In a recent paper, Michael Jacobs and Alan Devlin  the debate in forcing monopolists to license their IP. By licensing their IP, monopolists would increase market innovation and create a competitive environment. However, these advantages come with a significant drawback. They can decrease the IP monopolists’ motivation to invent. Ultimately, this shows tension between the short term and long term. The advantages are short term gains, while the decreased incentive is a long term phenomenon.

This complicated picture has led to the European Court of First instance and Courts in the United States to part ways on the subject. The latter are against compulsory licensing, while the former view it as within their purview. Ideals also play a significant role. The Americans believe that a judge is not in a good position to determine the terms of a compulsory license. On the other hand, Europe is all about administrative frameworks and believes market forces cannot always be trusted. From an economic standpoint, neither approach is superior. To put it bluntly, we do not know which yields better results.

Setting context aside, why would the European Courts need to interfere? A dominant firm can charge monopoly prices for licensing its IP.  A lot of money could be made. By refusing to license, others could simply invent around the technology, eventually outclassing the monopolist. While there are risks with licensing, these can be reduced through license terms. Furthermore, by licensing, a dominant IP firm can ensure that its IP is firmly entrenched in the next generation of inventions.

Even so, there are reasons why a monopolistic firm might prefer, at least for now, not to license its IP. It could be due to an uncertainty over the monopoly price. Although the IP would have a certain value in one market, it might have an even greater price in a yet unexplored/unknown setting. Hence, a monopoly price set today would allow a competitor time to find another market where it could charge a higher price. Alternatively, the firm might know the right price to charge, but might consider that the benefits are outweighed by the costs, whether in terms of enforcing the license or perhaps any advantage its competitors might receive from licensing. Jacobs and Devlin use these arguments to come to the conclusion that the monopolistic firm is in the best position to determine whether or not it should grant licenses. Courts or government agencies should have little to do with it.

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In the meaning and interpretation of a perpetual licence came under debate in an application for summary judgment. The dispute concerns an animal feed maker, AB Agri (Agri), and BMS Computer Solutions (BMS), the software developer. Agri used the software developed by BMS to operate the machines which milled its feed.

Initially, the two parties came to an Agreement for the software’s use in 1994. This gave Agri a licence to use the software, while tying it to a Support Agreement. Six years later the software license and support agreement were varied. This Variation Agreement stated "the Program Licence will be extended to be a UK-wide perpetual licence". Afterward, Agri decided to develop its own software. It would now use this new program to mill its animal feed and the BMS software would only be used for archive purposes. Hence, Agri would no longer need the maintenance arrangements envisaged under the old Support Agreement.

This is where the dispute over contract terms arises, and the meaning of a 'perpetual' licence comes into question. Agri argues that given that a perpetual licence (language added in the 2000 Variation Agreement) means a licence that cannot be broken, it is impossible for it to be forced to accept BMS’s support services for as long as it uses its software. Effectively, Agri states that the variation overrides the 1994 Agreement. Its motivation is clear. In the 1994 Agreement, the licence to use is tied to BMS’s service provision. Agri had to pay for BMS’s support services as long as it used its software. However, Agri now wants a continuing licence to use BMS’s software without having to purchase their maintenance services. Predictably, BMS disagrees with this assessment and asks for a summary judgment on the meaning of the contract terms, specifically on the interpretation of ‘perpetual licence’. Its goal is to enforce the original agreement, where the support agreement is a condition to having a licence to use.

Mr. Justice Sales in the High Court of Justice, Chancery Division, England and Wales ruled in favour of BMS. His ruling ties the support agreement to the licence to use. The termination of the former means the end of the latter. He achieves this goal by defining a perpetual licence as operating without a time limit, rather than a never ending arrangement. However, the perpetual licence comes to an end at the request of either party. This definition of a perpetual licence is reached through contractual interpretation. However, given that this is a summary judgment motion its scope is quite narrow. None of the surrounding circumstances or factual matrix is examined. It is purely an exercise in the interpretation of clauses. The term ‘perpetual’ was not present in the original 1994 Agreement. Hence, the question is whether the 2000 amendment was intended to create a new contract. Given the structure of this amendment, mainly that it has no termination clauses, this could not have been the case. It would make no commercial sense to consider the Variation Agreement a new contract. Therefore, the termination clauses under the 1994 Agreement still apply.

The result of this conclusion for Agri is that the licence is still tied to the support agreement. More importantly, it means that a is defined based on the 1994 Agreement termination clauses, a licence that can exist indefinitely, as long as either party chooses not to terminate it.

