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Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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In anticipation of Canada’s federal election on September 20, 2021, it is relevant to research the federal parties’ platforms as they relate to intellectual property (IP), innovation, and technology. In this post, I will look at the of the Liberal Party of Canada (“Liberal Party”) and the Green Party of Canada (“Green Party”). Make sure to check out my colleague ’s post investigating .

��The Liberal Party of Canada’s 2021 Federal Election Platform

Three main points involving technology and intellectual property stick out in the Liberal Party’s platform for the upcoming election:

1.Prime Minister Justin Trudeau has yet to confirm if he supports the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Waiver.

As push to support and request that wealthier countries relax their IP protection laws to ensure the COVID-19 vaccine is shared globally, Prime Minister Justin Trudeau has yet to comment. In May 2021, Trudeau said that he supports sharing vaccines globally and that he . However, this was the last time Trudeau spoke publicly about the matter, and he has yet to acknowledge it while campaigning. Three days after his comment, published a to the Prime Minister, urging him to support the waiver and help countries like India and South Africa combat their COVID-19 outbreaks.

2. The Liberal Party plans to create , an initiative “to help innovators access expert intellectual property services, with $90 million over two years, and another $75 million over three years for a similar Industrial Research Assistance Program for high-growth firms.”

The Liberal Party sees this investment as supporting small businesses, innovators, tech start-ups, and more. The Liberal Party acknowledges the value of IP and states that they would love to see the economy use the IP community for growth opportunities. As such, they plan to support ElevateIP with a Strategic Intellectual Property Program Review, which will assess this initiative and help programming from the start of research to near-commercial projects. This initiative is said to ensure Canadians reap the benefits from the IP and tech industry. ��������������������

3. The Liberal Party plans to renew the .

In 2017, the Canadian government for the world’s first nationwide Artificial Intelligence (AI) strategy. The strategy aims to foster a more collaborative AI environment by attracting AI researchers to the country. Additionally, the Liberal Party hopes to advance national initiatives in the AI community to help society better understand the implications of AI. Renewing this strategy would bring Canada to the forefront of the global AI community.

The Liberal Party’s platform includes a few more noteworthy points. The Liberal Party hopes to provide to support small business technology needs and connect those small businesses with younger people looking for tech careers over four years. The platform also speaks to helping large-scale energy technology projects by providing them with $1 billion over five years. Lastly, the Liberal Party plans to create the Centre for Innovation and Clean Energy in British Columbia during their next term, with an estimated cost of $35 million.

The Green Party of Canada’s 2021 Federal Election Platform

The Green Party has yet to release a full election platform. Leader Annamie Paul says that circumstances are different this election and anyone who wants to see the Green Party’s platform can “.” For the party known to be environment-focused, Paul states that not much has changed since the 2019 election. Paul reiterated this when British Columbia’s heatwave claimed multiple lives earlier this summer.��

With this, three noteworthy points emerge from the Green Party’s platform as they relate to IP, innovation, and energy:

1.The Green Party plans to in First Nations communities, aligned with the .

This point intersects with several issues, including economy and affordability, Indigenous affairs, and energy. The Green Party hopes to partner with Indigenous communities to revamp the east-west electricity grid to transmit renewable energy from one region to another. This will create renewable energy for First Nations communities at a lower cost than building a new grid in areas without access to these energy sources.

2. The Green Party plans to invest in comprehensive training programs to repurpose the skills of industrial trades workers for jobs in the renewable energy sector.

The Green Party hopes that this plan will provide skilled workers in Canada with secure employment opportunities.

3. The Green Party hopes to implement an energy efficiency retrofit program for all buildings.

“Energy efficiency retrofitting” upgrades a building’s energy-consuming system. Retrofitting could involve improving light fixtures, windows, doors, ventilation, or insulation to make ��buildings more energy and economically efficient. The Green Party hopes to create a program to make sure buildings around Canada can help fight the climate crisis.

The Green Party still has time to release a new, expanded platform within the coming weeks.

The post The Parties’ Plans for IP: Liberal Party & Green Party appeared first on IPOsgoode.

Screenshots from and .

Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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As the election nears, my colleague Shawn Dhue and I are looking at the major parties’ plans for Canada in IP-related areas. This article will cover the platforms of Erin O’Toole and the Conservative Party of Canada as well as Jagmeet Singh and the New Democratic Party. For information on the Liberals and Green Party, check out Shawn’s article. Below are select pieces of and that address the CPC and NDP’s plans for Canadian IP and related areas respectively.

