Emily Xiang is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Huge changes have come to the Canadian Copyright Act. In late November of 2022, an was signed to fix December 30, 2022 as the date on which Division 16 of Part 5 of the Copyright Act came into force. The amendments come by way of legislation passed back in June 2022 Ìęto increase the term of copyright protection from 50 years to 70 years following the end of the calendar year of the author’s death.

The new changes are in line with Canada’s treaty obligations under the , which came into force on July 1st, 2020. Under CUSMA, the country made a commitment to extend its general term of copyright protection from 50 years to 70 years following the life of the author, with a transition period lasting until the end of 2022 to implement the changes. The extension brings Canada , including with many of its major trading partners, such as the United States, the United Kingdom, and the European Union. This extension will hopefully generate new opportunities for investment and commerce for Canada’s creative industries.

Following CUSMA, the Government of Canada commenced in early 2021 on the implications of the proposed copyright term extension. The consultations were met with mixed reactions. Many believed that the extended term of protection would provide rights holders with , thereby incentivizing creative production. On the other hand, the proposed amendments also garnered significant pushback, particularly from user-oriented groups, as the extended term would mean further restriction on public access. An overview of the differing views from the perspective of the educational publishing industry in particular can be found in .Ìę

Following the public consultations, Prime Minister Justin Trudeau also addressed mandate letters to the Ministers of and of , requesting that the departments work together to amend the Copyright Act in order to further protect artists, creators, and copyright holders. A commitment to making the legislative changes was also included in the .

With the changes to the Copyright Act coming into effect, there is more clarity as to what works might be encompassed by the new amendments. According to , the extended term of protection will not apply to works that already entered the public domain before the amendments come into force. Works with copyright set to expire on or before December 30, 2022 will not be privy to the extended protection term. In other words, the extension will not operate retroactively. On the other hand, copyright in a work that is set to expire on or after December 31, 2022 should benefit from an additional 20 years of protection.Ìę

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

On June 23^rd, 2022, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical and artistic works from life of author plus 50 years to 70 years. The extension may seem like an additional incentive for creativity, but many have consistently voiced that it won’t be as beneficial as anticipated.

The change results from Canada’s commitment in the (CUSMA) to extend the general term of copyright protection. The clarifies the extension’s benefits, stating that “[a] longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works.” The exact date of the change, and therefore the specific list of affected works, remains unknown.Ìę

Meanwhile, IP experts, organizations, and institutions continue to express concerns about the negative consequences of copyright term extension.Ìę expressed how the 20-year extension could “hamper creativity” by inhibiting them “to build upon and rework creative content”. The extension, they argue, would hinder creativity and stray from a balanced copyright system – one where “the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge.” have also pointed to studies conducted in other countries that show the negative effects of copyright term extension. According to an interesting study on “,” a book entering the public domain generates 26.5 additional editions on average after it enters the public domain. ÌęMoreover, the availability of audiobooks for public domain bestsellers significantly increased from 1913-1922 compared with copyrighted bestsellers from 1923-1932.

Critics are also concerned about the extension’s impact on “orphan works” or “out-of-commerce works”, which was addressed in last year’s on how to implement an extended general term of copyright protection in Canada. "Orphan works" are works that are still protected by copyright but whose owners are unknown or unlocated. “Out-of-commerce works” are works still under copyright protection but no longer available to the public through normal commerce channels. The main concern is that the 20-year extension will result in more orphaned or out-of-commerce works, posing more barriers to the further spread of ideas.

To address these issues, the recommended implementing a system where copyright holders who want the extra year can register for it, while the other works will enter public domain. The Committee argues that this would contribute to a balanced system by protecting works with ongoing value while allowing works that don’t to enter the public domain. However, along with concerns about higher administrative costs, some are also concerned that the registration requirement could create a “” – one for owners who are knowledgeable and can afford the registration fees, and another for those owners who are unaware of the option to extend protection. Moreover, due to the varying times the works would enter the public domain, the two-tiered system could also hinder creativity.Ìę

The concerns are loud and clear. Despite being proposed to encourage creation, the extension seems likely to obstruct the very thing it was intended to promote.

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This semester, I had the opportunity to participate in Osgoode’s Intellectual Property (IP) and Technology Law Intensive Program. The program involves a 10-week placement as a legal intern to gain real-world experience in IP law. I had the opportunity to be placed at the Canadian Intellectual Property Office (CIPO). CIPO is a special operating agency of Innovation, Science, and Economic Development Canada (ISED) and is responsible for the administration of intellectual property in Canada.

