Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

The post How Much is Your Personal Information Worth? And What Will It Be Worth in the Future? appeared first on IPOsgoode.

Somewhere out there, there is an old photograph of a very young child standing completely naked, showing the marked signs of a most unusual medical condition.

I met that child when she was well into her old age, one winter afternoon over a decade ago.

Mariana (not her real name) had just returned from the cemetery where her husband is buried. Dressed all in black, her hands clutching a small-change purse wrapped in a clear plastic bag, she regarded me warily when she saw me waiting by her front door.

‘I am not Mariana’, she protested when I greeted her by name. ‘I am her sister. What do you want from her?’

But I knew she was Mariana. There were dark circles under her droopy eyes, just as in the photo that had accompanied the news of her medical case several decades earlier. Her hands trembled as she tried to unlock the door to her crumbling plastic-roofed shack.

I explained that I had just finished reading a recent book about ‘her sister’ and that I only wished to speak to her about conflicting information contained in that publication, as I was conducting research about her medical condition.

Mariana listened in perfect silence, eyeing me suspiciously. Upon hearing the name of the author of the book, her nervousness turned to fury.

‘God knows whether that man is even a doctor! Are you a friend of his? Did he send you here? Why on earth should I give a damn about your research?’ she shouted, veins throbbing at her temples. ‘I am��not��a guinea pig!’

Mariana’s reaction startled me.��Unknowingly, I had opened old wounds, and I felt profound guilt for making them fresh again. My unexpected visit, as it turned out, was just another one of those harassing knocks at the door that she had endured throughout her life.

‘I recognize you!’ she snapped, jabbing a finger at my face. ‘You have been following me’.

I tried reassuring her that this was not the case, but Mariana struggled to take my word for it.��Her privacy has been repeatedly invaded by complete strangers since childhood. Treating her as an object of their curiosity, her emotional wellbeing has been collateral damage. She now finds it difficult to trust anyone.

‘Please forget me,’ she then said, her voice cracking. ‘I just want to be left alone’.

LOOKING FOR ANSWERS

Mariana’s photograph was originally taken without her consent in the course of a medical examination, years before the internet existed. Soon after, it was published in a French medical journal, along with her full name and medical details. Her story then appeared in newspapers and magazines around the world. Decades later, when it was posted online, the photograph quickly went viral, taking on a life of its own. It has now been viewed millions of times, making it impossible for her to be left in peace.

Throughout her life, perfect strangers have invaded her privacy without regard for her emotional wellbeing

Unquestionably, the circulation of such sensitive material violates Mariana’s privacy, dignity and family-life interests as guaranteed by national laws and international human rights treaties. Less clear, though, is the practical question of how one goes about stopping the infringement of these rights. What can be done to stop the circulation of harmful (and non-consensual) content of this nature? Where does one even begin?

Haunted by Mariana’s lifetime of distress, and in search of answers, I landed at Osgoode Hall Law School in Toronto.

As journalist-in-residence there, I worked from 2017 to 2019 with a team of 20 law students and 18 law professors, alongside lawyers from several countries, on a project entitled ‘A Child’s Right to be Forgotten’. Our objective was to analyse Mariana’s case and find a potential solution to this extraordinary situation.

After a careful examination of multiple areas of law and a plethora of expert opinion – from legal academics, jurists, ethicists, medical professionals, trauma psychologists and scientists – we pursued several lines of approach.

COMPLICATED MATTERS

First, we considered copyright law to try to stop the circulation of the photograph. Given that it had been first published in France, UK legislation presented an opportunity to undertake corrective measures. Through the Berne Convention, the UK and France recognize each other’s copyright regimes. In France, the copyright was technically still valid – provided it could be established that the photograph was an intellectual creation under French law. If Mariana’s picture was being published online without the authorization of its owner, a request could be made to the rights holder, we reasoned, to revoke any use not bound by contract.

But we ran into difficulties locating the owner of the copyright as the image had no credit line. We tried contacting the medical journal in France, only to discover that it had since been acquired by another publisher, Elsevier Masson.

We reached out to Elsevier, but, surprisingly, they did not know whether or not they owned the copyright.

In a baffling email response, an employee from the company’s copyright unit wrote: ‘[W]e are unable to confirm that we are the legal copyright holders of the figure… and that we are entitled to deliver permissions to third parties. Therefore, although Elsevier Masson has no objection for you to use the aforementioned material subject to suitable acknowledgement to the source, it is important that you obtain, prior to use, written permission from the author(s) (or heirs) of the figure…’.

