Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. D’Agostino’s IP Intensive Program.

I loved my placement with the (CBC).

Walking to the Toronto office on the first day of my placement, I felt nervous about whether I’d fit in with the seasoned legal team. Like most of my law school experience, I had worked myself up over nothing. The warm welcome I received from the lovely legal assistants, Justine and Celena, and my placement supervisor, Dan Ciraco, made me feel like a valuable member of the team. That feeling never faded during my 10-week placement, and a key reason for my positive experience is the thoughtful guidance and mentorship I received from Dan and my lawyer mentors.

My placement with CBC was possible due to Osgoode Hall Law School’s (IP Intensive). Pioneered by Osgoode , the IP Intensive is an innovative program that places third-year JD students in an organization heavily involved in IP matters. The first two weeks of the program function as a “boot camp” by introducing students to the fundamental aspects of IP and technology law. Immediately after, students are ushered off to their placements, allowing them to develop their interpersonal and practical legal research and writing skills. As I reflect on my experience, I can honestly say participating in the IP Intensive has been the highlight of my time at Osgoode.��

At the beginning of each week, I was assigned a mentor from either the Business Law or Media Law Group. I spent time with the Media Law Group learning about the importance of the open-court principle, drafting submissions to the Federal Court, vetting stories, conducting legal research on the responsible communication defence, and attending a trial at the Federal Court of Appeal.

One of my most memorable experiences with the media lawyers occurred during my second week when I joined a call with the executive producers of an upcoming Fifth Estate documentary. I learned how to evaluate scripts to determine the level of legal risks accompanying a story by listening to the lawyers ask questions about the investigative process. Watching the documentary evolve from the initial script to the final screener, I gained an appreciation for the role CBC’s in-house counsel plays in supporting journalists to tell stories in the public’s interest.

I tailored my experience with the Business Law Group reviewing contracts, drafting amendments, and conducting research interpreting specific contractual provisions. A significant highlight for me was learning about contractual drafting and negotiation from my mentors. Contract drafting, I realized, can be a very personal exercise. Lawyers’ drafting choices can sometimes explain the minute changes between two contracts rather than reflecting any developments in case law. One of the most important lessons I learned from the business law team was navigating complex issues with no clear legal answer. We’re taught how to think like lawyers in law school, but the issues we solve are hypothetical. In practice, your clients still require solutions to their problems even if the law is unclear or unhelpful. Finding solutions to novel issues involves delicately balancing business knowledge, capital constraints, and the interests of different stakeholders.

As you can see, my placement taught me a lot about practicing law. However, the aspect of my internship I will treasure the most is the mentorship the lawyers provided me. I got to experience the best of both worlds by having a hybrid internship. I would try to coordinate my days in the office with my Toronto mentors, so we could go out for lunch or have impromptu chats in the hallway. My Montreal and Vancouver mentor’s enthusiasm and virtual check-ins never made me feel like I was missing out. Thinking back to a time before hybrid workplaces, it seems surreal that I might have never gotten to work with them.

I want to thank Professor D’Agostino and Ashley Moniz for securing placements and providing students with experiential experience early in their legal careers. I’d also like to extend my gratitude to my CBC supervisor, Dan Ciraco, and my lawyer mentors – Kat, Trevor, Danielle, Azim, Stephanie, Eve, Stephany, and Marguerite – for providing me with such a positive experience. If you are considering applying for the IP Intensive, I highly recommend choosing CBC for your placement.

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Over the past Fall 2021 semester, I have been privileged to participate in the Intellectual Property Law & Technology Intensive Program (IP Intensive) at Osgoode and complete a ten-week internship at the Canadian Broadcasting Corporation/Radio-Canada (CBC). My supervisor, Dan Ciraco, Director & Senior Legal Counsel, along with my weekly mentors at CBC always made me feel like a valued member of their teams. I can confidently say that this internship is one of the highlights of my law school experience.

