"Law is a tough mistress is you want to be a good lawyer."

So spoke Toni Ashton, Senior Partner at Sim Lowman Aston & McKay, busting the myth that the practice of IP affords a better work/life balance than other areas of law. Many more practitioners shared their thoughts on practice-related issues with a student audience at the Annual IP Career Panel at Osgoode Hall on February 19, organized by the student-run Osgoode IP and Technology Law Society. Among the panelists were Osgoode's very own Professors Carys Craig and Rex Shoyama; Albert Cloutier, Director of Copyright and International IP Policy at Industry Canada (who travelled from Ottawa to attend the event); Sue Diaz and Michael Migus, associates at Deeth Williams Wall; Martin Herman, Senior Legal Counsel at Bombardier Aerospace; and Jason Kee, Director of Policy and Legal Affairs for Entertainment Software Association of Canada.

The panelists were frank about the pressures of the practice of law in general, and the challenges of practicing IP law in specific. The private practitioners admitted that ebbs and flows in their work are unpredictable and inevitable, and that the practice of IP law is a minefield involving complex regulatory processes and demanding close stewardship and attention to detail. Client development is a must. And the maintenance of their competence requires nothing short of a commitment to staying current with legal developments, and hence never feeling too comfortable with what they know. In managing everything from professional obligations to personal responsibilities, something has to give. The speakers in in-house and government positions face unique challenges of dealing with dissenting opinions from within their organizations and balancing the interests of various stakeholders. They spoke of the danger of misspeaking in public and having it attributed to, and thus reflect negatively on, their respective organizations. And not surprisingly, they often must navigate the institutional politics to have their voices heard. Alas, everyone agreed that the trappings of the "golden handcuffs" are very real throughout a lawyer's career, no matter which route he or she takes.

But all is not gloom and doom. Passion for their work exuded from all the speakers throughout the discussion. Toni Ashton analogized the practice of law as a beach (she loves the ocean). Sometimes it's sunny and calm, everything is dandy. Other times the ocean is angry and stormy, making it the last place you want to be. Passion for what you do, she said, is what will carry you through the tough patches. Professor Craig finds gratification in seeing students absorb her teaching and share the same enthusiasm. Martin Herman spoke of the "post-closing high" that he experiences at the end of major projects and his role in influencing the actual decision-making in a major corporation (not to mention being able to fulfill his childhood dream of being close to airplanes). Albert Cloutier gets excited in seeing his ideas reflected in a legislative provision, knowing the difficulty involved in achieving that because of the multiple checks and balances in the legislative process and the political nature of his work. The private practitioners and in-house counsels on the Panel revel in being intellectually stimulated, being immersed in the creative world of marketing people and inventors who open their eyes to a different world, and contributing to the success of an innovation from the start.

The parting words of the panelists were poignant, particularly regarding our tendency to do what we think (or what others say) we should do, rather than what we truly like. "Listen to your gut," says Sue Diaz, "If something seems interesting, try it!" She cautioned against getting too wrapped up with listening to others' "murmurs". Rather, we should always do what we feel is right. Jason Kee echoed that sentiment with the round-hole-square-peg analogy. "Don't try to force yourself into something you're not," he insists, "Be true to yourself. Opportunities will present itself because you gravitate towards what you like". "Life may take you to different directions," says Toni Ashton. To both her and Rex Shoyama, in our navigation through the various options in the IP practice, we must go out there, keep our eyes open, talk to as may people as possible to get different perspectives, and work hard. "And you will find your way," concludes Rex.

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Joining the genre is the popular video game, “Dead Rising”, by the Japanese game maker, Capcom Co. Ltd. The game features a protagonist stranded for three days in a mall where zombies abound. It has many characteristics in common with “Dawn of the Dead”; in fact, so many so that the MKR Group, an independent movie producer and the IP rights holder of the film, is suing Capcom for copyright and trademark infringement.

Prior to the game’s release, MKR approached Capcom accusing infringement, but the two companies failed to arrive at a resolution. Capcom then moved to pre-empt further dispute by (1) having a disclaimer on the game’s packaging, stating “this game was not developed, approved or licensed by the owners or creators of George A. Romero’s Dawn of the Dead”, and (2) filing an application for a declaratory judgment that the game did not infringe MKR's IP rights in the film and an injunction to prevent MKR from asserting those rights at the California District Court. In its filing, Capcom claims that any similarity between two works is “based wholly on the unprotectible idea of humans battling zombies in a shopping mall”.

