At the beginning of 2020, when the team was first scheduled to compete, compulsory licensing seemed like a fun thought experiment and a great theoretical moot problem about balancing IP rights and public health. It quickly became an eerily relevant issue as the world rapidly shut down and essential medical items like masks, gloves, and ventilators became precious commodities. Doors stayed shut, Wi-Fi capacity limits got tested, and in the wake of the initial disbelief that the world was collectively at war with the most covert of enemies, there was little room to feel disappointment about the cancellation of the competition. As the months wore on, and a new normalcy crystallized, the team got word that the competition was back on, and that the 2020 competitors were invited to return. Two of the team members came back, and a third joined ranks in January of 2021.

The moot organizers pivoted to a Zoom format and accommodated its largest set of teams to date, with 32 schools battling for the title. The first day entailed a virtual welcome ceremony. Moments after the team’s alarm clocks screamed to life at 6:30 am, each member logged into Zoom, sleepy-eyed and afflicted with the most serious cases of bed head. As the organizer scrolled through the competing teams’ slides, it slowly became apparent that Osgoode had miscalculated. Slide after slide passed through the platform, with many a suit and rarely a smile. Then Osgoode’s slide came roaring in with a beaver, a moose, and what appeared to be a team member drinking maple syrup straight from the bottle. Whatever impression they made, the Ozzies quickly made it clear that they meant business. 

The preliminaries were also no laughing matter, as the competition was fierce. Thankfully, Osgoode was blessed with the platinum package for coaching and the preliminaries were passed through with a breeze. As the team advanced on, excitement in the Osgoode community rose. The team entered the final match, buttressed with support from all angles in the Oz community, the IP space, and from their collective friends and family. The online format uniquely allowed all supporters to watch their team in action, and we felt the love. While Osgoode ultimately lost out in the grand final, the opportunity to experience this competition was a big “W”.

To our 2020 team member, Julianna Felendzer, we hope we did you proud. Thanks for helping us secure the invite to the oral rounds!

To our coaches Jennifer Davidson, Stephen Selznick, Any Obando and Giuseppina D’Agostino, we are forever grateful for your dedication and your support, especially when it was just a “hair toss, check your nails” kind of day!

Co-written by Anna Morrish, Alex Dumais, and Karin Kazakevich, 2021 Oxford International Intellectual Property Law Moot Runners Up

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The potential detriment to brand value from this parasitic practice has become such a concern that the International Olympic Committee (IOC) insists that host countries enact special protection legislation over their marks and Games space. Even with these protections, the issues are challenging to manage from both a legal and PR perspective.

This was the subject matter students from around the world contemplated and debated at the . The moot problem gave law students the opportunity to tackle the legal intricacies of ambush marketing and develop arguments for and against the special legislation within the context of the moot issues.

The (Similar to the Olympic Games) in the equally fictional jurisdiction of Erewhon (a semi-palindrome of ‘nowhere’). Outside Games venues, an animal Sanctuary with no relationship to the Games, posted four identical billboard advertisements depicting a photograph of two juvenile billibies (fictional animals) atop the tag line “For more fun and games, visit the Erewhonian Animal Sanctuary”. This paralleled the two cartoon billibies that had been designed and launched as the Games’ official mascots. Unauthorized use of billiby indicia and the word Games was prohibited under special Erewhonian legislation (the Indicia Act) designed to create a limited monopoly over use of Games’ marks.

To add to the fun (and games), the problem also included a second respondent who had initially been the illustrator of the Games mascots, but later became dismayed by a perceived hyper-commercialization of the Games organizers. He chose to comment by drawing imposter mascots engaging in distasteful behaviours. He put these images on products and sold them to the public. These actions potentially violated both the Indicia Act and copyright law. Under copyright law, the illustrator claimed statutory defences of fair dealing and a rarely used subsequent works of the artist defence.

The moot is designed in two distinct parts – the written rounds and the oral stage. Approximately fifty teams from law schools around the world submitted facta to the Oxford moot using international jurisprudence and legislation to support their ambush marketing arguments. The organizing committee selected the top twenty-four facta and invited those teams to Oxford for the oral rounds. , since Osgoode first participated in the moot in 2015, Osgoode Hall Law School made the cut.

