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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law.

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Introduction

In to Drs. Emmanuelle Charpentier and Jennifer A. Doudna for “the development of a method for genome editing” otherwise known as CRISPR gene editing.

CRISPR’s discovery was a revolutionary breakthrough that has the potential to . CRISPR has been widely discussed within the scientific community for years for both its scientific and .

But in late February 2022, CRISPR entered the news for an entirely different reason. After a decade-long dispute, the United States that Drs. Charpentier and Doudna were not the rightful owners of the CRISPR-Cas9 patent, concluding that the gene editing technology belonged to Dr. Feng Zheng and his team of scientists at the Broad Institute of MIT and Harvard.

What is CRISPR?

CRISPR is an acronym for “” and Cas9 is short for “CRISPR-associated protein 9”. CRISPR are specialized repeats of genetic information (i.e., DNA). . The protein that is added to the DNA ; however, it is the protein that is most often used by scientists when employing this technique. In essence, the finding a “bad” piece of DNA, removing that bad piece, and then correcting the DNA sequence by inserting a new gene.

The Patent Dispute History

Drs. Charpentier and Doudna from the University of California-Berkeley (“UCB”) showed the genius of the CRISPR editing method in their paper in 2012, specifically on gene-editing in test tubes. Dr. Zhang and his group at the Broad Institute of MIT and Harvard also published in in 2013, showing the promise of CRISPR/Cas9 in humans.

Following the scientists’ publications, the United States transitioned from a first to invent patent system to a first inventor to file system, . This is relevant as all patent disputes between the scientists revolved around the issue of who invented CRISPR, and, more specifically, who was able to prove CRISPR’s application in humans, first.

In 2014, the United States Patent and Trademark Office (“USPTO”) granted U.S. Patent to Dr. Zhang and his group at the Broad Institute of MIT and Harvard. There were two interferences at the PTAB, in 2015 and 2019, both triggered by the UCB through and For the first interference, the that there was no interference because of the invention’s (i.e., eukaryotic human cells versus non-human cells in a test tube). For the second interference, UCB requested that the PTAB reverse the prior first instance decision and conclude that successful experiments in human cells is not necessary to successfully obtain the patent.

The PTAB’s Decision

Following the scientists’ oral arguments on February 4, 2022, the that Dr. Zheng and his team at the Broad Institute of MIT and Harvard were the rightful owners of the patent. UCB was unable to prove that their invention was applicable in human cells prior to the Broad Institute’s invention in 2013.

Conclusion

The battle may not be over. Drs. Charpentier and Doudna, along with the University of California Berkley, have the option to appeal to the U.S. Court of Appeals Federal Circuit. In a , the University of California Berkley said it was to challenge the PTAB decision, making an appeal even more likely. In addition to UCB, Dr. Zheng and his colleagues at the Broad Institute of MIT and Harvard are also embroiled in

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Background

In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the , the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.��

In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.

Balancing the Public Interest

The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while through Federal statute (the Copyright Act). In so doing, they relied on , where the court described copyright laws as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. The group also stressed the importance of technological neutrality and referenced . In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.

Text and Data Mining��

The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.

The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from . The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.

The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.

Authorship and Ownership of Works Generated by AI

One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI , , here, and ). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.

Final Recommendations

In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.

Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.

Public consultations are touted as one of the . Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law. This article was originally written as part of the IPilogue’s annual Year in Review but has instead been published as a standalone article.

2021 was a transformational year for Canadian privacy legislation. Following the changes made to the , several provinces amended their privacy legislation to protect their constituents’ interests. The private sector may be less welcoming to changes in many provinces which expose companies to . On the flip side, these proposed legislative changes will strengthen the privacy of Canadians in their everyday lives.

