Prof. David Vaver presenting the 14th Annual Sir Hugh Laddie Lecture ()

Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

On June 22, 2022, I had the pleasure of tuning into the 14th Annual Sir Hugh Laddie Lecture. Over the years, the lectures have been delivered by distinguished experts from across the globe. This year, the lecture was delivered by our own Professor David Vaver, Professor of Intellectual Property Law at Osgoode Hall Law School, the first Chair in Intellectual Property & Information Technology Law at the University of Oxford, Fellow of the Royal Society of Canada, member of the Order of Canada, and Member of IP Osgoode’s Advisory Board. The was delivered in person at the UCL Cruciform Lecture Theatre and live-streamed for viewers across the world.

Sir Hugh Laddie was born in 1946 and studied law at St Catherine’s College, Cambridge. He was a judge of the High Court of England and Wales, a professor, and a leader in the field of intellectual property. Since his passing in 2008, the Institute of Brand and Innovation Law (IBIL) at the University College London (UCL) Faculty of Laws has organized and delivered , in honour of Justice Laddie, the founder of IBIL.

Prof. Vaver began the lecture by summarizing strands of Justice Laddie’s thinking – he believed IP legislation, which is not different from other legislation, should be looked at as a whole, and that precedence he believed to be misguided should be challenged. He then mentioned three maxims that guided Justice Laddie’s career and offered a general view of his philosophy. A few examples, translated from Latin, being “if someone’s got a right, do something about it”, “in equity, good folk win, bad folk lose”, and “deep pockets shouldn’t always prevail”. As a result of the combination of these strands of thinking, Justice Laddie was able to firmly stand for what he believed intellectual property should and should not do, over the course of his career.

Additionally, Prof. Vaver recognized some of Justice Laddie's significant contributions to trademark, copyright, and patent law.��His contribution to trademarks included extending common law protection to unregistered geographical indications when he ordered , cautious of Cadbury’s marketing tactics potentially fooling customers.

In copyright, Justice Laddie warned us about the possibly of being misled by , that is, “chipping away and ignoring all the bits which are undoubtedly not copied may result in the creation of an illusion of copying in what is left”. Moreover, in an effort to determine what was actually copied in a work, he considered whether the work as a whole or its individual components should have their own copyrights. Eventually he rejected the concept of multiple copyrights, noting that legal millefeuilles with layers of different artistic copyrights would be “slicing too finely or indiscriminately”.

Lastly, Justice Laddie's approach to the Haberman Feeder case demonstrated his values regarding patentability.��, named after its inventor Mandy Haberman, is a specialty bottle which uses a slit valve and is especially useful for feeding babies with feeding difficulties. When the patent for the bottle was challenged for obviousness, Justice Laddie considered the long history of infant feeders (and the absence of anything like the Ms. Haberman’s bottle within it), utilizing unique perspectives to see the value in otherwise readily available solutions.

Overall, Prof. Vaver’s lecture was a wonderful way to remember his valuable contributions and to learn more about the diverse topics (as the title suggests) he dealt with in his career in intellectual property. Justice Laddie’s lasting mark on each of his cases makes it easy for us to remember annually why he remains a cherished figure in the field of intellectual property law.

You can watch UCL's full recording of the lecture here:

The post Prof. David Vaver Presents “Mr. Justice Laddie and his Intellectual Property Cases: Of Millefeuilles and a Fish Called Elvis” appeared first on IPOsgoode.

Photo by Prof. Pina D'Agostino

Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

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For fifty years, the Copyright Society of the USA (CSUSA) has invited numerous esteemed figures to present the annual . This past Monday, Osgoode’s very own Professor David Vaver delivered the 2021 Brace lecture on “User Rights: Fair Use and Beyond” as the series’ very first international speaker from outside the United States. Professor Vaver spoke on the origins of fair dealing in Canada and its differences and similarities in comparison to the American legal concept of “fair use”, its evolution throughout the history of Canadian common law jurisprudence, and its potentially far-reaching future beyond Canada and copyright law.��

Professor Vaver opened his lecture by introducing Jack McClenaghan’s novel Moving Target[1], a man-on-the-run thriller set in New Zealand during World War II that follows an army deserter as he is hunted by the military. Similarly, the boundary between copyright and user rights can also be likened to a “moving target” – elusive, ever-evolving, and always open to debate. And like McClenaghan’s fictional account of militant pursuit, the history of tension between copyright and user rights has been a tale of survival on the part of both.��

