The post IP Osgoode Speaker Series: Douglas Pepper Video appeared first on IPOsgoode.

IP Osgoode is proud to present our winter speaker series. In the last five years book publishing has probably gone through more change and upheaval than the previous twenty years combined. Douglas Pepper, a veteran of the publishing industry, will talk about those changes and the effects they鈥檝e had on all elements of the book world, and perhaps make a few predictions. Although, according to Mr. Pepper, trying to predict anything in the book industry these days, even on a quarterly basis, may be a fool鈥檚 game.

Details:

"Books Are Dead. Long Live Books!" - February 13, 12:30pm-2:00pm, Room 1014, Osgoode Hall Law School, 91亚色, 4700 Keele St, Toronto, Canada. Please RSVP to , Event Code: Pepper, by Tuesday February 12. Lunch will be served. All are welcome. Click for details.

Douglas Pepper: Douglas Pepper has been in the publishing industry for 28 years, first as the first editor at Random House of Canada鈥檚 nascent publishing program, then in New 91亚色 as a Vice President and Senior Editor at Crown, a division of Random House, Inc. He moved back to Canada to become the President and Publisher of McClelland & Stewart in 2004, and most recently is founding publisher of his own non-fiction imprint, Signal/McClelland & Stewart, a division of Random House of Canada. He is a graduate of the University of Toronto and The Radcliffe Publishing Procedures program at Harvard, and grew up in Toronto. The authors he has published include Carol Shields, Jimmy Breslin, Michael Cunningham, Julian Barnes, Peter Carey, Christopher Buckley, Samantha Nutt, Jonathan Ames, Conrad Black, Ann Coulter, Christopher Hitchens, Alain de Botton, Simon Shama, Anne Applebaum, and many others. He lives in Toronto with his wife and two children.

The post IP Osgoode Speaker Series: Douglas Pepper appeared first on IPOsgoode.

鈥淩eflections on the Supreme Court of Canada 2012 Copyright Decisions鈥�

鈥淎dvocacy Skills and IP: Observations from the Bench鈥�

The post IP Osgoode Speaker Series Videos appeared first on IPOsgoode.

Please note: Justice Hughes' lecture was recorded and this article will be updated to provide a link to that recording once it is made available online.

, founder and Director of IP Osgoode provided the introduction.听 She highlighted Justice Hughes' notable influence on intellectual property law and policy both before and after his appointment to the bench.听 To conclude her introduction, Professor D'Agostino read an excerpt from the chapter that Justice Hughes contributed to : 鈥淎sking how litigation begins is rather like asking how persons fall in love.听 The answer is that there are all sorts of ways, good, bad and indifferent鈥�.

On that note, Justice Hughes proceeded to paint a colourful portrait of the process a judge goes through in arriving at a judgment from soup to nuts: everything from organizing a case pre-trial to sitting down in a quiet office to think and finally write the reasons for judgment.

The process begins in pre-trial, months before a case is to be heard.听 At this stage a judge is responsible for organizing the case, identifying and reducing the number of contentious issues, and forging agreements on the facts wherever possible.

The organizational responsibilities of the judge continue with the trial.听 Evidence, exhibits, issues, and witnesses all need organization.听 Especially important is dealing with expert witnesses.听 Justice Hughes听is a pioneer in this area, using a practice that is known as "hot tubbing", which involves sitting opposing experts in the witness box together to encourage them to arrive on agreed opinions.听 The judge must also hear the lawyers' oral arguments and read their associated facta.听 Justice Hughes advised that an effective written submission should be no more than thirty pages.

Once a trial has concluded, the judge's real work begins: reducing the case to reasons for judgment and working to distill those reasons into a written document.听 Essential to this is process is, as Justice Hughes puts it, considering the "ask": the remedies that are being sought by the parties.听 To get to the "ask", one must first try to get all of the facts right by considering the evidence according to the appropriate burden where there is a dispute.听 Most importantly the legal issues in the case must be carefully sorted out, and the applicable law must be clarified.听 Finally, the law is applied and the remedies considered.听 Justice Hughes declared that he prefers creative remedies that do the "least harm鈥� while achieving an appropriate result.

