Stakeholders from all of the above-mentioned groups and more gathered at the in Indonesia, October 22-25, 2013, to discuss all manner of issues related to including online surveillance, privacy, big data, online child protection, youth perspectives, cybersecurity and cybercrime, freedom of expression, ?and?access to information, human rights in context of the Internet, jurisdictional conflicts and harmonization, international development, and of course, intellectual property (relating mostly to copyright and domain names). First convened by the United Nations in 2006, the IGF is the world's largest and highest-profile conference wholly dedicated to the betterment of the Internet and its continued governance and preservation. With no binding goals, negotiations, or decision , the ostensibly affair provides a platform for otherwise-rare direct dialogue between multiple cross-sections of society and mass cross-pollination of ideas, general principles, and best practices, which can be taken back by members to be used in their own decision-making processes.

This year, the Indonesian government¡ªwhose national population includes over 63 million Internet users¡ªhosted approximately 2000 delegates from 111 countries, who explored this year's across 135 workshops, focus sessions, open forums, roundtables, and panels (with more participating remotely and millions checking in on Twitter). Organizers made a concerted effort to integrate into the sessions more tangible policy outcomes that participants could take away with them, as well as attention to initiatives. Meanwhile, ¡° ¡± and ¡°¡± constituted an underlying all discussions, while ¡°¡± and ¡°¡± infused electric static into the air.

As providing complete coverage of all news, events, discussions, and ideas that emerged during the week-long IGF within one post would be impossible, this article will restrict itself to highlighting certain issues directly encompassed by intellectual property law, particularly those explored in a titled, ¡°¡±.

1. Square Laws in Round Processes: Has Copyright Policy Gone Awry With Respect To Technological Reality?

This question challenges the notion that current and trending copyright legal frameworks are at all suitable for the way Internet infrastructures and associated technologies work today, suggesting increasing misalignment between laws designed in a more analog world and technological processes where copying is strictly incidental to otherwise legitimate use of the work. Glenn Deen of NBCUniversal asserted that technology should be ¡°policy-neutral¡±, as in developed without any particular policy favoured or hindered by or coded into the technology itself. In other words, copyright policies should be created such that they fit the technology, rather than the other way around. Other panellists agreed but maintained this is currently not the case¡ªtechnology has not been made policy-neutral, and through phenomena such as institutional capture of standards fora, it has in fact been designed to promote and enforce certain policies (examples of this are technological protection measures (TPM) and digital rights management (DRM) systems). , argues , takes the Internet for granted and distorts its basic architecture, such as by turning neutral online intermediaries into unofficial law enforcement entities with respect to user behaviour.

2. The Librarians Strike Back: This Isn't the Copying You're Looking For

of the made a compelling case for copyright law to pay closer attention to the kind of copying involved in different situations. Sharing others' concerns over unbalanced copyright frameworks, she explained how in a library research access context provides a clear illustration of copyright laws not fitting an Internet environment. According to Broad, text and data mining is one of several ¡°productive, non-harmful uses¡± that operated freely outside the realm of copyright in a print environment, but are now captured by copyright frameworks purely through the incidental copying that occurs as part of Internet-enabled technological processes today. She compared licensing text and data mining, in essence the extraction of information, to ¡°placing a toll on the information highway¡±.

While Article 5.1 of the exempts "[t]emporary acts of reproduction...which are transient or incidental [and] an integral and essential part of a technological process,¡± in transmitting content between computers, this is a narrow exception that will not encompass all cases that require protection, such as text and data mining. Furthermore, as Broad points out, such a framework presumes infringement unless proven otherwise; one must make an exception rather than find the use not infringing at all to begin with.

Lastly, e-books and their associated licensing regimes present ¡°a huge challenge¡± in terms of access for consumers, academics, public libraries, and the visually impaired, among other user groups. With respect to the visually impaired, users must overcome obstacles by acquiring a right to remove from the content (recently enshrined in the universally lauded , the first-ever agreement to limit rather than expand copyright), and by possessing the technical ability to actually remove the TPM and access the content through assistive devices. In these respects, some at the IGF spoke of licensing regimes ¡°defeating the purposes of the Internet¡±, particularly in the context of , where public libraries can play a valuable role in providing access to information.

