Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focused on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The Keynote Address at , delivered by Dean Lior Zemer of the Harry Radzyner Law School, Reichman University in Israel, introduced an important but challenging issue: the rights to works of Holocaust victims. The Keynote Commentary, delivered by Honourable Justice Marshall Rothstein, shed light on the question: “Why has it taken so long?”

Justice Rothstein opened with a story: his father was born in Poland, one of eleven children. The family-owned barrel factory and hotel were not enough to support eleven families, so the younger siblings, including Justice Rothstein’s father, immigrated to Canada before the first World War. While the younger siblings did not get the factory or hotel, they were lucky. Those who remained in Poland became part of the six million victims of the Holocaust.

Justice Rothstein was born in Winnipeg in 1940. While Justice Rothstein was a child, he does not recall any talk about the Holocaust. The prevailing view was that such a traumatizing subject should be kept from children to shield them. In those days, Justice Rothstein could not recall much known about the works of Holocaust victims beyond the Diary of Anne Frank. It is not surprising that it has taken decades before the discussion surrounding intellectual property and the Holocaust has grown to include the recovery and disposition of works of Holocaust victims. Justice Rothstein praised Dean Zemer’s initiative to consider these works and raise complicated, sensitive, and controversial issues.

In addition to why it has taken so long to raise this issue, Justice Rothstein shed light on why it is so important that the issue has been raised. Justice Rothstein quoted philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.” He recalled the antisemitism of the past which manifested in pogroms, expulsions, torture, and denial of rights to own land and to hold public office. Even in the 20^th century, zoning bylaws and gentleman’s agreements precluded Jews from certain communities, and many employers would not hire Jews as employees.

Although antisemitism significantly declined in the last half of the 20^th century, the concern of the Jewish community is that it will re-energize. Justice Rothstein explained that when times are tough, people look for someone to blame and conspiracy theories develop and multiply. Jews are always at the top of the list. He pointed to the as an example of the re-emergence of antisemitism, a shooting where the perpetrator was convinced the Jewish people were “committing genocide.” The lessons of the Holocaust are relevant today to understand antisemitism and, indeed, prejudice in any form. There is a danger in letting them be forgotten. Dean Zemer explained that Holocaust works have the potential to teach these lessons. There is a danger in letting them be unrestrictedly modified or transformed. ����

Justice Rothstein offered a Canadian perspective on how our moral rights framework would line up with Dean Zemer’s approach. In , Justice Binnie explains that moral rights “adopt a more elevated and less dollars and cents view of the relationship between an artist and his or her work” and “treat the artist’s oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.” The Canadian provides that moral rights are infringed if the work is, to the prejudice of the honour or reputation of the creator, distorted, mutilated, or otherwise modified or used in association with a product, service, cause, or institution.

Justice Rothstein explained that the concerns raised by Dean Zemer would fit neatly into the Canadian understanding of moral rights. However, a problem arises in that moral rights are tied to economic rights and not perpetual. In 2022, we are beyond the term of protection for works produced during the Holocaust. A further problem arises: where ownership of property is unknown, title escheats to the Government where the physical work is located, and physical ownership is perpetual. Title to Holocaust works may, therefore, be owned by the governments where those works are located.

To statutorily amend the term of moral rights protection for Holocaust works, to make legislative changes across countries, and to potentially move works from their present location will not be easily accomplished. However, it is a worthwhile goal. Justice Rothstein concluded his remarks with the ending note of Dean Zemer’s : “We must protect and promote the potential of these artworks to teach their most important lesson to us all – never again.”