The only possibility of finding out who held copyright for the photograph was to ask the publisher if they had kept a copy of the contractual agreement with the photographer. But that turned out to be a dead end.

FURTHER INTO THE MAZE

Next on our list was image rights legislation. The island of Guernsey has legislation for the protection of a person’s image rights. This is a somewhat niche course, used mostly by celebrities, enabling them to register their image rights there and bring legal action against breaches. It sounded promising, but only Mariana, or someone acting on her behalf with her consent, could assert those rights. Seeing how Mariana avoided all contact with outsiders, and determined to prevent exacerbating her trauma by raking it all up again, we couldn’t pursue this route further.

We then looked into data protection and the right to be forgotten as a new line of inquiry. As it is in the EU, personal data is protected in Mariana’s country. Given that Mariana has not consented to the use of her personal information on the internet, a request can be made to those��processing��her information to remove it. This can be accomplished pursuant to her country’s Data Protection Act.

Better still, a request can be made directly to search engines (as opposed to individual websites) to remove search results containing infringing content. While this course of action normally would require Mariana’s direct intervention, there is a legal provision that makes it possible for a third party to lodge a formal complaint of infringement with the National Authority for the Protection of Data in that country. Mariana’s consent was not required for this action.

Encouraged by this new window of opportunity, we prepared to make our move. But soon other complexities arose. The complaint to the regulatory agency had to be filed in person, which we did – even though this required a long-distance trip. After securing the assistance of lawyers with relevant experience in Mariana’s country, we proceeded with a complaint against Google for infringing on her rights. But then, bureaucracy took on a Kafkaesque turn.

Our case was deemed inadmissible. Why? It turned out that Mariana’s consent was required after all for any action initiated to remove the very material that had been originally made public without her consent. But had Google obtained Mariana’s consent before making her personal data public online? Of course not. Could the regulatory agency make that inquiry? They failed to address this question. Two appeals later, our case was closed.

We then resorted to a non-legal approach. Bearing in mind that there is public interest in this matter, as well as a legal and moral obligation to put an end to decades of harm, we brought the case to the attention of five United Nations special rapporteurs seeking their intervention. Unfortunately, that avenue produced no fruitful outcome either.

A letter was then sent to Elsevier briefing them on the serious privacy impacts of the use of Mariana’s name and image in their publications. Would they consider removing them? Or at least blurring her face when using that image and anonymizing her details? It went unanswered.

No matter what we tried, we came up against hurdles.

THE BIGGER PICTURE

At the end of the day, this work is not just about Mariana. Her story is part of a much bigger picture.��It is the story of countless vulnerable people being harmed by the online circulation of intrusive content, while internet intermediaries profit from such material.

According to trauma psychologists, Mariana will likely never be able to develop trust in others. The consequences of her childhood trauma and public exposure are profound, dramatic and long-lasting. And that is to say nothing of the strangers interested in her story, whose curiosity makes her relive her trauma again and again.

Countless vulnerable people are being harmed by the online circulation of intrusive content, while internet intermediaries profit

The literature on image-based abuse suggests that the re-posting of such images is, in and of itself, a form of abuse. The online availability of the images causes great damage to survivors.

Taking into account Mariana’s lack of agency, it is unreasonable to expect her, or someone in a similar situation, to stand up to tech giants and fight for her right to privacy. Given that online material can be shared globally, it is challenging to identify the jurisdiction in which infringements take place.

Even when there is agency, case law shows that filing a take-down request against search engines and social media platforms is onerous. While they boast about their global reach and presence, they can be quick to argue that they are based in the state of California and are not bound by laws outside that jurisdiction.

Mariana’s story is a cautionary tale of the consequences of failing to remove harmful content from search engines and the internet. Privacy matters. To protect it, regulation is essential. But legislation also needs strengthening to be sensitive to the trauma of those suffering from the unwanted online distribution of harmful personal data.

Remember that behind a photo there is a real person; it’s not just an image waiting for a click of your mouse.

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The Internet Archive, which has been around since 1996, is a dedicated to building a library of internet sites and cultural artifacts in digital form. Their website, Open Library, claims to be digitizing from all around the world. You may be wondering, how does this effect copyright holders? Well, they from rights holders before adding books to their digital archives.

