During the first semester of my 3L year, I was placed at the Department of Canadian Heritage (PCH), Copyright Policy Branch for ten weeks through the IP Law & Technology Intensive Program. After spending the past two summers working for an IP boutique firm involved primarily in patent and trademark matters, I relished the opportunity to learn about copyright law outside of the classroom. This article shares my experience during my time at PCH.

While I have not attended a copyright law class at this point in my academic career, I had the pleasure to learn about the nuts-and-bolts of the copyright policy machine from those best equipped to teach me, policy analysts. Understanding the difficult path to balancing the public interest of enjoyment of works with creator rights to be compensated for their works is very interesting and will be useful in a legal career in IP. Many stakeholders have varying needs that are often difficult to reconcile with others but balancing those needs is a critical part of copyright law. PCH is tasked with balancing stakeholder views and interests as well as ensuring Canada’s copyright policy framework supports creativity, innovation, and access to cultural works. One of the ways PCH fulfills its mandate, is through public consultation.

Analyzing the views of stakeholders is an essential aspect of a policy analysts’ role

I was fortunate to be able to assist in the analysis of stakeholder submissions regarding the recent consultation: Modern Copyright Framework for Artificial Intelligence and the Internet of Things. This consultation was seeking stakeholder input regarding five discrete aspects of artificial intelligence (AI) and the Internet of Things (IoT) in relation to the Copyright Act: text and data mining exceptions, AI authorship, AI liability, right to repair and interoperability. Stakeholders were provided an opportunity to submit their opinions, concerns, and general comments regarding these questions. In my role, I was tasked with digesting submissions and providing a summary to be analyzed in relation to other submissions. This provided a “birds eye view” of stakeholder opinions to help guide policy discussions. This exercise provided the opportunity to understand how the public views copyright law and how changes to copyright law could impact their interests. This was an invaluable experience as it reminded me of the reality that legal decisions can impact the public in an incredibly meaningful way, something that can often be lost on a law student barreling their way through case law and legal doctrines. In this case, the complex and evolving nature of AI and IoT presents many challenges when contemplating copyright policy changes and highlighted that policy analysts are extremely important for ensuring decision makers have all available knowledge and opinions to properly guide policy decisions.

Understanding the ramifications of copyright decisions goes beyond the decision

The highly publicized 91��ɫ v Canadian Copyright Licensing Agency (Access Copyright) decision will potentially impact stakeholders in a significant manner. I was also tasked with investigating how this decision could potentially impact creators with limited resources to pursue infringement actions. This was an interesting task; it was a practical opportunity to think beyond the decision to envision its impacts on the public. I was able to consider alternatives to traditional litigation and discuss other avenues to improve access to justice for creators. The research I conducted provided perspective and allowed me to contribute in a significant way to the knowledge of PCH which will hopefully provide a base for further research regarding this important subject.

The opportunity to gain practical experience working with policy experts at PCH has been a rewarding alternative to classroom learning. Learning about the public consultation process has not only been an interesting experience but has allowed me to gain valuable analytical skills and a deeper appreciation for the nuances of copyright law and the significant impact it has on the public. The grind of law school can sometimes overwhelm, and students can often lose sight of other perspectives. My placement at PCH was a reminder that ultimately the public will be forced to deal with the aftermath of policy decisions and these decisions, thankfully, are being considered in a thoughtful and thorough manner by the fantastic team at PCH.

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On June 28, 2021, the College of Patent Agents and Trademark Agents (CPATA) was established and began operating to regulate patent and trademark agents. The new regulations, the , were implemented “to regulate patent agents and trademark agents in the public interest, in order to enhance the public’s ability to secure the rights provided for under the Patent Act and the Trademarks Act” as stated in the .  According to the CPATA , the college will set competency standards for licensees, require trainee agents to work with an experienced agent for two years, and require agents to pass a competency exam. The CPATA also sets and enforces ethical standards for agents and will be implementing a that states principles to guide all agents. Principles enumerated in the Code of Professional Conduct include a duty to be competent, a duty to preserve confidences and secrets, a duty to not act if there is a substantial risk of a conflict of interest, and a duty to be honest and candid when advising a client.

