When I first applied to the IP Intensive Program, the prospect of experiential learning was appealing, but I had only a vague idea of what to expect. Having just completed the 10-week placement, I can safely say, and I am confident other IP Intensive students would agree, that the program is more than just an opportunity to learn about law. A lot more.

Learning about law was, of course, a major component. During the very first week I had exposure to copyright, trademarks, advertising, and media law. Some of these areas were familiar and others entirely novel. A significant portion of my time was dedicated to working on privacy law. Aside from conducting legal research, I was involved in day-to-day operations as well. This involved giving comments on a broad range of contracts, evaluating clients’ advertisements for compliance with advertising law, and drafting rules for an online contest, just to name a few. There is no doubt in my mind that the work I was entrusted with at The Globe equipped me with a level of knowledge that could not have been obtained in the classroom.

The work placement made the limitations of classroom learning readily apparent. The biggest difference is the context in which learning takes place. The degree of access I had to The Globe’s inner workings taught me a lot about the publishing business and the role in-house lawyers should play in any organization. An appreciation of how multiple departments interact within an organization, its business model and how the industry is developing as a whole inevitably informed how I approach legal advice. For me personally, figuring out and applying the law in such an industry and fact-specific context was a welcome challenge and a rewarding learning exercise.

Spending a semester at The Globe also gave me a perspective on legal practice that I am certain will aid me in the long run. First, it served as a preview of what it would be like to work as an in-house lawyer, as opposed to an associate at a law firm. Second, it showed me how sophisticated clients approach legal services and, in particular, what in-house practitioners look for (and avoid) when retaining external counsel.

Above all, the people I have met at The Globe made my time there truly memorable. I have had excellent supervisors who provided me with great guidance and career advice. In addition to being patient and knowledgeable, they were extremely friendly and approachable, which created to a fantastic work environment. The same could be said about everyone I had encountered at The Globe.

Overall, the IP Intensive Program was an invaluable experience. I would encourage Osgoode students to take advantage of the unique opportunity to learn from renowned scholars, judges and other students, while gaining practical exposure to the practice of IP law.��

Anatoly Zhitnik 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 reflective blog on their internship experience.

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Motivated to compete with Facebook and Google, Bell recently that starting November 16 it will be collecting massive amounts of customer data to deliver targeted advertising. The Office of the Privacy Commissioner of Canada (OPC) that it will be investigating the matter. Canada’s telecom giant is adamant that it will comply with the (PIPEDA), but the extent of its practice raises questions about how PIPEDA’s key concepts should be interpreted and applied.

The extensiveness rather than purpose of Bell’s planned data collection seems to have generated the most controversy. The amount and type of user data that will be are ambitious: Internet history, search terms, location, mobile device type, calling patterns, and television viewing habits. To Bell’s credit, the company has been proactive in informing its customers of the upcoming changes and offers an opportunity to .

At least one academic commentator has about the legality of Bell’s program, focusing specifically on the sensitivity of the information collected. Given how the concept of “sensitive information” has been interpreted under PIPEDA and how Bell treats location data under its own Privacy Policy for location-based services, the reliance on opt-out consent is indeed surprising. that the form of consent must be commensurate with the sensitivity of personal information. Where the information is considered to be sensitive, express consent (i.e. opt-in rather than opt-out) . PIPEDA identifies medical and income records as examples of sensitive information, but otherwise . The OPC has also held that should be considered sensitive. Further, PIPEDA “any information can be sensitive, depending on the context”.

In light of these facts and the amount and type of data Bell intends to collect, it is difficult to mount a persuasive argument that the information proposed to be collected is not sensitive. In fact, there is reason to believe that Bell itself considers location data to be sensitive enough to warrant express consent. Under covering location-based services, use or disclosure of a wireless phone’s location requires express consent. Whether Bell can reconcile the interpretation of “sensitive information” under PIPEDA and its own position on location data to justify the upcoming changes remains to be seen.

