All things smartened up

��5G is the next generation of wireless mobile networks. The speakers highlighted that 5G networks are primarily designed for increasing capacity and enhancing connectivity while operating at much lower latency values. These ultrafast 5G airwaves promise to through the sharing of information—as buildings, cars, people, and a myriad of devices will be able to communicate with each other. The new technology promises to further enhance the users’ experience with smart devices, smart cars, and smart homes. In addition, 5G networks will allow emerging technologies to operate at a much larger scale.

From connecting people to connecting things in real time

��For example, the panel on 5G networks remarked that, due to the myriad of new capabilities and disruptive applications made available using 5G wireless networks, virtually all industries will experience important changes in how they work and cooperate with one another. Industries will leverage real-time connectivity to the benefit of both consumers and businesses. New capabilities will allow segments of industries to experience real-time economic data, offering the potential to prompt the . To enable all of these features, 5G network communications will increasingly rely on artificial intelligence (“AI”) and big data to build new applications and create more services. As a result, interested parties will have to be attentive as a new regulatory landscape may develop to accommodate the demands of this increased data sharing reality.

How does society become 5G ready?

��In addressing this question, speakers at CTS 2018 remarked that putting the new technology to use will require several regulatory and policy discussions. Among other challenges, there will be massive amounts of data that can be quickly collected, mobilized, and exchanged across 5G networks. In the commercial and government space, several jurisdictions have engaged in devising regulatory frameworks for the deployment of the new technology (see examples and ).

Canadian policy makers know that this is an industry that needs investment as well as a modern regulatory landscape across municipal, provincial, and federal levels of government. For example, in his , the Honourable , the federal Minister of Innovation, Science and Economic Development, announced that the Government of Canada will be launching two consultations�� to support 5G deployment:��the government is to add an additional 1GHz of millimetre spectrum to support 5G and is beginning a in advance of the 3500 MHz auction.�� Minister Bains also discussed an initiative through a Canada-Québec-Ontario partnership, (“ENCQOR”),��which he described as “a 5G test bed that will advance the development of 5G networking solutions and next-generation technologies and applications”.

Other countries, such as the are taking a great leap towards leadership in the manufacture and operation of network infrastructure. In Canada, industry operators and other stakeholders are well positioned to develop relationships with different levels of the government with a view to speeding up the process of creating standards and laying out best practices for the operation of 5G networks.

Bottom line

5G networks promises innovation, disruption, as well as policy and regulatory discussions. Industry operators and other stakeholders should be attentive to the new opportunities arising from 5G networks, but they should also stay abreast of the impact the Canadian regulatory landscape may have in the industry — particularly by virtue of the challenges that may arise from the vastness amount of data that will be quickly collected, mobilized, and exchanged across 5G networks.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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, a conference organized by IP Osgoode earlier this year, included a panel entitled “AI & Industries” that covered a wide range of current issues as a result of AI technologies and anticipated other looming issues. The panelists shed light on what may be sensible to expect from AI governance in the near future and hinted at what may constitute the cornerstones for effective AI regulation.

Competent practice management

As I boiled down the main threads called forth by the panel, I realized they provided scope for an interesting case for AI regulation in light of a lawyer’s duty of , as per the Law Society of Ontario’s Rules of Professional Responsibility (“Rules”). Practice management by way of available systems, technologies, and other methods is one of the areas of competence where lawyers must meet minimum standards to ensure they serve clients well, timely, and at a reasonable cost (see, , and commentary ). These three mandates of competent practice management provide an initial framework for addressing the concerns raised by the panelists and gauging whether the deployment of AI meets minimum ethical standards in different circumstances.

Well-served society

To gauge the appropriateness of AI, one may need to make an initial assessment of how well the deployment of a specific technology serves society. Generally, the in favour of the machines, for the high efficiency and low likelihood of errors technology offers. Dr.��, Chief Pediatrician at the Hospital for Sick Children, discussed the benign effects that flow from the synergy��between artificial and human intelligence, while Prof. , Professor at the UC Berkeley School of Information, made a counterpoint by touching on problems related to inappropriate uses of AI.

Dr. Cohn noted that AI is a tool that allows professionals —in his particular case, physicians — to make better informed decisions. AI-enabled tools do not eliminate (medical) school training nor the need for a skill set based on first principles for their use (see, though, concerns with deskilling and ). AI has been crucial, Dr. Cohn added, for the development of medicine’s three main scopes: prediction, prevention, and precision. He remarked that AI-assisted clinical trials are cheaper, faster and more informative; yet, the doctor still bears the decision-making responsibility and��the human element that allows for effective communication with patients. As to preventive medicine, Dr. Cohn remarked that AI data analytics tools permit physicians to quickly identify environmental risk factors and promptly propose actions in response. Finally, Dr. Cohn noted that the third scope of medicine — precision — has improved substantially with AI technologies, which are able to identify pattern deviations and that could take even the most experienced, senior professional .

