VentureLAB is a participant of the (“ONE Network”), which consists of a significant number of non-for-profit organizations, that aims to build an ecosystem where entrepreneurs can obtain the mentorship, funding, and connections that will help them build successful, innovative businesses. The focus of the ONE Network is co-operation, not competition. Through my internship, I had the pleasure of assisting ventureLAB’s partner organizations, such as the�� (“MaRS”) and the .

I wanted to be placed at ventureLAB because I had three expectations, which were all met through my internship. First, I believed that a placement at ventureLAB would provide me with a lot of responsibilities. This turned out to be true as I had the privilege of drafting five complicated contracts under the mentorship of , a partner at Bereksin & Parr LLP. Not only did Mr. Randhawa informed me of the academic, nuts and bolts of contract drafting, he also taught me how to incorporate practical considerations into those agreements.

Second, I expected to have face-to-face interactions with clients and offer them tailored legal information. This expectation was fulfilled as I attended the monthly, one-on-one legal clinic led by , an associate of Ricketts Harris LLP. In addition, I provided legal assistance to many clients who were referred to me by ventureLAB’s business advisors. I learned important, practical lessons from those experiences. Many clients do not realize the legal risks that exist in their technology and do not know what types of legal protections are relevant to their business. Therefore, taking a leaf out of Mr. Sacha’s practice, I learned to always ask the clients to describe their business and technology before answering their legal questions so that I can point out legal problems that the clients did not know existed or explain how their legal concerns do not apply to their business. Those client interactions also taught me to consider the economic feasibilities of different legal options, as many start-ups have limited capital. Due to the diversity of the clients’ businesses, I had the pleasure of exploring many aspects of intellectual property and business law, including patents, trademarks, copyright, confidential information, defamation, corporate structuring, employment structuring that can best protect IP, and elements of different types of agreements.

Third, I anticipated to be in an environment where I can routinely learn about new and innovative ideas regarding technology. This hope came true as I was invited to the Review Panel that took place on a weekly or biweekly basis. During the Panel, entrepreneurs provide a succinct presentation of their technology and business in front of a group of experienced business advisors and client services staff. The entrepreneurs’ creativity and commitment left me in awe, and I was even more impressed at the free resources out there to support them.�� I was very proud to have been part of the resources available to the entrepreneurs.�� In addition, I was invited to tour incubators and accelerators, including ventureLAB’s newly renovated PulseHUB, a resource hub that provides free office space to start-ups with a health and wellness focus.

My internship had elements that exceeded my expectations. The staff at ventureLAB and my placement supervisors, Mr. Paul Rivett and Mr. Jeremy Laurin,�� invited me to all the partner and staff meetings, and other events including the annual ONE Conference, Commercializing Your Medical Device, and several business development workshops led by MaRS.�� The ventureLAB staff also indulged my interests beyond law - an engaging lunch conversation regarding my love for cosplay resulted in me participating in ventureLAB’s cosplay photo booth at the TAVES electronic consumer show.

My experience at ventureLAB is definitely the highlight of my law school experience. There, I gained practical experience in intellectual property and business law, formed connections with innovative and passionate entrepreneurs, and became inspired by many professionals who volunteer their time to help start-up companies and the regional economy as a whole. If you are interested in innovation and entrepreneurship, then I strongly recommend choosing ventureLAB as your placement organization.

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

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The Retaliation of Gaming Companies��

Legislation in��Canada and the U.S. does not spell good news for UGC creators. Canada’s����addresses UGC specifically, stating that the UGC creators escape infringement only when their work: (1) is based on��existing material that itself does not infringe copyright, (2) is used for non-commercial purposes, ��(3) gives credit to existing work, and (4) does not have a substantial adverse effect on existing work.��The “substantial adverse effect” clause can be used to support two main arguments made by gaming companies against UGC creators. ,��companies can argue that UGC such as walkthroughs and guides deprive them of the profit they would have earned by selling their own versions��[2]. ,��video game creators may state that UGC misrepresents a game in such a way that the companies' reputation is affected; this situation could infringe the companies' morality rights��[3].��American Copyright Law is arguably more lenient, as it does not address UGC. This omission means that legal battles over contentious works primarily involve discerning whether the UGC constitutes an unauthorized "derivative work" based on a video game company's protectable expression.��Under��,��UGC does not infringe copyright if the preexisting material was used with permission. As well, UGC��creators can obtain copyright for parts of the work that��do not contain video game companies' preexisting content.

