation, the overall package of Bill C-56 is bound to be controversial. The , but I think that is unlikely the Conservative majority will waver. One thing is certain: the drama will be intriguing.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The Living Daylights (…Scents, Tastes, and Sounds): Bill C-56 Forebodes Drastic Trade-mark Reform appeared first on IPOsgoode.