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

Pessimism is to innovative culture as heat is to ice. It slowly destroys but can be remedied by its polar opposite. On April 28, Halimah DeLaine Prado, the general counsel at Google, wrote about her optimism for innovative culture in an online post. She outlined reforms and recommendations that .

Google’s contribution to the US patent system

Healthy patent systems can sometimes be as a way to incentivize creative inventions, encourage building on existing ideas, and avoid frivolous litigation. Google has created a space that incentivizes innovation by being one of the first companies to . Google has invested in patenting and licensing their engineers’ inventions (), and has sold patents to smaller companies to help strengthen their portfolios. Google also helped the License on Transfer Network. This Network protects members from patent trolls’ claims, these ‘patent trolls’ are described as companies that bring patent claims for profit and to supress competition.

Concern with the US patent system

Patent litigation has been on the , with 46% more patent litigation lawsuits in 2021 than in 2018.

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Patent trolls and opportunistic companies, as DeLaine Prado describes, weaponize patents against competitors which deters innovation and harms the quality of new products. Most notably, says the American “prized ‘culture of innovation’ is being undermined by a ‘culture of litigation.’” ��Such litigation wastes court resources and are a shakedown tactic or to “stretch patents beyond recognition.” Resources spent on wasteful litigation is better used in research and development for new products. In contrast, Google has a history of confronting overreaching patent claims and defending their users and products. Smaller companies “nascent technologies” are unable to fight these lawsuits without raising costs for consumers or harming their ability to create new products.

Google’s recommendation

Google proposes 3 developments: support for the US Patent Trademark Office (PTO), Judiciary review of forum shopping, and congressional changes to address patent abuse.

The PTO receives . The evaluation process has not been streamlined because PTO employees are under-resourced despite the PTO working on AI solutions. Such inefficiency leads to possible issuances of invalid patents, inventors may then be unable to protect their inventions confidently. Others end up having to defend infringement claims against patents that . Google that investing in the patent office can help prevent such issues and are that “important work can finally begin” by the new director of the PTO, Kathi Vidal.. Google also funding the PTO by increasing fees for larger patent filers (including themselves).

At the judicial level, Google Chief Justice Roberts urgently investigates the judicial imbalances caused by abusive forum shopping. DeLaine Prado recommends ending forum shopping as many companies suing patent claims may damage the integrity of the judicial process. In a year-end report on the federal judiciary, Justice Roberts pledged to direct the judicial conference to address patent venue rules and that the . The extreme concentration of patent cases in Waco, Texas in Judge Alan Albright’s court has concerned Senators. To illustrate, approximately 20% of all US patent litigation is filed in Judge Albright’s court.

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Senators have also raised concern that Judge Albright has . have raised concern that this patent-owner friendly policy attracts patent trolls. Senators also note that current case assignment procedures may allow the plaintiff to select a specific judge to hear their case.

Google supports legislation before congress that reduces abusive patent litigation, restoring access to inter partes review, and increasing accountability. Inter partes review was a created by Congress as part of the America Invents Act that helps companies cost-effectively invalidate low-quality patents. This program was created to provide expert review of patents with the greatest impact on the US economy, however changed PTO rules created some barriers to use the program that could be reduced.

Overall, Google’s concern with the lack of promotion of innovation and creativity by the US patent system will likely spark debate and potential reform in the near future.

The post Google’s dialogue in the conversation of improving the US Patent System appeared first on IPOsgoode.

Somewhere out there, there is an old photograph of a very young child standing completely naked, showing the marked signs of a most unusual medical condition.

I met that child when she was well into her old age, one winter afternoon over a decade ago.

Mariana (not her real name) had just returned from the cemetery where her husband is buried. Dressed all in black, her hands clutching a small-change purse wrapped in a clear plastic bag, she regarded me warily when she saw me waiting by her front door.

‘I am not Mariana’, she protested when I greeted her by name. ‘I am her sister. What do you want from her?’

But I knew she was Mariana. There were dark circles under her droopy eyes, just as in the photo that had accompanied the news of her medical case several decades earlier. Her hands trembled as she tried to unlock the door to her crumbling plastic-roofed shack.

I explained that I had just finished reading a recent book about ‘her sister’ and that I only wished to speak to her about conflicting information contained in that publication, as I was conducting research about her medical condition.