The team had eight weeks to prepare for the oral rounds with the dedicated assistance of their coaches, and of Cassels Brock, and the ; with this dream team, Osgoode’s international IP mooting squad entered the oral rounds armed with the skills to compete in this illustrious international competition.

This year, the moot had representation from Canada, United States, United Kingdom, Germany, Belgium, Australia, India, Singapore, China and Malaysia. The preliminary round consisted of four moots. Osgoode faced some terrific talent with solid, well-reasoned submissions. At the end of these rounds, the teams, their coaches. distinguished jurists, practitioners and academics joined together for an evening of conversazione, including an enchanting formal dinner in the palatial 19^th century Pembroke Hall. At the end of the evening, the top eight quarter-finalists were announced and Osgoode was named amongst this distinguished group.

The team members, Jennifer Davidson, Jacquilynne Schlesier and Colin Lyon, wish to extend their sincere thanks to the dedicated practitioners, professors, administrators and students who assisted in the preparation process: The Honourable Mr. Justice Marshall Rothstein for his insight and feedback; Stephen Selznick and Stephen Henderson for their tireless support throughout; IP Osgoode Founder & Director, Prof. Giuseppina D’Agostino for her continuous encouragement; Andrew Shaughnessy of Torys LLP, David Tait and Rebecca Crane of McCarthy TĂ©trault; Urszula Wodjtyra, Kevin Siu and Lou Chang of Smart and Biggar / Fetherstonhaugh; Michelle Li, Dr. Carys Craig, Natia Tucci, Faisal Bhabha and Aviv Gaon of Osgoode Hall Law School; and the Osgoode Student Mooting Society. The team is endlessly grateful for your support.

Left to Right: Prof. Giuseppina D'Agostino, The Honourable Marshall Rothstein, Jennifer R. Davidson, Jacquilynne Schlesier, Colin Lyon

Left to Right: Aviv Gaon, Jacquilynne Schlesier, Jennifer R. Davidson, Colin Lyon

Jennifer R. Davidson and Jacquilynne Schlesier are JD Candidates at Osgoode Hall Law School and members of Team Quatchi for the Oxford International IP Moot. 

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My experience with the was nothing short of phenomenal. This is real-time law at its best, with fresh issues, high stakes and a wide range of concepts and media to master. IP lawyers at the CBC are involved in almost every aspect of the broadcaster’s affairs in one way or another. During my internship as part of , I had the opportunity to work in corporate and commercial matters, contracts, procurement, litigation, sponsorship, defamation, piracy, privacy, acquisition and distribution deals, licensing, broadcast law, media law, regulatory compliance, copyright and trademark – not bad for 10 weeks!

Watching the news unfold from inside Canada’s national broadcaster brought new insight into the making of the news and all that goes into it. This fall there was no shortage of events to follow –from the highs and lows of the federal election to the shocking attacks in Paris. CBC’s outstanding team covered it all – and the legal team supported the on-air group on every step of the journey.

One central theme dominated much of my internship experience – the federal election. While Canadians watched the news from the comfort of their homes, I had a behind-the-scenes view. Elections are filled with moment by moment scandals, sound bites and attack ads. The information that comes to your TVs every evening does not come together easily. Much of what makes the news is contentious and touches upon areas of legal danger-zones – privacy, confidentiality, whistleblowing, libel and defamation – to name a few. Journalists require immediate advice when there is a concern. This is real-time law, and there are no ‘take-backs’ once they go live. Fortunately, CBC has a stellar team waiting to take the call and put out the fire. It was fascinating to watch and work with CBC’s in-house counsel to provide real-time answers to these issues. They say the camera never stops rolling, but from my experience, it is the lawyers who never stop moving.

As a crown corporation, CBC is constantly juggling its obligations. The same is true of the lawyers who represent it. In every decision, in-house counsel must consider their obligations to their client, the best interest of the Company, and the overall ethical considerations of CBC as the nation’s public broadcaster. There are a lot of perspectives and parties to consider, and those positions do not always agree.

