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Tiffany Wang is anĚýIPilogueĚýWriter,ĚýIntellectual Property Journal Editor, and a 2L JD Candidate at Osgoode Hall Law School.Ěý

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Through accelerating digitalisation, the pandemic has vaulted taxation to the forefront of the global political and economic system. The Organisation for Economic Co-operation and Development (“OECD”) commenced public consultations in January to . The growth of multinational enterprises (“MNEs”), particularly digital corporations, enervates the current global corporate tax system, and the OECD opines that a (“GDP”). Two proposals, Pillar One and Pillar Two, seek to address this quagmire.

jurisdiction. (currently agreed at ). , . The endorsed package has .

Digitalisation pares back the integrity of tax structures. Tax avoidance runs rampant, and the two proposals attempt to outduel digital corporations’ approach of poaching taxes.

Presdent Biden’s leadership on pushing the two pillars through Congress and the G20 demonstrates a recycling of traditional taxation in dealing with Big Tech MNEs. Google, Amazon, Facebook, and Apple (“GAFA”) awaits trial as Washington envisions .

The lore of the minimum tax plan is “.” The global taxation reset presses for a pro rata basis of digital taxation to avoid base erosion. If Congress favors this plan, digital MNEs may fall prey to a .

Ambitious and focused, the OECD will ensure that all major players have some skin in the game of international taxation and digitalisation.

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Tiffany Wang is anĚýIPilogueĚýWriter,ĚýIntellectual Property Journal Editor, and a 2L JD Candidate at Osgoode Hall Law School.Ěý

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Intellectual property and taxes—an unlikely convergence.ĚýĚý

Since theĚýĚýhas accelerated on a global scale. AsĚýĚý(markingĚýa 74% increase in 44 years).Ěý.ĚýĚý

Intellectual property is a key category of intangible assets. Intellectual property falls into the category ofĚýĚýamong others. Often, trademark and patent are protection tools to prevent competitors from exploiting value-driving assets.Ěý

Intangible assets inevitably lead to a quagmire: how do governments tax intangibles?Ěý. How does one impose taxes on something invisible (e.g.Ěýdata or goodwill)?ĚýOr somethingĚýwith aĚývalueĚýmore difficult toĚýdecipher?ĚýĚý

Under paragraph 3(a) of theĚýIncome Tax ActĚý(“ITA”),Ěý. Property is defined in section 248 of the ITA asĚýĚýwhether real or personal or corporeal or incorporeal. Logically, intellectual property may be subject to taxation under paragraph 3(a). However,Ěý. Not only does the difficulty of determining the fair market value of intangible assets render taxation different from the traditional economy, but the lack of concrete legislative guidance underminesĚýthe predictability and efficiency of taxation.ĚýĚý

Another issue is the difficulty in treating intellectual property as either capital or income. Intangible assets can simultaneously fall into both categories. For instance,Ěý. However, if a taxpayer sells a copyright-protected work and transfers copyright, then the revenue generated would be income.ĚýĚý

As other jurisdictions have reformed the taxation of intangible assets, Canada has remained largely stagnant on the matter. .ĚýAdditionally, the Organisation for Economic Co-operation and Development has turned to base erosion and profit shifting tools to strategize how to close the taxation loopholes triggered by intangible assets and payments (e.g.Ěýroyalties).ĚýĚý

The rapid replacement of brick-and-mortar industries by digitalization creates opportunities to reform taxation. To parallel business development, perhaps novel legislative reforms are required to ensure that Canada does not fall behind in the global restructuring of taxation.ĚýĚý

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Tiffany Wang is an IPilogue Writer, Intellectual Property Journal Editor, and a 2L JD Candidate at Osgoode Hall Law School.

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A could rejuvenate Gordon Moore’s famous law of electronics. Moore’s Law suggests that .

ASML, a Dutch company, pioneered an extreme ultraviolet (EUV) lithography machine capable of churning out microchips with unprecedented levels of precision. In their August 20 , the company indicated that its projects will . This technology allows

. ASML’s The ultra-precise light enables the machine to Ěý

Given microchips’ status in the , ASML’s technology carries significant weight. In fact, Washington has already

Does preventing the sale of the $150-million machine give the American economy a long-term advantage in the technological cold war? Perhaps not.

For one. Chips of 10 nm and above represent the dominant market share. Meanwhile, the Sino-American semiconductor industry accounts for approximately . It may be dangerous for Washington to lose sight of the forest for the trees.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, Intellectual Property Journal Editor, and a 2L JD Candidate at Osgoode Hall Law School.