Besides consent requirements, PIPEDA : organizations should only collect personal information necessary for the stated purposes (emphasis added). Critically, both the amount and type of information collected, used, or disclosed. A brief survey of PIPEDA complaint investigations reveals that the concept of ‘necessity’ is given its plain meaning. For example, if the purpose is to contact a customer, then only their contact details are necessary and companies should not solicit additional information. While the concept is clear in this simple example, it is severely strained when information is used for purposes that are not well-defined. For instance, for data collected to facilitate targeted advertising, it is exceedingly difficult to determine the scope of what is necessary for that purpose. Presumably, more data allow more precise targeting, which translates into higher advertising revenue. In at least , the OPC has attempted to balance the purpose of collection against the scope of information collected, but it is uncertain how this approach could be applied to targeted advertising. In that case, the OPC held that a full date of birth is not necessary for demographics research and recommended that the company collect only the month and year. The OPC reasoned that marginal gains in accuracy afforded by using the full date did not justify the impact on privacy. It is difficult to predict whether the OPC will attempt to draw a line between financial rewards and privacy, but its investigation should clarify how the concept of ‘necessity’ should be applied.��

In today’s world, businesses like Bell possess a natural data advantage through the services they provide. Since the OPC lacks strong enforcement powers, damage to brand reputation can pose the greatest risk for data gatherers. However, companies with little competition in the marketplace may be little deterred. Given Bell’s position in the Canadian telecommunications industry, we may therefore expect the OPC investigation to be conducted with an increased level of scrutiny.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School and is 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.

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Under the , disclosure of video rental history previously required “the informed, written consent of the consumer given at the time the disclosure is sought.” This provision, in effect, required written consent for each act of disclosure. Moreover, the statute did not specify that consent could be provided by electronic means. While non-video related services like Spotify were free to integrate their services with social media sites such as Facebook, the law puts companies such as Netflix at a disadvantage by making it impractical for users to share their viewing habits online. Amendments to the VPPA addressed this discrepancy by permitting users to give consent via electronic means at any time, as opposed to when disclosure is sought. In other words, one can sign a blanket form expressing consent for future disclosure.

Although some privacy advocates are cautious about these changes, they are extremely concerned with what the legislation leaves out. Originally, amendments to the VPPA were part of a larger reform package that also included amendments to the . As it currently stands, the ECPA permits law enforcement agencies to obtain remotely stored e-mails and location data that are over 180 days old without a search warrant. Instead of a warrant, which requires judicial authorization based on probable cause, law enforcement agencies can request production of private data on the basis of an ; subpoenas do not require judicial authorization and can be issued on the grounds that information is “relevant” to an investigation. Changes to the ECPA, approved by the Senate Judiciary Committee last year, would have abandoned this standard in favour of a general search warrant requirement. Alas, the reform package was signed into law, but the was axed at the last minute . Privacy advocates are especially concerned about the outcome because, as the shows, law enforcement agencies are increasingly relying on administrative subpoenas when requesting user data.

The entire reform package was subject to extensive judicial hearings and a number of parties have testified before the committee. The discussion surrounding the status of the ECPA shows privacy to be key rhetorical battleground for three broad classes of interests: individuals, industry, and law enforcement.

Groups concerned with privacy and civil liberties rely heavily on the notion of technological neutrality and argue that the right to due process and reasonable expectations of privacy exist regardless of the form of communication. Why should, goes the argument, an email, stored locally in digital or physical format, have different protections than one stored remotely? James Dempsey, the Vice President for Public Policy for Democracy & Technology, in his , drew a parallel with how courts, faced with new technology and social realities, have struggled with privacy issues. In , the court held that telephone conversations were not protected by the Fourth Amendment. However, in dissent, Justice Brandeis invoked the principle of technological neutrality to argue that there are no essential differences between a private letter and a phone conversation that could support different privacy standards. Similarly, as we have grown accustomed to storing our private information online for indefinite periods of time, it makes little sense to base privacy standards on the length of time an email has been stored in our inbox. In other words, technological and social realities change our understanding of what constitutes a reasonable expectation of privacy.

Industry representatives have also been . From their perspective, inconsistent privacy standards make it difficult for businesses to comply with the law and it discourages innovation because consumers are hesitant to adopt new technology at the expense of privacy.