Despite these efforts and the fact that the game is no longer being produced, MKR sued Capcom this past Monday alleging that “Dead Rising” is essentially the game version of the movie. In particular, MKR states in its filing to the New 91��ɫ District Court that both works “are dark comedies. In both, the recreational activities of the zombies and absurdly grotesque ‘kill scenes’ provide unexpected comedic relief. Both works provided thoughtful social commentary on the 'mall culture' zeitgeist, in addition to serving up a sizable portion of sensationalistic violence." (see ).

The immediate copyright issue is whether MKR holds the right to the “zombies-in-a-mall” theme. Surely MKR owns the copyright in the film, but unless it can somehow argue that the theme is an expression of the classic idea of good vs. evil, the theme remains an idea and thus “unprotectible” as Capcom asserted. It is well established in the Canadian copyright regime that granting copyright to ideas or schemes is simply not in the public’s interest in the encouragement and dissemination of works of arts and intellect. Both s. 64.1(1)(d) of the Copyright Act and case law recognizes this public interest (Galerie d’art du Petit Champlain Inc. v. Thebérge) as well as the need for the copyright regime to balance this interest with justly rewarding the creator of the work. Imagine how dull the entertainment industry and the literary world would be if such creative ideas as “star-crossed lovers” or “international man of mystery” are copyrightable.

In my opinion, MKR’s claim of trademark infringement is unlikely to succeed as well. Given that Capcom disclaimed any association between the game and the movie right on the game’s package, and the fact that many video games contain the same human vs. zombie premise, it would be difficult to prove the likelihood of confusion, .

I understand the importance of asserting one’s IP rights - huge economic interest is involved, and stakes in the outcome of such assertion are high. However, meritless lawsuits may have a chilling effect on the process of creation, and may therefore deprive the society as a whole of intellectual stimulation and worse yet, cultural evolution. This would truly be a great loss to mankind.

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What is interesting about the Thai government's action is that it is perfectly in accordance with international trade regulations. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), members to the agreement have the right to grant compulsory licenses in the face of a national emergency and the freedom to determine the grounds on which such licenses are granted. In addition, the members have the right to determine what constitutes a national emergency. Therefore consultation with pharmaceutical companies is not mandatory prior to issuing compulsory licenses if Thailand feels that it is threatened by a health crisis. When Thailand saw the wholesale of drugs as the only solution after numerous failed attempts to negotiate lower ARV prices with the drug companies, it seized the benefit of the TRIPs provisions and has not looked back since.

The immediate issue arising from the Thai policy is whether a developing country with an inadequately funded public healthcare, when facing a severe national health threat, should be allowed to violate the patent protection of drugs. Proponents of the policy argue that because multi-national pharmaceutical companies derive huge profits from selling less essential drugs (such as Viagra) and spend more money on advertising than on research and development, essential drugs should be made available and affordable worldwide. Opponents of the policy, on the other hand, maintain that governments should not infringe on patents at will just to finance a cheaper health scheme. This is an apparent battle of the conflicting interests of the stakeholders of IP - the right holders who wish to reap the economic benefits of their labour, and the users who desperately need an invention vital for survival in a circumstance of enormous bargaining power disparity. But ultimately the conflict of interest is only a symptom of a larger problem: the Eurocentric concept of
IP has clashed with the priorities of a developing country.

The economic theory justifies IP on the assertion that IP provides an incentive to increase the pool of knowledge in human society. Specifically, patent law is based on the concept of a bargain between the state and the inventor: the former granting the latter a time-limited monopoly in exchange for full disclosure of the innovation and knowledge. But what good is this knowledge if it is inaccessible, due to a patent-induced economic barrier, to those who truly need it? Also, it is possible that the original creator had an altruistic ambition throughout the inventive process. Are we justified to ignore how she wants her invention to be used, even when the invention belongs to a profit-driven drug company by virtue of her employment?

Despite right holder's argument that governments cannot ratify an economic system such as IP (and presumably benefit from it) and then justifiably dismiss it when inconvenienced by it, the reality is that a government's priority changes when faced with a national threat. When a state policy is crucial (or even worse, the only option) to combat a grievous infliction of a developing country and it happens to conflict with patent protection, it makes sense that this bargain with the state is no longer valuable to the state, albeit that the offending policy would give rise to worrying future ramification (an example is Abbott withdrawing all its future products from the Thai market).

It is a gamble for Thailand to address its healthcare problem by taking on the giants of the pharmaceutical industry. If it succeeds, the country could single-handedly revolutionize the economics of the industry; but if it fails, it risks isolating itself from drugs that its people might need in the future. But does a developing country have real choices - to not treat its people, or treat them at the risk of bankrupting the healthcare system to observe patent protection? The best solution has yet to surface.

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