2018 was also a celebratory year for Prof. David Vaver. To honour Prof. David’s Vaver’s double induction into the Order of Canada in 2017 and as a Fellow to the Royal Society of Canada in 2018, IP Osgoode released a . The video features many experts, colleagues and mentees and friends from around the world who participated in the symposium we organized in his honour to showcase his important contributions and leadership in intellectual property law. And to close the year, we edited a of the in his honour! Some must read gems include contributions from The Hon. Marshall Rothstein, The Hon. Roger T. Hughes and Justice Michael Manson.

On the wider IP front, 2018 also marked the year the Government of Canada finally recognized the importance of IP legal clinics in the country’s innovation ecosystem in its . The recognition of IP clinics that enable law students to learn more about IP, help businesses get a sense of their IP needs and facilitate access to the profession that can provide quality IP advice is very much in line with the objectives of the Innovation Clinic. Founded in 2010, the Innovation Clinic was the first IP legal clinic of its kind, operating in partnership with an established accelerator and an international law firm. Eight years later, the Innovation Clinic has become the largest IP legal clinic operating in Canada and provides important IP information, awareness, and assistance for our clients as well as crucial experiential learning experiences for Osgoode Hall Law School students.

To meet increasing demands for services, the Innovation Clinic has built on its successful partnership with , which began in 2016, and in 2018 also partnered with . Lawyers at both firms volunteer their valuable time to supervise our law student volunteers as they assist start-ups, entrepreneurs, and inventors across Southern Ontario.

At the end of 2018, I completed my research project on IP legal clinics in Canada, which was funded by the at the (CIGI) and will soon be released. The report underscores the importance of supporting IP legal clinics operated by Canadian law schools. Universities, law schools, and law professors can play a pivotal role in addressing the IP education and innovation gaps in Canada. Crucially, IP legal clinics work to fill gaps in the broader innovation ecosystem while offering students practical, hands-on experience in IP and related business law matters. Underscoring some of these issues, I published an article on the and the , entitled “How the IP Strategy Could Transform Canadian Innovation.” We look forward to publishing the report and continuing further dialogue among law schools, industry, law societies, the Canadian Intellectual Property Office (CIPO), levels of government, and other relevant stakeholders regarding the creation of a network of IP law clinics across Canada.

Top Ten Most Read Blogs of 2018

As we look back to the three main areas of IP, there are some noteworthy highlights.

Patents

Canadian statutory amendments, patent rule changes, tense multinational trade negotiations, and sui generis cannabis legislation broke new ground in the patent law landscape.

C-86 and the Patent Act Updates

was introduced in 2018 and clarified patent rights in court cases, experimentation with existing patented materials, compliance with technical standards, and prior use rights. Passed on October 29, 2018, the bill amends the Patent Act as a piece of omnibus legislation.

binds both original and subsequent standard essential patent (SEP) owners to licensing obligations. n (section 52.1) also extends to certificates of supplementary protection (CSPs), which offset the approval period for pharmaceutical products.

, written communications can be used as evidence to counter assertions made by the patentee when construing patent claims. These communications pertain to the prosecution history of said patent (presupposing their relevance to legal claims). Furthermore, a legal authority now exists to set requirements for cease-and-desist-like letters sent to patent holders. The complaint is valid if the recipient is in Canada, meaning foreign patent holders can seek compensation. These claims are to be handled in the Federal Court.

Furthermore, to encourage innovation, experimental use of patented materials to further the craft is now generally permitted by statute (as opposed to the prior limited, common law exception). The experimental use analysis is conducted by the courts and includes an assessment of the intent in experimentation.

Prior user rights are also expanded. If before the priority filing date a person commits an act considered infringement and then commits the same act post-priority, it is no longer an infringement of the patent or CSP. Exceptions apply only in good faith situations, whereas intentional violation of the patent’s information counts as infringement.

Changes to Canadian Patent Rules

December saw the release of CIPO’s , to align Canada’s patent regime with Patent Law Treaty (PLT) standards and fulfill the . While the draft rules were still open for public comment throughout December 2018, the draft clarifies what the proposed changes are likely to be and how they will be implemented.

The new regulations overhaul many of the administrative rules surrounding patent applications, and include greater leniency with respect to payment of fees after the filing date (balanced by a new late fee), processes governing documents submitted in languages other than English or French, and allowing applicants to follow up with missing descriptions or drawings (though this mechanism cannot be used to change the scope of the invention). Photographs can now be used in limited circumstances where the invention does not otherwise lend itself to schematic drawings, and a single nucleotide or amino acid sequence can be the subject of any one application. Furthermore, patent applicants are now able to designate a “common representative” for joint applications, who will be allowed to represent the others in dealing with the Patent Office.

