Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

The proposed Artificial Intelligence and Data Act (AIDA) would introduce greater regulation of the use and development of artificial intelligence (AI) in Canada’s private sector. On June 15^th, 2022, the Minister of Innovation, Science and Industry, François-Phillippe Champagne introduced Bill C-27, or the . Bill C-27 reiterates much of , tabled in 2020, reintroducing a modified Consumer Privacy Protection Act (CPPA) and Personal Information and Data Protection Tribunal Act (PIDPTA). However, Bill C-27 also introduced newly proposed legislation like AIDA which, if enacted, would make long advocated-for changes to Canada’s AI regulatory landscape.

AIDA would create new assessment and risk-mitigation tools for the use and transparency of high-impact AI systems. It would establish persons responsible for monitoring AI systems, such as the Artificial Intelligence and Data Commissioner — their role is to assist the Minister in the administration and enforcement of AIDA. Monetary penalties for the AIDA contraventions are also set out to enforce trust and deter the reckless and fraudulent uses of AI. In this way, Bill C-27 and AIDA would direct Canada towards harmonization with international regulatory frameworks, like that of the .

With that being said, AIDA would be more limited in scope when compared to its EU counterpart. For example, unlike EU legislation, AIDA would not apply to both public and private sectors, and all federal government institutions would be exempt.^[1] Further, EU legislation sets out specific prohibited AI practices, alongside criteria for determining the degree of risk presented by any AI system. AIDA establishes no specific prohibited AI practices and distinguishes only between high-risk AI and all other systems; complex and salient matters are left to incoming regulation.

Beyond its limited scope, AIDA may be uncertain in its delineation of provincial and federal responsibilities. For example, AIDA’s consideration of “regulated activity,” would capture many elements of AI development and use, including “designing, developing or making available for use an artificial intelligence system or managing its operations.”^[2] This language indicates the legislation is pursuant to Parliament's trade and commerce power under section of the Constitution Act, 1867. However, the federal government may also intend provinces to legislate on intraprovincial uses of AI, notwithstanding the rarity of circumstances under which such AI systems would be developed.

Lastly, attention is required of the breadth of persons AIDA considers “responsible” for an AI system in the course of trade.^[3] It holds designers, developers and managers of AI systems subject to AIDA’s administrative and operational requirements. If those parties are expected to monitor or conduct audits of consumer deployment of AI systems, assessments must be made of risk potentials and mitigation from both perspectives. Additional regulation may be required in the full consideration of such perspectives.  

AIDA remains proposed legislation and may be modified prior to implementation. However, it represents a much larger move by international legal bodies to regulate the development and use of AI. Businesses must be prepared for greater AI regulation in Canada. Thankfully, informative and responsive policy for the consideration of AI systems is also being developed, such as a by the Law Commission of Ontario. If correctly applied, AIDA should empower more Canadians to engage with trustworthy and transparent AI systems.

^[1] This may be extended to exclude provincial departments or agencies by regulation as set out in s.3 of AIDA.

^[2] See s.5(1) of AIDA.

^[3] Ibid at s.5(2).

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Beyond a suggested resurgence of the principles that were last year, C-56 contains many backdoor revisions to the Trade-marks Act that do not pertain to counterfeiting. In addition to an extensive list of remedies (see Adam Stevenson's article ), including the creation of multiple (and stricter) , C-56 would extensively broaden the definition of a trade-mark. The proposed amendment to the definition reads:

“49. If a sign or combination of signs is used by a person as a trade-mark for any of the purposes or in any of the manners mentioned in the definition “certification mark” or “trade-mark” in section 2, no application for the registration of the trade-mark shall be refused and no registration of the trade-mark shall be expunged, amended or held invalid merely on the ground that the person or a predecessor in title uses the �ٰ������-����������or has used it for any other of those purposes or in any other of those manners.” [underlined text indicating proposed amendments]

One key addition here would be the “combination of signs”, which would vastly expand the scope of what can comprise a trade-mark beyond the traditional forms. As of the first reading of the bill, signs would now include: “a word, a personal name, a design, a letter, a numeral, a colour, a figurative element, a three-dimensional shape, a hologram, a moving image, a mode of packaging goods, a sound, a scent, a taste, a texture and the positioning of a sign.” These changes would mean that you could register trade-marks for purely intangible sensory phenomena such as scents, tastes, and sounds (which has been ). Also, in a semantic modernization, the entire Trade-marks Act would be amended to replace “wares” with “goods”, to reflect common modern language.

The bill also suggests clarity of the registration of marks related to utilitarian features. Specifically, it would amend s. 12(2) to prohibit the registration of trade-marks where “its features are dictated primarily by a utilitarian function”. Moreover, s. 20 would provide clarity that trade-marks can not be used to prevent others from using utilitarian features affiliated with the trade-mark. Another change associated with promoting public use and progressiveness is the proposed s. 18.1 which would allow application to the Federal Court to expunge a registered trade-mark that “unreasonably limits the development of any art or industry”. This would bring the trade-mark system in Canada more in line with the underlying principles of the as a matter of public interest. These suggested provisions would represent a shift more toward “user rights”, which was also seen with the expansion of fair dealing provisions in the Copyright Act last year with .

A number of the proposed amendments to the Trade-marks Act pertain to the power of the Registrar, reflecting recent caselaw. The Registrar would have the right to refuse an application with respect to one or more of the goods or services specified and accept it with respect to others. He would also have the power to strike any part of an improperly pleaded Statement of Opposition, so long as it was done prior to the filing of the applicant’s  counterstatement (s. 38). The application process would be substantially changed, including the power being assigned to the Registrar to set regulations to establish the dates of registration for divisional applications to be re-merged (another new aspect of the Act; s. 39.1). Further clarity into the role of the Registrar includes the right to destroy records related to stale applications and registrations, within 6 years of the date of the final decision (s. 29.1) and a right to keep electronic records (s. 64). Finally, while the Registrar typically exercises no jurisdiction over correcting obvious errors in the records (it is presently subject to application to the Federal Court), ss. 41 and 48 would allow the Registrar to correct obvious errors within 6 months of entry and to remove registration of improper transfers, respectively.

Undoubtedly, the proposed amendments to the Trade-marks Act represent a modernization of the Act similar to that imposed by C-11 on the Copyright Act. However, a problem lies in the intention of the bill, which is purported to target counterfeiting. In my opinion, this bill mirrors the type of ‘omnibus’ legislation that drastically and broadly reformed the , in the form of the wildly controversial . While some of the reforms suggested here will be welcomed to update archaic or out-of-date aspects of the legislation, the overall package of Bill C-56 is bound to be controversial. The , but I think that is unlikely the Conservative majority will waver. One thing is certain: the drama will be intriguing.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The Living Daylights (…Scents, Tastes, and Sounds): Bill C-56 Forebodes Drastic Trade-mark Reform appeared first on IPOsgoode.

The Conservative majority government has placed a new copyright reform bill, “An Act to amend the Copyright Act” on the earlier today. This new bill is expected to be introduced tomorrow.

For those unfamiliar with parliamentary publications, the Notice Paper provides matters which may be raised for consideration by the House of Commons. Once the notice period has expired, items on the Notice Paper typically move on to the Order Paper (the agenda of items of business to be considered by the House).

Several reports (, , ) have commented on this development with the general expectation that the new bill will be substantially similar to the controversial . Bill C-32 passed the second reading in the Parliament, but fell as a result of the dissolution of the Canadian parliament during the Spring 2011 re-election.

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