In the summer of 2023, I found myself in a room with security researchers, ethicists, and engineers, tasked with a peculiar assignment: make an advanced AI system fail. Our objective was to probe a large language model for vulnerabilities, to elicit harmful outputs, expose hidden biases, and stress-test the guardrails its creators had painstakingly constructed. This practice, known as , has become the crucible through which responsible AI developers assess whether their systems are fit for public deployment.

Although I am not a computer scientist, my work as a law professor and legal scholar has long engaged with the capacity of legal frameworks to respond to technological disruption. In that room, surrounded by experts who could articulate attention mechanisms and tokenisation with casual fluency, it was evident that I had as much to learn as I had to offer. At the same time, the exchange highlighted that legal training contributes a distinct and necessary perspective. Lawyers are trained to identify risk, anticipate misuse, evaluate harm, and analyze the real-world consequences that may flow from algorithmic failures. The experience therefore underscored a broader insight, one that the AI industry has perhaps been slow to recognise: that effective red teaming exercises need more lawyers.

The Evolution of Adversarial Testing

Red teaming traces its lineage to Cold War military strategy, where designated adversaries (the “red team”) would simulate enemy attacks to expose defensive weaknesses. The practice migrated to in the 1990s, where penetration testers probed corporate networks before malicious hackers could. When applied to AI systems, red teaming evolved from what hobbyists once called “jailbreaking” (the sport of coaxing chatbots into misbehaviour) into a endorsed by governments and embedded in emerging regulatory frameworks.

Today, AI red teams attempt to elicit dangerous capabilities: the generation of misinformation, the production of discriminatory content, the leakage of private training data, or the provision of instructions for genuine harm. The widely discussed and the , both identify adversarial testing as essential to responsible development. Major AI labs now routinely engage external experts to probe their systems before release, a practice that has become standard (even obligatory) in the field.

Yet red teaming is not without limitations. Exercises are necessarily time-bound; testers cannot anticipate every deployment context or user intention. Findings do not always translate into engineering solutions. And crucially, red teams often lack the interdisciplinary breadth necessary to identify the full spectrum of potential harms. A team composed primarily of computer scientists and ethicists will see certain vulnerabilities clearly and remain blind to others entirely.

What Legal Eyes See

During our red team exercise, while my colleagues focused generally on whether a model would generate violent content or produce biased outputs, my attention gravitated toward a different set of questions. When the model confidently asserted false statements about a living person, I immediately thought of : the constituent elements of the tort, variations across jurisdictions, and the practical difficulty of establishing fault when the “speaker” is an algorithmic system. Similarly, when we successfully extracted fragments of what appeared to be training data, my focus shifted to data protection law, in particular the , and the question of whether such extraction might amount to a violation of data protection obligations.

These were not simple peripheral concerns. They were legally cognisable harms, with potential implications for regulatory scrutiny, reputational damage, and liability exposure. Yet without legal expertise in the room, they might have been catalogued simply as “problematic outputs” rather than understood in their full juridical dimension. This experience thus illuminated why lawyers should be integral members of red teams, not as afterthoughts or compliance consultants, but as core participants in the adversarial imagination that safety testing demands.

Five Reasons to Invite Lawyers to Break Your AI

1. Lawyers understand harm with juridical precision

To begin with, legal training brings a distinctive precision to the identification and classification of harm. The law does not treat all harms equally. Defamation, discrimination, privacy violations, and intellectual property infringement each carry specific definitions, evidentiary burdens, and remedial consequences. When a model produces troubling outputs, lawyers can distinguish between the merely objectionable and the actionable, a distinction that fundamentally shapes risk assessment and mitigation priorities. The in the United States illustrates how model failures can rapidly become legal crises.

2. Privacy law requires specialised fluency

A related consideration arises in the domain of privacy, where legal analysis demands specialised fluency. The global patchwork of data protection regimes, the in Europe, the in California, , , and Kenya’s , have created intricate and sometimes contradictory obligations. When red teamers probe for memorization of personal data or attempt to extract training data, lawyers are equipped to assess whether such vulnerabilities implicate specific regulatory requirements and to anticipate how data protection authorities may respond.

3. Lawyers are professionally trained in adversarial reasoning

Equally important is the legal profession’s grounding in adversarial reasoning. The courtroom is, in essence, an institutionalised red team: opposing counsel systematically probes weaknesses in argument, inconsistencies in evidence, and ambiguities in position. This mode of reasoning cultivates a particular cognitive disposition-the habit of thinking from the perspective of an adversary-that translates directly to the work of identifying how malicious actors might exploit AI vulnerabilities. Lawyers are trained, quite literally, to find the holes and the points of failure

4. Legal expertise enables regulatory foresight

The AI governance landscape is shifting rapidly. The imposes binding obligations on high-risk systems. Numerous . Countries across Africa, from to , have developed national AI strategies. Lawyers can stress-test systems against forthcoming requirements, helping developers prepare for regulatory futures rather than merely react to regulatory presents.

5. Lawyers navigate cross-jurisdictional complexity with native facility

A model deployed globally must contend with the legal frameworks of dozens of jurisdictions simultaneously. What constitutes prohibited hate speech in differs from what triggers liability in the United States, which differs again from prohibitions in or . Lawyers versed in comparative and international law can map how a single model output might cascade into disparate legal consequences across borders, a complexity that homogeneous technical teams are ill-equipped to navigate.

An Invitation and an Imperative

To fellow lawyers who have watched the AI revolution from the side lines, uncertain whether our expertise has purchase in this domain: the answer is that it does. The skills we have cultivated through legal training (close reading, adversarial thinking, the anticipation of misuse, the parsing of ambiguity) are precisely what red teaming demands. I don’t think we need to fully understand the mathematics of transformer architectures to recognise that a model’s confident fabrications might constitute negligent misrepresentation, or that its profiling capabilities might violate privacy law or raise constitutional questions under . Legal analysis operates at the level of consequences, responsibility, and rights, precisely where many AI risks ultimately materialise.

To AI developers and safety organisations: we need diversified red teams. The homogeneity that characterises many current exercises (dominated by security researchers and machine learning engineers) leaves some critical vulnerabilities unexamined. Legal scholars, practising attorneys, and even law students possess perspectives that will reveal risks invisible to those who share similar training and assumptions.