Provincial Legislative Changes

Quebec’s Bill 64 Passes Royal Assent��

The most significant development in privacy legislation is Quebec’s , An Act to modernize legislative provisions as regards the protection of personal information, which received royal assent on September 22, 2021. This legislation is significant because of its effects on the private sector. Starting September 2022, private sector organizations must inform the privacy regulator following any breach to compromised personal information that presents a “serious risk of injury” to affected individuals. To determine if there was a serious risk of injury to affected individuals, the province turns to the factors outlined in the “real risk of serious harm” section of the Federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). As , the gradual implementation of Bill 64 allows organizations the opportunity to update their processes and procedures to ensure compliance before September 2022. The Quebec legislation also takes inspiration from the European Union's General Data Protection Regulation (“G�ٱʸ�”), which has been touted as the “” privacy regime because of its strict privacy standards and its partiality towards consumers.

The omnibus bill included such as changes to company websites, assignment of a Privacy Officer, completion of Privacy Impact Assessments, and requirements for consent, individual rights, and automated decision making. To date, the analysis of the legislation compares the provisions to the European GDPR.

Companies operating in Quebec are now required to publish their company privacy policies on their websites. Such privacy policies must describe how companies plan to use personal information.

In the event of privacy infringements that violate individuals’ private information, individuals will now have recourse through administrative monetary penalties, penal offenses, and private rights of action.

Finally, similarly to the GDPR, Quebec introduced consent requirements for collecting personal information, including express consent before using sensitive information and parental consent for minors under the age of 14.��

Ontario Welcomes Consultations and Proposes Changes

Under the leadership of Patricia Kosseim, the Office of the Privacy Commissioner pursued their goal of passing an equivalent piece of legislation in 2021. In response to an op-ed piece that argued against provincial legislation in fear of redundancy and duplication, Kosseim recently regarding the potential for new provincial legislation to “fill in the gaps” of what Federal privacy legislation cannot accomplish.

In keeping with Kosseim’s motivation to strengthen privacy laws in Ontario, the Government of Ontario released a along with calls for consultation in June 2021. The White Paper, titled “Modernizing Privacy in Ontario,” set out several proposals the Ministry is considering to strengthen privacy protection for Ontarians. To strengthen such protections, the Ministry has proposed making privacy a fundamental right in Ontario. Ontario has also included suggestions to protect youth privacy online, regulate automated decision-making, and require more informed consent and data transparency from private corporations.

The Ministry allowed the public to provide comments and feedback until August 2021. The Office of the Privacy Commissioner applauded the provincial government for taking a “” with its proposal.

BC’s PIPA Committee Releases their Final Report

The British Columbia Legislative Assembly also created a special committee to review the British Columbia (“PIPA BC”) in February 2020. The objective of this committee was to publish a report proposing amendments to PIPA BC, which the committee completed in December of 2021. In the , the committee suggested aligning PIPA BC with PIPEDA and Europe’s GDPR. Like the recently passed Quebec legislation, the committee also suggested mandatory breach notifications if a breach surpasses the “real risk of significant harm” threshold as established in PIPEDA. The committee also recommended broadening the definition of personal information to address the potential issue of de-identification. Finally, the committee proposed that the Office of the Information Privacy Commissioner have greater enforcement powers.

Federal Legislative Changes

The Federal Office of the Privacy Commissioner (“���ʰ�”) did not introduce any new legislation in 2021. The Office was engaged in issues surrounding as well privacy issues resulting from the COVID-19 pandemic, including privacy with respect to and the rise in reliance on video teleconferencing platforms like Zoom and Microsoft Teams. The Canadian OPC, along with privacy authorities in Australia, Gibraltar, Hong Kong SAR, China, Switzerland, and the United Kingdom, to the videoconferencing companies regarding their rapid expansion during the pandemic to query and confirm that these technology companies were using appropriate privacy safeguards. The letter led to a series of video calls between the signatories and representatives from the companies. Finally, the signatories and suggestions to improve privacy going forward. Among the suggestions were the implementation of end-to-end encryption, the identification of secondary use data (as well as an opt-out system), and the option for users to choose where their data is stored.

