Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

In 2018, the Government of Canada to aid “Canadian businesses, creators, entrepreneurs and innovators” to “understand, protect and access IP”. The hope is to achieve this via IP awareness, education and advice, strategic IP tools for growth, and IP legislation.

ElevateIP

To further its IP strategy, the Government of Canada announced its intention in their 2022 budget to launch ElevateIP. consisted of the federal government pledging $90 million over 4 years starting in 2022-2023 to provide Canadian SMEs (small and medium-sized enterprises) with the tools needed to understand, manage, and leverage their IP and with access to professional IP services. Specifically, ElevateIP funding can support three different categories of activities including, and limited to, IP awareness, developing IP strategies, and implementing IP strategies. To be eligible for ElevateIP funding, applicants undertook a competitive application process where they were evaluated on their proposal’s capacity to achieve results and alignment with all three of ElevateIP’s program objectives. On December 19, 2022, the Parliamentary Secretary to the Minister of Tourism, on behalf of the Minister of Innovation, Science and Industry, announced of the ElevateIP funding.

Importance of ElevateIP

Many studies have shown how valuable intangible assets, including IP, are for a company. Along with more well-known advantages, such as the protection of creator ideas and brand reputation, intangible assets also have less-known benefits for companies. A Business Valuation Resources illustrated that having more intangible assets, such as IP, correlates with higher business valuations. Another EUIPO showed that companies with patents tend to grow more than companies without patents. However, studies have also shown that many Canadian start-ups are not capitalizing on their company’s potential due to a lack of IP. This is reflected in a study by the World Intellectual Property Organization that showed that in 2019, by the number of IP rights filed. Additionally, by the Canadian Intellectual Property Office from 2019 showed that only two percent of small and medium Canadian enterprises owned a patent. Thus, the overall goal of ElevateIP is to help Canadian SMEs overcome their lack of IP.

While some Intellectual Property experts hope that this program will increase the commercialization of IP for Canadian companies, others, including the president and chair of the Intellectual Property Institute of Canada, that ElevateIP’s goal of helping companies create an IP strategy will not necessarily result in more IP filings. This is mainly due to the federal government’s focus on educating companies about IP rights and not enough incentivization for companies to acquire IP rights. Perhaps ElevateIP is an important first, but not final, step in the federal government’s plan to increase IP among Canadian companies.

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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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Although the Trudeau government focused much of its attention in the recent federal budget with the continuing fight against the COVID-19 pandemic, buried deep in the document were promises to tackle data and intellectual property (IP) issues which it says will be key as a digital economy becomes the norm for many.

With more and more of people’s lives happening online — and the pandemic forcing individuals to move their workstations from gleaming towers to cozy home offices — the federal government is saying a digital economy that serves and protects Canadian business is vital for long-term growth, but Canadians must be able to trust that their data is protected and being used responsibly.

To that end, the federal Liberals are promising to create an office of data commissioner aimed at informing government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace.

Pina D’Agostino, founder and director of the Intellectual Property Law and Technology Program at Osgoode Hall Law School (IP Osgoode), said appointing a data commissioner is “basically signalling the importance of data as a new currency.”

“Ownership and governance issues of data are not privacy issues, so it would be beyond the mandate of a privacy commissioner,” she said. “The signal is that it’s not just about privacy that matters, there are other social implications — what they speak about in artificial intelligence is that data can tend to privilege certain demographic groups in society, so we want to ensure that doesn’t happen and someone like a data commissioner would be mindful of that.”

Marc Yu, a privacy and data management lawyer with Edmonton’s Field Law, said the concept of a data commissioner is “interesting” for Canada.

“It is a fairly short description in the budget as to what the data commissioner is intended to do, so it is likely there will be further details once the commissioner’s office is developed in the future and becomes operational,” he said. “I would think one of the data commissioner’s roles would be to streamline information sharing amongst the public sector, so amongst the federal agencies and federal departments we would have a clearer process in terms of how data might be shared between these different agencies and departments to help them further their objectives and functions in this digital environment, while also maintaining the personal privacy of individuals to whom this information belongs.”

In addition to creating a data commissioner’s office the budget also contains several direct investments in intellectual property, building on the national intellectual property strategy announced in the government’s 2018 fiscal plan. Ottawa is promising to establish ElevateIP, a program to help accelerators and incubators provide startups with access to expert intellectual property services, and allow companies to expense the cost of some investments in digital and IP assets.

These initiatives would be complemented by a strategic intellectual property program review, which would be a broad assessment of intellectual property provisions in Canada’s innovation and science programming, from basic research to near-commercial projects.

D’Agostino said the funding is welcome because the costs associated with many intellectual property matters, such as filing patents, are very high. And she noted a setting up a review “really speaks to the issues which we have seen in the IP system.”

“It is not useful to have siloed approach — we have a Patent Act, a Copyright Act and a Trademark Act that don’t speak to one another and at the same time develop polices in isolation,” she said. “We need to look at all of them and how they benefit innovation and science generally because they all work together, and ensuring there is no siloing and how the laws and the programs we have can really benefit research commercialization and ultimately innovation for Canada.”

More information on the federal budget can be found .

If you have any information, story ideas or news tips for please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

Ian Burns is a Digital Reporter for The Lawyer's Daily.

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On April 19, 2021, the Government of Canada announced its����(Budget 2021) with goals to finish the fight against COVID-19, ensure a strong economic recovery, and position Canada for a prosperous future. To accomplish its objectives, the government has����for proposed expenditures in the areas of intellectual property (IP) and technology.

Budget 2021 will build on the National Intellectual Property Strategy of Budget 2018 by funding Canadian innovators, start-ups, and technology-intensive businesses. This includes providing $75 million for the National Research Council’s Industrial Research Assistance Program to assist high-growth client firms with obtaining access to IP services.

Budget 2021 also proposes to use $90 million to establish the ElevateIP program, which will help accelerators and incubators provide IP services to start-up companies. These direct investments are complemented by the launching of a Strategic Intellectual Property Program Review to conduct a broad assessment of IP provisions in Canada’s innovation and science programming, including both basic research and near-commercial projects.

Alongside its general IP investment plan, the Government of Canada has allocated funding to various technology initiatives in Budget 2021, such as proposing:

• $5 billion over seven years towards the adoption of clean technology through the Net Zero Accelerator program;
• $500 million over five years, starting in 2021-2022, and $100 million per year ongoing, to expand the National Research Council’s Industrial Research Assistance Program, which is poised to give up to 2,500 innovative small and medium-sized firms expertise and capital to scale up their businesses;
• $443.8 million over ten years for the Pan-Canadian Artificial Intelligence Strategy to support research and innovation in the artificial intelligence sector;
• $360 million over seven years to launch a National Quantum Strategy that will assist researchers studying quantum technology and establish a secretariat at the Department of Innovation, Science and Economic Development to coordinate efforts in this space;
• $90 million over five years for the National Research Council to modernize the Canadian Photonics Fabrication Centre;
• $400 million over six years to launch a Pan-Canadian Genomics Strategy to develop therapeutics and create jobs in the field, including allocating $136.7 million for Genome Canada to deliver mission-driven programming directed at starting the initiative; and
• $2.2 billion over seven years towards Canada’s life science sector, including allocating resources to support Canadian firms through the Strategic Innovation Fund and creating a Clinical Trials Fund to assist in the research and development of treatments in the health field, including the pharmaceutical sector.

Written by M. Imtiaz Karamat, Osgoode Alumni and Student-at-Law at Deeth Williams Wall LLP.

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