The stakes warrant this expansion. As AI systems assume greater roles in consequential domains (employment, credit, criminal justice, healthcare, content moderation), the potential for legally significant harm multiplies. I think that red teaming that excludes legal expertise is red teaming that leaves the courtroom door unguarded. In my own journey from legal academic to participant in AI safety exercises, I have learned that, sometimes, the most valuable insights emerge from disciplinary friction. Questions that may initially appear naive to engineers can illuminate genuine legal and societal risks. This is why we need more of that productive dissonance. We need more lawyers willing to tackle the machines.

is a Vanier Scholar and Ph.D. candidate at Osgoode Hall Law School, examining ways that the legitimization of AI is impacting the pursuit and realization of human rights in Africa.

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Photo by Francois Le Nguyen ()

Emily Chow is an��IPilogue��Writer and a 1L JD Candidate at Osgoode Hall Law School.���� �� ����

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2022 is primed to be an important year for humanity’s actions against global warming. COP26 (Conference of Parties) . It generated momentum that must continue to meet the goal of the by 2050: to reduce the Earth’s temperature by 1.5°C. 196 Parties adopted this internationally binding treaty. With the additional challenges brought forth by COVID-19, (net)zero-carbon solutions urgently need to be implemented across all levels and structures. The from this collective responsibility to reduce greenhouse gas emissions. It has the capacity to usher in radical, life-saving changes. One way is through the

According to the World Economic Forum, eight industries generate : agriculture, construction, fashion, fast-moving consumer goods (“FMCGs”), electronics, automotive, professional services, and freight. This article discusses the role of fashion in climate change, and more importantly, highlights some textile innovations and organizations demonstrating the core values of circular economies.

Circular Economies: An Overview

A “circular” economy is more than a corporate citizenship buzzword or a . The three key pillars, or goals, supporting circular economic systems are: to. True circular production generates products and materials that can be reused, repaired, or remanufactured, thereby eliminating the concept of “waste” generated through consumer capitalism. These systems emulate what is inherent within nature’s ecological systems, such as and or cycles.

The Case for Fashion

Fashion, and by extension any forms of creative self-expression, potentiate important sociopolitical spaces for and individuals. Fashion can be , and . It can be responsive to or representative of . Fashion coalesces and will continue to so long as culture exists. It is also plain fun to feel good in what you’re wearing and for your clothing to represent you.

The fashion industry has roots across including (pun intended), retail, , , . Remedying the supply chain can , which struggle to fund expensive decarbonization efforts given their low profits relative to high emissions. Consumer-facing industries like fashion generate higher profits per ton of emissions, and thus can pass along decarbonisation costs in .

Along with the benefits of a circular economic system come concerns of and the privilege inherent in purchasing an expensive item upfront. Not to mention, the capacity to make climate-informed decisions further depends on sizing and access inclusivity for all ���ǻ徱���— of the fashion industry. However, many and have demonstrated the power in , , to one of slow fashion. , much of which is spurred by and a culture of consumption (think of TikTok or , hauls, ‘shop with me’ videos, negative associations of wearing something twice, etc.).

While the solution isn’t perfect, as an individual starting point, we can begin to unpack the small ways we as individuals can reassess our spending habits. Some mindfulness questions we can make a habit of asking ourselves are: What about [item] do I like or dislike (e.g., price, fit, colour, material)? Do I have anything similar? Can I get this second-hand? Will this material/style last several seasons? Do I see myself wearing this a few years from now?

Ultimately, structural change from the top-down must also occur to remedy our current climate. Yet investments made towards technological innovation and zero-emissions solutions have already proven to be profitable, sustainable, and . Furthermore, the collective push towards , , business certifications (such as , ), and is extremely promising.

Fashion’s Patented Innovations

I am really looking forward to seeing how the above movements evolve and respond to the coming year ahead. I am also excited about the increased adoption of patented materials and products! The production of synthetic textiles, garment-making, and the supply chain generates . Introducing nature-based solutions in agriculture and textile processing will be key to reducing greenhouse gas emissions.

, , , and are a few companies building towards a circular economy in an exciting way.

Mycoworks is a San Francisco-based company with a for Fine Mycelium that has developed a called REISHI: a made-to-order, vegan, and biodegradable yet durable leather. Last year, they made headlines with their , whose classic “Victoria” style was remade with Fine Mycelium and named .

AlgiKnit makes patent-pending kelp-based yarns and textiles in New 91��ɫ. Their closed-loop product life cycle allows them to break down end products to be remade into new ones. This seaweed-based yarn allows manufacturers to excise highly toxic chemicals from the treatment process, protecting workers from dangerous and . AlgiKnit produced a , and one can only imagine the streetwear implications this new material could have. Furthermore, the company announced the opening of an , where they will work with global brands to adopt new biotechnological textile innovations.

Lenzing’s TENCEL Lyocell and Modal fibres are fibres originating from responsibly managed forests in Austria. They use a non-woven spinning process that recycles the water and solvents at a rate of more than 99%. These fibres have been certified biodegradable and compostable

ALT TEX, a homegrown Toronto start-up, is a former client of the IP Innovation Clinic at Osgoode Hall Law School. Founders Myra Arshad and Avneet Ghotra have developed a novel bio-polymer technology that re-engineers sugars extracted from food waste into a fibre substitute to , which is made of plastic. ALT TEX’s closed-loop, biodegradable, and carbon neutral textile is a game-changer with the potential to replace polyester entirely, which makes up over 60% of textile manufacturing.

Further Engagement:

Aja Barber’s Consumed, a book on the textile industry’s racist, colonial, and exploitative history, and how to empower yourself by unlearning the mentality of mass consumerism:

Intersectional Environmentalist, a climate justice community centering BIPOC and historically excluded voices:

Social/climate activists Stevie (aka ), Summer Dean ()

Second-hand, Consignment and Thrift stores (to name a few!): , , Facebook Marketplace,

Fashion Impact Fund, supporting women entrepreneurs and the fulfillment of UN’s Sustainable Development Goals:

Ecologi, a climate-positive investment subscription where you can support environmental projects as a business or individual supporter:

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Emily Papsin is the Co-Editor in Chief of the Obiter Dicta and a JD Candidate at Osgoode Hall Law School.