Mariana listened in perfect silence, eyeing me suspiciously. Upon hearing the name of the author of the book, her nervousness turned to fury.

‘God knows whether that man is even a doctor! Are you a friend of his? Did he send you here? Why on earth should I give a damn about your research?’ she shouted, veins throbbing at her temples. ‘I am��not��a guinea pig!’

Mariana’s reaction startled me.��Unknowingly, I had opened old wounds, and I felt profound guilt for making them fresh again. My unexpected visit, as it turned out, was just another one of those harassing knocks at the door that she had endured throughout her life.

‘I recognize you!’ she snapped, jabbing a finger at my face. ‘You have been following me’.

I tried reassuring her that this was not the case, but Mariana struggled to take my word for it.��Her privacy has been repeatedly invaded by complete strangers since childhood. Treating her as an object of their curiosity, her emotional wellbeing has been collateral damage. She now finds it difficult to trust anyone.

‘Please forget me,’ she then said, her voice cracking. ‘I just want to be left alone’.

LOOKING FOR ANSWERS

Mariana’s photograph was originally taken without her consent in the course of a medical examination, years before the internet existed. Soon after, it was published in a French medical journal, along with her full name and medical details. Her story then appeared in newspapers and magazines around the world. Decades later, when it was posted online, the photograph quickly went viral, taking on a life of its own. It has now been viewed millions of times, making it impossible for her to be left in peace.

Throughout her life, perfect strangers have invaded her privacy without regard for her emotional wellbeing

Unquestionably, the circulation of such sensitive material violates Mariana’s privacy, dignity and family-life interests as guaranteed by national laws and international human rights treaties. Less clear, though, is the practical question of how one goes about stopping the infringement of these rights. What can be done to stop the circulation of harmful (and non-consensual) content of this nature? Where does one even begin?

Haunted by Mariana’s lifetime of distress, and in search of answers, I landed at Osgoode Hall Law School in Toronto.

As journalist-in-residence there, I worked from 2017 to 2019 with a team of 20 law students and 18 law professors, alongside lawyers from several countries, on a project entitled ‘A Child’s Right to be Forgotten’. Our objective was to analyse Mariana’s case and find a potential solution to this extraordinary situation.

After a careful examination of multiple areas of law and a plethora of expert opinion – from legal academics, jurists, ethicists, medical professionals, trauma psychologists and scientists – we pursued several lines of approach.

COMPLICATED MATTERS

First, we considered copyright law to try to stop the circulation of the photograph. Given that it had been first published in France, UK legislation presented an opportunity to undertake corrective measures. Through the Berne Convention, the UK and France recognize each other’s copyright regimes. In France, the copyright was technically still valid – provided it could be established that the photograph was an intellectual creation under French law. If Mariana’s picture was being published online without the authorization of its owner, a request could be made to the rights holder, we reasoned, to revoke any use not bound by contract.

But we ran into difficulties locating the owner of the copyright as the image had no credit line. We tried contacting the medical journal in France, only to discover that it had since been acquired by another publisher, Elsevier Masson.

We reached out to Elsevier, but, surprisingly, they did not know whether or not they owned the copyright.

In a baffling email response, an employee from the company’s copyright unit wrote: ‘[W]e are unable to confirm that we are the legal copyright holders of the figure… and that we are entitled to deliver permissions to third parties. Therefore, although Elsevier Masson has no objection for you to use the aforementioned material subject to suitable acknowledgement to the source, it is important that you obtain, prior to use, written permission from the author(s) (or heirs) of the figure…’.

The only possibility of finding out who held copyright for the photograph was to ask the publisher if they had kept a copy of the contractual agreement with the photographer. But that turned out to be a dead end.

FURTHER INTO THE MAZE

Next on our list was image rights legislation. The island of Guernsey has legislation for the protection of a person’s image rights. This is a somewhat niche course, used mostly by celebrities, enabling them to register their image rights there and bring legal action against breaches. It sounded promising, but only Mariana, or someone acting on her behalf with her consent, could assert those rights. Seeing how Mariana avoided all contact with outsiders, and determined to prevent exacerbating her trauma by raking it all up again, we couldn’t pursue this route further.

