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LAWS3501 Final Exam

QuestionAnswer
What is the distinction between Confidential Information and Trade Secrets? There is no distinction between confidential information and trade secrets. Trade secrets generally deal with technical knowledge (recipes, formulas, etc...) and confidential information (customer lists, sales charts, etc...)
What protects Confidential Information and Trade Secrets? No unified piece of legislation to protect them. They rely on tortes.
Why would you use confidential information instead of patent protection? Patents require complete disclosure in exchange for twenty years protection. If the company thinks that no one will be able to duplicate it on their own, after twenty years they may be able to keep a secret.
What is the test to determine secrecy? 1. the extent to which the info is known outside the business 2. the extent to which the info is known by employees and others in the business 3. the extent of the measures taken to ensure the owners protect the information
What are breach of confidence actions? 1. Contract 2. General Breach of Confidence 3. Fiduciary Duty
What is an example of an express contracts in terms of confidence requirements? non-disclosure agreements
What is a factor that determines an implied contract in terms of confidence requirements? the nature of the communication (tell the person to keep your secret)
What are the factors determining a general breach of confidence? 1. info must necessarily have a quality of confidence about it 2. info must be imparted in circumstances importing the obligation of confidence 3. there must be an unauthorized use of the info to the party communicating it
What factors determine a fiduciary duty? 1. the fiduciary has a scope for the exercise of discretion or power 2. the power can be used to affect the beneficiary's legal/practical interests 3. beneficiary is necessarily vulnerable to or at the mercy of the fiduciary power
What is bargain theory? A patent provides exclusive rights over an invention for 20 years in exchange for full disclosure of the invention
What are the two parts of a patent application? 1) Disclosure: a detailed description of the invention that should enable someone skilled in the field to make it 2) Claims: what you want to protect you have to specify - you can only claim the inventive pieces
What is patent-able subject matter? process, manufacturing, machine, compositions of matter, and any improvements
What is not patent-able? computer programs, medical treatment methods, higher life forms, printed materials, human conduct or mental steps
What fulfills the standard of novelty in Canada? Patents need to be filed by the person who made the invention within a year of announcing it
What is the standard of novelty in the EU? absolute novelty
What are the two factors that create anticipation? 1) prior disclosure 2) enablement
What satisfies the utility requirement in Canada? The invention must be able to do what you claim it does
How can utility be determined? 1. demonstration 2. sound prediction
How can sound prediction be determined? 1. factual prediction 2. articulate sound line of reasoning 3. proper disclosure
How do you determine that something is non-obvious? 1. Identify a person skilled in the art 2. what step in the process is non-obvious "inventive concept of the claim in question" 3. bearing in mind what we know, was it obvious for the person to try and invent this thing?
What is e-commerce? An e-commerce transaction is the buying or selling of goods or services over a computer network
How do e-documents fulfill the requirement to be in writing? Satisfied by information in electronic form if the information is accessible so as to be usable for subsequent reference
How does e-commerce fulfill the requirement of a signature? Satisfied by an electronic signature as long as it can be used to identify the person and to link the e-signature to the relevant document
How do e-documents fulfill the requirement of originality? Satisfied by the provision or retention of an electronic document if its integrity is consistent through its presentation and retention and the document can be retained by the person it was given to
How does e-commerce fulfill the retention requirement? Satisfied when the person presenting the document cannot stop you from printing or storing the document by the recipient. If the document provides times, dates, etc... this information must also be retained
