Photos from and , created on .

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.

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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.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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In 2019, Microsoft and the Pentagon signed a via deploying cloud technology. One man was not too happy with the agreement. , Jeff Bezos, persisted in fighting for the lucrative contract, especially after the Biden Administration began work at White House.��

Amazon Web Services, . Amazon’s efforts have not gone unnoticed.

, ending the feud between the two technology giants over the ten-year commercial contract. The DoD did not explicitly name the feud as the motivating factor for cancellation. Instead, the DoD announced that the ��John Sherman, acting Pentagon Chief Information Officer, stated that the inevitably call for novel strategies.

The JEDI deal has long been controversial. In 2019, Amazon suggested that the Pentagon award the contract to Microsoft due to . Moving away from a Microsoft monopoly, the current Biden administration welcomes bids from which satisfy the government’s standards. , and others have joined the ranks.

Companies anticipate competing for the new contract: . Attempting to canvass by military personnel.

The JEDI deal aims to upgrade the More than a contract duel, the JEDI deal acknowledges the rapid growth of the —and the pace at which the U.S. military needs to work to match this evolution.

Considering the forests rather than the trees, the Pentagon may have set its sights on competition from China instead of the clash amidst domestic technology titans. . In this cross-border military cloud computing race, the U.S. does not want China to win. If China wins the cloud computing marathon, the DoD will not celebrate on cloud nine.

The post Clouds Above the Pentagon appeared first on IPOsgoode.

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

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On April 30, Australia's Federal Court the the country has ever seen for a copyright infringement. Australian billionaire and businessman turned politician, Clive Palmer, owes $1.5 million AUD to Universal Music Publishing Pty Ltd (“UMP”) and Songs of Universal, Inc. (“Songs”) for using an altered version of the iconic 1980s Twisted Sister song “We’re Not Gonna Take It” (WNGTI) in his 2019 federal election campaign. Palmer’s right-wing United Australia Party (UAP) slightly changed the lyrics of the hit song, under the title “Aussies Not Gonna Cop It” (ANGCI).

The factual record showed that UAP had quite a history with WNGTI. First, the Court established that Dee Snyder, lead singer and songwriter of Twisted Sister, wrote WNGTI, UMP was the licensee, and Songs owned the copyright to it. Following this brief analysis, the Court looked at the making of ANGCI. Extensive email evidence showed that David Wright, who the UAP engaged to provide production services for its 2019 federal election advertising campaign, attempted to negotiate a licence with UMP for WNGTI. After back and forth exchanges, UMP offered a 12-month license of the song for $160,000, pending Dee Snyder’s approval of the rendition. UAP declined. Email exchanges between Wright and “Terry Smith,” Palmer's alias, showed the two were worried UAP’s campaign might “leak” in the hands of Dee Snyder.

However, through reviewing additional emails and recovered audio files, the Court found that Wright and Palmer were nevertheless planning a song that used the words of WNGTI. During cross-examination, Wright admitted that he told local musicians to sing a few different variations of WNGTI. These variations with a local band eventually led to ANGCI. Wright considered “cop” to be a synonym for “take.”

On the contrary, Palmer alleged during cross-examination that he got the lyrics “We’re not gonna take it,” from the 1976 movie Network, starring Peter Finch. In multiple scenes, Finch exclaims “.” In his judgement for the Court, Katzmann J noted that this statement took “.” Palmer also said that he wrote those words down on a piece of paper at 4 a.m. one morning in September 2018, left the paper on his bedside table, and it was thrown out without his knowledge. The paper was subsequently not included in the evidence.

After UAP’s campaign featuring ANGCI went public, Twisted Sister fans tweeted at Dee Snyder, alerting him of the . On January 1, 2019, Dee Snyder responded to fans in a tweet that ‘“We're Not Gonna Take It’ is a song about EVERYONE'S right to free choice. "We've got the right to chose and there ain't no way we'll lose it!" The FIRST LINE of the first verse! ” Once the copyright allegations surfaced, UAP released a stating Dee Snyder was not the original creator of WNGTI and that the song was a “rip-off” of the famous Christmas carol “O Come All Ye Faithful.” Katzmann J rejected this defence, finding that “the copied part of WNGTI is not devoid of originality — far from it.”