Requests for priority will be brought into compliance with PLT and Patent Cooperation Treaty (PCT) standards, and it will no longer be possible to prevent publication of an application by withdrawing the application when an applicant provides consent for early publication.

The time limit for examination will be decreased from five to four years after filing, with a four-month time limit (down from six) to respond to an examiner’s report, rejection, or notice of allowance. Amendments can still be made to an application after allowance, but the new rules will set up a more rational system where a notice of allowance can be withdrawn at the applicant’s request, followed by re-examination and amendment. The new rules will also allow correction of “obvious errors”, ostensibly a broader definition than the current “clerical error” standard (which is an attempt to bring patent law in line with trademarks and industrial designs).

The new rules also set up a ‘due care’ requirement for applications abandoned or patents deemed expired because of missed maintenance fees, or applications abandoned as a result of failure to request an examination. This, combined with more direct third-party rights protections for infringement, are meant to compensate for the longer time limits for correcting application deficiencies.

Finally, procedures surrounding divisional applications (those where inventions are split off from an original parent application) will be mostly unaffected, though the codification of guidelines currently contained in practice notices is likely to make the system easier to navigate.

The new Patent Rules present a much awaited and needed consolidation (Canada signed the PLT in 2001 but has yet to ratify it), and one which will hopefully bring some clarity to both applicants and CIPO. As with any regulatory framework, however, only time will tell if the changes achieve this goal.

CUSMA

While CETA was the international agreement that pre-occupied the IP world in 2017, one of the biggest stories this year was the tense, down-to-the-wire negotiation around the . Out of a broad chapter on IP, the largest impact of CUSMA on Canadian patent law is likely to be changes to rules for biologics and for applicant-CIPO interactions.

Biologics are molecules produced by living organisms which have pharmaceutical applications. These drugs are at the cutting edge of both treatment () and diagnostic tools (like [ELISA]). The fact that CUSMA will, over a five-year transition period (Article 20.90), increase the term of market exclusivity for biologics to 10 years from the current standard of eight (Article 20.49) has therefore caused some concern about what the new agreement may mean for .

The second big change for patents in CUSMA affects how applicants interact with the CIPO. Those seeking a patent will now be able to expect compensation in the length of the patent grant for unreasonable delays in application processing, with the caveat that a delay can only be unreasonable if more than five years have passed since filing or three years have elapsed since a request for examination. (Article 20.44)

Cannabis

The , which legalizes recreational use of cannabis for individuals of 18 years of age or older, came into force on October 17th, 2018. Allowing nationwide use of the drug and possession of up to 30 grams, this effectively ends the prohibition on cannabis in Canada (although provinces can approach legalization in their own way by restricting public use or sale).

The for the drug is estimated at $4.9-$8.7 billion per year, with an anticipated market impact of up to $22.6 billion. Due to its lucrative market, IP protection is likely to be sought by manufacturers in all avenues of production of cannabis.

According to the , novel varieties of cannabis are eligible for patenting given they are novel, non-obvious and stable. Cannabis patents are not restricted to the whole plant under the Patent Act – patents can be filed incorporated in the plant, patches, gels, combinations of ingredients, cannabis extracts, methods for extracting active ingredients (eg. THC), and even devices used to ingest cannabis. When it comes to the plants themselves, for a variety to be considered “new” it can be sold for up to 1 year within Canadian borders and 4 years outside prior to its PBR application.

It is expected that the rate of patent applications will skyrocket with the new legislation passed. Prior to the Cannabis Act, only medical marijuana was available in Canada; with general legalization, it is likely that companies seeing this economic opportunity will enter the field at an expanding rate. By in June of 2018, there are at least 60 companies in the cannabis industry listed on the Toronto Stock Exchange.

Trademarks

While 2018 made its advancement new trademark legislation, we are still trekking through uncharted territory, as the effects of the new changes are far off into the future.

Progress for New Trademark Legislation

Finally, on November 2018, the government June 17, 2019 as the coming into force date of amendments to the Trade-marks Act. The amendments (see , and ), included key changes to several areas, such as trademark selection, opposition, and enforcement:

• Trademark applications will no longer require a date of first use;
• The definition of a trademark will expand in scope, giving protection to scents, sounds, colours, etc.;
• Trademark applications will no longer need a Declaration of Use;
• New registrations will have a 10-year renewal term;
• Canada will join the Madrid Protocol;
• Canada will adopt the Nice Classification of goods and services; and
• There will be an associated fee-per-class for trademark applications.

