Unauthorized Photographs: The Rights Of The People We Capture
By Deborah Meltzer, June 9th, 2020
We live in the digital age of smartphones and social media, where the large scale capturing and sharing of photographs has become a global run-of-the-mill form of communication and expression. The rights in these photographs are typically subject to the licensing schemes of the various social media platforms to which they are posted. This is because the authors of these works, the photographers, own copyright in the images they create. However, on the other side of the lens, what frequently gets overlooked are the rights of the people in the photographs as opposed to the ones taking it. This is not an unfamiliar concept. For instance, the Duke and Duchess of Sussex have recently made headlines regarding the unauthorized use of their image by various media outlets.
When it comes to celebrities and other public figures, the laws across Canada have established various personality rights to protect these individuals from the exploitation of their image or likeness. That said, the law is less clear as to the particular rights of private citizens who are the subject of an image to which they did not consent. In Canada, the use of an individual’s image can be unlawful where:
(a) an individual’s name, reputation, or likeness is commercially exploited; or
(b) an individual’s right to privacy has been violated
These wrongs are actionable under the tort of appropriation of personality and provincial privacy torts.
Commercial exploitation of an image or likeness
The tort of appropriation of personality most commonly protects the right of a celebrity or other public figure against the use of their image or likeness for a commercial purpose without their consent. This stems from the idea that a person should have the exclusive right to market and/or capitalize on their personality and image. This is of course subject to certain exceptions (e.g., biographies, plays, books, etc.) where the purpose is to provide insight into that individual (see for example Gould Estate v Stoddard Publishing, [1998] O.J. No. 1894 (ONCA)).
The case law has established that to succeed in the tort of appropriation of personality, the following criteria must be met:
1. The use of the image or likeness must be for a commercial purpose (see Athans v Canadian Adventure Camps Ltd. [1977] O.J. No. 2417 (Ontario Supreme Court); and
2. The individual (plaintiff) must be clearly and primarily captured in the image (see Krouse v Chrysler Canada Ltd. et al., 13 C.P.R. (2d) 28 (1973 ONCA))
While this tort is technically available to non-famous people, it is obviously less likely that an image of a person without notoriety would be commercially exploited. That said, with respect to individuals with professional designations, their professional reputation is protected under the right of personality. For instance, in Hay v Platinum Equities Inc. 2012 ABQB 204, an accountant’s signature was unlawfully used to secure financing for a loan and the Court held that professional reputation for commercial exploitation is akin to celebrity name and likeness.
Privacy rights
In Canada, individuals have the right to a reasonable expectation of privacy. There is a distinction between “personality” – the exclusive right to use your likeness for commercial gain, and “privacy” – the rights of seclusion and the protection of personal information. These concepts, although often intertwined, are legally distinct; a breach of privacy causes personal harm while an appropriation of personality causes commercial harm.
With respect to privacy rights, in Jones v Tsige, 2012 ONCA 32 (“Tsige”), the Ontario Court of Appeal recognized that the tort of “intrusion upon seclusion” exists in Ontario. In that case, the defendant had used her access as a bank employee to view the plaintiff’s banking information over 150 times over a 4-year period. The required elements to satisfy the tort were defined as follows:
1. The defendant’s conduct must have been intentional (this includes recklessness);
2. There must be an “intrusion” - the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
3. The invasion must be highly offensive to a reasonable person (i.e., causing distress, humiliation, or anguish).
Additionally, the Court stressed that proof of harm to a recognized economic interest is not an element of the cause of action. This means that no actual damage or commercial exploitation is required in establishing intrusion upon seclusion. It is sufficient that the privacy of the plaintiff was egregiously violated.
In relation to control over a person’s image, over 20 years ago in Aubry c. Vice Versa Publishing Inc. [1998] 1 SCR 591 (“Aubry”), the Supreme Court of Canada recognized that the right to one’s own image falls within the right to privacy under section 5 of the Quebec Charter of Human Rights and Freedoms. In this case, the defendant published a picture in a magazine of a woman in a public space, with no defamatory implications in the context of the image or magazine content. However, since the individual was clearly identifiable and her permission was not sought prior to publication, a majority on the Court concluded that the freedom of artistic expression did not justify the infringement of the right to privacy.
Although the civil remedy in Aubry is particular to Quebec in light of the broad scope of the Quebec Charter, the Supreme Court’s determination is nevertheless important because it exemplified that the protection of a person’s image forms part of their personal privacy interest.