We then looked into data protection and the right to be forgotten as a new line of inquiry. As it is in the EU, personal data is protected in Mariana’s country. Given that Mariana has not consented to the use of her personal information on the internet, a request can be made to those��processing��her information to remove it. This can be accomplished pursuant to her country’s Data Protection Act.

Better still, a request can be made directly to search engines (as opposed to individual websites) to remove search results containing infringing content. While this course of action normally would require Mariana’s direct intervention, there is a legal provision that makes it possible for a third party to lodge a formal complaint of infringement with the National Authority for the Protection of Data in that country. Mariana’s consent was not required for this action.

Encouraged by this new window of opportunity, we prepared to make our move. But soon other complexities arose. The complaint to the regulatory agency had to be filed in person, which we did – even though this required a long-distance trip. After securing the assistance of lawyers with relevant experience in Mariana’s country, we proceeded with a complaint against Google for infringing on her rights. But then, bureaucracy took on a Kafkaesque turn.

Our case was deemed inadmissible. Why? It turned out that Mariana’s consent was required after all for any action initiated to remove the very material that had been originally made public without her consent. But had Google obtained Mariana’s consent before making her personal data public online? Of course not. Could the regulatory agency make that inquiry? They failed to address this question. Two appeals later, our case was closed.

We then resorted to a non-legal approach. Bearing in mind that there is public interest in this matter, as well as a legal and moral obligation to put an end to decades of harm, we brought the case to the attention of five United Nations special rapporteurs seeking their intervention. Unfortunately, that avenue produced no fruitful outcome either.

A letter was then sent to Elsevier briefing them on the serious privacy impacts of the use of Mariana’s name and image in their publications. Would they consider removing them? Or at least blurring her face when using that image and anonymizing her details? It went unanswered.

No matter what we tried, we came up against hurdles.

THE BIGGER PICTURE

At the end of the day, this work is not just about Mariana. Her story is part of a much bigger picture.��It is the story of countless vulnerable people being harmed by the online circulation of intrusive content, while internet intermediaries profit from such material.

According to trauma psychologists, Mariana will likely never be able to develop trust in others. The consequences of her childhood trauma and public exposure are profound, dramatic and long-lasting. And that is to say nothing of the strangers interested in her story, whose curiosity makes her relive her trauma again and again.

Countless vulnerable people are being harmed by the online circulation of intrusive content, while internet intermediaries profit

The literature on image-based abuse suggests that the re-posting of such images is, in and of itself, a form of abuse. The online availability of the images causes great damage to survivors.

Taking into account Mariana’s lack of agency, it is unreasonable to expect her, or someone in a similar situation, to stand up to tech giants and fight for her right to privacy. Given that online material can be shared globally, it is challenging to identify the jurisdiction in which infringements take place.

Even when there is agency, case law shows that filing a take-down request against search engines and social media platforms is onerous. While they boast about their global reach and presence, they can be quick to argue that they are based in the state of California and are not bound by laws outside that jurisdiction.

Mariana’s story is a cautionary tale of the consequences of failing to remove harmful content from search engines and the internet. Privacy matters. To protect it, regulation is essential. But legislation also needs strengthening to be sensitive to the trauma of those suffering from the unwanted online distribution of harmful personal data.

Remember that behind a photo there is a real person; it’s not just an image waiting for a click of your mouse.

The post A Child's Right to be Forgotten appeared first on IPOsgoode.

Photo by Francois Le Nguyen ()

Emily Chow is an��IPilogue��Writer and a 1L JD Candidate at Osgoode Hall Law School.���� �� ����

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2022 is primed to be an important year for humanity’s actions against global warming. COP26 (Conference of Parties) . It generated momentum that must continue to meet the goal of the by 2050: to reduce the Earth’s temperature by 1.5°C. 196 Parties adopted this internationally binding treaty. With the additional challenges brought forth by COVID-19, (net)zero-carbon solutions urgently need to be implemented across all levels and structures. The from this collective responsibility to reduce greenhouse gas emissions. It has the capacity to usher in radical, life-saving changes. One way is through the

According to the World Economic Forum, eight industries generate : agriculture, construction, fashion, fast-moving consumer goods (“FMCGs”), electronics, automotive, professional services, and freight. This article discusses the role of fashion in climate change, and more importantly, highlights some textile innovations and organizations demonstrating the core values of circular economies.

