Aishwerya Kansal is an��IPilogue���°����ٱ�r, IP Innovation Clinic Fellow,��LL.M��Graduate (2020) at Osgoode��Professional Development, and IP Law Clerk at��Bereskin��& Parr LLP.��

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OVERVIEW OF CLOUD COMPUTING

Cloud Computing has become an important technology in promoting global businesses during the pandemic. The technology has helped facilitate remote work. One of its most significant benefits is lowering the costs to store, retrieve, and maintain the security of data. However, cloud storage and data services raise several legal issues for cloud computing providers and users. There are multiple Cloud Service Providers (CSP) such as Amazon, Google, Verizon, Sales Force, and Microsoft, giving customers several options to choose from. Distributed data, stored in multiple locations, have shown to be cost effective, reliable, scalable, and fault-tolerant. However, consumers may be unaware of the technology’s enormous potential and the need for it to be . In order to prevent complications, consumers should be widely aware of recent advancements in cloud technology’s potentials and the evolving regulatory landscape.

Could computing is a form of software technology which provides information services on a virtual platform without the need for extensive infrastructure and dedicated access points. Common forms of cloud computing include . SaaS is a software application over the internet which allows users access rather than allowing storage and local use. Any application that is run through the cloud service falls under this category. Dropbox is a form of SaaS, whereas Microsoft windows, a computing platform, is a form of PaaS used for running or developing applications.

Cloud computing’s rapid growth leaves limited time for identifying and implementing the regulatory frameworks necessary to protect users’ privacy and data security. Efforts to build a unified regulatory framework have already begun. Enthusiasm about building a unified framework has created common ground among nations about information privacy regulation.[1] For example, the rolled out a comprehensive proposal addressing general data protection regulations (Draft Data Protection Regulation).[2] Similarly, the United States Federal Trade Commission introduced its bill aimed at data privacy for consumers in addition to providing a detailed report in 2012 titled “Protecting Consumer Privacy in an Era of Rapid Change" ("FTC Report 2012"). Despite efforts to protect users’ cloud data, some legal issues remain unresolved.

LEGAL ISSUES IN CLOUD COMPUTING

Cloud computing involves collaborative efforts from different parties in providing services. Therefore, ��it is challenging to ensure compliance with a regulatory framework if one were to be put in place. A few of the underlying issues involve . In order to attempt to resolve these issues, the law needs to address the following items : (1) regarding storage and transfer of cloud data, (2) data ownership issues, and (3) control and access to cloud data.

From the user’s perspective, a major issue is the location of the data storage and the data transit which depends on factors like contractual obligations as well as the service and deployment model between the CSP and users. Under some circumstances, CSPs have chosen to confine the routing of information to certain locations. In cloud technology, data’s exact location cannot be easily established. The law is particularly ambiguous with respect to . Therefore, it is crucial that users take the issue of data storage locations and transit routes into account before moving their data to cloud. Though data should be owned by the user who uploads it to the cloud, the service level agreements (SLA) and CSP contract should explicitly state possession, custody, and control including the ownership and access to the information stored in the cloud. Users’ dependency on cloud computing services, along with an increased difficulty in controlling, accessing, and owning data, will grow in the absence of laws regulating cloud computing services. Service providers and other contracting parties should have bargaining power when deciphering standards of agreement clauses.

The federal government in has laid down on businesses when they engage in collecting, using, and disclosing personal information. Canadians mostly use cloud-based services provided by the United States and other countries. It is implied that private sector privacy legislation does not prohibit entities from using a foreign service provider. The Federal Commissioner has asked that any entity in should inform its customers of this practice and provide information about the foreign country’s laws on data privacy. In Canada, in a class action lawsuit against Facebook. Cloud computing services are not limited to external online storage used by social media and email services. Many other internet services involve cloud computing. The court in the class action against Facebook had to decide whether the social media company was reasonably notifying its users of principles governing their privacy policy and whether they were mentioned in advertisements on the platform.

CONCLUSION

Cloud has provided new options for storage and transmission of data. It has also introduced a whole new gamut of risks. Simplification of the laws is essential in promoting widespread adoption of cloud technology. The need for simplifications was concurred by the World Economic Forum. A standardized approach to the privacy and security of data with respect to cloud services would benefit the consumers and service providers in any disputes that may arise. Once adequate regulation for cloud computing is in place and rights and liabilities of users and service providers are well laid out, the industry could ��go on to Effective regulations would address rights and liabilities, while having flexibility to incorporate future developments in the field.

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[1] Nancy J King & VT Raja, "What do They Really Know about Me in the Cloud: A Comparative Law Perspective on Protecting Privacy and Security of Sensitive Consumer Data" (2013) 50:2 Am Bus LJ 413

[2] Commission Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), at 1, COM (2012) 11 final (Jan. 25, 2012) [hereinafter Draft Data Protection Regulation], available at http://ec.europa.eu/justice/data-protection/ document/review2012/com_20121 len.pdf.

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Aishwerya Kansal is an IPilogue Writer, IP Innovation Clinic Fellow, LL.M Graduate (2020) at Osgoode Professional Development, and IP Law Clerk at Bereskin & Parr LLP.

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"By Far the Greatest Danger of Artificial Intelligence is that People Concluded too early that they Understand it."��– , 2008, in “Artificial Intelligence as a Positive and Negative Factor in Global Risk”

Artificial intelligence (AI) is revolutionizing and impacting intellectual property rights in an array of industries, including law, finance, healthcare, customer service, transportation, and engineering[1]. While computer-generated programs and software are recognized in copyright and patent law regimes, IP rights of AI are considered a paradox due to a lack of legislation. Though the advent of AI raises many questions, this article explores the legal personality of an “AI entity” with emphasis on intellectual property rights and ownership issues.

Determining whether AI produces IP, either knowingly or unknowingly, presents a challenge. ��Many complex issues are implicated typically involve multiple contributors, leading to issues of co- and joint ownership. AI has generated literary, musical, technology, and artistic works which raises the issue of who is the author or inventor, especially with AI’s machine-learning capabilities. Identifying the owner is essential to not only reward them but hold them accountable for reaping royalties in bad faith. ��

What is Artificial Intelligence?

It is premature to define AI, although, for the purpose of understanding the difficulties of assigning IP rights to AI, and defined AI as machine agents that "operate autonomously, perceive their environment, persist over a prolonged time period, adapt to change, and create and pursue the best expected outcome."

An autonomous system is often defined as having the ability to control its own actions and act . It is critical to determine if AI can “think”, “understand”, or “respond” autonomously. Prompted by overcoming the , programs have been developed which allow a person to engage in a limited “conversation” with a machine. This can be seen with and . Moreover, AI also generates work which may be considered “creative” work that has been historically protected.

