Canadian Lawyer InHouse

JULY/AUGUST 2018 36 INHOUSE government commission in the United States estimated in 2013 that the scale of international theft of American intellec- tual property was US$300 billion annually. The U.S. government considered sanctions against China for economic espionage before an agreement was reached by then-president Barack Obama and his Chinese counterpart in 2015. Attempts to obtain IP data or confidential business information through duplicitous tactics are nothing new. As well, the attacks can come from hackers motivated purely by monetary reasons or state-sponsored ac - tors, notes Sunny Handa, a partner at Blake Cassels & Graydon LLP in Montreal and co-practice group leader of the firm's tech- nology and India groups. "The difference now is if your secret gets out it will get out quickly," says Handa. In a climate where the potential risks are increasing, what are some of the basic prin - ciples that should be followed to try to mini- mize the chance that outside parties will ob- tain key information — the equivalent to the Coca Cola formula — for any corporation? "For most companies, the biggest risk is the employees, either through a mistake or deliberate theft," says James Kosa, a partner at WeirFoulds LLP in Toronto. "Corporate espionage, more often than not, occurs in - ternally," he says. He agrees that this puts companies in a difficult position to protect proprietary information such as trade secrets yet not have their employees in a work envi - ronment where they feel they are not trusted. "From a risk management perspective, it is about managing the people, especially people who are leaving. You need to track data they T he main page of the website for FairPlay Canada features a slide show of various individuals who work in the film and television production industry in roles such as hairdresser, carpenter and program assistant. It is these people who will be most harmed, the site suggests, if the Canadian Radio-television and Telecommunications Commission does not approve the creation of a new agency tasked with requiring internet service providers to block access to torrent-based websites that facilitate the downloading of movies, televisions shows and other content without permission. Despite the focus on the everyday workers within the industry, FairPlay is a coalition led by media and communications giants including Bell, Rogers, Quebecor and the CBC. It is arguing that there is a significant economic risk to the Canadian film and television industries from sites such as The Pirate Bay and others. The application filed in late January has been met with a widespread and spirited reaction. From the industry perspective, it is a legitimate modern tool to crack down on "illegal online piracy." For open-media advocates, it is censorship and could lead to other measures to restrict online access of legitimate content. Barry Sookman was among those who wrote to the regulator in support of the coalition's application. "The whole slippery slope argument is a false narrative," suggests the McCarthy Tétrault LLP lawyer and former head of the firm's intellectual property group. "We are talking about a particular class of site" that exists expressly for the purpose of illegal downloading, he says. "If you can regulate this content offline, then you should be able to regulate it online." Most people would not publicly proclaim, "I have a right to shoplift," says Sookman. Yet, he says this kind of belief seems to apply to those opposed to the application when it comes to accessing online content. Ariel Katz, an intellectual property professor at the University of Toronto law school, prepared an expert report for the Public Interest Advocacy Centre, which opposes the application. Far from the gloomy scenario presented by the coalition, he says the data shows that there is not a current revenue crisis for Canadian television and film producers. "The most effective way to reduce piracy is to make content available, easily and conveniently accessible and reasonably priced," says Katz. He also questions the use of the term "piracy" by the coalition. "Piracy is not a legal term," he notes. "Copyright law does not give a copyright owner exclusive rights to control every use of their work and every aspect of its distribution. Therefore, not every unauthorized use is an infringing use and not every unauthorized use deserves the colloquial title of piracy." The law professor also questions whether the CRTC has jurisdiction to implement these measures. "Copyright in this country is a creature of statute. The CRTC cannot create copyright-like rights and cannot create new remedies," says Katz. A reply submission was filed by the coalition last month and the CRTC is expected to issue a decision on what has been a very high-profile application later this summer. — Shannon Kari Rights jurisdiction & From a risk management perspective, it is about managing the people, especially people who are leaving. You need to track data they have accessed. You can use mobile device management software that tracks large data transfers. If it is more than 50 MB, it is not an email. JAMES KOSA, WeirFoulds LLP

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