"Thank you, Chair, and members of this committee. My name is Carys Craig. I am a professor at Osgoode Hall Law School, 91ŃÇÉ«, where my research focuses on copyright, technology, and the public interest. I submitted briefs to the Government’s previous consultations on AI and copyright, and I’ve published widely on the topic. I appreciate the opportunity to share my views today.

I want to make three points about copyright protection relevant to this Committee’s work. First, it is vital to distinguish copyright law from AI regulation; copyright is the wrong legal tool for regulating AI technologies. Second, relatedly, copyright law must not obstruct AI research, development, and training in Canada. And third, Canada’s copyright law must continue to refuse copyright protection to AI-generated works.

Copyright Is the Wrong Tool for AI Regulation

There is understandable concern about generative AI —its effects on creative workers, cultural industries, information integrity, the concentration of foreign corporate power. I share those concerns. But I urge the committee to be cautious about including expanded copyright protections as part of an AI regulatory package to address them. Copyright exists to encourage the creation and dissemination of works, to reward authors and foster a vibrant public domain. It is technology neutral. It is not designed to govern technology risks or restrain technological developments; it should not be pressed into that service now.

The real risks of AI — from bias and misinformation to deepfakes and privacy violations, labour displacement, corporate consolidation — demand dedicated, fit-for-purpose regulatory responses. Expanding copyright control risks distorting copyright principles while failing to address—or indeed worsening—the harms themselves. This is what I’ve called running into the “AI-Copyright Trap”—mistakenly turning to copyright as an easy catch-all (or for some, a windfall) in response to the threats posed by generative AI.

Copyright Law Must Not Obstruct AI Training

My second point concerns AI training. Some have called for mandatory licensing for copyrighted works used in training data, backstopped by owners’ rights to opt out or in. I understand the impulse, but the consequences of this approach would be deeply harmful.

Under current law, it is not established and far from clear that training AI on copyright works even implicates the rights of owners. When an AI system is trained, it does not memorize or reproduce the works it processes. It translates expressive content into statistical patterns — meaning becomes math. This is a technical, intermediate, non-public use to extract information that copyright does not protect. But even if copyright extended to this data extraction process, most text and data mining is likely lawful without permission or license under Canada's fair dealing provisions, as interpreted by the Supreme Court. If the Committee is interested in supporting AI research and innovation in Canada, the real problem is the current legal uncertainty, not illegality.

Requiring licensing would create a pay-to-play system regulated by private actors. Only the wealthiest corporations could afford access to the vast data troves required. Academic researchers, non-profits, startups and SMEs will be shut out. This would concentrate AI development further in the hands of Big Tech — the very outcome many are trying to prevent. It would also incentivize secrecy, reduce the diversity of AI systems and competition, exacerbate bias, and be practically impossible to administer effectively (as implementation efforts in the EU reveal). It would surely off-shore AI development while Canadian creators would gain little if anything. [Canada’s focus should be on public data governance, not shoring up its private commodification.]

So, if Canada is to amend the Copyright Act, it should be to confirm that text and data mining for informational analysis does not constitute infringement. This was the original INDU recommendation in the 2019 Copyright Act Review, and it remains the best way to support a healthy AI ecosystem in Canada. It would align with emerging US fair use jurisprudence—but give us the significant advantage of legal clarity.

Refuse Copyright Protection for AI-Generated Outputs

My third and final point concerns AI outputs. The most effective thing copyright can do to protect human creators is to maintain the position that copyright requires a human author — [a work must originate from a human being to attract protection] while AI-generated content belongs in the public domain. That is the correct result, and it protects the role of human creators in the creative industries. Granting copyright or new rights in AI-outputs would be an unnecessary, misplaced incentive and further chill human creativity.

Conclusion

In closing, I want to emphasize that copyright law, at its best, serves human creativity and the public interest. It exists because we value what human beings create, share, and learn from each other. We cannot allow it to become a tool for controlling technology, or a bargaining chip for corporate licensing deals and rent-seeking, or a vehicle for granting monopoly rights over information or machine-generated content. I urge the committee to keep copyright’s principled limits and practical effects in view — there are many more apt solutions to the risks posed by AI systems. Thank you."

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Background

In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the , the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.Ìę

In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.

Balancing the Public Interest

The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while through Federal statute (the Copyright Act). In so doing, they relied on , where the court described copyright laws 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”. The group also stressed the importance of technological neutrality and referenced . In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.

Text and Data MiningÌę

The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.

The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from . The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.

The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.

Authorship and Ownership of Works Generated by AI

One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI , , here, and ). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.

Final Recommendations

In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.

Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.

Public consultations are touted as one of the . Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.

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Tugce Kucukali is an IPilogue Writer and incoming LL.M. Candidate at University of British Columbia.

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The European Union (EU) Court of Justice Advocate General, Saugmandsgaard ØE, the long-awaited opinion on the action brought by the Republic of Poland against the contentious Article 17 of . The opinion examines the background of the Directive, the contested provisions, their interference with the right to freedom of expression, and the compatibility of this limitation with

The Advocate General explains the ratio legis of the Directive by referencing the value gap between the value that an online content-sharing service provider acquires from the copyrighted subjects and the value that it distributes to the rights-holders. The amount distributed is quite insignificant compared to the amount earned. The Directive also addresses questions such as whether the providers should themselves acquire rights on a work by licensing and remuneration and whether they could benefit from copyright exemptions, such as caricature, parody, and pastiche. The Directive attempts to achieve an equal footing on which providers and rights-holders could negotiate and eliminate this gap.

Under the Directive, the strict liability of the content-sharing service providers, who communicate the copyrighted works to the public, would require them to change their business model. As per Article 17, the providers shall not solely perform the “notice and takedown” procedure but “notice and stay down,” making the best efforts to prevent future uploads. This provision imposes an obligation of diligence to the providers since removed content is often re-uploaded. Rather than removal of such content ex post, ex ante prevention is set forth.