Much of my day-to-day responsibilities consisted of working with in-house counsel in contractual negotiations with outside parties. This required close communications with the Company’s various components to ensure that we understood their needs and represented accordingly. The ability to work closely with all areas of the Company allow the legal team to be involved in every step of the creative process, from pre-production and pre-licensing, right through to concept meetings, rough cut screenings and final cut edits, to post-air blowback, and third party content distribution. This is all in a day’s work for in-house counsel.

I have come away with so many practical tools from my time in-house at CBC, the most important of which are those lessons you can never learn in a classroom; such as the importance of considering all angles and all parties to a problem from legal, ethical, and business perspectives. I have learned that legal advice is only as effective as the vehicle that delivers it – in law school we pride ourselves in delivering arguments thick with legalese – but in business, communications must be delivered in terms that will be understood across the board. Most of all, I have learned that there is a place for lawyers within the development of the arts in Canada – it is a welcoming and thriving atmosphere where there is much to learn and even more to do.

This internship provided a hands-on learning environment to the practice of real-time law at its best. I encourage any student interested in a career in Media, Broadcast and IP law to apply to this intensive placement. My internship at the CBC sits at the apex of my law school experiences. I feel privileged to have had the opportunity to learn so much from such an excellent team.

Jennifer R Davidson 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 protects the exclusive right to produce/ reproduce a work, or any substantial part thereof (s 3(1)); while fair dealing exceptions provide a limited user right when the ‘use’ is undertaken for the purpose of research, private study, education, parody, satire (Copyright Act, s 29), criticism, review (s 29.1) or news reporting (s 29.2).[1]

Legal scholar Michael Geist is an outspoken advocate for the political parties’ position. He that most clips are just a few seconds long, making them an insubstantial part of the overall work. The Copyright Board has held that an ([2015] CBD No 2 at 177). Geist further argues that even if the clips were found to be of a ‘substantial nature’, some uses may fall within fair dealing’s criticism exception or even as a form of research. This argument may be assisted by the Supreme Court’s guidance that fair dealing “” (2004 SCC 13 at 48). As Geist notes, certain characteristics of political ads would do well in a fair dealing analysis; a Court may find that “.”

Despite this prospect, broadcasters remain undeterred from efforts to limit unauthorized use of their materials in political advertisements. Jennifer McGuire, General Manager of CBC News, emphasizes that “.” Canadian broadcasters hold grave concerns about the effect of misrepresenting an interview out of context, particularly when attack ads have visual connections to reporters or network branding. The principle of journalistic independence could be undermined by such appearances, making the reporter or network appear to have a partisan bias.

Prior to the announcement of the last federal election, a broadcasting consortium of the largest Networks in Canada, including CBC/Radio Canada, Shaw, Rogers and Bell, penned a letter to political parties announcing that its members “.” This unprecedented collaboration limited the materials available for ads run on major Canadian networks.

In an apparent response, the Federal Government proposed introducing a into the to provide political parties with the enumerated right to use news content for political advertising. However, the discussion ; possibly because the practice could already beprotected under current fair dealing provisions.

Attack ads have become entrenched in election campaign toolkits. As such, it is only a matter of time before the issue is tested in Court providing clarity on whether the practice should be included as a user right in a “” of fair dealing (2004 SCC 13 at 51; affirmed: 2012 SCC 36). However, even using this interpretation, it is difficult to conclude that the Courts would allow copyright-protected material to be twisted for political gain under the guise of fair dealing. A fair dealing analysis for the purpose of research would have to consider the ultimate users. The larger question is whether research can properly be undertaken when video clips have been deliberately manipulated for desired effect. The analysis would also consider the dealing’s effect on the copyright holder, which, as McGuire articulates, compromises journalistic integrity. These factors should weigh heavily on the mind of a trier-of-fact.

The largest hurdle in such a matter may be the substantiality analysis. While Geist points out that the news clips in political ads are quite short, they are not necessarily insubstantial. The question at the heart of a substantiality analysis "” (2013 SCC 73 at 39).

Jennifer R. Davidson is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] To qualify under criticism, review or news reporting under fair dealing, source credit is required.