The Internet Archive is technically considered a library, and they use a technology called ‘’ (“CDL”) to simulate how traditional libraries loan out books. Ultimately, they believe their archiving is exempt from copyright infringement - but this is an extremely grey area in the law. Traditional libraries are allowed to loan out printed books they own because no copy is created in the process (as well, of the U.S. Copyright Act gives exceptions to libraries and archives to reproduce works in certain circumstances). CDL works as follows: the library digitizes a legally acquired print version of a book, then they only allow a limited number of users to access the book at any given time - this simulates people renting a book from a library and returning it. You can imagine that many authors and copyright holders are not excited about this process.

Last year, The Writers Union of Canada, along with 36 other creator groups, wrote an to the Internet Archive explaining how their conduct is illegal. They purport that any number of copies can be made when you have access to the book online, and they showcase this in the attached to their appeal letter. Truthfully, no one knows if what the Internet Archive does is illegal because it hasn’t been litigated. In the appeal letter, the writers argue that one reason for this is that no singular author has the time or money to litigate such a big case.

That may soon change with the announcement of the National Emergency Library, which no longer limits the number of users who can access a book at the same time. This new change, which is only available until June 30, 2020 (or until the National Emergency is over), contradicts the whole principle of CDL, which is meant to simulate lending physical copies. Furthermore, the Internet Archive made this decision , without contacting any rights holders who may be affected by this decision.

If you’re an author, content creator, or website owner, I encourage you to check out to see if your book, works, or website has been archived. Currently there is no sure fire way to get your content removed, but their website explains a method to to remove your content. That being said, I suspect we will be seeing litigation about the legality of internet archiving in the future.

Written by Luca Vaez Tehrani, IP Innovation Clinic Senior Fellow and JD Candidate at Osgoode Hall Law School

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Defamation Law in the Canadian Context

Prof. Jamie Cameron opened the discussion by noting that there is not a conclusive social theory of defamation in the Canadian context [1], and, therefore, at some point, Canadians will have to determine, in specific, why we care about reputation. Nevertheless, Prof. Cameron stated, the absence of foundational principles concerning defamation law should not preclude us from developing the law surrounding internet defamation.

Each panellist agreed that the tort of defamation is overly easy to establish and unfair to potential defendants. In Ontario, the tort of defamation is one of strict liability, and there is no cap on the damages that can be awarded in a successful claim. Furthermore, the LCO has stated ,” and, as Brian Rogers noted, this can have a chilling effect on journalists and the media who must report on news that could damage the reputation of the parties involved. Thus, as Rogers put it, because the media performs a critical role in society, by informing the public about the world around them, guarding the freedom of the press against frivolous and vexatious defamation claims is crucial for effective democracy.

Despite issues with the Canadian approach to defamation cases, Rogers sees a definite trend emerging in the law to address unfair advantages held by the plaintiff. For example, prior to��, only the plaintiff could define the meaning of the alleged defamatory expression. Now, defendants can put forth their interpretations of meaning and prove them valid.[2] Another example is how prior to��, Ontario courts instructed jurors that only a “fair-minded” criticism was acceptable as expression. This was problematic because what was “fair-minded” more often pertained to beliefs that the juror also shared. Now, the fair comment defence has been strengthened to include expression that could be honestly expressed by someone based on proven facts provided it is not malicious. Following this, the SCC in added further protections to those who take reasonable steps to verify the truth in what they are publishing. Finally, anti-strategic lawsuit against public participation (SLAPP) legislation has been passed in many provinces including Ontario in 2015.[3]

Considerations Moving Forward

The purpose of the LCO’s project on Defamation Law in the Internet Age is to determine ways to reshape the law. To guide our reform, Cameron highlighted five critical points of consideration. First, what aspects of an individual’s reputation are we are trying to protect? Second, what to an individual’s reputation and are defamatory? The internet and social media have obfuscated our understanding of this because our notion of reputation is increasingly fluid, ephemeral, open to challenge, and less protectable. Also, when we are answering the first two questions, we must also consider what community values we are using to establish our framework. After all, the internet has broadened the concept of community to more than just a physically measured locale. Fourth, it is essential to recognize that the internet has also provided a broader avenue for counter-speech and counter-measures to defamation. Further, . Lastly, the advancement of technology has made the enforcement of publication bans increasingly difficult. As Justice Lamer put it in , the “jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity”.

