The NAFTA renegotiation meant that many of my co-workers were working day and night on the copyright-related details in the new USMCA proposals. Copyright has always been a sticking place in Canada – US trade relations, as our copyright law generally recognizes copyright in more works than the US does, and the US strongly pushed for Canada to align our IP policies with theirs. While other issues I was asked to research came to me weeks ahead of when they needed to be delivered, USMCA-related issues were often last-minute requests to search government memorandums for mentions of various copyright issues. This frenetic pace of work was driven by the tense USMCA negotiations that were driven by very tight deadlines, requiring very quick turnover on research briefings.

The ongoing review of the Copyright Act was a more stable and ongoing file which was driven by the discussions at the two parliamentary committees tasked with reviewing the Act: and . Policy analysts at Heritage regularly attend the meetings of both committees to hear what stakeholder groups have to say to the committee and how the politicians on the committee respond to these submissions. This fall, a wide group of organizations and individuals appeared to voice their concerns for copyright reform, including , who asked for termination rights for music licences. These discussions are crucial for analysts at Heritage to get a sense of what issues need to be researched.

A key function of the Creative Marketplace team is to give the Heritage Minister a clear and objective picture of the arts industry in Canada, and the other issues raised by stakeholders and concerned citizens. This can be very difficult because data on the arts industry often comes from advocacy groups who are biased towards their own interests. As a result, the testimony on copyright reform at these committees is often contradictory, with groups representing creators presenting data that sometimes directly contradicts the data of groups representing publishers and consumers. My job at Heritage was often to search for neutral data on issues and present it in a brief that would give law and policy makers a clear and neutral vision of the stakeholder landscape.

I also had the opportunity to sit in on meetings with various teams within the Heritage Department. I had the opportunity to present research work I was undertaking to large groups of 20 – 30 people, sometimes civil servants from other departments whose research overlapped with ours. This helped add to the dynamic experience of working in government, analysts gave me feedback and advice on other areas to research, helping to develop the quality of my work and greatly propel my understanding of how policy research works.

While my experience was exciting and dynamic, the relocation expense involved in moving to Ottawa gave me some hesitance. I had to find a place to live near my work while holding onto my home in Toronto, and it meant time apart from my family. That being said, anyone interested in intellectual property law should gain exposure to how the Federal government develops IP policy and a placement in Ottawa is a perfect way to get a foot into the door of government. Having completed my placement I feel that I have cemented a number of key relationships with people who I am sure will be colleagues to me for the rest of my career. The benefits from an IP Intensive placement in Ottawa greatly outweigh the costs of relocation, and I would recommend it to any student interested in IP law.

Written by Roger Angus.  Roger is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

The post IP Intensive: Arts, Crafts, Copyright & Trade - A Semester at Canadian Heritage appeared first on IPOsgoode.

I. Preparing Canada for 5G Coverage

5G data coverage, which is the next generation of wireless data services, promises to make it possible for cities to become , as buildings, utilities, and people will be able to constantly share data. This connectivity can make cities more efficient by allowing businesses and government to mine this data, discover inefficiencies and redundancies, and correct them. Canada promises to be a major part of this initiative, with Google’s intention to build a , which will feature a fully interconnected neighbourhood.

The jurisdictions that can achieve 5G coverage will have a competitive edge in attracting new technologies and business opportunities that can take advantage of this new interconnectivity. , the CTO of Telus, noted that Canada needs a fully allocated 5G spectrum to take advantage of these opportunities. Mr. Gideon lamented that the Canadian Radio-television and Telecommunications Commission (CRTC) has not yet fully auctioned the 3.5 – 4GHz spectrum, where 5G will be broadcasted, and this puts Canada at risk of falling behind other jurisdictions. Not only have Western counties like the US, UK, EU and New Zealand allocated or planned out this spectrum, but so have Saudi Arabia, India, China, Japan and South Korea have as well. In his keynote, Mr. Gideon called on the Federal Government to create a clear strategy and timeline on how the 5G spectrum will be allocated and when; only once this is done can businesses seize on the new opportunities that 5G offers.

II. Big Data Firms – The Home Invaders

, EVP of , a major US business-to-business telecom service in the Internet of things (“IoT”) space, spoke of the need for telecoms to partner with large technology companies like Apple and Amazon so that Internet service providers are not left behind by the coming technology changes.

As major technology firms develop new IoT applications, like Amazon with Alexa and Google with Home, these companies are creating new interactions inside their customers’ homes, which are new opportunities to connect with their customers and build goodwill. Since these IoT devices rely on Internet connections to work, telecoms are a crucial part of this experience. However, Amazon and Google will reap the rewards of positive customer interactions and when they don’t work, the telecoms are blamed.