Palmer’s last defence was that use of WNGTI in ANGCI fell under the fair dealing exception of parody and satire. Under section 41A of Australia’s , a fair dealing of an adaptation of work for the purpose of parody or satire is not an infringement of copyright. The respondent must satisfy the two-part test to enact such a defence: (1) there must be dealing with the work for parody or satire reasons and (2) the dealing must be fair. The Court determines “fairness” in relation to the purpose of parody or satire. Katzmann J found Palmer failed the test as ANGCI did not alter WNGTI to satirize anyone or anything. Rather, the Court ruled that UAP used ANGCI to promote UAP’s key political message.��

Overall, the Court ruled that Palmer infringed copyright by: (i) reproducing; (ii) authorizing the reproduction of; (iii) communicating to the public; and (iv) authorizing the communication to the public of WNGTI without a license to do so. In considering appropriate remedies, Katzmann J referenced Yates J in : “The plaintiff may not have suffered actual loss from the use, and the wrongdoer may not have derived actual benefit. Nevertheless, under the principle, the defendant is obliged to pay a reasonable sum for the wrongful use.” Concluding, Katzmann J ordered Palmer to refrain from using and reproducing WNGTI in any form and to turn over all copies of the reproduced work. Additionally, Palmer must pay $500,000 AUD for copyright infringement and $1,000,000 AUD in additional damages. Under section 115(4)(b) of Australia’s , the Court may grant additional damages for “the flagrancy of the infringement,” defined as “scandalous conduct, deceit and such like.” Given that Katzmann J found Palmer’s arguments to be “ludicrous,” awarding additional damages was justified.

Clive Palmer and his legal team are considering an .

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The post Australia’s Federal Court is “Not Gonna Cop It” appeared first on IPOsgoode.

Sabrina��Macklai��is an��IPilogue��Senior Editor and a��2L JD Candidate at the University of Toronto Faculty��of Law.��

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The 2019 Canadian federal election season was ripe with . Adding to the list, the Canadian Broadcasting Corporation (CBC) against the Conservative Party of Canada mere days before the election was held. The CBC claimed that the Conservative Party infringed copyright by using, without permission, CBC’s video clips in their advertisement and tweets as part of an ‘attack ad’ against Prime Minister Justin Trudeau.

On May 13, 2021, nearly two years after the Liberal Party won a minority government, the , holding that the use of CBC footage in political campaigns constitutes “fair dealing” under s. 29 of the , and so does not infringe copyright.

In order for a use of a copyrighted work to be considered a fair dealing, the dealing must 1) be for an allowable purpose, as listed in the Act, and 2) it must be fair, considering the six factors outlined in the landmark Supreme Court of Canada decision, .

The Federal Court determined that the Conservative Party’s use of CBC footage was for the allowable purpose of “criticism,” per s. 29.1 of the Act. Though the CBC argued that the purpose of “criticism” should be limited to criticizing the form of the dealing, the court held that criticism may be directed towards the “idea set out in the work.”

By giving the fair dealing provisions a large and liberal interpretation, the court reaffirmed that their purpose is to balance the rights of copyright owners and users. Users’ pursuit of allowable purposes should not be arbitrarily restricted in the name of protecting copyright. As Justice Phelan stated, “it would be artificial to limit criticisms to the expression of how the work was produced but preclude showing the ideas or actions being challenged.”

Applied to the facts, the court found criticism embedded in the Conservative Party’s impugned ad and tweets, which aimed to criticize the “ideas” present in the CBC’s clips, particularly those of Prime Minister Trudeau’s performance in office and during the 2019 federal election’s leaders’ debate.

