Tracy Ayodele (IPilogue Editor) Archives - IPOsgoode /osgoode/iposgoode/tag/tracy-ayodele-ipilogue-editor/ An Authoritive Leader in IP Tue, 19 Feb 2013 03:45:05 +0000 en-CA hourly 1 https://wordpress.org/?v=6.9.4 The Canadian Heritage Chapter: A Semester In Osgoode’s IP Intensive Program /osgoode/iposgoode/2013/02/18/the-canadian-heritage-chapter-a-semester-in-osgoodes-ip-intensive-program/ Tue, 19 Feb 2013 03:45:05 +0000 http://www.iposgoode.ca/?p=20198 This past fall, eight classmates and I were fortunate enough to partake in Osgoode’s Intellectual Property Law & Technology Intensive Program (the "IP Intensive Program"). The program commenced with two weeks of classes headed by members of the intellectual property (IP) community, speaking on IP law generally and their respective practices. An essential aspect of […]

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This past fall, eight classmates and I were fortunate enough to partake in Osgoode’s (the "IP Intensive Program"). The program commenced with two weeks of classes headed by members of the intellectual property (IP) community, speaking on IP law generally and their respective practices.

An essential aspect of the clinical program was an 11-week internship that saw students placed with government agencies or various organizations involved with IP law and/or technology.   Some students were even lucky enough to travel to California as visiting researchers at Stanford University’s CodeX laboratory.  For me, the remainder of the fall semester was spent at the Copyright and International Trade Policy Branch of Canadian Heritage.

The Department of is tasked with the duty of devising national policies and programs that encourage the development and sustainability of Canadian content, and endeavors to foster cultural participation and active citizenship.  The Department is comprised of a number of branches, and I was fortunate enough to be placed in the .  The mandate of the Branch is to ensure that Canada’s policy framework “.” The Branch strives to realize this mandate by analyzing technological and legal developments in Canada and abroad, advancing Canadian interests in the international atmosphere, and also promoting knowledge concerning copyright legislation and regulations.

While at Canadian Heritage, I was roped in on, and assigned various projects concerning the abovementioned mandate.  The Copyright team was energized about the recent passing of Bill C-11 – the Copyright Modernization Act – that they had tirelessly worked on prior to my arrival.  Now that the dust had settled, so to speak, the Branch was perfectly poised to usher in the era of the Copyright Modernization Act, and take stock of the entire reform process. I particularly admire the Branch’s ability to position itself in a stance whereby it will be able to pre-empt various future occurrences, by learning from past events and the experiences of other countries.   The Copyright team is never at a standstill; their practices are rather dynamic, at times international, and span from public outreach to policy drafting.

While at Canadian Heritage, I performed various research tasks and drafted documents on a number of matters pertaining to copyright reform in Canada and abroad. I was also able to answer public inquiries of a general nature, write a legal memorandum, and present my research to the Branch.

The time I spent at Canadian Heritage is truly invaluable.  I am leaving with an immense amount of knowledge and insight about copyright legislation and reform in Canada and abroad. I have been lucky enough to get a first-hand look into the rationales and perspectives that led to the final embodiment of the Copyright Modernization Act. Furthermore, I met incredibly intelligent and kind people, who are extremely passionate about copyright and culture in Canada.

The IP Intensive Program is a truly invaluable experience and unlike any other endeavor I have embarked on during my time at Osgoode. For anyone interested in IP law and/or technology, the skills you acquire during your placement are unparallel to what you can learn in a classroom.  Furthermore, you will likely be in a better decision to discern between where you do and do not want to go as far as you legal career in concerned.

Tracy Ayodele 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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Rogers v. SOCAN: The SCC Streamlines its Stance on On-Demand Streaming /osgoode/iposgoode/2012/07/17/rogers-v-socan-the-scc-streamlines-its-stance-on-on-demand-streaming/ Tue, 17 Jul 2012 18:45:06 +0000 http://www.iposgoode.ca/?p=17528 The much anticipated Supreme Court of Canada ruling in Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada,2012 SCC 35 (Rogers v SOCAN), culminated with a unanimous Court holding that on-demand transmissions of music streams made available by online music services constitute communications “to the public”.  Consequently, the on-demand streaming of […]

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The much anticipated Supreme Court of Canada ruling in ,2012 SCC 35 (Rogers v SOCAN), culminated with a unanimous Court holding that on-demand transmissions of music streams made available by online music services constitute communications “to the public”.  Consequently, the on-demand streaming of musical works provided by online services such as or represents a form of communication to the public, and therefore attracts royalty fees.