Gaming companies often side-step doctrines that protect players who might create UGC, such as fair use or fair dealing, by turning consumers into licensees through standardized end user licensing agreements. The terms in those contracts are usually dictated by one side, and players are asked to “take it or leave it”: either adhere to the agreement's terms, or do not engage with the gaming content at all.��[4] Most contracts are similar to the one in , where the terms enable gaming companies to use any UGC made by players, but keeps the players in legal uncertainty when they use copyrighted content from games to create UGC.

Some Case Law Guidance

Of course, the central purpose of protecting gaming companies’ economic and morality rights against unauthorized UGC should be upheld. However, I do not recommend adopting an “all UGC is evil” mentality when analyzing such disputes. Fortunately, the U.S. Courts have recognized this, offering some guidance as to how to separate more innocent UGC from ones that are truly harmful.

In , a game developer wanted to encourage user creativity in his game, FormGen, creating a “Build Editor” in his game that allowed players to build their own levels by using the tools provided. Players were very enthusiastic, and many participated and posted their creations online. Micro Star, the defendant, downloaded 300 levels created by users, burned them on a CD, and sold them commercially. The Court ruled against Micro Star, stating that it created a derivative work without authorization.��The CD made by Micro Star fulfilled the elements required of a derivative work: it existed in a concrete and permanent form and contained substantial amount of copyrighted material. Further, the defendant’s use did not fall under “fair dealing”, because it was used commercially and had an adverse effect on the original work, as FormGen retained exclusive right to perform sequels (Micro Star’s work was considered to be a sequel).

In contrast, in , the Court ruled in favor of UGC creators. Bleem created a software emulator that allowed users to play Sony’s console games on PC computers. In advertising its products, Bleem used copyrighted screen shots from Sony Console games in order to show the difference between those games played on console and those games played on computers. The Court ruled that Bleem's use fell under the fair dealing doctrine because it provided comparative advertising that ultimately benefitted consumers through the provision of important purchasing information and encouraged competition and innovation in the market. Moreover, the Court ruled that Bleem did not use any copyrighted materials in its work, but rather only in its advertising;��thus, the UGC��was considered fair dealing. The Court also stressed that in order to rule against derivative work in a fair dealing case, the adverse effect the UGC causes to the preexisting work must be substantial. In this case, it was permissible for Sony to suffer some financial loss as a result of comparative marketing.

Trying to Find Middle Ground: Limited Licenses?

While much existing UGC would not fall under fair dealing exceptions, the reality is that��giving players more control and recognition over their UGC fosters creativity and often leads to enhanced gaming experiences. Consequently, gaming companies' attempts at stricter control��have usually been met with serious player backlash, leading some developers��to realize that it might be better to work with, rather than against, players. In response, video game creators��such as����(maker of Xbox games)��and����have started offering��limited licenses that grant players some protection over their UGC and��the ability��in certain cases for players to infringe copyrighted materials when making UGC.��However, these licenses are still somewhat problematic. Firstly, each company offers players a specific set of rights that are often incompatible with those offered by other companies; this makes it difficult for players to use multiple games to create UGC. Secondly, the licenses often contain undecipherable��legal jargon��and leave a lot of room for interpretation, meaning UGC creators must stew in legal uncertainty. Frustratingly, the licenses can also be revoked at any time.��Lastly, players still have no say over the licenses’ terms.