Conclusion

New and amended privacy legislation continues to develop in Canada and worldwide.��Follow the IPilogue and subscribe to our newsletter, the IPIGRAM, for any important legislative changes that emerge in 2022.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

In May 2021, a phenomenal by Keir Strickland-Murphy (Osgoode Law ‘22) touched on the recent boom of Non- fungible Tokens. In this piece, I will recapitulate Strickland- Murphy’s exploration of IP ownership of Non-fungible Tokens and expand on recent developments since May.

What are non-fungible tokens?

Non-Fungible tokens (“NFTs”) are unique digital assets that as a certificate of authenticity for an object, be it physical or virtual. Blockchain acts as a ledger to secure these assets. Blockchains are often relied upon for their security, so much so that certain universities have begun through them. As described in their name, NFTs have unique properties and are not interchangeable. As such, any digital asset can be tokenized through the “minting process”, much like a refrigerator, car, or computer is given a serial number. Unique identification is a valuable tool for the many and auction houses that have started using the blockchain to sell or . The sale of an NFT also includes a smart contract.

Strickland-Murphy noted that and were early adopters of the NFT craze. Since then, public fascination has only grown since then, with celebrities like Jimmy Fallon and Emily Ratajkowski jumping on board. In May 2021, Emily Ratajkowski sold an NFT called “. The NFT came in the form of a digital-only photograph featuring the model. Ratajkowski explained the impetus for its creation in her essay “Buying Myself Back”, where she shares that the photo she shared on Instagram had been hanging in the Gagosian as part of Richard Prince’s “New Portraits” art show. Prince had been putting other people’s photos from Instagram on canvas and re-selling them for $90,000. Given this situation, Ratajkowski’s NFT auction was, as Ratajkowski explains it, an opportunity to reclaim ownership over her photo.

Recent celebrity obsession with the Bored Ape NFTs has further fueled the NFT buzz. A bundle of 101 Bored Ape Yacht Club NFTs recently . The funky cartoon images have caught the attention of . The interest in Bored Ape is almost palpable as the release of the Yacht Club NFTs can be connected to nearly a in the sale of the NFT Ethereum.

If an image is attached to an NFT, does that mean I own the copyright for that image?

Where an NFT buyer has purchased an image, they do not necessarily receive the copyright associated with that image. If we refer to the computer serial number example, just because you own one version of a computer does not mean you own the patent for the underlying software in the computer. In this case, the software would still belong to the software engineers that invented it. Similarly, if you purchase a painting, you do not assume the copyright over that painting once you have purchased it.

In Canada, an is necessary to transfer copyright from an artist to a purchaser. Therefore, the purchaser of an NFT will only receive the underlying copyright when the smart contract accompanying the NFT expresses this. Of course, unless waived by the artist, the moral rights associated with the artistic work remain with the artist. ensure the integrity of the work, and, when reasonable, the artist’s right to association with their work by name or pseudonym.

What about copyright infringement?

The images associated with NFTs have caused some confusion. An NFT seller must hold a copyright in the image associated with the NFT they are selling. To “mint” an image as an NFT, it is crucial that a seller holds the copyright or a license. However, as long as the seller is the copyright holder, several NFTs can be associated with the same image. In short, NFT sellers can sell as many NFT’s associated with a particular image as they wish, so long as they hold the copyright to that image. If they do not own the copyright to an image, they cannot tokenize it into an NFT and lawfully sell it.

Although NFT’s are a relatively recent addition to the investment scene, numerous lawsuits involving their associated copyrights have already emerged. Rapper Jay-Z Damon Dash, co-founder and shareholder of his record label RAF Inc., for attempting to mint one of his music albums, Reasonable Doubt, as an NFT. The court held that Dash does not own a copyright to the album simply by being a minority shareholder in the record label that owns it. As such, he cannot, in the court’s words,.

Quentin Tarantino is at an impasse with his efforts to profit off the booming NFT industry. Tarantino is embroiled in a legal dispute with the film production company Miramax after announcing that he would be auctioning off excerpts of his original Pulp Fiction screenplay, which he touts include “secrets” about his creative process. that Tarantino does not own the rights to the screenplay and, therefore, selling these secrets through an NFT would constitute copyright infringement.