3. Say It to Belie It: The Language of Limits and Exceptions in Copyright Law

One current problem that IGF 2013 participants identified with current copyright law is its unbalanced nature: in many jurisdictions and on an international level, rather than balancing copyright against user/access rights as if the latter were of equal weight, laws provide for overarching copyright with specific exceptions that are explicitly carved out. The starting point of the law is not one where the limits and exceptions hold the same weight as copyright; this is reinforced by their being referred to precisely as ¡°limits¡± and ¡°exceptions¡± to an otherwise default backdrop of established copyright. Speakers suggested instituting a new international norm that would conceptually elevate rights of access and other ¡°limits¡± or ¡°exceptions¡± to the same level as copyright in order to better protect them, as seen in the Marrakesh Treaty. As asserted, ¡°We often talk about copyright substantive rights...and having carve-outs for limitations and exceptions.... [W]e should dispatch with that language and think about them as equal partners balancing each other.¡±

4. Meanwhile at WIPO: Additional Issues & Initiatives

Initiatives and ideas beyond those outlined above were featured in IGF 2013 presentations. These included - according to WIPO legal officer Paolo Lanteri - the ; a WIPO study on and a WIPO-compatible, world-standardized licence (to be released within the next few weeks). Regarding the latter, Ari Gema of Creative Commons Indonesia pointed out the need to educate the general population on the concept of copyright before introducing the Creative Commons license, hinting at cultural and regional differences in the significance and relevance of copyright, and the potential implications for corresponding law, regulation, and policy.

Lest the Marrakesh Treaty be a one-time in terms of internationally-accepted limitations to copyright, the IFLA is working on a , to establish ¡°a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials¡±.

Lastly, in keeping with the spirit of IGF, a panel titled, "" that "multistakeholderism" was the preferred approach to formulating internet copyright policy and frameworks going forward, despite drawbacks such as being potentially inefficient, time-consuming, or inconclusive.

5. Say ÄãºÃ?to §ñ§Ù§í§Ü.?????(aka Internationalized Domain Names)!

In a palpable boost to principles of multilingual access and globalization of the Internet, CEO Fadi Chehad¨¦ revealed at the IGF 2013 opening ceremony, to rousing applause, that Arabic, Russian, and Chinese i were delegated to the Internet root for the first time. This means that one can now register websites ending in ¡°dot [insert Arabic, Cyrillic, or Chinese characters here]¡±, resulting in expanded online accessibility for those who use technology¡ªincluding keyboards¡ªexclusively in one of the three languages added. This will likely have an impact on trademark law in different parts of the world, in the context of branding and domain names, although trademark as managed by the (TMCH) currently provide for ASCII (English and Latin) characters alone.

Logging Out

As mentioned above, this was but a peephole into the ongoings of IGF 2013. Even live, it could only be experienced in self-tailored slices given how much was going on at any given moment. For those who are interested in learning more, are available on the IGF website and further comments and insights abound on the Twitter backchannel, not to mention the multitude of papers, articles, blog posts, updates, and analyses written throughout and in response to the forum. If we care about preserving, protecting, and bettering the Internet as we know it, the least we can do is start by getting to know it.

Cynthia Khoo is a JD Candidate at the University of Victoria. She is currently completing an exchange semester at the National University of Singapore, Faculty of Law.?

The post When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013 appeared first on IPOsgoode.

By most if not all - ()()(), the Court showed little sympathy for Bowman's position, appearing prepared to uphold in favour of Monsanto and patent rights-holders. While one could not contradict the Court on applying current law, there seemed to be an unacknowledged tension running through the hearing, between applying the law as it is and questioning what it ought to be in the face of unprecedented situations in patent law and related intellectual property issues.

I. Prologue: ¡°Two parties, unalike in privity...¡±

Enter the facts. Monsanto sells certain types of soybean (and other) seeds with a patented gene that makes them resistant to Roundup, a Monsanto herbicide. Farmers who buy seeds from Monsanto must sign a contract binding them to using the seeds only once; they cannot plant seeds descended from the bought seeds. However, Monsanto allows farmers to sell, under no special conditions, descendant seeds to grain elevator mixtures. Bowman bought and planted such a mixture and harvested seeds from the plants that survived Roundup spraying, which indicated they were resistant.

The central issue of the case is whether or not Bowman planting descendants of the original seeds he bought constitutes patent exhaustion. Does Monsanto's patent reside only in the first generation of seeds sold to farmers, or does it reside in all seeds with the Roundup-resistant gene, including those grown into existence after sale?