At the start of each week at CBC, I met with a new lawyer mentor either from the Business Law or Media Law Groups. We would go over the work I had done until that point and gauge my interest in the files they had been working on. It goes without saying that I began my internship with a strong interest in IP law. However, Dan outlined the importance of keeping an open mind to different types of work that relate to IP law throughout my internship and in my legal career in general. With this in mind, I welcomed all of the work assigned to me by my mentors. And, in the process of completing my tasks, I gained knowledge in legal areas that I had not previously considered, such as procurement, defamation, namely responsible communication, and litigation, including legal holds. Furthermore, a lot of these tasks required me to draft case summaries in relation to these topics, which allowed me to strengthen my legal research and writing skills.

A task in particular that stood out was the drafting of a response to a copyright infringement claim. While drafting this letter, I met with internal stakeholders at CBC and in turn got an exclusive look into the scope of the legal team’s responsibility over the entire organization. Similarly, when working on a procurement-related topic, the findings of which I later presented to the Business Law Group at one of their monthly meetings, I learned just how challenging it is to balance CBC’s interests with suppliers’ interests when coming to an agreement on goods and services.

As for the Media Law Group, a major highlight for me was participating in the vetting process of different news stories to be published by CBC. It was interesting to see how the lawyers interacted with journalists; particularly, how they explained complex legal topics and raised legal risks in comprehensive ways. In relation to this process, in my own research, it was also interesting to learn about defamation claims and the different arguments that are available to CBC when defending against them.

In my work for both the Business Law and Media Law Groups, I was also exposed to various IP-related issues that allowed me to see a lot of what I had learned from previous IP courses be applied in practice. For instance, I got to see the process behind integrating brands and their products in CBC programming. I also got to see the reality of how often CBC faces potential copyright infringement claims and in turn, the defences they prepare in response to them, such as fair dealing.

Overall, my internship experience at CBC was extremely rewarding. Each one of my tasks was meaningful and my mentors always made a point of ensuring that I saw how they contributed to the bigger picture of the legal team. I was challenged to step outside of my comfort zone and take full ownership over my tasks. Most importantly, despite this internship being virtual for another year in a row, the weekly team check-ins never made me feel like I had missed out on the full internship experience. I am extremely grateful to CBC and the IP Intensive for helping me kick-start my legal career. Not only was I able to contribute to real life legal challenges, but I was also taught the basics of communicating with legal professionals, managing competing deadlines, and supporting the client’s interests. I strongly urge my peers at Osgoode to apply to the IP Intensive to get a change of pace from the regular academic semester and to take advantage of a unique and fulfilling experience either at CBC or at another one of the equally amazing placements offered.

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The 2019 Canadian federal election season was ripe with . Adding to the list, the Canadian Broadcasting Corporation (CBC) against the Conservative Party of Canada mere days before the election was held. The CBC claimed that the Conservative Party infringed copyright by using, without permission, CBC’s video clips in their advertisement and tweets as part of an ‘attack ad’ against Prime Minister Justin Trudeau.

On May 13, 2021, nearly two years after the Liberal Party won a minority government, the , holding that the use of CBC footage in political campaigns constitutes “fair dealing” under s. 29 of the , and so does not infringe copyright.

In order for a use of a copyrighted work to be considered a fair dealing, the dealing must 1) be for an allowable purpose, as listed in the Act, and 2) it must be fair, considering the six factors outlined in the landmark Supreme Court of Canada decision, .

The Federal Court determined that the Conservative Party’s use of CBC footage was for the allowable purpose of “criticism,” per s. 29.1 of the Act. Though the CBC argued that the purpose of “criticism” should be limited to criticizing the form of the dealing, the court held that criticism may be directed towards the “idea set out in the work.”

By giving the fair dealing provisions a large and liberal interpretation, the court reaffirmed that their purpose is to balance the rights of copyright owners and users. Users’ pursuit of allowable purposes should not be arbitrarily restricted in the name of protecting copyright. As Justice Phelan stated, “it would be artificial to limit criticisms to the expression of how the work was produced but preclude showing the ideas or actions being challenged.”