By this obligation, the providers employ diverse software tools such as hashing, watermarking, or fingerprinting. The Directive does not require the providers to adopt specific measures. Rather than a direct obligation, their use is indirectly imposed as an exemption from liability. The Advocate General emphasizes that this obligation is stipulated for operators that manage a significant, or even huge, volume of content. In each case, the measure is determined by considering the type, audience and size of the service, type of works, availability of suitable and effective means, and proportionate cost.Ìę

The Advocate General agrees that the provision interferes with freedom of expression since users are not completely free to upload any content. However, the content is monitored not to suppress freedom of expression, but to prevent copyright infringement. Even though the providers are currently able to filter and block any content according to their self-regulations, this does not constitute interference by a public authority, as is the case of Article 17.

Regarding the compatibility of this limitation with the Charter, the Advocate General investigated whether the limitation is prescribed by law, respects freedom of expression, and adheres to the principle of proportionality. Since the Advocate General regards this monitoring obligation as a specific and not a general obligation, prohibited by Article 15 of , the limitation does not infringe the “essence of the right”, its untouchable core which must remain free from interference. According to the Advocate General, the EU legislature’s safeguards minimize the freedom of expression risks. This respects the proportionality requirement while considering the value gap created, the difficulties of the notice and takedown system for right holders, and the fact that the obligation concerns a specific group of providers. Even though the Advocate General’s opinion was expected to sway in this direction, the instructions made towards the member states are crucial for the transposition of the Directive into their national laws, eventually leading to the smooth application of the Directive across the EU.

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The panel featured Professor Giuseppina D’Agostino as moderator, who is a Professor at Osgoode Hall Law School and founder and director of , the Intellectual Property Law and Technology Program at the school. From the(SOCAN), Janet Chong was the second speaker, representing Legal Counsel at Canada’s largest collective managing music rights. Jason J. Kee also spoke from the perspective of Government Affairs and Public Policy Counsel of Google Canada, and from Rogers Communications, Kristina Milbourn gave her legal views as the Director of Copyright & Broadband. Erin Finlay also shared some thoughts on the issues as a Partner with the firm Stohn Hay Cafazzo Dembroski Richmond LLP, specializing in the areas of entertainment law, copyright, privacy, and broadcast regulatory and cultural policy.

The discussion began with Professor D’Agostino summarizing the broad background of the balance principle that has defined the copyright legal landscape since its debut in 2002. Professor D’Agostino noted the concept as nothing new, spanning previous centuries of legal debate between stakeholders of the rights of authorship and reproduction of creative works internationally. After Theberge, the principle continued its influence throughout many more Supreme Court cases that Professor D’Agostino highlighted, including , , , all the way up to as recently as this year with . in 2019.

Ms. Chong followed with the perspective from SOCAN, a major Canadian music collective that cooperates with hundreds of thousands of music creators and businesses worldwide. She mentions the presence of SOCAN in Canada’s most influential IP cases within the past two decades, including three that were within the pentalogy of Supreme Court copyright cases of 2012. In terms of SOCAN’s position on the copyright balance in practice, Binnie’s principle is not much of an influence on her general work of advocating for fair rates and royalties for creators, and providing the end users with music services. But in terms of policy, the balance principle does shape the discourse in strengthening SOCAN’s lobbying efforts.

Erin Finlay provided her interpretation of the balance principle that she claims has lost its vigour over recent years. She emphasized the public interest as a balance of three factors, rather than it being misinterpreted as polarized between creator and user. There is a public interest in three things, claims Finlay: encouraging creation and encouraging dissemination of creative works, and obtaining a just reward for creative works. In her business, the principles “fair dealing” and “substantial part”, historic in our copyright law, are almost never relied on when the industry is creating entertainment products. She claims, instead, that the majority of her work is about collective bargaining, negotiations on copyright ownership, and rates licensing, all of which seeks the balance between creator, producer, and end user.

Kristina Milbourn then discussed how a company like Rogers Communications thinks about the concept of balance in our copyright law through its many branches. She notes that a massive corporation like Rogers shouldn’t be considered as a monolith when considering balance principles of our copyright law. Rather, as a parent company to a series of businesses, sometimes the interests align, and sometimes they don’t. This would mean that considerations of °Őłó±đČú±đ°ùČ”±đ’s principles would vary from the perspective of managing Television stations, to Internet services, to Broadcast Distribution Undertakings (BDUs), and depends on their interests at the time, which may or may not conflict.

Google Canada shared its views on the policy side through Jason Kee as counsel of government affairs. From a global perspective, Kee notes that Theberge is not dissimilar to international norms, and the interpretation of a polarized balance is also missing the mark, as Finlay has noted. He suggests that there are human rights issues at stake in terms of freedom and expression and right to remuneration, which may both align despite the discourse on the tensions that exists between them. What Kee emphasizes the most is not that balance should or should not be sought, as this is unanimously agreed upon by the national and international community. Instead, Kee stresses the difficulty of putting a defined quantum, or amount deserving for a certain party, in terms of payments to owners of copyrights who have their works circulating online.

Following each panelist’s presentation, questions were presented by Professor D’Agostino, and debate ensued, which revolved around the subjects previously covered, including how to properly remunerate creators, the notion of access and the balance principle, the international approach to solutions, and optimism for the future. As the discussion continued to spark debate amongst the distinguished panelists, it is certain that the topic will have a very prevalent place in our legal discourse on copyright law in Canada for years and decades ahead. It was certainly a successful inaugural seminar presentation by the Copyright Society, and I wish them the best on their continuing and much-needed presence in our legal community.

Written by Sebastian Romanutti, who is in his third year at Osgoode Hall Law School. This semester Sebastian was enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School and was a Legal Intern at SOCAN.

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The first speaker at the event was Erich C. Carey, Vice President and Senior Counsel of the National Music Publishers’ Association (NMPA), which is the trade association that represents American music publishers and their songwriting partners.

The NMPA often advocates for music publishers and songwriters, and the focus of Mr. Carey’s presentation was their work leading up to, and a general update regarding the US Music Modernization Act, with particular emphasis on how the MMA will change mechanical licensing.

The second speaker was John Phelan. Mr. Phelan is the director general of The International Confederation of Music Publishers, the trade association which represents the interests of the music publishing community internationally. Constituent members include music publishers’ associations from Europe, Middle East, North and South America, Africa and Asia-Pacific. One of ICMP's stated missions is to increase copyright protection internationally. The focus of Phelan’s presentation was the European Copyright Directive, and specifically article 13, the so-called “value gap” provision.