Justice Hughes then led us through a typical case for each of patent, trade-mark, and copyright.听 While going over the most common issues in each type of case, he placed special emphasis on the various legal standard personas that a judge must put himself in the position of to arrive at a conclusion.听 When assessing a patent, the perspective is that of a person "skilled in the art"; for trade-marks, it is the "average consumer somewhat in a hurry"; for copyright, it is the somewhat more nebulous "beholder" of a work.

Having gone through the process of hearing a case, a judge then sits down in a quiet office to think about the case.听 Justice Hughes intimated that a decision is written with the conclusion in mind and intended for several audiences: consumers, the parties, their lawyers, the public, and the appeals courts.

As promised, some tips for both new and experienced advocates were then offered based on Justice Hughes' thirty-seven years of experience as a lawyer and seven years on the bench. At the top of the list was to 鈥渒eep it as simple as possible, but no more simple than possible鈥�. 听Justice Hughes advised that presenting your three best issues while being polite, pleasant, and 鈥渇olksy鈥� rather than mechanical, is more persuasive and likely to convince the judge to grant your "ask". 听He also explained that knowing your case and organizing it logically is essential, as is 鈥渘ot sweating the small stuff鈥�, which allows for an agreement in principle on as much as possible and helps narrow a case to its essential issue. Justice Hughes, tongue-in-cheek yet practical, also reminded us of 听鈥淩ule 13鈥�: "don't piss off the judge".听 Last but not least, he wisely advised us to be truthful to the client and respectful to both the opponent and the judge.

The lecture was followed by a lively question and answer period in which questions ranged from queries about the above-mentioned 鈥渉ot tubbing鈥� of experts to the challenges faced by teachers and students in fine arts programs when it comes to protecting their intellectual property rights. Finally, Justice Hughes offered some advice to law students and recent graduates looking for work in a crowded market: be enthusiastic听to set yourself apart.

Philip Poles is a graduate of Osgoode Hall Law School.

The post IP Osgoode Speaker Series: Justice Roger Hughes - Advocacy Skills and IP: Observations from the Bench appeared first on IPOsgoode.

The IPilogue has covered these 5 cases in depth and our analysis of each can be found .

The lecture began with introductory statements by the Founder and听Director of IP Osgoode, . IP Osgoode's followed with a short outline of Justice Rothstein鈥檚 legal career and past accomplishments. We learned that before becoming a judge, Justice Rothstein spent a number of years in private practice dealing primarily with administrative and transportation law issues.听 He听later became a member of the Canadian Human Rights Tribunal听and held听a host of other offices throughout his career. (More information on Justice Rothstein鈥檚 career can be found .) Upon his appointment to the Federal Court in 1992, Justice Rothstein developed an interest in intellectual property law, writing a number of influential decisions. He was eventually elevated to the Supreme Court of Canada (SCC) in 2006. Professor Vaver made special note that the date of Justice Rothstein鈥檚 official swearing-in ceremony 鈥� April 10^th, 2006 鈥� was auspicious for sharing the anniversary of the commencement of the and potentially meant important things to come for the field of copyright law as a result.

Justice Rothstein, taking to the podium,听made his sizable audience laugh at his forgetfulness to bring his 鈥渞ed Santa Claus robes鈥� for the lecture and mentioned that his introduction would have been very different had his wife Sheila given it. This set the tone for the rest of the lecture 鈥� Justice Rothstein proceeded to give a very frank and honest discussion on the Copyright Pentalogy cases, eager to generate discussion on the cases and to answer questions the audience had on his experiences when deciding these cases.

Justice Rothstein began with a short discussion of 3 of the cases: ; ; and . To an extent, these could be considered the 鈥渓ess-controversial鈥� decisions by the Supreme Court of Canada in the Pentalogy (as evidenced by the unanimous decisions in Re:Sound and SOCAN v Bell and the majority of 8 in Rogers v SOCAN). However, Justice Rothstein had some important points he wanted to share with respect to the latter two cases.