Old Laws Protect New Trends

Despite the law’s reputation as conservative and , in the case of NFTs, old copyright laws have proven to be tremendously practical. Although the world of blockchain is exciting, it is at this junction that potential NFT sellers should take a moment of pause amongst the excitement to contemplate the legal implications of selling NFTs with legally protected works. When infringing a copyrightable work through the minting process, one must balance the cost of copyright infringement versus the value of the NFT itself.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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The Rise of Traditional Face Tattoos in Popular Culture��

In September 2021, Indigenous model and activist Quannah Chasinghorse wearing a gold cut-out gown by Peter Dundas and traditional Navajo turquoise jewelry. She was also recognized for her traditional Hän Gwich’in face tattoos, featured prominently on her chin and extending out from the corners of her eyes. Chasinghorse stated that the hand-poked lines, called Yidįįłtoo, . Her presence was a watershed moment for Indigenous representation at the Met Gala.

However, this moment was quickly met with disappointment after stepped out on the red carpet a month later for the world premiere of her new movie Eternals. In addition to her dress by Balmain, Jolie was adorned with a “” which has since caused some turmoil amongst Indigenous peoples. Amongst others, Inuk throat singer Tanya Tagaq was quick to note the similarities between Jolie’s chin cuff and (traditional Inuit tattoos), much like the one Chasinghorse is now known for. Tagaq noted, “”

These events point to two prevalent issues within the current legal framework: First, that current intellectual property laws do not properly acknowledge collective ownership over shared culture within Indigenous communities and second, whether tattoo designs have the potential to be protected through copyright laws.

Other Examples of Indigenous Cultural Appropriation in Canada

In 2009, the Hudson’s Bay Company (HBC) mass-produced sweaters as part of their official merchandise for the 2010 Vancouver Olympics. Much like the case of Jolie,, as the Cowichan Tribes of Vancouver Island alleged the sweater designs had been appropriated from one of their traditional designs. The Cowichan filed a lawsuit against the HBC, and that the handcrafted authentic sweaters would be sold exclusively in the downtown Vancouver First Nations Pavilion and the Bay's flagship store during the Olympics. In 2015, the Cowichan Tribes were faced with the issue yet again when Ralph Lauren launched their own line of Cowichan sweaters. Charles Seymour, Chief of Cowichan Tribes, stated that . They appear to have come to an undisclosed agreement with Ralph Lauren changing the name of their sweater to . The Cowichan could have had a stronger claim against Ralph Lauren, given that they had already turned their minds to protecting their intellectual property through trademark law. In 1995, the Cowichan Band Council with the Canadian Intellectual Property Office to register the word “Cowichan”. .

Collective Ownership Over Cultural Artwork

Canadian courts have not yet grappled with the issue of collective ownership of Indigenous artwork. The Federal Court of Australia explored this notion in . The applicant, Indigenous artist John Bulun Bulun, sought relief for copyright infringement of a bark painting, which R & T Textiles had used on t-shirts. The painting breathed life into a traditional story that the Bulun community has been passed down for generations. R & T Textiles admitted they infringed Bulun Bulun’s work but pleaded ignorance and pulled the shirts from their shelves. The court was tasked with determining whether the painting’s copyright belonged solely to John Bulun Bulun, or if the community collectively owned the copyright given that the ancestral teaching was shared amongst the community. The court was mostly silent on the issue of collective ownership, recognizing Bulun Bulun as the legal title holder. However, the court concluded the situation gave rise to unique fiduciary obligations that Bulun Bulun owed to his community.

The World Intellectual Property Organization also acknowledged collective ownership as a potential method to protect Indigenous knowledge. In a 1999 , a proposed solution was to identify a community Elder who recorded the knowledge to prove the source of ownership and then assign the intellectual property right in the name of the community. The paper noted that this solution would be particularly helpful in situations where oral history is the most identifiable source of ownership.

Current State of the Law on Tattoo Designs

It is likely that tattoos would fall under the under section 5(1), which delineates artistic works as expressions through visual medium. Tattoos are arguably expressions through visual medium. Of note, in., the Federal Court ruled that legal protection of works is not restricted based on the medium in which it is presented.

