Friday, February 03, 2012

Supreme Court of Canada on Access to Information, meaning of "trade secret" - for IP and copyright watchers

The Supreme Court of Canada (“SCC”) has just issued a very important decision on access to information. It involves a request under the Access to Information Act ("ATI") by one pharmaceutical company regarding the new drug submission of a competitor.  Bottom line – the Court comes down in favour of more rather than less disclosure while clarifying and preserving principles of fairness to ensure that disclosure is not made wrongly or by mistake. The case is Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3
Of interest to IP watchers:

·         There is an important and substantial discussion of the meaning of “trade secret”, which is a critical but undefined term in the ATI legislation. This includes a discussion of the “common law” origin of the concept and a rejection of an attempt to rely on international treaty law in the form of NAFTA and TRIPS to construe the meaning of “trade secret”.
·         This is the first opinion by Justice Cromwell with major IP implications.
·         There is a dissent penned by Justice Deschamps (joined by Justices Abella and Rothstein) focussed on “standard of review”.
·         This is a 151 page judgment with a substantial dissent citing a very large number of cases and involving what must surely have been a very substantial record. The case was argued on November 12, 2010 and the judgment is now here, about 15 months later – more than the usual six or seven months during which the Court reserves judgment.

The following questions may be of particular interest to copyright watchers of the “pentalogy” argued on December 6th and 7th, 2011:

·         Does the reasoning about the definition of “trade secret”, a key but undefined term in the ATI legislation and a term that has its origins and is construed in light of the common law, suggest how the Court may address “fair dealing”, also a key and undefined term in the Copyright Act and also a term that has its origins in common law, as Prof. Ariel Katz and I argued in the K-12 case in the pentalogy on behalf of the U. of T. Centre for Innovation Law and Policy?  We also addressed the meaning of “research” and “private study”, other undefined terms, in light of the common law.
·         Does the discussion about the non-applicability of international treaty law suggest how the Court will address the arguments on behalf of some major content owners about the “three-step test” that were put forward  in the two fair dealing cases  in the SCC pentalogy (i.e. the K-12 and SOCAN “previews” cases)?
·         Will the “sempiternal question”, as Justice Létorneau calls it, of “standard of review” be important in the “pentalogy”?  The Court is still clearly quite concerned about it and the issue has clearly not gone away. And with respect, the Federal Court of Appeal has arguably not been consistent on this issue, even in dealing with cases coming from the Copyright Board cases, a point raised in at least three of the pentalogy cases.


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