Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

On Friday, November 11, 2022, FTX. Shortly after that, filed for bankruptcy, and a Japanese exchange called Bitfront shut down. FTX is a global, centralized cryptocurrency exchange based in the Bahamas. It enables customers to exchange their digital currencies for other digital currencies or regular money. Sam Bankman-Fried ("SBF”) was the CEO of FTX.

The collapse came when FTX. is the cryptocurrency exchange with the highest daily trading volume of cryptocurrencies globally. On November 9, Binance it would no longer purchase FTX, mentioning reports of mishandled funds and regulatory investigations. Since then, the price of has plunged by more than 90%. The FTX's native token is called . It is generally used as collateral for future positions and to lower trading fees.

��According to a report by , on November 2, Alameda Research ("Alameda”), the cryptocurrency trading firm led by SBF, was found to have an unusually high stockpile of FTT. FTX and Alameda's connections may have been more complex than had been previously disclosed, raising the question of whether FTX moved customers’ assets to Alameda. Since Alameda and FTX owned most of the FTTs, the other business would suffer severe financial consequences if one of them is compelled to sell or transfer its FTT holdings.

On November 6, that it would sell its FTT tokens. The value of FTT fell, triggering investors to race to sell their holdings in FTX out of concern that it would collapse like other cryptocurrency corporations. FTX rushed to execute withdrawal requests, but could not pay. As a consequence, FTX filed for bankruptcy.

John J. Ray, the new CEO of FTX, believes such a disaster is due to a lack of supervision and poor record-keeping. He numerous mismanagements leading to the disaster, including concealing misuse of customers' funds through software, using unprotected group emails, and communicating using applications with auto-delete features that restrict access to FTX records.

Platform customers, unsecured creditors, must wait in line to receive whatever assets the court may take from FTX based on priorities established by equitable principles. The bankruptcy has highlighted an $8 billion shortfall. After the fall of FTX, it will be more difficult for crypto exchanges to gain trust.

Industry experts are now predicting a "". The cryptocurrency market has long battled to win over investors and authorities. Investor trust in digital assets has weakened in the fallout of FTX, which will likely lengthen the impending crypto winter.

The FTX collapse underscores the lack of investor fund regulation in cryptocurrency markets. The cryptocurrency industry requires more stringent regulation to be rid the market of manipulation, fraud, mismanagement, cyber security risks, and money laundering. What steps will be taken to address these concerns will remain to be seen.

Further Reading:

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

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

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

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

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

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

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

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

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

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

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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.

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Photo Credit: Prof Pina D'Agostino

Prof Giuseppina D’Agostino is the Founder & Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School. She is also very proud of her new book!

��

I am excited to share that I just published a collection on Artificial Intelligence (AI) and the law, Leading Legal Disruption: Artificial Intelligence and a Toolkit for Lawyers and the Law (Thomson Reuters 2021). Co-edited with Dr. Aviv Gaon and Carole Piovesan, the book provides a provocative analysis on the emerging terrain of AI and how it interrogates various areas of the law. The book, that features a foreword from the Hon. Marshall Rothstein (formerly of the Supreme Court of Canada), is an international collaboration of thought leaders in AI, with contributors from Canada, the USA, Europe and Israel. Issues discussed include intellectual property, privacy, contract law, regulation, governance, ethics, business and more. Importantly, such issues merit a toolkit of practical and international perspectives as they are increasingly complex and ajurisdictional. ����

In many ways this book is also a reflection of Osgoode’s strengths in AI. My co-editors, Dr. Aviv Gaon, Director at IDC Herzliya of Experiential Programs, is a PhD graduate (class of 2019) publishing several other books on AI and emerging technology, and Carole Piovesan (class of 2009) has co-founded her own firm, INQ Law. ��I am myself an LL. B graduate from Osgoode (class of 1999), eventually returned as faculty to found and run IP Osgoode and I am currently co-chairing the 91��ɫ AI & Society Task Force, among many other initiatives in this space.

I am particularly thankful to the Osgoode JD students who provided helpful research assistance: Elif Babaoglu, Daniel Joseph, Joseph Simile, Rachel Marcus, Christopher Tsuji, and Julianna Felendzer.