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is about dance moves. It is the arrangement of dance moves, usually in patterns, accompanied by music. Are these dance moves protected by copyright? The argument out there is that they are, even .

In order for choreography to be protected it has to be fixed to another medium, usually a tape, paper, DVD, etc. An alternative to recording the actual dance moves on a tape is to describe these moves precisely and record those descriptions. However, choreography does not have to tell a story, nor does it have to be performed in front of an audience. Even so, it needs an original expression of an idea. For an interesting summary on choreography please click .

shows the interplay of originality, expression, and fixation. Armando Pastor (claimant) alleged that he choreographed dances in the Cuban genre. Following some classes, the claimant thought that Roger Chen (defendant) had talent so he invited him to some intermediate tutorials. Afterward, he invited Mr. Chen to take part in a performance involving La Reuda dance moves. Based on one of the claimant’s witnesses, La Reuda is a Cuban way to dance salsa, which is difficult to perform because it involves multiple couples. After some performances, the defendant told the claimant he was not interested in dancing. Soon after, he left the claimant’s group.

However, a few months later, Mr. Chen started teaching La Reuda to other instructors and students in Vancouver, even though he had signed a Confidentiality Agreement (agreement) with the claimant. According to the claimant, the agreement applies because there is no other way to learn La Reuda, other than by being taught. For instance, one cannot pick it up by simply watching a video. The claimant was the only one in Vancouver who knew how to perform it. Over time, the defendant’s conduct allegedly led to a loss of business, as other instructors became proficient in this dance. Eventually, the claimant could no longer attract any students to take his dance classes in La Reuda. It is important to note that his financial decline began around the time the defendant started teaching this dance style to other instructors—the claimant’s competitors.

The claimant stated that he had made his own style of La Reuda, as any expert in this field does. Hence, Mr. Chen was not just teaching the general theories or moves of La Reuda that are in the public domain, but rather the specific choreographed moves developed by the claimant over his career. Mr. Chen admitted that he had taught some of the claimant’s moves to others, but he never performed them in public. He stated that most of the moves he taught he learned from one of the claimant’s videos and his travels to Montreal and Toronto.

Granted, the agreement could apply to the situation, given it is unlikely Mr. Chen learned those moves on his own. However, before the claimant can make use of it, several things need to be established. First, is the agreement a barrier to trade? The restrictions imposed by the claimant turn out to be reasonable for the protection of his business (the restriction extended to teaching and performing La Reuda). Mr. Chen could have sought the claimant’s permission, however he did not. The next issue is whether the claimant’s moves were in the public domain. Based on the evidence of the claimant, defendant, and other witnesses the Court concluded that the choreographic moves (the expression) are original and fall within copyright.  Even so, it is worth pointing out that the Court does not address the dichotomy of idea and expression. How close is the expression to the idea? If the idea is too close to the expression, the protection of the latter will stifle the use of the idea, reducing innovation.

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Using various processes or technologies is a minefield. Patent trolls or non practicing entities (NPE) are a large part of the problem. Knowing how to deal with their likes becomes a matter of legal tactics and strategy. However, before getting into potential solutions, we need to understand NPEs.

Jenn Wood in her article describes patent trolls as entities, whether individuals or corporations, that acquire patents for the sole purpose of asserting them against other companies. In other words, they do not capitalize on their patents; they merely seek to profit off aggressive licensing. In this context, it makes business sense to have strategies for dealing with NPEs. by offers a multitude of solutions.

Instead of fighting the NPE over the validity of its patent or the alleged infringement, preliminary strategies could be more successful. One of these is a pre-emptive collective purchasing initiative. A group purchases a list of patents. In order to assure optimal use of funds, these patents have to be the most likely to be targeted by NPEs. This is based on a patent’s potential for royalties. However, a major weakness in this strategy is cost. The group’s patent mass buying initiative requires members to pay a high premium. A second preliminary approach is to show that your company does not generate a lot of revenue from the process or resulting product. Even if the NPE were to win at trial, following opportunity cost and potential legal fees, it would not get much in their damages assessment. Royalties are based on a fraction of the revenue generated on the product. Of course, this is most effective when a corporation has the relevant information on the patent troll. Hence, when first served a demand letter, a company should learn anything that might be useful about their opponents, through sources such as and .