In Ontario, in Jane Doe 72511 v Morgan, 2018 ONSC 6607, relying on the reasoning in Tsige, the Ontario Superior Court of Justice adopted the tort of public disclosure of private facts. In that case, the defendant was the ex-boyfriend of the plaintiff, who posted unauthorized intimate/nude photos and videos of the plaintiff on a public website that was viewed over 60,000 times. Paramount to this finding was that the act of publication was highly offensive and not of legitimate concern to the public.
Conclusion
As referenced in Tsige, legal scholars have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”. The exponential growth of social media platforms and smartphone usage is generating unprecedented privacy concerns which are outpacing current statutory and common law privacy rights. Until Canadian and provincial laws catch-up, photographers and social media users should understand that what they capture, more importantly who they capture, may, one way or another, intrude on someone’s rights. Regardless, when snapping a photo, photographers should exercise best practice and ask for consent of the people they capture.
For more information please contact:
Deborah Meltzer, Associate Lawyer
T: 613.801.1077
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Carly Horvath, Summer Student
T: 613.801.1063
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This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.
Tips For Startups: How To Make Sure Your IP Is Working For You
By David Fraser, July 7th, 2020
Two things that startups never seem to have enough of are: time and money. It can be difficult to carve out enough of both to properly identify, manage, and protect your intellectual property (IP). Your IP, including your patents, industrial designs and trademarks, is at the center of your company’s value. As a result, protecting your IP is crucial and will give your company the boost it needs to succeed in a competitive marketplace. Knowing your IP is essential to identifying your competitive advantage, focusing your R&D efforts, and creating an innovative company culture. IP should be the main component of your business plan and your pitch to customers and investors as it is normally your main selling point.
As a startup, you already have passion for your business, and you are convinced that you will be successful. Now, in order to apply your passion to the right strategy, you should ask yourself a series of questions to help pinpoint and identify what IP you currently possess and if it is valuable:
- What you are doing that is new? What new features have you added, or improvements have you made lately?
- What makes your product better, or faster, or more accurate, or more efficient than your competitor’s products?
- What features of your product do customers value the most when making purchasing decisions?
- Is your company name or logo unique in your industry? Did you check to make sure no one else has it registered as a trademark?
- Have you designed a new product with a distinctive name, product shape, physical design or packaging?
- Once you choose your name and logo, have you been consistently using it on your products, packaging, marketing materials, your website and your social media? Document the date you first used it!
One way to answer these questions is to formally evaluate your IP, you could use an IP law firm to do it, which is always recommended but you could also try to figure it out yourself by doing some market and competitor research.
Ideas born from your IP evaluation can form the basis for the future direction of your R&D, which will eventually turn into more patents, industrial designs, and trademarks that you will want to protect and leverage going forward.
Now that you have defined your “secret sauce” you can use it in several ways:
- File a patent to demonstrate that you have a technological advantage important enough that you are willing to invest in a patent to protect it.
- Gain credibility with financial investors and VCs. Include it in your pitch and highlight it in your business plan.
- Get your sales and marketing people to highlight the IP incorporated into your products when interacting with customers.
- Use your IP to develop and foster a culture of innovation in your company. Celebrate inventors to encourage the generation of new ideas.
- Leverage your IP to form strategic partnerships and alliances to scale up your business or license out your IP for royalty revenue.
- Build and protect your brand by consistently monitoring your trademarks to make sure no competitors are using them, and cause customers to mistake a competitor's product for yours.
Your IP is already there. However, you need to take the time to identify it, protect it, then learn how to artfully articulate it to investors and customers to get the most out of it.
For more information please contact:
David Fraser, Patent Agent
T: 613.801.0169
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This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.
Almost 2 Years Post-Cannabis Legalization – A Comparative View of the Budding Industry Across Canada
By Osman Ismaili and Carl Farah, August 4th, 2020
For budding cannabis enterprises in Canada, navigating the legal and regulatory regimes pose unique challenges. This article will briefly discuss the federal cannabis framework and delve into the various provincial frameworks adopted across Canada for the recreational sale of cannabis.