The Music Modernization Act

Carey explained that the MMA combined three previously separate bills-- The Classics Act, the AMP Act, and the Music Modernization Act. The bill passed unanimously through both the senate and house of representatives, and was passed in September 2018. Carey’s talk was focused on how the MMA would change mechanical licencing.

Mechanical Licensing - Background

Mechanical rights to a piece of music are those that stem from the mechanical embodiment of the piece.

According to Carey, mechanical licensing was put into place to compel licensing for a set royalty to piano players in cinemas.

The US Copyright Act codified this in s.106, while s.115 instated the copyright royalty board which has continued to be the body that adjusts the standard licensing fee.

The Copyright Act is now out of date in some ways. In the current era of streaming services, there are often issues matching the mechanical rights owner to the song. Under the Copyright Act, if there was a matching issue the streaming service would simply have to send a notice of intent to use the music to the copyright office, and would not have to pay until the true owner was identified.

While this would appear to be a sensible approach, a few years ago, the copyright office received 60 million notices of intent. This completely overwhelmed the system and effectively allowed the streaming services to use music without paying.

Proponents of MMA believe it can provide a solution

The MMA is in part meant to allow streaming services to pay rights-holders in a more straight-forward, streamlined way. The MMA creates a mechanical licensing collective. The collective will be run by a board of directors representing the music publishing industry, and will include three committees, including an Operations Committee, Unclaimed Royalties Committee, and Dispute Resolution Committee.

Streaming services with unmatched music will have to pay the appropriate royalty to the collective. The collective will then hold the money until the rights-holder can be found. The collective will also allow blanket licences, allowing streaming services to licence an entire body of work and not be concerned about outstanding royalties owed.

Costs associated with enacting the MMA

In accordance with the MMA, streaming services will pay for the costs associated with the MMA infrastructure.

The services have agreed to taking on the costs because there will be clear rules where there were none before, and so with the proper infrastructure in place they will now be protected from copyright infringement claims if they follow proper procedure.

Carey sees the MMA as a marketplace solution, which has allowed the typically slow-changing law to be specifically tailored to a rapid technological advancement.

He made it clear that there is still much to do regarding outlining the structure and technical implementation of the MMA, and that policy makers and industry members have a lot to do before the MMA’s January 1st, 2020 launch date.

European Copyright Directive

Mr.Phelan began his presentation at this point to discuss his area of expertise. The European Copyright Directive was adopted on April 17, 2019. Its purpose is to create better protections for rights holders. Mr. Phelan focused his talk on what is known as the “value gap” provision, or Article 13 of the directive.

Many services earn a significant portion from content that they do not pay for, and which they use without fear of liability.

Mr. Phelan used YouTube as an example -  until the directive was proposed, YouTube was covered under the Safe Harbour clause, which exempted services that were technical, automatic and passive from copyright laws.

As a result, YouTube was paying 20x less per user per year than what they should have been.

The directive aims to close the gap between the money services gain from the artists’ work and the money the artists see. Article 13 eliminates many exemptions, including the one that YouTube was originally covered by.

Under the new directive, services that have been available in the EU for more than three years or have a gross revenue over €10 million will be held liable for copyright infringements unless they can demonstrate taking certain steps to mitigate the issue.

They must show that they have made best efforts to get permission from the copyright holder and made best efforts to ensure that material without permission was not made available, and that they have acted quickly to remove any infringing material.

Reaction to Article 13

Though Article 13 may seem relatively straightforward, it has been a topic of .

Movements such as and #DeleteArticle13 are concerned that the new rules will be a censorship of sorts, causing services to block parody videos, live stream gaming, and other content.

Many are concerned about what they perceive to be restrictions on their online freedoms.

However, proponents of the directive state that it is a long-awaited modernization of the law, and that it will help protect artists. Members of the European parliament appear to agree as the directive has been passed.

Transposition of European Copyright Directive

The next step, Mr. Phelan said, is transposition. This means that within two years of the date the directive was published in the - May 17, 2019, - every country in the EU must enact laws that comply.

The European Commission will then examine each country’s enactment to make sure that it complies with the shared directive.

Transposition comes with its own set of challenges, as different countries have different ideals about the internet and copyright.

Staying up to date on European Copyright Directive

As the directive is transposed across the EU, Mr. Phelan suggests following the by Eleonora Rosati for insightful and up to date commentary.

Written by Rachel Marcus, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

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Certainly, (unlike some jurisdictions) the EU has been no shrinking violet when it comes to regulating the tech super-giants. The problem is that the debate around the Directive has, to a significant extent, been framed as a competition between publishers, media companies, artists, and record labels on the one side, with internet content sharers (like Google and Facebook) on the other. The point of copyright law, and IP law in general, often gets lost in the scrum between rights holders and users. But as emphasized by Professor , it is important to remember that, “the public is a third party to all [IP] litigation.”[1]ÌęThe focus on the public interest should be at least as significant when it comes to IP legislation.

In that spirit, while there are certainly arguments to be made on behalf of both content producers and content sharers, it is worth zeroing in on the views articulated by the Office of the United Nations High Commissioner for Human Rights. In a , Special Rapporteur David Kaye raised several concerns with respect to the proposed Directive. After outlining some of the international human rights law as pertains to the dissemination of intellectual property (which is certainly an interesting read to the unacquainted), Mr. Kaye raises three specific areas of concern, which I will proceed to briefly summarize.

Firstly, the Special Rapporteur aptly points out that the proposed Directive inappropriately incentivizes the ‘pre-publication’ censorship of content. That is to say, the language of Articles 13 and 19(3), “raise[s] pressure on content sharing providers to err on the side of caution,” and as such, “monitor and filter user-generated content at the point of upload.” This creates a restriction on freedom of expression without judicial review – indeed, to me it appears the EU has moved to deputize content sharers as judicial arbiters when it comes to deciding what content they can provide access to.