If preliminary strategies do not placate the NPE’s demands, and a corporation’s legal department sees legal conflict on the horizon, minimizing collateral damage is the next best thing. Opinion letters from outside counsel protect a corporation from liability to its shareholders. However, this is a tricky manoeuvre, because opinion letters annul solicitor client privilege on that particular issue. If a corporation has been looking around for the ‘best’ opinion letter, this ‘shopping around’ will come out.

Once collateral damage is minimized, a corporation has to attack the NPE’s supply lines. These come in the form of contingency based law firms. Contingency means that a law firm only gets paid if its counsel is successful for the NPE. Hence, my earlier comment on potential legal fees for non practicing entities. This can be done through another company or body, so as to be more credible—by proxy. Issues that this proxy could point out to the NPE are weaknesses with its law firm and arrangement with the latter. For instance, not all law firms are strong enough to withstand years of litigation on a contingency basis. The firm could fall apart. On the other hand, if the NPE’s firm does win the legal battle, it might fall apart on suddenly coming up on a large award if sharing agreements are not set in stone between its partners. Lastly, the proxy could point out to the NPE any discrepancies or uncertainties into how its law firm calculates legal fees once the case is won.

David Wanetick also points out an interesting compromise strategy. This has the potential to avoid legal warfare, while resulting in lower fees. When NPEs serve demand letters, they are also looking for validation. If a corporation is on a long list of potential targets agreeing to pay royalties early on, helps the NPE by making the others fall in line. Often, the NPE is willing to reward this first corporation with lower royalties.

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These days governments are . The public purse is increasingly used to aid businesses. However, many questions remain about the effectiveness of such a strategy. , in his book, tries to address the issues surrounding this topic. In an  posted on the Freakonomics - New 91��ɫ Times Blog, Lerner comments on the complexities decision makers face in today’s environment. It is not merely a question of ‘to fund or not to fund’, but rather who, how, and when.

Central to Lerner’s ideas is creating the right environment for business. Handing out money is just the beginning of a very long process, and without the right environment leads to failure. What is the right environment? This can be illustrated through the development of Silicon Valley in the first half of the 20^th century. In those days, the US government ensured the right environment for entrepreneurship through subtle policy decisions. For instance, Stanford University was a source of technology. However, local financiers were the source of capital. What bridged the gap between these two worlds? Generally speaking, it was taxes and contracts. Taxes are meant to stimulate entrepreneurs to start new business. Contracts reinforce the relationship between a source of technology, such as a university and an entrepreneur.

Contracts require consideration. What is consideration in this case? Surely, not just the prototype, but rather the rights associated with it. This is what the entrepreneur buys and markets from a source of technology, such as a university, and private funds from financiers. Intellectual property and the . Perhaps in hard times, we should not just think about government money and funding, but rather consider intellectual property law reform. The law and intellectual property play a critical role in the business cycle, and hence are a vital component of creating a fertile environment for public funds.

This is just part of the story. Lerner points out that government funds played an important role. They accelerated the development of the area in the early 20^th century through contracts for specific projects. If a project would fail or develop too slow the funding was cut—this is the nature of contract work. This is part of the understanding that programs that promote entrepreneurship need flexibility; sometimes they need to be terminated. It is important to also note that the government only provided funding once these firms were already in place largely as a result of existing policy, law, and initial private funding. The critical role of intellectual property law, such as patents, cannot be overstated.

The public purse is only meant as a catalyst. It is not a substitute for start-up. This explains why Lerner values venture capitalists. They serve the role of early financiers—funding young or restructuring firms and “providing a layer of insulation” between entrepreneurs and government. This helps tackle two thorny issues: inappropriate/inefficient allocation of funds and agency problems. Venture capitalists provide an indication of what the market thinks is a good investment; government should follow those signs. This assures that funding is not distributed ineffectively and top down, but rather according to the market’s judgment. Venture capitalists can also reduce the agency problem because as investors their judgment is based on performance. This makes it a lot harder to set up an entity that will misuse public funds.

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by announcing it may pull out of China. In the meantime, it would no longer enforce China’s information suppression and screening platform. Ultimately, if Google leaves China, it will do so because the country’s government would not tolerate Google running without filters. this as Google possibly being the first of other American corporations standing up for freedom of speech and information in a country sorely lacking both. However, closer investigation of the allegation paints a more complex picture. The issue revolves around freedom of information on the Net, privacy rights, and intellectual property rights (IPR).

