While Osgoode’s Intellectual Property Law and Technology Intensive Program 10-week internship was such an amazing and rewarding experience, this was coupled by great presentations held throughout the first two weeks of the program. While I have taken basically every IP course that Osgoode has to offer, the presentations from speakers really enriched my knowledge of IP and helped me engage with legal research on a deeper level. These presentations also sparked my thinking for my paper topic, which was a great boon to starting legal research early.

Throughout the internship I had many opportunities to hone my legal research skills and was able to begin gain expertise in learning the ways in which policy analysis is created. While I was placed with the Marketplace Framework Policy Branch within ISED, I was able to attend meetings with other departments and ministries. I feel that the skills I gained from attending and participating in meetings will be crucial in how I interact with anyone within the legal field, and in life generally. Working with ministries with different mandates, and still being able to find common ground in order to achieve a policy goal was admirable and watching my team do so almost effortlessly made me realize just how amazing the team was, and how I should learn from their example.

When I look back on my experience, I would say that my favourite moments with the team – besides getting an email full of copyright memes every Friday from a senior policy analyst – were the weekly meetings with my team. Just being able to learn about and ponder how important copyright and trademark matters were being pursed was incredible and being able to contribute to these conversations helped me to instill further confidence in my ability to engage with such complex matters. While it is unfortunate that the intensive this year took place remotely due to Covid, and I was not able to spend time and immerse myself in Ottawa, I still felt that I was with the team, which was mostly due to them making such an effort to make me have as similar to an experience remotely as I would if I had been there. I think it was at the end of the internship where it really clicked how lucky I was to be with the ISED team, where they created an infographic highlighting my experience with them during the internship (I definitely did not have to hold back tears!).

To any prospective student at Osgoode who is interested in IP, I eagerly recommend that you apply for the internship. Even if you are unsure if you want to pursue IP in the future, the skills and experience that you can gain from this experience are more than worth spending a semester doing so. I do not believe that you have to have the sole burning passion of practicing IP to take greatly from the internship, as anyone could be able to hone their personal and legal skills in some capacity through this experience. I can honestly say that I wish the intensive was not just one semester, as I would have absolutely loved to continue working on files.

Once again, I would like to thank all of my supervisors and the team at ISED for an amazing semester - especially to Senior Policy Analyst Luc Laforest who was instrumental in my learnings. I would also like to thank Professor Giuseppina D’Agostino, Professor David Vaver, Assistant Director Olha Senyshyn and the rest of the IP Osgoode team for the opportunity.

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

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At a high level, a TPM can be thought of as a digital lock, as a means to control access or use of a copyrighted work, typically in the digital medium. Codified in Canadian law and located in the , there is a prohibition on the circumvention of “effective” TPMs, where a copyright holder may be entitled to remedies if the TPM is circumvented. What really sold me on TPMs was a conversation I had with a colleague on the federal court decision in Canada. Here, the federal court reasoned that the “physical shape and configuration” of the cartridges and game slots were enough to be considered an . While the case is essentially undefended, personally I find that the argument of the shape of the cartridge being “effective” against circumvention is not the most persuasive, as replicating the shape of a cartridge is not onerous and could be done at a low cost, mitigating effectiveness. However, the issue of piracy in the gaming industry is prevalent and tackling it through TPMs may be a reliable course of action, as these kinds of physical cartridges can house hundreds, if not thousands, of games subject to copyright protection.

TPM regimes are not exclusive to Canada, as many countries such as the USA, Switzerland, India, New Zealand, and Australia, all have some form of TPM circumvention protection in their laws as a result of being signatories to articles 11 of the WIPO Copyright Treaty and 18 of the WIPO Performances and Phonograms Treaty. These member countries found that to address the proliferation of illegal copying in the digital medium (at 32). Looking more to our neighbours in the south, and the way in which TPMs exemptions have been created, I feel as though the balance of rights has been generally skewed away from copyright users to copyright holders, in the US based on their comments regarding proposed TPM exemptions (at 189).

While I do believe that TPMs serve a real purpose as a means to protect legitimate copyright holders, TPM circumvention liability in the Copyright Act can occur regardless of whether the circumvention is for infringing and non-infringing acts. Saying this, I believe that one of the core issues in the current state of the law is that circumventing a TPM to perform non-infringing maintenance or repair is a prohibited act, as is getting third-party assistance to do so. Even if a party were legally allowed to repair, diagnose or repair a lawfully acquired system by themselves, if for whatever reason they are not able to do so, they would not be able to seek out third-party expert assistance in order to help circumvent the lock. In order to address these issues, there would be a need to be legislative changes, or regulatory changes through the use of section , which allows the Governor in Council to create additional exceptions where TPMs would not be infringed.