This leads to a situation where technology firms will benefit from the goodwill and telecoms will continue to be viewed as a necessary evil to facilitate online-based services. Telecoms suffer from as no customer loyalty is developed when IoT devices work, but when the devices don’t work the telecoms take the blame. One solution is for telecoms to partner with these firms, allowing them to piggyback off the brand building they are engaged in. If Rogers can offer a “Rogers + Google” service, there is more likely to be a positive customer association with the Rogers brand every time Google Home helps a consumer. This strategy is increasing with Fido packaging a with their phone plans and a in 2014.

III. Privacy and the Digital Footprint

While Mr. Weening’s presentation opened up many interesting possibilities for the future of telecom service, as a law student I couldn’t help but be concerned by the . The panel on privacy and information security focused on the implications for these new services and the need to evolve consumers’ digital footprint beyond a mere email and password combination.

, a Senior Fellow at Ryerson University’s Ted Rogers Leadership Centre and the former Privacy Commissioner of Ontario, noted that over the past two years, the percentage of consumer concerned about the privacy of their information has . Ms. Cavoukian pointed out that is more important and profitable for telecoms to build trust with their customers regarding the integrity and privacy of their personal information than to collect as much data as possible. She noted that when customers are informed that their data is private and only used for a specific purpose, they are more likely to consent to future requests for uses of their data in different ways.

Other panelists noted that since Canada adopted the Internet earlier than most countries, its and out of touch with the internet. Jurisdictions that were slower to adopt the Internet, like the EU, have observed the effects the Internet has on society and have had an easier time legislating accordingly.

A related panel, “Cultivating an Innovation Economy” discussed how telecoms need to help facilitate a revolution in digital identity. One of the biggest cybersecurity problems is that people protect their valuable data with an easily hacked email and password combination. However, smartphones are complex computers capable of acting as a digital fingerprint for online services. Telecoms that can create a secure digital identity for their customers could have a strong competitive edge as privacy and information security becomes a greater concern for consumers.

IV. Minister Bains on Connecting the Arctic and Rural Canada

The 2018 Canadian Telecom Summit ended with a keynote speech from the Honourable , Minister of , the department in charge of the Telecommunications Act.

Minister Bains spoke of the government’s partnership with Bell to bring , connecting Inuit communities to the rest of Canada. The construction of over 15 cell towers across the Northwest Territories and Nunavut could also help stimulate commercial investment in Canada’s North beyond the traditional natural resource extraction industries.

Minister Bains also introduced the new , where the government is planning to extend data coverage to many remote rural communities in Canada that currently have no data coverage. This initiative will also provide up to 50,000 low income families with a personal computer and access to a low-cost public internet plan for $10 per month. The goal of this initiative is to help alleviate isolation and poverty in rural communities by connecting them with urban Canada and creating new opportunities in their community.

V. Conclusion

This year’s Canadian Telecom Summit showed that the commercial opportunities created by telecommunication continue to broaden and that Canada is far from a global leader in this area. At the same time, there is a clear sense that the current government wants to make Canada’s technology economy more competitive and ensure that issues of privacy and accessibility are addressed. There is great promise in the commercial opportunities in this space, but measures like a clear spectrum allocation strategy and more competition in the telecom space is needed to spur more growth in this area.

The post Highlights from Canadian Telecom Summit 2018 appeared first on IPOsgoode.

The first panelist to speak, Professor of the University of Calgary, laid the groundwork for why online defamation is an area of law that needs an overhaul. First, she noted that Facebook alone receives over 2 million defamation-related complaints per week, almost all of them requesting only a removal of the content. This means we are dealing with a high volume of low cost cases and this does not reflect traditional courtroom lawsuits that are generally centered on financial damages and thus can be worth the litigation cost. Second, the question of jurisdiction remains unclear, as defamatory statements made online do not easily fall into a single jurisdiction when the interaction is online and crosses provincial or national borders. Third, claimants do not have simple options to resolve their claims. Currently, claimants can complain to the service provider (if the defamatory statement was made on a social media service) or sue in court. Professor Laidlaw pointed out the shortcomings of both options and why there needs to be a new alternative.

The first option places control of the dispute in the hands of private companies like Facebook and Twitter who have their own terms and conditions that define the rights of the parties. This lacks the legitimacy, due process, and standardization that a dispute resolution framework needs to be effectively operate. The second option means expensive litigation over jurisdiction to bring the action and then to obtain an injunction. Furthermore, Prof. Laidlaw pointed out that most claimants just want a comment deleted from the internet, not damages, and the cost of bringing the claim in court is disproportionately large.