Both academics and practitioners expressed concerns over the amendments. Much of this concern stems from the fear of taking advantage of the elimination of the requirement to prove “use”.  Indeed, since the announcement of the amendments, there has been a significant increase in the number of applications covering all Nice classes of goods and services, in anticipation of the amendment.  However, the Government of Canada took steps in 2018 to address these concerns by announcing in the a proposal for bad faith trademark opposition and invalidation grounds and a requirement for registrants to use their trademark within three years of registration for their enforcement rights to be valid.

included not only the proposed opposition grounds and three-year limitation period announced in the National IP Strategy but also additional changes, such as:

• Imposing statutory limits on published official marks;
• Allowing the Registrar to order costs, case management, and confidentiality for documents filed during contested proceedings;
• In cases where parties are appealing the Registrar’s decision, only allowing new evidence to be filed with leave from the Federal Court; and
• Implementing a new Act to license and regulate trademark agents.

As the Bill has only been tabled recently, it still has a long way to go before its effects will be felt. Furthermore, there is uncertainty as to whether the new bill will adequately address the shortcomings of the 2014 amendments to the Trade-marks Act.

CUSMA’s Implications for TMs in Canada

Canada will be in compliance with many of the CUSMA provisions when the amendments come into force. The CUSMA that are already expected to be implemented next year – such as ratifying the Madrid Protocol and allowing the registration of scent marks. The CUSMA also explicitly provides that in civil proceedings related to trademark counterfeiting claims, each party  must establish a system that provides for any “pre-established damages”, or “additional damages” sufficient to deter infringements. Also, the nation in question must establish a means that will allow them to “fully” compensate the rights holder in question. The current provisions in the Trade-marks Act already allow for punitive damages for trademark infringement, however, these statutory damages can help to reduce litigation costs, and thus may be favorable for future court proceedings.

Reaffirming the Broadening of “Use” for TM Registration to Include Ancillary Use

The recent Canadian Federal Court decision in (Hilton Worldwide) – which is in line with the decision in – affirms that the physical establishment of a hotel in Canada is not necessary to constitute the “use” of a trademark in Canada. Consequently, in Hilton Worldwide, the Federal Court overturned the Registrar’s decision  to remove the Hilton Hotel’s registration of the trademark WALDORF-ASTORIA in association with “hotel services”, where a so-called  was not present in Canada. As part of the Hilton Hotel’s defence, it was stated that they offered several services which were accessible to Canadians, and that these services were associated with the trademark WALDORF-ASTORIA. These services included the operation of an interactive website, a worldwide registration service, and discounted offers to customers who pre-paid for rooms and loyalty programs.

This decision brings these “hotel” cases in line with decisions that pertain to retail store services, such as . However, only time will tell how broadly this decision will be applied in the future, especially with the upcoming legislative changes to Canadian trademark law. Some cases may be consistent with this decision, by focusing on the interactivity of a website and the “benefit” given to Canadians. Nevertheless, other cases may instead focus on whether hotels offered pre-paid reservation services to Canadians, or perhaps even on when the registration was issued. However, it is clear that this decision has made an important impact that will have ripple effects on trademark law in the upcoming years.

Official Marks are not Absolute Defences to Infringement Claims

On October 4, 2018, the Federal Court ruled on a new trademark issue in . In its decision, the Court held that official marks are not absolute defences for trademark infringement.

The case was based on Quality Program Services Inc. (QPS)’s registered trademark, “EMPOWER ME”, which was used in its energy awareness program. In 2013, the Ontario government created a website titled “emPOWERme” that also focused on energy use and generation. Despite receiving official mark status under section 9(1)(n)(iii) of the Trade-marks Act, the Court found that the Ontario government’s “emPOWERme” mark infringed on QPS’s registered trademark.

This decision clarified certain limitations on official marks, which are trademark rights that can be granted to public authorities. These marks are powerful tools, with features that place them well above typical registered trademarks. For example, official marks have several , such as they cover all goods and services, and they are not subject to opposition proceedings, renewal, or expungement.

Copyright

CUSMA

CUSMA emphasizes that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer of technology.” In furtherance of this objective, the CUSMA includes increased protection for material covered by the Canadian . Specifically, Canada has agreed to extend the term of copyright protection from “life plus 50 years” to “life plus 70 years” for works authored by natural persons. Works other than those by natural persons will be protected for no less than 75 years from the date of first publication.