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Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative , , and of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas in the Israeli Conservatory: Dean Zemer’s “own little victory.” ��

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�ճ�� (the “Gowling WLG IPilogue Prize”) was pioneered in ’s Intellectual Property class in the Fall 2007 term and has been generously sponsored each year since then by , formerly Gowling Lafleur Henderson LLP. As a sector-focused law firm, Gowling WLG provides clients with in-depth expertise in key global sectors and a suite of legal services, including a  and 300-strong .��

All blog entries and comments on the IPilogue submitted by Osgoode students are considered automatically for the prize. In each academic semester, one prize is awarded for the best blog post and one prize for the best comment.��

This award is a chance to recognize Osgoode students’ research and writing in a specialized and technical field and further encourage them to develop their strong interest in Intellectual Property Law. Of course, the subject matter of the IPilogue goes beyond strictly IP. Our stories also delve into related areas including: internet law, privacy rights, broadcasting, social media and free speech.��

We are pleased to announce this year’s winners of the Gowling WLG IPilogue Prizes:��

Fall 2021 Term:��

Best Blog: Kwangil (David) Park: ��

Best Blog Comment: We have a tie.��

Samantha Melhado’s comment on “”��

Lamont Abramczyk’s comment on “”��

Winter 2022 Term:��

Best Blog: Claire Wortsman: ��

Best Blog Comment: We did not award a winner for this category��

Congratulations to our winners and thank you to all who make the IPilogue possible. We are most grateful to Gowling WLG for its generous support.��

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Tetyana Yablonska, (1967)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On International Women’s Day in Odessa, Ukraine, soldiers friends and family flowers despite the fear of an imminent Russian attack. Soldier Dmitriy pink and yellow tulips for female soldiers, while flower vendor Alena tied a bouquet of blue and yellow tulips in honour of the Ukrainian colours. Flowers hold a special place in Ukrainian cultural heritage, which now faces of destruction.

On March 1, invading Russian forces shelled (Babyn Yar)—a Nazi killing ground where thousands of Jews, Romani people, psychiatric patients, and war prisoners were massacred. The shelling killed at five people, and injured another five. While the Babyn Yar Holocaust Memorial Center was not directly , the center had plans to expand to a nearby building that suffered damage in the bombing.

In the wake of destruction and killing at the symbolic site, President Zelenskyy , “[the Russian invaders] all have orders to erase our history, erase our country, erase us all.” It is important to understand and Ukrainian history and culture more than ever. Every day, especially during , it is also essential to understand and celebrate women’s contributions to the foundations of history and culture.

Flowers and Female Ukrainian Artists

The United Nations Educational, Scientific and Cultural Organization (UNESCO) has recognized the decorative painting as a valuable part of humanity’s intangible cultural heritage. Petrykivka is named for Petrykivka village, where the Ukrainian Zaporizhian Cossack practice of decorating living quarters and belongings with fantastic flowers and natural elements was preserved despite the brutal Soviet regime. A local non-governmental organization, Agency for Regional Development of Dnipropetrovsk Region, the Petrykivka trademark.

Believed to protect the wearer from sorrow and evil, flower ornaments in the Petrykivka style were applied by women . Tetiana Pata, Nadia Bilokin, Paraska Pavlenko, Iryna Pylypenko, and Pelaheia Hlushchenko are known as the of the transformative period of Petrykivka art where local artists integrated the style to their traditional mediums following its re-discovery. The many talented Ukrainian female artists that have emerged throughout history have carved out their unique styles. Still, many have integrated uniquely Ukrainian elements of Petrykivka into their work, whether in the form of vibrant flora or fantastical fauna.

Petrykivka can transform everyday objects into art. During summers spent with her great-grandmother in Poltava, a Ukrainian village north of Petrykivka, Victoria dishes, vases, and kettles adorned with clusters of red guelder rose berries and orange flowers. Like Petrykivka artists, Odessa-born does not restrict herself to canvass. She is known for her wall paintings and has also created reminiscent of Petrykivka—accessories like handbags and wallets adorned with lively flora. Energetic florals are also alive in , whose work also features the poignant .

