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GOVERNMENT ON-LINE
CHECKLIST OF LEGAL ISSUES
Updated as at October 31, 2003
| 11.2 |
Cases |
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11.2.1 |
Hyperlinks |
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11.2.1.1 |
Ticketmaster v. Tickets.com, 2000 U.S. Dist. Lexis 4553
(C.D. Cal. Mar. 27, 2000). ( The Court held that hyperlinking does not itself contravene
copyright law and is not illegal as long as it is clear to whom the linked page belongs.
Furthermore, the fact of simply including terms and conditions on the site does not bind
the user unless there is a positive action on his part). |
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11.2.1.2 |
Imax Corp. v. Showmax, Inc., [2000] F.C.J. No. 69 (QL). Imax claimed,
among other things, that its trademark was infringed by Showmax's web-site, which used framing to
display a picture of a Showmax tehatre. The Federal Court granted an interlocutory injunction on
the basis that the Showmax web-site was likely to cause confusion. |
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11.2.2 |
Web-site |
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11.2.2.1 |
British Columbia Automobile Assn. v. Office and Professional
Employees' International Union, Local 378, 2001 B.C.S.C. 156. (The Union created a website which was similar
to the British Columbia Automobile Assoc.'s website in appearance and used the BCAA's trade-marks in its domain
name and meta tags. The BCAA argued that the Union had infringed on its copyright, committed the tort of passing
off, and caused depreciation of its goodwill in its trade-mark. The Court held that the Union had not committed
passing off because there was no confusion to any member of the public that the site was associated with the BCAA.
It ruled that there was no depreciation of the BCAA's goodwill. The Court also found that the Union's website infringed
on the BCAA's copyright by substantially copying the BCAA's design.) |
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11.2.2.2 |
Pro-C Limited v. Computer City, Inc. (2001-09-11) ONCA C34719. (No trade-mark infringement was found. The defendant's passive web-site could not constitute a "use" in association with wares since no transfer of ownership was possible through the web-site.) |
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11.2.3 |
Change of Medium - Théberge v. Galerie d'Art Petit Champlain, 2002 SCC 34.
(The majority of the Supreme Court of Canada held that an artist's copyright was not infringed when art galleries who had
purchased his posters, transferred the images onto canvas for sale. The Court found that the transfer from one medium to
another was not a "reproduction" because no additional copies were created.) |
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11.2.4 |
Originality - CCH Canadian Ltd. v. Law Society of Upper Canada, [2002] F.C.J. No. 690
(QL) (FCA); leave to appeal granted [2202] S.C.C.A. No. 317 (QL). The Federal Court of Appeal held that publishers have
copyright in their case reports, which were sufficiently original compilations. The Court said that there is no requirement
for "creative spark" or "imagination" in Canadian copyright law for a work to be "original". |
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11.2.5 |
Metatags - Promatek Industries, Ltd., v. Equitrac Corporation, No. 4276, Aug. 13, 2002,
U.S. CA for Seventh Circuit, District of Illinois, amended by Order October 18, 2002. (The Court of Appeals held that trademarks
may appear in metatags only where the use of the trademark is legitimate, and not used in a way calculated to confuse consumers.) |
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11.2.6 |
ISPs -Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2002 FCA 166 (F.C.A.), leave to appeal granted by the Supreme Court of Canada. (The Copyright Board erred in finding that an Internet intermediary who caches material is providing a means necessary for another to communicate it. The operator of a cache is not merely a passive transmitter of data. Liability for copyright infringement, for communicating a work to the public by telecommunication, is attracted.) |
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11.2.7 |
Pop-up ads - U-Haul International v. WhenU.com, US Dist. LEXIS 15710. (On a motion for summary judgment the Court found that the Defendant's pop-up ads did not infringe copyright or violate trademark rights of the Plaintiff's web-site.) |
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| 12. Other |
| 12.1 |
Jurisdiction
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Canadian |
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12.1.1 |
Braintech v. Kostiuk (1999), 171
D.L.R. (4th) 46, B.C.C.A., leave to appeal denied. See 7.2.1 above. |
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12.1.2 |
Island Telecom Inc. (Re), [2000] CIRBD No. 12, and article, "Board Finds Employees of High Tech Company are Federally Regulated" |