 

The Evolution of the Proceedings

The appellants, (Rogers et al), provide online music services that allow on-demand downloads and streams of files holding musical works.  In  1995, SOCAN proposed tariffs for the use of musical works over the Internet via downloads and streams, between the years of 1996 and 2006.  Subsequently, the Copyright Board established a tariff for the communication of musical works over the Internet, holding that the streaming of copyrighted music falls within the copyright owners’ right to “communicate to the public by telecommunication” afforded by section 3(1)(f) of the (“A”).

 

On to the Federal Court, the appellant’s application for judicial review of the Board’s decision was dismissed.   The issue was whether the on-demand communication of a musical work to an individual by online music services, was within the meaning of section 3(1)(f) of the . The Court’s ruling was in agreement with the Copyright Board’s contention that “.” Thus, royalties applied for such transmissions and the tariff, proposed by SOCAN, was upheld.

 

The question raised on appeal to the Supreme Court of Canada was in reference to the proper interpretation of section 3(1)(f) of the Act.  More specifically, the Court was to determine whether the streaming of files provided by online music services at the request of individual users (i.e. on-demand)   constituted communications “to the public” of the musical works contained therein.  In light of the majority decision in , the issue regarding whether online music services engage the exclusive right to communicate by telecommunication by enabling downloads to the public became moot.   That is, musical works are not communicated when they are downloaded because they are merely reproductions of the works.

 

In regards to an online stream, Justice Rothstein that point-to-point communications via the Internet (i.e. on-demand communications sent directly to a single user at their request) are to the public, thus disposing of the appellant’s argument that point-to-point transmissions are necessarily private transactions between the user and the music service, beyond the scope of the exclusive right to communicate to the public (at para 55). The Court cited to further its interpretation, stating that “[I]f the content is intentionally made available to anyone who wants to access it, it is treated as communicated to the public even if users access the work at different times and places”.  Therefore, even if a work is streamed in a point-to-point manner, the fact that the same point-to-point stream is offered to anyone makes it “to the public.”

 

Rogers v SOCAN and the Digital and International Sphere

The ramifications of the “” rulings have yet to manifest; however, the holding in Rogers v SOCAN reaffirms an already existing practice, that is, the collection of royalties for streamed on-demand musical works. Although SOCAN can no longer collect royalties for downloaded musical works, the decision in Rogers v SOCAN reflects changes occurring in music consumption. In the rapidly evolving digital sphere, streaming music through on-demand services such as Spotify or Rdio is an increasingly popular way to listen to music and fees collected from streaming services can provide a great source of revenue for artists.  Justice Abella believes the Act should, and does, afford for by continuing “to apply in different media, including more technologically advanced ones” since it “exists to protect the rights of authors and others as technology evolves” (at para 39). On-demand streaming is an example of the evolution of communications and, as Justice Abella shows, the copyright act is flexible enough to adapt to this model.

 

In addition to acknowledging the evolution of music consumption, the decision in Rogers v SOCAN aligns Canada with developments at the international level.  Article 11bis of the , of which Canada is a party, stipulates various communication rights in literary and artistic works, which : works broadcasted or communicated to the public by any other means of wireless diffusion of signs, sounds or images. Other Berne Convention countries, such as Denmark, have that extend protection to “communication to the public of works, by wire or wireless means, including broadcasting by radio or television and the making available to the public of works in such a way that members of the public may access them from a place and at a time individually chosen by them”.  The Court’s interpretation of s. 3(1)(f) of the Act, which recognizes on-demand communication to the public as subject to copyright, parallels international thinking on the matter.

 

Although the other rulings released last Thursday represent a massive for artists, Eric Baptiste, CEO of SOCAN, that the Supreme Court “reconfirmed the online rights of music creators and publishers” and trusts that “the right final decision has been made in the case of Internet streaming". While less ambiguity is left in regards to the allowance of royalties for streamed works, it remains to be seen whether providers will be required to alter business practices in light of the rulings. However, artists can breathe a partial sigh of relief that their ability to be remunerated for works streamed through on-demand music services remains alive and well.

 

 

Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.