, an original member of —the first artist-run, not-for-profit gallery dedicated to women and non-binary artists in the USA—is another Ukrainian artist whose work features flowers. Dorosh fabric and textile work, a traditionally female craft, to explore complex topics such as the slippage of play between childhood and adulthood. Textile work was an important feature of art.�� For example, is a fabric sample where overlapping oblong shapes of varying blues, greens, and yellows resemble a collection of flower petals.

A discussion of flowers and female Ukrainian artists would be incomplete without , the self-taught painter of floral scenes who made Picasso , “if we had an artist of this level of skill, we would make the whole world talk about her.” Bilokur’s Happiness, Storks brought the baby (1950) features sunflowers. As Ukraine’s national flower, the has quickly become a symbol of resistance. Sunflowers have inspired Ukrainian artists from to to , each in their unique way.

The magical and bright flora featured in Ukrainian female artists’ work throughout history provides a stark contrast to the images coming out of Ukraine in recent weeks. As Ukraine’s humanitarian crisis continues during Women’s History Month, the comments of European Parliament President Roberta Metsola remain on my mind. He the “incredibly brave women of Ukraine who are fighting, forced to shelter their loved ones in bunkers, giving birth in metro stations and leading on the frontline.” On my mind, too, are the Ukrainian women who have built up the intangible cultural heritage of humanity and their images of strength, hope, and peace.

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Maria Prymachenko, (1982)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On February 25, invading Russian forces the Ivankiv Historical and Local Museum, and the many culturally and historically significant pieces it housed, to the ground. The Museum’s collection included 25 paintings by Maria Prymachenko, the celebrated Ukrainian artist world-famous for her colourful folk art style. Prymachenko’s great-granddaughter that a local man ran into the burning building and was able to save some of the precious works. Yet many more pieces were lost, and millions of artworks and monuments at risk from Russia’s military onslaught. These those dating back to the Byzantine and Baroque periods, as well as UNESCO World Heritage sites.

Ukrainian Minister of Culture Olexandr Tkachenko has that Russia lose its UNESCO membership. The destruction of Ukrainian cultural heritage at the hands of Russia is not a novel occurrence -�� the 2014 annexation of Crimea and the conflicts in Donetsk and Luhansk to the loss of dozens of archaeological, historical, and artistic collections. James Cuno, President of the J. Paul Getty Trust, released a condemning the cultural atrocities taking place in Ukraine alongside the unfathomable human and environmental losses. Cuno identifies that cultural heritage has the power to unite us, and is critical for achieving peace, making it a common target in war; a means of destroying a society by erasing its memory. Officials preserving and protecting cultural legacies in times of conflict has the power to bind local people and foster peace, once the shooting stops.

The importance of safeguarding cultural property extends beyond the borders of Ukraine. The preamble of the recognizes that “… any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural property of all humanity, because every people contributes to the world’s culture.” Putin’s continued violation of international law is a blow to the international legal order – one that Yale Law School’s Oona Hathaway and Scott Shapiro must be met with an aggressive and resolute response.

Uncertainty and crisis in Ukraine have left many fleeing their homes, while museum employees remain behind to look out for their collections in whatever way they can – whether by standing guard, hiding art in basements, or (for those farther away from the war zones) transforming into a place of temporary respite for those who have fled. Fedir Androshchuk, the director of the National Museum of the History of Ukraine, is standing alongside two colleagues in an to safeguard the museum from attack or looting. He that “the museum is located in the middle of a rich cultural heritage area near three fine churches, but also close to some possible targets (the Ukrainian security service and border forces).” This proximity to potential military targets is significant from an international law perspective, [1], as the carves a “military necessity” exception out of its protections for cultural property. As by Captain Joshua E. Kastenberg, “Where a defender state harbors items of military value… in or near cultural property, the property loses its legal protections.”[2]

Androshchuk also , “there is no guarantee that the Ukrainian cultural heritage will not be plundered and transferred to Russian museums, especially given that Kyiv has a special place in Putin’s interpretation of Russian history and its roots.” The destruction of Ukraine’s cultural heritage serves the narrative of Vladimir Putin, who that Ukraine is a nation and that Ukrainians are a people. Perpetrators of the intentional destruction of cultural heritage seek to destroy the communities for which the heritage is perceived as an essential element of their own life, cultural identity, and distinctiveness.[3] Yet Putin’s assault has backfired – Ukraine itself, the West against Russia, and images of Prymachenko’s uniquely Ukrainian style around the world.