“Fair dealing” in Canada is a statutory exception to copyright infringement, and has been “as an integral part of the Copyright Act [and more] than simply a defence”. The Court refers to it more specifically as a “user’s right”. However, fair dealing’s designation as an “exception” inherently produces a negative implication: that copyright law is the “natural order” of things. That anyone’s use of a copyright-protected work infringes the copyright owner’s property. That any deviation from that rule must be an “exception”.��

However, the history of copyright law has always read quite differently. Up until the 20th century, , the public had relatively free reign and plenty of rights to use and to benefit from the circulation of works at the time. However, over the course of the 20th and 21st centuries, the island of copyright law that once stood amidst a sea of user rights began to expand, and as the sea around it shrank, the two eventually seemed to switch in character altogether.��

It wasn’t until the late 1900s that courts in the UK began to recognize a problem with the tendency towards legal copyright. In , the Church of Scientology sued a former member for publishing a book criticizing Scientology that contained material copied from Scientology books and documents, as well as confidential information pertaining to Scientology courses. The Court of Appeal unanimously held that the scope and content of the fair dealing defence should include works of criticism. Along a similar vein in the US, Professor L. Ray Patterson and Judge Stanley F. Birch argued in their 1996 article that “the subject matter of copyright is information and learning, which implicates the right of citizens to know. This right is protected by both the First Amendment and the copyright clause”.��

Over time, Canadian courts also began to increasingly recognize the need for a careful balancing act to weigh the rights of copyright owners against those of the public. In , the court noted that “[t]he Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator...In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.” Professor Vaver also credited Chief Justice McLachlin (as she then was) and Justice Abella for influencing this trajectory in Canadian copyright jurisprudence, as reflected by their rulings in more recent copyright law cases such as , in which the Court unanimously held that the Law Society’s practice of providing photocopy services to researchers fell within the ambit of fair dealing, and , in which the use of previews of musical works on online music services was also considered to be fair dealing.��

In conclusion, Professor Vaver invited listeners to consider how the idea of user rights may extend beyond the concept of fair dealing as a legal defence, perhaps beyond copyright law, or even beyond Canadian borders. In quoting from his own 2013 article “[J]urisdictions that view copyright's primary purpose as - to quote Nimmer - ‘not to reward the author but rather to secure the general benefits derived by the public from the labors of authors’ may find user rights a concept worth considering for their copyright law. And, while one is at it, why not for all intellectual property laws?”

[1] Jack McClenaghan, Moving Target (Gollancz, 1966).

The post Donald C. Brace Memorial Lecture by Professor David Vaver – “User Rights: Fair Use and Beyond” appeared first on IPOsgoode.

Prof. David Vaver is the Acting Director of IP Osgoode and a Professor of Intellectual Property Law at Osgoode Hall Law School. The following is a preview of a paper to be published in the Intellectual Property Journal.

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Something has recently gone awry with the law of copyright ownership in a movie or other film — a “cinematographic work”, as s. 2 of the [Act] calls it. ��

Part I of the Act deals with the ownership of copyright in works. Section 13(1) provides that the author of a work is its first copyright owner. Section 13(2) provides one exception: where the work is done by an author-employee for their employer as part of their job and there is no contrary agreement. All this applies to cinematographic works, a species of dramatic work, as the Quebec courts recently confirmed: at [12], aff’ing at [51]-[2] [Choko]. A copyright owner may of course transfer the right as it wishes (s. 13(4)); but apart from another exception on Crown works (s. 12), these provisions in s. 13 are the only ones that deal with the ownership of copyright in works. Another section in Part II of the Act (s. 24) deals with first ownership of copyright in subject-matter other than works: performer’s performances, sound recordings, and communication signals.

Owning copyright is one thing; proving ownership is another. Section 34.1(1) of the Act helps plaintiffs out by giving them certain presumptions if they sue for infringement or take other civil proceedings. The section reads (emphasis added):

"In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,

(a)��copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and

(b)��the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright."