Andrew Scott expanded on the challenges that come with technological advancement. .[4] We must strike a balance between protecting them from frivolous litigation, on the one hand, and ensure they are not perpetuating defamatory claims, on the other. Scott noted that we must also be aware of the co-development of doctrines in privacy law and data protection law on shared topics like internet intermediaries.

Scott also discussed the challenges that arise after legislation is passed. At the moment, the LCO is considering if Ontario should adopt a in establishing the tort of defamation. This would mimic the UK Defamation Act, 2013. However, has shown that determining what is “serious” has not been consistent. In , Scott remarked that the Court of Appeal chose to ignore the relevant legislation, and, instead, applied the pre-existing common law. Interestingly, in the Canadian context, Rogers noted that the most significant reforms have happened through case law and not legislation, and, thus, it will be interesting to see how the Ontario Court of Appeal interprets their .

Ultimately, we must consider multiple factors when discussing reforms to defamation law in the internet age. Recognizing the relevant factors and learning from how other jurisdictions have dealt with similar challenges is a prudent start when deciding how to reform our system.

Sebastian Gorlewski is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[1]��Aside from some glib references to ‘dignity’ in Hill v Lucas

��2������izza Pizza Ltd v Toronto Star Newspapers Ltd, 1998 Ont Ct Gen Div (http://canlii.ca/t/g19tz). See ‘Analysis’ section for why previous restrictions were problematic.

[3]��See backgrounder on Ontario Protection of Public Participation Act for some of the problems associated with SLAPP (https://news.ontario.ca/mag/en/2015/10/protection-of-public-participation-act.html).

[4]��Internet Intermediaries are online platforms which host and provide access to content. They are the subject of discussion in panel 3 of the conference.

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The first panelist to speak, Professor of the University of Calgary, laid the groundwork for why online defamation is an area of law that needs an overhaul. First, she noted that Facebook alone receives over 2 million defamation-related complaints per week, almost all of them requesting only a removal of the content. This means we are dealing with a high volume of low cost cases and this does not reflect traditional courtroom lawsuits that are generally centered on financial damages and thus can be worth the litigation cost. Second, the question of jurisdiction remains unclear, as defamatory statements made online do not easily fall into a single jurisdiction when the interaction is online and crosses provincial or national borders. Third, claimants do not have simple options to resolve their claims. Currently, claimants can complain to the service provider (if the defamatory statement was made on a social media service) or sue in court. Professor Laidlaw pointed out the shortcomings of both options and why there needs to be a new alternative.

The first option places control of the dispute in the hands of private companies like Facebook and Twitter who have their own terms and conditions that define the rights of the parties. This lacks the legitimacy, due process, and standardization that a dispute resolution framework needs to be effectively operate. The second option means expensive litigation over jurisdiction to bring the action and then to obtain an injunction. Furthermore, Prof. Laidlaw pointed out that most claimants just want a comment deleted from the internet, not damages, and the cost of bringing the claim in court is disproportionately large.

The second panelist, Professor , Director of the US National Center for Technology and Dispute Resolution, spoke of measures that some large companies have employed to resolve high volumes of small online defamation claims. For example, companies like Alibaba and eBay have implemented ODR technology that resolves 80-90% of complaints between buyers and sellers through automated processes. This leads to enormous savings of time and cost, as Alibaba and eBay alone receive 100 million and 80 million such claims, respectively, each year.

Since online defamation disputes can be resolved through automated online processes, Professor Katsh’s discussion focused on how these disputes can be prevented through ODR technology. He pointed out that online defamation is not the only area that ODR can be effective, and that the legal world should be more focused on implementing ODR in disputes that do not require substantive legal analysis and judgement.

For example, Prof. Katsh pointed out that mediation is about controlling the interaction between two parties without imposing a final decision, a process perfectly suited to computers through automated messaging applications. Another area is when online platforms do not verify the accuracy of users’ identities, which can lead to defamation claims based on comments that were made by an avatar, a robot, or people misrepresenting themselves. Computer programs can verify the accuracy of records, which filters out claims against bots and other non-human online interactions.

Finally , a lawyer for the BC Government and adjunct professor at Osgoode and UVic, spoke about the newly launched (“CRT”) in BC: an online tribunal that resolves small claims and condominium disputes through an automated mediation process. While the CRT is not available for online defamation disputes, it is a model for future ODR technologies in other areas of the law. The CRT seeks to achieve the same efficiencies that private companies like Alibaba and eBay have achieved by resolving most disputes without any human interaction. The CRT features a diagnosis and self-help portal that helps claimants categorize the type of claim they wish to make and what their options are, followed by an online monitored chat where parties can exchange communication and attempt to reach a settlement. If a settlement cannot be reached, lawyers for the BC Ministry will intervene and adjudicate the matter.