In the midsummer of 2020, the Supreme Court of the United States rendered an unusual decision in its first . The case, , signals broader protections for trademarks vis-Ă -vis .

In . The USPTO’s both denied the registration, underscoring that consumers will perceive

Writing for the 8-1 Supreme Court, Justice Ruth Bader Ginsburg affirmed the . Justice Ginsburg underscored that Booking.com is a distinctive business and that the public will not misunderstand the brand. Having acquired sufficient distinctiveness in the marketplace, “Booking.com” moves away from the generic category as a descriptive mark. The distinctiveness of a trademark is measured on the . In the case at hand,

This case finds a fine equilibrium between two factors: enhancing trademark protection and valuing consumer perception. Stronger trademark protection enhances Booking.com’s brand image and goodwill. Granting trademark registration to Booking.com simultaneously enhances the significance of consumer voices. Consumers are able to distinguish the services provided by Booking.com from those of other lodging competitors.Ěý

Practitioners may worry that this case opens the floodgates to trademark litigation. The Supreme Court blurred the . Additionally, Permitting the registration of “generic.com” domain names may lead to .

In an increasingly digital arena, defying clear trademark doctrine may inevitably deplete the USPTO’s authority to prevent an influx of generic marks from entering the marketplace and diluting the value of more distinctive trademarks. The majority underscores that consumers perceive that . Even if the majority reasonably valued consumer data, did the majority err in granting too much weight to public input?

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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In July, the European Union delivered an unprecedented fine against Amazon—a record $887 million USD. Luxembourg’s National Commission for Data Protection (CNPD) penalized Amazon for their . The $887 million fine is almost triple the amount of General Data Protection Regulation .

. La Quadrature du Net claims to represent the .

Amazon refuses to remain idle. The multinational firm has already declared it will initiate the to refute this penalty. Amazon voiced that there has been and continues to promise that . The irony here, however, rests in the reality that

The EU’s penalty against Amazon . Legislation still has teeth despite Luxembourg’s historically friendly stance toward Amazon .

The unprecedented fine also underscores the EU’s of Amazon. Amazon has . Even though Amazon claims that collecting data helps to foster a better online retail environment, regulators and lawmakers. In fact, growing suspicion clouds the correlation between data and Amazon’s . The 2018 privacy investigation only fuels the . .

Amazon’s slogan is “Work hard. Have fun. Make history”. Indeed, Amazon has made history with its $887 million penalty. But is this the “history” that Jeff Bezos envisioned?

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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In 2019, Microsoft and the Pentagon signed a via deploying cloud technology. One man was not too happy with the agreement. , Jeff Bezos, persisted in fighting for the lucrative contract, especially after the Biden Administration began work at White House.Ěý

Amazon Web Services, . Amazon’s efforts have not gone unnoticed.

, ending the feud between the two technology giants over the ten-year commercial contract. The DoD did not explicitly name the feud as the motivating factor for cancellation. Instead, the DoD announced that the ĚýJohn Sherman, acting Pentagon Chief Information Officer, stated that the inevitably call for novel strategies.

The JEDI deal has long been controversial. In 2019, Amazon suggested that the Pentagon award the contract to Microsoft due to . Moving away from a Microsoft monopoly, the current Biden administration welcomes bids from which satisfy the government’s standards. , and others have joined the ranks.

Companies anticipate competing for the new contract: . Attempting to canvass by military personnel.

The JEDI deal aims to upgrade the More than a contract duel, the JEDI deal acknowledges the rapid growth of the —and the pace at which the U.S. military needs to work to match this evolution.

Considering the forests rather than the trees, the Pentagon may have set its sights on competition from China instead of the clash amidst domestic technology titans. . In this cross-border military cloud computing race, the U.S. does not want China to win. If China wins the cloud computing marathon, the DoD will not celebrate on cloud nine.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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Chips are the hotspot in the current . By stymieing Huawei’s reach of international customers’ communications and leading the 5G race, the Biden administration has fronted a in chipmaking and research. Beijing, swimming against the current, has committed more than to high-tech developments, particularly in the semiconductor industry.

Samsung leads its competitors in the during the pandemic has led the Chinese government to invest in domestic semiconductor supply chains. and carved a local talent pool. Reducing dependency on outside markets is in part due to domestic demand since . Internal supply chain security will curb shortage risks for the country.

Production will not be a quagmire for Beijing. Their reservoir of . In fact, China’s share of the global semiconductor production capacity may rise from . .

