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

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

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

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

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

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

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Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

The parts of my law school journey I have most enjoyed have been the opportunities for hands-on learning such as Osgoode’s IP Innovation Clinic and mooting experiences. The IP and Technology Intensive stood out to me as a unique opportunity for additional hands-on learning. I am pleased to share that my placement at Indigenous Services Canada (ISC) was a valuable learning opportunity which has made a lasting impact on my career trajectory.

Truthfully before I learned I would be completing my placement at ISC I did not know much about the organization. However, I was immediately intrigued upon learning about ISC’s mission:

Indigenous Services Canada (ISC) works collaboratively with partners to improve access to high quality services for First Nations, Inuit and MĂ©tis. Our vision is to support and empower Indigenous peoples to independently deliver services and address the socio-economic conditions in their communities.

I was excited to see what the ISC’s work is like, given their distinct and obsolete mission. This extraordinary mandate resonated deeply with me and my interest in social justice, however it was not immediately obvious that type of work I might expect to do or witness at ISC.

My placement was on the Innovation Team, under the Partnerships and Innovation Directorate in the Evaluation and Policy Redesign Branch. The , mandates ISC to take an innovative approach to policies and programs with aim of implementing a gradual transfer of services to Indigenous organizations. To this effect, the Partnerships and Innovation Directorate oversees a variety of different projects, including a strategic partnership fund, a results-based innovation network, international collaboration arrangements, efforts to eliminate anti-Indigenous racism, and a variety of other projects with specific Indigenous communities.

While my internship experience was virtual, team members from different regions throughout Canada made me feel welcome. I was invited to join team meetings where I was able to become well acquainted with the team’s ongoing projects. In addition, I was also invited to meet with ISC staff outside of the Directorate, staff in other government departments, and partners at Indigenous organizations. I also received plenty of support as I carried out research on data governance and intellectual property. Though I started my placement with little knowledge about ISC and the services they deliver, I was able to gain a broad understanding of the various projects the team is engaged in and found myself learning a great deal about the complexities of government work in particular as it relates to the delivery of services for Indigenous communities. Although I completed my placement remotely, I felt like a valued member of the team. Everyone at ISC was very generous with their time and willing to help me.

My placement gave me an opportunity to gain exposure to a unique government work setting and a direct look at how policy is enacted to advance department goals. Much of my law school courses have been focused on the theoretical underpinnings of law and how it is developed and interpreted in the courts. Though policy considerations are certainly present in the legal curriculum, we rarely consider what happens to policies as they are enacted and refined over time. This is precisely what I had a chance to witness at ISC. As Canada strives to advance reconciliation with Indigenous communities, departments like ISC have the tall order to delivery critical services and build (or re-build) relationships with Indigenous Peoples in Canada with a view toward transfer of services.

I had an amazing time during my placement with the Innovation Team at Indigenous Services Canada. I was deeply impacted by my experience, as witnessing the dedication of the team and their commitment to the department mission inspired me to consider a career in public service. I firmly believe my work as an intern has helped me strengthen my research, writing, and advocacy skills. My time in the IP and Technology Intensive has enriched my law school journey in a way that I did not imagine possible, and I am deeply grateful for that.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

As discussed in , Human Rights Watch (HRW) released a in late May outlining the privacy risks school children face across the globe. After a short summary, the report immediately explores ways we can address the risks, through a comprehensive list of recommendations to governments, ministries and departments of education, education technology companies, advertising technology companies and other third-party companies that may receive data from EdTech Products.

Recommendations to the government, education technology companies, AdTech companies and other third-party companies receiving sensitive data all included urgent remedial action to address the children who have been exposed to the risk of misuse and exploitation – identify, remove, and prevent the further spread of children’s data. Governments were also specifically suggested to bear the responsibility of demanding AdTech companies delete all children’s data received from EdTech during the pandemic. Further recommendations also included law reform to adopt, update, strengthen, and hold accountable child data protection laws “to deliver a modern child data protection framework that protects the best interests of the child in complex online environments.”