In SOCAN v Bell, the court had to determine if an online preview of a song could be considered 鈥渞esearch鈥� for the purpose of avoiding a claim of copyright infringement under a fair dealing exception. The SCC agreed with the decision of the Copyright Board 鈥� such a use was reasonable and was protected under fair dealing. Justice Rothstein referred to what he thought were 4 interesting aspects of this case:

1)听听听听听 鈥淩esearch鈥� as described in the case is a very low hurdle to overcome and provides an expansive approach to the first part of the fair dealing test laid out in .

2)听听听听听 In determining whether the specific dealing at issue was fair or not under听the second part of the fair dealing test,听听the reviewing courts should听give deference to first instance courts that make a determination on this issue.

3)听听听听听 Fair dealing is to be assessed from the point of view of the purchaser/user.

4) 听 听 听"Research" need not be associated with traditional intellectual pursuits.

In Rogers v SOCAN, the court determined the meaning of 鈥渢o communicate the work to听the public鈥� in s. 3(1)(f) of the Copyright Act in the context of streaming musical works. Justice Rothstein wrote the decision for the majority: streaming of a copyright work to a number of individuals is a public communication.听 The determination of this issue could be different depending on whose point of view (the sender or the receiver); in the end the desire for the court to remain technologically neutral led to it's decision.

The discussion of the last two cases in the Copyright Pentalogy ( and ) provided interesting insight into the thoughts and opinions of the Supreme Court Justice (it should be noted that Justice听Rothstein wrote dissenting opinions in each of the cases).

To begin his discussion of ESAC v SOCAN, Justice Rothstein told a story about a case he worked on in 1990 about railway companies and grain rates, representing four provinces in the case. Ian Binnie, who would also later become a Justice of the SCC presented a very compelling statutory interpretation argument to the court. After a sleepless night preparing a response, Justice Rothstein was able to convince the court that the railway company was attempting to get double compensation for its product (鈥渄ouble-dipping鈥�). The purpose of the story was to illustrate that judges听do not like听double-dipping and will go to great听lengths to prevent any such unjust enrichment. The relevance of the anecdote became readily apparent as ESAC v SOCAN concerned copyright holders of musical works wanting to receive royalties for their music used in video games which had been downloaded over the internet. SOCAN attempted to construe the download as a communication (the artists only negotiate a right to reproduce the musical works), thereby entitling artists to a separate communication tariff.听 For Justice Rothstein, applying his caselaw experience as a practitioner, now on the other side, it wasn鈥檛 very difficult to see how some of the judges viewed SOCAN's approach as an attempt to 鈥渄ouble-dip".

Justice Rothstein repeated the well-known concept that the purpose of the court is to give effect to legislation that has been created by governmental bodies and to interpret those laws in accordance with their purpose. However, Justice Rothstein disagreed with the approach that the majority took in this case 鈥� in determining that the list in s. 3(1) of the 听are not individual and distinct rights (as he and the minority believed) but rather enumerated examples of the sole rights to reproduce, perform and publish works that is outlined in the preamble to s. 3(1). He also disagreed with the majority鈥檚 decision to push technological neutrality (a desirable objective but not one enshrined in the Copyright Act) ahead of some of the statutory requirements that he felt were overlooked.听 Justice Rothstein then pointed out that SCC judges are not prescient or clairvoyant 鈥� the court does not usually know what will happen as a result of their decisions until they take place.

If technological neutrality becomes an overriding issue in copyright cases, Justice Rothstein is not sure if copyright laws will be read more narrowly now or what effect the Copyright Modernization Act will have on future cases that come to the federal courts.听 He听noted that some cases have already come forward as a result and that there will likely be many more.