Not surprisingly, ECPA reforms were met with significant . In his , James Baker, Associate Deputy Attorney General United States Department Of Justice, placed great emphasis on public safety and expediency, arguing that where time is of the essence, the ECPA is a valuable tool. In addition, it was argued that the ECPA is used extensively in combating privacy-related crimes, such as identity theft.

Evidently, in the digital age, privacy interests have become increasingly difficult to define and circumscribe. For one, rapid adoption of new technologies and the changing nature of how we interact with each other challenge our traditional understanding of what constitutes reasonable expectation of privacy and the role of privacy in commercial activity. Moreover, as technology provides more efficient methods of committing and investigating unlawful activity, arguments based on technological neutrality may seem less persuasive than arguments based on expediency and public safety. This state of affairs makes it exceedingly difficult for politicians to reach a compromise that would be sensible from political, legal, social and economic points of view. Whether such a compromise can be reached remains to be seen, but at least for now, US lawmakers seem content with preserving the status quo in favour of law enforcement.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School.��

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The authors point out that in the age where cyber threats are growing in number and sophistication, corporations are often the victims of cyber crimes. This situation, the authors contend, presents corporations with a difficult dilemma. On the one hand, they are encouraged to cooperate with law enforcement authorities, where premature disclosure may compromise investigatory efforts. On the other hand, corporations have a duty to inform investors about significant business risks. The risks are especially prominent where a company has significant intellectual property assets. In those cases a cyber attack may be fatal to the business, which militates in favour of prompt disclosure.

For these reasons, the authors contend, there is a need for clear disclosure rules with respect to cyber crime. Unfortunately, the US Securities and Exchange Commission (SEC) has done relatively little in that respect. Authors point out that the SEC has issued  for disclosure, but failed to provide clear and binding rules. Notably, the SEC  the guidelines.

The authors briefly discuss one possible and undoubtedly only partial solution, which is to allow  The article points out that there is a strong potential for abuse if the rule were implemented. Corporate citizens are likely to rely on the rule to simply stave off disclosure for as long as possible because of its negative effect on consumer and investor confidence.

Concerns about potential abuse of the proposed solution underscore the important role fulfilled by the government in combating cyber crime. Foregoing disclosure can only be justified if it is assumed that the relevant law enforcement agencies can effectively address the issue. Investors and corporate leaders need to be assured that withholding information regarding material risks is justifiable in practice. Thus, if law enforcement is ill-equipped to deal with cyber crime, then delaying disclosure to facilitate an investigation starts to look less reasonable from an investor's point of view.

In addition, rules regarding disclosure obligations have to take into account that corporate entities often operate in multiple jurisdictions. For instance, a cyber attack that takes place in Ontario may nonetheless affect investors in another province or even abroad. A particularly problematic scenario arises where one jurisdiction may demand that a company withhold information regarding an attack while another jurisdiction demands prompt disclosure. Therefore, a coordinated and uniform approach to disclosure rules and cyber security in general should be a priority.

A brief look at  is reassuring as it reflects the foregoing concerns. Indeed, the Government explicitly recognizes intellectual property as an especially attractive target for criminals and provides . Canada’s strategy also places heavy emphasis on cooperation among local, provincial and international partnerships in improving online security. When it comes to effective law enforcement, the Government has established the  to assist non-government systems with security issues and committed 

The problems surrounding cyber attack disclosure rules for publicly traded companies have not been widely discussed or debated domestically. Perhaps Canada is waiting for the US to take the lead on the issue in order to implement a coordinated approach; or perhaps the current state of cyber security in Canada is still in its infancy, making the debate premature. Whatever the reason, the general strategy adopted by the Government is promising to the extent that it demonstrates awareness of the issues that will inevitably affect the shape of disclosure rules whenever the time is right to have that discussion.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School.

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In addition to the conventional orders that Samsung was entitled to as the winning litigant, the tech giant has sought additional remedies. Specifically, Samsung applied for an order requiring Apple to publish a series of notices in major publications and on its website acknowledging that Samsung did not infringe Apple’s registered design. The judge sided with Samsung and instructed that the notice should be posted on Apple’s UK website and remain there for six months. Naturally, Apple requested the order to be stayed pending the appeal of the main action. The request was turned down, prompting Apple to make an .