[1] Captain Joshua E. Kastenberg, “The Legal Regime for Protecting Cultural Property During Armed Conflict,” Air Force Law Review 42 A.F.L Rev. (1997)

[2] Ibid

[3] Federico Lenzerini, “Intentional Destruction of Cultural Heritage,” The Oxford Handbook of International Cultural Heritage Law (2020)

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Photo by Ståle Grut ()

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

As Toronto museums once again, their only option to stay “open” is to turn towards the digital. Toronto museums are not alone, although perhaps their struggles are more drawn-out; museums and art galleries . have also faced physical closures due to lockdown restrictions. According to , more than 85,000 museums worldwide (nearly 90% of museums surveyed) have closed their doors. In 2020, visitor figures for the world’s top 100 art museums by 77%.

In staying “open” virtually, museums and galleries have their online presence by producing virtual tours and immersive experiences for remote viewing. Many museums have made high-resolution images of their collections available online, including the Victoria and Albert Museum, whose hit a level of audience engagement in 2020. New 91��ɫ art attorney Amelia K. Brankov that museums can ensure compliance with copyright legislation while protecting against the risk of liability resulting from third-party actions by providing an appropriate “terms of use” section on their website.

For North American museums with works still under copyright, the 2017 Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums by the Association of Art Museum Directors will come in handy. However, many of the masterpieces housed by museums are in the public domain. Copyright subsists in until 50 years after the creator’s death and in the . and . until 70 years after the creator’s death (although, per the terms of the Canada-greement, Canada will bridge that 20-year gap). Yet, in many cases, museums continue to profit off of and control these works.

On the one hand, licensing deals made possible by control over artistic works offer an important source of revenue for museums struggling during, or in the wake of, mandated closures. On the other hand, some museums’ practice of reappropriating works in the public domain by claiming copyright protection for their reproductions, thereby artificially extending the duration of copyright protection. Further, museums risk being “hypocritical” when they promote the commercialisation of their collections while banning usage by others.��

In 1972, art critic John Berger , “For the first time ever, images of art have become ephemeral, ubiquitous, insubstantial, available, valueless, free.” Taco Dibbits, director of collections at the Rijksmuseum in Amsterdam, that the museum allows audiences to download high-resolution photos of its collections: “If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image … than a very bad reproduction.”

The question remains whether Vermeer-covered toilet paper marks a problem. The debate of who, if anyone, should have control over cultural artefacts in the public domain was recently reinvigorated when the Louvre museum and Uffizi Gallery to sue Pornhub for turning works by painters Titian and Courbet into pornography without authorization. As , it is worth noting that Pornhub is at the center of of hosting and profiting off videos of rape, incest, and child abuse. Those who criticize the company, and any association with it, may have better grounds to stand on than moral outrage over pornography.����������������

Moral rights the right to the integrity of the work and attribution in reasonable circumstances. Museums in France claim perpetual moral rights of an author’s work. In Italy, the museums’ permission to use images from their collections for commercial purposes. On these bases, the Louvre museum and Uffizi Gallery, based in France and Italy respectively, threatened to bring legal action against Pornhub. This is the same Louvre that launched “a flurry of brand partnerships” in 2021 with brands ranging from to . This is also the same Uffizi that has taken to to depict scenes ���dzٳپ����������’s Venus running away from tourists attempting to take selfies with her. Would Botticelli approve more of his works appearing on TikToks, phone cases, and graphic tees than pornography? And the ultimate question: Who’s to say?