Alarmingly, the report found that out of the 49 countries examined, 14 countries lacked any form of data protection whatsoever, while others merely referred to children or were outdated and did not address more modern technology. The do include a specific section on consent and children and the importance of adult supervision for data collection for children below the age of 13. However, Canada still falls behind in implementing modern privacy legislation that addresses child consent. For example, under the , businesses cannot sell personal information of children who are less than 13 years of age, unless the child’s parent or guardian affirmatively authorizes the sale. Moreover, sets the age of consent at 16, requiring parental consent from those 15 years old or younger. Section 15 in Canada’s Bill C-11 mandates that “an organization must obtain an individual’s valid consent for the collection, use or disclosure of the individual’s personal information,” but does not specifically address a minimum age for consent.

Additionally, the report provided recommendations for ministries and departments of education. These recommendations included monitoring endorsed educational services and the companies providing those services, as well as creating written contracts regarding children's data protection between institutions and EdTech providers — not with the child. Moreover, EdTech companies are advised to write their privacy policies in “clear, child-friendly, and age-appropriate language” and provide separate legal terms for guardians and educators.

With all this said, we perhaps should not be too eager to place all the blame on governments and companies. In its final segment, “Failure to Protect”, the report highlighted testimonies from parents and educators. This showed how students, parents and educators alike were all operating in blind faith during the pandemic. The exceptional situation of the pandemic made everyone too willing to accept and comply with quickly-changing environments – children trusted their parents, parents trusted the teachers, and teachers trusted their schools and their governments.

The report's recommendations highlight a collective responsibility in ensuring the safety of our children online. We are all responsible to remedy past wrongs and prevent further risks to our children by addressing modern technology’s most glaring privacy issues.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

Pandemic-related school closures pushed the adoption of educational technology (“EdTech”) in classrooms to new heights. In fact, that the industry will surpass $377 billion by the year 2028. In response to the pandemic, Teachers across the globe were forced to adapt to online settings and were left scrambling for fun virtual tools to keep their children engaged in the classroom – but at what cost?

On May 25^th, Human Rights Watch (“HRW”) – “a global investigation of the education technology (EdTech) endorsed by 49 governments for children’s education during the pandemic.” A thorough analysis of the selected EdTech products showed that a vast majority of the government-endorsed online learning platforms risked children’s privacy and violated children’s rights. Many of the products were found to collect children’s personal information without the child’s or parent’s consent. This included data like “who they are, where they are, what they do in the classroom, who their family and friends are, and what kind of device their families could afford for them to use”– information unrelated to education.

The findings from the HRW also included , CBC Kids, Math Kids, ABRACADABRA, LEARN, Active for Life, Mathies, Prof Multi, Storyline Online and Storyweaver. Aside from LEARN, Math Kids, and Prof Multi, the other products were found to collect and transmit data, some via means of a third party. Notably, these platforms also all had government affiliation – all products were promoted by the Government of Quebec through “L’ecole ouverte,” a website that suggests digital education resources “approved by a team of experts from the Ministere de L’Education,” while “Mathies” was developed by Ontario’s Ministry of Education.

To illustrate how tracking technologies are so deeply integrated into children's lives, the report opens with a compelling story about a student named Rodin. Rodin logs onto his virtual classroom, draws on the virtual whiteboard during break time, and posts his homework using a social media platform— just like every other school day during the pandemic. However, what he doesn’t realize is the countless tracking technologies that surveil his online interactions by following him across the internet. Information about his browsing habits, location, and family contacts is passed along to advertising technology (“AdTech”) and other companies to eventually “piece together an intimate portrait” of him and to figure out what may influence him and make predictions about his future behaviour. These valuable insights can then be sold to other parties, who wish to target children just like Rodin in the future.

While they may impress us with their tech-savvy abilities, children are children. We cannot expect them to freely make decisions online and understand their full impact. Although parents are often willing to sacrifice whatever it takes to ensure their children’s safety, they have only limited control. The surveillance took place in virtual classrooms via various EdTech products where neither children nor their parents could object to it. With no proper protective measures in place, children around the world were left open to harm, all in the name of education.Ìę

Part 2 will discuss the HRW report’s recommendations and the initiatives being taken to address the risks that EdTech poses to child privacy.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

, Xiaorong You, a former employee of the Coca-Cola Company and Eastman Chemical Company was sentenced to 14 years in prison and made to pay a $200,000 fine for a scheme to steal trade secrets, engaging in economic espionage and committing fraud. Matthew G. Olsen emphasized that the sentence not only reflects the gravity of the offence but also a“commitment to protect [the] nation’s security by investigating and prosecuting those who steal US companies’ intellectual property.”

