Although we called it the “Stanford” or the “” placement, it could have just as easily been called the Silicon Valley placement. Truthfully, as have pointed out, there is little divide between university and industry. Stanford-affiliated entrepreneurs generate revenues of and have created 39,900 companies and 5.4 million jobs since the 1930s. Many of our favourite companies came out of Stanford – Google, Instagram, Netflix, Paypal just to name a few. Stanford even has what I would call a Mickey Mouse Club for entrepreneurs, a startup accelerator called , where young inventors form a community for sharing, learning, and support. From its conception two years ago, over 650 companies have applied for a spot at StartX with about 60 accepted. These companies have collectively fundraised over $88 million in funding. Among my favourite experiences during my placement was taking a tour of StartX to see inventors hard at work as well as attending the demo day where startups showcased their products.

One of the StartX companies, was also a project of the center I was placed at, . CodeX is a multidisciplinary laboratory between the Law and Computer Science departments at Stanford and focuses on legal technology and informatics. You may be unfamiliar with legal technology despite, perhaps, being well-versed in the law and legal industry generally. Like other kinds of technological innovation, legal technology is beginning to grab a foothold in Silicon Valley but is virtually unheard of elsewhere in the world.

I will explain what legal technology is with an example. Imagine that there was some way of compiling litigation data so that you could predict with some confidence what the outcome of a trial will be based on who the parties are, which law firms are representing them, what the issue is, and which judge is trying the case. Imagine that this information could help you decide whether to settle and if so, how much to settle for. This is exactly what founded by Professor Mark Lemley in 2006 is in the business of doing for intellectual property litigation. Lex Machina uses crawlers to extract documents from and performs analytics on its collected data to help lawyers and companies to make decisions. Lex Machina also recently released a very interesting on the litigation patterns of patent trolls. The study analyzed 500 cases over five years and compared the behaviour of trolls (called “monetizers” in the paper) and operating companies. They plan to release a new paper with a much greater sample (approximately 12,000 cases) for which I have been conducting research for.

Of course, litigation data analysis is just one kind of legal technology. Law Gives focuses on access to justice by providing the public with legal information and connecting potential clients with pro bono lawyers when necessary. allows users to compare legal fees between attorneys. provides quick and cost-efficient e-discovery services. generates documents for wills and estate planning. The list goes on – and all of these companies have looked to CodeX and Stanford for mentoring and support. Stanford is more than just a Mickey Mouse Club for entrepreneurs; the flow of people and ideas go both ways.

Stanford is an institution that always has its doors open, whether it’s for public with speakers from to or taking a class at the famed . Over the course of my internship, I attended a dozen meetings, met incredibly interesting people, many of whom were experts of law, technology, or often, both, analyzed technology transfer policy, , saw the , took a tour of the Google campus, researched patent cases, wrote a privacy policy article, and got a glimpse of the future of the legal industry. Not only did I gain valuable experience, I learned to view law in a different way.

*Oh, and I also ate dinner behind Mark Zuckerberg and his wife so I got in some celebrity watching after all.

Nancy Situ 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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In testing, the cars, which were manned by trained operators, drove around California, from Mountain View to Santa Clara and on to Hollywood Boulevard. They successfully navigated the Pacific Coast Highway, crossed the Golden Gate Bridge, and even made it around Lake Tahoe. The test cars logged over 140,000 miles in total. The following year, explaining how autonomous cars could save lives, time, and fuel. The National Highway Traffic Safety Administration reported , the leading cause of death . Furthermore, the majority of car accidents can be attributed to driver error and other human factors (from to as high as ) that would not be present in driverless cars.