Intellectual Property is Generated by AI

There are many examples of IP generated by AI. are one example of an AI creation which needs a regulatory framework since there is a high risk of ownership and liability issues. Using algorithms of the geometric patterns of the 17th century, an AI generated an artwork, “” which was novel and differs from prior work. In our digital age, where computer software may automatically take photographs, the technology can be presented as the .[2] Professor Harold Cohen even created a program called which creates original paintings without any human interference. Every painting created through this software is unique and different from the previous one.

Moreover, through AI, designed for the bullet train in Japan which improved the train’s aerodynamic performance and also reduced the noise level for passengers.[3] Likewise, a programmed AI developed a novel piston geometry which reduces fuel consumption in diesel engines. AI is also being used to develop new pharmaceutical compounds.[4]

Google’s news bot “” was programmed in a manner which created stories from facts and news articles available on the internet autonomously. For example, in generating a domestic news story, Googlezon could emphasize the international aspects and implications of the story for a reader interested in international news.

Ownership of AI-Generated IP

AI, or any technology-generating work, has intertwined human efforts. Given the scope of Canada’s , AI could be identified as a creator of a work by an employee or assignee without difficulty under subsections 13(3) and 13(4). Further, copyright subsists in original and novel work; as many of the above examples establish, the work generated by AI passes the creativity test because it is not necessarily similar to any other output. However, the United States Copyright Office has a contrarian view, suggesting that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”[5]

Computers have long been generating new compounds for medical purposes without substantial interference with the software. Computers have also autonomously generated electrical products that have been patented under the employer’s name.[6] The major inventor of artificial intelligence, the United States, has protected the . It states that “patentability shall not be negated by the manner in which the invention was made.”[7] This reveals that it is immaterial how the invention was developed.

Unfortunately, U.S. courts have failed to answer questions regarding the ownership of AI-generated IP and have generally ignored the view that an owner may be non-human. In , which involved substantial AI intervention, the Federal Circuit Court held that a method for automatically animating lip synchronization and facial expressions of animated characters is patent-eligible, but left eligibility for the ownership rights questionable.

In order to identify patentability in the United States, it must be determined if the invention is directed to an abstract idea, and if so, if it involves any inventive steps. Contrastingly, Canada defines an “invention” as ��“any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter” in . The issue of ownership has not been dealt with in Canada, and the Act is silent on the definition of an inventor or who retains ownership rights. Since most inventions are made in collaboration with others, there are a lot of issues in regard to joint ownership and licensing.

AI having Alternate Legal Identity

AI has been creating and developing work at a very fast pace and the legal frameworks are still struggling to gauge its identity. National governments appear unable or unwilling to provide AI a legal status so that it could be held accountable for any harm caused autonomously. It is apparent that if humans engage with AI technology to any degree, as they often do, those involved would accept liability for any harm done. However, if one cannot be awarded ownership for AI autonomous generation of work, it would be inequitable to hold them accountable for any flowing liability issues.

Admittedly, suing AI technologies would be an arduous task for lawyers and for courts to adjudicate. As AI technology will likely peak in the coming decade, high level of governance is required soon. Before it starts disrupting the major utilizers, namely big companies and industry developers, AI regulations should be discussed at an international level. In the interim, disputes can be resolved through traditional doctrines like principle-agent, employer-employee, or, as many have proposed, by granting AI the status of a legal person.

[1] Mizuki Hashiguchi, “Artificial Intelligence and the Jurisprudence of Patent Eligibility in the United States, Europe, and Japan”, Aspen Publishers, IncIntellectual Property & Technology Law Journal (Vol. 29, Issue 12.), Dec. 1, 2017

[2] See 17 U.S.C. § 102(A). "Copyright Protection Subsists, In Accordance with This Title, In Original Works Of Authorship Fixed In Any Tangible Medium Of Expression, Now Known Or Later Developed, From Which They Can Be Perceived, Reproduced, Or Otherwise Communicated, Either Directly Or With The Aid Of A Machine Or Device."

[3] Robert Plotkin, The Genie in The Machine 61 (2009).

[4] Computer Designed Stabilized Proteins & Method For Producing Same, U.S. Patent No. 4,908,773 (Filed Apr. 6, 1987).

[5] James S. Azadian and Garrett M. Fahy, “Artificial Intelligence and the Law: Navigating "Known Unknowns", Aspen Publishers, Inc. Vol. 35, Issue 2., Feb. 1, 2018 online: <

[6] Stephen Thaler, the President and CEO of Imagination Engines Inc., has been credited with the creation of computer programs which generate copyrightable material with and without human assistance. See Tina Hesman, Stephen Thaler's Computer Creativity Machine Simulates the Human Brain, Mindfully.Org (Jan. 24, 2004), Http://Www.Mindfully.Org/Technology/2004/Creativity-Machine-Thaler24jan04.Htm (Last Visited Sept. 25, 2016).

[7] See also 35 U.S.C. § 103 (1952) (amended 2011).

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a) What are APIs?

APIs are prewritten combinations of , method calls and codes having different functionality tools which programmers use for their software as a prerequisite template to invoke certain common regular functionalities and further advances on their innovation software. Programmers can use APIs to save their time and energy in formulating codes for each function as, per the need of the program, from scratch. .

b) Are APIs protected under US Copyright Law?

Prior to Oracle’s copyright infringement claim, no one claimed monopoly over APIs. When Google used 37 API calls similar to Oracle’s Java SE computer program and copied 11,500 lines of code from it (which made up only 0.4 percent of the entire code), Oracle raised a claim of copyright infringement against Google. While copyright exclusivity is based on an author reaping its benefits for a certain period of time, the courts and Copyright Act also prevent this monopoly from hampering the public interest at large. Keeping that in mind, the SCOTUS appears to have based their decision on two Copyright Act limitations as they envisioned the consequence of their judgment. Primarily, as per United States Code Unannotated Title 17 - Section. 102 (b) of Copyright Act, copyright protection cannot extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” Secondly, the author or the copyright holder cannot prevent another person from making a “fair use” of a copyrighted work. In view of this, the Google’s petition was entirely based on the defence of “fair use”, as they undisputedly copied Oracle’s copyrighted API code ��verbatim. Accordingly, the bench was to decide whether Google’s use copyrighted code ��for its Android operating system constituted “fair use” . However, the scope of this defence is far-reaching.

c) Applicability of the Fair Use Doctrine in Google LLC v Oracle America Inc.