The publicity order has become a new point of contention in the seemingly never-ending litigation previously covered by IPilogue , , , , , and . The order to publish the notice was justified on the grounds that Apple’s repeated allegations that Samsung engaged in have resulted in commercial harm and contributed to commercial uncertainty. Samsung argued that because these allegations continued even after the judgment was rendered, an injunction was necessary to “prevent the court’s declaratory order being frustrated” (). In a further show of confidence, Samsung offered to compensate its rival for any losses suffered as a result of the order if it is overturned on the main appeal.

Apple’s counter-argument is that the main appeal will be rendered irrelevant unless the order is stayed. In other words, even if it were to succeed, significant and irreparable harm would have already been sustained. In addition, the purpose of the order has largely been fulfilled because the outcome of the main action has been widely publicized in the media to the detriment of Apple’s reputation.

The court was ultimately persuaded that refusing to stay the order would “render the appeal wholly or largely nugatory” () and that any harm flowing from Apple’s allegations is greatly reduced by extensive media coverage of the judgment.

The approach taken by Samsung in this case raises interesting questions regarding the appropriateness of granting a publicity order in the context of an on-going global dispute.

First of all, all but the most sophisticated observers are unlikely to differentiate between judgments in different jurisdictions. Therefore, any notice posted on Apple’s UK website publicizing the UK judgment will likely have a significant effect beyond the jurisdiction where the court has authority to issue a publicity order. It could be argued that any collateral damage is justified, since statements made by Apple have a similar far-reaching impact. Nonetheless, there is a significant difference that militates against this argument: Apple’s statements are about their global dispute; the order issued by the court, on the other hand, is supposed to be confined to publicizing matters under its limited jurisdiction. To add to that, if global ramifications are considered, it becomes exceedingly difficult to assess the relative (in)justice to either party.

Furthermore, it should be noted that when the court initially granted the publicity order it also denied Samsung’s request to restrain Apple from expressing its opinion that the judgment was incorrect. The judge found that it would amount to “an unjustified interference with Apple’s right to express that opinion publicly” (). It is far from clear what the net effect of these remedies would have been. One could argue that compelling Apple to promote notices that directly contradict its repeated assertions to the contrary would have limited value when it comes to setting the record straight. In fact, it could further contribute to “commercial uncertainty” that Samsung was concerned with.

At the end of the day, the decision to stay the order for the time being appears to be based on sound considerations. If Samsung prevails on appeal, the court will have a chance to reconsider the appropriateness of granting a publicity order. Having dodged the bullet this time, it remains to be seen if Apple will restrain itself from making remarks in order to avoid giving Samsung more ammunition.

UPDATE October 18, 2012:

The UK Court of Appeal has rendered their judgment and upheld the ruling of the High Court that Samsung did not infringe Apple’s registered designs. As a result, the Court once again considered the publicity order issued by HHJ Briss.

The Court concluded that the proper test to determine whether the order is necessary is “whether there is a need to dispel commercial uncertainty” (). The Court went on to say that massive publicity generated by the earlier decision proclaiming that Samsung tablets are “not as cool” () could have rendered the order unnecessary. Nonetheless, the Court concluded that Apple’s subsequent actions have generated considerable commercial uncertainty and, therefore, the order is justified.

It was specifically pointed out that Apple has obtained and attempted to enforce an injunction in Germany despite the fact that HHJ Briss’s judgment was binding throughout the European Union. The German order banning the sale of Samsung 7.7 tablet was highly publicized. As a result, the Court reasoned, commercial uncertainty was generated. Faced with uncertainty as to the legal status of Samsung devices consumers would think that the “safest thing to do either way is not to buy one” ().

Therefore, since Apple was responsible for creating the confusion, and widely publicized and seemingly inconsistent media reports are not enough to dispel the uncertainty, the publicity order is justified: “The acknowledgement must come from the horse’s mouth. Nothing short of that will do the job completely” ().

In considering the form of the order, the Court was concerned with ensuring that it is proportional. Acknowledging the importance of Apple’s webpage as its key marketing tool, the order only requires a link (“in a font size no smaller than Arial 11pt” () entitled “Samsumg/Apple UK Judgment.” Further, the required period during which the link must appear has been reduced from six months to one month.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School.

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