Still, the public has not been unanimously welcoming of autonomous cars. concerned with privacy issues. Since Google’s cars rely heavily on Google Maps’ GPS technology, they could track the car wherever it goes. Not only would this make many people uneasy, the data could potentially be presented as evidence in court. In United States v. Jones, the Supreme Court ruled that data collected from a GPS device police placed on the underside of the defendant’s car without a valid warrant was not admissible. However, there was no discussion on how to treat such information held by a third party like Google Maps. In the past, American courts have consistently held that a person has no legitimate expectation of privacy in information voluntarily turned over to third parties (e.g. Smith v. Maryland, ; United States v. Miller, . This premise was challenged by Justice Sotomayor in (at 5), who argued that “[t]his approach is ill suited to the digital age." Indeed, we often disclose personal information (like phone numbers, visited URLs, purchase histories) to third parties in our day-to-day activities. This could very well include our geographical location if autonomous driving becomes prevalent on the roads.

legal issue is accountability. While driverless cars may well significantly reduce the frequency of motor vehicle accidents, the number will never be zero. The question is, when driverless cars do get into accidents, who is liable? An by Andrew P. Garza recently published in the New England Law Review posited that product liability law is capable of handling the advent of autonomous cars just as it handled earlier safety devices such as seat belts, air bags, and cruise control. Garza argued that though manufacturers have been historically resistant to incorporating new technologies fearing increase in liability, they would benefit from autonomous vehicles in the long run because of three reasons. Firstly, autonomous vehicles are safer on the whole, which leads to a net decrease in manufacturer liability and the cost of insurance. Second, the sophisticated technology of autonomous vehicles will reduce litigation costs by decreasing reliance on expert testimony as well as the number of cases that go to trial. Electronic Data Recorders and Lane Departure Warning System cameras installed in driverless cars will act as black boxes to record information on how the accident occurred. This objective information will aid parties in product liability actions to assess the potential outcome of their suits, making trial outcomes more predictable and settlements more likely. Lastly, Garza reasoned that since modern customers are more likely to purchase vehicles with higher safety ratings, the market would inevitably be promising for autonomous vehicles as they gain mainstream awareness.

One point to mention is that Garza was strictly discussing autonomous vehicles that can be overridden by human drivers (like Google’s self-driving cars). However, he suggested that once these overridable autonomous vehicles become popular, there would likely be a shift to fully autonomous, nonoverridable vehicles. Although three states now allow driverless cars on the road, a licensed human driver is still to be in the driver’s seat. The human driver must be able to take over in the event that the technology malfunctioned or was unable to anticipate or accommodate some obstacle. Should the human driver fail to perform adequately, s/he would inevitably be accountable for any damages incurred. If fully autonomous, nonoverridable vehicles ever become permitted on the road, the lack of any human driver would present further liability to manufacturers.

Nancy Situ is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.�� As part of the program requirements, students are asked to write a blog on a topic of their choice.

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The Canadian Court emphasized two major principles of the Copyright Act in the rulings: first, to obtain a balance between promoting the public interest in the encouragement and dissemination of works and providing a just reward for creators and second, to maintain technological neutrality.

Two of the decisions pertained to fair dealing (the Canadian parallel to fair use) with the Court leaning toward a large and liberal interpretation consistent with landmark case CCH v. Law Society of Upper Canada, . In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), , the Court held that photocopying performed by schoolteachers for the purpose of distribution to their students (but not at students request), constitutes fair dealing under “research or private study”. Canada also recently passed a new copyright bill () that added “education” as an enumerated purpose qualifying for the fair dealing exemption.

(For more on the Access Copyright ruling, see )

Editor’s note: The Supreme Court of Canada in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),��2012 SCC 37��did not make a definitive ruling on the issue of fair dealing. Rather, the Court held that the Copyright Board’s finding of unfairness was based on a misapplication of the fairness factors enunciated in��CCH Canadian Ltd. v. Law Society of Upper Canada.��The Court therefore remitted the case back to the Copyright Board for reconsideration as to whether photocopies made by teachers to distribute to students as part of class instruction at the primary and secondary level are subject to a tariff. �� See��Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),��2012 SCC 37 at paras. 37 – 38.