As a student, I worked with the Policy, International Affairs, and Research Office (PIRO), which is part of the Corporate Strategies and Services Branch (CSS) at CIPO. PIRO provides advice and guidance on policy, regulatory, international, and economic issues to CIPO’s Executive Office and the Deputy Minister and Minister of ISED. PIRO is divided into three teams: Policy and Regulatory Affairs Office (PRAO), International Relations Office (IRO) and the Economic Research and Strategic Analysis Unit. If you didn’t already notice – yes, the federal government has an affinity for acronyms; I learned this on day one of my placement!

My main role was to conduct research to support the PIRO team. I researched intellectual property trends in free trade agreements and identified areas where negotiations are focused. While my main focus was on trade agreements which Canada is party to – including Canada-United States-Mexico Agreement (CUSMA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and Comprehensive Economic and Trade Agreement (CETA) – I also learned about the negotiations and IP standards set in other regions of the world by other agreements such as the Regional Comprehensive Economic Partnership (RCEP) and the recent African Continental Free Trade Area (AfCFTA).

My research was also related to meetings that I attended throughout the semester, where I was not only exposed to various areas in international intellectual property law but also to issues the Canadian government is facing regarding implementation of recent trade agreements. For example, I had the opportunity to learn about the process CIPO is taking to implement patent term adjustment obligations as required under Article 20.90 of the CUSMA. It was fascinating to sit-in on discussions of the most current issues that the office is facing as well as being introduced to topics that would never be discussed in the classroom.

I further had the opportunity to attend various meetings on behalf of CIPO’s PIRO team. This includes those held by the Intellectual Property Centre of Expertise (IPCE), an organization established as part of Canada’s national IP strategy in order to provide IP advice and educational support across the federal government. Discussions included considerations that need to be taken when conducting research and the role of federal servants in federal research as dictated by the Public Servants Inventions Act (PSIA). Not
only was this an opportunity to learn about a career of IP in the public sector, but I was also given hands-on experience on how to create effective memoranda when communicating information to the chief executive officer – something that is done regularly as a CIPO analyst.

Working as a student at CIPO has been an incomparable experience. Not only was the work unique, but it was a great skill-building challenge to work independently in areas where I am inexperienced – especially in the remote environment. I want to thank my supervisors, Shawn Tippins and Zorn Pink, who provided me with numerous opportunities to engage with the department. In addition to what I learned from the work, I have gained valuable mentors and lasting relationships. Although I wasn’t able to meet them in person, the team provided a warm and welcoming environment where I felt comfortable asking questions and participating in discussions. I look forward to applying the skills I’ve learned into my career and hope future students will take advantage of this opportunity as well.

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Photo by Markus WinklerÌę

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

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Since the summer of 2020, the Canadian federal government has been looking for ways to decrease the needless delays and unwanted wait times present in the patent process under the Patent Rules. This search to streamline the patent prosecution procedure is to help Canada meet its obligations under the Patent Cooperation Treaty and Canada-United States-Mexico Agreement (CUSMA). On July 3, 2021, the government proposed , with excess claim fees sticking out to many legal professionals across the country.

:

(i) at the time of a [request] for each claim in excess of 20 claims; and

(ii) at the time of payment of the final fee, for each claim in excess of the greater of:

(a) 20 claims on the date the notice of allowance is sent, and

(b) the sum of 20 claims plus the number of excess claims for which a fee was paid at the time of the [request]

In the , put out by Canada Gazette, the government states that applicants will be encouraged to limit their files with the new fees. This limitation reduces the burden of the Canadian Intellectual Property Office (CIPO) by limiting the number of claims that must be reviewed and likely reducing the number of errors, edits, and comments that the applicants must amend. With these fees, and the hope that applicants abide by the rules, CIPO can reduce the time it takes for an application to be processed.

The current proposal is a standard fee of $100 to be administered for each excess claim over 20, with a fee of $50 for smaller entities. There is no set time when these amendments will come into effect, but Smart & Biggar’s Partner that it will be no later than July 1, 2022.