In order to understand the fair use doctrine codified under Section. 107 of United States Copyright Act., the SCOTUS comprehended the use in four factors, which included:

1. The purpose, nature and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes”. It was interpreted that such use was in nature and to provide the programmers a different setup without eliminating the similar features for their Android platform. They added something new, with a further purpose to create distinct parallel environment for different computing environment (smartphones).
2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The copied code was 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. Hence, the code needs to be interpreted on entirety and its functionality as a whole.
3. And the effect of the use upon the potential market for or value of the copyrighted work – the showed that the Android platform which was developed was not a market substitute of the Java SE, hence the reimplementation of the similar functionality codes into a different environment was under the scope of fair use applicability.

The SCOTUS applies the fair use doctrine on a case-by-case basis based on mixed facts and laws . Hence, ��copyright protection for APIs remains ambiguous and software developers and investors in the market remain uneasy. Further, it is imperative to note that Canada does not recognize the doctrine of fair use. However, Canada’s Copyright Act includes the similar principle of “fair dealing”, a narrower version of the former doctrine which may not excuse this type of copying, as Canadian courts do not recognise transformative use under fair dealing.

In conclusion, have noted that if copyright in APIs were exclusive to their author, many programmers would be in a vulnerable position, which would lead to a and hamper innovation. With this being said, the existence of such an exclusive right promotes licensing and royalties in the technology sector at a large scale.����

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya has completed her Masters in Law in International Business Laws at Osgoode Hall Law School, and she is currently working as an IP Law Clerk with Bereskin & Parr and is also an IP Innovation Clinic Fellow.

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a) 2021 Economic Reality of Climate Tech in view of IP and Data

and a hotbed for Canadian entrepreneurs in cleantech innovation. Cleantech overlaps with many industries and generates opportunities to disrupt the market in climate change mitigation technologies (CCMT), applied material, green chemistries, green technologies, electric vehicles, low carbon and net zero buildings, recycling and renewable technologies, and photovoltaic energy sectors. At the Conference, Leah Lawrence quoted that Cleantech is outpacing other industries, including the artificial intelligence sector. In Ontario, the electric power generation, transmission and distribution sector, inclusive of new cleantech energy storage companies, such as NRStor and Hydrostor, has seen a . However, it is captivating that the growth of these sectors largely relies upon the collection of datasets. The term “data” is omnipresent in patent claims across sectors, globally and in Canada. A clean tech company, Semios, has created a crop harvest remote control which assesses and optimises bugs’ and insects’ responses, diseases, and plant health conditions in actual time through data collection and predictive analysis. It disrupts and eliminates insect pheromone mating using wireless networks in the most difficult of plantation environments. This project was sponsored in part by the Sustainable Development Technology Canada (SDTC). SDTC has contributed significant work towards the Government’s vision of a clean & green economy.��

b) Growth Strategies in the Clean Technology Patent Landscape & Innovation Assets Collective (Canada’s Patent Collective)

For entrepreneurs to gain some monopoly over their inventions and innovations and disrupt the cleantech space, it is crucial for them to understand the primary importance of “commercialisation” and “freedom to operate” in the world. In Canada, only 7.7 % of active assets patent filing are Canadian owned inventions. Most of Canada’s patent owners are from the United States (37%), Japan, Germany, and France (each at ~8%), which is alarming. In view of this, the Canadian Intellectual Property Office (CIPO) has created many pilot programs to incentivise entrepreneurs to promote and support their clean technology inventions and innovation. CIPO has expedited patent examination services for Cleantech innovators. Moreover, they have partnered with the WIPO Green network, a marketplace platform, to build commercial relationships with cleantech entrepreneurs and customers. They also created an Intellectual Property (IP) analytic database via CCMT and (IAC). This initiative intends to support Canada’s data driven clean energy industry to foster its IP growth, generate value, build influence in the global market, and increase its rights in IP infringement suits. The major hindrance for cleantech entrepreneurs is funding to research and develop the invention. However, STDC and IAC offer many creative support systems and have generated IP Hedge funds, IP Credits, and merit-based awards for companies. Further, to mitigate the freedom to operate challenge, the IAC has fashioned an IP intelligence & prior art library to have a collective aspect which will consequently protect them from low quality patent assertions, navigate through patent pooling by acquiring third party rights, and working around having a landscape to operate freely without the deterrence of litigation.

c) What will be the implications of the “tech” in cleantech?

The suggest 850 Canadian firms have engaged with the clean technology sector. Hence, the implication of “tech” in cleantech is a pertinent discussion which usually arises from commoditisation, standardisation, globalisation, and market competitors. While conducting their due diligence, investors primarily emphasize and question potential companies about “whether there is any IP owned”, “how many IP” and “whether they are protected or disclosed widely”. Further, they also prefer Canadian companies for many reasons. While Canada has been a hub and spoke for among many other sectors, its strongest pursuit has not been cleantech so far i.e. solar plants or telecommunication sector, Mike Andrade, CEO of Morgan Solar, advised that the cleantech present or potential entrepreneur/innovators should be aware of the cautionary tales in the market and their IP rights.��

In conclusion, the good news is that support from the government, CIPO, and other institutions can help Canadian entrepreneurs to better manage their IP portfolios and invest in the cleantech market. Canada’s commitment to accelerate its reduction of greenhouse gas emissions by will forge many opportunities for cleantech SMEs and large entrepreneurs.

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya is pursuing Master’s in Law in International Business Laws at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

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You have probably heard of the stubborn and widespread phenomenon known as the “gender wage gap”. It varies between countries and professions; however, one thing remains constant: on average globally, women earn less money than men.

What is the Gender Wage Gap?

The gender wage gap is a prevalent indicator of women’s economic equality. It refers to a metric that describes the average difference in earnings between men and women, typically calculated by dividing women’s wages by men’s wages. Even when all compensable factors (i.e., experience, education, etc.) are controlled, women are still being paid less than men .

Why Does the Gender Wage Gap Exist?

The gender wage gap is complex and results from multiple factors, such as:

1. Gender Discrimination: Women are overlooked by employers who believe that their male counterparts are more competent. Ironically, have found that women rank higher than men in top leadership qualities, such as problem solving and initiative.
   
   
2. Occupational Segregation: Social norms and discrimination from employers result in an over-representation of women in lower paid industries with fewer benefits.
   
   
3. Work-Life Balance: Women are expected to take time off to raise children. However, when they return, they face the “.” Many high-paying workplaces do not offer flexibility to mothers, so women are often forced to take less demanding, lower-paying jobs.