At the SCCR, the African Group submitted several concerning copyright limitations and exceptions for educational and research purposes, including Article D, which sets out the following as an authorized action:

The use of works for educational purposes shall authorize individuals or institutes referred to in this Treaty to distribute a copy or copies of all or part of the work, including making available to pupils or students, the originals or copies thereof the work, or copies when these are necessary to illustrate the teaching.

Similarly, Brazil submitted that the following would not constitute violation of copyright:

The reproduction, translation and distribution of excerpts of existing works of any kind … as a pedagogical resource for the use of teachers with the purpose of illustration in the context of educational or research activities, to the extent necessary justified by the non-commercial purpose to be achieved, provided that the source, including the author’s name is indicated, unless this turns out to be impossible.

Paul Whitney, a Canadian librarian with twenty years experience in copyright issues and currently a board member of the International Federation of Library Associations, praised the Court’s decision. He observed that a teacher, like an internet service provider, serves as a conduit and thus, the analysis of whether an activity was done for research must be conducted from the end user’s perspective.

This reasoning was also seen in SOCAN v Bell, , where the Court unanimously held that the use of short song previews constitutes research within the meaning under the fair dealing doctrine. Justice Abella, who delivered the judgment, upheld the Copyright Board’s decision to consider whether previews are for the purpose of “research” from the perspective of the consumer (i.e. the end user) and not the online music stores, and indirectly benefit from them (by increasing sales).

Like Access Copyright, the definition of “research” was interpreted broadly:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

(See and for further comments on this case.)

The definition of “research” for the purposes of copyright limitations and exceptions for educational and research purposes has yet to appear at the SCCR, but any submission that is too broad or too narrow is bound to stir up controversy.

The remaining three Canadian decisions also involved musical works. In Re:Sound v Motion Picture Theatre Associations of Canada, , the Court unanimously held that film soundtracks are excluded from the definition of “sound recording” when they accompany a cinematographic work.

In Rogers v SOCAN, , the majority held that while a single transmission of a musical word over the internet does not constitute “communication to the public” within the meaning of the Act, the same cannot be said where there is a series of repeated transmissions of the same work to different recipients.

In Entertainment Software Association v. SOCAN, , the majority rejected the Copyright Board’s conclusion that the internet delivery of a permanent copy of a video game containing musical works amounted to a “communication” under the Act. Justices Abella and Moldaver opined that the Board’s decision “violates the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”

(see , and for more information on these cases.)

Technological neutrality is certainly on the minds of many member states at the SCCR. A proposal from Ecuador, Peru and Uruguay on copyright limitations and exceptions for educational and research purposes centres on the “[o]bligation to update and expand exceptions for educational purposes, in particular the digital environment.”

The Canadian decisions have been raised this week in the SCCR by South Africa and Nigeria, but the government of Canada has not yet spoken on the issue.

Nancy Situ is a JD Candidate at Osgoode Hall Law School. This article ��and was written from Geneva where she is currently attending the at WIPO Headquarters.

The post Considering Canada’s Supreme Court Decisions in this week’s WIPO Proceedings appeared first on IPOsgoode.

Background

Tariff 22, which was introduced in 1995 to accommodate music transmitted over the internet, was the subject to two other Supreme Court cases. The first, SOCAN v Canadian Assn. of Internet Providers, , concerned intermediary liability. The other is one of the five cases the Court heard last December, Rogers Communications Inc et al v SOCAN, , regarding whether the transmission of a single download to individual members of the public constitutes communication to the public under of the Act. The issue with Tariff 22 on the SOCAN v. Bell case is in regards to the brief previews offered by online music retailers such as iTunes.