The panel discussion shows there are ODR regimes in place that are effectively reducing the stress on the justice system in areas where the nature of the dispute does not involve significant financial or criminal risk. Online defamation claims fit the ODR model well because they tend to be equitable claims for a deletion of a defamatory comment, not a claim for damages.

At the same time, there are unresolved questions: Would ODR be mandatory or optional? What if there are many claimants launching a class action against a single individual? What if the system crashes? Even if the defamatory comment is taken down, what if it has already been copied and re-posted? Notwithstanding these concerns, online defamation consists of a staggering multitude of small claims. Imposing a simple automated solution to resolving these disputes would be a cost-effective way to reduce some stress on the justice system and make the internet a more civil place.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The panel on “Responsibility for Defamation and the Problem of Intermediaries” tackled the issue of liability of internet service providers (“ISPs”) for disseminating or maintaining defamatory content online. Scholarly and industry-savvy panelists grappled with traditional concepts and doctrines in an attempt to formulate a new theory of responsibility for ISPs. Three routes were proposed by the panelists: (1) ad hoc inquiries into fair balance, (2) adoption of the least invasive means and proportionate measures; and (3) revamping the publication rule.

No one is certain that these efforts will resolve the problem of online intermediaries, so looking to the courts’ current take on the matter may hint at additional existing routes and at the likelihood of success of the efforts proposed by the panelists.

Fair Balance

, lecturer at the University of Cambridge, discussed the different notice regimes applicable to ISPs in relation to uploading and downloading content of a user. A novel system of “notice-and-fair-balance” was proposed with a view to reconcile fundamental rights of the different the stakeholders in the triadic relationship between the injured party, the intermediary, and the internet user. The panelist argued that freedom of expression, the right to communicate and to conduct a business, as well as reputational rights, are of equal caliber and should co-exist alongside each other, without a priori recognition that one trumps the other. A desirable solution, she noted, is to conduct ad hoc inquiries into what, in the particular circumstances, represents a fair balance between rights and compromises.

Regardless of the speaker’s endeavor to shed light on what fair balance might mean and how it can be conceptualized, she conceded that striking a balance is easier said than done and that it is most often seen as an empty slogan unlikely to provide real solutions. The current position of North American courts on online intermediaries’ liability (see and ) in fact implies that courts are looking beyond fair balance in these circumstances; their primary goal, instead, is preventing multiplication of wrongdoing on the internet.

Proportionality

Bram Abramson, Open Web Fellow with the Mozilla foundation, pointed that the traditional innocent dissemination doctrine underlying the liability regime applicable to ISPs still leaves constitutional questions unaddressed. To some degree, there is still a restraint on the ISPs’ ability to communicate freely, disseminate information, and carry on business, because the system subdues ISPs to liability unless they take down content upon notice. This, Bram argued, does not represent the least invasive means to remediate the dissemination of defamatory content, as a chilling effect is almost certain in these circumstances and is an incentive to removing content to avoid exposure to liability. Engaging proportionality may thus keep ISPs from bearing responsibility for defamation when other efficient and least invasive measures are available. In this context, the creation of a regulatory framework that allows the ISPs to act autonomously without the involvement of authorities, as well as other mechanisms for online dispute resolution, seem reasonable routes to follow.

This view, however, is not aligned with the current take of North American courts in regard to online intermediaries’ liability. Although free expression may seem compromised in some instances, Canadian and American courts agree that sustaining freedom of expression values of unlawful acts on the internet. As with the use of , the courts appear to have signalled an intent to create a “duty to assist” a person wronged with no resort other than relying on non-parties who are not themselves guilty of wrongdoing. As explained in fullness , a principled rationale for granting orders against intermediaries seems to be needed to bring the rule of law to bear on the Internet to rein in illegal activity, to remediate wrongful actions taken under the cloak of anonymity, and to enforce ignored takedown requests and orders (more ).

As to the creation of more proportionate means of dispute resolution, there seems to be no restriction imposed by the courts on autonomous mechanisms for more efficient responses.