Applied to the facts, the court found criticism embedded in the Conservative Party’s impugned ad and tweets, which aimed to criticize the “ideas” present in the CBC’s clips, particularly those of Prime Minister Trudeau’s performance in office and during the 2019 federal election’s leaders’ debate.

In finding an allowable purpose under the first step of the fair dealing analysis, the court did not consider that the criticism was being advanced by a competitor who would directly benefit from the consequences of the criticism. Rather, motive became relevant at the second step of the fair dealing analysis, when assessing the first factor (i.e., the fairness of the purpose of the dealing). Following , “some dealings, even if for an allowable purpose, may be more or less fair than others,” depending on the user’s “real purpose or motive in using the copyrighted work.”

While Justice Phelan acknowledged that the Conservative Party’s use of CBC footage was “not criticism for the sake of criticism,” he held that the dealing was nonetheless for a “legitimate political purpose.” Since political campaigns are used to secure votes to form a government, the court found the Conservative Party’s purpose engaged with the democratic process and was therefore fair.

This departs from where the Supreme Court stated that, in determining the fairness of an allowable purpose, the court must assess if there is a “demonstrably ulterior” motive at play. That is, courts are concerned by users who attempt to escape liability for copyright infringement under the guise of invoking an allowable purpose, like criticism. Such ulterior motives tend towards a finding of unfairness for the first factor of the fairness inquiry.

Despite finding the Conservative Party’s ultimate purpose was not to provide criticism but to gain votes, the court did not discuss the possibility of an ulterior motive. In fact, the Conservative Party’s politically driven motive was used as support in finding fairness. This seemingly broadens the fair dealing provision’s scope by permitting a dealing’s ultimate purpose to differ from its allowable purpose, so long as it is a political purpose.

Instead, as University of Ottawa professor Michael Geist , political advertising is protected by the criticism purpose of fair dealing since it is directly linked to the Charter’s s. 2(b) guarantee of expressive freedom, which underpins the values of political democracy, the search for truth, and self-actualization. Rather than authorizing a user’s ultimate purpose to differ from the allowable purpose where a political motive is involved, the court ought to establish a sufficient nexus between the purposes to support a finding of fairness. This can be achieved through determining the foundation of the allowable purpose, like the basis of criticism to advance political democracy.

As Ontario gears up for the , it will be interesting to see how parties use copyrighted materials in their campaigns in light of this decision. Beyond political parties, this decision highlights the need for greater guidance on how to properly interpret the fair dealing provisions, especially in determining the fairness of the purpose of the dealing.

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The internship is a part of IP Osgoode’s , which is a unique experiential program that gives students an opportunity to work at an organization that is involved with IP matters for an entire semester. The first two weeks of the program included training from experts in a variety of areas including copyright, trademarks, patent, technology, and privacy law. Then, for my subsequent ten-week internship at CBC, Dan Ciraco was my supervisor and each week I worked with a different lawyer mentor (from either the business or media law teams) to get exposure to new types of files.

One opportunity that the virtual workspace allowed, which otherwise may not have been possible, is the ability to observe virtual cross-examinations and court hearings. One in particular was at the British Columbia Court of Appeal, which was an absolute privilege to attend. The case is a pivotal one for journalists since it dealt with the constitutionality of the Court of Appeal’s policy related to record and courtroom access. The decision will undoubtedly impact how the media will access court documents in the future. In addition to these shadowing opportunities, I was able to work on a variety of research projects related to copyright terms, fair dealing, trademark infringement, and access to information issues. One research project allowed me to practice drafting arguments in preparation for a hearing. I also had the opportunity to review licensing and service agreements and assist with drafting clauses. Another project allowed me to review past agreements to help develop a template resource to increase efficiency and uniformity.