II. Submission for Monsanto: ¡°Justice! the law! my dockets, and my patents!¡±

Monsanto argues that if withers with the first sale of seeds alone, then the patent would quickly cease to have effect as all buyers could easily grow their own seeds from saved ones every year, instead of having to buy more from Monsanto. This, Monsanto contends, would ¡°devastate innovation in biotechnology¡±. According to Monsanto, patent exhaustion does not include a right for the buyer to make unlimited copies of the sold item. Intervenors such as the added that patent exhaustion does not apply at all, as the new seeds are ¡°new articles of manufacture¡±.

At the hearing, the justices raised challenges such as whether a Monsanto-favouring decision would have ¡°the capacity to make infringers out of everybody¡±, due to the fact that Monsanto holds a near-total monopoly over soybean seeds, and due to events such as patented seeds into the fields of other farmers. The latter issue is particularly in light of .

III. Submission for Bowman: ¡°Fare you well; your suit is cold.¡±

According to Bowman, Monsanto's first sale of the seeds exhausts the patent, and that's all there is to it; the buyer may do anything they like with the item after that. In perhaps a patent version of the thin-skull rule (obvious foreseeability notwithstanding), Bowman's argument implies that it's simply unfortunate Monsanto's patent happens to reside in something that is self-replicating and thus patent-undermining ; that is the liability one assumes with living organisms. Both Bowman and Monsanto claim that the other is asking the Court to carve out an exception in their favour.

Counsel for Bowman received a , with the justices actively putting him on the defensive regarding issues such as: the potential destruction of Monsanto's and similar patents flowing from a decision for Bowman; the inadequacy of contracts to replace patent protection; farmers' rights (or lack thereof) to exploit the self-replicating nature of seeds to go around Monsanto's patent; how frequent a practice it is for farmers to use grain elevator seeds for crops (and thus how severely an adverse decision would impact them); and whether or not counsel was mischaracterizing Monsanto's claim.

IV. Epilogue: ¡°The course of true law never did run smooth.¡±

As mentioned, this case has the potential to set off trajectories in IP law far beyond what farmers may do with soybean seeds, and perhaps calls for more than straightforward application of existing law. First, the tellingly acted as intervenor for Monsanto, fearing a decision for Bowman could set a precedent applicable to and copyright. Multiple parties strengthened this nexus by citing ?(about making disk copies in a jurisdiction abroad),?and some have extended this connection to include cell lines and DNA used in medical research, not to mention .

Second, Monsanto argued that ¡°size has never been thought to affect the contour of patent rights¡±. With anti-competition concerns such as and , however, the Court might consider whether size should, in fact, matter. Urgency arises in view of the fact that 93 percent of American-farmed soybeans (along with nearly 90 percent of both cotton and corn) were genetically engineered in 2010, according to a by , intervenor for Bowman.

Third, the justices consistently challenged Bowman on the idea that biotechnology patents should be exhausted on first sale in the case of ?. Justice Ginsburg asked, ¡°Where is that in the law?¡± The problem here is that with the biotechnology in question, self-replication is the biology, not the technology; Monsanto did not invent photosynthesis. Current patent law as the Court seems poised to interpret it, however, treats the seeds and buyers as if Monsanto did.

Justice Ginsburg is correct in that Bowman's position is not in the law¡ªand perhaps it . We can only hope that after having ?the various high stakes involved, the Court will hand down a decision that more fully speaks to the of whether or not, and how, it ought to be.

Cynthia Khoo is a JD Candidate at the University of Victoria.

The post Bowman v. Monsanto and Patent Exhaustion: To Be, or Ought to Be? appeared first on IPOsgoode.

Background: ¡°Google France checked in at Bermuda¡±

The ?is the latest volley in an between France and internet behemoths such as and . Essentially, it has become common practice for these companies to operate with expenses (such as labour) concentrated in high-tax countries in the European Union, such as France and the UK, while routing most of their revenues through ¡°tax havens¡± such as , the , and Bermuda, thereby avoiding an estimated average of 500 million euros per year in corporate tax, in France alone. The data-mining tax is one of several proposed solutions, following an attempted and controversial .