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12.1.3 |
Reference Re Earth future Lottery (P.E.I.), [2002] P.E.I.J. No. 34, 2002 PESCAD 8. (Appeal to Supreme Court of Canada dismissed, substantially for reasons of Chief Justice of PEI, [2003] S.C.J. No. 9 (Q.L.)) (The Appeal Division of the Supreme Court of PEI found that a charitable lottery conducted through the Internet was prohibited by the Criminal Code. While the Code permitted charitable lotteries conducted within a province, a lottery operated via the Internet that was aimed at a global market, could not be said to be conducted in the province. For the purposes of criminal law, a trans-border transaction would take place every time an offer is made over the internet to sell a ticket to someone outside of PEI, and every time someone outside of PEI offers to purchase one. The Court declined to answer questions as to the place of the contracts, finding that the rules of civil contract law were not determinative in a criminal context.) |
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12.1.4 |
R. c. Waldie-Reid, [2002] J.Q. no 1167, Cour du Québec (Chambre criminelle et pénale). (The Court held that Québec French language laws applied to a web-site, since the commercial publicity was situate in Québec.) |
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12.1.5 |
Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2002 FCA 166 (F.C.A.), leave to appeal granted by the Supreme Court of Canada. (The location of the host server is not the only factor in determining jurisdiction; the location of the end-user is an important factor in determining if the Internet connection has a real and substantial connection with Canada.). |
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U.S. and other |
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12.1.6 |
Virtuality L.L.C. and NOW corp. v. Bata Ltd, civil no. h-00-3054, District of Maryland, (April 2001) The Court ruled that consent to jurisdiction of a court to challenge an arbitration decision under ICANN's UDRP is not consent for the purpose of other civil claims. Virtuality could only challenge the arbitration panel's decision and not any other claims.) |
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12.1.7 |
FleetBoston Financial Corp. v. Fleetbostonfinancial.comat 2001 U.S. Dist. LEXIS 4797. (The Anticybersquatting Consumer Protection Act does not provide in rem jurisdiction except in the judicial district in which the domain name registry or other domain name authority is located.) |
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12.1.8 |
Ty Inc. v. Baby Me Inc., (N.D. Ill. 2001), Case No. 00 C 6016. (The Illinois District Court found that it had jurisdiction over the defendant, a Hawaiian company, since the defendant had targeted its web-site in order to reach individuals outside Hawaii and had sold its products in Illinois.) |
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12.1.9 |
ALS Scan, Inc. v. Digital Service ConsultantsU.S. Court of Appeals for the Fourth Circuit, No. 01-1812 (June 14, 2002), (The U.S. Supreme Court declined to hear arguments.) (The Court of Appeals held that a Georgia-based Internet service-provider, that hosted a web-site which published photographs on the Internet in violation of a Maryland corporation's copyright, was not subject to Maryland jurisdiction. "Adopting and adapting the Zippo model, we conclude that a State may, ...exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State's courts.) |
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12.1.10 |
Young v. New Haven Advocate, U.S. Court of Appeals for the Fourth circuit, Dec. 13, 2002. |
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12.1.11 |
Zippo Manufacturing Company v. Zippo Dotcom Inc., 952 F.Supp. 1119 (W.D.Pa. 1997). See 7.2.6 above. |
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12.1.12 |
U.S. Satellite Broadcasting Co, Inc. v. WIC Premium Television Ltd., 2000 ABCA 233, May 17, 2000 and June 9, 2000 |
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12.1.13 |
Dow Jones & Company Inc. v. Gutnick, [2002] HCA 56 (10 December 2002), High Court of Australia. See 12.3.3. |
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12.1.14 |
Australian Competition and Consumer Commission v. Chen, [2003] FCA 897 (27 August 2003). (The Australian court granted an injunction against an American resident, operating from outside Australia, whose website imitated that of the Sydney Operahouse). |
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12.1.15 |
Gator.com Corp. v. L.L. Bean, No.02-15035 (9th Cir., September 2, 2003) (United States Court of Appeals). (L.L. Bean's mail-order and internet-based commerce, through its "highly interactive and very extensive" virtual store, led to a finding of jurisdiction in California.) |
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