The Cannabis Act (the “Act”) came into force on October 17, 2018, and legalized the sale, distribution and consumption of recreational cannabis across Canada. Exactly one year later, the second wave of cannabis legalization introduced Cannabis 2.0 products to the marketplace. Cannabis 2.0 products include edibles, topicals, vape pens and beverages. The Act gives the Canadian federal government the power to regulate the cultivation, processing and sale tracking of cannabis. It sets the minimum age of consumption at 18 years old and allows for the possession of up to 30 g of cannabis per individual. In concert with the provinces, the federal government has the authority to regulate road safety, impaired driving, regulatory compliance and taxation. The federal government is also responsible for establishing regulations surrounding the branding, labelling and marketing of cannabis.
In response to the Act, each province has also adopted its own framework for recreational cannabis. The provinces are permitted to strengthen, but not weaken, the federal legislation and are responsible for regulating the age of consumption, retail sales, possession limits, advertisements and home cultivation, amongst other aspects. Here, we present an overview of the regulatory schemes for recreational cannabis of each province.
The Maritimes
St. John’s, NL will famously be remembered as the location of the first legal sale of recreational cannabis in Canada. The Maritime Provinces have mostly adopted a legislative monopoly for the retail of recreational cannabis with the exception of Newfoundland and Labrador, which has chosen to implement a mixture of the public and private models. New Brunswick has announced that due to disappointing sales numbers, it will accept takeover bids for its retail operations.[1] The province hopes this switch to private retail will energize the private sector and maximize benefits for taxpayers. To order cannabis online in Nova Scotia, consumers must first visit a brick-and-mortar store and obtain an online access code by showing valid proof of age. This age verification measure is intended to prevent minors from browsing the website. In light of the recent illnesses associated with vaping, Nova Scotia has banned the sale of flavored cannabis vaping products.[2] Newfoundland and Labrador has taken a stricter approach to cannabis vaping products by banning their sale entirely.[3]
The Territories
Both the Northwest Territories and Nunavut have implemented a legislative monopoly of the retail sale of recreational cannabis while the Yukon has opted for a mix of the public and private model. The Yukon is in the process of selling its provincially owned physical stores to the private sector but plans to retain online store.[4] The Nunavut crown corporation operates entirely from within the provincial government via a special revolving fund that sees its profits transferred back to the government at the end of each year. This approach ensures that the profits of legalization are directly put to work for the taxpayers. Interestingly, there are no physical stores in Nunavut and customers must rely on two territory approved agents for online purchases.
Ontario
Ontario had initially planned to implement a government monopoly, which would have established online and physical points-of-sale. This plan was abandoned, and it was decided to instead let the private sector run the brick-and-motor stores. These last-minute changes meant that stores were not ready by legalization and customers had to rely exclusively on the online store. The Alcohol and Gaming Commission of Ontario (AGCO) is the regulator in charge of licensing private retailers throughout the province. In response to a slow rollout of retail stores, the province has cancelled its lottery system for awarding licenses and will instead open up applications and issue up to 20 store authorizations per month. Private retailers must apply and obtain a Retail Operator License and a Retail Store Authorization from the AGCO. The Ontario Cannabis Store, which runs the online store, is the exclusive wholesaler to private retailers. As of this article, roughly 500 applications have been submitted to the AGCO.
Quebec
Quebec decided to implement a legislated monopoly on the sale of recreational cannabis. The Cannabis Regulation Act explicitly authorizes the Société Québécoise du cannabis (SQDC), a subsidiary of the Société des alcools du Québec (SAQ), as the sole entity in charge of regulating recreational cannabis sales. It was decided to increase the minimum age of consumption to 21, the highest in the country.[5] Quebec has also banned the home cultivation of cannabis plants for personal use. To protect children from the risk of inadvertent consumption, the Quebec government has decided to ban cannabis chocolates, sweets, and desserts.[6] In the face of a dramatic increase in vaping-associated lung illnesses south of the border, Quebec has banned cannabis vaping products.[7]
The Prairies
Both Manitoba and Saskatchewan have adopted a private model for the recreational sale of cannabis while Alberta opted for a public and private model. To the surprise of many, Alberta has become the poster child of a successful recreational cannabis rollout; boasting nearly 500 licensed retailers.[8] Alberta is also home to Aurora Cannabis which owns and operates an 800,000 square foot growing facility, one of the largest in Canada.[9] Edmonton will soon be home to the largest manufacturing plant in Canada for the production of cannabis gummies.[10] Saskatchewan and Ontario are currently the only two provinces that allow private retailers to deliver cannabis directly to consumers.