Furthermore, under CUSMA, Canada has agreed to implement stronger border security measures to prevent counterfeiting. Canada will assign agents to oversee in-transit shipments and stop shipments to investigate the suspected presence of counterfeit products. This extends the government’s previous commitment to preventing counterfeiting of goods as part of the negotiations of the Trans Pacific Partnership (TPP) agreement, which included both the United States and Mexico but was abandoned by the Trump Administration. Additionally, under CUSMA, Canada will maintain its for copyright infringement claims. Finally, CUSMA outlines the criminal and civil remedies available for removing digital watermarks from works or interfering with digital locks.

Combating infringement

In March of 2018, the Federal Court of Canada released its decision in Therein, the court granted the plaintiff’s motion for default judgement and awarded $5,000,000 in statutory damages against the defendant, who was found to have infringed the plaintiff’s copyright by streaming Greek television programming for which the plaintiff was the exclusive distributor in Canada.

Relatedly, in , the Federal Court of Appeal upheld an Anton Piller order granted against the defendant on the grounds that there was a strong prima facie case that the defendant had infringed the plaintiff’s copyright by operating a website offering “software add-ons” that allowed users to stream infringing television and movie content.

On October 2, 2018 the Canadian Radio-television and Telecommunications Commission (CRTC) released its on a website-blocking application filed by Fair Play Canada – a coalition of media companies including Bell, Rogers, Corus and CBC/Radio Canada. Fair Play applied to the CRTC to institute a website blocking regime to combat online piracy; a proposal that received significant as well as numerous interventions both for and against the proposal. Ultimately, the CRTC rejected Fair Play’s proposal on the grounds that the proposed regime is not within the CRTC’s jurisdiction.

Copyright Notice-and-Notice System

The (Bill C-86) includes a number of proposed changes to Canadian IP laws. One such proposal is a plan to deal with the use of the notice-and-notice regime to send settlement demand letters to internet users suspected of pirating copyright-protected works. This attempt to address abuse of the notice-and-notice system follows up on an initial flagging of the issue in the , which was announced in Spring 2018.

Under the notice-and-notice system, a copyright holder who suspects that their protected work is being infringed by a party can send notice to that party via the party’s internet service provider (ISP). adds additional wording to the stating that such notices cannot contain an offer to settle, nor a demand for payment or personal information, among other specifications. These amendments mean that an ISP could refuse to deliver notice to a user, if the notice at issue contains any prohibited demands.

Review of the Copyright Act

2018 saw the continued review of the  Copyright Act. As part of the review, the Standing Committee on Canadian Heritage conducted , which drew briefs from Canadian , , and – to name just a few.

Simultaneously, the Standing Committee on Industry, Science and Technology conducted its review of the Copyright Act. One area in which many stakeholders weighed in on was educational copying, in particular fair dealing and decreasing revenues from licensing of educational material. On the one hand, a , recommended that fair dealing be limited so as not to cover educational copying of works that are commercially available. On the other hand, and argued against circumscribing fair dealing, recommending that the government take different steps towards supporting Canadian authors and publishers.

Copyright and Internet Service Providers

In September 2018, the Supreme Court of Canada released its decision in . At issue was whether the respondent film production companies should bear the costs borne by Rogers as an ISP in complying with a Norwich order to disclose the identities of its customers accused of infringement. Ultimately, the SCC sided with Rogers, reversing the Federal Court of Appeals’ previous decision. While the SCC remitted the issue to the motion’s judge for a determination of the quantum of Rogers’ entitlement to costs, the decision is an important precedent for ISPs who are compelled to disclose their customer’s personal information.

Written by Giuseppina D’Agostino, Founder & Director of IP Osgoode, the IP Intensive Program, and the Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from IPilogue Editors: Summer Lewis, Lauren Chan, Imtiaz Karamat, Neda Foroughian, Peter Werhun and Rui Shen, and from IPilogue Senior Editors: Stephen Cooley, Sebastian Beck-Watt and Dominic Cerilli.

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Needless to say that when I started my internship at The Globe and Mail, as part of , I didn’t expect to have to research over-150-year-old case law. But now, thanks to The Globe and Mail, I know where to find the full texts of pre-confederation court reporters online. And no, it isn’t as simple as searching on CanLII.