Prof. Mulligan presented a counterpoint related to the inappropriate use of AI, such as when this unduly interferes with professional judgement. Two examples arise in the context of the and the healthcare industry. In both fields, on algorithms that are not always free of and may trigger . Prof. Mulligan argued, “error avoidance is an ethical imperative, both to maximize positive, short-term consequences and to ensure that, in the long run, informatics is not associated with error or carelessness, or the kind of cavalier stance sometimes associated with high-tech boosterism.” She added, citing K. W. Goodman, that the expansion of the field should be encouraged “”. Transparency and proper justification of decision-making by professionals that rely heavily on AI may provide a solution to address undue bias built into the algorithms.

Time is of the essence

, Professor at the University of Washington School of Law, raised the question of whether it is premature to think about regulation. Prof. Calo , while it may be premature to top-down regulate every aspect of life that AI touches upon, a sensible approach towards governance involves “watching for opportunities where there is a gap between what law assumes and what is happening on the ground in practice”.

In addition to confronting the legal and ethical social issues that may arise from the ever-broader use of AI, Prof. Calo noted that we should also be attentive to the issues of justice and equity that lurk in AI governance. There are concerns in our community respecting the inappropriate use of AI and, at a macro level, there is still some degree of uncertainty as to whether AI’s benefits and costs will be within reach of everyone equally.

Reasonable cost

Prof. , the Canada Research Chair in Ethics Law and Technology at the University of Ottawa, tackled the problem of costs associated with AI use. In his presentation, he warned “to accept that things will be more expensive because we will have things that we never had before is to support a neo-liberal fantasy”. As AI tends to outperform humans in virtually every field, and as we increasingly seek ultimate efficiency in service provision, Prof. Kerr noted that this ongoing search for ever-enhancing efficiency may result in elevated costs whenever AI is engaged.

Indeed, it may be hasty to assume that AI, and technology in general, will always but with no delay will become largely democratized. Although tech goods have become in the past decades, and the ’ are what have increased the availability of these goods in the market. What must not be underrated as a associated with AI is the to build, maintain, and monitor . Companies and other service providers across industries are likely to make poor financial decisions if they cut expenses in this area and disregard this risk factor in their business as they might eventually feel the backlash from the .

The monetary costs associated with and the are hardly overemphasized. As a result, cost regulation of AI may warrant increased security to stakeholders on a more regular basis, while also preventing AI from leveraging vulnerabilities in sensitive fields such as the healthcare industry.

Good governance and competent management of AI, as with the provision of legal services, may be tied to serving society well, timely, and at a reasonable cost. Hence, because time is of the essence, it flows logically that society will be underserved if the efforts to bring the rule of law into the technological world become deferred.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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After the spate of hand-wringing among panelists about the lack of a coherent moral centre in IP laws, I thought I would play the devil’s advocate to defend the existence of one — albeit the antithesis of what reformers in general seem in all likelihood to be targeting.

From “integrated code” to “moral-centred code”

In 2009, Prof. Vaver on the codification of all IP rights under one single instrument, what he called a way overdue project. The that protect different types of IP, Prof. Vaver adduced, may be doomed for want of harmonization. As a result, the unification of IP laws into an integrated code was complemplated as a solution that would likely prevent the independent statutes from falling prey to their own incoherencies with one another.

Almost a decade afar from that lecture, the scholarly panelists suggest that IP laws must progress in a more radical way. They claim that IP must (re)gain moral authority to sustain its credibility in light of current social values such as “democratized access”. In this context, and have arisen as the cornerstones of the IP moral centre.

What are fair IP laws?

Prof. , one of the scholarly panelists, proposed that fairness in IP involves, in essence, resisting property rights fundamentalism. Further, Prof. Amani explained, it involves steering away from an author-centric protective approach and focusing more on the . Fair IP laws, thus, imply striking the right balance in the amount of protection warranted to inventors, so as to ease the tension between consumers and individual creators.

The pursuit of such balance, the panelists asserted in unison, have been addressed by theorists and practitioners by employing the language of “,” “,” and “”. Justice Roger Hughes, formerly of the Federal Court of Canada, remarked that the adoption of these new paradigm expressions — which are nowhere in any IP statute in Canada except in the — indicate that reform is way overdue to better accommodate this new branch of rights in light of current social values.

The panelists suggested that such a development may involve subjecting IP protection and enforcement to minimum . This, they claimed, would favour (a) proper , so that the benefits of an invention would be adequately shared between those who create and those who distribute; (b) between classes of ; (c) equal treatment to competitors in the market; (e) , and patent trolling; and, (f) deterrence of lobbyist and industry pressures from using innovation for political and oppressive purposes in the allocation of power and wealth.

A final recommendation from the panel was that collective values such as�� and be . That, it was submitted, is what will allow IP to stay in place. Hence, asking the right questions was proposed as an incremental step in the process of helping IP law (re)gain its moral centre.

A contrarian view

Shifting IP moral centre all at once may nevertheless be a daunting prospect. Such a shift may represent a disincentive for inventors and, to that extent, may with economic downfalls as a result of wealth and jobs cutbacks. So, when asking the right questions towards social goals, caution is needed not to impart an idea of “a whole day’s work for nix” that is prone to halt innovation.