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The Patentability of Gene Sequences: Myriad Genetics’ Day in the United States Supreme Court /osgoode/iposgoode/2012/07/02/the-patentability-of-gene-sequences-myriad-genetics-day-in-the-united-states-supreme-court/ Tue, 03 Jul 2012 02:21:29 +0000 http://www.iposgoode.ca/?p=17244 In late March, The United States Supreme Court ordered the U.S Court of Appeal for the Federal Circuit to reconsider Myriad Genetics’ existing patent on two genes associated with a high risk of breast and ovarian cancer, in light of the judgement rendered in Mayo Collaborative Services v Prometheus Labs (Prometheus). A unanimous Supreme Court […]

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In late March, The United States Supreme Court the U.S Court of Appeal for the Federal Circuit to reconsider Myriad Genetics’ existing patent on two genes associated with a high risk of breast and ovarian cancer, in light of the judgement rendered in (Prometheus). A unanimous Supreme Court in Prometheus held that the patent sought by Prometheus for the personalized medicine dosing process was ineligible for patent protection since it was a .

In the , the Association for Molecular Pathology v Myriad Genetics (Myriad), Myriad Genetics alongside the University of Utah, isolated two genes, BRCA 1 and BRCA 2, which are associated with breast and ovarian cancers.  Furthermore, it developed a test that examines the DNA extracted from the genes  for mutations that signify risk of developing breast or ovarian cancer.  The patent of the two genes grants Myriad Genetics a monopoly on testing for mutations and thus prevents other laboratories from performing such tests.

An action brought by the American Civil Liberties Union and the Public Patent Foundation on behalf of various medical groups, patients and researchers that Prometheus’ patent on the human genes were invalid as they were products of nature, and the ensuing monopoly granted prevented women from garnering confirmatory tests. A United States District judge in New 91ɫ conceded and the patents in 2010.  Nonetheless, this victory for the American Civil Liberties Union and association was short lived, as the Court of Appeal for the Federal Circuit the ruling, holding that the DNA isolated from the body was patentable since it was “markedly different” in a chemical structure from the DNA within the body.  On appeal to the Supreme Court, the case was remanded to the Court of Appeal for the Federal Circuit for review.

On review, the Federal Court will be required to resolve whether isolating genes BRCA 1 and BRCA 2 merely describes a law of nature or whether it is “.” As mentioned earlier, and pursuant to Section 101 of the , laws of nature, natural phenomena, and an abstract idea are not patentable.  This provision is one that is seemingly simple to grasp, however, upon further interpretation, becomes complicated and abstract.  Patents sought by individuals who are able to demonstrate that their particular invention involves a of an abstract idea or law of nature are entitled to patent protection.  Therefore, Section 101 patent analysis is oriented towards what constitutes an application.  In Prometheus, patent protection for the diagnostic test that looked for chemicals formed when drugs used to treat gastrointestinal diseases were broken down in the body was  since the test merely recited and applied a law of nature. The future success or failure of Myriad Genetics’ patent may be foreshadowed utilizing the lesson learned from Prometheus, with greater accuracy depending on the degree of alignment between both cases. 

Perspectives on whether the fate of the Prometheus patent foretells a grim tale for  Myriad are rather varied and stratified. lawyers and patent experts believe that the ruling in Prometheus is not easily transferable to the present case since Myriad’s patents are compositions of matter while Prometheus’ were methods of testing. Dr. Robert Cook-Deegan, director of the program on genome ethics, law and policy at Duke University the logic to be different since the present case is about a thing, as opposed to a method.  believe that the ruling in Prometheus is opposed to the rationale used by the appellate court to uphold Myriad’s patents.  Daniel Ravicher of the Public Patent Foundation opined, “the isolation of DNA is a trivial, well-understood step…A unanimous Supreme Court has now undeniably declared that a trivial noninventive transformation” is not sufficient to obtain patent protection.

Irrespective of outcome, both Prometheus and Myriad have generated useful dialogue about the ethical and economic challenges facing the Unites States patent system in an age of biotechnology and the increasing monetization and exploitation of genetics.

Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.

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The Patented Medicines Review Board and its Proposed New Regulations /osgoode/iposgoode/2012/06/27/the-patented-medicines-review-board-and-its-proposed-new-regulations/ Wed, 27 Jun 2012 13:15:26 +0000 http://www.iposgoode.ca/?p=17250 On June 16, 2012, the Canada Gazette, published the proposed new regulations formalizing procedures before the Patented Medicine Prices Review Board (the Board).  These proposed new regulations represent an effort to enhance the efficiency of hearings before the Board through the formal adoption of codified practices and terminology already utilized by the board; the incorporation […]

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On June 16, 2012, the Canada Gazette, the proposed new regulations formalizing procedures before the Patented Medicine Prices Review Board (the Board).  These proposed new regulations represent an effort to enhance the efficiency of hearings before the Board through the formal adoption of codified practices and terminology already utilized by the board; the incorporation of relevant practices used in provincial and federal courts pertaining to expert witnesses and case management; and the amendment of various timelines.