Revamping the Publication Rule

The breadth of activity captured by the traditional publication rule, as Professor of the University of New Brunswick noted, is too vast, capturing even the narrowest scope of ISPs’ activities in linking or highlighting defamatory content. As a result, she argues that a new theory is necessary so that ISPs are not easily liable as defamers when they never created defamatory content. Professor Young proposed that the new concept of publication encompass a knowing involvement in publishing the relevant words (per ; ).

Re-conceptualizing publication, however, does not seem to resolve the problem of online intermediaries either. To the extent that the courts have signalled that their primary goal is to prevent further dissemination of illegalities in general in the internet space, the determination of who to attribute blameworthiness to loses relevance where a multitude of actors may be involved. As a result, whether or not ISPs can be deemed publishers in a strict sense will unlikely interfere in how ISPs should be engaged in halting defamatory content in the internet.

The Bottom Line

In Canada, Equustek brought about a fundamental shift in the parameters of the debate around online intermediaries liability. As a result, traditional concerns involving notice regimes, the breadth of the concept of publication, and the doctrine of innocent dissemination became less relevant. Equustek signals, in broad strokes, that the courts are unlikely to allow actors to avoid the rule of law in the internet space. This approach does not require intermediaries to decide which content is defamatory but it does engage ISPs in a duty to assist a wronged party in response to harm caused by unreachable wrongdoers. The decision may be unpalatable for advocates of free expression and unrestrained right to communicate. However, it represents the courts’ view on how to rein in illegal activity in the context of fast-moving and far-reaching developments in technology and social values. This view might be worth considering when we think about reform of defamation laws.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

The post Fair Balance, Proportionality and Revamping the Publication Rule — Will these Efforts Resolve the Problem of Online Intermediaries? It’s Unlikely. appeared first on IPOsgoode.

Back in 2001, the Government of Canada—then led by Prime Minister Jean Chrétien—. In the sixteen years since, gallons of ink and plenty of bytes have been used to call for a domestic strategy to address the country’s . The release of the Government of Canada’s , which included and the , has changed the debate in the country, replacing recurring calls for action (for example, see , , , , , , , , , and ) with cautious optimism—.

It was against this backdrop of a renewed innovation impetus that Canada’s Minister of Innovation, Science and Economic Development, , gave the opening keynote for the in Toronto. Minister Bains used this forum to advocate for . In his speech, he commented that connecting Canadians through access to telecommunications services is necessary because:

In his speech, Minister Bains referred to enabling connectivity and bridging the “digital divide” between Canadians; however, doing so will require more than simply connecting Canadians through telecommunications services and digital technologies. Public and corporate policies must be updated to capitalize on the strengths and mitigate the negative ramifications of innovation-based economic activity. , Co-Director of the at the , described how at the same time that Israel has become a key supplier of new technologies, it has also experienced pronounced economic inequality. Canada’s Innovation Agenda, then, must look to address the many facets of our digitally-connected lives and work to promote inclusiveness and opportunity for all Canadians.

The segment that the IPilogue’s Content and Social Media Editor writes about describes how Canada’s telecommunications industry players are – and are not – preparing for the increasing adoption of digital and interconnected devices. Cerilli notes the vital role that telecom service providers play in providing the backbone of digital connectivity, and how consumers aYonida may become more, assertive about receiving higher standards of services.

Similarly, Yonida Kouiko’s piece, , focuses on another key aspect of interconnected Internet of Things (IoT) devices: users expectations of and their need for privacy. She notes how the European Union (EU) is working to update privacy laws to instill Privacy by Design (PbD)—an engineering approach that seeks to make users communications and data secure at the earliest stages. However, as Kouiko demonstrates, PbD requires investment and expenditure by technology producers and telecommunications providers—and she wonders whether consumers will be willing to pay increased prices for more secure means of communication.

Questions surrounding affordability arise again in IPilogue Editor As Shukla notes, concerns surrounding the affordability of telecom services in Canada and questions about the level of competition in the country’s telecommunications industry have been recurring issues for successive federal governments. Given the ISED Minister’s remarks, exploring new service delivery mechanisms and a continued focus on affordability for Canadians look to be prominent points of debate.

Yet, as , the Executive Director of reminded me , attaining inclusive innovation will also require digital skills and education. Organizations such as CFSC help provide the digital tools and skills necessary to increase the talent-level of Canadians in innovative sectors. While the federal government’s includes measures to address the faced by tech firms in Canada, developing domestic expertise and experience remain essential.