The Gender Wage Gap in the Canadian Legal Profession

Despite Canada having more women lawyers than men , the legal profession sees some of the highest gender wage gaps. Ironically, lawyers, who are perceived to be flag bearers of social justice and equality, have failed to make significant progress towards closing the gender wage gap in their own profession.

Men and women start out in the legal industry in nearly equal numbers; however, the number of women slowly dwindles as you move up the legal career ladder. For example, there are in Canadian law firms than men. Even still, women equity partners make (estimated $200,000 a year) than men despite their equal work and billing hours.

Moreover, in-house women lawyers in Canada outnumber men in the legal corporate profession by , yet less. Additionally, male in-house lawyers take home performance bonuses that of women in-house lawyers. Furthermore, Crown Corporations, Government entities, in-house counsel corporations, and not-for-profit companies employ the highest number of women employees, yet women in these organizations face even greater disparities than in .

Typically, in the legal profession, compensation is evaluated based on factors that indicate productivity and collections; however, the gender wage gap is bound to widen if women do not receive the opportunity to work on higher-paying files simply due to gender discrimination or being overlooked by their superiors because of the “motherhood penalty.”

Women leave the legal profession for a myriad of reasons; however, the most significant reasons all stem from the gender wage gap: the lack of monetary appreciation for their work of equal value, lack of an inclusive environment in the workplace, and in the pay scales policies.

Comparing the Gender Wage Gap in Other Jurisdictions

Similar disparities are evident in gender wage gap statistics in the legal professions of other jurisdictions.

In the United Kingdom, pay men more than women. The numbers reflect the fact that men are more often considered for higher paid roles and are awarded with higher bonuses. On average, men are paid approximately 20% more than women in every law firm.

In the United States, the average yearly income of a male partner in a top-tier law firm is nearly , whereas women partners make a third as much. A major barrier is ‘old boy’ networking tactics and business development techniques, which, whether unconsciously or consciously, usually exclude women. Another reason for this disparity is the unequal hourly billing rates of partners

Data shows that regardless of the jurisdiction, women in the legal profession are, regrettably, on average, being paid 20-30% less than men.

Strategies for Reducing the Gender Wage Gap

The has predicted that, at our current rate of progression, it will take an astounding 257 years to close the global gender wage gap! So, what strategies can we implement to accelerate this process?

At a general level, the report has identified four helpful strategies:

1. Fully integrating women in the labour force and not subjecting them to part-time work or women-oriented jobs with low pay and low productivity.
   
   
2. Setting targets for women in leadership. Enhancing social safety nets, especially relating to childcare support.
   
   
3. Enhancing work quality and pay standards across low-paid women-driven work.
   
   
4. Re-skilling women to be ready for re-employment in high growth sectors

More specifically, in the legal profession, some effective strategies to narrow the gap are as follows:

1. Encouraging law firms of all sizes to share for all roles. This holds firms accountable to salary transparency.
   
   
2. Intertwining gender diversity within every stage of the hiring process.
   
   
3. Eliminating discussions about pay history to avoid subconscious contributions to the wage gap.
   
   
4. Mentoring young lawyers to create a future of confident women lawyers with the necessary leadership skills to rise through the ranks.

When women are recognized for the work they do and are compensated equally to their counterparts in return, everyone stands to gain. Gender equality is a matter of justice and fairness. There is no more compelling reason to accelerate progress toward gender parity than that.

This article was co-written by Trish Sawhney, Articling Student at Clancy PC, and Aishwerya Kansal, IPilogue Contributor and IP Innovation Clinic Fellow.��

Trish completed her law degree at the University of Birmingham in England. She also pursued a Bachelor of Music with an Honours in Music History, and a Bachelor of Arts with a specialization in Business Administrative Studies from Western University.

Aishwerya has a Master’s in Law in International Business Laws from Osgoode Hall Law School and is an Internationally Trained Lawyer with experience in Intellectual Property and Brand Protection.

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Granting monopoly and exclusivity rights to a company/brand owner for a trademark vastly depend upon the owner demonstrating “use” in “correlation” with its description of classified goods and services. Also, the 2020 amendments to the Trademarks Act, RSC 1985, c T-13 have emphasized the importance of “use” in many contexts. Recently, in , we witnessed that evolving jurisprudence of “use” in trademarks when the courts deviated from the old concept of brick and mortar presence. However, in non-use cancellation proceedings, the Canadian Intellectual Property Office (CIPO) maintains that a trademark owner should establish a direct correlation and association of goods and services with the trademark’s use. The Federal Court notes that they are considering the in the meaning of section 4 and 45 of the . proceedings are not a mala fide attempt of unwarranted expungement (which is filed under of the ), but to clear out “dead wood” from the trademark database and create space for other brand owners to register their trademarks.

a) Summary – Federal Court Upheld the Trademarks Opposition Board Decision

Justice Fuhrer upheld the decision of G.M. Melchin, Trademark Hearing Officer (THO), CIPO in the matter of . The Federal Court (FC) reiterated that a preponderance of evidence is not required to prove the use of the trademark in Canada, but rather emphasizes that, in non-use cancellation proceedings, the evidence must correlate with the goods/services. Accordingly, the FC did not find any palpable and overriding errors in the THO process and decision. As per the dated January 09, 2020, the description of goods for the trademark “en Vogue”, (TMA789,288) needs to be amended to delete the goods “adhesives used in industry”, “nail adhesives”,��“nail brush cleaners”, and “apparatus for lighting, namely, UV lamps (not for medical purposes)” from its description because the Applicant failed to demonstrate a correlation between the evidence submitted for the trademark “en Vogue” and the aforementioned goods. Justice Fuhrer dismissed the appeal with costs payable by the Applicant to the Respondent.

b) Application of Standard of Review by the Federal Court��

The Supreme Court of Canada established in�� that the appellate court’s role is to identify whether a Hearing Officer has erred in their findings and, if so, to narrow their analysis to any palpable and overriding errors in the inference drawn from the evidence. Only at this point can the Federal Court delve into mixed facts and other inferences which the Hearing Officer reasonably may have drawn from the evidence. Simply put, the appellate court must first identify which standard of review applies to the issue in question, then apply it appropriately. Since the Applicant’s evidence does not support their factual conclusions and the Respondent did not present new evidence, Justice Fuhrer applied this principle in her analysis and dismissed the appeal. Therefore, a .