Growing up, Luke didn’t feel Indigenous at all. Most of his family lived on or near the reserve on Scugog Island quite close to Lindsay, Ontario, where he was born. “We’d go out to res very often, but it never felt like an Indigenous community, it was just my family,” he tells me as we sit on opposite sides of a picnic bench on a cold November morning in front of his studio in downtown Kitchener. Luke and his sister are members of the Mississaugas of Scugog Island First Nation, but only started to take reconnecting to their culture seriously about five years ago. “[In] Kitchener, honestly, we’re pretty invisible,” he says of the Indigenous population nearby, “unless you attended a local university, it’s hard for young Indigenous people to connect.” He found other Indigenous people his age mostly by fluke, through his fledgling art career, and through a one-off, local Indigenous-only archaeological digging job. Since then, he and his sister have been on a journey of reclaiming their culture and sorting through all that was lost.

We discuss a familiar history that explains how his Indigeneity fell into the background.�� Luke and his sister are only learning their traditions later in life, as they never got the chance to learn them any earlier. “I don’t blame anyone for how we were raised. My parents were loving and supportive, but it’s tough, the intergenerational trauma is a tough thing” he tells me as an explanation for his lack of exposure. Luke’s tone has a gentle bluntness about it that lacks any resentment while discussing realities that would no doubt inspire an understandable amount.��

The push towards his own identity is tough to nail down, but from what I understood, it started with a bear. Luke has been an artist since high school, but never had a style of his own. He had been exposed to art through his father, and because of other well-known Indigenous artists like Norval Morrisseau, but he still felt insecure that the only reason he was doing art was the fact that he was decent at it. The deeper meaning, that at least colloquially, most artists seem to need was lacking in his work. That changed, however, when he drew for the first time with his culture in mind as his inspiration. He decided to draw a bear, and now he tells me that “bears come up a lot in my art now, and that definitely means something.” He describes the feeling that most people look for when they’ve decided to take a leap, and realize with immense relief that their wings are properly attached. “It was […] this overwhelming feeling of ‘this is what I should be doing, and this is who I am and it’s something I have been suppressing for most of my life.’”

I asked him about that suppression, and whether or not it was conscious. He said it wasn’t something he had done actively, and that instead it stemmed from a lack of exposure, and the internalization of his identity. It is hard to actively suppress something that isn’t even part of your self-concept. Luke explains that aside from his family, he didn’t know a single Indigenous person. “In terms of my Indigeneity, I knew it existed, but it was rooted on Scugog Island with the rest of my family, and it wasn’t here.” He says this with the same gentleness that I realize is a hallmark of his Indigenous rediscovery, too. Lacking from our conversation was any sense that he could have done or known any better. There is simply a sense of prevailing satisfaction and acceptance at the fact he has gotten to where he is.

As we spoke, Luke touched on facets of reclaiming Indigeneity that I hadn’t heard anyone speak about before. He said that his father struggles with learning how to feel worthy of reclaiming the Indigenous culture he had lost. I was surprised, but in hindsight, that was probably naïve. I asked if this sense of unworthiness was common when reconnecting to Indigenous roots. “I think for all of us there is [that sense of unworthiness]. It’s tough, this stigma, that if you don’t look or talk a certain way then you’re not Indigenous. […] there’s an insecurity that we don’t belong in this community.” Thankfully, he followed that with the acknowledgement of that being more of a perception, than a reality. “The more we interact with the community, the more we realize that’s not the case.”

Public Perception��

Luke says that he is “shocked at how well-received [his art] is.” This is true of both the broader Indigenous and non-Indigenous community, and the relatively conservative Germanic community that makes up the majority of Kitchener-Waterloo. The reason behind his art’s accessibility is a simple one; “one thing that I set out to do in my art was to make it clear that I was learning, which I think is super relatable for people in the wider Indigenous community.” Still, as his online presence grew, he felt an immense pressure on himself to be “more Indigenous than [he was], and to know more than [he does].” Those competing pressures of that feeling of unworthiness juxtaposed with the need to represent something that he is still discovering for himself could be debilitating, but Luke is optimistic. He tells me that generally, people seem to see what he is doing, and appreciate it.

Future Outlook

Luke admits he’s not much of a planner. He went from basically not having a career, to doing lots of work in a short amount of time. Kitchener has given him a fair amount of work in spite of the city’s general hesitancy about him early in his career. That is especially true since the city figured out that the pandemic wasn’t going to stop all public art from being possible. A quick lap around the city’s downtown will show you a mural of a crane the size of a school bus, and a series of colourful animals painted onto the sidewalk that are hard to miss. While he admits he is still early on in his career, and he has yet to choose what his favourite things to do are, some of his preferences are clear. Public art and murals are a favourite. “Original acrylic paintings on canvas?��Not��my thing!”

As for bigger goals, Luke wants to “create an Indigenous art community even just within the city.” He makes special mention of a space for Indigenous queer artists as well, in that “if I don’t feel like there’s space for me, they certainly don’t.” It’s also not all positive. A few years ago, he and some other Indigenous artists tried to coordinate a space for their community through art gallery curators, business owners, and local representatives, but that had a “rather dramatic ending.” Luke’s answer to that is that they’re just going to do it themselves. He is realistic about the resistance of the city to change, but still finds a way to be kind. “There are good people in the city. The system is against us, but not necessarily the people within the system.”

As our conversation wound down, I asked him why he thought art was the way forward. He answered that it all comes down to representation, and that when he was growing up, a huge part of why he didn’t feel Indigenous is that he just didn’t see it anywhere. “I feel like it’s such a special thing for me to be able to create public art that is so clearly Indigenous, for maybe those kids here that feel the same way. That, oh, there’s other people like me, and that’s something I can be proud of.”

Luke’s art can be found at����or on Instagram .