Many have praised the establishment of the CPATA, highlighting improvements in standardization and transparency. The CPATA, like other colleges, is tasked with protecting the public interest by ensuring members are held accountable. Establishing an appropriate complaint, inquiry, and discipline process is essential for fulfilling this mandate. The CPATA website includes both an informal resolution option, the Conduct Inquiry Form, as well as a complaint option. Both forms allow the public to easily submit information about the circumstances and agent involved in their inquiry or complaint to the CPATA. The Conduct Inquiry Form, as described by CPATA, can be “the best and most efficient way to address questions or concerns about an agent’s professional conduct … rather than by filing a complaint.” At the moment, the two forms look remarkably similar, but the states that the “early resolution of conduct inquiries is focused on restoring relationships and trust ….” The policy lists the assessment options and follow-up actions the Registrar may invoke to resolve the matter. The Registrar will first assess if the inquiry warrants further action, and if necessary, work to support the licensee to rectify the situation in an appropriate manner. While the CPATA website does not currently include investigation and discipline policies, the informal inquiry process appears promising. The swift resolution of minor inquiries is key to allowing the Registrar to focus on issues that warrant significant attention and ensures that the public can be satisfied by a fast and efficient inquiry process for issues that they need resolved quickly. Consolidating the inquiry and complaint process to an easy one-stop-shop for the public will help foster trust in the profession.

Notwithstanding the improvements to standardization and transparency, the implementation of the CPATA regulations was . Sections 5 and 9 of the regulations require that patent and trademark agents, respectively, reside in Canada. This could eliminate some American agents from filing in Canada and potentially, thanks to a reciprocity treaty between Canada and the US, lead to Canadian agents losing their right to file with the USPTO. Dual trained agents could potentially face the reality of needing to hire an American counterpart for filing with the USPTO, which could lead to increased costs that would ultimately be passed along to clients and delays that could frustrate the patent and trademark processes further. Improving the Canadian IP ecosystem may be the goal, but the residency requirement could cost financially desperate clients even more, and potentially cost Canadian firms business if clients decide to go directly to American agents. Balancing the improvement of the Canadian IP ecosystem with maintaining low costs for clients and business thriving for agents is difficult; the Government is faced with an unprecedented IP ecosystem problem. While the implementation of the CPATA will hopefully increase the standard of service that agents provide to clients and ensure that clients have a transparent recourse process when they feel that service does not meet the CPATA standard, the potential cost to clients and lawyers may ultimately prove to further exacerbate Canada’s IP retention problem.

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In response to issues with Canadian IP rights leaving the country and ensuring SMEs are better equipped to utilize their IP rights, the Ontario government commissioned an Expert Panel on Intellectual Property in 2019. The produced by the panel provided multiple recommendations such as the need to: clarify the mandates of commercialization offices within postsecondary and research institutions, develop a standardized, online, IP education curriculum for these institutions, implement a centralized provincial resource to provide legal and IP expertise, and develop a governance framework for organizations supporting entrepreneurial and innovation activities. In July 2020, the Ontario government it would begin to implement these recommendations by appointing a Special Implementation Team on Intellectual Property.

The recommendations of the expert panel appear to mirror the pillars of Canada’s Intellectual Property Strategy to some degree. The National IP emphasizes IP awareness, education and advice, strategic IP tools for growth, and IP legislation. The recommendations of the expert panel focus primarily on IP awareness, education and advice. Whether the “centralized provincial resource” will amount to tools that business owners, inventors and entrepreneurs can utilize beyond general advice is yet to be seen but on its face the recommendations focus on education and awareness. This focus appears to be a concerted effort to establish IP commercialization hubs within postsecondary and research institutions. These institutions are important avenues of innovation which will hopefully begin to capitalize on inventions stemming from work within them but also educate those moving on to invent elsewhere in Ontario. 

It is unclear whether this framework is the most appropriate method for promoting IP commercialization in Ontario. have cited this as a narrow approach, stating that postsecondary institutions focus primarily on basic research that has little need for commercialization at its current stage. This presents problems for those wishing to license their IP because it will most likely require further development. While this concern is warranted, the implementation of a functional IP commercialization ecosystem would allow for postsecondary and research institutions to become more IP literate, and, in turn, more efficiently conduct their research to maximize IP commercialization. This would lead to a stable flow of IP rights in Ontario.

Written by Christian Bekking, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice. 

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