At the CTS17 , the Vice-President, Research at the , touched on one such area of expertise, noting that Canada currently suffers from problems with commercializing the ideas and knowledge generated by Canadian researchers and entrepreneurs. Part of this problem, Schwanen noted, is due to Canada’s poor track-record of utilizing intellectual property (IP) law to keep Canadian inventions in the hands of Canadian companies. Familiarity with IP law and commercialization strategies are important for attaining access to capital (through investment and licencing opportunities) and access to customers (through branding and the ability to prevent others from appropriating one’s technologies, goods, and services).

Enabling and are crucial to improving commercialization prospects and assisting with the growth of the country’s innovation ecosystem. IP Osgoode’s own – and a small number of other Clinics across the country (such as at the and the ) – help address gaps in Canada’s entrepreneurial support system by providing pro bono IP information and assistance to early-stage and under-funded inventors and companies.

The vast array of policy and commercial issues at stake in the development of Canada’s innovation agenda and national IP strategy are daunting but imperative. As the country is increasingly recognized for having its , the time is right for an inclusive Innovation Agenda that provides benefits for Canadian companies, consumers, citizens, and society at large. Positioning the country as an will require a strategy that lays the groundwork for that help Canada’s cutting-edge ideas become economically and socially beneficial products and processes.

Joseph F. Turcotte is a Senior Editor with the IPilogue and the Coordinator. He��holds a PhD from the Joint Graduate Program in Communication & Culture (Politics & Policy) at 91��ɫ and Ryerson University (Toronto, Canada) and can be reached .

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��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

The post Connecting Canadians, Empowering Inclusive Innovation appeared first on IPOsgoode.

created a new type of money, a new tradable value. In other words, it created a way for there to be digital cash. Blockchain consists of a series of computer protocols that form a computer network, which allows value to be moved from point A to point B — just as the internet allows us to move information from point A to point B. These protocols move value around in a complete new way: it is unique because the technology allows for permission-less transactions. It is decentralized and does not require a bank or intermediary to facilitate the trades. You just do it yourself. The economic attractiveness and the innovation at the core of the Blockchain technology suggests that this could be one of the most important inventions of the twenty-first century — if only its mysterious inventor, who goes by the alias , had not made the blockchain technology widely .

With its components in the public domain, any person of ordinary skill in the art can build on top of the pre-developed computer protocols and duplicate the technology in the digital world. The open-source nature of this project may be one understated obstacle in the . Tech-innovation moves as endless ripple, with the waves of innovation building one on top of the other. A higher tech-innovation wave will require entrepreneurs to rely on the swells previously built on top of one another by other entrepreneurs.

, a forerunner in blockchain technology, was initially conceived as an open-source project made available to all. It worked as a template for other different tokens, which created more forms of decentralized transactions by way of “new” secure online systems. , for instance, also implemented its code by streamlining and building on top of the leading public blockchain technology Bitcoin, which has prompted the conception of . Since much of the technology underlying Blockchain has been placed in the public domain and the number of inspired projects has grown exponentially, some lawyers suggest patents.

In fact, blockchain-related inventions may easily fall under the category of applied to computer-related inventions. The has nonetheless explained that, although abstract ideas alone are not patentable, software and business methods are not excluded from patentable inventions altogether. With this in mind, it is not surprising that the number of tech-companies filing patent applications has sky rocketed. However, both the issuance and the enforceability of patents on this technology are still uncertain to predict.

Assessing the likelihood of success in procuring IP rights for innovations or improvements to the blockchain technology may require more than a clear understanding of the underlying technology and the state of the law. Lawyers may have to expand their perspective if they want to provide their clients with a more realistic prediction. This incremental step may entail an assessment of the current state of the Blockchain industry from a business perspective.

To this end, it is important to understand that there is a strong tendency in the patent offices, courts, and within the industry itself, towards bolstering new innovations. And a patent aggression environment — where IP is used as a weapon to shut down competitors — slows the pace of scientific and technological progress. As a result, those who are more sympathetic to the intentions of the pioneers of blockchain for having the technology available to the public, might admonish developers to avoid the “innovation theatre” pretext to assert exclusive rights over the technology.

Another understated aspect which might become a hurdle in the race for blockchain patents is the propensity of the tech-companies to amalgamate into consortiums. This phenomenon accelerates the growth on blockchain. The idea is to figure out what is the corporate answer to blockchain transactions and to create standards that will allow the various token applications to become interoperable and tradable amongst the different networks, by borrowing their open-source codebases from one another. , and are examples of existing collaborative relationships between leading banks and tech-companies.