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Robert Embree began his presentation with a brief description of and their role in protecting the distinctive look and feel of an invention. He then highlighted industrial designs’ recent gain in prominence by mentioning the over their design rights. An internal study conducted by CIPO has revealed that Canada is currently lagging behind many developed countries in protecting industrial designs. This finding sparked of the effects of holding industrial designs on an average firm’s revenue per employee and net income per employee. was conducted using a unique Canadian data set obtained with the help of of Ivey School of Business at the University of Western Ontario. The study covered 500 Canadian firms operating over the span of 25 years, from 1990 to 2014. It controlled for many factors, most importantly for the effects of obtaining patents on a firm’s revenue. The study found that by acquiring industrial design protections, the average firm’s revenue per employee increased by 19%, net income per employee increased by 23%, and, as a result of the addition of only 10% more industrial designs to the firm’s IP stock, the revenue per employee increased by 1%. The latter finding was particularly significant since the study found that a 10% increase in the number of patents that a firm holds only resulted in a 1.2% increase of revenue per employee. This study’s findings indicate that although patents tend to receive more attention in discussions about economic growth, Canadian firms could experience significant economic benefits by accumulating industrial designs.

After Robert, Alissar Hassan gave an informative about IP rights and business profitability from an Australian perspective. An conducted by IP Australia on the effects of IP rights on market concentration and competition found that the use of IP rights has doubled since the early 2000s. The study also concluded that IP owning businesses tend to gain higher profits compared to their non-IP-owning counterparts, particularly in the manufacturing and wholesale trade sectors. Although the evidence regarding the effects of IP rights on market concentration was inconclusive, the study showed that accumulating different types of IP in the forms of patents, trademarks, and industrial designs tends to positively impact business profitability in Australia. Alissar brought up an interesting point about the effects of the COVID-19 pandemic on trademark filings in Australia. Although tends to be positive, trademark filings with IP Australia soared in 2020 despite as a result of the pandemic. Researchers at IP Australia attribute this interesting trend to the adaptation of businesses to the new circumstances and are looking to further investigate the topic.

The panel concluded with a Q&A session which once again highlighted the positive effects of industrial designs on business revenue. Given the findings by CIPO researchers regarding the work that Canada needs to do in order to catch up with other developed countries in protecting industrial designs, IP rights seem to play a more topical role in our country’s economic prosperity than ever.

Written by Bonnie Hassanzadeh, IPilogue Managing Editor and Clinic Fellow at the IP Innovation Clinic.

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The claimant, Response Clothing, designs and markets various pieces of clothing. The defendant, Edinburgh Woollen, is a major clothing retailer with about 400 stores in the UK. Between December 2009 and 2012, Response Clothing provided Edinburgh Woollen with various women’s tops made of a jacquard fabric. This jacquard material consists of wave-like designs that are woven into the fabric. When Response Clothing increased the price of the tops sold to the defendant in 2012, Edinburgh Woollen decided to change suppliers. The defendant provided the new supplier a sample of Response Clothing’s top and has changed suppliers various times throughout the last five years while maintaining the same wave-like jacquard design. As a result, Response Clothing claims that copyright subsists in its fabric’s design, either as a graphic work or as a work of artistic craftsmanship as per section 4 of the (the CPDA). Given the nature of Response Clothing’s relationship with Edinburgh Woollen between 2009 to 2012, Response Clothing further claims that it is the owner of that copyright and that all other supplier designs of the wave-like jacquard design are both primary and secondary acts of infringement.�� ��

Though the Court concluded that the definition of a graphic work could not be extended to include a fabric design, it was established that the creation of the wave-like jacquard design qualified as a work of artistic craftsmanship. The Court concluded that the wave-like design required skillful workmanship and produced aesthetic appeal. Additionally, at paragraph 64 of the decision, the Court provided the following guidance with respect to the definition of artistic craftsmanship in the UK:

[…] (i) it is possible for an author to make a work of artistic craftsmanship using a machine, (ii) aesthetic appeal can be of a nature which causes the work to appeal to potential customers and (iii) a work is not precluded from being a work of artistic craftmanship solely because multiple copies of it are subsequently made and marketed.

Having concluded that copyright existed in the wave-like fabric design, the Court determined that the garments sold by Edinburgh after 2012 copied a substantial part of Response Clothing’s design, amounting to secondary infringement contrary to section 23 of the CPDA.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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The plaintiffs, the Chapniks, own an architect-designed, multi-million dollar home in the Forest Hill neighbourhood of Toronto. In 2013, the defendants bought a house nearby and promptly began renovations. According to the plaintiffs, the renovated house looked “strikingly similar” to their home and the Chapniks commenced an infringement action.

Architectural works may be protected by copyright as an “artistic work”.[2] However, in asserting infringement claims regarding housing designs, homeowners (Chapniks included), face two significant obstacles. They are required to prove: (1) ownership in the copyright; and (2) that the defendants reproduced a substantial part of the expression.

Ownership

In order to succeed in an infringement action, the plaintiff must be the owner of the copyright. In Canada, the author of the work is the first owner.[3] With respect to architectural works, it is usually the architect who is the first owner of the copyright that subsists in the design of a house.[4] In the case of Hay v Sloan, the court stated, “[f]or copyright purposes, the owner of the architectural work of art is the author of the plans … [n]or does copyright pass to the owner of the building.”[5]

Similarly, in Chancellor v Oasis, the court concluded that it was the architect who was the owner of the copyright and not the owner of the building. The owner’s contribution was “limited to suggesting certain design elements in a general way”, while it was the architectural firm that implemented these suggestions into the design.[6]

Therefore, had the Chapniks’ case gone to trial, unless the architect assigned to them the copyright, it seems unlikely that the Chapniks could have succeeded since they are not the owners.

Reproducing a Substantial Part

Copyright provides the owner with the sole right to reproduce the work in a substantial part.[7] Copying is not necessarily infringement if what has been copied is not a substantial part of the original work.[8]

The Chapniks would likely have established copying. According to the Article, the trim, stonework and the shape of door were similar. Also, the defendants’ contractors allegedly were instructed to copy the architectural work. Finally, there is a causal connection with the original work since the two homes are located only 850 metres apart.[9]

The more difficult aspect of the claim is proving that the defendants reproduced a substantial part of the expression. It is trite law that copyright protects only expression and not ideas. However, when answering the question of whether copying is substantial, the assessor must take a holistic approach having regard to the quality and quantity of what was copied.[10] Excluding unprotectable ideas at the outset prevents this holistic approach.[11]

Upon the facts and photos provided in the Article, it is difficult to come to a firm conclusion on whether a substantial part of the expression was copied. When considering the alleged similarities between the two houses, it seems that some aspects are very common elements of architecture such as the trim colour and stonework. In Rains v Molea, the Court considered whether a painting of a crumpled piece of paper was infringed by a different artist also painting crumpled paper. The court found that although there were many similarities, these were common techniques used by artists and not capable of copyright protection.[12]