I am grateful that I was able to get exposure to the in-house legal department environment so early on in my career to complement my experience working at private law firms. It was a great change in perspective to see the dynamic of the lawyer-client relationship within an organization. As a media organization and public broadcaster, I learned a lot about the approach an organization like CBC takes to secure and enforce its IP rights.

When reflecting with my supervisor on the goals I had for the internship, I mentioned that I wanted exposure to opportunities that were unique to CBC. While many of those opportunities arose, one in particular was a highlight for me. With a few of the lawyers on the media law team, I was able to attend vetting meetings for stories with the Fifth Estate and CBC Marketplace, which are two programs I have loved watching over the years. Sitting in on these meetings, I observed the teamwork and collaboration that lawyers and journalists engage in to tell compelling stories. There is a delicate balance that must respect the journalistic process, but still manage legal risks. I also observed this balance when I assisted with creating internal training resources for journalists, which help to empower them with foundational knowledge to manage risks as they conduct their work in the field.

This was a pivotal moment in the early stages of my legal career that has given me exposure to a network of supportive mentors and leaders in the legal field. This experience has been added to my exposure to Bay Street firms and an in-house summer student secondment. I am certain my experience with CBC will help me as I continue with my professional endeavours. I am so thankful to my supervisor Dan Ciraco for his guidance throughout the program and his advice on my academic work throughout the semester. I also extend my gratitude to IP Osgoode and Professors D’Agostino and Vaver for this unique and rewarding opportunity.

Written by Summer Lewis, a third year JD Candidate at Osgoode Hall Law School, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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My placement at CBC was part of Osgoode’s Intellectual Property Law & Technology Intensive Program, which is an innovative practicum program allowing students to gain specialized experience through a placement at an IP law-based organization. When I began my internship, I was given a crash course in the practice of IP, media, and business law. It was hard to say which of these practice groups were my favourite because I gleaned so much during my time working in each, and each practice area helped me identify my future career interests.

From the IP angle, copyright and copyright infringement analysis were areas that I grew very familiar with during my internship. From writing research memos and researching recent fair dealing cases, to crafting arguments as part of a fair dealing analysis, I got a fair amount of dealings relating to copyright. My IP experience also included trademark research that dealt with determining what constitutes trademark use. This trademark research gave me an opportunity to appreciate the business strategy behind managing a brand like CBC and just how journalism plays a role in that brand.

As a longstanding and huge fan of CBC’s Marketplace, I was over the moon when one of the media lawyers at CBC invited me to vet a script for an episode. I got to see the underbelly of one of my favourite shows, and I saw what kind of research is done to prepare for such an episode. I learned to scan the script for any instances of potential copyright infringement and defamation claims that could be made against CBC. This led to sitting in on a summary judgement hearing between CBC and Subway, over a previous that may or may not have had something to do with chicken. This was the first time I ever attended court, and I got to see first hand the inspiring skill behind oral advocacy.

My internship did also comprise of other learning experiences outside of Marketplace. I got to conduct research on impartiality and journalistic integrity leading up to the suit that CBC filed against the Federal Conservative Party. This was the second of three litigation processes that I was involved in during my internship. The third and perhaps most notable litigation, was CBC’s role as an intervenor in a defamation case at the Supreme Court of Canada. I had the privilege of attending court in Ottawa with the media lawyers on a case that will hopefully clarify and redefine anti-SLAPP standards. Leading up to the big day, I watched the counsel meticulously craft their arguments, perfect each phrase, and practice delivering arguments.

The business side of IP and media law at CBC had me reviewing licensing agreements, drafting clauses, and learning about how licensing agreements can impact copyright and the relationships between different media corporations. If someone had told me I would enjoy reviewing contracts before my time at CBC, I would have laughed in their face.