I am most grateful for the enthusiastic endorsements by Prof David Vaver (Professor of Intellectual Property Law, Osgoode; Emeritus Professor of Intellectual Property & Information Technology Law, University of Oxford), Prof Jane Ginsburg (Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law), Justice Michael Manson (Federal Court of Canada), and Dan Bereskin (Partner, Bereskin & Parr LLP) all which can be read on the back cover.

They say you can’t judge a book by its cover, but I particularly like this one, inspired by an AI and suggestive of our youth, our future ultimately grappling with AI and other emerging technology, that will iterate in every generation.

I look forward to hearing from you on your thoughts on the book (and the cover!). You may order your copy��here.

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Reposted with permission from the author. Originally published on

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As the Government of Canada has , "new business models and new market strategies will be needed if the Canadian digital media sector is to succeed in the global digital economy. " For example, "Over-the-top" service providers, such as��Netflix, as well as an array of companies offering on-demand or��à la carte��options, notably Apple Inc. via��iTunes, are��growing in popularity, ,��and demonstrating the shifting nature of the contemporary television landscape in Canada and across the world.

Due to these changes in how Canadians view television content, the country’s television regulator is seeking advice from the Canadian public to determine if and how television regulations must change.��For the CRTC, “making the right choices about how we shape Canadian television requires a complete and in-depth understanding of the Canadian television viewing experience.”

The regulator has, therefore,��asked Canadians to reflect��on the their habits and offer advice on three areas: “Programming: What do you think about what’s on television?;��Technology: What do you think about how you receive television programming?; and a so-called��Viewer Toolkit: Do you have enough information to make informed choices and seek solutions if you’re not satisfied?”

A common area of concern for many Canadian television viewers sits at the convergence of these first two topics: the relationship between programming — often of foreign content — and emerging technologies. Canadian consumers are often irritated to find that the content they wish to watch online is unavailable to them because of their geographic location.

Due to the nature and complexity of content licensing agreements, many popular programs are "" for viewers based in Canada or are otherwise unavailable to Canadian-based service providers. The frustrations surrounding Netflix’s��2010 entrance��into the Canadian market epitomize this. At the time, many Canadians were irritated by Netflix Canada’s relatively��limited selection��when compared to the service as offered in the United States. These sentiments continue today; have been created to track the differences between the Canadian and American services.

Geo-blocking and the unavailability of foreign content are distinct but related issues for Canadian viewers as well as service providers.��Geo-blocking��is a technological protection measure, allowing rights-holders to determine who can view content based upon the geographic location of a user’s Internet Protocol address. Rights-holders employ this technology in order to recreate traditional, geographically-based broadcast boundaries in the online environment. In , digital media consultant Alan Sawyer��argues: “since this is consistent with the realities of the physical world, it's a logical approach for broadcasters to take and makes a sensible foundation for enforcing territorial licensing agreements – and it preserves the effectiveness of the existing ad-supported model and helps broadcasters avoid disintermediation.” Foreign websites restrict access to the content that they host based on the territorial markets that they are attempting to serve and generate revenue from.

Territorial licensing agreements also determine what content Canadian websites and services can offer to their markets. Much of the television content offered by Canadian service providers as well as foreign companies operating in the country is produced internationally, primarily in the United States. Service providers in Canada must therefore negotiate����with particular rights holders in order to deliver this content to Canadian audiences. In certain cases, popular foreign programming is often unavailable to Canadian viewers.

The CRTC is not directly involved with what content service providers license from rights-holders. So while many Canadians may wish to discuss this topic during the CRTC’s��Conversation, the regulators hands may be tied in terms of addressing the problem.

Instead of attempting to solve the business model challenges of Canadian service providers, better results might be obtained if the regulator focuses on ensuring that Canadian content continues to be produced and delivered to Canadians via traditional and emerging media. As more and more content migrates to online platforms, the CRTC will need to explore whether or not Internet-based content providers need to be regulated so that they contribute to the creation of domestically produced content.

[Note: As part of the #TalkTV proceedings, (a non-partisan, student-run initiative of the 91��ɫ & Ryerson Joint , Politics & Policy stream), is hosting a ‘Flash Conference’ on December 4, 2013. More information is available .]