Several friends of the Chapniks had allegedly called to inform them of the copycat house. This would have bolstered their claim since when considering substantiality, “the perspective of a lay person in the intended audience for the works at issue is a useful one”.[13] Similarly, even though there are many differences between the houses, differences in the number of rooms and areas may not be enough to prevent judges from concluding that the substance of the architectural work has been copied.[14]

Conclusion

A homeowner asserting copyright in the design of their house as an architectural work will face difficulties due to issues of ownership and substantial reproduction. This appears to be a laudable result since approximately 84% of the Article’s readers believe that copyright should not subsist in the “look of your house”.[15]

William Chalmers��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] Vjosa Isai, “This Forest Hill couple sued their neighbours for $2.5 million over a house they claim was renovated to look like theirs”, The Toronto Star (October 5, 2017), online: < > [Article].

[2] Copyright Act, RSC 1985, c C-42, s 2 [Copyright Act].

[3] Copyright Act, supra note 1, s 13(1).

[4] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (Toronto: Irwin Law Inc., 2011) at 138.

[5] Hay v Sloan (1957), 12 DLR (2d) 397 at para 7.

[6] Chancellor Management Inc. v Oasis Homes Ltd, 2002 ABQB 500 at para 65.

[7] Copyright Act, supra note 1, s 3(1).

[8] Ladbroke (Football), Ltd. v William Hill (Football), Ltd., [1964] 1 All ER 465 at 481,��per��Lord Pearce (HL).

[9] Gondos v Hardy (1982), 38 OR (2d) 555 at para 33 (ONSC).

[10] Cinar Corporation v Robinson, 2013 SCC 73 at para 26 [Cinar].

[11] Cinar, supra note 10 at para 36.

[12] Rains v Molea, 2013 ONSC 5016 at para 30.

[13] Cinar, supra note 10 at para 50.

[14] Kaffka v Mountain Side Developments Ltd. (1982), 62 CPR (2d) 157 at para 15 (BCSC).

[15] Article, supra note 1.

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This statutory bar on apportionment harkens back to the nineteenth century, following a United States Supreme Court decision which considered the basis for determining profits or damages for infringement of a carpet design. The court made the following comparison:

...between two carpets of equal cost to make and equal merit as to durability of fabric and fastness of color, each with a pattern pleasing to the taste, one having a design free to be used and��the other a design protected by a patent, the latter may or may not command in the market a price larger than the former. If it does, then the increased price may fairly be��attributed to the design, and there is a solid basis of evidence for profits or damages. But short of this, under the rules established by this Court, there is no such basis. [2]

In the event, there was no difference in market price and the design patentee recovered nothing.

Thus in the world of 1880’s era carpets, damages or profits were not directly attributable to design infringement, making design patents obsolete. To address this, in 1886 Congress amended patent law to afford design patents the same protections afforded trademarks, entitling the design patentee to “all the profit the infringer made on the goods marketed.” [3]

In the intervening years, this has generally been interpreted narrowly by courts to mean that the infringer is liable for all profits made on the final product as sold to the consumer. However, in the case of multi-component articles, such a narrow interpretation can lead to grossly disproportionate awards. Consider the example of a $10 cup holder design incorporated into a $20,000 car; [4] should the infringing car manufacturer be liable for the profits on the entire car?�� The issue of whether the “article of manufacture” must always be the end product sold to the consumer went before the United States Supreme Court in the Apple v Samsung dispute.

History of the Apple v Samsung Suit

In 2011 Apple filed suit in the United States against Samsung for, among other things, infringement of four design patents. [5] Justice Koh of the District Court for the Northern District of California heard the case, and a jury found three of the four design patents to be infringed by at least one of the 28 Samsung smartphones at issue. [6] After the dust settled, the damages award totaled nearly a billion dollars. [7] Of that, $399 million corresponded to the entire profits on 11 smartphones found to infringe one or more design patents.

The Court of Appeal for the Federal Circuit upheld the verdict with respect to both utility and design patent infringement. [8] Samsung appealed the $399 million awarded for design patent infringement to the United States Supreme Court on the basis that the award should have been limited to profits on the infringing “article of manufacture” rather than the entire product sold to consumers.

The US Supreme Court: an “article of manufacture” can be an individual component

In arriving at an award under §289 the Supreme Court identified two steps: 1) identify the “article of manufacture” to which the design has been applied; and 2) calculate the infringer’s total profit made on that article of manufacture. The Court found the threshold matter before it as being the scope of the term “article of manufacture”. The Court concluded that the term encompasses both the end product as sold to the consumer, and the individual components of a multi-component product whether sold separately or not. However, the Court declined to adopt a test for determining the relevant article of manufacture in the absence of adequate briefing from the parties.

The case has been remanded to the District Court where the case began. Justice Koh has now received briefs from both parties and is set to determine whether a new trial is warranted. If so, Justice Koh will have the opportunity to set out a test for determining the relevant “article of manufacture”.

Andrea Uetrecht is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] 35 USC §289.

[2] Dobson v Hartford Carpet Co, 114 U.S. 439 (1885), 5 S. Ct. 945, at 444.

[3] Samsung Electronics Co Ltd v Apple Inc, 580 US��(2016) (Brief of amicus curiae American Intellectual Property Law Association in support of Respondent) at 12, citing S Rep 206, 49th Cong, 1st Sess (Mar. 9, 1886) at 2.

[4] Apple Inc v Samsung Electronics Co Ltd, Court of Appeals for the Federal Circuit, appeal no. 2013-1129, at 26.

[5] Apple Inc v Samsung Electronics Co Ltd, 11-cv-01846-LHK, Document 1, online: https://www.unitedstatescourts.org/federal/cand/239768/1-0.html.

[6] Apple Inc v Samsung Electronics Co Ltd, United States District Court for the Northern District of California, 11- cv-01846-LHK, Document 1341, online: https://www.unitedstatescourts.org/federal/cand/239768/1931-0.html.

[7] The court found that the jury made a legal error in assessing damages for infringement for 14 of the 28 products, upholding $639,403,284 in damages and ordering a partial retrial on the remaining damages. Apple was awarded $290,456,793 in the retrial; see Apple Inc v Samsung Electronics Co Ltd, 11-cv-01846-LHK, Document 2271.