What I did expect, when I started at The Globe and Mail was the type of legal work that comes with being Canada’s pre-eminent newspaper: some copyright law, some defamation law, and maybe some freedom of the press to spice things up. What I soon came to realize is that becoming a leading newspaper is all about exceeding and defying expectations, especially at a time when newspapers (and print media writ large) are struggling to stay relevant. And so, what I ended up working on was anything but what I expected.

The Globe and Mail is more than a newspaper; it is a full-blown media company that takes a unique approach to delivering a diverse array of content. For example, during my first two weeks, The Globe and Mail launched its , in anticipation of marijuana legalization in Canada. And in my time at The Globe and Mail, I gained insight into the different legal issues at play in the evolving landscape of publishing. I learned how The Globe and Mail develops and delivers advertising campaigns that meet the same high standards as company’s journalism. I learned what is and is not allowed when it comes to the advertising of recreational marijuana and pharmaceuticals in Canada. I also learned about the , , and the important role that self-regulatory programs play in the world of online advertising. And, on a related note, I got to dive into the uncharted waters of Canada’s new rules, which have important (and confusing) implications for both buyers and sellers of online advertising in Canada.

I did also get to spend time working on copyright issues, but not in relation to The Globe’s journalism; rather in relation to software. Really this should have been no surprise, after all “” (and has been doing so for some time already). But what I really didn’t expect when it came to the software issues, was the role that licensing agreements play in the development and deployment of new software. Sure, I understood software terms and conditions were important, but never did I expect that they would be interesting!

All-in-all, my time at The Globe and Mail was a crash course in embracing the unexpected. Staying one-step ahead of Canada’s news means never falling a step-behind new laws, new business models, and (really) anything new; a fact that is not lost on team at The Globe and Mail. But beyond the novel legal questions and interesting research topics, what I really could not have expected was how welcoming The Globe and Mail was… oh, and just how often the finance department had an overwhelming assortments of delicious snacks. But that’s another story.

Written by Stephen Cooley.  Stephen is an IPilogue Senior Editor and 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.

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The mood of the event was decidedly celebratory, with friends, family, students, and colleagues alike partaking in food, beverages, and conversation in honour of Prof. Chapdelaine’s accomplishment. Bob Tarantino kicked the event off by contextualizing Prof. Chapdelaine’s work within the copyright user rights discussion, which has been of growing importance in the IP community since the Supreme Court of Canada’s pronouncement in – adopting the language of Prof. – that exceptions to copyright infringement are best understood as users’ rights. Mr. Tarantino noted that Prof. Chapdelaine’s book provides an answer to the question, what are user rights with respect to copyright, and thus Prof. Chapdelaine’s new book is a valuable resource for user rights critics, advocates, and fence-sitters alike.

Prof. Chapdelaine commenced her talk by thanking her friends, family, and colleagues for their support throughout her career. Prof. Chapdelaine also noted the influence her diverse background has had on her work; she having spent years in private practice in Montreal as well as in-house counsel for Bell Media and BCE Inc, and holding an LLB and BCL from McGill Universty, an LLM from KU Leuven Faculty of Law in Belgium, and a PhD from Osgoode Hall Law School.

In her book, Prof. Chapdelaine sets out to define what copyright user rights actually entail – particularly in a society where the modes of cultural consumption are increasingly dematerialized and digitized. In other words, Prof. Chapdelaine’s work examines how Western legal traditions can (and should) conceptualize and uphold copyright user rights as society’s modes of consumption move away from ownership of tangibles (e.g. books, CDs, etc.) and towards access to intangibles (e.g. streaming, e-books, etc.)?

In the Canadian legal context, the logical extension of the preceding question is: how can and should the legislature and judiciary give effect to the Supreme Court of Canada’s pronouncement in , whilst still upholding the balance between the public interest and the rights of authors expounded by the Supreme Court in ? Prof. Chapdelaine also sets out to answer the corollary question: if exceptions to copyright infringement are user rights, what obligations are imposed on copyright owners by the existence of such rights?

In answering all of the above questions, Prof. Chapdelaine adopts a theoretical framework grounded in copyright law but informed by property, contract, and consumer law, and applies it to practical situations, resulting in a comprehensive perspective on copyright user rights. In so doing, Prof. Chapdelaine problematizes the dichotomies of tangible/intangible works, and copyright owner/user in attempts to show how misunderstandings of such dichotomies influence the various arguments for and against copyright user rights.

If you find the above questions and conceptions intriguing than I suggest you get yourself a copy of Prof. Chapdelaine’s new book – I know I sure will!