Between 2012 to 2018, You worked as the Principal Engineer for Global Research at Coca-Cola in Atlanta and the packaging application development manager at Eastman Chemical Company in Kingsport, Tennessee, which granted her explicit access to valuable trade secrets related to the “formulations for bisphenol-A-free (BPA-free) coatings for the inside of beverage cans.” Several other chemical and coating companies also owned the trade secret and its development cost nearly $120 million.

You the trade secrets to set up a new BPA-free coating company in China with Weihai Jinhong Group, her Chinese corporate partner, where both parties received millions in grants from the Chinese government to support the new business. In addition to the grant money, You also received the “”, a Chinese government program aimed at attracting scientists and engineers abroad. At , You’s application for the program revealed her intentions to not only benefit her corporate partner, but also the governments of China.

, BPA is still used in the linings of the company’s beverage cans, as well as other packaging, to preserve the quality and taste of the drink. The company further maintains that for potential health risks resulting from BPA in the company’s products is based on “sound science” as there is a clear scientific consensus that the miniscule amounts of BPA in beverage cans poses no risk to the public. Nonetheless, the company has publicly stated that it is undergoing research for BPA-free alternatives in preparation to protect its consumers’ and .

Economic espionage has profoundly affected the US economy. In fact, the estimates that trade secret theft costs the US economy at least $180 billion annually. Despite Canada’s sizeable economic difference from the US, the maintains that its advanced and competitive economy and close economic partnership with the US makes Canada a continuing target of hostile foreign state activities. Moreover, according to the , CSIS observed an increase in the scale and scope of espionage and foreign interference threats. Often, such threats become exponentially more complex and pressing in light of , as it can be difficult to establish the nexus between an accused and a foreign government. In addition, foreign states can target members of vulnerable groups, posing a risk not only to the Canadian economy but also the overall safety of Canadians.

Both Canada and the US must continue to diligently investigate and identify the threats of espionage targeting innovation and intellectual property in its various sectors. Moreover, Canada should continue to work with and refer to its domestic and international partners to determine reasonable punishments for similar criminal acts threatening valuable IP in the country.

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On June 28, 2021, the College of Patent Agents and Trademark Agents (CPATA) was established and began operating to regulate patent and trademark agents. The new regulations, the , were implemented “to regulate patent agents and trademark agents in the public interest, in order to enhance the public’s ability to secure the rights provided for under the Patent Act and the Trademarks Act” as stated in the .Ìę According to the CPATA , the college will set competency standards for licensees, require trainee agents to work with an experienced agent for two years, and require agents to pass a competency exam. The CPATA also sets and enforces ethical standards for agents and will be implementing a that states principles to guide all agents. Principles enumerated in the Code of Professional Conduct include a duty to be competent, a duty to preserve confidences and secrets, a duty to not act if there is a substantial risk of a conflict of interest, and a duty to be honest and candid when advising a client.

Many have praised the establishment of the CPATA, highlighting improvements in standardization and transparency. The CPATA, like other colleges, is tasked with protecting the public interest by ensuring members are held accountable. Establishing an appropriate complaint, inquiry, and discipline process is essential for fulfilling this mandate. The CPATA website includes both an informal resolution option, the Conduct Inquiry Form, as well as a complaint option. Both forms allow the public to easily submit information about the circumstances and agent involved in their inquiry or complaint to the CPATA. The Conduct Inquiry Form, as described by CPATA, can be “the best and most efficient way to address questions or concerns about an agent’s professional conduct 
 rather than by filing a complaint.” At the moment, the two forms look remarkably similar, but the states that the “early resolution of conduct inquiries is focused on restoring relationships and trust 
.” The policy lists the assessment options and follow-up actions the Registrar may invoke to resolve the matter. The Registrar will first assess if the inquiry warrants further action, and if necessary, work to support the licensee to rectify the situation in an appropriate manner. While the CPATA website does not currently include investigation and discipline policies, the informal inquiry process appears promising. The swift resolution of minor inquiries is key to allowing the Registrar to focus on issues that warrant significant attention and ensures that the public can be satisfied by a fast and efficient inquiry process for issues that they need resolved quickly. Consolidating the inquiry and complaint process to an easy one-stop-shop for the public will help foster trust in the profession.