[8] Apple Inc v Samsung Electronics Co Ltd, Court of Appeals for the Federal Circuit, appeal nos. 2014-1335 and 2015-1029.

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Technology, though, is developing at such a pace that any proposed legislation, however foresightful, will soon be outdated. Thus, , the concept proposed by Dr. , Executive Director of the at (and former Information and Privacy Commissioner of Ontario), is an astute solution to privacy protection that does not rely exclusively on legislation. Dr. Cavoukian suggests that privacy be coded or embedded into the design of information technology, networked infrastructure, and business practices. This proactive and non-remedial approach is user-centered and promotes transparency, incorporating the objectives of legislative reform efforts.

PbD has already been adopted in foreign jurisdictions. For instance, the European Union (EU) is a pioneer in implementing an up-to-date privacy regime that takes the PbD concept into account. Article 25 of the 2016/679 (GDPR), effective May 25th, 2018 onwards, stipulates that data protection measures are designed into the development of business processes for products and services. Meanwhile, the State of California looks to be taking the lead in legislating on . In particular, will create a mandate under California law, pursuant to which all IoT devices will have built-in security features appropriate to the device, as well as the information collected.

Embedding security features into IoT devices also ensures protection from cyber attacks. Network-connected devices can . As panelist , Principal Security Technologist at , mentioned, the technology to allow carriers to stop these attacks exists; what remains is to understand how it works.

From a maufacturing perspective, IoTs can be designed to ensure both security and privacy. However, as ,��General Manager��of Network Security for ’ Enterprise Business Unit, observed, embedding these features into IoT devices will probably increase their cost. Therefore, in an industry where competitors often strive to have more affordable products, IoT manufacturers need to identify specific commercial benefits for being the most “secure” in the market. Eventually, the ultimate choice should be given to customers, who will decide whether they want to invest more in devices with embedded security, or in less expensive ones with add-on (albeit compromisable) security features.

Yet, PbD alone is insufficient to promote privacy, absent a stricter regime on how (online) service providers obtain users’ meaningful consent. Most online agreements to-date include terms of service (), which further permit service providers – along with the third parties they contract with – to keep, analyze and sell their users’ data. By incorporating click-to-agree clauses into ToS, users wishing to access the respective services are left with no choice but to agree to give away their privacy rights. The majority of users are not incentivized to they agree to, since they are not in a position to negotiate a new agreement. As Dr. Cavoukian posited, a drastic reform is required on this front: ToS should prevent service providers from using their customers’ personal data by default, unless opt-in consent has been obtained, also entailing specific conspicuous disclosures. For instance, provides that ‘consent’ of the data subject comprises any freely given, specific, informed and unambiguous indication of the former’s wishes, by which they, through a statement or a clear affirmative action, demonstrate that they agree to the processing of their personal data.

Dr. Cavoukian also pointed to other risks from privacy and security breaches, related to remote home health care, closed-circuit television camera (CCTC) or surveillance cameras in mass transit systems, smart meters and the smart grid, near field communications, radio-frequency identification (RFIDs) and sensor technologies, big data and data analytics, and internet protocol address location (IP Geolocation). Interestingly, the latter is expected to be addressed by the United States (US) Supreme Court in , notably vis-à-vis the .

Recent Canadian jurisprudence, on the other side, has attempted to strike a balance among privacy rights, and the investigative power of law enforcement, with particular regard to telecoms’ compliance with formal search warrants and production orders. In the Supreme Court of Canada (SCC) interpreted the meaning of the word “intercept”, as defined under , in a broad fashion. It did so to protect individual privacy interests in communications. In specific, assessing whether a general warrant power can authorize the prospective production of future text messages from a service provider’s computer, . maintained that Canadians have a reasonable expectation of privacy in their voice communications; these must not be intercepted without compliance with the due process provisions of part VI of the��Criminal Code. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications, which should be extended to traditional voice communications and text messaging alike.

Similarly, the Ontario Superior Court in examined, inter alia, if there is a reasonable expectation of privacy in the records to be produced�� in compliance with the police’s “tower dump” production orders to further an investigation into a string of jewelry store robberies; and if so, whether the telecoms have standing to assert it on behalf of their thousands of affected subscribers. While the Court both issues in the affirmative, it also formulated specific guidelines which respect the information needed to obtain production orders: a statement or explanation is required that demonstrates that the officer seeking the order is aware of the principles of incrementalism and minimal intrusion, and has tailored the requested order with that in mind; an explanation as to why all of the named locations or cell towers, and all requested dates and time parameters, are relevant to the investigation; an explanation as to why all types of records sought are relevant; any other details or parameters which might allow the target of the production order conduct a narrower search and produce fewer records; and a request for a report based on specified data instead of a request for the underlying data itself, are also required. The police should also include confirmation that the types and amounts of requested data can be meaningfully reviewed.

Ensuring privacy is more crucial than ever, especially in light of the coming from the United Kingdom’s current Prime Minister, Theresa May, that internet companies are providing a "safe space"��for extremism, and her proposal to "regulate cyberspace to��prevent the spread of ". However, neither regulating against extremism nor the familiar ‘’ argument are sufficient reasons to leave the door open for potential privacy breaches. Similarly, tech firms, privacy campaigners and academics point out that providing “” underestimates the entire purpose of privacy, while allowing both law enforcement agencies and outlaws to open and bypass these safeguards.

In Canada, ��the Anti-terrorism Act 2015��(former Bill C-51) was criticized for entailing numerous , as it provided several federal government agencies with almost to monitor and profile ordinary Canadians, with a view to identifying security threats. ��Notably, in a 2016 the Federal Court ruled that used by the ��Canadian Security Intelligence Service’s data-analytics program violates federal laws, namely the . Thus, on the 20th of June 2017 the Government introduced : An Act respecting national security matters, which attempts to clarify, among other Bill C-51-related : what type of activities the Canadian Security Intelligence Service (CSIS) could employ in order to comply with the , and the information sharing process between federal institutions for national security purposes under the SCISA. Bill C-59 aims at: strengthening national security agencies’ accountability through the creation of a new, comprehensive national review body, the National Security and Intelligence Review Agency (NSIRA); enhancing oversight through the creation of an Intelligence Commissioner; and increasing transparency through a commitment to share national security information with Canadians.