Currently, wage the debate of whether to request an examination of an application now or later under the new amendments. It seems that some have already found a way to get around the excess fees. David Schwartz : "
 [A]n applicant would have the opportunity to avoid the payment of claim fees by amending the application to reduce the number of claims to 20 before or at the time of requesting examination."

However, some firms are still encouraging applicants to consider avoiding the excess fees by requesting examination before the new amendments come into play: “.”

It will be interesting to see the impact of the new amendments on the queue of applications. Regardless, with the push to avoid the excess claims , it seems that CIPO will have a busy start to the new year.

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Photo by Engin Akyurt ()

Prof. Pina D’Agostino is the Founder and Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Founder and Editor-in-Chief of the IPilogue, the Deputy Editor of the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School. This article features contributions from Ryan Wong (IP Osgoode & IP Innovation Clinic Alumnus), Sabrina Macklai (IPilogue Senior Editor), Tianchu Gao (IPilogue Writer), and Ashley Moniz (IPilogue Managing Editor).

2021 was an exciting year for the IPilogue. Our hard-working students and community members published more than twice as many articles than in 2020 and the most articles in a calendar year since 2011. This sharp increase helped us stay up to date with some of the biggest topics shaking up intellectual property: from , to ; and from growing investments in and , to IP registrars around the world grappling with whether to acknowledge Ìęas an inventor or artist. This article summarizes the top developments reported on our blog and in patents, trademarks, and copyright law in 2021. For a review of Privacy legislation in Canada, check out .

Top 10 Most Read IPilogue Articles Published in 2021

1. by Sabrina Macklai & Emily Chow
2. by Prof. David Vaver
3. by Claire Wortsman
4. By Claire Wortsman
5. by Natalie Bravo
6. by Prof. Giuseppina D’Agostino
7. by Bonnie Hassanzadeh
8. By Meena Alnajar
9. by Prof. David Vaver
10. by Bonnie Hassanzadeh

Introducing the College of Patent Agents & Trademark Agents

On , the came into force. The Act established the (‘’), an independent public interest regulator of patent and trademark agents in Canada. The purpose of the College is “to enhance the public’s ability to secure the rights provided under the and the .” The College’s responsibilities include maintaining professional competencies and ethics, issuing licences, collecting fees, and administering certification exams. This development marks a key milestone for the profession and for Canada’s . Though still in its infancy, the College has been criticized for and its , which may impose an additional fee on lawyer agents. It remains to be seen how influential the College is on the profession as it is expected to be fully operational within the next two years.

Patents

Overbreadth as an Independent Ground of Invalidity

On July 28, 2021, the Federal Court of Appeal confirmed overbreadth as a standalone attack on patent validity: . In this case, the appellants argued that there is no statutory basis for overbreadth as a ground for invalidity. The Federal Court of Appeal disagreed and found that overbreadth can be supported by a combination of sections 27(3) and 27(4) of the Patent Act. Case law has often overlapped overbreadth with other grounds of invalidity such as obviousness, anticipation, and inutility.Ìę

First Time Interpreting Patent Agent Privilege

Similar to solicitor-client privilege, patent agent privilege was introduced by section 16.1 of the Patent Act on June 24, 2016. The first case on patent agent privilege was decided this year: In this decision, the Federal Court provided some helpful commentary and analysis on the application and limitations of patent agent privilege.Ìę

Patent Prosecution History Now Admissible as Evidence

In 2018, section 53.1 of the Patent Act was added to make patent prosecution history admissible as evidence in patent proceedings. This was a significant development as the Supreme Court of Canada had expressly rejected the idea and stated that admitting patent prosecution history “would undermine the public notice function of the claims, and increase uncertainty as well as fuelling the already overheated engines of patent litigation” (Free World Trust v Électro SantĂ© Inc., 2000 SCC 66 at para. 66). Three subsequent Federal Court of Appeal decisions developed this provision further: ; ; and .Ìę

Continued Debates over AI as an Inventor

Around the world, patent registrars grappled with patent applications that credit artificial intelligence software as the inventor. Dr. Stephen Thaler’s “DABUS” (Device for Autonomous Bootstrapping of Unified Sentience) applied for patents around the world for its interlocking food containers. DABUS was granted patents in Australia and South Africa, with . In line with the and the , the disagreed, stating that absent express intention from Congress, the term “individual” in their statutory definition of “inventor” . The Supreme Court of Canada last considered the definition of "inventor" in 2002, but has yet to consider whether it would include non-human entities.