Judicial History

In 2007, the Board decided that SOCAN was not entitled to royalties on short song clips because these uses constituted fair dealing. The Board concluded that previews “offer an excerpt of the work that is long enough for the user to do his research, but short enough and of a sufficiently degraded quality that it cannot replace the complete work” [Re Public Performance of Musical Works (2007), 61 CPR (4th) 353]. The Board also construed the term “research” broadly:

“The Supreme Court of Canada has made it clear that ’research is not limited to non-commercial or private contexts.’ Planning the purchase of a download or CD involves searching, investigation: identifying sites that offer those products, selecting one, finding out whether the track is available, ensuring that it is the right version or cover and so on. Listening to previews assists in this investigation.”

(For more on the Board’s decision, see )

The Federal Court of Appeal upheld this decision, also finding that the previews were within the meaning of the word “research” set out in of the Act; which permits fair dealing for the purpose of research or private study. The Court found that the language of the Act did not invite a narrow interpretation, noting that parliament “chose not to add restrictive qualifiers to the word ‘research’” [SOCAN v Bell, ]. Justice Létourneau, who delivered the judgment, further opined that:

It would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it.

He also addressed SOCAN’s contention that the primary purpose of the previews is of a commercial nature. SOCAN argued that the previews were intended to increase sales and profits. However, “this does not exclude other equally important purposes.” Justice Létourneau stressed that “[w]e must consider previews from the point of the view of the person for whom they are intended”.

Supreme Court Appeal

The case was then appealed to the Supreme Court, which held that the use of song previews constituted fair dealing for the purpose of research. Justice Abella, who delivered the unanimous judgment, followed CCH Canadian Ltd. v Law Society of Upper Canada, by allowing the term “research” a large and liberal interpretation:

“Limiting research to creative purposes would also run counter to the ordinary meaning of ’research’, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.”

(See for a summary on the Supreme Court appeal.)

The Court also stressed that the analysis of whether an activity was done for research ought to be conducted from the end user’s perspective. The same consideration was seen in the sister judgment Province of Alberta v Access Copyright, where the Court said that it was the student, rather the teacher actually making the photocopies, who is engaging in private study.

The topic of research is highly relevant this week, during the . One of the three topics taking the stage during the week and a half of meetings is copyright limitations and exceptions for educational and research institutions. Several draft provisions and definitions have been submitted, most notably from the African Group who highlighted “the need to maintain a balance between the rights of the authors and the larger public interest, particularly in education, research, teaching, and access to information” in their preamble (See ). The definition of “research” has yet to appear in any proposals but the Canadian cases will no doubt lend support to member states pushing for a broader interpretation. Delegates of both South Africa and Nigeria have referred to the recent Canadian fair dealing decisions in a positive manner at Tuesday’s SCCR meeting. In contrast, Canada has remained quiet thus far.

We had been waiting for a solid approach from the Supreme Court on how to interpret fair dealing since Michelin v C.A.W. Canada, and more recently, Canwest v Horizon, , which employed a restrictive interpretation that contrary to the CCH decision. In both cases, the courts rejected the contention that parody does not violate copyright based on of the Act, which allows fair dealing for the purpose of criticism or review. Although the point may very well be moot with the passing of Bill C-11, which includes parody or satire as a new enumerated purpose for fair dealing, had these cases been heard today, they might have had a different outcome. For future cases, fair dealing will likely be hailed as a user’s right rather than a legal loophole, consistent with CCH.

How will this decision affect consumers? According to SOCAN, it won’t. In a released 13 July 2012, SOCAN addressed the question of whether music purchases can look forward to lower prices:

“A decision to take away the right of our members to collect royalties from downloads may mean that approximately three cents from a song will not be collected for the composers who made the work. If this is the case, consumers should not rejoice. It is unlikely that businesses would pass along those savings to consumers, rather than maintain the same prices and increase their own profitability. This was about big businesses trying to increase their profitability at the expense of the creative community.”

“To the best of our knowledge, there’s no significant difference in price point for business models in countries that do not collect this small royalty payment, compared with countries that do have it. In those instances, that means that consumers are not seeing a savings and composers are not receiving compensation. To us, that is unfair.”