c) Correlation or Overkill via Evidentiary Documents��

Many summary non-use cancellation proceedings have affirmed that a trademark owner is not required to provide an evidentiary overkill to demonstrate “use” (meaning not all examples of use must be evidenced), but merely that a single document can substantiate the “use” within the last three years. However, pertinently the owner’s evidence should directly demonstrate a correlation between the mark and its associated goods and services. The Court in (“Pacific Sky”) observed that although the “use” threshold is not stringent, particularly to use within the last three years, for a decision-maker to infer an association and correlation between the evidence and the description of goods specified under the registration, relevant and definitive facts within the submitted evidence must suggest a direct correlation. Hence, the THO is not just emphasizing “use”, but also “use” in “direct correlation” between the “classified description of goods” and the “evidence” so brought on record. ��

d) Ambiguity in establishing correlation via evidence/affidavit

In the present case, the Applicant’s affidavits, filed by its President, failed to explicitly demonstrate their use pf the mark in association with the said goods and services. The Federal Court suggests that a sworn affidavit can establish use of a mark. An Affidavit is produced in absence of evidence or to combat the risk of breaching confidentiality. In Pacific Sky, the Applicant’s binding officer filed an affidavit because it could not furnish evidence associated with “consumer and industrial safety products namely flashlights, flares” and “consulting and assessment services” and pleaded confidentiality. However, the court concluded that the Applicant’s affidavit did not explicitly suggest “use” for the identified goods and services and was vaguely attested.

IN CONCLUSION, trademark-owners should maintain evidence that they consciously label their sales revenues, advertisements, and merchandise products with their registered mark to safeguard themselves from non-use cancellation proceedings. If they don’t, trademark registrants who cannot generate evidence that they have used their mark in association with their specified goods and services can lose their trademark rights and suffer huge monetary losses. Consequently, the brand owner might have to dispose of all property depicting the logo or trademark.

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya is pursuing Master’s in Law in International Business Laws at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

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One day before an virtual hearing went viral, IP Osgoode arranged and witnessed a smooth Federal Court virtual hearing via Zoom Business video conference. While many stories about the mishaps of virtual hearings and the challenges courts are facing have been making rounds during these unprecedented times, the courts have ensured access to justice by adapting to technological advances. Virtual hearings are not a new concept for arbitral proceedings, since these disputes are resolved internationally and have judges sitting globally. Nevertheless, Canada’s transition for its traditional judicial system and domestic court rooms has been prudent to survive the ever-changing dynamics of this novel coronavirus and its new strains.

On February 9^th, 2021, the Federal Court heard an appeal under of . The Act allows an appeal within two months from the decision of the Registrar for a use or , which was filed by the Applicant at the Federal Court in the present case. A non-use cancellation proceeding allows any person to question the use of a registered trademark in Canada, provided written request with notice to the registered owner of the trademark. In this case, the Registrar of Trademark had passed an order on January 29, 2020 to amend the description of the goods through deletion of certain goods under the trademark registration no. TMA789,288, “en Vogue.” This decision helped to maintain the trademark registration in the database with an amended description of goods for which the Respondent was able to show use. The applicant, however, brought this appeal at the Federal Court on grounds that the Registrar erred in law under and s. of the Act; and in fact, regarding the correlation of the goods with the exhibited evidence filed.

The issues in law stemmed from the standard of review application. There have been considerable changes in the application of this test since . In Vavilov, the court clarified that all questions of law would be reviewed for correctness, while questions of fact or mixed fact and law would be reviewed for “palpable and overriding error.”��However, the Applicant counsel in this case has relied on ., where the registrant’s appeal was dismissed and Registrar’s decision of expungement of the trademark was affirmed on the basis of the standard of reasonableness simpliciter. In , the court applied the standard of reasonableness simpliciter test since no additional evidence was adduced at appeal. Similarly, in the present case, the Respondent has not adduced any additional evidence. After hearing submissions from counsel for both parties, the Honourable Justice Janet M. Fuhrer reserved the order for a future date. It will be interesting to see her decision.

The Courts have used virtual platforms to survive the pandemic’s disruption to court proceedings. After in-person courtroom hearings were suspended, . for online hearings. Although virtual hearings have many limitations (for obvious reasons) for the Federal Court and other Court proceedings, the Courts have maintained their Open Court Room Policy by giving access to the . Their access has many caveats, and the format of the virtual hearing is primarily to observe the proceeding without being granted a screen space. In other words, the public and media can view the judicial officer and the counsels’ submissions but are not visible and their mics are turned off at all times. Upon special request and for educational purposes, the IP Osgoode team was granted an unrecorded Q&A session after the proceedings.

In conclusion, we cannot brush aside the challenges that lawyers, government officials and the judicial system as a whole face to present a case zealously through e-hearings. However, in this case, counsel for both parties, in their own words, suggested that this e-hearing experience was a blessing in disguise. Their clients also prefer this cost-effective infrastructure without much loss of efficacy. Both counsel would like to explore this viable option more in the coming days, as they can jump from one e-court room to another without having to spend much of their energy and travel time.

Written by Aishwerya Kansal, IPilogue Contributor, an IP Innovation Clinic Fellow, Masters in Law in International Business Laws, Osgoode Hall Law School 2020, and Internationally Trained Lawyer.

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COPYRIGHT LAW

CUSMA Implementation

On July 1, 2020, the (CUSMA) officially came into force, replacing the North American Free Trade Agreement (NAFTA). Signed in 2018, the desired effect of CUSMA is to preserve existing trade relations between the three North American countries, and to introduce modernized provisions that address 21st-century trade issues. In particular, the builds upon the legal framework of standards in North America for the protection and enforcement of IP rights.��

Regarding copyright and related rights, Canada is increasing the duration of its term for general copyright protection from 50 to 70 years following the life of the author. Canada will have a two-and-a-half-year transition period to realize this new measure. Additionally, the term of protection for performances and sound recordings will also increase from 70 to 75 years plus life. CUSMA will also increase protection for Rights Management Information (RMI), also known as digital watermarks. While Canada already imposes criminal remedies for altering or removing Technological Protection Measures (TPMs, or digital locks), the Agreement creates new criminal remedies for circumventing RMI. Organizations will have to be mindful when implementing these new provisions to ensure that their practices align with CUSMA’s new obligations.

Canadian Copyright Case Law

91��ɫ v The Canadian Copyright Licensing Agency, 2020 FCA 77

On April 22, 2020, the regarding a dispute between 91��ɫ (“91��ɫ”) and The Canadian Copyright Licensing Agency (“Access Copyright”), holding that the tariffs set against 91��ɫ by the Copyright Board are not mandatory, but dismissed 91��ɫ’s counterclaim regarding the fair dealing guidelines. Access Copyright had sued 91��ɫ for non-payment of tariffs, arguing that they are mandatory and enforceable against anyone who infringes upon a copyright owner’s exclusive rights. Following this decision, both parties filed for leave to appeal the FCA decision to the Supreme Court of Canada.