Notwithstanding the improvements to standardization and transparency, the implementation of the CPATA regulations was . Sections 5 and 9 of the regulations require that patent and trademark agents, respectively, reside in Canada. This could eliminate some American agents from filing in Canada and potentially, thanks to a reciprocity treaty between Canada and the US, lead to Canadian agents losing their right to file with the USPTO. Dual trained agents could potentially face the reality of needing to hire an American counterpart for filing with the USPTO, which could lead to increased costs that would ultimately be passed along to clients and delays that could frustrate the patent and trademark processes further. Improving the Canadian IP ecosystem may be the goal, but the residency requirement could cost financially desperate clients even more, and potentially cost Canadian firms business if clients decide to go directly to American agents. Balancing the improvement of the Canadian IP ecosystem with maintaining low costs for clients and business thriving for agents is difficult; the Government is faced with an unprecedented IP ecosystem problem. While the implementation of the CPATA will hopefully increase the standard of service that agents provide to clients and ensure that clients have a transparent recourse process when they feel that service does not meet the CPATA standard, the potential cost to clients and lawyers may ultimately prove to further exacerbate Canada’s IP retention problem.

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Right from the outset, I was welcomed as a new member of the CTPD team and was exposed to many of the things that they do. If I had to describe the work that I did with the CTPD, I would divide it into three rough categories. First, there is “research work”, where problematic areas of copyright or trade-mark law are identified. Research is undertaken to understand the issues, articulate it clearly, and explore the potential paths which the government could take to address the problem. During my placement, I was able to explore the problems that face the treatment of IP rights in cases of insolvency.

The second could be characterized as “everyday work”. This involves a variety of tasks that the CTPD is responsible for, including the everyday collaboration with other departments who need to understand the nature and status of Canadian IP law. During my placement, I was able to sample a variety of such projects ranging from docket assignments, to the drafting of briefing notes, to the composition of issue summaries, and to meetings with other governmental departments about the nature of Canadian IP law and policy. Especially prominent during my time at Industry Canada was the close collaboration of members of the CTPD with officials from the regarding the (CETA) and (TPP) negotiations.

The final category is best described as “legislative work”. This work must be done to ensure that a piece of legislation that will change IP law moves successfully through Parliament. In this regard, I was fortunate enough to have Bill C-8, the Ìę(which would amend both copyright and trade-mark law) making its way through the legislative process. Most of my time was spent aiding the progression of the Bill. The challenge provided by working in these three capacities was a large part of what made my experience at Industry Canada so beneficial.

A significant reason why I was interested in participating in this program was due to my observation that I was being taught in class how to approach the law from the vantage point of a lawyer. Especially in such a technical area of law such as IP, it fascinated me to think that the people who developed and adapted the law were not necessarily legally trained, and thus did not necessarily share the view of the law that I was being taught.

My placement definitely gave me some insight on this. One of the biggest challenges that face policy makers, especially those in copyright and trade-mark policy, is finding an appropriate balance in the law. For example, one piece of policy may be very popular among industry groups, while at the same time very unpopular among consumer watchdogs. The role of Industry Canada is to maximize the beneficial economic effects of the IP regime, while also ensuring that it reflects the expectations of all Canadians.

This was a helpful, new lens through which to view the law. I realized that I had become so accustomed to treating the law as a code by which all actions must abide by, or perhaps more cynically as a means to a defined objective. The policy-maker’s view of the law is often very different. Instead of resisting change to long-established patterns or dismissing suggestions as too difficult to fit in the current legal framework, policy-makers must contemplate how to structure the entire legal framework so as to maximize the benefits and minimize the pitfalls. Often this means adopting a more macro view of the law than lawyers are accustomed to.

Overall, I thoroughly enjoyed my time at Industry Canada. It taught me a lot about IP, and reminded me that the law is more than a language lawyers speak; it is a living reality with real-world effects. Policy-making is the task of ensuring that living reality is one we all can enjoy.