In finding an allowable purpose under the first step of the fair dealing analysis, the court did not consider that the criticism was being advanced by a competitor who would directly benefit from the consequences of the criticism. Rather, motive became relevant at the second step of the fair dealing analysis, when assessing the first factor (i.e., the fairness of the purpose of the dealing). Following , “some dealings, even if for an allowable purpose, may be more or less fair than others,” depending on the user’s “real purpose or motive in using the copyrighted work.”

While Justice Phelan acknowledged that the Conservative Party’s use of CBC footage was “not criticism for the sake of criticism,” he held that the dealing was nonetheless for a “legitimate political purpose.” Since political campaigns are used to secure votes to form a government, the court found the Conservative Party’s purpose engaged with the democratic process and was therefore fair.

This departs from where the Supreme Court stated that, in determining the fairness of an allowable purpose, the court must assess if there is a “demonstrably ulterior” motive at play. That is, courts are concerned by users who attempt to escape liability for copyright infringement under the guise of invoking an allowable purpose, like criticism. Such ulterior motives tend towards a finding of unfairness for the first factor of the fairness inquiry.

Despite finding the Conservative Party’s ultimate purpose was not to provide criticism but to gain votes, the court did not discuss the possibility of an ulterior motive. In fact, the Conservative Party’s politically driven motive was used as support in finding fairness. This seemingly broadens the fair dealing provision’s scope by permitting a dealing’s ultimate purpose to differ from its allowable purpose, so long as it is a political purpose.

Instead, as University of Ottawa professor Michael Geist , political advertising is protected by the criticism purpose of fair dealing since it is directly linked to the Charter’s s. 2(b) guarantee of expressive freedom, which underpins the values of political democracy, the search for truth, and self-actualization. Rather than authorizing a user’s ultimate purpose to differ from the allowable purpose where a political motive is involved, the court ought to establish a sufficient nexus between the purposes to support a finding of fairness. This can be achieved through determining the foundation of the allowable purpose, like the basis of criticism to advance political democracy.

As Ontario gears up for the , it will be interesting to see how parties use copyrighted materials in their campaigns in light of this decision. Beyond political parties, this decision highlights the need for greater guidance on how to properly interpret the fair dealing provisions, especially in determining the fairness of the purpose of the dealing.

The post A “Legitimate Political Purpose”: Federal Court Rules the Conservative Party Played “Fair” in the 2019 Federal Election appeared first on IPOsgoode.

The Nature of the Lawsuit

There exists little doubt about the extent of Google’s current reach in the digital markets. It currently stands as one of the wealthiest companies in the world, with a market value of $1 trillion. It brought in $162 billion in revenue last year, and has accounted for just under . The Department of Justice’s lawsuit against Google is one that is expected to potentially drag on for years to come, and “” with regards to remedies, according to associate deputy attorney general, Ryan Shores. Specifically, the government seems to be pushing for “”, which could involve the selling and/or cessation of portions of the company’s business.

The suit is the product of about that U.S. officials began last summer into Google’s advertising practices. The inquiry then rapidly expanded to encompass search monopoly allegations after the emergence of several complaints from rival tech and media companies. In response, the Justice Department has decided to once again enforce the , an antitrust law regulating enterprise competition that the government has previously used on a number of occasions in the past to combat notable companies in the , , and industries.

Anticompetitive Conduct and the Potential Harms

The Justice Department claims that Google locks up digital channels of distribution by implementing a string of with manufacturers and distributors such as Apple, LG, Motorola, Samsung, AT&T, T-Mobile, Verizon, Mozilla, Opera, and UCWeb. These contracts include anti-forking agreements that constrain manufacturers and distributors to remain in relation with Google, pre-installation agreements for premium placement of Google products, and revenue-sharing agreements in exchange for preset, default search engine privileges. For instance, the company has to be the default search engine on Apple’s products. The two tech giants are indeed - last year, about 50% of Google’s search traffic came from Apple devices, while Google annually pays Apple billions of dollars for the privilege of exclusivity, its payments making up approximately 15 to 20% of all Apple’s profits.