The Rationale: ¡°User added a new job at Facebook, Google, Amazon, and Apple¡±

The rationale behind the tax recommendation, elaborated upon in Forbes by one of the , is as follows: Data plays such an that it may now be considered the ¡°raw material¡± of the digital economy. Users provide what may soon be literally lifetimes of data in various forms online, whether collected through behaviour-tracking cookies, submitted through tweets and searches, or inferred through analytics. This allows online companies and applications to laser-target users through features and ads, monetizing the collated data. Thus, users themselves provide data that feeds back into the supply-production-distribution-consumption chain, and according to the report's authors, this turns users into employees whose unpaid labour of providing data produces value for these companies. This user-created value is unaccounted for, and should be taxed.

Implementation: ¡°Facebook added 1 billion friends. Auditor poked Facebook.¡±

Since international tax law currently fails to account for the geography-heedless nature of user data-based business models, the data-mining tax (which the French government has yet to endorse), is meant as a step towards the report's proposed . The tax would apply to both international and domestic businesses that regularly and systematically monitor online user behaviours of those in France. Tax rates would depend on various factors: how many users are tracked, the type of data collected, ethical issues, and level of respect for user privacy and control, among others.

Analysis: ¡°@User tweets about #Privacy #ConflictofInterest #Competition and #PublicUtilities¡±

The idea of taxing data-mining immediately brings a number of issues to mind, the first of which is suggestively indicated by other names for the proposal: some call it a or a ¡°¡± policy. It may be problematic to create monetary incentives for corporations to respect user privacy, as it essentially commoditizes privacy (or the lack thereof) and may erode higher ideals of respecting privacy for its own sake; perhaps those who warrant the term ¡°predator¡± should not be made to pay, but should restrain from undue preying altogether. From a practical perspective, the act itself of auditing companies' practices may involve questionably invasive technological practices, such as .

Second, tying government revenue to companies' privacy practices the way this tax would (where less user control means the government levies higher taxes) creates a potential conflict of interest, if the government is supposed to have citizens' best privacy interests at heart. Moreover, since the data belongs to the user, the labour model underlying the report's recommendation raises the thought that perhaps users themselves should be paid for it.

Third, the data-mining proposal prompts interesting connections between . As demonstrated by cases against , (), and , such companies walk a fine line between maintaining a healthy monopoly and engaging in anti-competitive practices. Incentivizing better privacy policies through taxes may put a damper on the endless reach for data to sell to advertisers, while creating room for smaller competitors who more effectively prioritize user privacy and control.

Fourth, turning data-mining into a source of taxation evokes questions about the role of privately owned technological platforms in the public sphere. Whether with or , such websites at times seem to approach the of . The problem is that regardless of sociological status, economically and structurally these companies are wholly private. This unique yet rising combination means that attempts to regulate the driving business model warrant particularly careful scrutiny, and perhaps a conversation about what such sites' status ought to be.

Finally, it bears remembering, first, that the companies in question are offering free services whose on a voluntary basis (though see the public utility debate linked above). Second, whether or not data-mining becomes taxable, Google, Facebook, et al. already and will continue to monitor and benefit from users' data regardless. One could then argue that the public may as well take advantage of that fact, in this case via taxation. As the old adage goes, after all, you are what you tweet.

Cynthia Khoo is a JD Candidate at the University of Victoria.

*Term coined for this post, based on the notion that the collected ¡°property¡± is intangible (unlike real or personal property), yet not necessarily created or thought up (unlike intellectual property), but simply gleaned from users' data trails as they go about their daily lives on the internet.

The post Mining the Digital Gold Rush: The Legal (L)ore around France's Data-Mining Tax appeared first on IPOsgoode.

(Sun) Salutations: Yoga from Which People, Again?

Though litigation around ?seems to have settled into Savasana (¡°corpse pose¡±) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram¡¯s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the ? yoga community, fought under the Hindu American Foundation's (HAF) banner of ¡°¡±. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to unilaterally that yoga ¡°is a gift to all mankind, and thus beyond claims of ownership and copyright¡±. The and ? to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of , including , assisted by the territorial nature of intellectual property laws. The cases of , , and all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms ¡°¡±, so to speak¡ªhence the and ? to assist ?¡ªthis is far from a stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of and in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a citing (full disclosure: a professor at the University of Victoria), includes ¡°folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.¡± What is critical, however, is ¡°the integration of these features into a cultural system¡±. Appropriation is not just unauthorized taking, but taking in part through the , as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or ¡°progress of science and useful arts¡±-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. speaking, provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The , for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that terminology for an oxymoronic initiative that sterilizes rather than preserves and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an , with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in : part of the problem may be the relegating of all traditional knowledge and related concepts to the category of ¡°cultural¡± to begin with, making such claims ¡°disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.¡± However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.