Circular Economies: An Overview

A “circular” economy is more than a corporate citizenship buzzword or a . The three key pillars, or goals, supporting circular economic systems are: to. True circular production generates products and materials that can be reused, repaired, or remanufactured, thereby eliminating the concept of “waste” generated through consumer capitalism. These systems emulate what is inherent within nature’s ecological systems, such as and or cycles.

The Case for Fashion

Fashion, and by extension any forms of creative self-expression, potentiate important sociopolitical spaces for and individuals. Fashion can be , and . It can be responsive to or representative of . Fashion coalesces and will continue to so long as culture exists. It is also plain fun to feel good in what you’re wearing and for your clothing to represent you.

The fashion industry has roots across including (pun intended), retail, , , . Remedying the supply chain can , which struggle to fund expensive decarbonization efforts given their low profits relative to high emissions. Consumer-facing industries like fashion generate higher profits per ton of emissions, and thus can pass along decarbonisation costs in .

Along with the benefits of a circular economic system come concerns of and the privilege inherent in purchasing an expensive item upfront. Not to mention, the capacity to make climate-informed decisions further depends on sizing and access inclusivity for all ���ǻ徱���— of the fashion industry. However, many and have demonstrated the power in , , to one of slow fashion. , much of which is spurred by and a culture of consumption (think of TikTok or , hauls, ‘shop with me’ videos, negative associations of wearing something twice, etc.).

While the solution isn’t perfect, as an individual starting point, we can begin to unpack the small ways we as individuals can reassess our spending habits. Some mindfulness questions we can make a habit of asking ourselves are: What about [item] do I like or dislike (e.g., price, fit, colour, material)? Do I have anything similar? Can I get this second-hand? Will this material/style last several seasons? Do I see myself wearing this a few years from now?

Ultimately, structural change from the top-down must also occur to remedy our current climate. Yet investments made towards technological innovation and zero-emissions solutions have already proven to be profitable, sustainable, and . Furthermore, the collective push towards , , business certifications (such as , ), and is extremely promising.

Fashion’s Patented Innovations

I am really looking forward to seeing how the above movements evolve and respond to the coming year ahead. I am also excited about the increased adoption of patented materials and products! The production of synthetic textiles, garment-making, and the supply chain generates . Introducing nature-based solutions in agriculture and textile processing will be key to reducing greenhouse gas emissions.

, , , and are a few companies building towards a circular economy in an exciting way.

Mycoworks is a San Francisco-based company with a for Fine Mycelium that has developed a called REISHI: a made-to-order, vegan, and biodegradable yet durable leather. Last year, they made headlines with their , whose classic “Victoria” style was remade with Fine Mycelium and named .

AlgiKnit makes patent-pending kelp-based yarns and textiles in New 91��ɫ. Their closed-loop product life cycle allows them to break down end products to be remade into new ones. This seaweed-based yarn allows manufacturers to excise highly toxic chemicals from the treatment process, protecting workers from dangerous and . AlgiKnit produced a , and one can only imagine the streetwear implications this new material could have. Furthermore, the company announced the opening of an , where they will work with global brands to adopt new biotechnological textile innovations.

Lenzing’s TENCEL Lyocell and Modal fibres are fibres originating from responsibly managed forests in Austria. They use a non-woven spinning process that recycles the water and solvents at a rate of more than 99%. These fibres have been certified biodegradable and compostable

ALT TEX, a homegrown Toronto start-up, is a former client of the IP Innovation Clinic at Osgoode Hall Law School. Founders Myra Arshad and Avneet Ghotra have developed a novel bio-polymer technology that re-engineers sugars extracted from food waste into a fibre substitute to , which is made of plastic. ALT TEX’s closed-loop, biodegradable, and carbon neutral textile is a game-changer with the potential to replace polyester entirely, which makes up over 60% of textile manufacturing.

Further Engagement:

Aja Barber’s Consumed, a book on the textile industry’s racist, colonial, and exploitative history, and how to empower yourself by unlearning the mentality of mass consumerism:

Intersectional Environmentalist, a climate justice community centering BIPOC and historically excluded voices:

Social/climate activists Stevie (aka ), Summer Dean ()

Second-hand, Consignment and Thrift stores (to name a few!): , , Facebook Marketplace,

Fashion Impact Fund, supporting women entrepreneurs and the fulfillment of UN’s Sustainable Development Goals:

Ecologi, a climate-positive investment subscription where you can support environmental projects as a business or individual supporter:

The post Biotech of the Future: Fashion’s Role in Climate Change appeared first on IPOsgoode.