The most meaningful part of my internship was the mentorship the CBC lawyers provided me. I was always welcome to discuss legal issues for further guidance, but the mentorship I received went far beyond that. I was encouraged to pursue extra-curricular activities related to IP, given invaluable law school and career advice. A conversation I had with my supervisor, Dan Ciraco early on in my internship helped me develop a key part of my Master’s thesis, something I am very grateful for and I appreciate the hours of stress that Dan saved me.

All the lawyers I met through my CBC placement told me how they wished they had the opportunity to take a course like the IP Intensive while they were in law school. I recognize that my CBC internship was a once in a lifetime experience and I am very thankful to my CBC supervisor Dan Ciraco, IP Osgoode, Professor D’Agostino, and Professor Vaver.

Written by Julianna Felendzer, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

The post “How I Learned to Stop Worrying and Love IP Law: My Semester at CBC” appeared first on IPOsgoode.

During my placement as part of Osgoode's , I had the opportunity to work with a group of lawyers who practiced in a variety of areas including business, media, and IP. This was extremely beneficial for me as it allowed me to be exposed to different practices and really understand their day-to-day activities. I became familiar with the pace at which they work and the type of issues they have to resolve in order to best serve the CBC. To me, the IP Intensive allowed me much more than IP experience, but it offered me an accurate glimpse at life as an in-house counsel.

I was also given the opportunity to attend weekly meetings during which the Toronto office coordinated with Radio-Canada in Montreal in order to ensure efficiency and avoid a duplication of efforts. These meetings were collaborative in the best way possible because everyone offered to share their resources, assist one another with the issues that they were facing at the time, and encourage the team with positive words accompanied with smiles. This happened at every meeting, which taught me more than just substantive knowledge. It taught me how effective collaborative work was done between 25 people in a large organization.

These inside looks into the organization and the practice of the CBC’s lawyers showed me how in-house counsel must confront more than just legal problems. Indeed, the majority of decisions heavily rely on a business risk assessment, which must, at all times, be considered. I believe realizations like this are the epitome of a placement experience. As law students, it is easy to become extremely entrenched in the theory and almost forget that it is the application of such concepts that matter most in practice. Spending time at the CBC on a daily basis and confronting the issues that their lawyers face allowed me to see this clearly.

Perhaps one of the highlights of my externship experience was my unforgettable day spent in the newsroom. I, along with other non-journalists (including my placement supervisor Dan Ciraco) began the day by sitting in on a meeting about the stories that were going to be aired on The National later that night. When I returned home that evening and watched The National (a nightly routine of mine) I saw the finished product and, in that moment, I realized how difficult the job of the CBC’s journalists must be. The effort that goes into every minute of each show on a daily basis is profound. This, coupled with the true passion and excitement of each of the CBC journalists I met that day, taught me another important lesson: passion drives quality.

It is for all of the above reasons that my experience at the CBC was not just about spending time at a network, but building a network of people, each of whom taught me so much in a short time. The support of the individuals I worked with on a daily basis was unwavering. I not only appreciated getting experience in the practice of law, but being able to do so in a guided way. Each lawyer took the time to offer a background of the issues I was working on and fill in a knowledge gap if one existed. Furthermore, they showed me how my work made a difference, by taking me to the training sessions based on the research I had done, or inviting me to meetings with other members of the organization to further discuss the contracts I had worked on. This experience, along with my summer spent at a large Bay Street firm, allowed me to supplement my theoretical legal knowledge with practical understanding, which is much needed so close to graduation. And I would do it all over again.

Written by Saba Samanian.�� Saba is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School, and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Within the first week of the internship, I was surprised by all the different areas of law that were involved in running a public broadcast company. As a media outlet, the legal team at CBC must work closely with journalists and content creators to make decisions that are editorially and creatively sound while also avoiding infringing upon third-party intellectual property rights. This is much easier said than done, considering the ease at which individuals can go on the internet and appropriate material without even realizing they are violating copyright or trademark law. Journalists must tread carefully when using third-party content, and the lawyers at CBC play a key role in preventing such infringement.

