Monday, July 29, 2013

B.C. Supreme Court re-affirms: No Common Law Tort of Invasion of B.C.

On July 22, 2013, Madame Justice Russell of the Supreme Court of British Columbia struck out a plaintiff’s claim alleging breach of the common law right to privacy. In Ari v. Insurance Corporation of British Columbia, the Defendant ICBC, a provincial crown corporation, made an application to strike out the Plaintiffs' claims for breach of privacy. 

Image by Idea Go
The Plaintiffs (a class comprising over 60 individuals) claim that an employee of ICBC accessed their information “wilfully and without a claim of right” for an unauthorized purpose. As a result of this breach of their privacy, the Plaintiff’s claim that they had their homes and vehicles broken into and became the victims of shootings and arson. 

The class action was built on a cocktail of legal bases: Common law tort, the Privacy Act, and the Freedom of Information and Protection of Privacy Act (FIPPA). While the Court allowed the action to precede based on violation of the Privacy Act, it stuck the claims based on FIPPA and tort. 

With reference to the claim under the common law, the Court was nothing if not blunt:

[63]        There is no common law tort of invasion or breach of privacy in British Columbia: Hung v. Gardiner, 2002 BCSC 1234 (CanLII), 2002 BCSC 1234 (affirmed 2003 BCCA 257 (CanLII), 2003 BCCA 257) at para. 110; Bracken v. Vancouver Police Board, 2006 BCSC 189 (CanLII), 2006 BCSC 189 at para. 28
Justice Russell did not find the recent decision of the Ontario Court of Appeal in Jones v. Tsieg persuasive enough to import the newly crafted tort of intrusion upon seclusion into the law of British Columbia. In her ruling, she distinguished the case based on the type of information that was taken in that case and the case before her. In Jones, the Plaintiff’s banking information was taken whereas in Ari, it was the Plaintiffs’ names and home addresses. 

I found it somewhat curious that Justice Russell explicitly accorded a lower degree of protection for information such as a person’s name and address compared with their banking information. While banking information is of a highly confidential nature, so too is ones name and home address. In this very case, the lives and property of the Plaintiffs were put in immense danger as a result of the employee’s conduct. 

It is worth noting that the Plaintiffs have not yet proven the veracity of the facts upon which their claim is based. However, on a motion or application to strike out a pleading, the claim is only to be struck if, assuming all the facts plead are true, there is no reasonable cause of action. I would think that if it is true that these 60 plus people were shot at, robbed, and had their cars and homes burned, the conclusion that citizens should enjoy a lesser degree of privacy in information like their name and address is patently absurd. 

In one sense I understand Justice Russell’s position. Given the fact that a person’s name and address are more easily accessible to the public than their banking information, misconduct involving the latter is more egregious than misconduct involving the former. There is a higher standard of confidentiality associated with one's finances than their name and address. Still, a person’s name and address are “information about an identifiable individual” which is the definition of personal information utilized by a number of privacy statutes at the federal and provincial levels, including the Privacy Act. In that regard, the fact that a person’s banking information is “more secret” than their name and address is irrelevant. 

The Plaintiffs still have time to appeal this decision. Given the fact that Justice Russell made an unequivocal statement of law that that there exists no common law cause of action for breach of privacy, it is not inconceivable that the B.C. Court of Appeal may like to weigh in.

Tuesday, July 2, 2013

New development in Google Books saga: Google will get its chance to argue fair use

The latest salvo in the Google Books saga promises to be a big one. On July 1, the United States 2nd Circuit Court of Appeals issued an order decertifying the plaintiff class, the Authors Guild et al. The Court found that District Judge Denny Chin’s June 11, 2012 order certifying the plaintiff class was made in error.

As discussed in more depth in an earlier post, in 2004, Google undertook its massive “Library Project”. Google, in cooperation with a number of libraries began scanning, digitizing and indexing millions of books. At the time my last post on this case was published, the total number of books digitized was estimated at 15 million. The 2nd Circuit’s decision puts that number at 20 million today. A group of plaintiffs- eventually settled into a class headed up by the Authors Guild- instituted a copyright infringement action.