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Prof. Gordon began by tracing the concept of users’ rights back to the American jurist Wesley Hohfeld’s notion of rights and privileges. For Hohfeld rights and duties were correlated concepts – that is the possession of a right by one party could impose a duty to honour that right on another party. Claim rights, as they are often called, are such rights – they impose duties to the rights holder onto others. Liberty rights on the other hand are rights that do not impose obligations, they simply entail freedom on the part of the rights holder. Prof. Gordon went on to explain that whether we define users’ rights as claim rights or liberty rights has important implications. If users’ rights are liberty rights – for example people are free to copy works in the public domain – there are no obligations on others to facilitate such rights. If, on the other hand, users’ rights impose obligations on others we could say that not only are people free to copy works in the public domain, but also that others are prohibited from locking up public domain works through the abuse of paywalls or digital rights management tools. If we conceptualize users’ rights as claim rights, as I believe Prof. Gordon was suggesting, we end up with a stronger conception of what user’s rights entail.

Daniel Bereskin, QC, speaking from an academic perspective, noted some of the ways diminished conceptions of users’ rights with respect to trademarks could lead to problematic situations. Mr. Bereskin noted that without balance between the rights of creators and users’ the objective of preventing depreciation of goodwill could be overtaken by the objective of protecting market share. Mr. Bereskin also shared some thoughts on proof of harm in trademark cases and how sometimes proof of harm is presumed, instead of proven, once likelihood of confusion is established. Mr. Bereskin highlighted the importance of assessing the impact of the harm done by an infringing use of a mark, particularly where injunctive relief is sought. Because injunctions are a form of equitable relief granted in extraordinary cases, a court considering whether or not to issue an injunction should look to the effect an injunction may have on values of competition and free speech.

In the field of patents, Prof. Shamnad Basheer made reference to the Indian IP doctrine of “working the patent” that allows for compulsory licensing of a patent that is not being “worked for the public good” by the patent-holder. Prof. Basheer explained that, starting three years from the date of grant, the patent holder must submit statements to the patent office of how it is “working the patent.” If, from these statements, the patent office is not satisfied that the patent holder is sufficiently “working” the patent it may grant a compulsory license in the patent to a third-party. The link between this doctrine and users’ rights is readily apparent. Recognition by the patent office of the public’s stake in scientific innovation suggests that users may have potential rights to innovations that benefit the public good. For more on the application of this doctrine see the Indian case of Natco Pharma Ltd. v Bayer Corporation, which was referenced by Prof. Basheer during his presentation, as well as on his IP blog, .

The author would like to thank all the speakers, volunteers, and co-ordinators who made “Intellectual Property: Fuel for the Fire of Genius or Shelf Life of a Banana” a reality, as well as Prof. Vaver for his ongoing contribution to the field of Intellectual Property law.

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The event featured a panel of renowned Canadian Aboriginal musicians, as well as Canadian director , brother of the Tragically Hip’s . Experimental vocalist, Inuk throat singer, and JUNO award and Polaris Prize winner was the event’s keynote speaker. Alongside Taqaq and Downie, the panel featured Inuk singer/songwriter and multiple JUNO award winner , as well as , one-third of the JUNO award winning electronic group , whose unique sound blends modern hip-hop, traditional pow wow drums and vocals, and electronic dance music. The panel was moderated by , a musician, conductor, and officer of the Order of Canada and the Order of Ontario.

The event began with a performance by Manitoban singer-songwriter , whose alternative RnB draws influence from her Cree/Dene and Irish roots. ��������é’s performance was lively, powerful, and an invigorating start to the morning’s agenda. The performance was proceeded by an introduction by Graham Henderson, the president of Music Canada. Significantly, Henderson’s introduction included an Aboriginal Land Acknowledgement; a practice that is becoming increasingly common at public events in Canada. This is an important development because Aboriginal Land Acknowledgements show recognition of and respect for Aboriginal people and their traditional territories. While it is common practice at music events and concerts to thank sponsors, volunteers, and organizers, Aboriginal Land Acknowledgements are only now gaining traction. Henderson’s inclusion of an Aboriginal Land Acknowledgement in his speech was a positive step forward and one I hope to see taken by other event organizers in the future. Henderson’s introduction was followed by a brief speech by , MP for Parkdale-High Park and Parliamentary Secretary for Multiculturalism. Virani’s speech highlighted the essential role diversity plays in Canada’s cultural output and indicated the importance of multiculturalism and the arts in Canada.