Tariffs
The FCA held that the tariffs set by the Copyright Board are not mandatory. Because 91��ɫ opted out of the tariffs in 2010, they are not enforceable against 91��ɫ. On this issue, the FCA stated, “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee.”

Fair Dealing
91��ɫ argued that it was not accountable for any tariffs associated with the reproduction of materials because they met their “” and therefore constituted fair dealing pursuant to section 29 of . On this issue, the FCA found that the Federal Court made no palpable error in its analysis, concluding that even though copying followed the guidelines, this did not necessarily make it a fair dealing.

Continuing into 2021
On October 15, 2020, the Supreme Court of Canada granted leave to appeal. This eagerly anticipated decision will affect many of Canada’s educational institutions who opted out of paying tariffs and have also followed the Fair Dealing Guidelines discussed in this decision. Further, a Supreme Court decision in 91��ɫ’s favour will surely cause businesses who rely on similar tariffs to rethink their business model.

Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504

On April 23, 2020, Justice Paul Schabas’ released his decision in the case of . Filmmaker Tommy Wiseau brought a claim against the defendants, alleging that their documentary, Room Full of Spoons, about Wiseau’s film, The Room, breached his copyright. In his reasons, Justice Schabas provides artists in Canada with an authoritative statement defining documentaries an allowable purpose under the Copyright Act’s fair dealing provisions, “to the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting.”

The decision affirms fair dealing as a user’s right, as opposed to a defense to the copyright infringement alleged by the plaintiff, solidifying the balancing of rights and freedoms as a core purpose of the Canadian Copyright Act. In addressing the Copyright Act’s fair dealing provisions, the Court offers useful guidance to documentary filmmakers wishing to stay on-side with section 29 through an analysis of the factors outlined in . A more in-depth discussion can be found . As well, Justice Schabas’ reasons address the Copyright Act’s moral rights provisions, fundamentally finding that criticism or negative tones alone will not trigger a breach of an author’s right to the integrity of a work.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2020 FCA 100 & CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101

On June 5, 2020, the Federal Court of Appeal released two decisions (2020 FCA 100 and 2020 FCA 101) which ruled on the applicability of the “making available right” (“MAR”) under s. s.2.4(1.1) of the Copyright Act. The FCA found that songwriters are not entitled to royalties when music is first posted online, but only after it has been downloaded. This decision overturns a 2017 ruling from the Copyright Board, which found that composers and songwriters are entitled to two royalties: first when it is made available under a streaming platform such as Apple Music or Spotify, and second when the song is downloaded or streamed.

By way of background, The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed with the Copyright Board proposed tariffs for certain years for the communication to the public by telecommunication of works in its repertoire through online music services including Apple Music and Spotify. These tariffs are available when a musical work is “communicated.”

After SOCAN had filed its proposed tariffs, the Copyright Act was amended to include the MAR Provision, which reads as follows:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

This raised the question of whether the mere making available of a work on a server for the purpose of later streaming or download by the public was a “communication” for which a tariff was payable. In 2017, the Copyright Board concluded on the basis of expert witnesses that the double royalty scheme is available.

Stratas J, writing for the FCA, overturned this conclusion and stated that the Copyright Board "skewed its analysis in favour of one particular result" and relied on "leaps of reasoning" that are incompatible with the precedent set out in the Supreme Court of Canada’s (SCC) 2012 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada decision. In that decision, the SCC concluded that transmission over the Internet of a musical work that results in a download of that work is not a communication.

PATENT LAW��

The Impact of COVID-19 Legislation on the Patent Act and Patentee Rights

(“An Act respecting certain measures in response to COVID-19”) received Royal Assent on March 25, 2020.�� Included in this bill was the addition of section 19.4 to the which significantly changed the rights of patent owners this year. For instance, while section 19.4 allowed the to authorize the government’s use of previously patented inventions to respond to a public health emergency, the Commissioner’s new powers permitted authorization to be granted to other entities as well. In addition, there was no requirement for applicants (be they the government or otherwise) to inform the patentee in advance of applying for authorization to use its patent. This meant that patentees received no notice if an applicant applied to use its intellectual property. Instead, patentees only received notice if the Commissioner granted authorization to the applicant following their submission. Moreover, section 19.4 precluded patentees to an express right of appeal of the Commissioner’s authorization. Instead, patentees were left to rely on section 19.4(8) of the Act and had to apply to the Federal Court to prevent the government (or any applicant) from “making, constructing, using or selling the patented invention in a manner that [was] inconsistent with the authorization.”

While patentees seemingly received little benefit from the Patent Act's amendments mentioned above, the legislative changes offered some positive developments for patent owners. For example, pursuant to s.19.4(5), holders of the patent are compensated for government use, “taking into account the economic value of ‘the authorization and the extent to which they make, construct, use and sell the patented invention.’” Additionally, as of September 30, 2020, the Commissioner can no longer award the government with any authorizations, which effectively serves as an imposed limit on the Commissioner’s powers. While COVID-19 may arguably be captured by other provisions of the Patent Act (cf. s. 19 or s. 21), s. 19.4 clarifies the boundaries of government uses of patents for public health emergencies.��

CIPO Issues New Guidance Document After Federal Court Rejects Problem-Solution Approach to Claim Construction

Following the 2020 Federal Court decision in , CIPO released a new to clarify patentable subject matter under the Patent Act. The court, and CIPO, endorsed the purposive construction approach to constructing claims set out in 2000 by the SCC in and . The new guidelines cover the framework to be followed by patent examiners while identifying certain elements of patent claims as essential. CIPO’s earlier pointed at undertaking claim analysis, which involved identifying the “proposed problem to the disclosed solution.” The Federal Court in Choueifaty clarified this problem-solution test as incorrect for claim construction.

The Federal Court held that a correct approach looks at the entirety of the specification and presumes an element as essential unless demonstrated to the contrary. Purposive construction attempts to give effect to the intentions of the applicant in determining the scope of the claimed monopoly.

This is particularly important for computer-implemented inventions. CIPO, in the , clarified that an algorithm that improves the functioning of the computer would constitute a single invention and is patentable subject-matter. However, the mere use of a computer to execute an algorithm remains nonpatentable subject-matter under subsection 27(8) of the . This update has brought much needed clarity to the subject matter eligibility issues in computer-related patents.