Tech companies are involved altogether in discerning the purposes for which the myriad of crypto-currencies and token applications can be used. That is how they compete and there is a lot of room for competition yet — which translates into more challenges to the IP practitioners in helping their clients protect the code upon which other token applications may be built.

Bruna D. Kalinoski is a contributing editor for the IPilogue and an LLM candidate in the Osgoode Professional Development Program at 91��ɫ.

The post What’s Innovative About Cryptocurrency and Hayek’s “Free Market Money”? — Some Understated Obstacles in the Race for Blockchain Patents appeared first on IPOsgoode.

Included in these discussions were a keynote address by Sanjay Mewada (Chief Strategy Officer of Netcracker) on the shift to digital services and impact of tech giants expanding their territory on the competition telecom players will increasingly face. Companies like provide business support and operation support systems, software-defined networking, and network functions virtualization to help communication service providers meet the expectations of their customers.

At the CTS17, Mewada emphasized the importance of moving away from traditional communication services and towards the adoption of digital models in order to thrive in the modern telecommunications industry. He highlighted that emerging features, like being able to proactively control bandwidth allocation to optimize and enable active monitoring of usage by customers, are setting new standards for internet service providers.

With Google’s (allowing consumers to choose which device on a Wi-Fi network receives the fastest connection) and already on the market, Mewada asked if consumers “would really want to go back to not having any control over the allocation of your bandwidth?” Indeed, once these features become “a matter of priority and focus” in the eyes of telecommunication corporations, more and more consumers will “know what is possible, [and] no longer like to stay with the bare minimum,” he said.

So, what is the outcome of tech giants like Google, Apple, and Hulu introducing new features into the telecom sector? “Why did Google have to come in to show a cable service provider how to be a digital service provider?,” he asked.

Mewada noted, “it is not about coming up with a brand-new thing, it is about providing the consumer with the right digital experience.” This shift to focussing on the client experience is key in ensuring the success of the telecommunication industry and not losing substantial market share to tech competitors.

Of course, with any adaptation also comes challenge. Mewada emphasized how the need to accelerate the delivery of new services to market remains hurdle for services providers. With the expectations of clients constantly changing and the avant-garde of the home-digital experience being increasingly bombarded with new innovations, according to Mewada there “needs to be a retooling of the processes” behind moving products from conception to implementation.

Mewada noted that the innovations provided by Google, Netflix, and other tech giants are actually blessings in disguise because they “open the market to expect new things” from service providers. In response, service providers merely “need to be there to provide that” to stay competitive, he said.

One approach involves adopting a “fast-fail” model. The fast-fail model seeks to optimize the movement of a digital service from conception to market through the use of small sample sizes as a preliminary testing ground. If it succeeds, then escalate – if it fails, then forget it and move on. While fairly new to telecommunications, this model has been adopted by Alphabet’s X research division, which to everything from driverless cars to augmented reality eyewear.

Furthermore, he noted that part of remaining successful in the contemporary market will involve anticipating future trends and shortening the turn-around time for providing clients with the same quality of services and products competitors offer. When applications like can rise to billion dollar valuations in the span of a couple years, having an interdisciplinary team that is ready to roll out high-quality services is of the utmost importance for preventing clients from switching to a more up-to-date provider.

In the end, keeping pace with the rapidly evolving tech sector is paramount to remaining competitive and maintaining and expanding a telecom business’s market share. Accordingly, clients will consistently expect to receive the latest and greatest in home entertainment and utility without feeling left behind tech giants, like Google and Apple, who are putting pressure on the telecommunication sector to offer a higher standard of service. ��In a dynamic and fast-paced field, perhaps Netcracker’s slogan of a business’s “most important step [they will take being] their next one” captures the pressure traditional telecommunications service providers will feel if they do not approach the industry proactively.

Dominic Cerilli is the IPilogue content editor and social media coordinator as well as a JD candidate at Osgoode Hall Law School.

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��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

The post Disruptive Innovation and Digital Integration appeared first on IPOsgoode.

Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the����has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law,��considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a��copyright infringement ruling��against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the��Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a��separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.�� Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows��legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's��representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in��Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist��Richard Prince��copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s��identical reproductions��of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,����saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist����were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is��’s appropriation of��’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of��. She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of����from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful��artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the��art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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