The of the Board is two-fold: Regulatory – to ensure that the prices at which patentees sell medicines in Canada are not excessive; and Reporting – to report to Parliament on the trends in pricing, research and development expenditures of patentees.  Section 96 of the (the Act) empowers the Board, an independent quasi-judicial body, with various rights, privileges and powers parallel to that of a superior court of record.  Consequently, the Board has the capacity to issue remedial orders with respect to excessive pricing of patented medicines, and create general rules for regulating the practice and procedure of Board hearings with the consent of the Governor in Council.

Due to the growth in terms of both complexity and number of hearing, the Board has shifted its focus to its operational priority guaranteeing a transparent, efficient, and fair hearing process. The Board's objectives have catalyzed the proposed new regulations which essentially: codify practices already adopted in recent proceedings; integrate relevant procedures practiced in other judicial and quasi-judicial proceedings; and facilitate case management.  Some include:

  • A requirement that expert witnesses appearing before the Board sign an Expert Witness Declaration form that acknowledges their duty to advance opinion evidence that is fair, objective and impartial;
  • Restrictions on the scope of expert evidence;
  • The placement of a new limit on the number of expert witnesses that are able to be called per party per issue without the permission of the Board;
  • Amendments to aid with the identification and service of documents;
  • Amended timelines for the filing of pleadings;
  • Case management conferencing to be held within 45 days of the issuance of a notice of hearing; and
  • A new requirement that the Board endeavors to issue written reasons for decisions within 180 days of completion of a hearing on the merits.

In order for the proposed rules to be , the regulations would have to be communicated to stakeholders via the Board’s Web site, the quarterly NEWSletter, and the Annual Report. In regards to , as previously mentioned, the Board is an independent quasi-judicial body, with various rights, privileges and powers parallel to that of a superior court of record, and is therefore allowed to monitor the examination of witnesses, the production and inspection of documents and the enforcement of orders.  Furthermore, pursuant to section 99 of the Act, an order of the Board can be made an order of the Federal or superior court of a province and is enforceable in the same manner.

These Rules are advantageous not only to persons appearing before the Board, but also to the public, who has an interest in the Board conducting procedures fairly, transparently and efficiently, in an effort to prevent the excessive pricing of medication.  The formal adoption of the proposed new regulations will incur no additional costs to the industry, public or Government. Seemingly, the formal adoption of these proposed regulations would codify existing practices, whilst streamlining and making court practices more efficient.  It will be interesting to observe the effect that these amendments will have, if any, on the hearing process.

Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.

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Shattering the ‘Glass House’: The Mounting Legal Woes Between ABC and CBS /osgoode/iposgoode/2012/06/15/shattering-the-glass-house-the-mounting-legal-woes-between-abc-and-cbs/ Fri, 15 Jun 2012 04:45:58 +0000 http://www.iposgoode.ca/?p=16996 Life in a Glass House, ABC’s forthcoming reality show that is noticeably reminiscent of CBS’ Big Brother, is poised to air in a number of weeks, irrespective of the vigorous legal efforts on the behalf of CBS to suppress its release. CBS is contending that Life in a Glass House is substantially and strikingly similar […]

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Life in a Glass House, ABC’s forthcoming reality show that is noticeably reminiscent of CBS’ Big Brother, is poised to air in a number of weeks, irrespective of the vigorous on the behalf of CBS to suppress its release.

CBS is that Life in a Glass House is substantially and strikingly similar to its long-running and widely known series entitled Big Brother. Both subject twelve to fourteen individuals to continuous observation, in an isolated house, rife with cameras and microphones, for the purpose of attaining a monetary grand prize. Contestants are required to survive periodic evictions and the last contestant remaining wins. Interactive features enable viewers to participate in the show. Perhaps even more troubling is the fact that Life in a Glass House is being produced by a team of at least 18 former employees of the Big Brother production staff – all of whom were privy to confidential information and trade secrets, and signed broad non-disclosure agreements in association with Big Brother.  In a nutshell, the filed by CBS alleges that ABC is in contravention of its copyright in Big Brother, induced the breach of non-disclosure agreements and misappropriated trade secrets.