Trademark Law

Parody in Trademarks is No Joke

In , the Federal Court reaffirmed that parody is not a defence against trademark violation. Unlike the 2020 decision ), where the Federal Court failed to find the marks confusing, Justice McHaffie held there was a likelihood of confusion and passing off. This was based partly on the similarity of the trademarks and the overlap of the goods (both offering baked goods). However, even if the nature of the parties’ trades differ, trademark owners may still find recourse against spoofed versions of their marks through claiming depreciation of goodwill under section 22 of the . Here, the Court found goodwill in Subway’s trademarks, which was damaged by the nature of Budway’s products, as contrary to Subway’s “healthy and active” lifestyle promotion. With damages amounting to $40,000, it is clear the courts are unamused by parody in trademarks.

The Road Less Travelled Cannot be Trademarked

Like most countries, Canada bars the registration of “clearly descriptive” trademarks to prevent applicants from monopolizing words that merely describe the goods or services at hand. For this reason, marks consisting of are typically unregistrable. In , the Federal Court clarified when such marks might be protected. Hidden Bench and Locust Lane are two wineries operating on the same little road, “Locust Lane”. Although the Federal Court agreed that Hidden Bench met the threshold for a valid common law trademark over “Locust Lane”, they ultimately held that the mark, as clearly describing the goods and services’ place of origin, lacked both inherent and acquired distinctiveness. Therefore, Hidden Bench could not establish the necessary goodwill for a passing off claim. Only descriptive marks that have acquired a “secondary meaning” through use may warrant protection.

CIPO Addresses the Application Backlog

While filing trademarks is important for brand protection, the examination stage can take . In May, the Canadian Intellectual Property Office (CIPO) new measures to address the application backlog. Trademark owners may now file requests to expedite their examination where the registration of their mark is necessary for special circumstances such as if a Canadian court action involving the mark is expected or underway or if the goods or services are aimed at preventing, diagnosing, treating, or curing COVID-19. If accepted, the examination will take place within two weeks. The examination is also automatically expedited by approximately 6-10 months when the goods and services in the application are listed in CIPO’s . Though it is too early to assess the effect of these changes on mitigating the “”, the backlog of CIPO’s unexamined trademark applications appears to have as of December 13, 2021.

Push to Register Non-French Trademarks for Use in Quebec

Among the controversies associated with Quebec’s proposed Bill 96, , the bill stipulates new requirements for trademark owners operating in Quebec. Currently, under Quebec’s French-language laws, both registered and unregistered (i.e., common law) trademarks recognized under the may appear on public signs, posters, and commercial advertising in Quebec, in languages exclusively other than French. If enacted, Bill 96 would permit only registered non-French trademarks to appear on public signage, provided there is no corresponding registered French version of the mark. The Coalition Avenir Quebec government tabled Bill 96 on May 13, 2021, and Quebec’s National Assembly last examined it on December 10. Some iteration of the bill will likely become law by the end of this year. But even if it fails to pass, businesses relying on common law trademarks would be wise to try to register them, given the many that registration provides.Ìę

Copyright Law

In 2021, the Federal Court and Federal Court of Appeal heard 57 copyright infringement proceedings, approximately of all IP-related litigations at these levels.

Developments in Fair Dealing

The Copyright Act’s section 29 fair dealing provision, which allows for certain uses of copyright-protected materials, remained a central issue. affirmed that fair dealing for the purpose of news reporting (section 29.2 of the Act) must provide attribution, mentioning both the source and the name of the author. An indirect reference to the author accessible through “minimum research” is insufficient. As such, the Federal Court of Appeal rejected Trend Hunter’s argument that hyperlinking to the source article where Stross was credited was sufficient to meet the second requirement. The Court also declined to find fair dealing under s. 29 more broadly, considering that Trend Hunter’s dealing was commercial in nature, reproduced Stross’ work in its entirety, and that alternatives were available.

Fair dealing was once again at issue in , where the Federal Court held that the Conservative Party’s use of the CBC’s news footage of Liberal Party Leader and Prime Minister Justin Trudeau during their 2019 election campaign did not infringe CBC’s copyright. The court undertook a large and liberal interpretation of fair dealing, finding that the Conservative Party’s use of CBC footage was for the purpose of criticism under s. 29.1.