At first sight, the words in (a) — “work, performer’s performance, sound recording or communication signal” — appear to be paired with those in (b), in the same order, to mean “author [of a work], performer [of a performer’s performance], maker [of a sound recording], or broadcaster [of a communication signal]”. It would seem unnatural, for example, to read “maker” as referring to both a “sound recording” and a “work”. That however overlooks the fact that s. 2 of the Act defines “maker” as referring to both a work and a sound recording.

Does that definition apply here so as to disturb the apparent pattern of paras. (a) and (b)? Or do the words in context make s. 2 inapplicable? I suggest that they indeed do disapply s. 2 for cinematographic works and that, in context, “maker” in para. (b) means only the maker of the sound recording referred to in para. (a).

Not everyone thinks so — in particular, some judges of the Federal Court.

*

Section 34.1(1) is supposed to make a plaintiff’s life easier in starting and running a copyright claim in court. It neither creates presumptions outside civil proceedings nor creates, transfers, or changes anyone’s actual title, and any proceeds recovered from a defendant are held for the benefit of the true owner: see Hogg v Toye & Co [1935] Ch 497, 520 (CA) on the corresponding provision in the (UK) on which the Canadian section is based. If any presumption happens to be displaced by contrary evidence, the proceedings can be amended and other parties joined so that defendants are not put in double jeopardy.

The presumption was applied straightforwardly in Choko (above). The plaintiff claimed a declaration of copyright ownership in a documentary he had shot for the defendant, while the defendant counter-claimed that the copyright belonged to the defendant as the plaintiff’s employer. The court applied s. 34.1(1)(b) to presume ownership in the plaintiff, he being the “author” of the “work” (Choko, QCCS at [55]). The defendant lost at trial and on appeal because he failed to prove the contrary, i.e., that he employed the plaintiff under a contract of employment (Choko, QCCA at [13]).

The Federal Court of Canada has, however, in at least three decisions said that s. 34.1(1)(b) presumes that the film’s “maker” is the copyright owner of the “work” unless the contrary is proved: see at [24]-[6]; at [32]; at [47]. The ultimate result in these cases may be justifiable: agreement or employment may have given the plaintiff actual ownership in Interbox (see [24] & [26]-[8] of the decision); ownership was “uncontested” in CBC (see [36] of the decision); and certificates of registration would have shifted the presumption of ownership to the plaintiffs in Bell (see [53] of the decision).

Interbox nonetheless does appear to be a decision on the s. 34.1(1)(b) point and was treated as such in CBC at [32]. ��

The correct view however seems to be that, read in context, “maker” in s. 34.1(1)(b) refers only to the maker of a sound recording. Were it to include the maker of a cinematographic work, s. 34.1(1)(b) would be the only provision in the entire Act where "maker" alone bore this meaning. It would also make s. 34.1(1)(b) create two inconsistent presumptions on ownership of the same work, with no way to decide which should prevail. Suppose an “author” and “maker” of a film sue each other, each claiming to be the copyright owner: whose duelling presumption should prevail? To call the result a stalemate would stultify the point of having presumptions at all and would anyway probably be contrary to art. 15(1) of the [Berne], which requires the author to prevail if their name appears on the work in the usual manner.

The problem is that, although “author” and “maker” can mean much the same thing in ordinary parlance, they do not in copyright law. The Act does not define “author” but judicial decisions identify this person as the individual or individuals who give a work’s ideas their original form or expression ( (NBCA)) — a question of fact in each case. Authorship is established easily enough for the video shot on someone’s smartphone; less so for a complex production such as Star Wars, which could involve multiple authorship or the director as sole auteur, the individual responsible for translating the work’s vision into its final expression.

By contrast, “maker”��—��producteur��in the French version —��has a definition in s. 2 of the��Act��that spans both cinematographic works and sound recordings. For a cinematographic work, the “maker” is��“the person by whom the arrangements necessary for the making of the work are undertaken”; for a sound recording the same formula applies to the first fixation of sounds.����

In cases like��Choko��(above) which involved a single individual shooting and editing a film, the same person may coincidentally be both maker and author: the two roles are easily enough mistakenly conflated (see, e.g.,�� at [156]-[7], appeal dismissed 2021 ONCA 532 for non-compliance with order to post security). In many major commercial films, however, the maker and author��—producteur��and��auteur��—��will be different persons, particularly because the maker may be a corporation whereas an author must be a natural person, i.e., a flesh-and-blood human being:��,��234 [Massie].��

One might ask: if “maker” in s. 34.1(1)(b) really applies only to sound recordings, what is the point of having a definition of “maker” of a cinematographic work at all? The answer: to allow Canada to comply with Berne article 4 and ensure that films are protected in Canada even where none of the authors is a Berne national or resident, no matter who owns the work’s copyright. This s. 5(1)(b)(i) of the Act achieves (see Bell, above, at [47]) and also extends protection to other states as required by treaties such as the of 1994. The relevant part of s. 5 reads: ��

"5.(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

���������������������� …

(b) in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,

(i)��if a corporation, had its headquarters in a treaty country, or

(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country [emphasis added]."

Section ��34.1(2)(c) reinforces this provision, as Berne art. 15(2) requires, by providing that “if, on a cinematographic work, a name purporting to be that of the maker of the cinematographic work appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematographic work” — note, not the “copyright owner”, an error made in Wiseau (above) ONSC at [156], although the court ultimately found the person who wrote, acted in, and produced the film to be its “author” and at least a co-owner (ibid at [157]).

Sections 5(1)(b)(i) and 34.1 (2)(c) are the only provisions to which the definition of “maker” of a cinematographic work applies. Had the drafters integrated the contents of s. 34.1(2)(c) into s. 5(1), as they could easily have done, the definition of “maker of a cinematographic work” could also have been shifted from s. 2 to s. 5(1). The mischief its location in s. 2 causes would have disappeared. Such are the potential effects of drafting decisions that are thought to be stylistic but which others misunderstand as having a substantive effect.

Let us examine more closely why s. 34.1(1)(b), in context, cannot include the maker of a cinematographic work. Admittedly, s. 2 could make it include that person — which raises the question: had the drafters intended to confine “maker” to sound recordings, why did they not just add the phrase “of a sound recording”? The answer is because, in the context of section 34.1 and the Act as a whole, the drafting in this respect is often elliptical, and the drafters here thought that meaning was already implied.

The drafters used a similar ellipsis in the next subsection, s. 31.1(2), where the word “maker” in the phrase “author, performer, maker or broadcaster” in the concluding portion of s. 31.1(2)(a), and in s. 31(2)(b)(i) and (ii), clearly means the “maker of the sound recording” specifically mentioned earlier in s. 31.1(2)(a)(iii).

They also used the same ellipsis elsewhere in the Act. Thus s. 29.21(1)(b) requires the creator of user-generated content to name their available source if they are to avoid infringement. The source is stated to be “the author, performer, maker or broadcaster” of the prior “work or other subject-matter.” “Other subject-matter” is the shorthand used throughout the Act for a performer’s performance, sound recording, or communication signal, and the preceding section (s. 29.2(b)(iii)) again makes it clear that the “maker” referred to is the “maker of a sound recording”.

The fact is that the words found in s. 34.1(1)(a) “work, performer’s performance, sound recording or communication signal” in either their singular or plural form appear as a set throughout the Act and are typically linked distributively to the set of persons the Act designates as their respective first owners: “author, performer, maker of a sound recording, or broadcaster” (see, e.g., s. 2, definition of “collective society”). Thus s. 13(1) designates the author as first owner of a work and sections 24(a), 24(b), and 24(c) respectively — and significantly, in the same order — designate the performer, maker of a sound recording, and broadcaster as first owner of their respective subject-matter.

The maker of a cinematographic work would be the odd one out in s. 34.1(1)(b), for the provision otherwise designates the presumption only in favour of first owners. Nothing in the Act, other than employment, contradicts s. 13(1)’s grant of first ownership to the work’s author. The Act nowhere suggests that the maker of a film displaces the author as first owner. Nor does the Act bridge the gap between “maker” and “author” the way UK law does by deeming a film’s author to be its maker — or “producer,” as UK law has it—together with the principal director ( (UK), s. 9(2)(ab)). Although Canadian and UK ownership rules may differ, both are internationally compliant: Berne art. 14^bis(2)(a) allows member states to decide ownership rules for films for themselves since the states had widely disparate views on the matter and no agreed position could be struck at Berne.