Google that hackers accessed the Gmail accounts of Chinese human rights activists. However, this was limited to a few email addresses. Furthermore, the information only included account creation dates and subject lines. They did not extend to the content of those email accounts. Hence, although privacy and freedom of information on the Net are an issue in this particular case, an objective evaluation points to another central problem.

In fact, it seems that Google is particularly miffed about the hackers’ alleged breach and extraction of its intellectual property, along with that of other international corporations. The Official Google blog states: “As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses--including the Internet, finance, technology, media and chemical sectors--have been similarly targeted.”

Google can afford to state its opinion on the dreadful state of IP protection in China. Other corporations aren’t so privileged. Even though the online market in China has immense potential, Google only makes about 1% of its revenue there. The same might not be said for other major companies. Hence, Google’s statement might reflect the hushed view of many other corporations operating in China. The first response of the Chinese government has been that “”. Nothing has been stated directly on intellectual property rights.

China joined the World Trade Organization (WTO) in 2001. Afterward, it amended its legal system to with the WTO Agreement on Traded-Related Aspects of Intellectual Property Rights (TRIPs). Hence, at least in theory, China does have a legal system for dealing with IPR. It also has an obligation under TRIPS to enforce and protect intellectual property.

If China does not enforce IPR, it is breaching its obligations under TRIPs. Furthermore, such a state of matters will discourage future business and innovation in the country. There will simply be less incentive for companies to move or continue operating in China. This applies especially to IP brought in from abroad. Like privacy and freedom of speech, intellectual property is also a right. Ultimately, all rights can be traced to a notion of dignity for the person and society at large. Perhaps it is naive for companies to think that in a country where other rights are foregone, IP rights will be respected and enforced. On the other hand, it is important to note that China does have set up to comply with its WTO obligations. This consists of an administrative procedure and a criminal or civil judicial avenue available for complainants. At this point, it is important for China to show the world that its judicial system does in fact work when it comes to IPR. As others have said before me, for different reasons, the ball is in China’s Court(s).

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allows a user to adopt one of their custom interfaces or create a ‘website’ with a unique background. This result is then pasted on the Google search screen. Groovle really operates on top of the Google search engine. When one enters a keyword, the results are displayed by Google itself. Google’s ads are also displayed next to the search results and sites like Groovle get a share from these revenues. Even so, Groovle, owned by 207 Media in Oakville, Ontario, found itself before a National Arbitration Forum  panel, with Google as the complainant.

The panel used the (UDRP) to reach a decision. As shown in , the complainant must prove all three elements sections 4(a)(i) to 4(a)(iii) before a domain name is transferred to the complainant. Hence, Google under s. 4(a)(i) had to first establish that 207 Media’s domain name, Groovle, was identical or confusingly similar to a trademark or service mark in which the complainant had rights.

Google tried to satisfy s. 4(a)(i) by alleging Groovle was using its domain name to take advantage of Google’s reputation. Given the reputation of the Google mark, it was unlikely that 207 Media created "Groovle" independently. Google also tried to distinguish this situation from a case it had lost, . Here, Google sued a food search engine, alleging that the respondent was confusing web surfers, thus trying to profit from the distinctiveness and reputation of the Google brand. Still, the respondent was successful. Google tried to distinguish this past case from the current situation, arguing that Groovle was far more similar to the Google mark due to its first letter, when contrasted with the Froogles domain name.

207 Media by stating that Groovle is distinctive when contrasted to Google; it is not confusingly similar. It argued that its distinctiveness is reinforced by the fact that Groovle was derived independently from the word groovy. Groovle’s creators alleged that while they were playing with the word groovy ‘Groovle’ just stuck. Furthermore, they argued that Google did not provide any evidence of actual confusion between the two marks.

The , quoting the Froogles decision, stating that “the dissimilar letters in the domain name (Groovle) are sufficiently different to make it distinguishable from the complainant's mark (Google) because the domain name creates an entirely new word and conveys an entirely singular meaning from the mark.”  Hence, Google failed to satisfy s. 4(a)(i) of the UDRP. As a result, it was unnecessary for the panel to examine s. 4(a)(ii), whether 207 Media had any rights in the domain or s. 4(a)(iii), whether 207 Media’s domain name was being used in bad faith.

Groovle’s troubles with Google began last summer. Groovle’s owners sought legal advice. As a result of that advice, a disclaimer was added to the site stating that the site “.” Although this disclaimer is not mentioned in the NAF panel's discussion, it is included under the parties’ contentions. Did this disclaimer play a role in assuring the the panel that it was unreasonable to conclude that there could be any confusion between the two marks? This issue remains unresolved because the matter is not addressed in the findings of the decision.