TRADEMARK LAW

Claims to Official Marks not a Complete Defence to an Infringement Claim��

In February 2020, the Federal Court of Appeal upheld the Federal Court’s decision in , finding that public authorities cannot rely on relating to official marks as a complete defence against an infringement claim. At its most basic level, official marks allow public authorities to , even those that may not otherwise be registered as regular trademarks. Quality Program Services Inc. (QPS) brought a Federal Court claim against the Ministry of Energy (MOE) for infringing their “EMPOWER ME” trademark related to energy awareness, conservation, and efficiency services. The MOE had launched a website with the mark “emPOWERme” to educate Ontario residents about the province’s electricity system. In response to QPS’s claim, the MOE sought protection and public recognition of its mark as an official mark pursuant to which states that “no person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for… any badge, crest, emblem or mark…adopted and used by any public authority, in Canada as an official mark for goods or services.”

However, the Federal Court was not persuaded that s. 9 provided the MOE complete immunity from an infringement claim. Instead, it was recognized that the infringement rights of a trademark holder, such as QPS under , could not be ignored simply because a public authority has been given public notice of its adoption and use of an official mark, especially when that mark follows a registered trademark which could cause confusion between the two marks, as was the case here. The Federal Court of Appeal further that “a public authority that chooses to use a mark that is confusing to a registered trademark does so at its peril.” As a result of this case, we get more clarity and limitations to the confusing and all-encompassing world of official marks. While it is clear that official marks following an existing trademark do not automatically strike down an infringement claim, the official mark and the preceding trademark must be similar in some way to set off a trademark confusion analysis.

Lack of Use is Insufficient for Opposing a Trademark Application

In , the Federal Court affirmed the Registrar’s decision to reject Pentastar Transport Ltd’s opposition to Fiat Chrysler Automobiles (FCA) US’s trademark application for Pentastar. Pentastar Transport Ltd owns a registered mark Pentastar for its oil and gas services, whereas FCA US applied to register Pentastar for its vehicle engines. Pentastar’s ground of opposition is that FCA US did not possess a genuine intention to use Pentastar for its engines, which contravened s. 30(e) of the old Trade-Marks Act. As summarized��, “opposition proceedings involve a two stage inquiry. First, the opponent bears an evidential burden to establish that the facts alleged to support the issue exist. If established, then the applicant bears a legal burden to show that its application does not contravene the provisions of the Act as alleged.” The Court upheld the Registrar’s factual finding that Pentastar did not adduce sufficient evidence as the factual ground of its opposition. The Court also agreed with the Registrar that “use” and “intended to use” were not synonymous. In this case, this ruling entails that even though FCA US had not started using Pentastar as a trademark on its engines, it did not follow that FCA US had no intention to use it in the future. In fact, there was circumstantial evidence (as summarized��) indicating that FCA US indeed harbored the intention to use Pentastar as a mark for its engines.

United States Supreme Court Developments

In April 2020, the United States Supreme Court decided the case . The Court determined that even an innocent trademark infringer could lose its profits and that wilful infringement is not a pre-condition to a profits award. The Court came to this determination by interpreting which does not mention the condition of wilful infringement. Fossil was liable for $6.7 million in profits to Romag, for using counterfeit Romag fasteners in its manufacturing of leather goods.

In June 2020, the Court in held that a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Booking.com sought to register a mark with the USPTO but was denied because “Booking.com” was not a generic name to consumers. Therefore, the term was not held to be generic. The USPTO analyzed the terms “Booking” and “.com” separately. This decision suggests that domain names may need to be marketed to consumers as such to be trademarked.

Trademark Law and Sports in 2020

With all its troubles, 2020 has also been an eventful year for trademark lawyers in sports. In February, a Maryland-based nonprofit Game Plan����against Lebron James and his commercial associates, including Nike, ESPN, and Take-Two Interactive. Game Plan claims that Lebron and his associates had encroached upon its trademark rights by unauthorized use of the registered slogan “I am more than an athlete” to make profits. In April 2020, Michael Jordan����in China that had dragged on for eight years. China’s highest court ruled in favor of Jordan against a Chinese company which had been marketing its sports products under the brand name Qiaodan - a Chinese transliteration of Jordan - since the 1980s.

In September, soccer superstar Leo Messi’s legal team����Europe’s highest court that Messi should be granted the exclusive right to the brand name Messi. Other similar names, such as “Massi,” should be disallowed for commercial purposes to avoid confusing the consumers. Lastly, although the Washington Football Team (formerly, Washington Redskins) changed its name in 2020, it now runs into��. As it turns out, many alternative team names have already been registered by a trademark squatter Martin McCaulay. Washington fans may need to wish for the new year that their team will receive a new name that neither infracts trademark law nor carries racist connotations.

Fashion Trends Followed by Brand Owners throughout the Pandemic��

As it is said, every crisis brings new opportunities. While some members of the general public may have doctor-recommended masks in the early months of the pandemic, they have become a trend for upcoming years. As a result of this trend, big luxury brands tapped into this unchartered territory just after the���� in July. Luxury fashion companies are now monetizing their brand value through this����i.e., face masks and shields, which have become the new reality and necessity of everyday life. Fashion brands like����have already filed applications for their trademarks in classes 9 and 10 with the USPTO and other countries for “Protective” and “Respiratory Masks.” In September,����for its uniquely styled��Toile Monogram print for its��Face Shield, filed for��“protective face shields; protective masks; protective chin shields; [and] protective gloves” (class 9), and “face masks for medical use; Surgical masks; protective face shields for medical use; protective chin shields for medical use; [and] gloves for medical use” (class 10).����

On the other hand, , Nike, and����masks also lead the charts of most searched and purchased masks.��Small and high street brands are attempting to claim proprietary rights in these trademark classes because of the long-term monetary potential. The new fashion ornament brings in value, and the brand owners wish to benefit from damages in infringement and counterfeits cases. Counterfeits are also escalating on e-commerce portals, such as��. A Chinese company has filed a trademark infringement suit for its brand����in the Illinois state. Furthermore, on December 14, 2020 the����announced an initiative to accept expediated examination requests for trademark applications for COVID-19 related goods and services, which include sanitary masks and other things. In view of this, we can predict an����from such luxury and burgeoning fashion brands.����

Bricks and Mortar Presence No Longer Necessary to Establish Use of a Trademark

In the past, the Federal Court of Canada has been unclear as to the fate of travel-related services that do not have a physical presence in Canada, but seek to maintain their Canadian trademark registration through regular use. However, following the Federal Court of Appeal’s decision in , that fate has been clarified in favour of travel-related services. Since 2014, Miller Thompson has tried to expunge Hilton’s WALDORF ASTORIA trademark given that it did not offer physical WALDORF ASTORIA hotel-related services in Canada. As such, Miller Thomson commenced proceedings under s.45 of the Trademarks Act, which would require Hilton to show use of its WALDORF ASTORIA trademark during the three years prior to the proceedings, known as the Relevant Period.