91ŃÇÉ« achieved a in the copyright tariff dispute with the Canadian Copyright Licensing Agency (“Access Copyright”) in In a unanimous decision, the Supreme Court ruled that the interim tariff approved by the Copyright Board is not mandatory. Users can choose whether to accept licences or pursue alternative methods to lawfully copy works. Notably, this marked Justice Rosalie Abella’s final decision before her retirement from the Supreme Court of Canada. Throughout her tenure, and her judgement here provided helpful obiter regarding fair dealing as integral to users’ rights.

Even Fake Facts are Not Copyrightable

involves the alleged copyright infringement of the famous true-crime story The Black Donnellys. The book had always been presented and accepted as “.” The Federal Court ruled that “an author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts.” Given today’s popularity of the phrase “based on a true story”, this ruling is a that there is no copyright in facts, even if they are later found to be untrue.

Copyright in Evolving Content Transmission

In , the Federal Court found the defendant liable for copyright infringement in its provision of pre-loaded set-top boxes and internet protocol television (IPTV) services and awarded the plaintiff nearly $30 million in damages. These services made copyrighted works owned by the plaintiff available to the public without the plaintiff’s permission. This decision marks the first time The court dealt with a similar issue in ). As IPTV is growing increasingly popular across the globe, its poses a challenge in Canada.

Availability of Reverse Class Actions for Copyright Infringement Claims

The first of its kind in Canada, the Federal Court of Appeal in affirmed that reverse class actions may be pursued in connection with copyright infringement claims. Though the matter was sent back to the Federal Court for further consideration, this judgement may encourage and enable mass copyright enforcement in the future, especially in our digital age where copyright infringement is more commonplace.

Public Consultations Ahead of 2022’s Copyright Reform

As part of the (CUSMA), which came into force on July 1, 2020, Canada has until the end of 2022 to implement numerous changes to their domestic copyright laws; most notably, extending the general term of copyright protection from . In light of the upcoming legislative amendments, the Government of Canada hosted three public copyright consultations in 2021:

• ;
• ; and

With the consultations now closed, it will be interesting to see how Canadian copyright laws will change in 2022 to accord not only with international obligations but our ever evolving digital world and public attitudes surrounding copyright laws.

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The Act consists of three parts: the implementation of the agreement itself, including key provisions such as a prohibition on private proceedings for agreement violations without the Attorney General’s consent; a series of amendments to existing statutes; and the coming into force provisions. The Act amends 24 existing statutes in total, including the , and other laws relating to intellectual property. IP owners and businesses should familiarize themselves with changes relevant to their rights and operations within the upcoming months.

Patents:

The Act’s requirement to ratify the Patent Law Treaty or adopt similar procedural standards is moot since Canada did so last year. However, Canada will now have to adjust patent terms to compensate for unreasonable patent office delays in patent issuance, including delays of more than five years from the filing date or three years from a request for examination, whichever is later.

Copyright:

One of the Act’s most significant changes in relation to IP is the requirement that Canada extend its basic term of copyright protection from the life of the author plus 50 years to the life of the author plus 70 years. This harmonizes Canadian copyright legislation with that of its American and European counterparts.

Trademarks:

Many of the Act’s trademark provisions have little impact on Canada since its accession to the Madrid Protocol, Singapore Treaty, and Nice Agreement last year. However, Canada will need to allow for registration of collective marks going forward (i.e. marks of an association or collective group).

Enforcement:

Customs officials will now be permitted to inspect, detain, and destroy suspected counterfeit trademark goods or pirated copyright goods if they are infringing. The fact that these provisions do not necessarily require a court to make a finding of infringement expedites trademark and copyright enforcement in favor of IP owners but may defer too much authority to law enforcement officials.

The Act also has various implications for automobile exports, agricultural markets, digital trade, and many other industries. A topic of further interest is the Act’s limitation on government restrictions of cross-border data transfers, which has quite a few ramifications for privacy rights advocates and e-commerce businesses alike.