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The South African Supreme Court of Appeal ruled on . A helpful on the case can be found at the Adams & Adams website. They represented the appellant.

In December 2007 Century City Property Owners Association sued Century City Apartment Property Services CC for trade mark infringement. Most pertinent was the trade mark registration for ‘Century City’ as regards to retail, wholesale, marketing, distribution, hiring, leasing, mail order and all kinds of merchandising services.

The Appellant (Century City Apartment Property Services CC), had brought a counter-application seeking the revocation of the trademarks. Its argument centered on Section 10(2)(b) of the .

Section 10 of the Trade Marks Act 194 of 1993 covers marks that should not be registered, or if registered are liable to be removed from the register. Unregistrable under section 10(2) is a mark which:  “(b) consists exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods or services, or the mode or time of production of the goods or of rendering of the services.”

The Appellant’s position was that the marks owned by the Property Owners Association, no longer represented its services. This was established in two steps. First, Century City began reflecting the place’s name. Second, the services of many other businesses moved or appeared in the location now known as Century City. Therefore, Century City is now a mark which serves to designate the geographic origin of the many goods and services provided there. It cannot be limited to the property owners association.   

The Supreme Court of Appeal focused on the services offered under the trade mark. Its first step was to decide whether Century City had become a place name within the meaning of s. 10(2)(b) of the . It concluded that Century City had become a place name. The mark was now a geographic origin; the development of the area had led to this result. Back in 1997, the original developer could register the trademark; there was no location called ‘Century City’ yet. This changed over time. Second, could the mark serve, in trade, to designate geographical origin for the services offered in the classes of the trade mark registration? Given that so many businesses had moved into the area, which offer the services under the Century City trade mark registration (retail, wholesale, marketing, distribution, hiring, leasing, mail order, etc.), it may serve to designate the geographic origin of those services. Thus, the Court ordered that the mark registration be expunged for those classes of services falling under s. 10(2)(b) of the Trade Marks Act.

In Canada, Section 10 under the deals with a mark that has by ordinary commercial usage come to designate a place of origin. It is to prohibit the adoption of a general mark denoting location as a private trade mark (monopolization), or the adoption of a similar mark that would be misleading.

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Genetics, an Icelandic firm that offers customers private DNA tests . Customers would typically take a genetic sample from the inside of their cheek and would mail it to the address provided.  deCODE Genetics would calculate the chances of a person getting cancer, diabetes, heart disease, and so on. There have been a few purchase offers for deCODE, and some worry about what this means for the privacy of the donors. Here is an explanation .

George Nathanael in his on IP Osgoode discusses the conflict between privacy and the need for research in genomics. Should the genetic information of patients be fully protected, for privacy’s sake? Or should we allow researchers to access anyone’s genome at leisure for the benefit of the ill? Experts argue that the kinds of treatments needed for diseases such as cancer and Alzheimer’s, would benefit greatly from access to patients’ genetic information. On the other hand, Nathanael points out that the genetic profile of an individual is far more private and unique when compared to standard medical information. The entities that might administer these new treatments or tests are not traditional health care providers. Nathanael suggests that the current legislative framework such as the (PIPEDA) might not be sufficient to regulate this industry.

Looking at its framework and applying it to the situation illustrated by deCODE Genetics, does PIPEDA fall short? If it does, where does this leave us?

Section 7(2)(b) in PIPEDA allows an organization to use an individual’s health record in case of emergencies threatening a person’s life. Section 7(2)(c) in PIPEDA speaks about using personal information for research. However, this can be done if it is the only way to achieve this purpose, the information is used in a manner that ensures confidentiality, and it is impracticable to obtain consent beforehand. Also, the organization has to inform the Commissioner that this information is being used. However, does ‘health information’ cover genetic profiles? Personal ‘health information’ under section 2(1) of PIPEDA refers to a wide range of definitions. The one that could concern deCODE Genetics is section 2(1)(c). This is health information from “any body part or any bodily substance of the individual or information derived from the testing or examination of a body part or bodily substance of the individual”.

PIPEDA seems to cover the situation in deCODE Genetics. Health information is categorized broadly enough to cover a genetic profile, referring to information derived from the testing of a bodily substance. This personal information could then be used for research, as long as the necessary conditions are fulfilled and the Commissioner is informed. However, some concerns do arise. For instance, a genetic profile is by no means confidential under most circumstances. Due to its uniqueness it could be matched with a medical record. Furthermore, does research include the selling of information to another company?

