An Update on Copyright, Industrial Designs and Breach of Confidence in 2026
Since our last report there have been several developments in copyright, industrial design and breach of confidence. This update highlights policy shifts and notable decisions.
AI-Canada's National Artificial Intelligence Strategy
On June 4, 2026, Canada released an additional report confirming that Canadians must be open to the enormous opportunities in AI but must also be candid about the real concerns. AI raises hard questions about job security, privacy, sustainability, sovereignty, and trust. Responding to these concerns and building responsible Canadian AI will not be easy
In response to what Canadians indicated they wanted in their submissions the current Government strategy was formulated. Canada's National Artificial Intelligence Strategy: AI for All, ISED Canada
It consists of six pillars as follows
“To foster trust, we will:
protect Canadians from the risks and harms of AI, creating rules and safeguards that build and maintain trust; and
strengthen multinational partnerships with trusted allies, shaping an international AI community and global standards that reflect values of mutual respect and cooperation.
To provide opportunity, we will:
power shared prosperity through Canadian institutions and companies, channeling adoption into the quality work, economic activity, and public services that benefit Canadians broadly; and
empower Canadians to participate in and benefit from AI, building the understanding and access that enables Canadians to shape how we use AI in Canada and pursue the opportunities AI adoption creates.
To safeguard sovereignty, we will:
support globally competitive Canadian champions, giving Canadian AI companies the resources and reach they need to project Canadian strength outward; and
build sovereign Canadian AI foundations in compute, data, talent, and infrastructure, ensuring Canadians can trust that the systems they adopt are built and governed on Canadian terms.”
Unfortunately, Canada’s AI strategy does not answer the core copyright questions raised by AI training, outputs, ownership, licensing and remedies. Those issues remain to be addressed in the courts through litigation. It will likely take many years before these issues are finally resolved.
The Copyright Board
In Society of Composers, Authors and Music Publishers of Canada v. Apple Canada Inc. 2026 FCA 122 the proceeding before the Copyright Board was to establish the royalty rates to be applied under a tariff During a case management conference, the Board divided the proceeding into two phases and identified “four preliminary issues” to be considered in Phase I. The Board issued a ruling setting out its conclusions on the preliminary issues but expressly stated the ruling did not constitute the Board’s final determination on the proposed tariffs under consideration. SOCAN filed an application for judicial review of this ruling.
The Federal Court of Appeal dismissed the application for judicial review on the basis that absent exceptional circumstances, parties to an administrative process cannot proceed to the court system until that process has run its course. This principle applies to all matters that arise before the administrative decision maker.
The Court observed that the Board is the master of its own procedure. More specifically, the Board has broad discretion and powers concerning its processes, including the examination of witnesses and the production of documents. It also has broad powers to make orders in the context of case management, to vary orders made in a proceeding, and to grant leave to amend a statement of issues to be considered and a case record. In addition, the Board has the power to vary the rules governing its practice as appropriate.
“Geo-blocking” as a Technical Protection Measure
The Court of Justice of the European Union considered the right to make a work available in its decision in Anne Frank Fonds v Anne Frank Stichtin Case C-788/24, January 15, 2026. The plaintiff owns the copyright in the works of Anne Frank. A part of those works is protected in the Netherlands until 2037. In other Member States, including the Kingdom of Belgium, those works are now in the public domain. The defendant published a scholarly edition of Anne Frank’s manuscripts in Dutch, free of charge which was posted on its website.
Access to that site is restricted by a ‘geo-blocking’ system which prevents the website from being accessed if the user attempts to connect to it from a Member State in which the manuscripts are still protected by copyright. The plaintiff brought a proceeding for copyright infringement in the Netherland courts. Both the court of first instance and the appeal court concluded that there was no “communication to the public”. Because of legal uncertainty this question was referred to the CJEU.
The Court said previous decisions in the context of the internet had made it clear that a copyright holder cannot be allowed to limit his or her consent by means other than which are described as ‘effective’ technological measures. The existence of effective technological measures adopted or imposed by a copyright holder in the context of an act of communication of a work on the internet reflects the copyright holder’s intention to give access to the protected work only to a particular circle of internet users, not to all internet users.