COVID-Related Trade Policy

• Reinstate the tariff on imported PPE.
• Support the Trade-Related Aspect of Intellectual Property Rights Waiver (TRIPS) to waive IP rights for COVID vaccines and ensure technology transfer between nations.

Media Policy ��

• Introduce a digital media royalty framework to ensure platforms like Google and Facebook compensate Canadian media outlets for the sharing of their content. This will include a robust arbitration process and the creation of IP right for article extracts shared on social media platforms.����
• Make sure that Netflix, Facebook, Google, and other digital media companies play by the same rules as Canadian broadcasters.

Privacy Policy

• Pass strong legislation to protect privacy more effectively.
• Work to strengthen privacy protections for Canadians by updating privacy legislation to include a digital bill of privacy rights and boost the powers of the Privacy Commissioner to make and enforce orders, as well as levy fines and penalties.

Data Policy

• Create a technology task force within the Competition Bureau to examine whether dominance and anti-competitive behaviour of big tech is damaging to Canadian industries.
• Examine how algorithms and data give big tech an advantage over Canadian businesses, as well as how fintech and new technologies could foster competition.
• Prioritize the collection of race-based data on health, employment, policing and more with the goal of improving outcomes for racialized communities.

Innovation Policy

• Launch a review of innovation programs at Innovation, Science and Economic Development Canada and across the government and, among other things, implement requirements:
  • All recipients demonstrate that IP, production, ownership, and profits are likely to stay in Canada; and
  • All IP developed with the support of the Canadian government is held by a Canadian entity and that recipients agree to pay back the subsidy if they sell the IP to a foreign buyer.
• Invest $5 billion over the next 5 years to fund programs in: Use of hydrogen; Small Modular Reactors; Private sector innovation in the space sector; Electric vehicle development and manufacturing, including electric trucks, micro-mobility, batteries, and parts manufacturers; and pharmaceutical research and production.
• Restore the Automotive Innovation Fund and make contributions to automakers tax-free.

Jobs/Labour Policy

• Pay up to 50% of the salary of new hires for 6 months following the end of the Canada Emergency Wage Subsidy
• Invest in forestry innovation and support value-added Canadian wood products – and the good jobs that go with them.
• Support more options for women to build careers in the trades and other non-traditional fields like agriculture, innovation, research, and STEM.
• Support paid sick leave and prescription drug coverage.

Environmental Policy

• Implementing an affordable carbon price: Starting at $20/tonne and increasing to $50/tonne but no further.
• Work with the provinces to implement a national Personal Law Carbon Savings Account that consumers can pay into each time they buy hydrocarbon-based fuel. They can then put this money towards things that help them live a greener life (e.g., buying a transit pass or bicycle).
• Make Canada an innovation leader on methane reduction in areas such as:
  • Real-time monitoring for a leakage detection;
  • Ensuring that provincial methane regulations are genuinely equivalent with the federal regulations; and
  • Increasing the ambition of those targets in the 2025-30 period.
• Create a National Crisis Strategy to help communities reduce and respond to climate risks, as well as a new Climate Corps of young workers to respond to climate impacts and build an equitable clean-energy economy.

Foreign Policy

• Protect Canadian IP with a strengthened that includes, among other things:
  • A presumption against allowing the takeover of Canadian companies by China’s designated state-owned entities; and
  • A reformed “net benefits” test to better account for the potential effects of a transaction on the broader innovation ecosystem with a particular focus on protecting IP and human capital.
• Revoke visas of Chinese nationals identified by national security agencies as conducting espionage or stealing IP.
• Adopt measures to stabilize the Canadian steel market and protect the sector from predatory practices of foreign producers who are shut out of other markets.

The post The Parties’ Plans for IP: CPC & NDP appeared first on IPOsgoode.

Videotaping, the Internet and Strike Tactics in the Context of Privacy Legislation

In 2006, workers at the Palace Casino at West Edmonton Mall engaged in a lawful strike which lasted 305 days. During the course of the strike, the Union videotaped and photographed people crossing the picket line. The Union placed signs in the area warning people that images of people crossing the picket line may be placed on a website called www.casinoscabs.ca.

None of the complainant’s photos were actually placed on the website. An image captured of the vice president of the casino, however, was used in a mock “police mug shot poster” and in other satirical ways – although apparently with consent. Yet privacy statutes capture both the use and the collection of personal data. Therefore, even though the materials were never actually disseminated over the Internet, the Union’s activities fell within the application of Alberta’s (“P���ʴ�”).