There are a number of reasons why antitrust laws are in place, and why exclusionary and anticompetitive conduct on the part of big tech companies is discouraged. It can harm competition and stunt technological innovation by denying established rivals and emerging startup companies the necessary channels and recognition to compete effectively in the market. The government also alleges that because it diminishes choice and lowers the quality of search services, especially with regards to consumer privacy and data protection. Moreover, the company’s monopoly over the online advertising market allows them to charge higher rates than they would be able to in a competitive market, thereby reducing the quality of the services that Google must provide to .

In Google’s Defense…

Shortly after the announcement of the U.S. government’s lawsuit, Google’s chief legal officer Kent Walker published a response on the company’s website, calling the claim “”. On the company’s behalf, he insists that consumers “use Google because they choose to, not because they’re forced to, or because they can’t find alternatives”, and goes on to demonstrate the ease with which users can set up their search engine of choice or alter their default settings. Walker argues that the suit would artificially bolster lower-quality search alternatives, hike up phone prices, and inconvenience users in getting to the search services they want to use. Furthermore, while the government seems to think that Google competes exclusively with other general search engines, the company upholds that in practice, people find information through a variety of mediums, thereby expanding the competitive landscape to include such rival companies as Twitter, Instagram, Pinterest, and Amazon.

Other critics have questioned whether the timing of the suit might be politically-motivated, seeing as how the federal government and Attorney General William P. Barr allegedly (against the recommendation of some government lawyers) by the end of October, just weeks ahead of the 2020 presidential election. It might also be noteworthy that all eleven of the state attorneys general that have currently signed on to support the lawsuit , and that President Trump has previously criticized tech companies like Google and other widespread media platforms for politically leaning towards the left. However, both conservative and liberal leaders alike have denounced the lack of regulation over big tech in the past, and concerns that arise in the meantime regarding any political undertones within the lawsuit remain as speculation.

“Whether led by Donald Trump or Joe Biden, the next administration should think systematically and comprehensively about the power of tech companies and what needs to be done about it.” - Bill Baer, ��

Conclusion

Judging from the parallels between the present case and the Justice Department’s , it is clear that this development is only the start of something much bigger. Colorado, Iowa, Nebraska, and New 91��ɫ state governments have asserted that they are still investigating Google’s business practices, and may sign on with the other state attorneys general in supporting the case at a later date. Regardless of what the court decides, the stakes remain considerable - either a potential restructuring of one of the world’s biggest digital empires, or a huge hampering of the government’s efforts in enforcing antitrust laws onto the big tech companies that it's been battling for years.

Emily Xiang is a first year JD candidate at Osgoode Hall Law School. She is an IPilogue editor and a 1L executive for the Intellectual Property Society of Osgoode.

The post Grappling with Google: Market Monopoly, Big Tech Exclusivity, and Political Plays?? appeared first on IPOsgoode.

Melania Trump’s apparent plagiarism of a Michelle Obama speech is by no means a rarity in politics. Politicians, like so many other prominent and , have a of copying without attribution, from student papers (which, as so many students are repeatedly warned, is grounds for expulsion) to public speeches. Though widely-publicized, did this plagiarism amount to actual copyright infringement? Political fallout aside, can this type of copying be seen in the same light as, for instance, ?

The relevant textual comparison can be found in the New 91��ɫ Times article .

While the speeches undoubtedly bear a fairly striking resemblance, it is not unheard of for politicians of all stripes to use . Much as some argue there are only to the stories we tell, there are certain themes most, if not all, politicians employ in their speeches. Indeed, it becomes very difficult to determine what is merely inspired by or what makes use of common elements, as can be seen in the complicated cases of , and what is actual copying. It is useful, then, to examine the issue from a legal perspective, rather than a purely sensational or popular one. It is also worth considering what the absence of moral rights in the U.S. means in this situation.

Blatant Plagiarism?

Not necessarily. Cases like this one are more likely to be tried in the than in a court of law. The standard for copyright infringement is considerably than mere similarities easily picked up on by observers and media. The original speech itself undoubtedly has copyright (as an original literary and dramatic work). Where political speeches especially can complicate the analysis is in the and in elements.