On the business side, CBC’s legal department must arrange the licensing of content and stay within the bounds of telecommunications regulations. And as a Crown corporation, CBC must comply with various governmental regulation in areas like procurement and financial administration. The legal department at CBC has the difficult task of balancing these different areas of law, as well as the interests of the various stakeholders involved with the organization: journalists, content creators, the audience, and the general public, just to name a few.

I was amazed by the variety of issues that the legal department faced. For every routine task (like reviewing a licensing agreement), there were a dozen novel ones. I was exposed to new areas of law that I had not been previously familiar with, such as defamation and contest law. I also saw novel issues in areas that I was familiar with, like copyright and trademark, and found that the solutions to these questions were not as simple as the issues we had learned about in class. Intellectual property and media law are constantly changing to keep up with modern technologies and entertainment services. And with the movement toward global digital distribution, seemingly simple IP issues become much more dynamic and involved.

One of the most important lessons I learned about being an in-house lawyer is that not everything is a legal question. It takes a great deal of business knowledge and judgment to determine which issues are worth pursuing. As a student, it was a really valuable experience to see this decision process in action at a complex organization like CBC.

I am grateful to the entire legal team at CBC for making my placement one of the most enriching and valuable experiences of my time at law school. I am also very thankful to IP Osgoode for organizing the IP Intensive Program and facilitating this placement.

Alexandria Chun is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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The placement certainly gave me an appreciation for the role played by in-house lawyers at a large and complex organisation like CBC. The Law Department deals with so much more than just intellectual property matters and has to balance the business and journalistic interests of the corporation with a myriad of legal issues. CBC’s role as the national public broadcaster also means that in-house counsel must engage with a variety of stakeholder and corporate interests, very high internal and ethical standards, and the corporation’s public role and duties (not to mention the provisions set out in the ).

Especially in the age of the 24-hour news cycle and rapidly breaking stories, in-house counsel has to be available and ready with answers in short order. The media lawyers vet stories across diverse platforms, from the news on to shows like and . Issues range from privacy to defamation and are never the same in two productions.

It is easy to forget that CBC is more than just television, radio, and a website – it is a (Crown) corporation too. As a result, the business lawyers play an important role in both what Canadians see from CBC and what goes on behind the scenes. My work with them alone included issues with advertising and product placement, copyright and fair dealing, contracts, and contests – and they do a lot more than that.

One of the most important takeaways from watching this is how important it is for lawyers in this type of role to ditch the legalese for more comprehensible and digestible legal advice. On the business side, dealing with departments ranging from digital to marketing, and on the media side dealing with journalists and producers, it is essential to be able to communicate clearly about the legal issues. That also means that they have a lot of competing, or at least different, interests to consider when making decisions. What might be a good journalistic move is not always a good legal one, and vice-versa. So watching discussions between the Law Department and other CBC units really gave me an appreciation for how the practice of law involves many more factors than the law itself. Like it or not, law is a business.

Something else that really struck me is how much social media features in the legal issues of an organisation like CBC (and no doubt many others today). On both the business and media side, I spent time doing research related to CBC’s presence on and use of sites like Facebook, Twitter, and Instagram. The online world provides a whole host of new legal issues, many of which legislation has yet to catch up with.

The potential benefits of social media, such as broad dissemination of stories, public outreach, and increased advertising come with many potential pitfalls, like privacy issues and . Maybe it is not so surprising, then, how often the Law Department is faced with related questions. To me, it certainly seems as if these sorts of considerations will play a major role in law practice, both on-house and elsewhere, for the foreseeable future.

My time at CBC was undoubtedly the most valuable experience I have had during law school. Not only was it thoroughly enjoyable, it was also phenomenal practical legal experience. I was able to improve my legal skills, such as drafting and research, while learning how IP (and other) law differs in and out of the classroom. My placement was also a reminder that the law stretches far beyond Bay Street into the arts, entertainment, journalism, and so much more.