The second panelist, Professor , Director of the US National Center for Technology and Dispute Resolution, spoke of measures that some large companies have employed to resolve high volumes of small online defamation claims. For example, companies like Alibaba and eBay have implemented ODR technology that resolves 80-90% of complaints between buyers and sellers through automated processes. This leads to enormous savings of time and cost, as Alibaba and eBay alone receive 100 million and 80 million such claims, respectively, each year.

Since online defamation disputes can be resolved through automated online processes, Professor Katsh’s discussion focused on how these disputes can be prevented through ODR technology. He pointed out that online defamation is not the only area that ODR can be effective, and that the legal world should be more focused on implementing ODR in disputes that do not require substantive legal analysis and judgement.

For example, Prof. Katsh pointed out that mediation is about controlling the interaction between two parties without imposing a final decision, a process perfectly suited to computers through automated messaging applications. Another area is when online platforms do not verify the accuracy of users’ identities, which can lead to defamation claims based on comments that were made by an avatar, a robot, or people misrepresenting themselves. Computer programs can verify the accuracy of records, which filters out claims against bots and other non-human online interactions.

Finally , a lawyer for the BC Government and adjunct professor at Osgoode and UVic, spoke about the newly launched (“CRT”) in BC: an online tribunal that resolves small claims and condominium disputes through an automated mediation process. While the CRT is not available for online defamation disputes, it is a model for future ODR technologies in other areas of the law. The CRT seeks to achieve the same efficiencies that private companies like Alibaba and eBay have achieved by resolving most disputes without any human interaction. The CRT features a diagnosis and self-help portal that helps claimants categorize the type of claim they wish to make and what their options are, followed by an online monitored chat where parties can exchange communication and attempt to reach a settlement. If a settlement cannot be reached, lawyers for the BC Ministry will intervene and adjudicate the matter.

The panel discussion shows there are ODR regimes in place that are effectively reducing the stress on the justice system in areas where the nature of the dispute does not involve significant financial or criminal risk. Online defamation claims fit the ODR model well because they tend to be equitable claims for a deletion of a defamatory comment, not a claim for damages.

At the same time, there are unresolved questions: Would ODR be mandatory or optional? What if there are many claimants launching a class action against a single individual? What if the system crashes? Even if the defamatory comment is taken down, what if it has already been copied and re-posted? Notwithstanding these concerns, online defamation consists of a staggering multitude of small claims. Imposing a simple automated solution to resolving these disputes would be a cost-effective way to reduce some stress on the justice system and make the internet a more civil place.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Resolving Online Defamation in the Internet Age appeared first on IPOsgoode.

Although the US Federal Court, where was litigated, awarded copyright to Mr. Slater in 2015, the two parties nevertheless agreed that he would donate 25% of future profits from the photograph to causes supporting the conservation and protection of Indonesian Crested Macaques, the breed of the monkey that took the photo. The litigation has served as a test-case in the question of whether non-humans can be the owners of copyright and whether this could be used as a vehicle for increasing animals’ legal rights.

The case turned on whether the Naruto had sufficient standing under US federal legislation to bring a claim of copyright ownership in a US court. PETA argued that the definition of “persons” has intentionally been left undefined in Title 17 of the United States Code and the Copyright Act of 1976, which governs US copyright law. As a result, they argued that the intention of US lawmakers was to allow a flexible definition of personhood for the purposes of copyright and that this empowers the court to interpret “person” to include animals.

Mr. Slater contended that his work in setting up the equipment for the monkeys means that they he effectively created the photographs and therefore is entitled to their copyright. He was also able to rely on previous US case law concerning animal rights, specifically , wherein the court stated that if animals are to be granted standing to sue, legislators must clearly state this in the relevant legislation. The court also pointed to (“the Compendium”), published by the US Government, which courts are obliged to follow when interpreting copyright law. It is stated at several points in the Compendium that copyright ownership is limited to human beings.

Based on the above factors, the US court sided with Mr. Slater, stating that copyright ownership for animals is a legislative decision and that Congress must amend copyright legislation and clearly state this for it to be effective. This means any changes to animal rights with respect to copyright issues are policy questions that the legislative and executive branches must address.

Although the District Court ruled that animals lack standing under copyright legislation, the decision was inconclusive on the novel issue of whether animals can be subject to copyright ownership. Therefore, PETA appealed the ruling. The appeal was heard in July 2017, with a decision forthcoming. However, a of the appeal proceedings shows the judges questioning PETA on several points, including whether PETA has a sufficient connection to the monkey to represent her (the monkey was previously represented by a primatologist at the District level). Slater’s counsel also noted that there were questions of whether the identity of monkey that took the photograph had been sufficiently ascertained, with Slater alleging that a different monkey altogether had taken the photo. The parties went on to argue over other novel copyright-related questions, such as whether the monkey’s offspring would inherit the copyright (two informative articles on the appeal and more bizarre details on the case can be found from the Hollywood Reporter, and ).