What does the Uniform Electronic Commerce Act deal with? 1. Defines electronic documents and electronic signatures 2. application (what is excluded) 3. legal recognition (docs cannot be denied legal effect simply because they are electronic) 4. use not mandatory 5. How to meet requirements
What is PIPEDA? Personal Information Protection and Electronic Documents Act
What are electronic agents? Computer programs that function to complete transactions and create contracts
What are the enforce-ability requirements of contracts created with electronic agents? 1. Agent failed to provide the person with an ability to correct the error 2. the person notified the company of the problem as soon as possible 3. the person followed the other person's instructions to fix it 4. person did not receive benefit from error
What is a sending presumption? an e-doc is considered 'sent' once it enters an info system outside the control of the originator or if the originator are in the same system, when the receive becomes capable of retrieving and processing it
What is a click-wrap agreement? when you check the box that says 'I accept'
What is a browse-wrap agreement? when the terms and conditions are found in an external link
What are the four software freedoms? 0. freedom to run the program 1. freedom to study and know how it works/make changes to it 2. freedom to distribute it to help your neighbour 3. Freedom to distribute your modified version to other
What are the OECD Guidelines? 1. collection limitations principle 2. data quality principle 3. purpose specification principle 4. use limitation principle 5. openness principle 6. individual participation principle 7. accountability principle
What are the sections of the charter relevant to privacy? s.8 unreasonable search and seizure s.7 right to life, liberty, and security of the person
What is the privacy act? Federal legislation (1985) and applies to the federal public sector. Extends the protection Canadians have over their information (right to access, right to correct)
What are PIPEDA's 10 principles of fair information practices? 1. accountability 2. identify purpose 3. consent 4. limiting collection 5. limiting use, disclosure, and reflection 6. accuracy 7. safe-guards 8. openness 9. individual access 10. challenging compliance
What are the 5 rights associated with PIPEDA? 1. right to consent 2. right to access 3. right to correct 4. right to file complaint 5. right to pursue court proceedings
When can data be collected without consent? 1. when it is in the person's interest and it is impossible to get consent (paramedics) 2. journalistic, artistic, and literary purposes
When can data be disclosed without consent? 1. court order 2. collect debt
When can data be used without consent? 1. helpful to enforce the law 2. emergency 3. statistics 4. publicly available info
What are the steps to determine the misappropriation of personality? 1. exploitation of plaintiffs personality for commercial purposes 2. the person must be identifiable 3. must suggest the plaintiff endorsed the activity 4. damages
What is the test for intrusion upon seclusion? 1. the defendants conduct must be intentional (including reckless behaviour) 2. the defendant must have invaded, without lawful justification,the plaintiffs private affairs or concerns 3. a reasonable person would regard the invasion as highly offensive
What does the privacy commissioner do? The privacy commissioner oversees compliance to the privacy act and to PIPEDA (reports directly to the privacy commissioner)
What types of decisions can the privacy commissioner issue? 1. no jurisdiction 2. decline to investigate 3. discontinued (self-resolved) 4. report well-founded 5. report not-well-founded
What types of remedies are available? 1. tell the organization to change its practices 2. publish the actions taken to correct the practices 3. award damages
What are some examples of things that can be reasonably expected to be private? browser history and computer
What is privilege? an evidence rule, in certain circumstances the law cannot require evidence to be presented because it is protected by attorney-client privilege etc..
Why do we need IP addresses? Internet protocols are unique identifiers for your computer and the internet that locate the websites you are trying to find
What are domain names? Every website has an IP address and when it is translated into words it becomes a domain name
What are the levels of domain names? 1. Top level domains (.ca) 2. Second level domains (google.ca) 3. Third level/Lower level domains (mail.google.ca)
What are the types of domain names? 1. generic top level domains (.com) 2. country code top level domains (.ca) 3. Internationalized top level domains (ايران.)