Political narratives tend to hit on several major themes over and over again. For example, the story of the self-made man who rose up to run for President has endured from the times of Presidents born in to recent recounting of politicians’ “” . Therefore, in a copyright context, these themes and stories would not be protected – they are the common stock of political narrative. Returning to Ms. Trump and Ms. Obama’s speeches, the ideas of hard work, respect, and following your dreams are arguably unprotectable as stock elements for many political figures.

Nevertheless, the expression of those ideas remains copyright-. Had Ms. Trump, then, merely borrowed these run-of-the-mill ideas for her speech, it seems unlikely anyone would even have noticed. It is in her expressive copying, however, that there is evidence of plagiarism. Like a song that copies lyrics in addition to a common pop melody, the likelihood of infringement increases when literal and expressive copying intermingle. Indeed, the question becomes not whether there was copying, but whether what was copied was a of the original work.

Since the copying was more or less (i.e. literal copying), we must consider how much was taken and how important it was. Here is where we can see why this case has become such a . Ms. Trump did not just crib political talking points from Ms. Obama. She appeared to appropriate parts of her life story. And while facts and history are not protectable, even for , passing off a person’s history as your own is seen as much more than borrowing their ideas. At the very least, it is easy to see how this story was a substantial part of the original speech. That the copying barely disguised the original language only makes the infringement more obvious.

Moral Rights: What If?

Because Canadian copyright includes moral rights, we might ask what role they could play in such an instance. It is easy to imagine that, given their political differences, Ms. Obama would be especially displeased with Ms. Trump’s copying of her personal story. The Copyright Act gives authors of integrity, attribution, and association in their work. There is no comparable provision in the U.S. If there were, musical artists there might frequently claim moral rights infringement where their work is used to the “” by its association with a cause (Copyright Act, s. 28.2(1)(b)) such as a politician with whom they disagree.

In Canada, Ms. Obama could both demand attribution for the use of her work in Ms. Trump’s speech and assert that her moral rights were infringed via the use of her work in association with a political movement with which she must certainly disagree. Of course, the concern about prejudice to her honour and reputation must be in the circumstance, though given the divisive nature of U.S. politics today, that belief would certainly seem reasonable.

Borrow Responsibly

There are undoubtedly many political lessons to be learned from Ms. Trump’s speech. Beyond the public fallout though, an examination of the issue from the perspective of copyright law is informative. It is clear that politicians are unlikely to infringe when they trot out reusable themes and archetypes – the stuff of politics for centuries. Where they will run into trouble is when they borrow from personal narratives, and more obviously, when they copy the actual expression – almost word-for-word – of those stories. Further, it becomes evident that the absence of moral rights in U.S. copyright law make it difficult for authors of many types to prevent the association of their works with causes they do not themselves support. This plagiarism scandal will likely remain in the political realm, but it is worth noting that that arena is no less immune from copyright protections than any other.

Sebastian Beck-Watt is the IPilogue’s Content Editor and a JD Candidate at Osgoode Hall Law School.

The post This is Why You Have an Editor: Politics, Plagiarism, and Copyright appeared first on IPOsgoode.

Politicians and members of the political press galleries each play fundamental roles in Canadian democracy. Politicians are elected or appointed to serve on behalf of the electorate and craft laws and policies ��Meanwhile, as the stewards of the historic , the members of the press are entrusted to fulfill their to hold elected representatives and civil servants to account. Contestation often simmers beneath the surface if and when these respective mandates collide. However, each group is ostensibly supposed to serve the public good and the citizens of the state.

On 8 October, on the leak of an internal Cabinet document suggesting a . This document, reported to be a presentation from the Minister of Canadian Heritage and Official Languages Shelley Glover, sought Cabinet authority “to amend the Copyright Act to create an exception for the use of ‘news’ in political advertisements without the authorization of the rights holder” in order to provide “greater certainty for ‘political actors’ who want to use copyright content in their advertisements” (). This report caused a stir as opposition and Government MPs took their respective sides while members of the press used their positions to comment on the appropriateness of the proposed exception. �Ѳ������𲹲�’s Paul Wells nicely summarized the situation, asking .