Secondly, this very concern about “extrajudicial mechanisms” is not allayed by the built-in dispute-resolution mechanism of Article 13(7). Mr. Kaye’s main concern here appears to be that due process rights may be infringed, especially given that the parties being asked to rule on the appropriateness of content are not impartial actors, but rather tend to be for-profit businesses with fiduciary responsibilities to their shareholders. Furthermore, these actors are themselves limited in the scope of remedy they can provide for human rights violations, which means that harms may not be adequately redressed, even if access to content is later re-established.

Lastly, because Article 2(5) of the proposed Directive sets out an ambiguous set of criteria for determining what is expected of smaller and non-profit content sharers, rather than providing a clear exemption, there is a significant concern as to whether these types of organizations will be able to pursue the kinds of licence agreements that would be required under the Directive. This might ultimately have anti-competitive effects, stifling the ability of smaller content sharers to grow and challenge larger, more established players who can afford licensing.

The EU Copyright Directive is thus a prime example of the implications that IP law can have on personal and civil rights. With the spotlight that Brexit shines on long-held concerns about the political and democratic accountability of EU institutions, it is important, now more than ever, that the EU focus on clearly considering the public interest, not just the interests of lobbyists on either side. It is difficult to say whether the Directive, as passed, discharges this burden.

Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School

[1] David Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law, 2011) at 14.

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The Supreme Court of Canada dealt a strong blow to the so-called promise doctrine and made international precedent when it ordered Google to de-index infringing websites across the global Internet. These and the other developments noted below pave the way for an IP-busy 2018 as we await the release of the National IP Strategy, which will hopefully set the stage for Canadian advancements and benefits from emerging technologies and business practices. Here at IP Osgoode, we are set to examine the promise and challenges associated with one of these important technology areas: artificial intelligence (AI). On February 2, 2018, our AI conference, “Bracing for Impact: The Artificial Intelligence Challenge”, will feature internationally renowned AI experts from Canada and abroad. For more information and registration, visit .

We hope you can take part in our AI conference as well as our regular suite of exciting activities and initiatives as 2018 gets further underway!

PATENTS

The patent law landscape experienced incremental changes and some profound shifts that seemed to mimic the changes of the seasons here in Canada during 2017.

It’s All About the Money

The year kicked off with a chilling warning to Non-Practicing Entities (NPEs) seeking to protect patent rights through litigation. NPEs commencing patent infringement actions “without a clear theory of infringement” may be sanctioned with for disregarding the “serious cost consequences [following from] allegations shown to be unwarranted”. In , the Federal Court of Canada was satisfied that the defendant’s activities were non-infringing; and because the plaintiffs “should have known that Bell did not infringe”, they were ordered to pay solicitor-client costs.

The Federal Court of Appeal reminded us in February that in “an extremely complex patent case involving [...] 22 allegations of invalidity, 33 days of discovery, 32 days of trial, written submission exceeding 700 pages, and the closing argument lasting three days”.

The Federal Court of Appeal also decided on profit recovery for infringing activities. In , the Court highlighted that the differential profit approach of recovery is to “ensure that a patentee only receives that portion of the infringer’s profit that is causally attributable to the invention”. Accordingly, the Court asserted that it is as the actual value of the “patent lies in the ability of the patentee to exclude competitors and competition” .

The Season of New Life and Law

In the UK, the beginning of spring was marked with a UK Patent Court decision on the interplay between IP and Competition Law. In , the court tackled issues involving standard-essential patents (SEPs), as well as the (FRAND) principles applicable to licensing agreements between patentees and licensees. In particular, the UK Court explained that the requirement to commit to FRAND terms in a SEP licence serves the public interest insofar as it spurs “the best and most up-to-date technical” standards to be set and inventors to “obtain a fair reward for their invention”. While Canadian jurisprudence is yet to develop on what negotiations are FRAND and what are not, the guidelines forecast issues that industries might face on this matter.

Shortly after, the Federal Court of Canada released its , which aimed at developing efficient, expedient, and proportional use of court time. A rundown of the particularly noteworthy protocols to streamline trials and court’s resources is available .

The spring also ushered in a as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union received Royal Assent on the 16^th of May []. It is important to note that CETA listed the ICSID tribunal as the main recourse for disputes. on how this may affect the IP environment domestically suggests that the ICSID’s unappealable decisions could be a new problem for Canada, absent the requirement of certification in domestic courts. So, in addition to CETA’s implications toward patent term restoration, appeals under NOC regulations, and the potential end of dual litigation — see general outline and significance for pharmaceutical patent protection — further developments stemming from the tribunal jurisdiction are anticipated for the new year.

The last development of the season provided an important lesson from a business perspective regarding IP transfer agreements. In , poor management of IP rights and poorly conceived transfer agreements proved to be a hindrance to enforceability. The Federal Court also delivered an important lesson around patent infringement when it announced the Public Judgement and Reasons in , awarding Dow Chemical the largest patent infringement monetary award in Canadian history: $644,623,550 and pre-judgement interest.

Utility, Enforceability, and NOCs

Two hot-button issues from the Supreme Court of Canada heated up the start of the summer. One involved the decision that did away with the Promise Doctrine, and the other pertained to a global takedown order imposed on an online intermediary (Google) that may change the future of IP enforcement.

In the first, , the Court effectively abolished the Promise Doctrine on utility. , all explicit promises of utility made by a patentee had to be fulfilled for the patent to be valid. The Court nonetheless deemed this requirement “unsound” and “not good law”. For the Court, “depriv[ing] such an invention of patent protection if even one ‘promised’ use is not soundly predicted or demonstrated is punitive and has no basis in the Act”. So, in bringing the common-law more into accord with the requirements for patentability, the Court revamped , requiring that the patentees demonstrate, essentially, what the subject-matter of the invention is, and how it is useful in serving a practical purpose.

The second case, , played an important role in increasing IP enforcement outreach in the Internet era. It provides the courts with a more effective measure to protect IP rights. Specifically, the precedent allows an IP owner to obtain a court order against search engines — such as Google in this case — for the removal, on a global scale, of search results (websites) that facilitate infringement of IP rights. It will be interesting to observe whether or not this decision affecting online intermediaries such as Google will to address the problem of unreachable wrongdoers, or will conversely be deemed a to non-infringing actors that are a .