By way of conclusion, the imperative of increasing the privacy threshold both from a legislative and ��industry practice standpoint is highlighted from the vast number of compromisable interconnected devices that have��become an integral part of our everyday life. Additionally, storage of��private information obtained via these devices by big data companies for either commercial or surveillance uses, makes it obvious that a proactive approach is required. This can be best achieved by embedding privacy and security not only into the design of information technology, but also to every networked infrastructure and business practice. Failure to do so is not limited to merely jeopardizing business reputation and risks from class action liability; non-compliance with international standards may as well hinder commercial relations, similarly to the effect of the����, which has been found invalid by EU courts.

Yonida Koukio is an IP and Business Law LL.M. Candidate at Osgoode and an IPilogue editor.

***

��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

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What is CRISPR?

Some scientists believe the design and development of new biomolecules is as much an art as it is science. The ��discussed, and used, by Dr. Pearlman capitalizes on an adaptive immunity system found naturally in bacteria and archaea that uses clustered, regularly interspaced short palindromic repeat (CRISPER) DNA segments to fend off invading viruses. In naturally adapting to a virus invading the cell, CRISPR associated proteins (Cas proteins) will create a spacer unit of genetic code that is unique to the invading virus and incorporate this spacer into the CRISPR region of the cell’s genome. This unique spacer unit will then be transcribed (that is, converted from double stranded DNA to RNA), associate with Cas proteins to form a functional complex, and then target and inactivate the very same type of virus that led to the creation of the spacer unit.

In the laboratory, genome editing uses the functional complex found in this adaptive immunity mechanism to insert or remove genetic code from the genome of a cell. By attaching a synthetic, guiding portion of RNA (sgRNA) to Cas proteins they can be directed to a portion of the genome, through complimentary base pairing with the sgRNA, where Cas will recognize a portion of the genome and cut it to either insert a new region or to remove a portion and disrupt the expression of a gene. By cutting out sections of DNA a gene can be disrupted and lose its functional expression in the cell. In other words, it will no longer be able to produce the molecular products responsible for its former physical trait. By inserting new regions of DNA, the genome can be expanded to confer resistance to invading pathogens, such as viruses, or to express new protein products that can add or enhance the cell’s function. For example, a new portion of DNA may be inserted that codes for a digestive protein not normally found in the cell and, consequently, grant a new molecular digestive mechanism.

What does Genome Editing have to do with Law?

Dr. Pearlman noted that there has been an explosion of scientific literature covering the CRISPR system of genome editing since 2010 and it appears that the momentum will only grow in the coming years. The ability to edit genomes can allow for the expression of new protein products that can be of great commercial value as well as pave the way for new medical treatments that circumvent traditional pharmaceuticals. Additionally, Dr. Pearlman noted that the CRISPR system can be used to produce heritable traits – that is, changes that can be transferred from a parent to their offspring. With this sort of molecular modification becoming more pragmatic, it becomes paramount to have a thorough understanding of the biochemical expression pathways that govern genomic expression to keep an eye on the ethical implications of modification. If human genome editing were to become available, should those with advantageous genomic modifications be treated differently by public health systems? To whom should these technologies be made available, if ever? These questions are beyond the scope of current genomic technology but, with the growing pace of CRISPR methodologies, designs may soon start to reach more readily into the macroscopic domain.

What Makes Scientific Designs Different?

With the cost of biochemical research and development increasing and a billion-dollar entry fee for the drug and biomolecular development market it follows that when an industrially relevant molecule is finally created the developer should be able to recuperate their investment and benefit from their work. Normally, the boundaries of property rights require contextual understanding: what is the nature of comparable products, if the new product’s design is generic or obvious, and if the new product can have a place in its intended market. The differentiating criteria of the sciences become pronounced when considering the esoteric nature of the discipline. How can one reasonably expect a thorough consideration of the distinguishing criteria for obscure scientific concepts, like base pair fidelity, when the requisite knowledge is held only by a few people, like Dr. Pearlman, who have committed years, if not decades, to the study? The nuanced nature of genetics can make innovations in genome editing or CRISPR technology appear to be near imitation; however, the modification of a single nucleotide in the genetic code can have a profound impact on the success and possible application of a biotechnology.

Synthesis, Structure, and Industry

What amount of scientific knowledge is sufficient in legal practice? that a special breed of IP lawyer will arise to confront the high demands of contemporary science and technology patents. Considering the high financial stakes and the significant likelihood that a new molecule or molecular technique will fail the requisite safety tests at any of a multitude of stages, a lot of designs are left in the laboratory. A re-engineering of the approach or scrapping the project in its entirety may follow, meaning product patents should not be initiated until after the molecule has been proven safe for its regular use instead of when it is first designed or synthesized in the lab. Additionally, research and development can indirectly prioritize self-benefit over scientific collaboration since scientists rely on design details to learn about their ever-developing field and most details are kept secret until after a patent has been granted.

This is where innovation becomes conservative and structure becomes especially important. Does a single elemental substitution in the genetic code constitute a new product if the application remains the same? What about changing a single gene to modify a physical characteristic that relies on multiple genes? While certain business practices, such as non-competition deals, are commonly found outside of the sciences, unique can arise from small chemical modifications which effectively extend a patent beyond its expiry date through the issuing of a new patent for a highly similar molecule. Furthermore, patents may be sought for generic parts of biotechnology procedures that are nonessential to its action, prohibiting competitors from including strategies in their approach and significantly , or even demolishing, a competing synthesis. Lastly, meeting the testing and safety demands of different communities poses an for introduction into a global market due to different national regulatory standards.

So, What Makes It My Molecule?

The same fundamental concepts that apply to patents outside of genome engineering also apply to those inside the discipline but with a stringent demand to understand the nuances of molecular design. An integration of mechanistic knowledge may prove to be key when evaluating possible distinguishing criteria among patents filed for similar compounds but it is ultimately up to practicing lawyers to integrate sufficient scientific knowledge to accurately capture the scope of their client’s designs.

Dominic Cerilli is the Content Editor for the IPilogue and a JD Candidate at Osgoode Hall Law School.