During , the Hon. Ralph Goodale (MP, Wascana, Lib.) described the move as a “scheme authorizing the swiping of television news programs for use in political attack ads” (14:24) and “expropriation without compensation. [The proposal] degrades integrity and freedom of the press” (14:26). Minister Glover, meanwhile, responded by citing Canada’s fair dealing copyright exceptions and the “public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings. Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians” (14.26).

Minister Glover’s fair dealing assertion counters Mr. Goodale’s claims of “expropriation without compensation”. While the proposed exception would make it legal for “political actors” to use “news” footage or content without compensation or consent, these uses might already be protected under existing Canadian law. As I described in an earlier , the Supreme Court of Canada (SCC) has affirmed that fair dealing exceptions are (2004 SCC 13(3a) para.48). The measure of the phrase “integral part”, however, is not entirely clear.

Under the Copyright Act, Canada’s fair dealing exceptions are restricted to the purposes of (Copyright Act, R.S.C., 1985, c. C-42. Sec.29). The SCC has affirmed that these exceptions (2004 SCC 13(3a) para.51) and, it could be argued that the user generated content amendments and exceptions in the Copyright Modernization Act (S.C. 2012, c. 20) allow for the use of copyright materials for other purposes. To date, though, political uses of copyright-protected materials via fair dealing exceptions have not been fully tested.��Importantly, the SCC finds that “fair dealing” should not appropriate content in order to compete with the material interests of the rights holder: “if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (3(vi) para.59). Though this “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”, the fact that the use of “news” materials in political advertisements is unlikely to compete with the work of the press in reporting and selling their content suggests that fair dealing exceptions would apply in such situations.

The Government’s proposal to amend the Copyright Act for political advertising generated criticism from members of the press, as reported by��. In his weekly for the CBC, Rick Mercer equated the move to “stealing” (0:59) and mistakenly said that “there are no exceptions” (1:15) for legally using copyright-protected content. Meanwhile, Don Martin, the host of CTV’s PowerPlay, ��“any government which asserts unlimited access to the airwaves for propaganda purposes is more than into chronic copyright infringement. In some academic opinion, that could be seen as flirting with fascism”. Other media organizations were more measured in their responses.��An points out that “media don’t like to see their footage and other copyright-protected content in partisan ads, especially the negative type, since viewers might be left with the impression that a media outlet is complicit with a political party”. The Globe’s concern is balanced by the recognition that “there will be people who see it as a boon for free expression. Why shouldn’t people make unfettered use of news images and clips of public figures in order to advance their points of view and denounce those of others? Isn’t the news a public good?”

In an , , Associate Professor of Law at McGill University and a founding member of the , welcomed the idea of an exception for political discourse on the grounds that it could help spur political debate. Professor Lametti, whose describes himself as an “Aspiring Liberal Candidate in LaSalle-Émard-Verdun”, stated that “political discourse is to be valued above all other kinds of discourse, and it's up to political parties to make their claims and they use whatever elements they can use legally. And if this helps to foster political debate in Canada, then that's good.”

While it may be aimed at protecting the “public good”, the ��does seem needlessly restrictive. By prioritizing “political actors” over members of the general public, the proposed course of action deprives the public of a useful tool for engaging in political debates. During the , MP Alexandrine Latendresse (Louis-Saint-Laurent, NDP) argued that the exceptions under question appear to be “legislation that is only in [the Government’s] interest” (14:52). In response, Minister Glover cited a post from the to defend the Government’s position (14:53).��A vocal and public commentator on Canadian copyright, Professor Geist applied the SCC’s reasoning to to argue that “copyright law should not be used to stifle legitimate speech …[and]… attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use”.�� His reasoning goes further, however. In a – – Professor Geist echoes Ms. Latendresse’s concerns about the narrowness of the exception under consideration, arguing that “the creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds”.