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Every year, the Oxford Intellectual Property Moot Committee selects the top 24 teams to take part in the invitational oral rounds of the moot at Oxford University. To become eligible, each team must submit appellant and respondent facta in response to a moot problem that deals with at least two IP issues in a hypothetical jurisdiction of “Erewhon” (a semi-palindrome of “Nowhere”), a land which finds all case law and legislation persuasive, but none binding.

Over 50 schools submitted their facta in hopes of competing in Oxford. The top 24 teams were selected from countries such as: England, Germany, Singapore, China, Australia, India, the United States of America, and Canada.

This year, for the first time in the history of the moot, was invited to participate in the oral rounds. The Osgoode team was comprised of Lou Chang, Jennifer Davidson, and Anastassia Trifonova.

This year’s team had a great deal of help in preparing for the moot. The team was tirelessly prepped and coached by biotechnical and pharmaceutical patent practitioners Sheldon Hamilton, Urszula Wojtyra, Andrew Mandlsohn, and Kevin Siu from . The team also received assistance from Mark Biernacki and Brian Isaac of Smart & Biggar / Fetherstonhaugh; David Tait of ; Andrew Shaughnessy of ; Natalie Rizkalla-Kamel, Kevin Sartorio, Selena Kim, and Laurent Massam of . At Osgoode, the team received support and guidance from renowned IP Law Professor David Vaver; Professor Giuseppina D'Agostino, Founder  & Director of IP Osgoode; Michelle Li, Assistant Director of IP Osgoode; Professor Faisal Bhabha, Director of Mooting and Natia Tucci, Administrative Assistant of Mooting.

This year’s moot problem was based on patent infringement and breach of confidence. In the problem’s scenario, the Appellant, an agricultural biotechnology corporation called “Santos Halper Limited” alleged that the Respondent, “Ms. Van Outen”, was liable for breach of confidence by hiving genetically modified “Snowball bees” that swarmed onto her farm. Additionally, Santos Halper Limited claimed that Ms. Van Outen had infringed its patent rights by harvesting seeds for its “StampOut maize” that travelled onto her farm by way of wind pollination. Despite the numerous Simpsons references to keep the teams and judges laughing, the problem touched on many difficult issues that the world of IP currently faces, in particular, the clash of intellectual property rights with real property rights.

At Oxford, the events were a whirlwind of activity. On the day of arrival, each team mooted twice, once on the appellant side, and once on the respondent side. The day’s moots were concluded with cocktails at the University club and an opportunity to network with panelists and mooters. Day two brought two more rounds of competition. Of the four moots in the preliminary rounds, each had competitors from different countries, with different styles, and judges from different places, with diverse backgrounds. Stylistically, competitors had to gauge the room and alter their own strategy to match the conditions.

After the two days of mooting, participants and judges were all invited to a large lecture hall to engage in a master class on the issues of the moot entitled “IP Speeding the Plough?”, with world class experts in the field. This year, panelists included a top zoologist, Dr. Manual Berdoy, from Oxford University; Professor Daniel Kelves, a History Professor at Yale Law School with a specialization in the evolution of intellectual property in plants; the Honourable Mr. Justice Birss, of the High Court of England and Wales; Mr. Andrew Waught QC, a barrister with an intellectual property practice, who represents Monsanto in Europe; and Professor Tanya Aplin, a Professor of Intellectual Property Law at the School of Law, King’s College London and author of ‘Gurry on Breach of Confidence’. The master class discussed the history and the future of the bioagricultural sector and the importance of trade secret and patent protection to incentivize innovation and balance public interest.

The lecture was followed with a reception and dinner at Pembroke Hall, a 15th century building, where mooters, guests, judges and observers alike discussed the evening’s topics and posed questions to the panelists. At the dinner, the quarter-finalists were announced with only one Canadian team, University of Ottawa, making the cut.

The next day saw even more extraordinary mooting with quarter-final, semi-final, and final rounds of the competition. The final competition was between Monash University (Australia) and National Law School of India University. The teams faced a panel comprised of Lord Justice Floyd, Lord Justice Kitchin and, the Honourable Mr. Justice Birss. Both teams had a wealth of profound questions put to them and the high quality of answers they provided illustrated the tremendous amount of preparation that went into the competition. But at the end, there could only be one winner, and the court found the title belonged to the National Law School of India University.