Justice Rothstein finished his presentation with a discussion of the Access Copyright case 鈥� where photocopies made by teachers and distributed to their students as part of class instruction were determined to be fair dealing under s. 29 of the Copyright Act. These types of copies were considered 鈥淐ategory 4鈥� photocopies 鈥� the other 3 categories were already considered fair dealing and were either copies made for the teacher鈥檚 use or at the request of a student. While the majority determined that these copies could be considered fair dealing (the end user was the student and considerations towards their research should weigh in their favour), the minority believed that since the teacher would be doing the copying, the teacher鈥檚 purpose should weigh in their favour.

After the decision by the SCC on the subject, the redetermination by the Copyright Board was, in the words of Justice Rothstein, 鈥渢erse鈥� (as most 1-sentence decisions tend to be). The SCC鈥檚 decision did not allow for much flexibility and went against one of the usual practices of appellate courts 鈥� to give deference to the Copyright Board in findings of fact (fairness in claims of fair dealings is one such finding of fact).听 Justice Rothstein noted that while the courts 鈥渄on鈥檛 always practise what they preach鈥�, one of the differences between the relationship between the Copyright Board and the courts as opposed to other tribunals is that the federal and provincial courts听have concurrent jurisdiction with the Copyright Board in interpreting rights. He finished his discussion of the case by stating that he agreed with a deferential review by appellate courts on factual questions but not on legal questions decided by any tribunal.

After a round of applause concluded his presentation, Justice Rothstein took a seat between Professors D鈥橝gostino and Vaver and answered some of the questions that audience members had with respect to the Copyright Pentalogy and his thoughts on copyright issues. One such question was posed by IP Osgoode's concerning the role of the balancing principle as discussed in and its effect on statutory interpretation. Rothstein replied that this balancing is at the very heart of many of the decisions the court makes, not only in copyright cases but other intellectual property cases such as the . He also stated that while some may believe that the 鈥渂alancing鈥� done by the court is an after-the-fact justification of the court鈥檚 decisions, the concept of balance is always in the mind of the adjudicators.

Another thought-provoking question by an audience member was whether there is room for common law equity considerations in copyright law听(being a creature of statute). Justice Rothstein responded that even though the court is bound to the statute in a number of ways, equitable considerations can come into play.听 While he was unsure of the application of the equity听doctrine to Canadian copyright law, he mentioned听one possibility could be new factors being added to the six factor CCH fair dealing test.

After a resounding applause from the audience at the closing of the discussion and a short wait as the Supreme Court Justice answered the personal questions of some inquisitive Osgoode students, I was able to thank Justice Rothstein for speaking at our school and providing us his insights on these important copyright issues. It was an enlightening afternoon and I hope that he returns to speak to us again in the future. Perhaps we can get his wife Sheila to introduce him听next time? (You had to be there for his opening remarks, please do watch the webcast when it becomes available).

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post IP Osgoode Speaker Series: The Honourable Mr. Justice Marshall Rothstein 鈥� Reflections on the Supreme Court of Canada 2012 Copyright Decisions appeared first on IPOsgoode.

IP Osgoode is proud to present our fall speaker series. The Honourable Justice Marshall Rothstein of the Supreme Court of Canada will be presenting a lecture on the recent cases at the Supreme Court entitled "Reflections on the Supreme Court of Canada 2012 Copyright Decisions" on November 27. The Honourable Mr. Justice Roger T. Hughes of the Federal Court of Canada will be presenting a lecture regarding advocacy skills entitled "Advocacy Skills and IP: Observations from the Bench" on November 29. These events are a must-see for anyone interested in Intellectual Property.

Details:

"Reflections on the Supreme Court of Canada 2012 Copyright Decisions" - November 27, 12:30pm-2:00pm, Moot Court, Osgoode Hall Law School, 91亚色, 4700 Keele St, Toronto, Canada. Please RSVP to , Event Code: Rothstein, by Monday November 20. Lunch will be served. All are welcome. Click for details.

"Advocacy Skills and IP: Observations from the Bench" - November 29, 3:30pm-5:00pm, Faculty Common Room (Room 2027), Osgoode Hall Law School, 91亚色, 4700 Keele St, Toronto, Canada. Please RSVP to , Event Code: Hughes, by Monday November 22. All are welcome. Click for details.