Photo by Element5 Digital ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

On October 15, 2021, the U.S Patent and Trademarks Office (USPTO) on the contentious topic of patent eligibility. provided contrasting viewpoints on the matter, with some corporations urging legislative reform, and others quite pleased with the current state of law. To understand these varying opinions, it is important to examine patent eligibility’s current state, recent changes, and what changes could be made to the patent eligibility laws.

Calls for Reform

Tillis, Hirono, Cotton, and Coons requested a study by the on the state of patent eligibility jurisprudence in the U.S. The study aims to examine the current jurisprudence’s in the fields of quantum computing, artificial intelligence (AI), and pharmaceutical treatments, among others. The USPTO requested public input to complete the study, as to gain perspective and anecdotal evidence on the jurisprudence’s effects on innovators and patentees.

The law outlines what innovators can and cannot patent in the United States. Patent eligibility is codified under , which states that any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” may be patented. However, many industry sectors have been pushing the bounds of what a manufacture, machine, or composition of matter could mean. Abstract ideas like AI or algorithms have sparked debate as to whether this codification of patent eligibility accurately encompasses everything that innovators should be able to patent.

Current State

While a vast realm of things can be patented, software and medical devices are frequently hot topics when discussing patent eligibility. Software including algorithms and AI technology have often been excluded from patent eligibility on account of s”, unless they are rooted in something tangible, like a computer.

Diagnostic techniques and medical devices historically garner mixed court reactions. On the one hand, diagnostic techniques may be construed as finding something that occurs in nature; but, at the same time, the technique could be construed as a “new and useful process” meeting the section 101 eligibility criteria. In , the District Court rejected patent claims related to methods of isolating fetal DNA from maternal blood plasma that was based on a discovery that fetal DNA is shorter than maternal DNA. The District Court found that this discovery and subsequent method are invalid as the claims are directed to natural phenomena, therefore excluded from patent eligibility. On appeal in March 2020, the Federal Circuit reversed this decision and found that the method had and thus the methods were patent-eligible subject matter. The back and forth highlights the ongoing debate on patent eligibility in the realm of medical methods and devices.

Significant U.S. Precedent: Alice/Mayo test ��

The U.S Supreme Court has established a two-step inquiry to section 101 patent validity challenges. The inquiry is referred to as the . The asks whether the contested claim is directed at a patent ineligible concept, like an abstract idea. If it is, then deems a claim eligible for a patent if it contains an inventive concept. Inventors are as to whether this test has clarified patent eligibility, or if it has created a complicated and costly barrier to patent production.

While differing patentee viewpoints will be studied in a subsequent article, many companies take issue with the application of the Alice/Mayo two-step inquiry for patent eligibility. So, it is important to examine these cases ( and ) and the rationale in their application.

Potential Impacts of the Study

The study made no guarantees that the U.S. law regarding patent eligibility will change, but its creation acknowledges that industries are evolving, and legislators and intellectual property experts alike should evaluate the law.

The study’s publication may also become a useful reference for the judiciary when evaluating patent claims and their validity. Therefore, the study could potentially aid in fostering more consistency in the decisions regarding complex industries like medical devices and software. The line between eligible and ineligible patents in these fields is thin, and courts are not sure when an innovator will cross it. This study could be the first of many initiatives to bolden and solidify these patent eligibility lines for innovation in the future.

The post Evolving Perspectives: USPTO Call for Comments on Patent Eligibility Comes to a Close (Part 1) appeared first on IPOsgoode.

In November 2008 and April 2012, Toronto Police Services executed a criminal search warrant at Dr. Flea’s Flea Market, leading to over $1 million of counterfeit merchandise being seized – some of which included Louis Vuitton products. Unfortunately, the flea market did not learn from its past mistakes. In November 2015, The Fashion Group Couture Group – a vendor operating out of Dr. Flea’s Flea Market – was once again caught selling counterfeit Louis Vuitton products. The well-known fashion brand is now seeking compensation from the landlord of the flea market for��negligence, vicarious liability, and (as will be focused on within this article) intellectual property infringement.