The end of summer featured the ’s proposed amendments to the Notice of Compliance (NOC) Regulations. The amendments seek to update the pharmaceutical patent litigation regime in Canada, enabling Canada to . A discussion of the most significant changes to Canada’s NOC Regulations can be found . The changes will apply to proceedings in which Notices of Allegation (NOAs) were served on or after September 21, 2017 — the date of the NOC Regulations.

Promptly after, the Federal Court released its for actions under the amended NOC Regulations to promote efficiency in light of the strict timelines — 24-month timeframe for a proceeding to be completed and a decision rendered — imposed by the . The guidelines set out procedural rules to be observed for proceedings under the amended NOC Regulations. Some key points worthwhile to look at were outlined .

A Not-So-Obvious Future

Lastly, the winter months saw an of the Canadian law of obviousness. In , the Federal Court of Appeal deemed the “inventive concept” set out in the case an “unnecessary satellite debate” in the analysis of obviousness. After being over the years — see , — the current test for obviousness seems to place emphasis on the as a , at least until a clearer definition of the “inventive concept” is developed by the Supreme Court.

TRADEMARKS

2017 saw a number of notable Canadian court decisions in the realm of trademark law. Outside of the courts, other developments will also shape the IP landscape going forward.

Consumer Criticism Gets a Bit Riskier

In a case dealing with consumer criticism of a brand - - the Federal Court returned a decision favourable to brand-owners. The plaintiff, United Airlines, sued the defendant, Jeremy Cooperstock, for trademark and copyright infringement, depreciation of goodwill, and passing off, over his “gripe site” . The court characterized the website as a “consumer criticism website where visitors can find information on the Plaintiff, submit complaints about the Plaintiff, and read complaints about the Plaintiff dating back to 1998 in the database of complaints.” The website included an .

Justice Phelan held that Cooperstock provided “services” through the website and that the marks were “being used or displayed in the advertising or performance of services pursuant to s 4(2) of the Trade-marks Act.” He also found that there was a likelihood of confusion. As a result, the defendant was found to have infringed s. 20(1)(a).

The defendant was also found liable for passing off: the court found significant goodwill attached to the United marks, that there was confusion and the likelihood of confusion, and that the plaintiffÌę suffered damages or was likely to suffer potential damages.

The court held that Cooperstock “intentionally attempted to attract the Plaintiff’s online consumers to his own website for notoriety” and therefore depreciated the goodwill associated with the United marks, contrary to s. 22. Of note, the Defendant was also found to have infringed copyright in the marks and Justice Phelan dismissed the fair dealing defence of parody.

Whereas previous decisions such as Michelin v. Canadian Auto Workers andÌęBCAA et al. v. Office and Professional Employees’ Int. Union et al., had held that trademark owners’ rights to control the use of their mark in the context of criticism were limited, the United case demonstrates that brand critics must be careful in their use of brands’ logos and trademarks. While , “[i]n this case, the Defendant sailed too close to the wind – and he was put up on the rocks.”

Why Seek an Injunction Anywhere Else?

In , the plaintiff Sleep Country was successful in its motion for an interlocutory injunction. Sleep Country sought to restrain Sears from using the slogan “THERE IS NO REASON TO BUY A MATTRESS ANYWHERE ELSE”, which it argued was confusing with its own slogan “WHY BUY A MATTRESS ANYWHERE ELSE?” Sleep Country alleged that Sears’ use of the slogan was causing harm to Sleep Country as “a result of confusion between the two slogans, as well as depreciation of the goodwill and loss of distinctiveness of Sleep Country's registered trade-marks.”

The court considered the tripartite RJR-MacDonald test for issuing such an injunction: a serious issue has been raised, the party seeking the injunction will suffer irreparable harm if the injunction is not granted, and the balance of convenience favours the seeking party. The key issue on the motion was irreparable harm, which the court found was established by Sleep Country’s “concrete and non-speculative evidence.” Justice Kane held that lost sales, loss of distinctiveness, and depreciation of value of the slogan would lead to irreparable harm, and that the harm could not easily be quantified. The balance of convenience was also found to favour Sleep Country.

It has traditionally been quite difficult for trademark owners to obtain interlocutory injunctions. The Sleep Country case indicates that the courts may be relaxing the onus on trademark owners to prove irreparable harm, particularly in cases where confusion is quite apparent.

Notably, the Quebec Superior Court in denied the plaintiff a similar injunction because “the Court cannot come to the conclusion that it is clear that the use by Cascades new Fluff trademark will cause confusion with the Royale trademarks.” Irving dealt with the allegation that Cascades’ fluffy bunny was confusing with Irving’s furry Royale kittens. The court concluded that “the use of white furry animals is not unique to the packaging for living's products” and that any harm would be quantifiable. Contrasted with Sleep Country, in which it was held that any harm would be too difficult to quantify, Irving shows that it may still be difficult for trademark owners to obtain interlocutory injunctions.

Injunctions Go Global

In a case that dealt with trade secrets and passing off, , the Supreme Court affirmed the effectiveness of an extra-territorial injunction granted by the lower courts. The issue on appeal was “whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.”

The court concluded that the injunction was the only way to mitigate the harm to Equustek pending the resolution of the underlying litigation. The case therefore stands for the availability of an extra-territorial injunction as an equitable remedy in Canadian courts: “Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world.”

Among the other trademark cases decided by Canadian courts this year, and are of particular interest.Ìę In Travelway, the Federal Court of Appeal held that owning a registered mark is not a complete defence to infringement – the respondent’s registered mark was held to infringe that of the applicant’s. In Diageo, the Federal Court held that Heaven Hill’s Admiral Nelson rum products infringed Diageo’s registered Captain Morgan marks. The court considered the plaintiff and defendant’s trade dress and found the Captain Morgan trade dress to be a distinguishing guise and therefore enforceable under the Trade-marks Act. The court also found that the goodwill associated with the Captain Morgan mark had been depreciated.

Other Changes to Trademark Law

Canada’s updated Trademarks Act is set to come into force in early 2019. In June 2017, the the first draft of the new Trademark Regulations. Comments were accepted until July 21, 2017 and will be taken into consideration when revising the draft regulations. Among the notable changes coming in 2019 are Canada’s accession to the Madrid Protocol, the Singapore Treaty, and the Nice Agreement and its classification system. Also significant will be the removal of the use requirement at the time of registration.