The post Pride and Property: IP Law, Traditional Knowledge, and Cultural Heritage appeared first on IPOsgoode.

Living up to its tough-on-tar?, the Australian government passed the??(TPPA) in December 2011, a result of not finding pre-existing measures as effective as desired in lowering smoking rates. By December 1, 2012, all cigarette packaging in the country will be identical in unembellished, legislated size, shape, and colour (the???). An equally unsightly health warning will cover three-quarters of the front panel, while additional warnings and a quitting hotline claim 90 per cent of the sides and back. Brand, company, and associated names, the only distinguishing feature allowed, will shed their unique typographies for a?, no bigger than point-size 14,??makeover.

Lighting Up: The Constitutional Challenge

Needless to say, the tobacco industry got rather??over the new law. JT International (JTI) and three arms of British American Tobacco (BAT), supported by brethren tobacco-purveying intervenors,??that the?TPPA?mandates amounted to ¡°acquisition of property?from [them] otherwise than on just terms¡±.??of the Constitution provided grounds for the challenge: as it grants Parliament power to acquire property ¡°on just terms¡±, courts interpret the provision to mean citizens may challenge any acquisition on terms less than or other than just.

More specifically, the tobacco companies accused the government of unjustly acquiring their intellectual property, in the form of trade-marks, patents,?, literary and artistic works, registered design, trade dress, and goodwill associated with all of the above. The High Court thus faced two issues:

1. Does intellectual property such as trade-marks and goodwill constitute ¡°property¡± under s. 51(xxxi) of the Constitution?
2. If yes, did the Australian government, via?TPPA?provisions, in fact acquire said property, on other than just terms?

Where There's Smoke, There's Not Necessarily Fire: The Decision

In a decision more multihued than the products in question (comprising five shades of concurrence and one contrasting dissent), the court affirmed that (1) the plaintiffs' intellectual property as described above does constitute ¡°property¡± under s. 51(xxxi), but (2) the government did not acquire said property, under s. 51(xxxi), by enacting the?TPPA. The following will present the court's reasons taken all together.

I. Putting the property in intellectual property

First, the court agreed that intellectual property constitutes ¡°property¡± under s. 51(xxxi), and is able to make claim to just terms of acquisition. One opinion suggested uncertainty about goodwill because it already operates under restraints from the common law, unlike statutory intellectual property rights.

II. Taking from the rich...

The court also decided that the government's enactment of?TPPA?amounted to ¡°taking¡± of property. The provisions of the Act, for all intents and purposes, deprived the companies' trade-marks, copyrights, patents, and registered designs of all value and use. One opinion rejected the companies' argument that they were deprived of the ¡°substance¡± or ¡°reality¡± of their property rights, indicating that they could still use brand names, which was the essential part of trade-mark ¡°for purposes of distinguishing¡±. On the way to the final decision, however, another judge noted the words of Justice Brandeis from the U.S. Supreme Court: ¡°restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking.¡±

III. ...But not acquired by the poor (or government)

What Parliament takes, Parliament does not necessarily acquire; this is the key to the court's reasoning in?JT International SA.?The majority of judges found that that while a ¡°taking¡± occurred, the?TPPA, even if it ¡°adversely affects or terminates a pre-existing [property] right¡±, did not amount to the Australian government's ¡°acquisition¡± of a proprietary interest in a way that engaged s. 51(xxxi). The tobacco companies retained ownership of the intellectual property rights themselves.

The court went on to reason that the ability to control use of the plaintiffs' trade-marks did not constitute a proprietary interest, as the government ¡°accrued no benefit of a proprietary nature¡±. Essentially, controlling is not the same as owning, nor is it the same as proprietary interest no matter how liberally interpreted. Continuing in this vein, the court deemed the?TPPA?regulatory rather than proprietary; it was merely an extension of what legislation already allowed Parliament to do with respect to mandating health warnings on tobacco products.