So, what can we expect as the COVID-19 pandemic enters its third year? The best answer I have found is : the only certainty is that nothing is certain. Despite this, the museum directors and head curators that Cheshire spoke to are confident in their ability to adapt to the changes that 2022 will bring. Director of the UCCA Center for Contemporary Art Philip Tinari , “It’s a question of pricing in some uncertainty to your planning.” Another explanation for the confidence of directors and curators going into the new year is the and the of global sales of licensed goods and services, particularly in art.

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Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

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Which trademark battle? THE trademark battle—the one over who owns trademark rights in the word “THE”. In May 2019, Marc Jacobs Trademarks L.L.C. (MJT) to the United States Patent and Trademark Office (USPTO) seeking registration for use of the word “THE” on clothing, handbags, and related goods. Three months later, The Ohio State University (OSU) their own application for use of the word “THE” on clothing and related goods.

Although OSU claims to have used the mark in commerce since August 2005, MJT’s application was filed earlier. As a result, OSU was informed in September 2019 that MJT’s application may bar theirs from registration. In April 2021, OSU a Notice of Opposition claiming damages if the USPTO registered the mark “THE” to MJT. THE dispute between the two parties continued from there.

In August 2021, OSU withdrew their opposition proceeding. A university spokesperson that it was “pleased to have reached an agreement with Marc Jacobs,” noting that, “Marc Jacobs’ THE branded products are associated with high-end/contemporary fashion,” and would therefore be sold through different channels than OSU’s THE branded athletic and collegiate products. Likely connected to the agreement reached with OSU, MJT their trademark application in April 2021. They added the qualifier that their list of goods be, “promoted, distributed, and sold through channels customary of the field of contemporary fashion.” On the other hand, OSU’s application qualifies that their list of goods will be, “promoted, distributed, and sold through channels customary to the field of sports and collegiate athletics.”��

OSU’s withdrawal of their opposition proceeding does not, however, guarantee the success of MJT’s application. OSU is not the only party to object against MJT. The USPTO previously problems with MJT’s application, particularly that the mark fails to function as a trademark, “indicate the source of applicant’s clothing and to identify and distinguish applicant’s clothing from others.” For example, in MJT’s most recently submitted trademark ‘’, the word “THE” appears ornamental.

The specimen, a red sweater, features “THE” in black lettering, “directly on the upper-center area of the front of a sweater where ornamental elements often appear,” rather than “on the pocket or breast area of a shirt,” where, “consumers may recognize small designs or discrete wording as trademarks.” OSU’s submitted , a red T-shirt, features “THE” in white lettering, also on the upper-center area. OSU’s T-shirt also features the Nike logo on the pocket or breast area as well as the Ohio State logo directly underneath the “THE” lettering. While a mark may be simultaneously ornamental and source-identifying, something merely ornamental may not be registerable as a trademark and will likely be refused for failure to function.

In my experience, both Marc Jacobs and OSU have several clear, source-identifying marks and “THE” is not one of them. While I might be able to tell that a high-quality sweater with “THE” lettering is a Marc Jacobs product, that does not mean that “THE” is source-identifying. Those interested in fashion could also likely identify a as an Alberta Ferretti product. Yet Alberta Ferretti likely would not successfully trademark “MONDAY,” “TUESDAY,” and so on.�� ��

The USPTO that OSU submitted many blog posts, articles, and comments as evidence which refer to “THE OHIO STATE UNIVERSITY” as a whole, not “THE” on its own. This is similar to the way in which “THE” sits on top of the “OHIO STATE” logo on OSU’s submitted specimen. In my view, “THE” alone would not be enough to indicate what the apparel represents, or even which university (The University of Oklahoma? The University of British Columbia?).