Conclusion

It seems unlikely that legislation or case law will give UGC creators more rights in the near future. However, out of fear of backlash, gaming companies often choose not to sue players who infringe copyright in their UGC. Microsoft even allowed Rooster Teeth Productions to continue producing Red vs. Blue without paying royalty fees to them.��Thus, the smart thing for players to do may be to vote with their wallets and voice, and not support companies that do not accommodate UGC.

Sabrina Ding is an IPilogue Editor and a J.D. candidate at Osgoode Hall Law School.��

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The Issue

The dispute in this case is not the somatic cloning process, which involves implanting the nucleus of a somatic cell into an enucleated oocyte. This process��has been��successfully patented () in the past. The issue is with the����("233 application"), which involves the products of the cloning method, which include sheep, cattle, pigs, and goats.

Under , a patent can be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” However, there are –a patent cannot be obtained for abstract ideas, laws of nature, and natural phenomena. The court ruled that the 233 application falls under this last exception.

Concerns for Novelty – Creation or Discovery?

In this case, Dolly possesses identical genetic information as the sheep from which the somatic cell is taken. Since that sheep is a natural animal, then Dolly is a naturally occurring organism that cannot be patented.

There are two main��arguments for upholding the natural phenomena exception. First, an����[1].��.

I think this statement implies that this type of “discovery” involves less creative effort and skills than the creation of other types of innovations. However, as stated by Mr.����(patent attorney and founder of IPWatchdog, Inc.), it is significantly more difficult to create a perfect product resembling nature than an imperfect product which does not resemble nature.

Denying Patents to Support Innovation – Securing Basic Research Tools

The second justification is that����(e.g. proton accelerators, compound microscopes)��[2] must be kept in the public domain so that inventors can draw upon them in creating innovations. In��, the Court stated that the patent system should not result in a “monopoly of knowledge” over tools that may “block off whole areas of scientific development”. More recently, in��.,��the Court denied patent application of a set of bacteria strains because they are “manifestations of laws of nature, free to all men and reserved exclusively to none”.

Although it is true that any patent would deprive the public of potential research tools, the distinction that the Courts drew between successful patents and natural phenomena is one of scope.����[3].

Also, it is irrelevant whether the research tool involved in the patent application is known at the time of application. In��, the Court denied patent protection��to an algorithm, and stated that even if the algorithm��was unknown at the time (thus making it novel?), it will be treated as an existing prior art because it is fundamental for future research.

��

One Exception Fits All?

I agree that there are merits to the natural phenomena exception, but I disagree that it should be applied to every field of invention, especially cloning and personal medicine. In this case, since the process of cloning Dolly is already patented, it is doubtful that valuable research tools can be derived from the products of somatic cloning.

More significantly, the purpose of cloning��is��to create organs, genes, organisms, and other products that are identical to nature so they can be used for organ transplantation, research, and other important medical purposes. Blocking patent protection for those products will turn investors away from biotechnology and consequently discourage innovations in this crucial field.

Conclusion

The U.S. Court of Appeals��appears to have��applied the natural phenomena exception to patent applications consistently and absolutely. To some it may seem counter-intuitive that an invention perfectly replicating nature may not be patentable, when an imperfect invention different than nature might be, especially when there is a significant degree of creativity and effort in replicating nature exactly.��While there are good reasons for the natural phenomena exception,��it might be time to reconsider it where the benefits can be argued to outweigh the costs.

Sabrina Ding is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[1] Peter Lee, "Inverting the Logic of Scientific Discovery: Applying Common Law Patentable Subject Matter Doctrine to Constrain Patents on Biotechnology Research Tools" (2005) 19 Harv JL & Tech 101.

[2] Supra note 1 at 81.

[3] Supra note 1 at 105.