The court rejected the plaintiffs' argument that proprietary benefit resided in: saved costs of additional advertising, fulfillment of?, and the potential of Quitline gaining goodwill. Even if considered advantages, they were not proprietary and would only further the purpose of the legislation.

IV. Stepping Out: The Dissent

Heydon J's dissent held that acquisition under s. 51(xxx) only required ¡°some identifable and measurable countervailing benefit or advantage¡± and that the government acquired such by not compensating the tobacco companies for their restricted rights. He stated that the?TPPA?¡°deprives the proprietors of their statutory and common law intellectual property rights and their rights to use the surfaces of their own chattels. It gives new, related rights to the Commonwealth [which control the surfaces of said chattels].¡± The dissent also raised a floodgates concern, in that the majority decision could allow government to apply similar limits to other products or for other legislative objectives in the public interest.

One Last Puff: Analysis

Potentially problematic aspects of the court's decision include (some might argue): the emphasis on the form of intellectual property rights as opposed to the substance (i.e. the distinction between having a right in theory and being able to exercise it in practice); the ethics of allowing a business to register trade-marks and accepting fees for such, then restricting use of those trade-marks; and potential cognitive dissonance in the law of applying such measures to what is, at the end of the day, a legal activity.

The implications of this case are widespread and enormous. Debates abound over the extent of the?,?????; whether it will induce growth of the?; whether a??is what people think it is; whether the floodgates have opened to plain packaging of food and?; and whether this??international World Trade Organization (WTO)?, just to name a few.

Closer to home, Canada has addressed??in??and?, and the United States recently closed off such a possibility in?.?However, all three decisions rested on freedom of expression grounds, and Canadian law does not include constitutional protection of property.?Meanwhile, the United Kingdom, New Zealand, and??have been??to consider Australia a test case for their own initiatives. Whether or not the?TPPA?was a single unlucky strike upon the multinational industry remains to be seen.

Cynthia Khoo is a JD Candidate at the University of Victoria.

The post Artwork to Ashes, Brands to Dust: Australia's Tobacco Plain Packaging Act Held Constitutionally Valid appeared first on IPOsgoode.

In a controversial September?, Head of the Presidential Secretariat Dr. Robert Luncheon confirmed actions that??violated not only the Guyanese government's own law in the form of a??that extended the United Kingdom's??to Guyana, but also Caribbean law (CARICOM'S?) and international law (?and the?).

While retailers in Guyanese cities have long sold pirated works in the open, many considered it quite another thing for official government action to involve trading in pirated material. The government cited its inability to afford the original textbooks, with President Donald Ramotar having??the United Nations to review copyright legislation for ¡°posing difficulty on developing countries and [...] hindering universal education¡± [sic]. The government??that pirated textbooks would cost $3 as opposed to $10 each, and that purchasing originals at full price would result in only??of required textbooks per classroom, rather than one set for each of the public school system's 250,000 students to access.

Unimpressed with this economic shortcut, the British Publishers' Association (BPA) successfully filed for an injunction at the Guyanese High Court in late September, despite meetings between Guyanese ministry officials and members of the British High Commission. The BPA, a lobbying body of over one hundred top publishers such as Macmillan, Random House, Nelson Thornes, Oxford University Press, and Cambridge University Press, reported a lack of response to their complaints on the part of then-Education Minister Shaik Baksh and claimed that they had always been willing to enter reasonable negotiations for lowered textbook prices. Under the injunction, Guyana stayed the would-be GUY$119 million photocopying deal while retailers stopped selling pirated books.

With both parties having now decided to play nice, the Guyanese government will pay GUY$170 million for??from the publishers themselves, at a 50% discount from Macmillan and 60% discount from Nelson Thorne (originally 20% and 30% respectively, in early negotiations with less senior personnel).

This case is fascinating for how it struck right at the scented sticker heart of much copyright controversy, the nature of which was once described as ¡°¡±.

On the one hand, it seems intuitively wrong that access to a good basic education be kept out of the hands of??purely due to their country's economic circumstances, circularly making it even harder for said countries to rise above such circumstances. A??issue is potentially at stake. From this perspective, copyright may be construed as a??or??gatekeeper, considering Guyana's history and the source of its 1966 Copyright Order. More elaborate examples are available regarding??and??(although this case does feature works that are not Guyanese but British, created in the UK under their own, native copyright laws).