COPYRIGHT

2017 continued many of the debates and cases started from the previous year. While some decisions received accolades, others received outright criticism. As was the case in 2016, fair dealing questions came to the fore and hit close to home at 91ŃÇÉ«.

Fear Dealing and Post-Secondary Education

In a much anticipated decision, the Federal Court ruled against 91ŃÇÉ« in and directed the university to pay an interim tariff to Access Copyright. In 2011, 91ŃÇÉ« opted out of the Access Copyright licence due to increasing tariffs and implemented its own copyright guidelines. Crucially, the 91ŃÇÉ« guidelines allowed students enrolled in a class or course to receive a single copy through a coursepack or via a posting on an online learning management system if the copying was done in accordance with “fair dealing”. However, the Federal Court held that 91ŃÇÉ« did not have any right to opt-out of tariffs and that the university’s guidelines were arbitrary and not compliant with section 29 of the . Among other things, the guidelines operated under the assumption that the use of 10% of a copyright-protected work was “fair dealing” but did not provide an explanation. Quantitatively, this threshold might seem to restrict copying of an entire text. But, as , qualitatively, the parts copied may constitute the “core” of the work, making such use “unfair,” and conceivably allow for the reproduction of the entirety of a work if multiple sections are used across courses and faculties. Further, the court emphasised the school’s failure to comply with the guidelines and therefore, enforced the interim tariff. the inclusion of “education” as a fair dealing purpose played little role in this decision. While much attention on the case framed the important issues with respect to fair dealing, note that the case was not about copyright infringement, but rather whether tariffs imposed by the Copyright Board of Canada are mandatory for post-secondary institutions that use copyright-protected material licensed by Access Copyright. 91ŃÇÉ« indicates it will the decision so these questions will continue in 2018 and beyond.

Anti-Circumvention and Technological Protection Measures

Setting precedent in 2017, in the Federal Court applied substantive rules on the anti-circumvention of technological protection measures (TPMs), which were introduced in the Copyright Act 2012. The Federal Court expressed its willingness to enforce the TPMs and protect against circumvention in the digital age. The case involved a corporation named Go Cyber shopping (2005) Ltd., which sold and installed circumventing devices enabling users to play potentially hundreds The Federal Court in the suit filed by Nintendo, awarded $12.7 Million as damages and held that Go Cyber “authorized” copying by providing instructions to download header data without the consent of Nintendo constituting infringement. suggests that by adopting “a broad interpretation of a technological protection measure”, the court confirmed Canadian copyright law’s tough stance on copyright piracy.

Obligations of Internet Service Providers

The ongoing conflict between reached the Supreme Court after the decision of the Federal Court of Appeal (FCA) in 2017. Rogers filed before the Supreme Court to consider the scope of the Internet service provider’s (ISP) obligations under the notice and notice system. The FCA ruled that ISPs can disclose the alleged offender’s identity for free. The decision surprised the industry because it would be easier for copyright holders to that they come to financial settlements.

Data protections

Affirming the trial court’s ruling on the copyright protection of seismic data, the appeal in the Alberta case of was dismissed and appeal by GSI to the Supreme Court was denied. On Appeal, GSI argued that Section 101 of should be interpreted properly. , “The correct interpretation of "disclose" also confers on these Boards the legal right to grant to others both access and opportunity to copy and re-copy all materials acquired from GSI and collected under the Regulatory Regime”.

This decision will ensure copyright protection of seismic data by simultaneously providing a framework to access it.

Canadian content and Copyright-related Reviews

In 2017, the Federal Government also adopted initiatives to protect Canadian creators and introduced a policy framework to extend Canadian content worldwide. On September 28, MĂ©lanie Joly, Minister of Canadian Heritage, announced Later in the year, on December 13, the Government officially announced the Parliamentary Review of the Copyright Act, as mandated by the 2012 Copyright Modernization Act.Ìę The government also to reform Copyright Board of Canada in August.

U.S. Developments

In the U.S., perhaps the biggest copyright case of 2017 was The case dealt with the issue of whether copyright could subsist in the “pictorial, graphic, or sculptural features” of a “design of a useful article” – in this case, cheerleading uniforms. Ultimately, the U.S. Supreme Court held that such design features as the arrangement of lines and shapes on cheerleading uniforms were eligible for copyright protection, so long as they were separable from the useful article in question. In other words, if the impugned designs were imagined in abstraction – say for example if they appeared on a canvass – and thus eligible for copyright protection, then they would be equally eligible for copyright protection as part of a useful article. Therefore, while copyright cannot protect the shape, cut, or dimensions of cheerleading uniform, those design features that are separable from the functional object may be eligible for copyright protection. And while such a holding is not entirely novel, the Star Athletica decision likely sets a valuable precedent for lower courts that have struggled with the extent to which copyright protects the design features of a functional object.

Fair use was also a hot topic in U.S. courts in 2017, with a variety of interesting outcomes in cases across creative media. In , a raunchy parody of the Dr. Seuss classic “How the Grinch Stole Christmas” was held to be the kind of transformative work that qualifies as fair use. Meanwhile, in , a U.S. district court judge held that unauthorized children’s versions – or “KinderGuides” – of classic books by Hemmingway, Kerouac, and the like did not constitute fair use, but rather infringing use. In music, Drake’s use of a spoken word sample from jazz artist James Oscar Smith was held to be fair use in , and in film, a Star Trek fan-fiction movie was held to be a derivative work and not fair use in .

Copyright Around the World

Internationally, toymaker Lego was successful for the first time in a against manufacturers in China of some near-identical toys. 2017 also saw China clearly establish its growing importance on the international copyright stage, with deals in the book industry and increasing pressure on to meet international standards with respect to copyright licensing. Meanwhile in the E.U., courts held that if they perform an essential role in facilitating piracy of copyright-protected material, and that the may constitute copyright infringement.

IP OSGOODE

In 2017, IP Osgoode celebrated one of our very own, , who has been a guiding force in the Canadian intellectual property (IP) landscape for the past 40 years.Ìę IP Osgoode and Osgoode Hall Law School hosted a special symposium entitled, “” in celebration of Prof. Vaver’s in recognition of “his leadership in intellectual property law as a scholar and mentor”.