Mr. Slater has that legal fees from this case have bankrupted him and he notes that he would have been prepared to make such an offer to settle, but PETA initiated the litigation without first contacting him. Had the two parties attempted to negotiate an agreement, this issue could potentially have been settled years ago and more money would have been donated to conservation efforts.

Whether PETA continues to pursue this case further remains to be seen, but as we discover more about the intellectual capabilities of non-humans, the question of whether a non-human can own intellectual property will likely persist. The decision by the US courts suggests that any extensions of intellectual property rights to animals will be done through lobbying at a political level to the legislature and not through legal arguments to the judiciary.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Legal Battle Over Monkey’s Selfie Leads to Settlement appeared first on IPOsgoode.

The issue in Douez was over which court had jurisdiction to hear a case about the unauthorized use of the plaintiff’s likeness by Facebook under (the Act). This section creates a statutory tort for the unauthorized use of one’s name or portrait. The plaintiff claimed that BC was the appropriate forum to try the case, as states that all actions under the statute must be brought before the BC Supreme Court. Facebook claimed that the forum selection clause in section 15 of its (ToS) agreement overrides the Act; the ToS state that all legal action against the company must be brought in California.

The decision is important because it examines forum selection clauses in relation to contracts of adhesion where one party completely controls the formation of the terms and the other party has no ability to negotiate. As more people do business online through these types of ToS agreements, which they have no ability to negotiate and often , the ruling in Douez can prevent foreign companies from relying on such forum selection clauses to circumvent local courts.

The SCC relied on the closest precedent in this area, , which addressed when courts will enforce forum selection clauses in contracts between parties with relatively equal negotiating power and sophistication. In this decision, the Court articulated the “strong cause” test which forms the standard for assessing the enforceability of these clauses. Under this test, the party who created the forum selection clause must show that the clause is “valid, clear and enforceable” in its application. The onus then shifts to the party opposing the clause to show a “strong cause” as to why the court should not enforce it. Here, a “strong cause” is a sufficiently imperative reason that it would be unreasonable or unjust to enforce the otherwise valid clause.

In Douez, the Court confirmed that this standard applies to contracts of adhesion and that individual privacy interests under the Act are a sufficiently “strong cause” to override forum selection clauses. In her majority , Justice Karakatsanis noted that BC was better situated to assess the legislative intent and public policy reasons behind the Privacy Act and the economic inequality between the two parties, noting the difficulty that the plaintiffs would face in traveling to California for the duration of the lawsuit. In concurring , Justice Abella raised the issue of unconscionability given the “grossly uneven bargaining power” between Facebook and private citizens as well as the unfair advantage arising from forcing claimants to enter into them in order to use services. In her , Chief Justice McLachlin gave a stricter interpretation of the “strong cause” test as being “essential for upholding certainty, order and predictability in private international law”.

However, an ongoing problem with forum selection cases is that the strong cause test does not address whether a court in the jurisdiction set out by the clause would even hear the case. The , as interveners, proposed in their that the Court adopt a new branch of the “strong cause” test where the onus is on the party that crafted the clause to show that the other party’s legal interests will be protected in the stated jurisdiction. The Court neglected to address this issue in the decision, so the two-step strong cause test, remains unchanged.

Intervenors for the plaintiff also raised the concern that online contracts of adhesion are often unconscionable due to the unequal bargaining power between parties, an issue that Justice Abella raised in 2 as an additional reason for her decision. The (IABC) suggested in their factum reforming the test with an initial step that asks, in the case of online consumer contracts of adhesion, if the terms are unconscionable, and only then proceeding to the strong cause analysis.

Another intervenor, the (ITAC), suggested that the strong cause analysis only apply if the claimant can prove (1) unconscionable terms or (2) overriding public policy considerations. In an article for , Osgoode Hall student Kiran Mahal suggested that concerns over whether online agreements are unconscionable can be addressed in the existing first step of the strong cause test – whether the terms of the agreement are valid, clear and enforceable.

The outcome of Douez affirms an interpretation that online service agreements fall under the jurisdiction they are agreed to in. It also means that Canadians can rely on privacy legislation to protect their identities online, and will be able to try actions under these laws before a court with a nuanced understanding of Canadian privacy law. With the proliferation of online services and the suggestion by Justice Abella and several intervenors that online service agreements are prone to being unconscionable, online service providers need to be aware of the stricter interpretation of Canadian privacy laws before taking action that may be legal in the United States or elsewhere.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post SCC Rules in Favour of Plaintiffs in Class Action Against Facebook appeared first on IPOsgoode.

A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the domestic market” to “capturing a greater share of global markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post As Netflix Goes Global, CanCon Must Broaden Its Appeal appeared first on IPOsgoode.