Samuel Johansen is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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The Department of Canadian Heritage is a multifaceted ministry of the Federal Government focused on promoting “.”Ìę My internship was spent with the department’s Copyright and International Trade Policy Development Branch whose mandate is to ensure “.”Ìę The Branch carries out this mandate through a series of initiatives, which include providing the public with information about Canada’s copyright system, staying on top of the latest developments within copyright both domestically and internationally, and helping promote Canada’s interests abroad with respect to international copyright negotiations.Ìę

In the year leading up to the coming into force of the (CMA), the Branch’s policy analysts were hard at work in order to ensure the reform process went as smoothly as possible.Ìę Now that the CMA has taken effect, the branch has turned its focus towards Canada’s commitment to the .Ìę Despite this change in focus, the branch continues to stay on top of copyright issues and developments as the reformed copyright regime takes on its newly defined parameters.Ìę

While at the Branch, I was able to take part in many different kinds of projects and initiatives including participating in weekly branch meetings, writing issue briefs on topics related to contemporary copyright discourse, drafting memos for the Branch’s deputy minister, and attending presentations by Branch members on different aspects of copyright reform.Ìę

Other highlights from the internship include attending a conference hosted by the University of Ottawa on Professor Michael Geist’s recently edited collection of essays titled, , and following proceedings at the Copyright Board on the Commercial Radio Tariff (SOCAN: 2011-2013; Re: Sound: 2012-2014; CSI: 2012-2013; ArtistI: 2012-2014; AVLA/SOPROQ: 2012-2017) on behalf of the branch.Ìę This latter task provided me with a firsthand look into the workings of Canada’s Copyright Board, and advocacy within the context of intellectual property law disputes more generally.Ìę ÌęÌęÌęÌę

The time I spent with the Branch will undoubtedly serve me well going forward in my legal career.Ìę Not only did it fuel my passion for the study of copyright, and intellectual property law, but it also gave me the opportunity to exercise and refine my legal research skills in a practical setting while engaging in meaningful policy work.Ìę The Branch is an amazing place made up of great people who are truly passionate about their work, and through them I have acquired a newfound appreciation for taking a public policy-oriented approach to legal issues of all sorts.ÌęÌęÌę

I cannot overstate the value of Osgoode’s Intellectual Property & Technology Law Intensive Program.Ìę It is a must for anyone who is genuinely interested in intellectual property law and would like to experience their nuances up close and personal.Ìę Furthermore, it is an excellent practical supplement to theoretical classroom learning that provides students with a great deal of perspective on the discipline. ÌęÌęÌę

Oscar Palma is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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The opinion related to two cases in which the Director of the United States Patent and Trade-mark Office declined to register an official seal. The refusal was based onÌę of the Lanham Act,Ìęwhich prevents applicants from registering a trade-mark that “consists of or comprises the flag, coat of arms or other insignia of the United States, or of any State or municipality or of any foreign nation or any simulation thereof.” Both seals represent evocative images of the state - the District of Columbia depicting Lady Justice laying a wreath on the statute of George Washington; the City of Houston, a lone star shining over a train and a plow.

The parties advanced different arguments in their respective appeals. The City of Houston suggested that because it was a government entity attempting to register its own seal, §2(b) did not apply. It was argued that on the basis of public policy and the Act’s legislative history that an “applicant” did not refer to a government entity attempting to register its seal. Specifically it was alleged that this legislation was introduced in order to protect trade-marks from “cheats and pirates.” However, through an examination of the plain language and statutory interpretation, the court concluded that to allow this exception would be inappropriate.

Conversely, the District of Columbia suggested that the court’s interpretation of §2(b) contravened the international obligations of the United States. Specifically, of the Paris Convention which states, “[t]he countries of the Union agree to refuse or to invalidate the registration and to prohibit by appropriate measure the use, without authorization by the competent authorities, either as trade-marks or as elements of trade-marks, of armorial bearing, flags, and other State emblems, of the countries of the Union.”

It is apparent that a governmental seal would fall under State emblems; however, according to the court it is also clear that “the Union” does not refer to the union of the United States, but the Union of countries which have joined the Paris Convention. Thus, as a municipality the District of Columbia was not considered to fall under the protection of this international provision.

This refusal to grant a trade-mark registration implies that if another entity were to use this insignia, there would be greater difficulty in obtaining recourse within the American trade-mark regime. Comparatively, offers negative protection to what it deems to be “public marks”, such that a business would not be able to use the mark of a “public authority.”