Unfortunately, lawsuits involving intellectual property infringement are certainly not unheard of in the fashion industry. From , to , intellectual property rights remain a significant issue for both corporations and individuals. However, what makes this lawsuit different from any other infringement within the industry?

It is common practice for brands to bring lawsuits against the��vendors of counterfeit products. However, bringing lawsuits against the landowners of retail space is a relatively new legal phenomenon in Canada. The ability to hold landlords accountable for their vendors’ activities has��already been established and legislated��under U.S. law. Canada, however,��has never��implemented regulations in this area, and is behind its southern neighbour.

One of the few guiding cases is In this case, the defendant was found by the Court to have infringed the rights of Chanel Inc., which holds the licence to use Chanel trademarks in Canada. Pursuant to����of the��, the Court granted: declaratory relief confirming the validity and ownership of the Chanel trademarks, injunctive relief precluding the subject defendants from continuing their infringing activities, and injunctive relief requiring the delivery up and destruction of any remaining infringing goods within twenty-one days of the original judgment. Ultimately, the federal judge ordered the landowner selling the knock-off goods to pay over $300,000��in compensation. However, without many cases in this area, the fate of Dr. Flea’s Flea Market is still subject to debate.

Landowners have argued that consumers are not necessarily cleared of responsibility either when it comes to purchasing counterfeit products. The gives tips on how to ensure that the product the consumer is buying is not counterfeit or pirated. Further, the website outlines the necessary steps if one suspects a bought product is illegitimate. For example, visiting the further warnings and information. Such caution signs include, but are not limited to, bargain prices, incorrect logos, and/or the lack of a certification label. Ultimately, landowners claim that it is extremely difficult to even tell the difference between authentic and counterfeit products. They argue that the consumers should be held accountable for purchasing the knock-off goods, and inadvertently funding organized crime.

Although this lawsuit is just beginning, one thing is assured: if Louis Vuitton successfully sues the owners of the flea market,��Canadian brands will now have an extra tool in protecting themselves against infringements involving intellectual property. With more at stake for landowners, this increased responsibility��will hopefully encourage landowners to better regulate the products that their vendors are selling. The question remains, is this enough to end the fight against counterfeit products?

Giuseppina D’Agostino, founder and director of IP Osgoode, commented on this lawsuit in a recent stating that, “Should the case be successful, it would increase pressure on landlords to monitor their tenants… [however] those changes will be toothless without enforcement.��You can have whatever contract written down, whatever law, whatever lawsuit, if it’s not enforced, the problem proliferates. […] I think it may change some behaviour in terms of landlords being more judicious in who they lease their space to but long term I don’t think it will really address the bigger problem of infringing merchandise.”

The reality is, even with a successful precedent set by this case, the need to codify reform in this area of law remains pressing. If one thing is certain, however, it is that no one��can��“flea” from Louis Vuitton,��not even the local flea market down the road.

Alessia Monastero is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the����has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law,��considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a��copyright infringement ruling��against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the��Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a��separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.�� Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows��legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's��representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in��Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist��Richard Prince��copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s��identical reproductions��of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,����saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist����were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is��’s appropriation of��’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of��. She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of����from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful��artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the��art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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President Obama was alluding to a recent and growing problem where is becoming more frequent and expensive, especially in the high-tech industries. A from James Bessen and Michael J. Meurer, from the Boston University School of Law, estimates that lawsuits from so-called patent trolls are "growing rapidly, affecting 5,842 defendants in 2011."��Historically,, have been tools for promoting economic growth and technological innovation by providing incentives to create new technologies as well as legal mechanisms to benefit from these creative advancements.

However, in recent years, patent laws have been used as a means of chilling innovation by causing firms to misallocate capital towards defending their innovations against proprietary claims and away from research and development. These "Patent Wars" and their attendant—and often reactionary—debates are threatening the long-term viability of technological innovation in America and throughout the world.

As , a technology analyst and former Adjunct Scholar at the Cato Institute, : “The patent system has become a minefield that punishes innovators who accidentally infringe the patents of others. There are now so many software patents in force that it is practically impossible to avoid infringing them all.” And, while President Obama and others may wish for Congressional action on this front, the politically gridlocked House of Representatives combined with influential lobbyists on both sides of the issue makes these reforms unlikely to happen anytime soon.