Canada has never ruled on an issue of copyright ownership over tattoos; however, Canadian courts may look internationally to assist them in determining how or if they should be protected. In 2009, the Belgian Court of Appeal was tasked with deciding whether a tattoo could be granted ownership under Belgian copyright law in . The court ruled that the tattoo artist did in fact own the copyright in his tattoo design; however, he was limited by the personality rights of the person he tattooed. Notably, Belgian copyright law includes a , which includes the right to control your image. The Canadian does not include such a provision (but Canada does have the common law tort of '). The United States has also ruled on the issue. In , Inc., a tattoo artist sued Take-Two, a video game producer, for copying tattoos the artist had inked on a World Wrestling Entertainment (WWE) wrestler. However, the wrestler had licensed their likeness to WWE, who in turn licensed it to Take-Two. The court held that the tattoo artist holds valid copyrights for the tattoos, and that there is no implied license from the tattoo artist to use their tattoos as part of the bearer’s likeness.

Going Forward

The concept of collective intellectual property rights as a means of protecting cultural artwork and stories is in its infancy, but should be explored. If traditional Inuit tattoos are ever used for commercial gain in Canada, a particular Inuit community could seek relief from the Federal Court. It is presently unclear if the court would recognize collective ownership over copyright.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law.

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What happened?����

Kelly Knievel, the son of infamous motorcycle stuntman Evel Knievel, brought a trademark infringement action against Walt Disney Studios Motion Pictures for their character “Duke Caboom” featured in Toy Story 4. Knievel sued through�� Inc., which owns the intellectual property rights of the former daredevil. K&K alleged that Disney’s “Duke Caboom'' character was confusingly similar to Evel Knievel and pointed to several elements of the character, specifically his stunts, jumpsuit, and commercials. Knievel described the Caboom character as a “” of Evel Knievel. K&K took particular issue with the Toy Story 4 Duke Caboom action figure given its resemblance to the Evel Knievel Stunt Cycle toy that was released in 1973. feature a stuntman costumed in a white and red jumpsuit. ��

What were K&K’s��claims?����

K&K Promotions Inc. sued��the��Disney��company��under the��Lanham Act for false endorsement/false description, trade dress infringement, and trademark dilution. Outside the scope of the Lanham Act, K&K Promotions Inc. sued Walt Disney Studios Motion Pictures under Nevada common-law for trademark infringement, unfair competition, unjust enrichment, and a claim for right of publicity.����

What did the court decide?����

Judge James C. Mahan of the U.S. District Court of Nevada ruled in��favour��of Disney. Justice Mahan applied the two-part test from the U.S.��case����to assist in his decision. The��test requires that the defendant’s use of the plaintiff’s trademark is artistically relevant to the underlying work. Notably, the threshold for this is “very low” and the artistic relevance “merely must be above zero”. The test also requires that the alleged use explicitly misleads consumers about the source or content of the work. The use of a trademark is not enough to prove consumer confusion. ��

For the first part of the test, the judge asserted that the Duke Caboom character was highly relevant and integral to the storyline. Duke Caboom’s storyline had continued from the original storyline to the most recent iteration (Toy Story 4). For this reason, Justice Mahan believed that Duke Caboom had substantial artistic relevance to the Toy Story franchise and was not merely a “”, as K&K Promotions Inc. had suggested.��

For the second part of the test, Justice Mahan concluded that K&K Promotions Inc.�� enough evidence that Disney tried to confuse consumers into thinking the famous stuntman was associated with, or endorsed, Toy Story 4.����that the film character has a different name and clothing, is Canadian rather than American, has a mustache, and has a different hair��colour��and style��than��Knievel. Justice Mahan also ruled��that��the animated toy��is sufficiently transformative,��. ����

What would have happened if the same case was decided in Canada?����

Although��Toy Story 4’s animators were clearly inspired by the 70s style motorist, Duke Caboom’s nod to the era did not meet the threshold as set out by U.S. courts. In Canada, similar remedies are available to notable figures whose likeness has been stolen for commercial purposes. K&K Promotions Inc. would likely have made similar arguments in Canada as they did in the U.S., making claims through the torts of passing off and ����

In Canada, the use of a famous individual's personality for personal gain without authorization may amount to the tort of “”. The tort is often analyzed in three parts: the plaintiff’s personality is exploited for a commercial purpose, the personality is clearly captured so they are identifiable, and an endorsement by the plaintiff is suggested. In 1973, the Ontario Court of Appeal created a new tort, the appropriation of personality, in . In��Krouse, a Canadian football player sued Chrysler for using his personality for commercial purposes. Chrysler had used a photograph of the football player in an advertisement without his permission. The court held that the tort of passing off did not apply to Krouse’s claim as he was not engaging in the same business as Chrysler. In this case, a tort of passing off likely would have been a more appropriate cause of action for Knievel, especially since both organizations are selling similar action figures. ��

In Canada, three requirements must be met for a successful passing off claim; . The tort��was��expanded��upon in����Similar to the second part of the��Rogers v. Grimaldi��test in the United States, the tort requires��that��the defendant’s product or business��is��seen as “”.��

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law.

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Online privacy is, without a doubt, an area of growing concern. As technology takes a greater presence in our lives, lawmakers are right to turn their minds to its potential deleterious effects. However, with the new Liberal government proposal, and law students alike are left wondering if the Canadian Online Harms proposal will do more harm than good.

What is the online harms proposal?

In July 2021, the Canadian government released its plans for addressing online harms. The proposal was presented in two parts: outlining the government’s intent to regulate social media platforms, and a outlining details of the proposed law. The objective of the proposal is to reduce harmful content online. The government has a narrow focus, targeting content related to 1) child sexual exploitation, 2) terrorism, 3) hate speech, 4) non-consensual sharing of intimate images, and 5) content that incites violence. This proposal is consistent with the government’s previous content regulation efforts, such as and the proposed legislative changes to the . Canada is not the only government paving the path towards a more tolerant online community. In fact, the European Commission launched their own “” in May 2016.

How does the proposed legislation target online harm?

The proposed legislation requires online platforms to proactively monitor all user speech and evaluate its potential for harm within the five categories of regulated harmful content outlined above. Additionally, any person in Canada may flag content as harmful and online platforms . If successful, the legislation would require online��communication services like Facebook and Twitter to report content falling within the five categories of regulated harmful content to law enforcement.

The proposal bestows additional responsibilities upon the Digital Safety Commissioner, a . These responsibilities include the power to hold hearings on any complaint made to it, any detected non-compliance, or any matter within its jurisdiction under the Act, especially if the Commissioner believes it would be within the public interest. The language within the Act is worrisome, stating that the Digital Safety Commissioner may also conduct inspections of online platforms at any time, either on routine or ad hoc basis “” Ultimately, the language delineating the Commissioner’s responsibilities is unclear, creating concerns that the not-yet-appointed Commissioner may have unfettered power over online communication services.

The legislation also proposes penalties for non-compliance. The proposed monetary penalties are astonishingly high; online communication services could face fines of up to if they do not comply with the new rules. Companies like Facebook and Twitter may also foot the bill to recover the costs of such a proposal (e.g., the cost of a new Commission and Digital Safety Commissioner), as the legislation grants the Digital Safety Commissioner the power to implement as part of the cost to monitor online harm.

How would successful implementation of the proposal negatively impact privacy rights?

In essence, the Canadian Online Harms proposal gives rise to increased surveillance powers to the state.

The first issue surrounding the proposal is with respect to the increased surveillance associated with passing any rules outlined in the proposal. The requirement to monitor all user speech online is alarming, given the government’s proposal evades any potential restrictions on monitoring. Many argue that such a proposal could allow the government to increase their surveillance powers, and representatives at the go so far as to call this aspect of the proposal “”. Emily Laidlaw, the Canada Research Chair in Cybersecurity Law at the University of Calgary, . Laidlaw stated, “You’re essentially saying that a private body needs to actively monitor and surveil all of the different communications on its platform.”