It is equally noteworthy that the maker of a cinematographic work is omitted from the list of persons whose interests may be recorded on the Copyright Register — namely, “authors, performers, makers of sound recordings, broadcasters, owners of copyright, assignees of copyright, and persons to whom an interest in copyright has been granted by licence” (s. 54(1)(b)). All these categories are persons whom the Act designates as first or later owners of copyright or an interest in copyright. The omission of the maker of a cinematographic work as such — nowhere designated as a category of owner or holder of an interest — is striking were it is indeed presumed to be an owner for civil proceedings. ��

In general, it makes sense when civil proceedings are brought, to start with a presumption that the person the Act designates as the first owner of any copyright is still its owner unless someone proves the contrary. It generally makes no sense to start with a presumption that a person that the Act nowhere designates as such as first or any owner should currently be presumed the owner. The only exception is where material is anonymous or pseudonymous: for reasons of privacy, s. 34.1(2)(b) provides that the publisher whose name appears on a work is presumed to be its owner — even though the publisher is likely not the first owner and, as Berne article 15(3) states, is really only “deemed to represent the author” to vindicate the latter’ s rights.

None of this will come as any surprise to corporate broadcasters and film producers. They have known for decades that they cannot rely on the presumption in s. 34.1(1)(b) favouring a film’s “author” since in Canada, as noted earlier, the term “author” is reserved for flesh-and-blood human beings: Massie (above) at 234. They have also known for decades of the “intolerably heavy” burden and “serious handicap” the author/ownership presumption imposes on them or any other plaintiff who happens not to be the author: , 605. They also have known for decades of the cheap and effective way to overcome this burden and handicap, as endorsed by Circle Film, itself a case on cinematographic works: before filing infringement proceedings, just spend the $50 and the few minutes it takes to apply online to register the film’s copyright with the Canadian Intellectual Property Office, and get a certificate of registration stating one’s copyright ownership. Registration then provides all the contrary proof needed for the registrant to rebut the author/owner presumption (Act, s. 53(2); Circle Film, at 606-7). That is why no practical need has existed to amend the law to include a presumption of ownership in favour of the maker of a cinematographic work. Registrations can go where presumptions fail to tread.

It is therefore hard to understand why s. 34.1(1) has been pressed into doubtful service where clear and simple alternative means of initially establishing copyright subsistence and title for film “makers” so readily exist. The sooner the Federal Court clears the matter up, the better.

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Prof David Vaver is a Professor of Intellectual Property Law at Osgoode Hall Law School and Emeritus Professor of Intellectual Property & Information Technology Law at University of Oxford. This is an abstract from Prof Vaver's recently published article which will also appear in the Intellectual Property Journal. You can read the full article either on or .

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Many aspects of your business involve intellectual property. Your idea, your invention, your products, your brand, your business methods are all key assets for your new business venture. Yet many start-ups don’t consider how to protect it or understand how to leverage its value for financing or growth.

IP is something that every start-up needs to consider as it develops its business strategy.

That’s why you need to understand the basics of intellectual property; including figuring out what IP you have, how you can leverage it and protect it.

IP can be complex, particularly if you need to formally protect it and develop an IP strategy; you will need to seek out expert advice and be aware of the potential costs.

Understand the basics of intellectual property

1. Take the time to understand the basics, and what the����are. They include:

• Patents, which protect inventions;
• Trademarks, which protect your brand;
• Industrial Design registrations, which protect your product’s unique appearance;
• Copyright, which protect original and creative works; and,
• Trade secrets, which protect your valuable business information, including methods, techniques and processes.

2. Learn how to identify and assess your intellectual property and what you need to protect.

Use this handy����to do an inventory of your intellectual property, and start formulating a plan.

3. Take a look around in the marketplace and at your competitors’ IP.

It is important to know what IP already exists and what competitors have, so that you can better focus your own efforts, targeting gaps in the marketplace and/or avoiding infringing on your competitors’ IP.

Leverage your IP to raise funds or add value

1. Learn how to leverage your intangible assets.

Your IP is a valuable business asset, and needs to be treated as such. Figure out what it is worth and how to generate more value from it.

2. Proper valuation of your IP is crucial to attract financing or venture capital.

It can also add value to your business through licensing and commercialization.

3. Protecting your IP, either through formal or informal means.

It will protect your business against competitors’ unauthorized use of your product/invention/brand/design/unique business methods.

