The Confidentiality of Seclusion
Studying Information Flows to Test Intellectual Property Paradigms
From: Intellectual Property for the 21st Century
In the information age, law is challenged by the nature of information: expandable, diffusive, and shareable. This chapter illustrates the efficacy of an information science-based analysis, focusing on the flow of information and its effect upon the participants (from producers to users), for determining legal disputes involving information, including intellectual property matters. Jones v Tsige (Ontario Court of Appeal, 2012), declaring a new tort of intrusion upon seclusion (which the court termed an aspect of privacy protection), is critiqued. From the critique two observations flow: first, the matter at issue in that case, analyzed in terms of the information flow involved, would have been more properly decided under the federal Personal Information Protection and Electronic Documents Act (PIPEDA) as it involved protection of confidential information and not privacy issues; second, protection of confidential information, now in a business context considered an aspect of intellectual property in the international trade environment (e.g., in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS]), completely contradicts the effect of traditional intellectual property devices on information flow and therefore should be exclusively considered in the context of legal regimes governing secrecy, personal data protection and access, and not intellectual property.
Margaret Ann Wilkinson
Currently Professor of Law at Western University, Dr Margaret Ann Wilkinson is qualified as both a lawyer and librarian. After practising law in Toronto and then completing a doctorate focused on personal data protection, she was initially appointed to a unique joint professorship in the Faculties of Law and Information & Media Studies at Western. She has held visiting or adjunct positions at Western’s Richard Ivey School of Business, Dalhousie University, Osgoode Hall Law School, the University of Toronto, and Newcastle University (UK). Funded variously, including through the Law Foundation of Ontario and Social Sciences and Humanities Research Council of Canada, and awarded Faculty Scholar recognition at Western and the Ontario Library Association’s Les Fowlie Intellectual Freedom Award, Professor Wilkinson has taught, spoken, and published widely on copyright, moral rights, patents, confidential information, personal data protection, and privacy, both in the Canadian and international contexts, on pharmaceutical and health regulation, and about professional ethics. Author of Genealogy and the Law in Canada (Dundurn Press, 2010) and a co-author of the new Canadian Intellectual Property: Cases and Materials (Emond Montgomery, 2013), Professor Wilkinson continues to be involved in graduate education in law, business, library & information science, and health information science.