McCarthy Tétrault Co-Counsel: Technology Law Quarterly Volume 3, Issue 3 July – September 2007 Co-Counsel Co-Counsel: Technology Law Quarterly Volume 3, Issue 3 Welcome to Volume 3, Issue 3 of McCarthy Tétrault Co-Counsel: Technology Law Quarterly. In this issue of the TLQ, we highlight a recent Supreme Court of Canada decision on the enforceability of mandatory arbitration clauses in consumer contracts, including in online terms and conditions. Businesses that sell or make goods and services available to consumers in Canada, including over the Internet, and particularly Ontario and Québec, will want to read this article. On the software licensing front, we begin a four-part series on the Open Source Initiative, licensing models of intellectual property and the copyleft regime under the GNU General Public License. On the intellectual property side, our copyright lawyers analyze the important Supreme Court of Canada Euro-Excellence v. Kraft Canada case. Privacy continues to be a hot topic, and we’ve included two interesting pieces in the area. The first discusses the recently released privacy breach guidelines. The Privacy Commissioner of Canada has prepared guidelines on how organizations subject to PIPEDA should respond to privacy breaches. Our privacy experts address the four key steps to consider when responding to a breach or suspected breach, including the contentious notification provision. The second article speaks to the OECD recommendation on cross-border privacy enforcement, which updates the OECD’s guidelines on privacy and trans-border data flows. Our lawyers examine the Canada-specific concerns and provide their insight on the key points of the recommendation. Lawyers from our communications practice group continue our four-part discussion on regulatory matters affecting VoIP technology with a detailed overview of issues encountered in developing country markets, particularly where voice telephone service competition is limited. In addition, this issue of the TLQ adds a new four-part series on the effect of new technologies on Canadian cultural media products, with particular emphasis on smaller Canadian titles. With audiences becoming more and more fragmented among the variety of media choices and platforms, and the growing availability of on-demand programming, the question is, “What happens to smaller Canadian content productions?” Continuing with our new venture of providing clients with valuable knowledge on clean technology initiatives, we’ve included three engaging articles. The first deals with how important clean technology has and continues to become, due in many ways to the increased urbanization of the world’s population. Investment in clean technology is expected to skyrocket and Canadian businesses and organizations can play an important role in creating public policy. They can also participate in and collaborate on efforts to implement clean tech initiatives. The second article deals with a very important trend in clean tech: the impact of climate change. Leading US and European institutional investors have filed a petition with the Securities and Exchange Commission to force publicly traded companies to disclose their financial risks from climate change. In addition, the Canadian Council of CEOs has released a declaration asking the government to engage with businesses to shape public policy with the goal of increasing clean tech opportunities. These and many other key topics are discussed in this issue of the TLQ. Browse through the publication using the table of contents, which contains ‘clickable’ links to articles. As well, all the articles can be found on our website. You can search our publications database and find additional informative articles on many subjects. If you would prefer to receive a paper copy of the TLQ in the future or wish to change your subscription information, please contact me at the link below. For readers interested in litigation issues, we are pleased to announce the launch of McCarthy Tétrault Co-Counsel: Litigation, which has been created to provide a picture of developments in litigation and, most importantly, the implications for your organization. McCarthy Tétrault is proud of its position as a leader in all areas of law. The Canadian Legal Lexpert Directory 2007 has recognized McCarthy Tétrault for having the premier technology law practice in the country. The Chambers Global: Guide to the World’s Top Lawyers 2007 has confirmed McCarthy’s top ranking in Canada for technology, media and telecom (TMT). Co-Counsel: Technology Law Quarterly is one more way we are working hard to retain that position of leadership. Heather J. Ritchie Editor-in-chief October 2007 Co-Counsel: Technology Law Quarterly Volume 3, Issue 3 Table of Contents Internet/E-World .................................................................................. 1 E-COMMERCE .............................................................................................. 1 Québec: Arbitration Clauses, Consumer Contracts and Class Proceeding: The Canadian Approach ..........................................................................................1 SOFTWARE LICENSING .................................................................................... 3 International: Open Source Software and Open Content Licensing: From Copyright to Copyleft — Part I............................................................................3 DOMAIN NAMES ............................................................................................ 8 Canada: CIRA Panel Transfers Protest Site to Targeted Company.........................................8 Technology Finance .............................................................................11 TECH-RELATED FINANCE ............................................................................... 11 North America: Taking Your Tech Company Public ........................................................ 11 Intellectual Property ............................................................................15 COPYRIGHT ............................................................................................... 15 Canada: Euro-Excellence v. Kraft Canada Inc. — Case Comment ....................................... 15 Privacy .............................................................................................17 CASES/LEGAL DEVELOPMENTS ......................................................................... 17 Canada: Privacy Commissioner of Canada Releases Privacy Breach Guidelines ....................... 17 International: OECD Issues Recommendation on Cross-Border Privacy Enforcement................. 19 Co-Counsel: Technology Law Quarterly Volume 3, Issue 3 Communications ..................................................................................23 CASES/LEGAL DEVELOPMENTS ......................................................................... 23 International: Voice over IP Services — Regulatory Perspectives from the Developed and Developing Worlds — Part III ...................... 23 Canada: Canadian Cultural Product and the Long Tail: The New Economics of Production and Distribution in Canada — Part I ................................ 27 Clean Technology ................................................................................33 CASES/LEGAL DEVELOPMENTS ......................................................................... 33 Canada: Another Big New Tech Wave ........................................................................ 33 US: 1.5 Trillion Reasons Why Climate Change Impacts Are Material Disclosure ....................... 36 Canada: Canadian CEO Council Consensus: Climate Change Is Top Issue............................... 39 Co-Counsel: Technology Law Quarterly Volume 3, Issue 3 Internet/E-World E-COMMERCE circumvented by bringing an action in the form of a class action. Québec: Arbitration Clauses, Consumer While the judgment was based on Contracts and Class Proceeding: Québec law, the principles adopted by the The Canadian Approach Supreme Court of Canada should be equally applicable to class actions in all provinces The limited Canadian case law dealing with the with class action legislation, as well as to enforceability of mandatory arbitration clauses class actions in the Federal Court. Each of in consumer contracts has been inconsistent, these jurisdictions has legislation that, with with courts in Ontario, British Columbia and very limited exceptions, requires a court Québec reaching somewhat different to grant a stay of an action if the claim is conclusions. For potential litigants, these subject to an arbitration clause and the decisions created a state of uncertainty defendant promptly requests that the regarding what recourse could be available if action be stayed in favour of arbitration. a dispute arises from a consumer contract that contains an arbitration clause. One of the chief A number of non-Québec decisions were avenues of recourse is a class proceeding. rendered before the Supreme Court of McCarthy Tétrault Notes: Canada’s decisions in Dell and Rogers in which courts held, in effect, that a class This uncertainty was addressed by the action trumped an arbitration clause. On Supreme Court of Canada on Friday, July the basis of Dell and Rogers, these cases 13, 2007, an unlucky day for the plaintiffs now appear to have been wrongly decided. in two Québec class actions: Dell Computer Corp. v. Union des consommateurs and Importantly, before Dell and Rogers were Rogers Wireless Inc. v. Muroff. It may also