President Xi positions China for . The restricted Huawei and other players in the Chinese market’s access to American technology. US , have pushed China to bite back in its For Beijing, technology and innovation self-sufficiency have inevitably turned into a matter of survival. Chinese firms .

As the net importer of semiconductors, . This figure continues to rise. In China’s race with the US, no one is safe. These two giants in the global economy threaten their mutual destruction. For one, the Chinese semiconductor industry considers leveraging rare earth minerals in this geopolitical war.

Who will win the semiconductor race—the eagle or the dragon? One thing remains certain: no one is backing down.

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Top Row: Madelaine Lynch, Richard Du, Androu Waheeb Bottom Row: Nikita Munjal, Sarah Raja, Tiffany Wang

IP Osgoode is pleased to announce the new team of student editors for the Intellectual Property Journal (IPJ). Returning this year are Madelaine Lynch and Nikita Munjal. New student editors are Richard Du, Sarah Raja, Androu Waheeb, and Tiffany Wang.

The IPJ is Canada’s leading peer-reviewed journal with a focus on IP law related areas such as patents, trademarks, copyright, designs, trade secrets and competitive torts. Leading the IPJ’s editorial team is Editor-in-Chief, Pina D’Agostino, Associate Professor at Osgoode Hall Law School and IP Osgoode’s founder and director; Deputy Editor Dr. Aviv Gaon, Assistant Professor at IDC Herzliya; and Senior Editor Ryan Wong.

The IPJ’s editorial board consists of Prof. David Vaver, Hon. Justice Roger T. Hughes, Daniel Bereskin, Prof. Ikechi Mgbeoji, and Hon. Justice Marshall Rothstein. Prof. Bita Amani and Prof. Saptarishi Bandopadhyay are the book review editors.

The IPJ editorial team wishes to thank Prof. David Vaver, IPJ’s founder, for his mentorship and unrelenting support.Ěý The IPJ’s continued success is made possible by the contributions from its panel of expert reviewers.Ěý

IPJ accepts article submissions on an ongoing basis. If you’re interested in submitting an article to the IPJ, please email us at ipjsubmissions@gmail.com.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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In 2008, three former Motorola Solutions employees, Communications Corporation Limited (“Hytera Corp.”). The three engineers, upon leaving Motorola Solutions, shared digital mobile radio .

In February 2020, a jury in the demanded that Hytera Corp. pay more than . The Chicago federal jury’s includes $345.8 million in compensatory damages and $418.8 million in punitive damages.

The case started on its exposed trade secrets in creating Hytera’s DMR products. Hytera Corp. assembled a .

Not only did Motorola Solutions allege that Hytera violated U.S. copyright laws by copying their source code, it also complained that Hytera . Hytera .

Motorola Solutions chairman and CEO Greg Brown expressed that Hytera .

Discovery from a prior court filing revealed similarities between Motorola Solutions’ and Hytera’s products. Hytera’s source code “”. The source codes were similar to the extent that identical appeared in both.

This case represents a significant infringement of innovation and technology. Profiting from a Ěýmarket competitor’s innovations via trade secrets and source code theft misappropriates the intellectual creation and property of other firms’ investments. The significant cost awards signal the courts’ commitment to protecting the value of intellectual property and ensuring that does not lessen the integrity of intellectual creation.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.”

Nineteen Eighty-Four by George Orwell

Sprawling throughout New 91ŃÇÉ« City, cameras observe and record faces and movements. These seemingly omnipresent lenses conduct and generate facial-recognition data for the New 91ŃÇÉ« Police Department (“NYPD”), capturing footage to identify individuals for criminal enforcement efforts.Ěý

Surveillance by security cameras is not unique to the Big Apple. Chinese police forces deploy , notifying security personnel whenever or target appears in sight. . In total, operate to surveil the population of New 91ŃÇÉ«.Ěý

Not only do public cameras tower over the city, but also record information that the NYPD may access with permission.

The Big Apple’s capture action in an area less than two square miles. Over ninety percent of residents are racial minorities.Ěý

, serves the United States federal and state police forces. In 2019, the revealed that Idemia’s algorithms are prone to confuse racial minorities’ faces. Similarly, the

of facial data raises concerns of . If commercial algorithms continue to demonstrate significant errors in identifying individuals with varying skin tones, these concerns will quickly escalate to . Tensions may ultimately result in the NYPD

Could over 15,000 eyes create a dystopia? After all, .ĚýĚý

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