Additionally, the proposal encourages the use of machine learning to identify harmful content, stating that “” The Canadian government recently had issues with their use of machine learning technology and facial recognition software, as discussed in .

Looking forward

Given the increasing use of online platforms, the Government of Canada is justified in their efforts to curb online harm. However, a certain skepticism towards government efforts is reasonable, especially in the wake of controversy. Although their efforts to curb online harms are noble, the government must also consider any harms that their efforts may have on Canadians’ privacy.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Olivia Rodrigo rose to stardom this year when her song Drivers License dominated pop music charts across the world. However, Rodrigo’s subsequent album Sour has recently been circulating the news cycle for less sweet reasons. Rodrigo has come under fire for copyright theft and plagiarism for her songs Deja Vu and Good 4 U.

What happened?

Rodrigo’s highly anticipated debut album, Sour, was released in the wake of the success of Drivers License. Music fans quickly noted the similarities between Rodrigo’s songs and already popularized songs including . Despite the similarities, some are arguing it’s questionable if Rodrigo committed copyright theft. Good 4 U has a similar melody and chord progressions with Paramore’s Misery Business, but besides the angsty punk undertones many generations of teens have come to love, many contend the songs are not all that similar.

What is copyright and copyright infringement?

Copyright is the or perform a musical work. Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. In essence, copyright infringement is plagiarism. In Canada, courts will determine whether a body of work has been infringed upon using the . Copyright protections are granted as soon as a work is created, so long as it meets the conditions set out in the Act.

What are music royalties? Why did Rodrigo pay them?

Music royalties are payments received by songwriters, music composers, and publishers . Essentially, artists pay royalties to copyright holders in exchange for using part of their work. Like them or not, the music industry heavily depends on royalties and many artists rely on them as a primary form of income. The growing popularity of music streaming platforms like Spotify, , further cements their importance.

This royalty debacle has been costly for Rodrigo. Hayley Williams and Joshua Farro were given writing credits on Good 4 U and Swift, Antonoff, and Clark will also receive writing credits and on Deja Vu. These moves will likely cost Rodrigo millions of dollars in publishing royalties. When weighing the costs of paying royalties versus lengthy litigation against fellow hitmakers in court, Rodrigo and her team likely felt it was most cost-beneficial to simply pay the royalties.

Are artists abusing copyright?

Artists are becoming increasingly concerned about outlandish copyright claims in the wake of the 2013 case involving the estate of Marvin Gaye and the trio behind Blurred Lines, Robin Thicke, Pharrell Williams, and Clifford Harris Jr. (T.I.). The trio alleged that the Gaye estate staked an ownership claim of not a song or an album, but rather an entire genre of music. Thicke and Williams were found guilty of copyright infringement and were ordered to pay This amount was , in addition to half of all future royalties from Blurred Lines.

Although caselaw is rife with examples of major royalty deals ordered to artists, not all cases end with million-dollar payouts. Katy Perry was successful in her appeal against rapper Flame for her song Dark Horse, which Flame asserted plagiarized his song, Joyful Noise. Specifically, the case centered around an eight-note “ostinato.” The judge ruled that the ostinato . Perry’s lawyer praised the ruling and proudly stated, “building blocks cannot be monopolized.”

The controversy has only further advanced the argument that outrageous music copyright lawsuits are going to lead to stagnation in the music industry. Some record labels are going so far as to hire on-call musicologists who can review new releases for potential copyright claims. Artists signed with major record labels are also encouraged to sign “Errors and Omissions” insurance, which protects them from legal challenges to their intellectual property. Errors and Omissions policies . Shockingly, copyright litigation in the United States . Along with its high costs, the fear of copyright litigation risks preventing less established, albeit talented, musicians from climbing the charts without the support of a major record label.

Although new to the hit music scene, Olivia Rodrigo has not only offered music lovers catchy pop anthems, but has also advanced the conversation surrounding copyright theft in the music industry. While some believe Rodrigo is guilty of plagiarism, others feel she is a victim of the corollary impacts of the growing popularity of streaming services and increasingly outrageous copyright infringement suits. The latter camp can only hope that the courts will become more stringent in future suits to prevent music monopolies.