The symposium included a distinguished set of participants drawn from Prof. Vaver’s network of former students, colleagues and research collaborators, and highlighted four main themes of Prof. Vaver’s extensive scholarship: overlap and redundancy in the IP system, legislation and reform, users’ rights, and the importance of history. The luncheon keynote speaker, The , CC,QC (Supreme Court of Canada, 2006 to 2015),Ìę who was introduced by The , QC (Federal Court of Canada, 2001 to 2016), provided a heartwarming speech that gave the audience a glimpse into Prof. Vaver’s early life and career.

To mark the yearÌęProf. VaverÌęreceived theÌęOrder of Canada, IP Osgoode medal. The medal will be awarded yearly to an Osgoode student in the graduating class who merits special recognition for outstanding achievements in the area of intellectual property law. The student’s achievements extend beyond academic excellence, and can include significant contributions to research in intellectual property and related areas or exceptional commitment and enthusiasm through their participation in intellectual property-related extra-curricular activities.

Following the previous year’s successful partnership with Norton Rose Fulbright LLP, the IP Osgoode Innovation Clinic continued to grow in 2017. On behalf of IP Osgoode, Professor D’Agostino entered into an exciting with the International Law Research Program at the Centre for International Governance Innovation (CIGI) to support the Innovation Clinic. The IP Osgoode-CIGI partnership stems from a mutual desire to facilitate the discovery, dissemination and application of new knowledge concerning practical IP law training of law students and the desire the to facilitate the provision of basic IP legal services to early stage innovators and start-ups. IP Osgoode hired Dr. as the first full-time Innovation Clinic Coordinator. The addition of a full time coordinator has allowed for a substantial increase of the Clinic’s carriage of client files and expanded the Innovation Clinic’s outreach beyond the 91ŃÇÉ« and Osgoode Hall communities as well as the Toronto and 91ŃÇÉ« Regions into the Waterloo Region and throughout Ontario.

The partnership also supports Prof. D’Agostino’s research project, which consists of a critical evaluation of the Innovation Clinic model as well as clinic models elsewhere, and identifying potential opportunities for developing a sustainable network of clinics in Canada and beyond. The research and report will further dialogues between industry, law schools, law societies, the Canadian Intellectual Property Office (CIPO), levels of government, and other relevant stakeholders regarding the creation of a network of IP law clinics across Canada. This work will be published in 2018 and help inform and support CIPO and federal government initiatives to increase IP awareness, accessibility, and education in Canada.

Top 10 most read 2017 IPilogue articles

Giuseppina D’Agostino is the Founder & Director of IP Osgoode, the IP Intensive Program, and the Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from Stephen Cooley (IPilogue Editor & Osgoode JD Candidate) and Haramrit Kaur (IPilogue Editor and Osgoode Professional Development LLM (Canadian Common Law) Candidate) on Copyright, Sebastian Beck-Watt (IPilogue Senior Editor & Osgoode Graduate) on Trademarks, and Bruna Kalinoski (IPilogue Editor & Osgoode LLM Graduate) on Patents.

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In November 2008 and April 2012, Toronto Police Services executed a criminal search warrant at Dr. Flea’s Flea Market, leading to over $1 million of counterfeit merchandise being seized – some of which included Louis Vuitton products. Unfortunately, the flea market did not learn from its past mistakes. In November 2015, The Fashion Group Couture Group – a vendor operating out of Dr. Flea’s Flea Market – was once again caught selling counterfeit Louis Vuitton products. The well-known fashion brand is now seeking compensation from the landlord of the flea market forÌęnegligence, vicarious liability, and (as will be focused on within this article) intellectual property infringement.

Unfortunately, lawsuits involving intellectual property infringement are certainly not unheard of in the fashion industry. From , to , intellectual property rights remain a significant issue for both corporations and individuals. However, what makes this lawsuit different from any other infringement within the industry?

It is common practice for brands to bring lawsuits against theÌęvendors of counterfeit products. However, bringing lawsuits against the landowners of retail space is a relatively new legal phenomenon in Canada. The ability to hold landlords accountable for their vendors’ activities hasÌęalready been established and legislatedÌęunder U.S. law. Canada, however,Ìęhas neverÌęimplemented regulations in this area, and is behind its southern neighbour.

One of the few guiding cases is In this case, the defendant was found by the Court to have infringed the rights of Chanel Inc., which holds the licence to use Chanel trademarks in Canada. Pursuant toÌęÌęof theÌę, the Court granted: declaratory relief confirming the validity and ownership of the Chanel trademarks, injunctive relief precluding the subject defendants from continuing their infringing activities, and injunctive relief requiring the delivery up and destruction of any remaining infringing goods within twenty-one days of the original judgment. Ultimately, the federal judge ordered the landowner selling the knock-off goods to pay over $300,000Ìęin compensation. However, without many cases in this area, the fate of Dr. Flea’s Flea Market is still subject to debate.

Landowners have argued that consumers are not necessarily cleared of responsibility either when it comes to purchasing counterfeit products. The gives tips on how to ensure that the product the consumer is buying is not counterfeit or pirated. Further, the website outlines the necessary steps if one suspects a bought product is illegitimate. For example, visiting the further warnings and information. Such caution signs include, but are not limited to, bargain prices, incorrect logos, and/or the lack of a certification label. Ultimately, landowners claim that it is extremely difficult to even tell the difference between authentic and counterfeit products. They argue that the consumers should be held accountable for purchasing the knock-off goods, and inadvertently funding organized crime.

Although this lawsuit is just beginning, one thing is assured: if Louis Vuitton successfully sues the owners of the flea market,ÌęCanadian brands will now have an extra tool in protecting themselves against infringements involving intellectual property. With more at stake for landowners, this increased responsibilityÌęwill hopefully encourage landowners to better regulate the products that their vendors are selling. The question remains, is this enough to end the fight against counterfeit products?

Giuseppina D’Agostino, founder and director of IP Osgoode, commented on this lawsuit in a recent stating that, “Should the case be successful, it would increase pressure on landlords to monitor their tenants
 [however] those changes will be toothless without enforcement.ÌęYou can have whatever contract written down, whatever law, whatever lawsuit, if it’s not enforced, the problem proliferates. [
] I think it may change some behaviour in terms of landlords being more judicious in who they lease their space to but long term I don’t think it will really address the bigger problem of infringing merchandise.”