Does PIPEDA have any teeth? Upon receiving a complaint, the Commissioner under s. 12(1) has the powers to investigate, call any witnesses, and gather any necessary evidence. This is placed in the Commissioner’s report, which also outlines any agreements reached between the parties. Under s. 14(1) a complainant may apply to the Court following the Commissioner’s investigation into any alleged breach.  Based on s. 16(c) a Court may award damages to the complainant.  PIPEDA leaves it up to the Courts to impose damages, which may be a long and uncertain journey. Furthermore, the process appears to be claimant driven. This presupposes that the claimant is or somehow becomes aware of the breach of his/her privacy.

PIPEDA is a start. However, the manner in which it would ensure privacy over such sensitive and unique information as a person’s genetic profile is at best uncertain. Furthermore, the legislation itself lacks any real teeth, and the dispute process is claimant driven; a long uncertain road in the Courts. Indeed, the regulation of this industry needs to go beyond that which is offered in current legislation. Hence, we are left with one question. Do we wait and see what happens, or do we impose further restrictions before genetic profiles become widespread? So far it seems we are opting for the former.

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The Privacy Commissioner of Canada, Ms. Jennifer Stoddart, in a to the Standing Committee on Public Safety and National Security concludes that the Investigative Powers for the 21st Century Act () and the Technical Assistance for Law Enforcement in the 21st Century Act () raise privacy concerns that cannot be overlooked.

Jennifer Stoddart argues that the two pieces of proposed legislation contain provisions that would increase access to personal information by law enforcement and intelligence agencies. explains these provisions in detail. For example, Bill C-46 would allow (through Internet Service Providers) the monitoring of frequented sites by a user and information exchanged using instant messaging software. Bill C-47 couples these broad, sweeping powers with the ability to override the judicial system. Under this proposed legislation, law enforcement agencies would have the ability to obtain names, addresses, and email addresses without a Court order. The Privacy Commissioner does not see these provisions as necessary, proportional, or effective.

Jennifer Stoddart’s primary concern lies with the necessity of overriding the current legal regime for judicial authorization to gain access to personal information. There are no examples domestically of why such measures are needed, nor is Canada bound to such standards internationally. One counterargument is that Bill C-46 and C-47 were introduced to bring Canada in line with the European Convention on Cybercrime. However, the proposed legislation goes beyond the powers envisaged in the convention.

Canada’s Privacy Commissioner further argues that the thresholds are not proportional. The new thresholds of evidence needed for obtaining personal information have been lowered from reasonable grounds to believe to reasonable grounds to suspect. This has not been done based on the type and gravity of offence, or limited to a specific urgency. Rather, it seems to apply across the board.

Review mechanisms would not be proportionate to the level of oversight required. Currently, the Courts serve as a vital measure for privacy protection by granting or refusing an order. However, it is the perceived slowness of the Courts that is loathed by law enforcement agencies. Still, removing the courts from the equation would require the establishment of an alternate monitoring mechanism. The Privacy Commissioner notes that Bill C-47 charges her office with this task. However, Ms. Jennifer Stoddart goes on to mention that this would require a significant infusion of resources, to give her department the capability to monitor the work of law enforcement across Canada. Even so, she goes on to say that her office would only be reactive to unlawful privacy breaches. Unlike the Courts today, it would not be in a position to prevent them from taking place.

Lastly, the Privacy Commissioner states that the public reporting for these two pieces of legislation is simply not up to par. For instance, under Bill C-47, reviews would take place internally and would not even be required annually. Given the fact that this is new, untested legislation, with the potential to affect the lives of every Canadian, such relaxed review measures are troubling indeed. Follow up reporting to the Privacy commissioner itself would be discretionary, as opposed to a stated regular requirement.

What is most troubling is the lack of a consultation process to see what Canadians think of Bill C-46 and C-47. Given the broad sweeping powers, disproportionate evidentiary threshold, and lack of effective review by cutting out the judiciary, this is strange. Also working against the passage and implementation of Bill C-46 and C-47 is the technical bottleneck faced by ISPs. Implementing such a monitoring system would require these service providers to have the ability to monitor and store increased amounts of data. Such capabilities would call for a substantial immediate investment. It would be cruel irony if such measures will end up being financed by the same consumers whose privacy rights they will subvert.

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