[1] Dr. Pearlman's talk was organized by The 91��ɫ Collegium for Practical Ethics and The 91��ɫ Centre for Public Policy and Law under the leadership of Ian Stedman.�� Support for the event was provided by IP Osgoode, McLaughlin College, 91��ɫ - Faculty of Health, 91��ɫ - Faculty of Science, and 91��ɫ's Office of the VPRI.

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In a hundred years, the vaulting pole has changed from a piece of hardwood to an intricately-built piece of fiberglass and carbon fiber, assembled through patented methods. Unsurprisingly, the pole vault record is the most frequently broken world mark in men’s track and field history. As of 2014, the International Association of Athletics Federations (IAAF) has reportedly ratified , set by 33 different vaulters. The is Renaud Lavillenie of France, who cleared a height of in Donetsk, Ukraine in 2014. To put this into perspective, the world record in 1904 was 4.02 metres. The best pole captures all of the energy transferred to it by the vaulter and efficiently transfers it��back to the vaulter as they are launched into the air. Minimal increases in the world record in the last decade have hinted that the combination of materials technology and athletic performance may be reaching its peak. The heights achieved by modern pole vaulters undoubtedly rely on the pole. However, with all vaulters equipped with similar fiberglass poles, the sport becomes a truer contest of technique.

The Technology

Originally, vaulting poles were made out of , typically solid ash or hickory. Starting around the beginning of the 20th century, poles began to dominate the sport. These poles were significantly lighter their hardwood counterparts, allowing for a faster run up. More importantly, they could bend, whereas hardwood poles could not.

The next innovation in poles came along with the introduction of aluminum as a key material. The Carpenter patent () discloses a hollow vaulting pole made from an aluminum alloy. The invention provides for a significant reduction in weight over vaulting poles formed of wood which typically require a large diameter to prevent splintering. The invention's one-piece design is swaged into successively smaller cylindrical sections throughout its length to create a pole that gradually reduces in diameter up to where the vaulter grips the pole. Furthermore, the bottom end of the pole is closed with a convex-shaped endcap that acts as a pivot when the pole contacts the ground. The rounded endcap replaced a metal spike at was normally attached to the bottom of the wooden vaulting poles.

The Lindler patent () represents an improvement in the manufacture of vaulting poles made using the next key material: fiberglass. It discloses a glass-fiber reinforced vaulting pole that possesses 10% greater hoop strength than previous glass-fiber vaulting poles. To manufacture the improved vaulting pole, knitted glass-fiber tape pre-impregnated with a thermosetting resin is wrapped around a mandrel. Next, pre-impregnated longitudinal glass-fiber filaments are laid about the tape substantially parallel to the axis of the mandrel. Four layers of cellophane tape, two layers clockwise and two counter-clockwise, are then helically wound about the longitudinal glass-fiber filaments. The assembly is hung in an oven heated to a range of temperatures for specific durations to cure the epoxy resins. After the cooling, the mandrel and cellophane are removed. Next, a helical winding of glass-fibers, pre-impregnated with a thermosetting resin, is applied to the surface of the pole. After curing and hardening the winding to the pole, the pole is cut to its desired length and is fitted with a pivot endcap in one end and a plug in the other.

The Jenks patent () presents a fiberglass vaulting pole manufactured in a way to improve hoop strength. The pole is built on a mandrel by first helically winding epoxy impregnated fiber glass tape into a continuous succession of butt-jointed turns with the tape's fibers��extending lengthwise of the tape. Next, a rectangular shaped piece of epoxy resin impregnated fiberglass broadcloth is wrapped multiple times over the tape. A fiberglass tape, identical the first tape, is then helically wound over the cloth in the direction opposite to the first tape. Since the taped turns are crossed with one another, the butt joints of each tape are reinforced by the tape of the other layer. Next, another cloth wrapping is added but with an isosceles trapezoidal shape. Having the trapezoidal wrapping as the outer layer is advantageous because changes to the shape of the trapezoid and the number of times it is wrapped around the mandrel can be used to alter the pole's design. Finally, the mandrel comprising the four wrappings goes into an elongated curing chamber which applies heat to cure the resin and external pressure to compact the fiberglass and epoxy into a unitary rigid structure. The two tape layers give the pole great hoop strength since the fibers on the tape extend primarily around the pole, is in contrast to woven tape where 50% of the fibers extend lengthwise and do not contribute to hoop strength. With the broadcloth being located between the tape layers, it acts as a column load barring member since its lengthwise fibers are firmly fixed in position to resist splitting.

The Johnston patent () improves upon its predecessors by describing a vaulting pole endcap designed to provide additional forward penetration of the pole into the plant box. This design allows the vaulter to hold the pole higher and hang for a greater period of time below the rotating pole.

The Watry et al. patent () presents a vaulting pole manufactured with five filament layers in which at least one is a carbon weave layer. The preferred location of the carbon weave is in the second layer of the body wrap due to its strength in all directions. The weight of the vaulting pole can be further reduced by replacing additional fiberglass layers with carbon fiber layers. Most world class vaulters have continued to use 100% fiberglass poles as the reduction in weight provided by carbon fiber does not overcomes the slight decreases in durability.

The Bentley patent () introduced a vaulting pole with an angular deviation away from the pole’s lengthwise dimension for increasing the vaulting pole plant angle and providing an ergonomic hand grip. The greater the pole angle a vaulter can achieve when planting the pole in the plant box, the greater the vaulter’s ability to move the pole toward the landing pit. This invention has not yet gained widespread use by vaulters.

Canada in Rio

Canada is a medal threat in both the men’s and women’s pole vault in Rio. Shawnacy Barber of Toronto enters as the reigning men’s world champion after his win at the 2015 World Championships in Beijing. Earlier this year, Barber joined the , becoming its 19th member and, at age 21, the youngest ever to clear the height. On April 9, 2016, Alysha Newman of Delaware, Ontario set the new Canadian women’s pole vault record by clearing a height of . Newman, at age 22, enters Rio as the 4th ranked women’s vaulter in the world. The men’s pole vaulting final starts at 8:35 pm on Monday, August 15, while the women’s pole vaulting final starts at 8:30 pm on Friday, August 19. Be sure to tune in to cheer on our Canadian vaulters all the while contemplating the remarkable evolution in pole vaulting patents.

Justin Philpott is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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