The reality is, even with a successful precedent set by this case, the need to codify reform in this area of law remains pressing. If one thing is certain, however, it is that no oneÌęcanÌę“flea” from Louis Vuitton,Ìęnot even the local flea market down the road.

Alessia Monastero is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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What is Open Science?

Scientific journals have been a convenient medium for accessing compilations of scientific findings for over 100 years. Normally, a scientific journal focusses on a defined range of scientific topics and offers access through paid subscriptions or the purchase of individual articles. The tradition of paywalls can prevent fellow scientists or aspiring academics from accessing, understanding, and potentially integrating relevant scientific findings into one’s own work.

In contrast, open science is a growing trend which makes research findings available to the public free of charge. The movement goes one-step farther by also binding subsequent users by the same conditions of free distribution to support a broader network of free-flowing information. In a field where data is of the utmost important in developing scientific procedures and experimentation, the movement towards an open dissemination of findings seems like the only way to organize research. However, free distribution may overwhelm prospective readers through the sheer volume of scientific literature that is produced or cause readers to misconstrue scientific findings without summaries by relevant authorities, which would often accompany traditional paid journal entries. Furthermore, the complicated and highly competitive nature of scientific research often obliges scientists to keep their findings to their research groups or parent institutions for fear of competitors reaping the benefits of many years of testing hypotheses. So, when a tired and weary research group finally has a “eureka” moment, what would motivate them to share a potential cash cow with the world at large?

MNI’s Reasoning Behind the Backing of Open Science

, the director of the MNI, that the benefits of the MNI opening the doors to its neurological findings greatly outweigh the costs. The nervous system, consisting of the brain, spinal cord, and peripheral nerves, is one of the most, if not the most, complex part of the human body. Accordingly, understanding its functionality and developing treatments for diseases affecting such a delicate and perplexing biological system is incredibly challenging. This has led to a relatively low output of effective treatments for diseases of the brain and nervous system despite increasing public pressure to identify the etiology of neurological and psychiatric diseases.

By becoming the first world-class institution to fully promote open science, MNI hopes that its researchers’ preliminary findings will receive increased exposure and be used in drug-development projects across various institutions. Having more eyes on the MNI’s data, findings, and experimental methods and waiving some will likely allow neurological innovations to move more quickly from inception to the patent stage. This would be in contrast to the more traditional course of scientific development, where scientists regularly encounter barriers to accessing data or experimental findings of similar institutions that would speed up the progress of their own research.

The Risks to MNI’s Approach

Of course, the drawbacks to offering open access include risking a possible loss of grants and patentable products for those who invest time and energy into critical preliminary stages of scientific development. In the public context, this may mean scientists are not recognized for their findings and the likelihood of receiving grants to support further innovative research is reduced. In the private context, research groups may have their findings taken advantage of by companies who develop a patentable product and introduce it into the market at a high cost to consumers.

Since scientific development also occurs in small, incremental steps, the findings of one research group may not initially seem substantial, but can turn out to be important in the eventual development of a patentable drug which revolutionizes neurological therapeutics. A research group may lose sources of revenue if they decide to waive traditional intellectual property rights to their findings and only later realize their work was a crucial step in developing many marketable technologies. Furthermore, despite the esteemed nature of scientific professions, acquiring funding can be incredibly difficult since the patentability and marketability of future products will often not be evident in an exploratory project. However, such exploratory projects still are a fundamental link in the chain from theoretical conception to industrially applicable therapeutics.

How does MNI Overcome these Concerns?

While patents can generate significant income for researchers, Dr. Rouleau explains that there are ethical obligations to promote scientific discovery. There is always some risk that, in publicly disseminating research data, the Holy Grail of science will be made available without any intellectual property rights afforded to its original finders. This can lead to competition among industrial leaders who may seek to ensure any marketable products that draw upon open science findings are patentable and protectable at law. However, sequestering such an important finding to one institution may belie the objectives of scientific institutions such as MNI. In conducting laboratory experimentation or clinical trials, neurologists and other scientists working on medical therapeutics are ultimately trying to solve contemporary health problems and allow those afflicted with debilitating diseases to live with dignity and freedom from everyday discomfort and pain.

Looking Forward as a Community

What makes the movement of the MNI interesting, is that the institution’s focus on early-state neurological research allows for a smoother transition from closed to open science. This is where Copyleft practices can help promote a more effective form of scientific development. By acting as a leader in open access and open intellectual property distribution, MNI’s historic move may inspire other institutions to openly share their results as well.

It’s unclear what the effect of MNI’s support of open science will be, but one hopes that it will lead to a more collaborative scientific community driven by an increasing sense of joint innovation and sustainable research funding. Integrating a more careful examination of whether one’s scientific discoveries are worth patenting and whether a patent would generate substantial returns throughout the scientific research process may promote more cautionary patenting and a greater understanding of what legal rights are necessary for sustainable research in an interdependent field. Furthermore, the development of open science can allow smaller research institutions to contribute in a more meaningful way to broader scientific discourse by not necessarily creating new research findings, but interpreting results and offering new perspectives.

Similarly, open science can inspire youth who are considering a career in science to engage with the state of the art and witness scientific discovery as it develops in the literature and market. However, the interests of third parties who have existing intellectual property rights would need to be balanced with those of academic institutions who want to make the patented techniques or methods available to the public, free of charge. This may lead to insurmountable hurdles to open access, but with good reason. The revenue generated by some patents may be necessary to a third-party’s business model and funding further scientific experimentation. Consequently, in moving forward as an interdisciplinary community, constructive negotiation and foresight to the marketability of scientific discoveries will be paramount in ensuring adequate access to information is maintained without infringing on the sustainability of institutions or third-parties.

Dominic Cerilli is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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A group of thirty-seven professors and leading scholars of intellectual property, information law and digital economy, including IP Osgoode's own , signed a response regarding Article 11 of the Proposal for a Directive on Copyright in the Digital Single Market, entitled 'Protection of press publications concerning digital users'.Ìę To read the full response click .

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