However, while consumers may not necessarily see any decrease in prices, they may still benefit from the decision. Had the tariff been allowed, it is possible that “” Either of these options might have resulted in a decrease in sales. Since SOCAN charges a quarterly fee of per download, a reduction in sales might actually hurt them more than losing the preview tariffs.

��

Nancy Situ is a JD candidate at Osgoode Hall Law School.

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The Canadian contains a similar provision against "." In fact, subsection 9(1)(j) is even stricter than its US counterpart, prohibiting any adoption of obscenities in connection with a business rather than simply being a bar to registration. A trademark is deemed to be adopted, according to section 3, when it is first used or made known�� in Canada or when an application for its registration is filed. Furthermore, this prohibited mark need not be used "as a trademark", to identify the source of wares or services, pursuant to the definition provided in section 2, which means uses that would normally not infringe trademark rights may be prohibited by subsection 9(1)(j).

However, this paragraph has apparently . Nevertheless, 'Fuku' raises some interesting issues for trademark boards. Ardaji's attorney James D'Loughy cited two reasons for their failure to register. "," he said. ""

As globalization and multiculturalism flourish, trademark examiners will inevitably encounter more foreign words. In fact, English is notorious for being "" so these non-english words already have some stake in our dictionary real estate. The chances of some of these “” resembling a rude word or phrase in English is statistically unavoidable seeing as there are only so many ways to arrange the 26 letters of the alphabet.

There's certainly a constitutional argument for equality to be made here - while a native English speaker would not be prohibited to registering the phrase "good fortune" for her business by subsection 9(1)(j), a Japanese-speaking person would be refused the opportunity to register the same phrase in her first language.

The same logic is relevant to subsection 12(1)(a) of the Trade-marks Act which states that a trademark is not registrable if it is "". A significant portion of English surnames are also common words, making them not "primarily merely" a name. Hypothetically, Mr. Black, would have a significantly easier time advocating that his business name "Black Photography" does not fall under the 12(1)(a) prohibition than Ms. Chan who is trying to register "Chan Cosmetics". Again, the difference between them lies in etymology.

The other constitutional argument to be made relates to the so-called "puritanical viewpoint" D'Loughy cited. Even if a mark is obscene or immoral or scandalous, there appears to be some conflict with the guarantee of free expression in prohibiting it. This is especially true with the Canadian provision which effectively prevents an individual from being taboo in any way connected to her business. Where "obscene" means a racist or sexist or homophobic slur, such a strict provision can be justifiable. However, in the case of "Fuku", there is simply no good reason to bar adoption or registration.

Nancy Situ is a JD candidate at Osgoode Hall Law School.

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The , filed on behalf of the appellants, thirty-four Australian and��American companies that either own or exclusively license the copyright in thousands of commercially released films and television programs. The respondent, iiNet, is . The case began nearly four years ago in November 2008, when AFACT alleged that iiNet’s conduct in ignoring repeated requests to disconnect users said to be involved in illegal content swapping constitutes authorization of copyright infringement. In response, iiNet asserted that AFACT was asking them “” despite their failure to provide adequate evidence. The High Court agreed, noting that (para. 138) used to obtain the information on their notices to the ISP. iiNet further claimed that ”

Three questions, largely of fact, determined the outcome of this case. First, whether iiNet had the power to prevent primary infringements committed through BitTorrent use. Second, whether reasonable steps, such as warnings and suspension or termination of infringing accounts, were taken to prevent these infringements. And lastly, whether and to what extent the relationship between iiNet and its customers have bearing on these questions.

The Court observed that while the relationship between iiNet and its customers involved the provision of technology, iiNet had no direct power to prevent primary infringements through technical power and could only ensure that result indirectly by terminating customer contracts. Furthermore, the inaction from iiNet resulting from AFACT’s notices was not due to indifference but rather unwillingness to act based solely on information provided from AFACT.