On another hand (as far as copyright is concerned, a more appropriate figure of speech might assume a creature with more than just two limbs), it seems equally intuitively correct that??of a work should be??for use of their work, with the compensation proportionate to ubiquity of use, reflecting the high quality or particularly beneficial nature of the work and presumably the effort put into producing it. From this one arrives at the??notion of copyright as a?-driven incentive to create, in the name of ¡°¡±.

The question this case seems to provoke is: at what point does the existence of copyright stop promoting progress and start hindering it??One could argue that this is tautological, as authors may not have written textbooks to begin with were it not for copyright. At the same time, it's true that many copyright laws were written among and for specific technological, economic, behavioural, social, and global contexts, many of which may no longer be the??.Considering the copious perspectives on?copyright and its?, this is one problem for which the solution will likely not be found in the back of a child's textbook.

Cynthia Khoo is a JD Candidate at the University of Victoria.?

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At least, that's how ICANN may feel in the wake of last week's ¡°¡± panel at the??meeting in Toronto.

First, some background: ICANN is the?, an international non-profit responsible for the world's top level domains (TLDs). A TLD is the suffix of a website domain name: it's the ¡°.com¡± in?, or the ¡°.ca¡± in?, or the??¡°¡± in adult websites. For a more complete overview of ICANN and ICANN 45, see?.

Returning to the topic at hand: if the entire Internet were a single city,??would be the equivalent of urban planning and traffic policy. There are annual municipal council meetings in the form of the UN's??(IGF), whose seventh annual meeting takes place this November in Baku, Azerbaijan. The panel in Toronto thus offered stakeholders a crucial opportunity to share regional developments, raise key issues, and exchange views in preparation for the IGF and additional conferences (see:?,,?). Given discursive sheers, a topiarist might prune four themes from the discussion that unfolded: regional IGFs, the role of governments, multi-stakeholder models and ¡°Enhanced Cooperation¡±, and the role of international telecommunications regulations.

To begin, lest anyone think this is a case of one IGF to rule them all, the panel exchanged updates with representatives from the first?, first?,?first?,,?,?,?,?, and?. Issues included: need for infrastructure enhancement, legislative facilitation of internet and communications technology, telecommunications tasks, bottom-up community initiatives, public?,??and trust on the Internet,?,?, and a desire to see concrete results from IGFs. Speakers reiterated the need to ensure ideas and concerns flow from national, to regional, to international levels, in a way that results in understanding, good decisions, and infomed policies.

Such decisions and policies often come from government, so it's no surprise that??formed another theme.??of ICANN's Country Code Names Supporting Organization (), which specifically steward country code TLDs (ccTLDs)¡ªthink??and .ca¡ªoccupy a unique role in this context. They have close working relationships with their respective governments but must remain sensitive to the surrounding policy environment. According to CIRA president and CEO Byron Holland, this sometimes sparks tension with their on-the-ground work overseeing the??and operating ¡°the blinking lights and routers¡±.

While according to ICANN veteran?,?said blinking lights and routers are filling increasing space in high-level government portfolios,?a fine line typically exists between participation and??when it comes to government. ICANN's????does not change this. With the Internet Governance landscape undergoing?upheaval and?, however, all involved have placed particular emphasis on hearing equally from all voices, all sectors, and all levels of civil society, while mitigating excess?. Still, as some have?, such an endeavour is?.

This brings us to the nebulous concept of ¡°¡±. The ¡°creative ambiguity¡±-infused term has engendered??since its 2005??debut, from minimally impoving status quo to striking a special?. The panel made clear, however, the undesirability of a single comprehensive body for Internet Governance, which could undermine the multi-stakeholder philosophy and prove too close to government-like or intergovernmental Internet regulation for comfort.

This is why many have??with the International Telecommunication Union () and its upcoming World Conference on International Communications () in Dubai. Founded as the International Telegraph Union in 1865, the ITU has since evolved with the times and appears intent on continuing the trend. To what extent is a question that will be answered at WCIT, which will see the International Telecommunications Regulations () updated for the first time since 1988.

While panellists appeared wary of potential ITU encroachment upon Internet processes, AT&T's??reminded participants that ITRs nevertheless serve an important purpose, and that what circumstances ultimately necessitate is that ICANN maintain a clear position of distinguishing between internet governance, broader internet policy, and traditional telecommunications regulation. Still,??that the ITU will attempt to ¡°¡±. The ITU??this notion; others suggest fears are??if not, and problematic if one looks at it from a??.