4. Become known in the marketplace and expand to other markets.

It protects your investments as you grow. For example, it is essential to protect your IP in other countries where you plan on doing business��BEFORE��you enter these markets.

Develop an IP Strategy

As you develop your business plan, include an��.
It is basically a plan for how you will develop, grow, leverage and monetize your IP assets.

Follow��; or use this handy��, developed by CIPO and the BDC.

Get expert help and understand the costs

• There are professionals and many resources available to help you determine what IP you have, whether it should be protected and how, and what costs it entails.

• ��such as Patent and Trademark agents and IP lawyers can provide you with strategic advice and assist in filing IP applications.

• Registering a trademark can be relatively straightforward, depending on the range of products and the markets you are entering. Most trademark registries, including Canada, don’t require applicants to be represented by a trademark lawyer. That being said, there are considerations, including similarity with existing trademarks, which class of goods and services your trademark will cover, and so on.

• For patents, it is generally recommended to hire an IP professional, such as a��. They provide you with knowledgeable advice on the best course of action to protect your invention, and have the expertise to draft and file your application, which generally requires specialized knowledge in patent law. Not all inventions are patentable, so it is important to assess this with the help of a professional, so that you can consider other strategies such as confidentiality agreements.

• Valuable business information such as trade secrets, need to be protected through non-disclosure and confidentiality agreements.

• There are various estimates of costs, depending on the complexity of your IP portfolio. There is an����on the costs of filing a patent in Canada and the US.

Written by Johanne Belisle, Former CEO of the Canadian Intellectual Property Office and Member of the IP Osgoode Advisory Board

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The main update is the addition of Part V.1, a framework for the administration of an electronic health record (EHA). and have provided strong shorthand summaries of the legislative changes. The Ontario Hospital Association (OHA) has also created a breaking Part V.1 down into its composite parts and providing descriptions for what the legislation actually means. The update mandates:

• Privacy and security requirements that "prescribed organizations" managing EHRs must comply with, particularly in regards to collecting and sharing EHR data;
• The process for consent directives –��known in some cases as the "lockbox" request or opt-out, where patients may refuse to share their their personal health information (PHI)��–��and the limits of consent directives (i.e. where third parties may be at risk of bodily harm);
• An advisory committee be set up by the Minister of Health to provide EHR recommendations and guidance;
• A requirement whereby the Minister of Health must take all direction intended for prescribed organizations to the advisory committee and Information and Privacy Commissioner before directing any prescribed organization; and
• Increased breach of privacy fines of up to $100,000 for a convicted individual and $500,000 for a convicted organization.
  
  

Analysis

This is well-intentioned legislation. It is clearly aimed to provide much-needed privacy protections for citizens amidst the inevitable transition toward electronic medical data collection. My technical concerns centre on a few key issues, namely the ambiguity of a "prescribed organization", the opt-out limitations, the strength of the advisory committee, and the rigour of prescribed organization's accountability to the public. Not all of these need to be thoroughly addressed within the legislation. Certainly a technocratic bill can become impractical and quickly outdated, but it is my opinion that some of the issues could have been better fleshed out within the bill text.

Ambiguity of Prescribed Organization

Part V.1 is clearly a framework for EHRs, not regulatory guidelines for what bodies will be considered "prescribed organizations." It's conceptually difficult to agree on what powers prescribed organizations will (and will not) have without a conceptual understanding of which will fall under this term. eHealth Ontario is one group that will clearly receive "prescribed organization" status, but who else? In my opinion, the clear question that arises is to what extent private companies will be considered "prescribed organizations".

If there is no intent to allow private companies the designation, then why not draft the legislation more accurately and explicitly? The ambiguity of the term "prescribed organization" makes me uncomfortable.

The Opt-Out Limitations

Refusing patients to opt-out of PHI sharing is tricky. There are huge privacy and civil liberty concerns to allowing a health data collection group the right to override a patient's request for privacy. But, on the other hand, there are public safety implications that do merit some exceptions to the opt-out. In my opinion, the test for overriding the requested opt-out needs to be exceptionally high; to develop health care industry norms otherwise would be disastrous.