It was a pleasure and a privilege to spend a semester at CBC and I am grateful for the entire legal team for the experience.

Sebastian Beck-Watt is Senior Editor of the IPilogue and 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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My experience with the was nothing short of phenomenal. This is real-time law at its best, with fresh issues, high stakes and a wide range of concepts and media to master. IP lawyers at the CBC are involved in almost every aspect of the broadcaster’s affairs in one way or another. During my internship as part of , I had the opportunity to work in corporate and commercial matters, contracts, procurement, litigation, sponsorship, defamation, piracy, privacy, acquisition and distribution deals, licensing, broadcast law, media law, regulatory compliance, copyright and trademark – not bad for 10 weeks!

Watching the news unfold from inside Canada’s national broadcaster brought new insight into the making of the news and all that goes into it. This fall there was no shortage of events to follow –from the highs and lows of the federal election to the shocking attacks in Paris. CBC’s outstanding team covered it all – and the legal team supported the on-air group on every step of the journey.

One central theme dominated much of my internship experience – the federal election. While Canadians watched the news from the comfort of their homes, I had a behind-the-scenes view. Elections are filled with moment by moment scandals, sound bites and attack ads. The information that comes to your TVs every evening does not come together easily. Much of what makes the news is contentious and touches upon areas of legal danger-zones – privacy, confidentiality, whistleblowing, libel and defamation – to name a few. Journalists require immediate advice when there is a concern. This is real-time law, and there are no ‘take-backs’ once they go live. Fortunately, CBC has a stellar team waiting to take the call and put out the fire. It was fascinating to watch and work with CBC’s in-house counsel to provide real-time answers to these issues. They say the camera never stops rolling, but from my experience, it is the lawyers who never stop moving.

As a crown corporation, CBC is constantly juggling its obligations. The same is true of the lawyers who represent it. In every decision, in-house counsel must consider their obligations to their client, the best interest of the Company, and the overall ethical considerations of CBC as the nation’s public broadcaster. There are a lot of perspectives and parties to consider, and those positions do not always agree.

Much of my day-to-day responsibilities consisted of working with in-house counsel in contractual negotiations with outside parties. This required close communications with the Company’s various components to ensure that we understood their needs and represented accordingly. The ability to work closely with all areas of the Company allow the legal team to be involved in every step of the creative process, from pre-production and pre-licensing, right through to concept meetings, rough cut screenings and final cut edits, to post-air blowback, and third party content distribution. This is all in a day’s work for in-house counsel.

I have come away with so many practical tools from my time in-house at CBC, the most important of which are those lessons you can never learn in a classroom; such as the importance of considering all angles and all parties to a problem from legal, ethical, and business perspectives. I have learned that legal advice is only as effective as the vehicle that delivers it – in law school we pride ourselves in delivering arguments thick with legalese – but in business, communications must be delivered in terms that will be understood across the board. Most of all, I have learned that there is a place for lawyers within the development of the arts in Canada – it is a welcoming and thriving atmosphere where there is much to learn and even more to do.

This internship provided a hands-on learning environment to the practice of real-time law at its best. I encourage any student interested in a career in Media, Broadcast and IP law to apply to this intensive placement. My internship at the CBC sits at the apex of my law school experiences. I feel privileged to have had the opportunity to learn so much from such an excellent team.

Jennifer R Davidson 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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��editor ��originally reported on this case back in a September ��on the SCC’s decision to grant leave to appeal. The case arose out of the Board’s ��to collect royalties on these aforementioned ephemeral copies. The ��disagreed on tech neutrality grounds, arguing that under those principles royalties should not be charged for incidental copies since payments are already made for the use of the original content in final broadcasts. The Board, finding for , relied on the SCC’s decision in , which determined that because incidental copies add value to a final broadcast they should attract separate royalties. Furthermore, the SCC in Bishop narrowly interpreted the ��(the “Act”) to conclude that incidental copies made in the process of creating a broadcast were not part of the broadcast right itself.