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To Err is Human

Dr. Cafazzo stressed that the��inaccurate use of medical innovations is a widespread and serious problem. The traditional approach is to blame the patients for this problem, as they the ones who make usage errors. [1]

I have to pay how much for my own health data?��

Traditional medical innovations fail to provide the patients with easy access to their own health data.��Under the����[3],��health information custodians (including physicians) have exclusive control of the patients’ medical records. Although the custodians are obliged to provide the patients with their own data, they may charge a fee to “reasonably recover” the cost spent in preparing this information. However, in practice, the , as in the case of��a����who, reportedly, was asked to pay $600 to access her own data.

Proposed Solution: Self-Management Internet Platforms and Mobile Apps ��

To correct these flaws, most health innovations introduced at MedEdge focuses on being simple and user-friendly, and on giving the users fast and efficient access to their health information.

Dr. Cafazzo’s developed , an innovation that encourages asthma patients to understand and self-regulate their health. This mobile application allows the users to access their health information at any place and time. Breathe employs easy-to-read, attractive graphics to display daily and weekly health assessments to users. It encourages the users to take an active role by developing action plans and by competing with other patients to see who best regulates their health.��Similar self-management tools introduced at MedEdge includes .

Privacy Dangers

Although these new innovations do fix many problems��associated with��old medical products, they also bring a set of privacy dangers with them. Whereas traditional medical processes like paper files guard patients’ medical records strictly, some new innovations may be more easily hacked and abused.

My concern for privacy issues particularly in mobile health apps and internet platforms comes from two sources. First, the current state of security features in electronic devices is not sufficiently sophisticated. ��In a recent study conducted by the��, it was found that 86% of mobile apps do not have basic security defenses. Last year, the��, a mobile device manufacturer, for its lack of security features in applications on smartphones and tablets.��These security vulnerabilities enabled malware to be installed without users’ knowledge or consent, allowing hackers to gain access to all of a user's information. HTC settled the case and delivered security patches.����

Nevertheless, I do acknowledge that significant global efforts have been made towards better privacy protections.����In 2013, the ��[4] that requires its member states to assess and manage privacy risks in the information systems under their control. In the same year, the U.S. passed the , which facilitates the sharing of cyber threat intelligence in order to increase cyber security.��In 2012, [5], which seeks to promote cyber-security and co-operation. The problem is that despite these efforts, ��[6].��Therefore, while better cyber security and privacy features are possible,��they have not yet��been achieved.

Additionally, the information involved in health mobile apps is extremely sensitive. For instance, gives users (i.e. anyone who has log in information or has deployed malware to gain access) information about the patient's symptoms, the triggers that cause those symptoms, the patient's past and current medications, and the locations that the patient has been to every time they do a self assessment.��The consequences of leaked health information can be severe. Some medical conditions, such as ��[7]. Also, unauthorized access to this information will likely ��[8].

Conclusion

It is true that many traditional medical products are problematic as they��can be��complicated to use and do not provide users with easy access to their own health data. However, I remain unconvinced that health mobile apps and internet platforms are the best replacements for these products, at least for now.��We still remain in an era where cyber security is fragile and medical information is extremely sensitive.

Sabrina Ding is an IPilogue Editor and a J.D. Candidate at Osgoode Hall Law School.��

[1]�� Dr. Joe Cafazzo, "Finding Empathy: Navigating Past The Dark Side Of Health Technology Design" (Health Innovation Design Lecture delivered at the Richmond Hill Centre for Performing Arts, 19 June 2014), [unpublished].

[2]��US, Food and Drug Administration, Draft Guidance for Industry and Food and Drug Administration Staff - Applying Human Factors and Usability Engineering to Optimize Medical Device Design,��(2011) at ss. 1, 11.

[3]��Personal Health Information Protection Act, SO 2004, c 11, s.54(1).

[4]�� Katherine Ritchey et al, "Global Privacy and Data Security Developments" (2013) 69 Business Lawyer

[5]�� Supra note 3.

[6]�� Supra note 3.