Amidst this regulatory inertia, leading companies in the software and technology industries are exploring alternatives to government-led IP and patent reform. For instance, in 2012, Twitter created an ‘’ (IPA), which was designed to protect the rights of creators while also avoiding costly litigation by adopting a defensive stance. As , who was then the company’s VP of Engineering before becoming its Chief Technology Officer, , “we will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.”

Twitter and other leading technology companies have been employing cross-licensing agreements to approach the problems associated with ‘Patent Wars’ on cooperative bases. On January 31, 2014, Twitter and IBM reached a cross-licensing agreement giving Twitter access to over 900 patents controlled by IBM. Ben Lee, the Legal Director for Twitter, “licensing agreement provides us with greater intellectual property protection and gives us freedom of action to innovate on behalf of all those who use our service.” IBM, meanwhile, “look forward to a productive relationship with Twitter in the future.”

On January 27, Google and Samsung agreed to a similar deal that cross-licenses the patents of the companies as well as those filed in the next 10 years. Dr. Seungho Ahn, the Head of Samsung’s Intellectual Property Center, highlighted the significance of the deal, “Samsung and Google are showing the rest of the industry that there is more to gain from cooperating than engaging in unnecessary patent disputes.” Allen Lo, Deputy General Counsel for Patents at Google, echoed these sentiments, , “By working together on agreements like this, companies can reduce the potential for litigation and focus instead on innovation.”

These inter-firm alliances are a welcome step away from costly litigation and patent-based posturing. In these cases, capitalism and cooperation go hand-in-hand. The ‘cooperative competition’ that these companies are engaging in represents an actualization of the ‘collaborative ethos’ of digital technologies that has long been described by industry analysts.

Analyst and consultant , Adjunct Professor of Management for the Rotman School of Management at the University of Toronto and Martin Prosperity Institute Fellow, “Smart companies are making their boundaries porous, using the Internet to harness knowledge, resources and capabilities outside the company. They set a context for innovation and then invite their customers, partners and other third parties to co-create their products and services” (at page 3).

These firms are benefiting from low-cost communication and networking, which allows technological developments to be easily shared. With access to the information and technologies of firms that would otherwise be competitors, these companies can further develop and innovate. Governments and policy-makers should seek to encourage these types of activities while pursuing longer-term goals of legislative reform.

In early 2014, we have already seen two significant cross-licensing deals amongst industry leaders, which may well pave the way for further cross-pollination. As Twitter and IBM as well as Google and Samsung benefit from the technological know-how and increased insulation from patent litigation that can be gained through cooperative competition, their other competitors may begin to see the merits and benefits of calling a truce in the on-going ‘Patent Wars’.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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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 trade-mark��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.

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Here are some of the main features of the AIA:

• The AIA awards a patent to the first inventor to file. That claimant can be dislodged by a showing that someone else was the true inventor. Previous law awarded the patent to the first inventor, not the first to file.
• It becomes far easier for corporations to own inventions. They are now granted much leeway to file for the patent directly, so long as the inventor is contractually obligated to assign the patent. The committee stated that this is to push aside “the antiquated notion that it is the inventor who files the application.”
• A potpourri of other changes includes: new patent marking rules, , failure to obtain legal advice on patent validity cannot be used to prove willful infringement, procedures to correct erroneous patent prosecution information, federal jurisdiction of contracts to assign patents, a prior use defense, and post grant proceedings in the USPTO.

These are significant changes, but they do not comprise a comprehensive reform. The remainder of this blog will discuss elements of a comprehensive reform, rather than focus on shortcomings of the AIA.

Some history. From the twelfth century forward, commercial and industrial classes were steadily gaining influence English law and policy. As that movement gained steam, it persuaded the English Parliament to enact the Statute on Monopolies during the reign of James I. (21, James I Ch. 3, 1623.) The act was intended to abolish all royal grants of monopoly. The act provided an exception: A patent (“lettre patente”) might be allowed for limited years for those who perfect “any manner of new manufacture, within this realm.” The United States Constitution embraced similar criteria. (U.S. Const. art. I §#8, cl.8 ) A recent unanimous Supreme Court decision: reaffirmed that “the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is ‘to promote the progress of science and useful arts,’ ” ()

Patents flourished during the industrial revolution. During that period interested parties recognized that the patent monopoly could be used as a source of rent and a means to control economic activity. In short, patents were not simply a limited reward, but were a source of capital. Nurturing patents as capital became the primary emphasis in latter decades of the twentieth century. That emphasis was present throughout the AIA legislative process.