Overall, the experience of mooting against the world’s best in IP was an unparalleled opportunity to bond over the craft of mooting with a wide variety IP professionals, academics and mooters. The Oxford IP Law Moot is a competition which perfectly embodies the international nature of the field. The Osgoode team had a delightful experience at the moot and is hopeful that this is the first of many years where Osgoode represents Canadian talent on the international level.

From left: Anastassia Trifonova, Lou Chang, Jennifer Davidson

Jennifer Davidson and Anastassia Trifonova are JD Candidates at Osgoode Hall Law School and IPilogue Editors.

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In pre-action communications, Twitter sent the Defendants a draft transparency report containing the aggregate number of surveillance requests received. The Defendants denied Twitter’s request to publish, claiming that the information contained was deemed classified as it did not adhere to the “framework for reporting data about government requests.”[1]  This framework was in a settlement agreement between Google (et al) and the Attorney General.

Google, Microsoft, Facebook, Yahoo and LinkedIn filed last year claiming that the statutory publication ban of surveillance request statistics violated their First Amendment Rights. In early 2014, the parties reached a negotiated agreement allowing the plaintiffs to publish data in one of two pre-approved disclosure formats; each approved format allowed the publishing of figures in bands of one thousand (e.g., 0-999 (“NSL”) requests received).

Twitter did not participate in this action, speaking out publicly against it after the agreement was announced.  The criticisms centered around the belief that the bands are too broad and that any disclosures would require “.”  Furthermore, they hold that the framework should not apply to them as they were not party to the action and should not be bound by its outcome.

It is likely that the Defence will rely on a notice adjoined to the Settlement Agreement which announced the DOJ’s intention that the Agreement not be limited to the parties of the action. The notice stipulates, “It is the Government’s position that the terms outlined in the [Settlement Agreement] define the limits of permissible reporting for the parties and other similarly situated companies.”[2]

While the definition of ‘similarly situated companies’ has yet to be further elaborated upon, it is likely that the defence will argue that such a framework was designed to be a working model for all such disclosures. Twitter argues in the action that the DAG Letter does not legally bind Twitter, and even if it does, Twitter is not 'similarly situated' to the other companies.

"It's our belief that we are entitled under the First Amendment to respond to our users' concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance—including what types of legal process have or have not been received," wrote Ben Lee, Twitter Vice President, in a . "We should be free to do this in a meaningful way, rather than in broad, inexact ranges."

The lawsuit marks the latest in a series of courtroom battles held in the wake of former National Security Agency (NSA) consultant Edward Snowden’s exposĂ© on the US Government’s surveillance activities. At its crux, each suit marks attempts by US-based social media giants to increase transparency by reporting figures of government surveillance requests on user accounts.

Snowden first brought the issue of Silicon Valley’s participation in government surveillance projects in a ground-breaking whistleblower interview with (2013).  The interview has been called the biggest intelligence leak in the NSA’s history.[3] Post Snowden, Social Media companies have made strides to win back pubic confidence; part and parcel to this effort has been the voluntary reporting of the numbers of government surveillance requests received.

The legal battle that Twitter has waged has left a lot on the line for public policy. A decision by the Court will create a precedent on what restrictions should be placed on disclosure; one that will legally bind and dictate the future handling of the release of such information. An outcome in favour of Twitter could have the effect of overruling the Settlement Agreement and increasing disclosure capabilities for social media companies. US President Barack Obama identified increasing transparency as a priority in a : “We will also enable communications providers to make public more information than ever before about the orders that they have received to provide data to the government.”[4]  Such a ruling would ease online social media users concerns and help mend the public distrust created by Snowden’s exposĂ©. It would also solidify Twitter’s place as a leader in transparency reporting, an enviable position in the fight to gain and maintain user trust and loyalty.

Jennifer R Davidson is an IPilogue Editor and a J.D. candidate at Osgoode Hall Law School.

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