The OHA has also raised a valid point that the current wording of the legislation seems to imply that the opt-outs can only be made to the prescribed organizations (for example, eHealth Ontario). They rightly point out that health information custodians (HICs), such as doctors or long-term care facility staff, should also be allowed to take consent directives for patients wanting to opt out. This certainly seems to make sense from a patient care perspective; there is ease and intuitiveness associated with making your privacy requests directly to your health care practitioner.

Advisory Committee Strength

I believe in parliamentary committees, especially when they have teeth. Serious, legitimate, proactive, and credible committees staffed with a diverse mix of courageous and smart stakeholders are exactly what this province and country needs. Unfortunately, they are often susceptible to "committee-itus", passive rubber-stamping, or highly intellectual report-making. This advisory committee has a huge role to play in one of the most important public policy issues of the day. This committee needs to be implemented with immense focus and commitment by the Ministry. Also, the Privacy Commissioner should be involved in the committee structure and creation as a far more independent, less politicized body than the Government's health ministry.

Prescribed Organizations' Public Accountability

This legislation has a number of good public reporting requirements. It dictates that prescribed organizations must publicly account for their EHR safety and security measures, as well as other processes. One thing I noticed was missing - as did the OHA in their bulletin - was the risk management protocols for privacy breach disclosure process. What if a system is violated and information is shared? What onus is there on the prescribed organization to report the violation to the public? To the individuals whose information was breached? To the Ministry of Health? To the police? If they do need to report the breach, in how timely a manner does it need to be reported? Suffice it to say, there are a number of outstanding questions to be answered.

Increased fines are a strong incentive to prevent EHR privacy breaches but they are also a disincentive to report EHR privacy breaches. Realistically, there is a risk associated with electronic data. But the gains to efficiency and accuracy are so great, it seems as if we, as a society, are collectively agreeing to take on the increased risk. It's a logical, rational choice but we need to plan and manage that risk. In this legislation, the Government seems to say, "never allow privacy breaches." This is impractical. In my opinion, the Government instead needs to say, "do everything you can to prevent privacy breaches. If they happen, you must do the following..." Risk and crisis management protocols that make strong commitments to the public interest are a necessity.

The Bigger Picture

The more the world digitizes, the more important privacy becomes. With every piece of legislation of this nature, the Privacy Commissioner's office needs an adequate boost in funding and standing. The Ontario Privacy Commission is one of the best in the country, but it can only be so with apt resources.

We may need to think bigger. The public interest needs more than just a privacy watchdog, it needs government leadership on privacy. In the digital age, threats to our privacy civil liberties are coming from many more sides than ever before. On a daily basis, private corporations and the data they collect of us through information technology are one of the most important concerns for our privacy. They can collect and database our information about us when we write it and even when we play . If we're going to get serious about protecting our digital health information, I think we should get serious about protection.

Bill 78 is an attempt by the government to be proactive about digital privacy, but, in my opinion, it's only a drop in the bucket in the context of what we might need in the future. Is it time for ministries of public health to get more involved on privacy? Is it time to establish ministries of privacy? It's something to consider.

The concepts of ministries of privacy is a counterintuitive and controversial one, but I think something drastic needs to happen. Perhaps this is the way. The systems in place to protect citizen privacy need work. The current leadership in civil liberties and privacy offices are taking steps, but they are not keeping pace with developments in information technology. In the end, the solution is��more information technology privacy legislation and only our governments can enact it.

Governments are now in an important and unique position to protect our privacy. We need a privacy commissioner to protect our privacy from intruding government action and we need a government to protect our private information��– health-related and otherwise –��from corporations that look to misuse it. Will they step up to the challenge?

Denise��is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

The post Diagnosing Ontario's Electronic Medical Records Bill: Healthier, but Not Out of the Woods Yet appeared first on IPOsgoode.

We have a wonderful array of��,��from government agencies to media organizations, hi-tech companies, and innovation centres. For the Fall 2013 term, we have partnered with three brand new placement organizations: Apotex, Cobalt Pharmaceuticals Company (the Canadian subsidy of Actavis, Inc.) and CBC/Radio-Canada. We are also pleased to welcome the return of TVO from our inaugural year. Other IP intensive placement organizations include: Canadian Heritage, the Canadian Intellectual Property Office, Industry Canada (Copyright and International IP Policy Branch), the Society of Composers, Authors and Music Publishers of Canada (SOCAN), Stanford Centre for Legal Informatics (CodeX), The Globe and Mail, and VentureLAB.