Concerns of international treaties would also need to be taken into account, as one only has to look to article 20.66 of CUSMA and see the new difficulty in creating new exemptions for TPM circumvention liability. , in order to create an additional exemption, you have to show that there is an adverse impact demonstrated by evidence, meaning that this is contingent on how strong the evidence would be. Additionally, while this is more of a political concern, there needs to be an appetite for TPM reform in the policy sector, and that if stakeholder pressure does not bring this issue to the table, the incentive for policy analysts to take the time and meaningfully engage with the issue would be slight.

All in all, although I agree with the general notion that TPMs help ensure that copyright users and rights holders interests are balanced, the current way that non-infringing acts and third-party assistance are dealt with in the Copyright Act is at odds with Canadian values. While there are some obstacles in allowing lawfully entitled owners – and third-party experts – of TPM protected systems to be allowed to circumvent for the purposes of repairing, diagnostics, and interoperability, it is possible to do so while also keeping Canada in line with its obligations under international obligations, namely WCT, WPPT, and CUSMA.

Written by Daniel Bartolomucci, JD Candidate 2021, submitted as part of course requirements for the 2020/2021 IP Law & Technology Intensive Program at Osgoode Hall Law School.

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Over the past few years, there have been several novel legal issues in the gaming industry. For example, in early 2018, there was a . The PUBG Corporation claimed that PUBG was the first game to introduce a “battle royale” mode, therefore considered to be the first true entry in the genre, while Fortnite copied the concept and infringed on the PUBG Corporation's work. The legal battle was settled privately, but what could the results have been if the parties decided not to settle?

Around the early 2010s, there came a point where - due to the increasing prevalence of mobile gaming - various “clone” games popped up whenever a popular title was released. When Dong Nguyen’s Flappy Bird was released on the Apple Store in 2013, it was the absolute craze for mobile gamers to get as high as a score as they could. Nguyen’s game inspired an explosion of similar games to flood the mobile digital market, with names just screaming copyright infringement, such as Maverick Bird, Fall Out Bird, and Flappy Doge.

Essentially, if a game “looks and feels” like that of a similar game, .[1] The look and feel test was adopted in , where there was such substantial similarity between the visual expressions of the two games that this was akin to literal copying. Similarly, a court can use the , which would divide a game into pieces to find which elements are ideas and which elements are expressions of the idea.[2] The , who created a similar game to PUBG called Rules of Survival. However this was again settled out of court. The case between Epic Games and the PUBG Corporation differs, as Rules of Survival looked much more like PUBG in terms of visual and mechanical expression than Fortnite does. The Fortnite position , as the claim looked to give a monopoly to Epic Games on the battle royale game mode, and if successful, may have opened the gate for more speculative claims to be brought forth.

Along with clone games, recent copyright litigation in the video game industry includes issues of dance choreography. Most notably, Alfonso Ribeiro claims that his performance of the “Carlton dance,” in the Fresh Prince of Bel-Air �����ٳ��dz�’s Will’s Christmas Show episode, was being infringed by Fortnite selling an “emote” called Fresh, which enables a player to dance in a way that is pretty similar to the Carlton dance. While initially rejected by the Copyright Office, if claims are re-filed, a court can make the determination to whether the Carlton dance is sufficiently developed to be found as a protectable choreographic work.[3]

All in all, I have taken great pleasure in exploring the novel legal issues currently emerging in the gaming sector. As someone who has been impacted by the industry in such a personal and meaningful way, I look forward to seeing how the industry grows and analyzing how the law adapts to these changes, hopefully in a way that encourages innovation while also protecting creators.

Written by Daniel Bartolomucci, a third year JD Candidate at Osgoode Hall Law School

[1] Peter Lee & Madhavi Sunder, "The Law of Look and Feel" (2017) 90:3 S Cal L Rev 529 at 540.

[2] Nicholas M Lampros, "Leveling Pains: Clone Gaming and the Changing Dynamics of an Industry" (2013) 28:Annual Review Issue BTLJ 743 at 766.

[3] Ross Bagley, "You Stole My Dance Moves: Copyright Lawsuits over Choreography against Creators of Fortnite" (2020) 30:1 Intellectual Property Litigation 2.

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