Canada’s test for the registering public marks resides in section 9(1)(n)(iii), which states that, “[n]o person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for
 adopted and used by any public authority, in Canada as an official mark for wares or services.” Similarly, of the Act prevents registration of any mark, “of which the adoption is prohibited by section 9 or 10.”

The three-part test for what constitutes a public authority for the purposes of this section was determined in Registrar of Trade Marks v Canadian Olympic Association.¹ This test requires that the entity: (1) have a duty to the public; (2) have a degree of public control; (3) must only benefit the public. As government entities its appears prima facie that both the City of Houston and the District of Columbia would have passed all three components of a public authority test and be granted this “official mark” according to Canadian law. As such, this section would have been afforded protection for an official seal, thereby protecting the public from “pirates and cheats” as the City of Houston argued section §2(b) was intended to do.

The similarities between Canadian and American intellectual property law often lead to assumptions that there will be identical court outcomes in either jurisdiction. This decision, while narrow in its scope, demonstrates that this is not always the case. When it comes to registering a trade-mark, the American Government is just another applicant.

Naomi Metcalfe is an IPilogue Editor and a JD Candidate at Western University.

¹ ÌęRegistrar of Trade Marks v Canadian Olympic AssociationÌę(1982), 67 CPR (2d) 59 (FCA).

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This post elaborates on the concept of criminal theft of IP, which I discussed at length in a with respect to software code, in the form of scientific research. In laboratory science, it is customary to keep a , which details all research conducted, including methodologies, applied results, and interpretations. The notebooks are the ultimate reference for raw, unaltered data, and are essential for troubleshooting and the transfer of knowledge within labs between experiments. Upon leaving a lab, graduate students and lab technicians typically leave their notebooks in the lab of the principal investigator (PI), who is the recipient of grant funding for the research project. However, the question of IP ownership becomes murkier when the PI is the individual looking to take possession of their notebooks and materials upon leaving an institution, .

With available in North America for public research, scientists are very secretive and protective of their results, as they are all striving to publish novel, groundbreaking work and posture themselves to procure funding. Thus, it stands to reason that Dr. Mikovits would want to take her work with her so that she could continue to continue her progress and publish her results elsewhere. However, in instances of potential IP theft, is the criminal court the proper venue for these matters?

The State of Nevada has suggested, despite Dr. Mikovits’ initial arrest, that no, these matters should be resolved by civil action. However, it has been suggested that the prosecutors withdrew the charges as a result of the of the CEO of WPI. Thus, the question of the criminality of such alleged IP theft may come up again in the future, particularly with the of the realm of science that is the result of scarce funding.

Even in Dr. Mikovits’ case, it is unclear that the criminal charges should have been withdrawn seven months after the charges were laid. Despite being a leading investigator, she was the employee of a research institution, relying heavily on their staff and equipment (not to mention the salary that she was paid). Although she should be afforded some sort of protection for her time and work, institutions should have guarantees as well. Most public research grants are administered to the individual under the condition that they are that moderates the funding process. Thus, the institution retains partial control of what is ultimately government-funded research. It is that researchers make publicly funded research available to the public-at-large, and the institution cannot ensure this if they do not remain in control of the data collected.

With respect to the factual nature of the criminal allegations, the charges in the present matter may have been dropped due to a technicality in what was already sure to be a complicated and landmark criminal matter. Dr. Mikovits did not personally remove the notebooks detailing her research, but had a . Should this factor into the concept of theft? Is “counseling to commit intellectual property theft” too far beyond the scope of what the criminal laws should regulate? These are questions that have not yet been answered in the courts, and are a minutia of the bigger issue of IP theft in science.

Whether criminal courts are the proper venue for IP theft is still open to interpretation, and unfortunately, without a trial and judicial reasons, this matter does little to contribute to the criminal jurisprudence of IP theft. However, the results of the will be particularly interesting to follow, as there are various interests at stake, namely: WPI (the institution), Dr. Mikovits (the researcher), and NIH (the government funding agency). The balancing of interests may set an important precedent and guidepost for how scientific research is both conducted and funded in the future, as this IP discourse between an institution and a former researcher is unprecedented.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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