At the end of the day, a reminder by ICANN board member??would seem to be an appropriate conclusion, in light of yet more???: ICANN has developed Internet Governance on a basis of building tangible structures and processes to solve specific problems, and stakeholders should keep this in mind during the Internet Governance equivalent of ¡°theological discussions¡±. After all, no matter how much planning goes into a good hedge maze, there always remains the possibility of unexpected dead ends revealed on the ground.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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The EU plans to leverage the??across??into a golden ¡°digital single market¡± economy, including a GDP boost of 957 billion euros and 3.8 million jobs by 2020. The report addresses outstanding concerns, clarifies policy and regulatory aspects of the strategy, and sets key actions to assert Europe's future as a ¡°world cloud computing powerhouse¡±. Whether one??or?, those in technology, regulatory, and business law would do well to prepare for likely squalls ahead.

First, the strategy involves ¡°cutting through the jungle of standards¡±¡ªa 27-nation-jungle with all manner of cloud-inhibiting flora, including differing legal frameworks, inconsistent criteria, uncertain jurisdiction, and lack of clear standards. The EC plans to respond with an overarching regime in which cloud providers may obtain certification to reassure clients that they meet set standards of, e.g., interoperability, data portability, and security, and adhere to all relevant laws. Here, problems may arise where ideal cloud standards like seamless transborder accessibility clash with existing legal standards such as transborder data flow restrictions.

Second, there are jurisdictional landscapes abroad to contend with. Conflict of laws figures large in a cloud computing future. Europe will have to collaborate with other countries on issues such as law enforcement, cybercrime,?, and competition; and vice versa.?Take Canada, for instance.??first established transjurisdictional enforcement: one province's court may enforce and recognize judgement from another province if there is a ¡°real and substantial connection between the wrongdoing and the jurisdiction¡±.??extended this test to foreign jurisdictions, which??applied to enforce a New 91ÑÇÉ« copyright decision against an Ontario movie-downloading website. Imagine the complications if, for example, a Vancouver start-up using a Melbourne cloud provider with servers in Berlin were found to have violated () German privacy laws. (Conversely,??confirmed that the Privacy Commissioner of Canada has jurisdiction over foreign businesses or websites if there is a real and substantial connection to Canada and the subject matter is within the office's purview.)

Despite??having brought Canada's privacy laws?, further??with the United States may put Canada's privileged position at risk, with the EC laser-focused on building certainty and trust in cloud computing. The EU zone is well known for its???of the?,?though some have deemed these fears??in light of?.?This becomes especially significant now that EU??will no longer arise piecemeal from general?, but from uniformly enforced?.

Third, the EC seems to place much faith in the power of contracts to assuage worries. Emphasizing ¡°safe and fair contract terms and conditions¡± as a key goal, the report proposes to create a model contract of standard terms and conditions that certification-seeking cloud businesses can emulate, addressing conditions such as data access, stewardship, control, usage, portability, liability, disclosure, preservation, and reversibility; service upgrades,, and continuity; and termination of services.?Many of these terms, according to the report, are currently missing from typical ¡°take it or leave it¡± cloud service contracts (known as?), making for one-sided bargains.

Considering the stakes (another key goal is aggressively driving??in the form of?services), these contracts are bound to undergo intense scrutiny and sprout new jurisprudence before anything may be considered ¡°standard¡±. Combined with conflicts of law and potential tort liability (if, for example, cloud computing became such an integral part of civil society that cloud providers were found to owe some form of fiduciary duty), suffice it to say that private law's future in the clouds looks bright.

Of course, there is always the possibility that cloud computing will lead to nothing particularly new in law. In fact,?, Vice President Public Policy of the Software & Information Industry Association, believes that ¡°there is no need for special privacy, security, intellectual property or consumer protection rules that apply just to cloud computing. Generalized rules, indeed, globally interoperable rules, are best suited to the global, borderless nature of cloud computing.¡± Most available legal tools needed to achieve such a state of affairs, however, are currently neither globally interoperable nor borderless. Regardless, one thing is?certain: if the EC gets its way, it won't be too long before users across Europe find themselves living on cloud 9.0.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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