The IP Intensive is a unique program that gives students practical, experiential education in a workplace setting for an entire term in lieu of being in the classroom.��Our students gain valuable practical experience which will assist them in obtaining employment after law school, and some of our students' research in the program has been published in the (IPJ).

The IP Intensive begins with��, led by IP Intensive Students currently enrolled in the IP Intensive, which will feature presentations and workshops by experts prominent in the IP community. The seminars will cover a wide variety of topics, from “Trade-mark Prosecution” to “Intellectual Property Reform Process”, from “Biotechnology Focus: Pharma” to “Digital Media, Journalism, Freedom of Expression”. ��Our IP Intensive students will be interacting and engaging in stimulating discussions with the Chair of the Trade-marks Opposition Board, a senior policy analyst from Canadian Heritage (Copyright Policy Branch), counsel from the Ontario Information and Privacy Commissioner’s Office, in-house counsel and top executives from a broad range of industries, practitioners from the major Canadian law firms, academics and members of the judiciary.��Then IP Intensive Student Interns will participate in an 11-week internship with one of our placement partners.

The program director for 2013 will be Professor David Vaver. Throughout the term, the students will be meeting with him periodically to discuss topics relating to intellectual property law, to share their experiences in the work environment, and to participate in a cross-pollination of ideas. The students will also be maintaining a reflective journal and blog on the . They are also responsible to lead their own seminar presentations, which will occupy the wrap-up week of the course.

If you are interested in attending any of our sessions or participating as a placement, please do not hesitate to get in touch with me directly.

Giuseppina D’Agostino is the Founder and Director of IP Osgoode, an Associate Professor at Osgoode Hall Law School, and the Founder of the IP Intensive.

The post Announcing the 2013 IP Intensive Program appeared first on IPOsgoode.

This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents ��might characterize both the UGC exception and expanded fair ��dealing as unjustifiable encroachments upon the rights of copyright ��owners, this chapter argues that these exceptions reflect the shifting ��realities of cultural production and dissemination.

1. Defining User-Generated Content

User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]

Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]

The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the ��form of the work, is echoed as well in the Supreme Court of Canada’s ��emphasis in ��SOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to ��the works at issue.[14]

The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is ��important to note that UGC in its many forms is already becoming ��accepted in different fields of activity as a source of information and ��creativity, and inquiries in these fields have moved ahead to issues of ��how best to use, integrate and derive benefit from these new modes of ��knowledge creation.

Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law appeared first on IPOsgoode.

IP Osgoode would like to congratulate the winners of the Gowlings Best Blog in IP Law and Technology Prize for 2012-2013.�� Four prizes in total are awarded each year to Osgoode students and the winning blog posts are featured in the IPilogue. Recipients also receive a $500 award, are announced at Convocation and receive a permanent notation on their official Osgoode transcript.

The (the “Gowlings IPilogue Prize”) was pioneered in Intellectual Property class in the Fall 2007 term and has been generously sponsored each year since then by .

All blog entries and comments on the IPilogue submitted by Osgoode students are considered automatically for the prize (except those submitted by IPilogue Editors). In each academic semester, there is one prize for the best blog post and one prize for the best comment.

For students, this is a chance to recognize their research and writing in a specialized and technical field.�� It also encourages law students with a strong interest in Intellectual Property Law to develop that interest.�� Of course, the subject matter of the IPilogue goes beyond strictly IP.�� Our stories also delve into related areas of Technology Law, including: internet law, privacy rights, broadcasting, e-commerce, social media and free speech.

We are pleased to announce this year’s winners of the Gowlings IPilogue Prizes:

Fall 2012:

Best Blog: Mark Bowman��()

Best Comment: Maximilian Paterson (Comment on )

Winter 2013:

Best Blog: Meng Xiao (Nancy) Situ ()

Best Comment:��Danny Titolo (Comment on )

Congratulations to our winners and thank you to all who make the IPilogue possible.�� We are most grateful to Gowlings for its generous support.

The post Winners of the Gowlings Best Blog in IP and Technology Law Prize! appeared first on IPOsgoode.

“Reflections on the Supreme Court of Canada 2012 Copyright Decisions”

“Advocacy Skills and IP: Observations from the Bench”

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