British Columbia
British Columbia (BC) has adopted a public and private model for the sale of recreational cannabis whereby the provincially run Crown corporation operates online and physical points of sale and the licensed private retailers operate physical stores. Interestingly, British Columbia was allegedly, Canada’s largest illicit market of recreational cannabis prior to legalization. Commentators who were hoping that BC’s large illicit market would translate into a strong retail presence were surprised when BC posted one of the worst sales records amongst the provinces one year into legalization.[11] Indeed, it appears that a substantial portion of the current dispensaries throughout the province operate without a license.[12] In order to protect the youth from vaping, the province has recently passed new regulations which prohibit nicotine-cannabis vaping products.[13]
Conclusion
Table 1 below provides a quick glance at the differences in the regulatory frameworks adopted by each province. It is still too early to tell which provinces will come out on top and which will have to tweak their regulatory frameworks to reflect emerging trends and public policy. Market stabilization could take many years and while the illicit market will not disappear overnight, it is important that federal and provincial governments apply pressure to squeeze it out. Moving forward, it will be important for the provinces to reflect on whether their chosen regulatory frameworks are actually achieving their intended objectives. Navigating these regulatory regimes can be daunting. Instead of taking this journey alone, we recommend you contact one of the legal professionals at MBM. Interested businesses should also check out our recent article that details how to protect your cannabis related trademark.
For more information please contact:
Osman Ismaili, Patent Associate
T: 613.801.1054
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T: 613.801.1072
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[3] https://financialpost.com/cannabis/cannabis-health/newfoundland-labrador-bans-sales-of-cannabis-vapes
[7] https://financialpost.com/cannabis/cannabis-health/newfoundland-labrador-bans-sales-of-cannabis-vapes
[10] https://edmontonjournal.com/news/local-news/edmonton-set-to-be-home-to-largest-cannabis-gummy-facility-in-canada
Green Tech Patents - How Canadian Government is Helping the Process
By Osman Ismaili, July 21, 2020
With the world beginning to reopen following the COVID-19 pandemic, many of us may be feeling a new mindfulness when it comes to the environment and the effects that our civilization has had on it.
Similarly, with many inventors focusing on technologies that either help resolve or mitigate environmental impacts, or conserve the natural environment and resources that are present, perhaps it is a good time to turn our attention towards the intersection of patent rights and the environment.
Several jurisdictions around the world have implemented special legislative provisions that incentivize the patenting of inventions that are geared to help, or preserve, the natural environment. In this article, we’ll take a look at how Canada has implemented such provisions.
Canada’s Patent Rules provide a mechanism for advancing examination for “green technologies”. Examination is the process by which an application for a patent is scrutinized by an Examiner at a patent office, in order to determine whether the application meets the necessary criteria to issue as a patent. The examination process can typically take 2 to 5 years. In select cases it can be shorter, while in others much longer. Therefore, being able to take advantage of an advanced examination process can allow for inventors or companies to possess the enforceable right much sooner.
Rule 84 (1) of the Patent Rules states:
In respect of an application for a patent that is open to public inspection at the Patent Office, the Commissioner must advance out of its routine order the examination of the application on the request of
(b) the applicant, if the applicant files with the Commissioner a statement indicating that the application relates to technology the commercialization of which would help to resolve or mitigate environmental impacts or to conserve the natural environment or natural resources.
According to the Organization for Economic Co-operation and Development (OECD), Canada saw a 16% increase in the number of environmental technology patents filed between the years 2000 and 2011. While this increase is definitely good news, Canada is still lagging far behind many other countries, such as the UK, which experienced an increase of 63%; Mexico, which experienced an increase of 149%; Brazil, which experienced an increase of 185%; and China, which experienced an increase of a whopping 1040%, all during the same timeframe.
The Canadian Intellectual Property Office (CIPO) states that in order to take advantage of the advanced examination process, applicants need to submit a letter that includes:
1. a request for an advanced examination;
2. a statement indicating that the application relates to technology that if commercialized would help to resolve or mitigate environmental impacts or to conserve the natural environment or natural resources; and
3. an early laid open date (only if the request is made before the application has been opened to public inspection, usually 18 months after the filing date).
Typically, once the request for advanced examination of a green technology is processed, the first office action can be expected within 3 months. It is important to remember however, that if time extensions to reply are requested or if the prosecution process is abandoned, the application will be removed from the expedited process and returned to the regular process.
If you have created or invented something relating to the environment or green technologies which you feel may be patentable, please feel free to reach out to MBM for a free consultation.
For more information please contact:
Osman Ismaili, Patent Associate
T: 613.801.1054
E:
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This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.