Written by Andrei Teju, IP Innovation Clinic Fellow and JD Candidate at Osgoode Hall Law School

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Copyright

Under the CUSMA, Canada will have a 2.5-year transition period (Article 20.90) to increase the length of copyright protection to life plus 70 years for works, and life plus 75 years for performances. The duration of protection for copyright in performances won’t be changing dramatically (up from 70), but with the length for works currently at life plus 50 years, the new trade deal represents a significant change (i.e. a length of time equivalent to 5/6 of my lifetime) (Article 20.63). It remains to be seen how the deal will affect marginal cases. From the text of the agreement, it seems open for the parties to decide what happens to copyright protections that expire during the transition period. A hard cut-off may be simplest, but it’s not clear that would be fair to owners. The rights-balancing involved should not be understated, since the short transition period means that a more gradual change will be difficult, if not impossible – it is very much a 2-or-20 year extension situation.

Canada’s notice-and-notice framework will persist under the new deal (Article 20.89); for a brief introduction to the notice-and-notice regime, see . While Section J (and its Annex) of the CUSMA IP Chapter preserves the framework, the specificity of the language removes some of the flexibility that Canadian law might otherwise have to respond as notice-and-notice continues to evolve. In the long run, might this increase the risk that Canada shifts to the CUSMA-default notice-and-takedown regime that already governs south of the border?

The CUSMA also goes out of its way to make sure that criminal and civil remedies exist for tampering with digital locks or removing digital watermarks (although criminal remedies were already in place for the former). Nonetheless, a host of common-sense exceptions are directly enumerated, including circumvention by non-profit libraries, archives, educational institutions, or public noncommercial broadcasters, or for research or national security purposes. (Articles 20.67, 20.68)

Trademarks

In trademarks, statutory damages may be required for trademark counterfeiting (Article 20.82). Given the Canadian experience with statutory damages for copyright infringement this is a controversial move; according to Prof. David Vaver, statutory damages may encourage litigation of worthless claims and unfairly compensate rights holders, though on the other hand it may streamline the enforcement of rights protected by law.[1] However, because of the open-ended nature of the provisions, having a system of ‘additional’ (i.e. exemplary or pecuniary) damages instead of statutory ones may suffice (Article 20.82).

The border provisions in the CUSMA also include new procedures for detention of goods that are confusingly similar to registered trademark goods. Arguably the biggest change is the ability of border officials to detain goods in-transit, which, until now, . (Article 20.84)

Patents

Apart from affirming commitments to existing international treaties and trade agreements, the most significant change to patent law is how biologics (large molecules produced by living systems) are protected. Specifically, over a five-year transition period (Article 20.90), the term of market exclusivity will be increased to 10 years, from the current standard of eight (Article 20.49). Given that many novel therapeutic methods depend either directly (for treatment) or indirectly (e.g. for diagnosis) on biologics like antibodies, there are concerns about what even a two-year extension may mean for .

The second big change for patents is more administrative, in that it affects how applicants interact with the Canadian Intellectual Property Office. In particular, those seeking a patent will now be able to expect compensation for unreasonable delays in application processing. The caveat is that a delay can only be unreasonable if more than five years have passed since filing or three years have elapsed since a request for examination. Note also that ‘compensation’ is strictly defined to mean adjusting the lifetime of the patent according to the delay. (Article 20.44)

The ‘Hot Take’

Many commentators view the agreement as a capitulation to US IP demands. I won’t argue for or against that notion. When looking at the larger context of the deal, however, IP stands out as one of the few areas that has been substantively changed by the provisions of the CUSMA. One is left with the uncomfortable question – were American demands acquiesced to in order to appease US negotiators on the substance of the broader deal? On the face of it, that does not seem totally implausible. For Canada, the CUSMA but for opening our dairy market and changes to IP. Unlike the US, though, Canada does not have the luxury of a massive domestic economy to cushion the blow of a lapsing free-trade regime with its largest trading partner, so it’s hard not to see the appeal of taking the best deal we can (sweetened by Canada, and especially Ontario, ).

Regardless of what happened behind closed doors, I hope that the decision to accept these changes to the Canadian IP system was well-reasoned. The ground given on intellectual property will cost Canadian users, but may end up preventing greater damage that would be visited to the Canadian economy writ-large if NAFTA were to end with no replacement. In an international arena increasingly characterized by transactional relationships and realpolitik, such sacrifices may end up being inevitable. At the same time, we should be wary of the potential for IP to end up playing second-fiddle to other policy and economic considerations. There is a reason why other countries are willing to accept concessions on Canada’s IP law and policy in exchange for other, sometimes more tangible, benefits.

Written by Peter Werhun, IPilogue Editor and JD Candidate at Osgoode Hall Law School.

[1] David Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law, 2011) at 644-645.

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