The 2nd Circuit found Judge Chin’s class certification to be premature in light of Google’s fair use argument on the merits. The Court wrote that allowing the statutory fair use defense to be affirmatively argued may render some or all of the issues moot, thereby eliminating the need for the costly, complex class action to go forward.

Notable authority on the Google Books saga Professor James Grimmelmann has opined that the wording of the 2nd Circuit’s ruling, though not directly dealing with the fair use argument, suggested that the argument would be compelling. Grimmelmann explains that the normal procedure when the certification of the plaintiff class is itself, in whole or in part, contingent on the merits, the court will usually consider the merits only insofar as they aid in determining if the plaintiff class is appropriate. In this decision however, the 2nd Circuit gave express instructions in its remand to the district court to consider the fair use issue specifically and to its end.

Professor Grimmelmann wrote that this unorthodox, if not pragmatic order may not only be a signal that the 2nd Circuit finds Google’s fair use argument to be meritorious; they may believe it to have a fair chance of success.

I've read a couple interesting breakdowns of Google’s fair use argument and while not all the case law is neatly on their side, the argument is tenable and persuasive; but that’s another post. 

Monday, July 1, 2013

Author Resale rights in Canadian Copyright Law

On May 29th, Liberal MP Scott Simms (Bonavista—Gander—Grand Falls—Windsor) introduced a private members bill, bill c-516, that proposes to modify the Copyright Act to create an “artist resale right” for authors of copyright protected works. 

The resale rights (also known as a “droit de suite”) would allow an author to be remunerated not only for the first purchase of a copy of their work, but for every subsequent resale of that work. The droit du suite came about at the end of the 19th century in France as a response to a case in which the owner of a painting sold it for a hefty sum while the artist who painted it lived in poverty. 

Photo by Ranjith Krishnan

The droit de suite is a theory that runs directly counter to the “first sale doctrine”. This Common Law doctrine dictates that a copyright owner’s right to remuneration is extinguished after the first sale of a copy of a protected work. The first sale doctrine comes from the Common Law principle that restraint on the alienation of tangible property is to be avoided. The doctrine was first cited by the US Supreme Court in Bobbs-Merrill Co. v. Straus (1908) and was later codified in the American Copyright Act of 1909.

Today, the European Union, Australia and the Philippines have resale rights legislation. The State of California also had a resale right law on the books until it was struck down by the U.S. District Court (Central District of California) on May 17, 2012. Judge Jacqueline H. Nguyen found the law to be unconstitutional because it encroached on the Federal power over interstate commerce. This decision is currently being appealed to the 9th Circuit Court of Appeal.

The bill is presently in its first reading before Parliament. It proposes to grant authors the right to capture a 5% royalty in any subsequent sales of a work where the value of the transaction is $500 or more. This resale right is not limited to the first subsequent sale, but to all subsequent sales of the work while the work remains in copyright. The resale right may not be waived by the author and is not transferable. The onus is on the seller of the work to report and pay out the royalty. The bill mandates that royalty collection be carried out by a collective licensing society. 

One interesting feature of the bill is that its provisions only apply to:

- Authors who were Canadian citizens or residents at the time of the sale; and
- Authors in other countries that offer similar resale rights to Canadian authors in their home jurisdictions (namely the EU as mentioned above). 

Though the resale right is not transferable inter vivos, the right is transmissible upon the death of the author. The right passes to the person to whom it was expressly bequeathed; or, failing that, the person to whom the copyright in the work has been bequeathed. 

While the chances of this legislation passing are slim, this initiative represents a potential shift in Canadian copyright policy towards the EU. This proposed change to the Copyright Act is more than likely related to the ongoing negotiations taking place between Canada and the EU on the “Canada-EU Trade Agreement” (CETA) in which the EU is putting pressure on Canada to once again amend its intellectual property laws to come into line with their own. 

Though this iteration of the resale right may not pass, interested parties should keep watch as the negotiations over CETA progress. It is quite possible that a similar amendment may be introduced in the near future; though next time, it may come from the government’s side of the aisle.