[7]�� Gregory Herek, "AIDS and Stigma" (1999) 42 American Behavioral Scientist

[8]�� Khaled et al, "Evaluating Common De-Identification Heuristics for Personal Health Information" (2006) 8 Journal of Medical Internet Research

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Appropriation of Name or Likeness

The couple argued that the defendants' use of their engagement photo constituted the tort of appropriation of name or likeness. To in such a claim, the plaintiffs must demonstrate that the defendants used the plaintiffs' names or likenesses, the use was for the defendant's own purposes or benefit, commercially or otherwise, and the plaintiffs suffered damages due to the defendant's actions. However, a claim of appropriation of name or likeness cannot succeed if the use in question is protected under the which states that "Congress shall make no law...abridging the freedom of speech." In , the Supreme Court of the United States held that the Free Speech Clause can be used as a defence in state tort claims.

Invoking the First Amendment: Noncommercial Purpose

A for invoking the First Amendment defence is that the message must have a noncommercial purpose. As the purpose of the First Amendment is disseminating information regarding matters of public concern, scholars argue that commercial messages should be given the least protection as they offer the lowest amount of information, in contrast to political, informational, and entertainment works [1].

Judge Daniel ruled that the defendants met this requirement as the purpose of their messages was to express disapproval of political candidates who support homosexual marriage. The Court disagreed with the plaintiffs' argument that messages which solicit donations (as in this case) are automatically commercial. In , the Court held that a political message may be noncommercial even if it has "commercial undertones". What is necessary is that the donations are not a prerequisite for viewing the message. As these criteria are satisfied, the defendants are eligible for protection under the First Amendment.

In my opinion, the emphasis on the commercial or noncommercial nature of the message when invoking a defence under the First Amendment shows how little the plaintiff's personal losses factor into the equation. Although the definition for the tort of appropriation of likeness states that the benefit derived by the defendants can be commercial or otherwise, it seems that the focus is largely on commercial gain. The damages suffered by the plaintiffs are more easily proven if they experienced economic loss (compared to emotional harm) and a defence under the First Amendment would not be available to the defendants.

Invoking the First Amendment: Newsworthy or Legitimate Public Concern

A����when arguing a First Amendment defence is that the use must reasonably relate to a publication concerning a matter that is newsworthy or of legitimate public concern. The defendants' argument was successful as their use of the photos was to address a legitimate public concern. Judge Daniel citing , stated that the issue of same-sex marriage is a legitimate public concern and is widely discussed in the media.

The First Amendment gives the greatest protection to newsworthy content because it promotes a "free marketplace of ideas", which is necessary for public debate, clarity of thought and informed decision making [2]. The public should have access to all relevant information, not just the selective content offered by the government.

Fair Use Argument

Although the plaintiffs lost their case, they did succeed in proving that the defendant's use of the photo was not protected under the fair use exception. In fact, the Court found that the defendant failed to meet many of the criteria required for establishing fair use as listed in (Limitations on exclusive rights: fair use). Most interestingly, the Court ruled against the defendant's argument that by using only 20% of the original photo, they had not taken a substantial portion of the content from the original work. The Court stated that "the quantity of a taking does not necessarily determine the quality of the taking". Since the portion that was taken was the focus of the photo and contains significant creative content from the photographer, the taking was still substantial.

The defendant's success in this case, despite the Court ruling against their fair use argument, demonstrates to me the minor role that fair use plays in the conflict between appropriation of name or likeness and freedom of speech.

Conclusion

In my opinion, this case marks a win for the press and anyone who seeks to use private individuals' information to promote a newsworthy message, and a loss for privacy and individual rights. Until the Courts come up with a new precedent, I think users would be wise to refrain from putting anything in the public domain they do not want to see featured in the next political ad campaign.

[1] Roberta Rosenthal Kwall, "Right of Publicity vs the First Amendment: A Property and Liability Rule Analysis" (1995) 70 Ind LJ 52 at 63.

[2] Supra, note 2 at 63.

Sabrina Ding is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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