Nor did the fact that the photos and videotape were taken in public exempt the activities from PIPA. PIPA, like most privacy statutes, dispenses with consent for the collection of publicly available information. Yet the concept of publicly available information is narrowly defined under the . These regulations, which mirror the under PIPEDA, limit the definition of publicly available information to certain information contained in directories and registries when used for a specific purpose, information contained in a judgment or record of a quasi-judicial body, and information contained in a magazine or news publication. As the Court of Appeal noted, “Under the Act, ‘personal’ information is not the same thing as ‘private’ information.”

The Appropriate Remedy for Offending Provisions in Privacy Legislation

All levels of court recognized the need to balance legislation intended to protect an individual’s privacy with constitutionally entrenched concepts of freedom of expression. All three levels of court– , , and the Supreme Court – agreed that the Union's collection of personal information conducted in support of its strike could not be restrained by PIPA.

No level of court had difficulty concluding that the videotaping and photographing of individuals near the picket line constituted free expression within the meaning of s. 2(b) of the Charter. Nor could the application of the ������’s restrictions to the Union’s activities be justified under s. 1. While the restrictions put in place by PIPA were rationally connected to its aim of protecting personal information, the means by which the Act protected this information were not proportionate.

The constitutionality of these restrictions on��the Union’s speech was hardly a controversial issue. The key difference between these decisions, however, is the manner in which the differing levels of courts attempted to provide an outcome consistent with the rights guaranteed in the Charter. In the initial appeal of an adjudicator's decision to the Queen's Bench, The chambers judge attempted to use existing exceptions under PIPA in order to avoid the application of the statute and a finding of constitutional invalidity. She included the Union’s activities under the definition of “journalism”, which the Act exempts from its application entirely.

At the Court of Appeal, the court characterized the chambers judge’s attempt to remedy the breach of the Union’s constitutional right as “expansive and somewhat artificial.” Analyzing the situation as “journalism” was not particularly helpful, as not every piece of information posted (or intended to be posted) on the Internet qualifies as journalism. However, the Court of Appeal declined to strike out or read down the statute in any way. It instead issued a declaration that the application of the Act to the Union’s activities was unconstitutional.

In contrast, the SCC, at the request of the Government of Alberta and the Privacy Commissioner, declared the entire statute invalid to allow the legislature to redraft it as a whole.

The remedy granted by the Supreme Court shows the importance of well drafted, balanced privacy legislation. By invalidating the legislation entirely, rather than striking out portions or expanding definitions, the Court has allowed the Province to draft legislation which fits within the delicate framework in which privacy protection operates. Following the reasoning in UFCW, appropriate legislation would sufficiently recognize exceptions to the statutory scheme which allow entities affected by the Act to exercise their freedom of expression, while still preserving protections for individuals from organizations which seek to misuse personal data.

Moreover, a finding of invalidity more closely follows well established Supreme Court precedent. While the��courts are the guardians of the Constitution and the individual rights protected by it, it is not up to the courts to provide details that would “”

What’s Next for Privacy Legislation in Canada?

There are important implications for this Decision. Most apparent, the offending sections of PIPA closely resemble the federal privacy statute PIPEDA. Like PIPA, PIPEDA contains no exceptions which would permit a union to use personal information in order to gain an economic advantage during the course of negotiations.

As was noted by the SCC, PIPA was inspired by . Its stated purpose is “almost identical” to the federal act. However, the Court maintained that the scope of PIPA was considerably broader than that of PIPEDA. Unlike PIPEDA, PIPA does not restrict its application to activities undertaken for commercial purposes. Yet it is unclear how this restriction could render PIPEDA constitutional, as an of in shows that the protection of freedom of expression includes commercial speech. While the scope of PIPEDA is more limited than its Albertan counterpart, it remains unclear if the similar provisions in the federal statute would survive a similar constitutional challenge.

Similar problems exist for a recent federal law popularly known as (“CASL”). CASL applies to a broad category of activities classified as “commercial electronic messages.” In order to soften the impact of the law, various exceptions have been created to its application through regulations. However, given the potentially broad scope of the legislation, CASL will probably lead to significant litigation once it is enacted. Once again, the courts will attempt to determine the proper balance between the harms addressed by such statutes and the rights restricted through the statutes’ application - and whether or not these protections are a proportionate response to the harms they seek to address.

David Bowden is an IPilogue editor and a JD Candidate at Osgoode Hall Law School.

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