But, on September 9, 2020, the Court of Appeal upheld the Federal Court’s decision that Hilton had demonstrated use of their WALDORF ASTORIA trademark during the Relevant Period. Among other evidence presented by Hilton, during the Relevant Period, Canadians could see the WALDORF ASTORIA trademark when visiting their website and could book reservations in several ways, including directly on the site. As well, Canadians generated $50 million in revenue for Hilton as a result of their stays at WALDORF ASTORIA hotels outside of Canada. Thus, the Court of Appeal summed up the as follows: “so long as consumers, purchasers, or members of the public in Canada receive a material benefit from the activity at issue, it is a service.” This means that online reservations and payment services for later stays outside of Canada are included under the meaning of “hotel services.” Furthermore, a brick and mortar hotel is no longer absolutely necessary to establish use. In fact, in the Court of Appeal’s conclusion, it stated that “the requirements for ‘use’ under section 45 of the Act must adapt to accord with 21st century commercial practices.” For other trademark owners facing the same issue as Hilton, the Federal Court of Appeal provided guidance on how to make a , including website metrics showing that Canadians access their services online and subsequently purchase services as a consequence of their mark being displayed.

Trademark Modernization Act of 2020 Passed

On December 21, 2020, Congress passed the . This bill was enacted to amend the 1946 Trademark Act and authorized third parties "." The bill also introduced a����that would allow any party to petition for the expungement of a registered trademark that is not commercially active. The goal of these amendments was to reduce the number of “” that were on the register despite not being in use, allowing a more productive, competitive commercial trademark market. These amendments are also speculated to affect the longevity of trademark registrations as trademarks become increasingly vulnerable to cancellation. The Trademark Modernization Act of 2020 will certainly continue to generate more discussion and result in changing practices in Canada.

Giuseppina (Pina) D’Agostino is��the Founder & Director of IP Osgoode, the IP Intensive Program, and the IP 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 IPilogue Editors:

Copyright:��Meghan Carlin, Emily Xiang, Joaquin Arias, Sarah Raja,��Saumia Ganeshamoorthy

Patents:��Dan Choi, Gurbir Sidhu,��Khristoff Browning, Jin Xu,��Madelaine Lynch

Trademarks:��Adele Zhang, Aishwerya Kansal,��Jingcai Ying, Eloise Somera, Lauren Chan

Bonnie Hassanzadeh, Nikita Munjal, Sebastian Beck-Watt, and Alessia Monastero

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have been predicting a recession akin to the Great but this pandemic has also activated successful disrupters like Amazon, Google, Siemens and Microsoft for services like B2B, cloud computing, data analytics, 3D printing and tools for remote office like work from home (WfH) easier. It may be cliché to say��“In every crisis lies the seeds of new opportunities” but it is true and rapidly unfolding now. Companies like��, which analyzes employee behaviour to help to improve human experience digitally, has ��from two financing��cycles. Companies would focus on empowering to build a strong interface for end users to ameliorate remote offices or ��WfH environments. For industries dependent upon human interface, the Internet of Things, the next generation of digital interface, ��will smartphone screens to industry screens, automobile dashboards, and even power generator control room screens.�� provides a steel clad digital ledger to record transactions, documents, signatures and attestations that cannot be with modified in retrospect. It is being increasingly used by governments, health sectors, and the food and agricultural industry, for example, and as a substitute for printed money. Use of this technology enhances ease of doing business by simplifying the vetting of documents and due diligence of parties.

On the flip side, many famous disrupters, like ��,�� are furious at the California Government for not lifting the stay-in home orders resulting in enormous losses to ��Tesla. WeWork, Airlines, Airbnb and Uber’s mobility centric businesses are suffering significantly especillay as they bring unkown persons close physically. People and businesses have to evolve quickly and adapt to co-habit in a post-pandemic world that could have autonomously driven cars, virtual reality tourism, virtual meetings and conferences, and 3D printing, among other technologies. Moreover, these technologies can be provided extensively on a large scale through licensing, commercial agreements, joint ventures, and strategic investments. By investing in right kind of start-up, monetization will help the innovation sector. The future lies in leveraging intelligent technologies by entrepreneurs in their development and business at large in adopting them.

COVID 19 has altered our world permanently. To survive and thrive, suggests, Band Aid solutions to be avoided and overhaul of strategies and expedited digitisation pursued.

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya is pursuing Masters in Law in International Business Laws at ��Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

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Disingenuous and Deceptive Behaviour

Prior to the whistleblower revelation of Facebook's involvement in Cambridge Analytica influencing , it had been popularising various quizzes and games on its platform. This was ��to engage users in order to conduct����to check if�� instigation of "emotional contagion” was possible through social media. Succeeding in such attempts, it gave multiple third parties��access to its users’ data (e.g., content posted on Facebook and messages exchanged through Messenger). Thus, it is imperative to regulate such social media platforms. Facebook superficially handles its privacy policies through��, which hampers the meaningful and����from users. Accordingly, the Canadian regulators are making painstaking efforts to protect citizens from such undue influences by penalizing such activities. The Bureau explicitly confirms that����do not in their entirety protect the users to control their respective messenger chats and other private activities. Rather, there are loopholes (such as, installation of third-party apps) by which third parties can access such information rendering enormous profits to Facebook. Though Facebook had contended to refrain from such activities in 2015, that such practice continued until 2018.

Intertwined Relationship of the Regulators in the Privacy Dispute

Due to complexity of the cases and inadequacy of laws in the field of data privacy, the OPC and Competition Commission have gone to great lengths to achieve a comprehensive settlement and enforcement in this case. As both had different approaches and interests, being regulated under different laws, including PIPEDA and the respectively, achieving consistency with regards to regulations can be a challenge. Intertwining both regulators helped in bridging the gap between the “” of federal and provincial privacy laws, while Competition Bureau sought an administrative penalty helping in the enforcement proceedings. Though the OPC has been criticized in the past for lack of enforcement powers, coalition of both regulators has demonstrated benefit to the Canadian privacy regime.

In conclusion, considering the��current scenario, it is foreseeable that more regulators may��interpret privacy issues differently and as per their mandates. This is because the privacy law framework in Canada, and elsewhere, has not entirely addressed online infringement issues and it will take a considerable period of time to develop comprehensive statutes to regulate these novel and often nefarious online activities.

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya is pursuing Master’s in Law in International Business Laws at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

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