At the FCA, CBC argued that Bishop was no longer good law. As ��by some commentators on the case,��CBC argued that the SCC in��fundamentally changed the law through its statements about tech neutrality. The Court however decided that neutrality did not override the language of the Act that gives owners of music works the exclusive right of reproduction. The FCA said in ��that nothing in ESA “would authorize the Board to create a category of reproduction or copies which, by their association with broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by necessary implication, overrule Bishop v Stevens.” The Court further stated that since the majority’s reasoning in ESA did not rely on or refer to technological neutrality the case did not provide guidance on applying the principle to the situation at hand.

The importance of this appeal has been discussed by many members of the IP world. One commentator�� that the greatest danger in this case is that the SCC could potentially “roll back its finding that technological neutrality is a foundational principle within the law.” Additionally, if the SCC rules that all copies, incidental or not, are copies under the Act��there is “the very real possibility of payment demands for the myriad of copies that occur through modern technologies.” In this world of digital copies and Internet file sharing, accessing digital goods could potentially become an expensive task.

Although a webcast of the oral arguments was not available at the time of the writing this post, the parties’ ��are – and prove to be interesting reads. CBC ��that SODRAC is the first copyright holder to “attempt to monetize broadcast-incidental copies…[which is] a subversion of the purpose of the Copyright Act in an attempt to generate economic rents through a layer licensing scheme.” CBC contends that the layered licensing scheme at question was upheld by the Court through a fundamental error of law, “namely the rejection of technological neutrality as a guiding principle in the interpretation and application of the Copyright Act.” CBC asserts in its factum that this layered approach to licensing is “impermissible double-dipping that violates technological neutrality.” It is also interesting to note one of CBC’s requests that if the SCC decides that a licence is indeed required for incidental copies then the royalty should be reduced to a nominal amount “to reflect the fact that broadcast-incidental copies do not have independent economic value.” This request seems to reflect the reality that incidental copies tend to be a part of the production process in creating content, and are not necessarily “valuable” items on their own.

The SODRAC ��on the other hand contends that CBC is attempting “to reverse decades of settled law” and does not mince words in its opening paragraphs:

This appeal amounts to an attempt by CBC to persuade this Court, through a misuse of the principle of technological neutrality, to upset the existing statutory balance in relation to broadcast-incidental copies and to substitute its own policy preferences for those of Parliament, enabling CBC to escape liability for copies it is making and deriving benefits from, and that it has been making and paying for, for decades.

It is also fascinating (and sort of juicy!) to scan through the SODRAC factum and see a couple portions crossed out, specifically the paragraph describing how CBC has made tape and digital broadcast-incidental copies over the years for its programs.

An attendee of the hearing����on the opening stages of the appeal, saying that it did not start well for the CBC with the SCC being “clearly skeptical” of its arguments. In discussing technological neutrality however, one of the intervenors () suggested that a test should be established for when a copy should be treated as a copy under the Act. CIPPIC’s fear is that in this digital world that constantly uses ephemeral copying to function, literally interpreting the right to reproduction would give copyright owners control over everybody else’s access to digital content – which is not realistic.

It has been ��that this case��may “serve to reinforce the importance of the technological neutrality principle and confirm that in the digital world, not ever copy is a copy for the purposes of the Copyright Act.”��I agree with this position. Although SODRAC relies on the established law, the law must keep up with our ever-changing (and technologically advanced) world. It is simply impractical to suggest every copy is a copy under the Act when the way we access and store digital information heavily relies on ephemeral copying. To charge royalties on the digital content used in the production process before the final (valuable) broadcast is made seems to be an inappropriate cash-grab and abuse of copyright owners’ powers. However, the conclusion that the law may lend itself to could be completely different, and unfortunately we can never predict with certainty how the bench will sway. I guess we will just have to sit on the couch and find something else to watch until the final result is ready for the air.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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