As a consumer, I find both THE applications puzzling as I fail to see how “THE” is source-identifying. That being said, the USPTO will have the final word—or already has in OSU’s case, if OSU fails to respond to their most recent Office Action by February 2022, in which case their application will be deemed abandoned. In the meantime, I will keep an eye out for more updates on THE matter.

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Screenshots from and .

Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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As the election nears, my colleague Shawn Dhue and I are looking at the major parties’ plans for Canada in IP-related areas. This article will cover the platforms of Erin O’Toole and the Conservative Party of Canada as well as Jagmeet Singh and the New Democratic Party. For information on the Liberals and Green Party, check out Shawn’s article. Below are select pieces of and that address the CPC and NDP’s plans for Canadian IP and related areas respectively.

COVID-Related Trade Policy

• Reinstate the tariff on imported PPE.
• Support the Trade-Related Aspect of Intellectual Property Rights Waiver (TRIPS) to waive IP rights for COVID vaccines and ensure technology transfer between nations.

Media Policy ��

• Introduce a digital media royalty framework to ensure platforms like Google and Facebook compensate Canadian media outlets for the sharing of their content. This will include a robust arbitration process and the creation of IP right for article extracts shared on social media platforms.����
• Make sure that Netflix, Facebook, Google, and other digital media companies play by the same rules as Canadian broadcasters.

Privacy Policy

• Pass strong legislation to protect privacy more effectively.
• Work to strengthen privacy protections for Canadians by updating privacy legislation to include a digital bill of privacy rights and boost the powers of the Privacy Commissioner to make and enforce orders, as well as levy fines and penalties.

Data Policy

• Create a technology task force within the Competition Bureau to examine whether dominance and anti-competitive behaviour of big tech is damaging to Canadian industries.
• Examine how algorithms and data give big tech an advantage over Canadian businesses, as well as how fintech and new technologies could foster competition.
• Prioritize the collection of race-based data on health, employment, policing and more with the goal of improving outcomes for racialized communities.

Innovation Policy

• Launch a review of innovation programs at Innovation, Science and Economic Development Canada and across the government and, among other things, implement requirements:
  • All recipients demonstrate that IP, production, ownership, and profits are likely to stay in Canada; and
  • All IP developed with the support of the Canadian government is held by a Canadian entity and that recipients agree to pay back the subsidy if they sell the IP to a foreign buyer.
• Invest $5 billion over the next 5 years to fund programs in: Use of hydrogen; Small Modular Reactors; Private sector innovation in the space sector; Electric vehicle development and manufacturing, including electric trucks, micro-mobility, batteries, and parts manufacturers; and pharmaceutical research and production.
• Restore the Automotive Innovation Fund and make contributions to automakers tax-free.

Jobs/Labour Policy

• Pay up to 50% of the salary of new hires for 6 months following the end of the Canada Emergency Wage Subsidy
• Invest in forestry innovation and support value-added Canadian wood products – and the good jobs that go with them.
• Support more options for women to build careers in the trades and other non-traditional fields like agriculture, innovation, research, and STEM.
• Support paid sick leave and prescription drug coverage.

Environmental Policy

• Implementing an affordable carbon price: Starting at $20/tonne and increasing to $50/tonne but no further.
• Work with the provinces to implement a national Personal Law Carbon Savings Account that consumers can pay into each time they buy hydrocarbon-based fuel. They can then put this money towards things that help them live a greener life (e.g., buying a transit pass or bicycle).
• Make Canada an innovation leader on methane reduction in areas such as:
  • Real-time monitoring for a leakage detection;
  • Ensuring that provincial methane regulations are genuinely equivalent with the federal regulations; and
  • Increasing the ambition of those targets in the 2025-30 period.
• Create a National Crisis Strategy to help communities reduce and respond to climate risks, as well as a new Climate Corps of young workers to respond to climate impacts and build an equitable clean-energy economy.