Attempts to update the Copyright Act’s fair dealing exceptions should keep public interest concerns in mind. A narrowly framed exception applying to only official “political actors” does not serve the best interest of all Canadians. It would be more beneficial to include “political speech” as a separate category alongside research, private study, education, parody or satire in order to better clarify how all Canadians can use copyrighted content to express their feelings about elected officials.

Thankfully, this debate seems to have cooled for now. As Professor Geist , the proposed exception was not part of the latest . With a legislated review of copyright law scheduled for 2017, it will be important to reaffirm that Canada’s copyright law and its fair dealing exceptions are designed to serve all members of the Canadian public— and not just politicians and/or the press.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at 91��ɫ.

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The Ramifications of CETA on Pharmaceutical IP Laws: The Expected and The Unexpected

CETA has been in the making for many years, and the EU has made clear its desire for Canada to for pharmaceuticals - seen by many as . However, it was unknown how much Canada would end up changing��its intellectual property rights (IPR) regime in the��face of��intense pressure from both and resistant to strengthening IPR through CETA and other international trade deals.

In the end, although the full-text will not be available until it has been translated into all of the European languages, it has been widely accepted that the final agreement will have on pharmaceutical intellectual property laws in Canada:

1. Patent term restoration will provide innovative pharmaceutical companies the ability to restore up to two years of patent protection that have been lost by regulatory processes;
2. Innovative pharmaceutical companies will gain a “right of appeal” for decisions made under the -��a right��that is currently only available for patent challenges from a generic pharmaceutical company.

On its face, these changes are a boon to the innovative pharmaceutical industry in Canada and represent . These anticipated changes could be interpreted as Canada's unwillingness to fully compromise, as the EU ��up to 5 years of patent term restoration in addition to more extensive data protection provisions. Interestingly, the Canadian Generic Pharmaceutical Association (CGPA) has claimed to have from the Government of Canada that��the implementation of the “right of appeal” will serve to curb duplicative litigation from innovative pharmaceutical companies. Canada is currently the only country in which an innovative company can sue a generic producer more than once on the same patent.

Varied Reactions to the Report from Various Stakeholders

As expected, the reactions to the proposed changes to Canadian pharmaceutical intellectual property law have been mixed, with various organizations and stakeholders speaking for and against the CETA agreement.�� Canada's Research-Based Pharmaceutical Companies (Rx&D) applauding the agreement and��opining that��the agreement��will serve to increase pharmaceutical innovation and support the discovery of new medications. Interestingly enough, a Canadian patient group, The Mood Disorders Society of Canada, after the agreement was announced, which echoed the sentiments of Rx&D. The statement also��expressed the group’s belief that CETA will encourage more pharmaceutical research in Canada and��help develop effective interventions to improve the mental health of Canadians.

The CGPA also��, which��cites��its disappointment of the CETA agreement��and claims��the agreement's��potential to increase health care costs for provinces, health plans, and patients. The statement also outlined the CGPA's��concern that CETA will cause generic medications to be delayed on their way to the marketplace.���� The statement was not completely critical however, as the CGPA��commended the Canadian government’s efforts to limit the term of patent restoration to 2 years and allow for the potential for the new “right of appeal” regulations to curb litigation costs.�� The CGPA was also��appreciated that CETA will not impose any changes to the domestic data protection regime.

In my opinion, the biggest stakeholder that is likely to be affected by these proposed changes to��Canada's pharmaceutical IP law are the provinces, which bear most of Canada's health care costs. In anticipation of the agreement, many provinces, including Ontario (the largest medication provider in the country) cautioned the Canadian government that concessions to the EU on these points could greatly increase health care costs. ��that CETA could increase��its prescription drug expenses by $1.2 billion dollars annually. After the release of the agreement, however, provincial since the extent of the changes��is less drastic than predicted. In addition, the Federal Government has already announced that��it will , although no further details on this point have been released. The Ontario government responded to this statement quickly, and was the first province to make it known that��it�� for sectors that will be adversely affected by CETA. As provincial governments and the federal legislative branch����the changes CETA will bring, there are undoubtedly going to be further developments on this issue, and the ultimate acceptance and implementation of CETA will likely depend upon the details of the final agreement.