The role of technology and patents today. During the seventeenth through nineteenth centuries the United States and European powers pursued national interest and little else. Events in the twentieth century undermined the economic and political foundations of that approach. World War II exhausted Europe, and after that war, a consensus emerged that aggressive war, racism, widespread hunger and disease must be curtailed and, if possible, eliminated. Much of that consensus exists today, but has not been successfully acted upon. Now, the world population stands at seven billion, the climate is radically altering, while wars, poverty, and lack of education continue to create overwhelming suffering.

Technology can do much to aid the world. Technology advance depends primarily on social resources such as education, research, shared knowledge, and public institutions. Individual insight and company efforts contribute, often strongly, to that progress. One of the great innovators of all time, Isaac Newton, captured the gist of this combination when he urged that if he had seen further, it was because he stood on the shoulders of giants. In a modern environment, scientific and technical advance require investment in research facilities and the efforts of trained professionals. Patents offer a boost to useful innovation, but they are neither a necessary nor sufficient means.

Patents can encourage innovation, but they also can and do discourage it. This negative effect occurs when they are used as power, as a form of capital. A portfolio of minor patents can block introduction of new technologies and prevent delivery of new products to the public. A raft of scholarly writing investigates this problem. John Flock, a veteran patent litigator, observes that patents are used mainly as weapons in “global patent warfare as a way to gain leverage over a competitor in negotiations.” (2011 WL 5618030 ASPATORE). Patents of dubious validity compound this problem. According to Professor F. Scott Kieff businesses “are forced to defend against large numbers of lawsuits over junk patents.” (157 U. Pa. L. Rev. 1937, 1938 (2009)) Professor Mark Lemley echoes that observation, adding, “Even the ones that turn out to be valid are often impossible to understand.” (15 Marq. Intell. Prop. L. Rev. 295, 296 (2011)) It also should be borne in mind that patent procedures and litigation consume legal resources which might be focused on social needs such as reduction of domestic violence, environmental protection, criminal due process, and reducing the resort to warfare and war crimes.

Thus, any patent system ought to be designed to meet human needs. Its rewards ought never to extend beyond rewarding innovative effort or providing for research. United States patent law, for example, fails to assure that any gains from the patent monopoly will be invested in research or development. They can be spent on advertising, executive bonuses, lobbying, acquisitions, “golden parachutes,” etc. Nor does US law require that the patentee actually practice or license the invention during its term. These defects can be remedied by legislation.

Patents ought not function to control the economies or development of nations. The peoples of the world face very different needs and challenges. Huge portions of humanity are ravaged by war and disease. A very small percentage of the world’s population takes part in the levels of income, protection and luxury that are enjoyed by stock holding individuals or leaders of large corporations. The patent monopoly as it exists today fuels those disparities. Thus, rather than focus on increasing corporate values or control, patent laws should focus exclusively on making technological advance available to all at reasonable social and personal expense. This means that national laws need to be altered and that the entire intellectual property treaty structure needs to be reexamined. In major respects, patent law and the related treaties, serve primarily the interests of dominant corporations and national elites.

The world can benefit from cooperation on patent law. In today’s jargon this is called “harmonization.“ The term or its equivalent appears twenty times in the Report. However, the AIA’s emphasis on assuring the United States a “competitive edge in the global economy” runs contrary to international cooperation. This aspect of the AIA amounts to a modern form of mercantilism. Classically, “mercantilism was control of the economy in order to further national interests.” (Thomas B. Nachbar, 91 Va. L. Rev. 1313, 1318 (2005)) The AIA form of mercantilism allows patents to be a form of control that advances corporate interests, rather than national interests. The Report implies that the AIA will “spur innovation as a means to create American jobs and raise standards of living.” However, corporations and others from around the world can own US patents. They are free to locate their workforces anywhere and decide what wages they will offer.

In sum, I urge that patent laws be based on assessment of what will actually serve all. This requires lawmakers to consider these laws in their full context. It cannot be done by isolating patent policies from other legal policies and needs.

Howard C. Anawalt is a United States attorney, law professor, and writer. ��His article on “Best mode” was featured in IPilogue post.

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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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