The case at hand demonstrates a significant departure from what Matthew Rimmer called a “” concerning authorization of copyright infringement. Indeed, a host of earlier cases found intermediaries liable. In Telstra Corp v Australasian Performing Right Association , the High Court held Telstra, a telecommunications carrier, directly liable for the playing of music by its subscribers to their clients despite the fact that Telstra had no control over the content of the music played.

Similarly, in Universal Music Australia Pty Ltd v Cooper , Tamberlin J held that the proprietor of a website that provided links to music files on other websites was liable for authorizing copyright infringement. Tamberlin J also considered whether the “safe harbour provisions” introduced by the could apply to ISPs. Section 29(b)(iv)(D) requires that the service provider was “” Since the ISP in question did not act expeditiously, Tamberlin J concluded that the safe harbour scheme could not apply to the website’s ISP even if AUSFTA had been inducted at the time of the infringements.

iiNet had submitted safe harbour defences, which would have been successful at the��trial level had authorization of infringement been found, but were later dismissed by the Full Court, stating that iiNet had not satisfied the conditions necessary to attract the benefits of the provision.

The results of Roadshow Films Pty Ltd v iiNet Ltd also departed from another High Court ruling, University of New South Wales v Moorhouse (interestingly, a decision considered but not followed in CCH Canadian Ltd. v. Law Society of Upper Canada ) where the failure by a university to exercise supervision over photocopying in their library amounted to authorization of copyright infringement. The facts in Moorhouse were distinguishable because “” (para. 61).

The response iiNet CEO Michael Malone imparted was quite conciliatory. "" he said. ""

In contrast, AFACT began last December.

Nancy Situ is a JD candidate at Osgoode Hall Law School.

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Thomson-Reuters’ forecast is supported by the People’s Republic of China State Intellectual Property Office’s����(the Strategy), a document that was published November of last year containing tactics to significantly increase the nation’s patent production. The Strategy aims to reach 2 million patent filings per year by 2015 and to double both domestic and overseas applications. The document outlines approaches to achieve this, such as increasing patent examination and approval efficiency by cutting waiting times down to as little as 3 months and doubling patent examiners to 9000, as well as enhancing benefits of utilizing patents and protecting the rights of patent holders by improving patent law and regulations.

The Strategy is certainly ambitious, especially considering that China did not even have a patent law system in place until 1985.������noted their skepticism towards this pending patent explosion, expressing concerns that there may be a major quantity versus quality discrepancy.

Firstly, there are three types of patents in China: invention, utility model, and design. Chinese patent law allows double patenting where an applicant is able to simultaneously apply for an invention patent and a utility model patent. The utility model patent, which provides protection for a product’s shape or structure, requires no substantive examination and is typically granted very quickly. In some sense, it acts as a placeholder “mini-patent” before the invention patent, which does involve a potentially lengthy examination, is granted. A utility model patent must be abandoned before the invention patent is granted for the same product. These utility model patents are also often used to protect new ideas applied to pre-existing products. Hence, China’s numbers may have been artificially inflated. Three years ago, a legal expert proclaimed that the standard is so low that��. Since then, amendments have been made to the law in an effort to raise the quality of Chinese patents to meet international standards but we have yet to see evidence of a genuine technical innovation burst.

The second issue with patent quality is the use of state incentives for filing patents,including cash bonuses, residence permits, tenure, fee waivers, substantial tax breaks, and government contracts. These inducements then trickle down companies to its individual employees��. While these strategies technically work to aggressively increase numbers, they are misleading in painting China as an inventive nation. The problem is that these incentives are granted for patents, and not innovation.

The Strategy suggests that China is aware of these concerns, promising to enhance patent quality, as well as “”. The approach they appear to be taking is to establish themselves as global patent leaders in numbers first and then gradually refine quality. It is possible that what China will end up with is a mountain of useless patents but��. For example,��.

Nancy (Meng Xiao) Situ is a JD candidate at Osgoode Hall Law School and was enrolled in Professor Mgbeoji’s Patents class in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

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