If you are unable to attend our speaker series lectures, a video archive of both presentations will be made available on the IP Osgoode website following the events.

The Honourable Mr. Justice Marshall Rothstein:听Born December 25, 1940 in Winnipeg, Manitoba. Educated at Winnipeg schools and University of Manitoba, B.Com., 1962, LL.B., 1966. Called to the Bar of Manitoba, 1966. Married to Sheila Dorfman of Montreal on June 12, 1966. Four children: Ronald, Douglas, Tracey and Robert, and three grandchildren. Associate Thorvaldson, Eggertson, Saunders and Mauro, 1966-69; Aikins, MacAulay & Thorvaldson, 1969-72; partner Aikins, MacAulay & Thorvaldson, 1972-92, member and periodic Chairman of Management Committee/Executive Board, 1981-92. Appointed Q.C., 1979.

Practised in the areas of Administrative Law and Litigation, primarily Transportation and Competition Law. Labour and commercial arbitrator. Adjudicator, Manitoba Human Rights Act, 1978-83. Member, Canadian Human Rights Tribunal, 1986-92. Appeared before federal and Manitoba Administrative Tribunals, Manitoba Court of Queen鈥檚 Bench, Manitoba Court of Appeal, Federal Court, Federal Court of Appeal and Supreme Court of Canada. Lecturer, Transportation Law, University of Manitoba Faculty of Law, 1970-83, 1988-92. Lecturer, Contract Law, University of Manitoba, Extension Department, 1970-75. Bar Admission Course Lecturer, Law Society of Manitoba, 1970-75. Secretary (Administrator), Civil Legal Aid Committee, Law Society of Manitoba, 1968-70. Chairman, Commission on Compulsory Retirement (Manitoba), 1981-82. Chairman, Ministerial Task Force on International Air Policy (Canada), 1990-91. Member, Manitoba Transportation Industry Development Advisory Committee, 1985-87, and Chairman, 1987-90. Member, Airports Task Force, 1985-86. Member, Airports Transfer Advisory Board, 1988-92. Member, External Advisory Committee, University of Manitoba Transport Institute, 1989-92.

Judge of the Federal Court of Canada, Trial Division, and member ex officio Appeal Division, June 24, 1992 鈥� January 20, 1999. Appointed to the Court Martial Appeal Court of Canada, October 29, 1992. Judicial member of the Competition Tribunal, May 31, 1993 鈥� January 20, 1999. Appointed to the Federal Court of Appeal, January 21, 1999. Appointed to the Supreme Court of Canada, March 1, 2006.e.

The Honourable Mr. Justice Roger T. Hughes: Born September 16, 1941, in Montreal, Quebec. Educated at Queen鈥檚 University (B.Sc. 1963) and University of Toronto (LL.B. 1966). Called to the Bar of Ontario (1968) and Alberta (1976). Appointed Queen鈥檚 Counsel (1984). Associate and Partner, Sim, Hughes, Ashton & McKay and Sim & McBurney (1969 鈥� 2005).

Certified Specialist in Intellectual Property Law and in Civil Litigation, Law Society of Upper Canada; Fellow, Chartered Institute of Arbitrators; Fellow, American College of Trial Lawyers; Fellow, Intellectual Property Institute of Canada; Registered Professional Engineer (1964), Registered Trade Mark Agent (1968), Registered Patent Agent (1969); Past-President, Patent and Trademark Institute of Canada; Past Director, Advocates鈥� Society; Author and speaker, Court practice and procedure, patent, trade mark and copyright law, and media and entertainment law.

Appointed Judge of the Federal Court, and ex officio, member of the Federal Court of Appeal, June 1, 2005. Appointed as a Judge of the Court Martial Appeal Court of Canada on June 23, 2006.

The post IP Osgoode Speaker Series: Justice Marshall Rothstein & Justice Roger T. Hughes appeared first on IPOsgoode.