Taqaq began her keynote speech with one of her recent writings, a poem entitled “Sternum”, which juxtaposed the sternum’s biological function with the haunting image of a young girl immobilized by a man lying on top of her, his weight pressing down onto her through his sternum – as creaking bed springs resonate through the air. “Sternum” clearly alluded to the physical, mental, and sexual abuse experienced by Canada’s Aboriginal children under the residential school system, and the poem set the stage for an inspiring panel discussion that was as hopeful as it was critical. Taqaq’s keynote speech also addressed Inuit life and culture, the ongoing vilification of Aboriginal cultural practices in Canada, and the fight for justice for Canada’s . Taqaq’s speech was fiery and confrontational while simultaneously captivating and deeply moving; ultimately laying the foundation for the panel’s conversation on music, healing, reconciliation, identity, and artistic freedom.

One of the most interesting conversations, initiated by moderator Bell, was about the role Indigenous artists play as representatives of Canada’s Aboriginal people. Both Aglukark and Bear Witness commented that they felt conflicted about this role because Canada’s Aboriginal peoples are incredibly diverse and therefore it is problematic to view individual artists as representative of the whole of Canada’s Aboriginal peoples. Taqaq echoed Aglukark and Bear Witness’ comments, saying she feels the public expects her to speak for all Indigenous Canadians, simply because she is an Indigenous woman visible in the spotlight. Taqaq explained that this kind of external pressure can be burdensome because some artists just want the opportunity to speak for themselves; to express their truth, their reality, and their ideas on their own terms. Canada’s Indigenous artists are entitled to their artistic freedom: to create and express themselves as they see fit, regardless of whether their work is keeping with expectations of what it means to be Aboriginal. This was a powerful reminder to all in attendance not to reduce Aboriginal peoples or their arts and cultures to a singular vision – for as Downie was quick to note during the panel discussion, there are over 600 distinct Aboriginal groups in Canada and approximately 65 different dialects spread across 11 languages families. Thus, there is no singular Indigenous voice but rather a vast multiplicity of voices that struggle daily to be heard.

If I could distill the panel’s discussion down to one takeaway, it would be this: it is time to start listening to Aboriginal peoples’ voices – to their stories, their experiences, and their arts. It is time to accept, acknowledge, and trust Aboriginal people when they speak about the harm done to their families and communities and it is time to reject pejorative visions of Indigenous arts and artists based in restrictive traditionalism. Music has the power to heal, unite, educate, and empower, but only if we listen truly and deeply. And thus, as Downie noted during the panel discussion, the responsibility lies with all Canadians, and not simply the government, to listen and strive towards reconciliation.

The author would like to thank Canadian Music Week and Music Canada for organizing this important and thought-provoking panel discussion as well as Tanya Taqaq, Susan Aglukark, Bear Witness, Mike Downie, and John Kim Bell for their words and art.

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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�¾��ٳ���, increased demand for better authentication techniques is compelling innovators in science and technology to step in. of Hong Kong Baptist University's Department of Physics pioneered and patented a cutting-edge  along with his research team. This new technology uses a non-destructive single-shot P-LEAF technique () to perform real-time analysis of pigments, ceramics, and metals. The non-destructive nature of the technique is crucial to the art market. Prof. Cheung notes that "using our new technology, only one nanogram or less of the material is vaporised for detection. Damage will not be visible even when examined under a microscope." You can watch a short demonstration of the P-LEAF technique .

In the wake of high-profile art forgery scandals like  (sold for $8.3 million) and (sold for $10 million), the value of an accurate and non-destructive authentication technique is patent. Expert testimony can often handle the burden of authenticating a work of art. But sometimes even the experts, like those at the Louvre, can be fooled by a fake. Coincidentally, Professor Cheung's tech company, ANA Artwork Material Analysis Company Limited (ANA), is currently working with the French Artwork National Analytical Laboratory at the Louvre on developing the P-LEAF as an analytical tool. The extent of the laser's application in authenticating works remains to be seen, but it will likely play a role in dating and authenticating the historical context of a given piece.

Let us take a step back and ask what the existence of - and need for - such a technology tells us about the current market for fine art?