All things considered, it seems in all fairness that IP laws do not lack a moral centre altogether. At the core of IP laws lays, at the very least, the encouragement of human abilities to create, innovate and foster significant advancements for the betterment of the society. The World Intellectual Property Organization (“WIPO”) ad nauseam how protection and enforcement of IP rights are vital to social development and economic growth across industries.

The mandate of minimal public interest requirements needs to be taken with a grain of salt in the face of the that strong IP systems have on a nation’s economy.

“Fuel for the Fire of Genius or Shelf Life of a Banana”?

The panelists suggested that a broad range of social values should steer a new statutory model for IP. Under this , , balance is necessary, and dissemination of distribution is the chief goal. Ultimately, a framework that is not prohibitive of fair dealing is needed. They claimed IP should fashionably mimic the social justice trend in the legal system to recognize the , to allow people to compete, , and to .

While modernization of IP laws is needed, stretching its moral boundaries to cause a radical breach of the traditional scheme conceived as may be off limits. The current shows that innovation and businesses travel swiftly across borders. As a result, it may be unwarranted to employ ill-defined, underdeveloped ��public interest requirements in the IP space if this may decelerate progress and make inventors’ creations tantamount to the shelf life of a banana.

Bruna D. Kalinoski is an IPilogue Editor. She has health science background from two years attending Dentistry School, holds an LL.M. degree from 91��ɫ (Osgoode's Canadian Common Law program), an LL.B. degree from the Federal University of the State of Santa Catarina, Brazil, and is a member of the Brazilian Bar Association.��

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created a new type of money, a new tradable value. In other words, it created a way for there to be digital cash. Blockchain consists of a series of computer protocols that form a computer network, which allows value to be moved from point A to point B — just as the internet allows us to move information from point A to point B. These protocols move value around in a complete new way: it is unique because the technology allows for permission-less transactions. It is decentralized and does not require a bank or intermediary to facilitate the trades. You just do it yourself. The economic attractiveness and the innovation at the core of the Blockchain technology suggests that this could be one of the most important inventions of the twenty-first century — if only its mysterious inventor, who goes by the alias , had not made the blockchain technology widely .

With its components in the public domain, any person of ordinary skill in the art can build on top of the pre-developed computer protocols and duplicate the technology in the digital world. The open-source nature of this project may be one understated obstacle in the . Tech-innovation moves as endless ripple, with the waves of innovation building one on top of the other. A higher tech-innovation wave will require entrepreneurs to rely on the swells previously built on top of one another by other entrepreneurs.

, a forerunner in blockchain technology, was initially conceived as an open-source project made available to all. It worked as a template for other different tokens, which created more forms of decentralized transactions by way of “new” secure online systems. , for instance, also implemented its code by streamlining and building on top of the leading public blockchain technology Bitcoin, which has prompted the conception of . Since much of the technology underlying Blockchain has been placed in the public domain and the number of inspired projects has grown exponentially, some lawyers suggest patents.

In fact, blockchain-related inventions may easily fall under the category of applied to computer-related inventions. The has nonetheless explained that, although abstract ideas alone are not patentable, software and business methods are not excluded from patentable inventions altogether. With this in mind, it is not surprising that the number of tech-companies filing patent applications has sky rocketed. However, both the issuance and the enforceability of patents on this technology are still uncertain to predict.

Assessing the likelihood of success in procuring IP rights for innovations or improvements to the blockchain technology may require more than a clear understanding of the underlying technology and the state of the law. Lawyers may have to expand their perspective if they want to provide their clients with a more realistic prediction. This incremental step may entail an assessment of the current state of the Blockchain industry from a business perspective.

To this end, it is important to understand that there is a strong tendency in the patent offices, courts, and within the industry itself, towards bolstering new innovations. And a patent aggression environment — where IP is used as a weapon to shut down competitors — slows the pace of scientific and technological progress. As a result, those who are more sympathetic to the intentions of the pioneers of blockchain for having the technology available to the public, might admonish developers to avoid the “innovation theatre” pretext to assert exclusive rights over the technology.

Another understated aspect which might become a hurdle in the race for blockchain patents is the propensity of the tech-companies to amalgamate into consortiums. This phenomenon accelerates the growth on blockchain. The idea is to figure out what is the corporate answer to blockchain transactions and to create standards that will allow the various token applications to become interoperable and tradable amongst the different networks, by borrowing their open-source codebases from one another. , and are examples of existing collaborative relationships between leading banks and tech-companies.

Tech companies are involved altogether in discerning the purposes for which the myriad of crypto-currencies and token applications can be used. That is how they compete and there is a lot of room for competition yet — which translates into more challenges to the IP practitioners in helping their clients protect the code upon which other token applications may be built.

Bruna D. Kalinoski is a contributing editor for the IPilogue and an LLM candidate in the Osgoode Professional Development Program at 91��ɫ.

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