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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The Court noted that the BitTorrent technology involved in this case brings about complex concerns.�� Since torrent files are based on the idea of a “swarm” of users uploading and downloading pieces of one file simultaneously, there are potentially many more users downloading and sharing than in the more straightforward peer-to-peer process or single website hosting files.�� Some of the ways that were suggested to the Court, on behalf of the claimant, for at least curbing the prevalence of the photos were tracking the IP addresses of those sharing the torrent, filtering the claimant’s name from search engines in connection with torrent sites, or having ISPs block access to those torrent sites hosting the file.

The claim was brought against “Persons Unknown”, since none of the users who seeded the files were identified by their IP addresses.�� Claiming against users yet to be identified was required, AMP argued, because the number of seeders, and therefore potential defendants, would be constantly increasing over time.�� The reasoning is that “by identifying the class of persons unknown by reference to their particular characteristic, namely any person in control of any part or parts of the relevant files containing the relevant digital photographic images, would be a sufficient description of the Defendants to enable them to be served with any order which the court might make.”�� The Honourable Mr. Justice Ramsey was persuaded by this argument, and agreed that the case was appropriately brought against “Persons Unknown”.

AMP was seeking injunctive relief under two separate acts dealing with invasion of her privacy (the ) and harassment (the ).�� In regards to the claimant’s privacy, Mr. Justice Ramsey had to consider whether she had a reasonable expectation of privacy when it came to the photos on her phone.�� Mr. Justice Ramsey stated that “in this case the circumstances in which the photographs were taken, the nature and purpose of the intrusion caused by the distribution of the photographs, [and] the absence of consent” all made a strong case for AMP having a reasonable expectation of privacy.�� This expectation of privacy, however, still needed to be balanced with the freedom to receive and impart information without interference which is also provided by the Human Rights Act.�� ��For Mr. Justice Ramsey, it was clear that the claimant’s right deserved to take precedence in this situation.�� Furthermore, since AMP was found to be “likely to establish at trial that publication should not be allowed” she was granted interim relief through an injunction.

Regarding the harassment claim, Mr. Justice Ramsey felt that the situation was such that it met the six factors previously established in to make out a claim of harassment:

(1) conduct which occurs on at least two occasions,
(2) targeted at the claimant,
(3) calculated in an objective sense to cause alarm or distress and
(4) objectively judged to be oppressive and unacceptable,
(5) “oppressive” and “unacceptable” depending on the social or working context in which the conduct occurs
(6) with special consideration of the difference between conduct that would actually be harassment and conduct that is simply unattractive or unreasonable.

Mr. Justice Ramsey therefore concluded that the claimant was to be granted relief both for breach of her right to privacy and harassment.�� This entitled the claimant to an interim injunction to prevent the distribution of her images via any torrent site or through any other use�� of a BitTorrent program.

Perhaps the most newsworthy part of this case is in the terms of the interim injunction that Mr. Justice Ramsey ordered, since those terms apply to the still unidentified “Persons Unknown”.�� The order requires such persons to:

(1) immediately cease seeding any BitTorrent containing any part or parts of the files in question
(2) not uphold or transmit to any other person any part or parts of the files
(3) not create any derivatives of the files
(4) not disclose the name of the claimant or information that may lead to her identification, or the names of the files.

Professor Andrew Murray, who actually provided witness statements in the case, , largely based on the assumption that most of the seeders would be within the jurisdiction of the Court.�� Professor Murray has some reservations, however, about whether the decision means that BitTorrent content can be regulated.�� A sees a possibility of users of social networking sites like Twitter and Facebook being impacted by this decision in the future.

What remains to be seen is whether the order does in fact deter users from downloading the torrent in question.�� Practically speaking, such a deterrent effect would be difficult or impossible to actually measure.�� The goal of the Court in this case may have really been to scare away potential offending users, while not necessarily expecting to reveal IP addresses and track down seeders.

Another issue may be the fact that the Court’s jurisdiction cannot possibly cover all possible seeders, as anyone with an Internet connection and the proper software can download the torrent file in question.�� Professor Murray has stated that the goal is not to “close down all seeders[,] just enough to turn the tap to a trickle.” The underlying assumption is that most of the seeders will be people with connections to AMP, and therefore within the jurisdiction of the Court.�� It would seem that, while this decision may act as a deterrent in this particular instance, its applicability may be limited when a torrent file attains global popularity, (such as in the context of a world-renowned celebrity).

Brent Randall is a JD candidate at the University of Ottawa.