The Court has made clear that the effectiveness of a technological measure does not have to be absolute, but must be assessed, in accordance with the principle of proportionality, in the light of the objective of preventing or eliminating acts not authorized by the copyright holder, which thus involves, inter alia, verifying that the measure concerned is suitable for achieving that objective and does not go beyond what is necessary for that purpose, and seeking, a fair balance between the protection of intellectual property rights and the protection of other fundamental rights such as freedom of expression or of information.
It was also necessary to consider whether other available technological measures could have interfered less with third-party activities not requiring the copyright holder’s authorization, or imposed fewer limitations on those activities, while still providing comparable protection for the copyright holder’s rights. This assessment must also compare the costs and technological and practical feasibility of the available measures.
As a result, the court said the posting of the work in issue was not a ‘communication to the public’, where that geo-blocking measure was ‘effective’, in that it was ‘state of the art’, even if those internet users can circumvent it using a VPN or a similar service. This decision is important since regional coding and access restriction systems have long operated as technical protection measures.
Regional coding systems and access restriction systems operate as technical protection measures as they control access of works protected by copyright. For example, DVDs may be regionally coded, and a DVD bought in North America may not play on a device sold in Europe or Asia. Video streaming platforms may use geo-blocking, account verification and device-level controls to control access.
Misuse of Copyright
The Supreme Court of Canada described misuse of copyright as a "developing doctrine" in the United States and declined to comment further on its potential application in Canada. In Millennium Funding, Inc. v. Bell Canada 2025 FCA 153 it was found that the defence of misuse of copyright defence has not been definitively rejected in Canada and the Federal Court of Appeal agreed with this analysis Bell Canada v Millennium Funding, Inc., 2025 FCA 153. The FCA concluded the defence was viable subject to providing sufficient detail to support it.
Norwich orders
Nivora Group LLC v Ping 2026 ONSC 22943 (CanLII) a motion for a Norwich order in an action concerning a dispute with respect to crypto assets was dismissed on the basis, among others, that the plaintiffs were attempting to circumvent the discovery process. The plaintiffs did not need further information to commence an action against the alleged wrongdoers. They had already identified the alleged wrongdoers. They were seeking third-party productions without knowing whether the defendants could produce the requested information.
Spoliation of Evidence
In SS&C Technologies Canada Corp. v Bank of New York Mellon Corp. 2026 SCC 29 the Supreme Court of Canada clarified what must be proved to establish spoliation and established a mandatory presumption and the adverse inferences to be drawn.
Industrial Designs
The Hague Agreement is comparable to the Madrid Protocol for trademarks. Canada is a party to the Agreement. A single international application replaces a whole series of applications that would otherwise have been sent to different national (or regional) offices. Canada’s major trading partners, such as the United States, the European Union, Japan and South Korea are parties to the Agreement. A complete list of contracting parties is available on the WIPO website.
The Hague Agreement effectively establishes an international system – the Hague System – that allows industrial designs to be protected in multiple countries or regions with minimal formalities.
Once an application is filed with WIPO, the application is reviewed by WIPO for compliance with formalities and if compliant it is published in the International Designs Bulletin. After publication CIPO and other designated countries substantively examine the application for compliance with their national requirements. In effect the designation is dealt with like any other domestic application.
Breach of Confidence
In Trueman v. Rogers Communications Canada Inc. 2025 ONSC 5972 the court concluded that the concept of ‘detriment “is broad but is nonetheless a finite concept. The pleadings in an action must specify in detail the nature of the detriment, particularly where emotional distress is involved.
To ensure your rights are fully protected, reach out to us for a detailed review of your situation and potential remedies.
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John McKeown
Loopstra Nixon LLP.
130 Adelaide St W Suite 2800Toronto, Ontario, M5H 3P5Canada
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This article is of general nature and is not intended to provide specific legal advice as individual situations will differ. Specialist advice should be sought about your specific circumstances. Copyright © John Mckeown, All rights reserved. To unsubscribe to the IP Update please send me an email at jmckeown@Ln.Law
A version of this article originally appeared in the Law360 Canada published by LexisNexis Canada Inc.
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