Foreign Policy

• Protect Canadian IP with a strengthened that includes, among other things:
  • A presumption against allowing the takeover of Canadian companies by China’s designated state-owned entities; and
  • A reformed “net benefits” test to better account for the potential effects of a transaction on the broader innovation ecosystem with a particular focus on protecting IP and human capital.
• Revoke visas of Chinese nationals identified by national security agencies as conducting espionage or stealing IP.
• Adopt measures to stabilize the Canadian steel market and protect the sector from predatory practices of foreign producers who are shut out of other markets.

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Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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From the thrilling gold-medal finish of the women’s soccer team to Andre De Grasse becoming the first sprinter to bring home gold since 1996, there was no shortage of exciting moments for Canadians at Tokyo 2020. Penny Oleksiak made history as the country’s most decorated Olympian of all time. Jamaica’s Elaine Thompson-Herah also made history in Tokyo as the first woman to win gold in the 100 and 200 meters in consecutive Games. After posting footage of her impressive feat and her family’s celebration to Instagram, Thompson-Herah was, as she , “blocked on Instagram for posting the races of the Olympic because [she] did not own the right to do so.” The New 91��ɫ Times that a spokesperson for Facebook, Instagram’s parent company, confirmed that it removed Thompson-Hera’s video but claims her access to the app was mistakenly suspended.

The International Olympic Committee (IOC) athletes to share Olympic Games content on their personal social/digital media accounts or website unless it contains audio/video of the areas referred to as the Field of Play (“the area used for a sporting competition or ceremony”) or Back of House (“non-public areas, within and/or surrounding a venue”). IOC regulations are only one of the many sets of rules that surround the intellectual property (IP) of the Olympic Games. James Bikoff, who has extensive experience litigating the IOC’s trademarks, on an episode of that, depending on the country, Olympic IP can be protected by national statutes (see �䲹�Բ��岹’s ), the (which Canada is not a contracting party to, but are), and special protection for the words “Olympic” and “Olympiad” in various languages across the generic top-level domain names (e.g. .com, .org).

�䲹�Բ��岹’s Olympic and Paralympic Marks Act (OPMA) was enacted in 2007 and includes a list of 39 protected Olympics-related marks in Schedule 1. Although one might think that this statute contains all of the necessary information on Olympics-related marks in Canada, matters are further complicated by the fact that the Canadian Olympic Committee (COC) continues to register marks not found in OPMA as official marks under the . Teresa Scassa �䲹�Բ��岹’s official marks system – which allows “public authorities” to sidestep the application and review process otherwise required�� – ��as “anomalous and downright dysfunctional.” The result of COC’s registering of official marks is that certain marks (e.g. ) enjoy simultaneous protection as official marks and under the OPMA, and may continue to receive protection under one after being removed from the other. Another odd result is that certain marks (e.g. the ) are protected as an official mark but not under the OPMA, which may present difficulties as certain businesses look to the OPMA to check their compliance. ��

Canada is not alone in facing criticism for its extensive protection of Olympics-related IP. During her time as a trademark law professor at Drake University, Shontavia Johnson wrote that she the laws created solely to protect the Olympics had been stretched too far. She described her concerns, which include the high level of difficulty for companies, especially small businesses, to know when their activities are illegal and obtain permission to do the right thing. Johnson also explained that most American Olympic athletes scramble to make a living, and that the IOC and national Olympic committees exercise a tight control which may prevent athletes from profiting off of the value which they create for the Olympic Games.

restricts social media posts and advertisements published by athletes and sponsors during the Games, both in volume and content. These restrictions on permitted publications may deter smaller companies who cannot afford to become official Olympic sponsors but who would gladly sponsor an individual Olympian from doing so, either because they feel it would result in an unsuccessful campaign or because they are afraid of accidentally breaking the rules. In Canada, even to congratulate an athlete they sponsor, companies are not permitted to use a multitude of hashtags or words that generate social media buzz, including Tokyo 2020, Olympics, #teamcanada, and #summergames. ��

In light of the popularity of Olympians posting on social media platforms like during Tokyo 2020, it will be interesting to watch for potential clashes between athletes and governing bodies related to IP at Beijing 2022. As social media posts generate buzz and draw fans, spectators will have a chance to enjoy getting behind-the-scenes looks and instant updates from their favourite athletes. This may drive some policy changes. On the other hand, Michael Lynch, a veteran sports marketer, IOC’s IP as its “primary asset.” Striking a balance between generating ample revenue to support athletes and events and serving the interests of individual athletes, sponsors, and fans seems an Olympic balancing act.