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This past August, over 180 experts from 32 countries convened at the American University Washington College to discuss the growing importance of public interest in intellectual property (IP) law. When the Global Congress on Intellectual Property and the Public Interest (the “Global Congress”) drew to a close, its members released the Washington Declaration on Intellectual Property and the Public Interest (the “Declaration”), underscoring emerging public interest issues in IP and approaches to integrating them into international IP policy.

The Declaration’s recommendations are grounded in the growing concern that IP policy, though holding the potential to widely affect public interests, continues to be shaped predominantly by private ones. This is because IP policy discourse remains largely centred on the interests of rights holders, demonstrated by the European Union’s recently passed “Cliff’s law” directive that extended protection of sound recordings from 50 to 70 years. The Global Congress openly confronts this trend by exposing the ways IP rights can invasively affect public values such as freedom of expression, consumer protection, and privacy.

The Declaration emphasizes that, in moving forward, IP policy must incorporate public interest concerns by increasing transparency in the policy-shaping process, ensuring consultation with a range of stakeholders, and strengthening limitations and exceptions to IP rights. Some notable recommendations in the Declaration include:

• Supporting the use of open educational resources through government procurement policies for textbooks and other educational materials;
• Developing binding international agreements providing for mandatory minimum limitations and exceptions;
• Creating appropriate limits on the use of unfair contracts or technological protection measures that override limitations and exceptions;
• Ensuring that legal penalties, processes, and remedies are reasonable and proportional to the acts of infringement they target;
• Limiting the duties, rights, or abilities of Internet service providers to monitor or control the communications of their users;
• Ending patents based on discovery rather than invention (including patents on human DNA sequences and disease associations) and creating a more rigorous determination of inventiveness;
• Ensuring that inventions that result from publicly funded research are available for public use;
• Increasing public oversight and accountability of collective rights management organizations; and
• Requiring that current proposals for global copyright and patent reform fully integrate development concerns.

What the Declaration markedly reflects is a growing shift in view which recognizes that innovation and creativity are not merely nurtured by strong IP rights but by the cultural environment created by the public. Therefore, although IP rights are property rights in the sense that they are controlled by the rights holder, contemporary discourse must progressively consider the rights of the public at large to access and use that “property.” The Supreme Court of Canada has, for almost a decade since Théberge v. Galérie d’Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, recognized that IP law ought to establish a balance between “the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” IP law and policy – and Canadian IP policy in particular – should be at the forefront of genuinely reflecting that balance.[1]

Having conceptually established the necessity of this balance, the important question the Declaration seeks to address is: how does the concept of promoting the public interest in IP take shape in practice? It is easy to immediately launch into debate over how the implementation of the Declaration will effectively uphold user rights or encroach on the interests of rights holders. ��However, perhaps the most important take-away from this discussion – as summarized by the Global Congress at the end of the Declaration – is the need to channel more resources and greater efforts into studying the impact of IP policy. The greatest weakness of the debate is not the absence of strong theoretical arguments but that of strong evidence to point the debate in one direction over the other. Although most IP-focused research is conducted and funded by industry, these studies often fail to adequately document and publish details on their assumptions, methods, and data.[2] ��In addition, almost no research has examined the economic value generated by limitations on or exceptions to IP protection.[3]

As was vocally conveyed by the Global Congress, beyond conceptual debates shaping IP policy, it is time for policy-makers to begin moving towards a form of evidence-based policy development.

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In a much publicized move, Amazon two books from users' e-book readers. It causes one to wonder what rights we actually have in our digital possessions in this increasingly connected world.

As you quickly learn when you start studying IP law, property rights become a lot more complicated when you're not dealing with physical objects. It's not too hard to figure out who owns a hardcover book and it's straightforward to give, lend or sell your copy. You own a book---a bundle of pages covered in ink---and you can do with that as you please. You don't own the work, the author probably owns that but there is no need to talk of licensing, because when you give away the book your ability to read it goes away too.

Digital content is different because there is no object you can point to and say: "I own that." You might say you own the file, but a file is a tricky thing to pin down. You can (and should) have multiple copies of files. You move a file to a new location by creating a fresh copy and destroying the old one. You can share it with a friend, retain the ability to use it yourself and, more tellingly, you retain the right to use it while your friend gets nothing. The best you can say is that you have some licence to copy and use the work. But the average consumer is used to thinking that he owns something in the traditional sense and it can be frustrating when reality doesn't match up with expectations.