, Law Professor at NYU, argues that any artwork’s value is dictated by its authenticity. Her argument is that a copy, regardless of its aesthetic merit, is valueless. What buyers pay top dollar for is originality - not in the sense of novelty, but in the sense of authenticity. No matter how beautiful a copy of a famous work it will never be worth more than the paper it's printed on – unless it can be passed off as an original. For more on Professor Adler’s theory see Robel Sahlu’s recent .

 further emphasizes the principle of authenticity's value. Fletcher attributed a painting in his possession to Scottish painter Peter Doig, but Doig denied that the painting was one of his creations. Fletcher then brought a suit for damages against Doig. Fletcher claims that, by denying authorship, Doig ruined a plan to sell the painting. Why? As one commentator put it, Fletcher, who owned the contested landscape painting, thought he'd found "the art equivalent of a winning lottery ticket." At trial, expert testimony was given as to the painting's value. If it was not painted by Doig it was worth between $50,000 and $100,000. If it �ɲ�����painted by Doig... $6 - $8 million.

There is a lot at stake in authentication. Professor Cheung's P-LEAF technique may not be capable of disproving an artist, like Doig, who denies a work is truly theirs. P-LEAF nevertheless has its merits. ANA is hardly the first company to get involved in the scientific authentication of art. The Illinois based  played a key role in the investigation of an .�����Ի��� helped established that Hal’s "Portrait of a Man" was a forgery.

Originality, in terms of authenticity, matters most in the eyes of the art market. As long as it does, there will be more demand in the market for the objective analysis of art through science and technology.

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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So what is the solution – crack down on artists caught infringing copyright, reform the system, or something in between? Berkeley Law professor , cited by Raymer as a "leading proponent" of reform, advocates for the introduction of compulsory sample licences, which would work similar to the compulsory licences already in place in the US for recording a cover version of another artist’s song. Under the , anyone wishing to record and distribute a cover version must simply send a notice of intention to the original copyright holder, make monthly royalty payments, and submit an annual accounting statement. Importantly, compulsory licences are currently only available for musical compositions and not sound recordings. This means that if an artist wants to use a sample from a sound recording of a drum break or an a cappella vocal hook they need to obtain the rights-holder’s permission.

Compulsory sample licensing could potentially solve tensions between copyright and the derivative works market. Artists would still have to pay royalties for any sampled material (artists presently negotiate sample clearances with rights-holders by way of one time fees, royalties or both). But the process for clearing samples would be less expensive and time-consuming and there would be no risk of rights-holders rejecting use. Menell posits that compulsory licensing for sound recording sampling would lead to a more inclusive music industry in which derivative works composers could more ably and legitimately participate. In his words: "so much of the creativity is getting put out into these gray channels, these areas that are not fully embraced by the market, and compulsory sample licenses(sic) could be a remedy for this situation."

But not everyone is convinced. For one, the US Department of Commerce Internet Policy Task Force, in a recent , concluded that compulsory licences for remix use are not currently justified. According to the task force, compulsory licensing would break from precedent by giving rights-holders no control over how their original work is used. For this reason, the compulsory licence proposal has little support amongst stakeholders. There are also logistical challenges with respect to remix tracking, revenue distribution, and the creation of a universal music database that limit the practicality of the proposition. Thus the task force maintains that the current system of licensing and fair use successfully accommodates the interests of both creators and rights-holders.

What about Canadian musicians and copyright holders? Is there a need or desire for compulsory sample licensing here or is it even a possibility? As it currently stands in Canada, like the US, if an artist wants to legally sample another’s original sound recording they need to . This can be an expensive, time consuming, and confusing process for musicians, even if they retain a lawyer. But the consequences for illegally sampling copyrighted material can be severe. The Society of Composers, Authors and Music Publishers of Canada (SOCAN) prudently warns that . Given the above, it is plausible that Menell's argument for sample licensing reform could be made here too.

The Canadian copyright system is not the same as that in the US though. For example, in Canada we do not have compulsory licences for cover versions of musical works. Rather, cover artists obtain (or other similar rights organizations). These licences are similar to US compulsory licences, in that rights-holders give their approval to the CMRRA beforehand and users pay a flat usage fee, but they are not identical. This is simply to say that the Canadian and US copyright systems are not mirror images of one another and, therefore, what one does is not necessarily indicative of what the other will or should do.

Thus the questions remains: what is there to be done? The previously mentioned US task force recommends two strategies, with respect to remixes, in their white paper; (1) provide greater clarity on what constitutes fair use and (2) improve voluntary licensing options for users of copyrighted material. Whether these strategies will help solve the issues that exist in the industry remains to be seen, as does the influence such strategies may have on our Canadian licensing system.

Stephen Cooley is an IPilogue Editor and a JD candidate at Osgoode Hall Law School. 

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