CETA: A Changing of the Guard?

Although CETA has only been agreed to “in principle” for now, it is clear that its ratification and implementation will have far-reaching consequences. It will undoubtedly have a significant impact��on Canada's health care and pharmaceutical sectors, and may change how Canada is . It seems clear to me that, at least in the intellectual property context, Canada is making the statement that it will not be left behind by its industrialized trading partners in the new knowledge-based economy.

Adam Falconi is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The race for political office is competitive and fraught with risk where adversaries seek out support by advertising and creating political platforms to appeal to the majority of voters.�� As the cost of political campaigns mount, politicians on the campaign trail seek advantages whenever possible.�� Pop culture and entertainment has increasingly captured public interest, and it is no surprise that actors, actresses, music and other aspects of pop culture have been incorporated into political campaigns as effective advertising tools.�� ��

Music in particular has been utilized to draw attention��from fans of the works of memorable artists.�� This can attract the ire of artists who neither endorsed nor allowed the use of their copyrighted music for political purposes.�� However, while legislation protects copyrighted works, fair-use exceptions for copyright infringement are granted in the U.S. when a parody is made of an artist’s work.�� It is this exception that some politicians have attempted to exploit when modifying music for political purposes.�� The U.S. District Court for the Central District of California decision in is an example of the intersection between the copyright exception granted for a parody and the modification of a musical composition for political campaigns.

The defendant, , is a California assemblyman who was seeking the Republican nomination for one of California’s U.S. Senate seats.�� To further his political campaign, DeVore revised the lyrics of “The Boys of Summer” and “All She Wants to Do Is Dance” which the plaintiff, , had written.�� These modified versions of Henley’s songs poked fun at Barak Obama, Nancy Pelosi, Obama’s supporters, and the Democratic Party against whom DeVore was competing for a U.S. Senate seat. ��Subsequently Henley battled to have the modified songs removed from and later sued for direct, vicarious and contributory copyright infringement, as well as trademark infringement and false endorsement under the .

DeVore attempted to counter Henley’s claims by asserting that fair use applies because his versions of the Henley’s songs were parodies.�� Both parties moved for summary judgment. ����The Court ruled that DeVore’s fair use defence was inadequate, largely because his work resembled satire rather than parody.�� Despite the defendants' assertions that the modifications to Henley’s songs were to create themes of ‘nostalgia’ and ‘disillusionment’ to mock Henley and other Obama supporters, and criticise previous American foreign policy, the Court found that DeVore’s work was satirical in nature.�� The Court distinguished satire from parody as previously explained in , which states that the parodist is justified in using the copyrighted work because a parody’s effectiveness “necessarily springs from the recognizable allusion to its object through distorted imitation...the parodist has no alternative but to use the work.” In contrast the satirist who ridicules subjects unrelated to the work lacks the same claim to use of the work, which the satirist “merely uses to get attention or to avoid the drudgery in working up something fresh.”��

In reaching its decision that DeVore’s modifications to Henley’s songs were not fair use, the Court conducted a which considered:��

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Consideration of these factors influenced the Court to find that DeVore’s modification of Henley’s songs should not be considered fair use for the following reasons. ��First, the Court held that the defendant’s use of Henley’s songs was commercial in nature because DeVore stood to gain both publicity and campaign donations from their use of Henley’s music.�� Second, DeVore borrows from musical compositions that are highly expressive works, which are at the core of copyright law and deserve protection.�� Third, an extensive amount of content was borrowed from Henley’s compositions greatly weighing against the fair use defence.�� Lastly, the defendants were unable to show that their use did not harm the market for the plaintiff's work.��

This decision clarifies the extent to which a copyrighted work may be utilized to form a political critique in the U.S., and may prove influential for similar Canadian cases. ��Politicians and others who wish to utilize copyrighted works for political critique must now rethink these strategies and seek out alternative methods to convey their message.

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