You do own the device on which you store and play the file but, as Dugie Standeford points out in a at IP Watch, your control over the device is incomplete. It's hard to imagine someone from Chapters coming to your house and demanding a book back because they didn't have the right to sell it. But we've seen Amazon do it. Many devices (computers, phones, personal video records, MP3 players, and so on) phone home daily or weekly to check for software updates or download information. The ability the companies have to alter content stored on your devices is limited only by your user agreement---which is to say that it's probably not limited at all. This, too, differs from traditional expectations.

In this world of content in which our rights are dependent on licences and devices that are controlled remotely by the manufacturers, are new laws needed to protect consumers? It depends on what you mean by new. Certainly governments need to protect reasonable consumer expectations. For example, if I buy a digital audio player that plays MP3s, I reasonably expect that it will continue to do that in the future. It would be unfair if that feature was removed. This, however, is just another application or an extension of existing consumer protection laws. If companies are using these devices to exclude content from other sources, we have competition law. As Standeford's post says, this is just what regulators have been doing for years.

Policymakers must be careful to not get too excited about safeguarding consumer expectations derived from physical possession and non-networked devices. New technology will always surprise or annoy some people but that is no reason to hold it back in all cases. If you buy a reclining chair, you don't expect the manufacturer to come to your house and prevent it from reclining. If it turns out that this specific model of chair has been collapsing and injuring owners, however, you might wish that they would and you might also want to be compensated. There is a balance to be struck between the old ways and the new possibilities.

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With ongoing concerns about IP infringement, it is possible that we’ll start to see stronger IP regulation. Arguably, this has already happened. Almost a decade ahead of the financial crisis, Time magazine reported a "" due to unauthorized copying on the Internet. This��prompted similar calls for from Congress. One notable piece of legislation was the Digital Millennium Copyright Act from 1998, which criminalized the evasion of digital locks that control unauthorized copying. France followed suit with its own legislation, with Canada's version waiting in the wings. But with major players such as and abandoning these content controls, this solution may not be the way forward. Groups such as the still identify unauthorized copying as a major problem, and a new wave of regulation may be aimed at protecting IP.

Intellectual property also faces threats from abroad. The between America and rapidly developing countries is cause for alarm. As Westerners rely more and more on developing countries for inexpensive goods, information industries such as software, biotech, and media will become important economic engines at home. This cannot happen if trading partners ignore IP rights in software, art, and technology. . If this trade disparity cannot be resolved in negotiations, Western industries may call for stronger trade protections at home.

Much will depend on how the current economic woes are viewed. This recession might reveal the need for innovations and new products, now more than ever. Not only will innovation make industry more competitive, but valuable intellectual properties may help secure financing from cautious lenders. Government may try to promote this with stronger incentives for inventors. The Obama administration has promised in research, and new tax credits for R&D. Perhaps stronger IP protections would encourage innovation too, but these would have an impact long after the recession is over.

On the other hand, governments may regulate in ways that focus directly on individuals, rather than industries. Telecommunications companies have been bracing themselves for regulation by now President-elect Obama. This would stop service providers from shaping certain kinds of Internet traffic, particularly music and movie downloads. The new administration also promises to to all parts of the country by restructuring its funds and incentives. This may set the tone for broadband service around the world.

With diseases such as AIDS reaching a crisis-level in many regions of the world, we may see regulation that patent holders to license cheap versions of their life-saving drugs. Another solution may involve limiting IP protection, making it easier for other producers to make generic versions of patented drugs that they can sell for less than the patent holder. Would this involve adding more caveats to current IP regulation, or actually reducing regulation in terms of time and scope? Whichever approach it is, it could theoretically be justified in a new era of social activism in the marketplace. (Deregulating IP in the era of new regulation seems less odd if you recall the DMCA being passed at the height of deregulation. Perhaps IP is unique, and thus destined to ignore larger trends.)

Predicting how IP regulation will evolve depends on a lot of factors. It depends on whether the current IP system has failed consumers or creators, industries or individuals, or all of the above. It depends on whether the coming economic shift is a return to pragmatism, or a new era of social activism. And it depends on whether this is indeed a turning point for the economy, or merely a speed bump that will soon be behind us.

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