Why are domain names important? 1. valuable to their owners 2. consumer protection
What rights do you get when you register a domain name? 1. to use it 2. to transfer it or allow others to use it 3. your domain name cannot violate a 3rd party (it is your responsibility to ensure you don't infringe not the registrar)
What is cyber-squatting? If someone registers the domain name of an organization for the sole purpose of selling it later it is cyber-squatting because the site was registered in bad faith
What is reverse cyber-squatting? When an individual has a legitimate claim over the domain name in question and an organization is trying to force them to give it up the organization is acting in bad faith
What is the problem with legitimate claims? when two companies have a legitimate claim over a trademark (because they are in different industries) it is tricky and best handled in court)
How are disputes resolved in CIRA? (applies to Canadian .ca) 1. prove you had prior rights over the trademark (must satisfy the residency requirement 2. prove the registrant registered the name in bad faith 3. the registrant does not have a legitimate interest in the domain name
What are the remedies available for domain name infringements? 1. cancellation of the domain name 2.transfer of the domain name 3. no action/domain name stands
What is the UDRP? Uniform Domain Name Dispute Resolution Policy (applied to gTLD)
How are disputes resolved in UDRP? 1. launch a complaint 2. owner of the domain name receives a copy and opportunity to reply 3. WIPO established a tribunal and hearing 4. Order the cancellation, transfer, or stay of the domain name
What are the factors that prove a domain name has infringed UDRP? 1. Domain is identical or confusingly similar to a known trademark 2. Taking the name must have been in bad faith 3. registrant must not have a legitimate interest in the domain
What are important things to know about registering domain names? 1. register domain name by contacting registrar 2. registration is first to file 3. registration results after the registrant agrees to the registration agreement 4. residency requirement must be met for ccTLD
What is the length of protection for domain names? 1. usually specifiedin the agreement 2. min.1 year max. 10 years
What is residual reputation? if people always associate your domain with certain goods or services you can challenge someone who uses the domain for a purpose that would be damaging to your reputation
What is the legal status of a domain name? The legal status of domain names is a controversial topic. there are sometimes treated as property, sometimes intangible property (sometimes property based remedies are awarded by courts
What is CASL? Canadian Anti-Spam Legislation
Which organizations administer CASL? CRTC, Commissioner of Competition, Privacy Commissioner of Canada
What does CASL prohibit? Pohibits sending CEMs to an electronic address without consent (offers to sell lease etc... investment opportunity, advertising)
When are CEMs accessible? 1. Consent to receive the messages 2. Messages need to include your name, contact info, business info and must remain relevant for 60 days 3. Unsubscribe mechanism
What are some other exemptions under CASL? 1. close family relationship 2. response to inquiries 3. business to business relations 4. response to requests or complaints 5. collecting agencies 6. e-commerce portals 7. sent on behalf of legal charities 8. emergencies (recalls)
When can you alter the transmissions under CASL? 1. express consent within the disclosure requirement 2. the alteration is in accordance with a court order 3. the alterations are made by a telecommunication provider for the purpose of network management
When can you install computer programs under CASL? 1. there is express consent 2. the modification is in accordance with a court order 3. it is an upgrade of an existing program 4.the owner of the program provided consent
What are some things that CASL considers to be express consent? 1. a cookie 2.html code 3. java scripts 4.operating system
What are some remedies available under CASL? 1. individual penalties are a maximum of $1 million 2. Organization penalties up to $10 million
What is vicarious liability? employers are responsible for violations committed by employees
What are the forms clouds can take? 1. cloud as infrastructure 2. cloud as platform 3. cloud as software
What are the types of clouds? public cloud, private cloud, hybrid cloud
What are security issues associated with clouds? 1. the organization who collected the data is responsible for the data 2. 3rd parties can handle/store the data (with permission ) but the security remains the responsibility of the organization that collected it
What are privacy concerns with clouds? 1. when cloud services are used to process customer info it doesn't count as disclosure 2. businesses should inform customers of outsourcing practices if they are being processed in a foreign jurisdiction 3. the company that collected it is responsible
What are copyright concerns associated with clouds? "territoriality of copyright" different jurisdictions have different rules about what qualifies
What are the patent concerns associated with clouds? patentable subject matter in other jurisdictions may not be patentable in CAnada
What are the concerns associated with confidential information in the cloud? if it is that secret maybe it shouldn't be in a cloud
What is the right to be forgotten? you can withdraw permision to the collection of your data at any itme, subject to legal or contractual restrictions and reasonable notice
What are some of the privacy concerns surrounding young people and social media? young people are not explicitly covered under PIPEDA. Generally speaking they have to be above 13 with parentalpermisison
Which Canadian law deals with cyber bullying ? C-13 amends the criminal code to protect Canadians from online crime. the capturing and posting of explicit images without consent is illegal, courts can order the remove of the images from the site and the device and issue compensation
Created by: alentini