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Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Is GitHub Copilot a Copyright Infringer?

At the end of June, CEO Nat Friedman the launch of a technical preview of . Much like the predictive text and search features we see in messaging, email applications and search engines, Copilot makes instant suggestions to users as they type. These suggestions can range from a line of code to an entire function.

The Guardian’s UK Technology Editor Alex Hern a couple of simple tasks that programmers can now hand off to Copilot, including sending a valid request to Twitter’s API (application programming interface) and pulling the time in hours and minutes from a system clock. Although the big-eyed Copilot mascot may look innocent, Hern also identified some functions that are a little less helpful. These range from allegedly violating copyright (the subject of much on forums) to (i.e., providing access to an app’s otherwise inaccessible databases).

On infringing copyright, GitHub’s staff machine-learning engineer Albert Ziegler published a assuring users that while “Copilot can quote a body of code verbatim … it rarely does so, and when it does, it mostly quotes code that everybody quotes, and mostly at the beginning of a file, as if to break the ice.”

While Ziegler’s use of the word “mostly” may not reassure those fearing copyright infringement, his paper highlights two details that might. First, verbatim code is only suggested about . Second, GitHub plans to integrate a duplication search into the user interface. A duplication search would identify overlap with Copilot’s training set to flag instances of duplicating direct snippets of code and identify where they originate from.

Intellectual property law professor Andres Guadamuz that Copilot, as it stands, does not infringe copyright. This is because Copilot would copy small snippets of commonly used code which are unlikely to amount to substantial reproduction or meet the threshold of originality necessary to be protected under copyright. Guadamuz explains that machine learning (ML) training is “increasingly considered to be fair use in the US and fair dealing under data mining exceptions in other countries.”

On the question of which country’s law governs GitHub’s activities, Internet, telecoms, and tech lawyer Neil Brown “a reasonable chance that GitHub will claim that its service is provided by GitHub, Inc., which is established in the USA, such that [any other country’s] law is irrelevant.”

What About Copyleft?

Some licensing agreements contain “copyleft” obligations. Copyleft allows for the use, modification, and distribution of a work, or a portion of it, on the condition that the resulting work is bound by the same license. disapprove of code licensed under GNU’s (GPL) being included in Copilot’s training set, given that Copilot is a commercial work and the GPL has copyleft obligations. However, Guadamuz explains that under GPL v3, this obligation only arises where the copying is substantial enough to warrant copyright permission. As previously mentioned, Copilot’s activities likely do not meet this standard.

What Comes Next?

Profiting off the work of others without remuneration or their consent goes against the spirit of copyright protection. But what if using the work of others to train a commercial product results in a tool like Copilot that lowers barriers to coding and permits a wider audience to engage in the creation process? After all, encouraging innovation should be one of the primary functions of any copyright regime. The opinions, and possible legal decisions, that follow in the wake of Copilot’s launch, and the launch of similar ML features, will reveal what we value about copyright law and the direction it takes as technological complications arise.

The buzz surrounding Copilot is not the first time an autocomplete feature has landed a company in hot water. In the 2018 Australian High Court case of , the plaintiff argued that Google’s autocomplete predictive search suggestions were defamatory. Although no final conclusion was reached, I anticipate that we will see more definitive cases emerge as autocomplete and predictive text tools, whether suggesting text or code, continue to develop and more instances of potential defamation and IP infringement take place.

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