The post "God, it’s brutal out here!" Unpacking Olivia Rodrigo’s million-dollar royalty payouts appeared first on IPOsgoode.

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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen's University Faculty of Law.

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Artificial intelligence (AI) is everywhere. It influences the ways we socialize, work, and carry out our daily lives. Some even say we are in the . But while AI is creating new opportunities and innovations, the law has yet to catch up.

The latest decision from the United States, , comes off the heels of recent judgements in and asking if AI can be considered the inventor in patent law. This question has sparked widespread and within the legal community as legal frameworks struggle to adjust to AI. While South Africa and Australia answered in the affirmative, finding that AI passes the inventor test, the U.S. District Court for the Eastern District of Virginia disagrees.

These decisions can be traced back to a professor at the University of Surrey, Dr. Ryan Abbott. To advocate for AI to be granted inventorship rights, Abbott spearheaded the . Here, he filed patents for inventions generated by Dr. Stephen Thaler’s “DABUS”, an AI machine that was quite literally invented to invent. South Africa and Australia are just two of seventeen jurisdictions where Abbott and Thaler filed these patents in the hopes of granting inventorship rights for DABUS.

U.S. Rules Against AI as an Inventor

The United States Patent and Trademark Office (USPTO) originally denied Thaler & Abbot’s patent application in 2019, a decision which Thaler and Abbott described as “” The ruling was made on the basis that “no natural person is identified as an inventor.” USPTO supported this finding by citing cases like (“M����-�ʱ����Գ���”) and (“Beech Aircraft”) where the Federal Circuit concluded that inventors could only be natural persons.

In the recent 2021 decision, Justice Leonie Brinkema found that the issue of whether AI can be an inventor turns on the plain meaning of the statutory term “individual.” This term is referenced explicitly in the U.S. and appears in the ’s definition of “inventor” to mean: “the individual, or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.”

The U.S. Supreme Court previously conducted a statutory construction analysis of the term “individual” in (“M�dz󲹳����”). They ultimately concluded that the ordinary meaning of “individual” referred to a “natural person.” While Congress may intend a different meaning of the term, there must be at least “some indication” of their doing so. Although Mohamad interpreted Congress’ use of the term “individual” in the Torture Victim Protection Act, Justice Brinkema found that the Supreme Court’s analysis remains applicable as the Patent Act does not define the term individual and similarly uses the term as a noun. Therefore, she concluded that since AI is not a natural person, nor normally referred to as an individual, it cannot be an inventor under the Patent Act.

Justice Brinkema also referenced Max-Planck and Beech Aircraft to support her conclusion: “... the unequivocal statements from the Federal Circuit that “inventors must be natural persons” and “only natural persons can be inventors” support the plain meaning of “individual” in the Patent Act as referring only to a natural person and not to an artificial intelligence machine.”

Finally, Justice Brinkema rejected the notion that the court should be the arena to “encourage innovation” and “promote disclosure of information and commercialization of new technologies” through granting patents for AI-generated inventions. Such policy considerations do not override a statute’s plain language. Rather, incentives to create more artificial intelligence machines and other policy matters are problems for Congress to address.

The Future of AI as an Inventor

Abbott is at the and in the . In a comment for , he noted that “this decision would prohibit protection for AI-generated inventions and it diverges from the findings of the Federal Court of Australia.” Specifically, the found that while only a human or other legal person may be an “owner,” it is a fallacy to argue from this that an inventor may only be a human. In defining inventor, Justice Beach found that the court cannot merely resort to “old millennium usages of [the word inventor]” and must recognize the “evolving nature of patentable inventions and their creators.” As such, he found it possible that AI could be an inventor.

As AI grows more ubiquitous, governments will have to intervene and create new legislation that explicitly considers AI and other novel technologies. Otherwise, as noted by Justice Brinkema, courts may be left to make these decisions without proper authority.

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