The series of legal efforts deployed by CBS commenced with a failed cease and desist order, urging ABC to halt production of the show. More recently, CBS has a temporary restraining order in an attempt to stifle the show’s June 18th release date. In ABC has requested that the motion not be heard until after the premiere of the show, as roughly 140 employees risk termination if the motion succeeds.

Although perspectives on the matter are polarized, history the court’s reluctance towards awarding a monopoly in the idea or format behind various reality television shows.  For instance, a lawsuit filed in 2003 by CBS against ABC – in reference to the uncanny resemblance between I’m a Celebrity, Get Me Out of Here and CBS’ Survivor, in the Court applying copyright analysis to determine that although similar in premise, there was no substantial similarity in the execution of the two shows. David Ginsburg, the executive director of UCLA’s Entertainment and Media Law and Policy Program that the Court’s rendering has made it difficult for reality shows to be deemed substantially similar once various touchstones have been incorporated to its format.  Generic elements that naturally emanate from a particular idea are inherent in the premise of much reality television and are generally not protectable. In the context of the current proceedings, the idea or concept of having contestants residing in a house, wired with cameras and microphones while competing for a prize is a relatively ubiquitous and commonplace touchstone of numerous reality television shows. Therefore, it has become increasingly difficult to copyright such content. In light of this information, ABC released a asserting that the lawsuit is a “a naked attempt by CBS to stifle competition and creativity by claiming that reality techniques that have been developed over many years, on many shows by countless producers, are somehow exclusive to CBS."

Conversely, a may be advanced on the behalf of CBS in the claim that the execution or expression of Life in a Glass House is substantially similar to Big Brother, or that the sequence and arrangement of uncopyrightable ideas rises to the level of a copyrightable sequence. In order to successfully advance this position, CBS must demonstrate that: the technical set-up of a house wired with video and audio feeds; the process of editing and manipulating the 24-hour live feed into a linear narrative; the design and implementation of contestant challenges; and the user interactivity, is either original expression or amounts to a copyrightable sequence.  Although such may not be a simple task to conquer, claims pertaining to the violation of non-disclosure agreements and the release of trade secrets may prove surmountable, if it can be shown that certain elements of Big Brother are not readily ascertainable from merely viewing the show.

ABC and CBS seemingly face a tumultuous legal battle; nonetheless, compelling arguments can be made for both sides and it will be interesting to see if and how this case will affect the copyrightability of reality television.

Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.

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Creativity, Culture and Community: Advancing the ‘Status of the Artist Act’ in Nova Scotia /osgoode/iposgoode/2012/06/02/creativity-culture-and-community-advancing-the-status-of-the-artist-act-in-nova-scotia/ Sat, 02 Jun 2012 14:00:50 +0000 http://www.iposgoode.ca/?p=16596 Ceaseless lobbying on the behalf of Canadian artists frustrated by their ambiguous position in relation to other labourers subsequently culminated in the Federal Government of Canada proclaiming the Status of the Artist Act. The Status of the Artist Act establishes a labor relations regime grounded upon the recognition of an artist as a professional for […]

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Ceaseless lobbying on the behalf of Canadian artists frustrated by their ambiguous position in relation to other labourers subsequently culminated in the Federal Government of Canada proclaiming the .

The Status of the Artist Act establishes a labor relations regime grounded upon the recognition of an artist as a .  Various provincial governments including and have enacted legislation reasonably aligned to that of its Federal counterpart. More recently, Nova Scotia its version of the Status of the Artist Act, which seemingly embodies its unwavering commitment to cultivating vibrant communities, and its recognition of the substantial contribution of artists in attaining such an undertaking.

The legislation, introduced on March 30th 2012, by Communities, Culture and Heritage Minister David Wilson, is a manifestation of the province’s five-point plan for arts and culture announced in February 2011. The calls for the introduction and development of the Status of the Artist Legislation; the establishment of Arts Nova Scotia, an independent body responsible for delineating funds to individual artists; the creation of the Creative Nova Scotia Leadership Council to maintain dialogue with the government and pioneer a strategy for Nova Scotia’s culture sector; the development of a communications outreach plan that enables artists to publicize and market their works; and an interdepartmental committee to organize and coordinate governmental efforts that uphold its commitment to arts and culture development.

Primarily, the will: enable artists’ associations to prescribe levels of compensation for works created and services rendered by artists; promote the fair treatment of artists by the government and articulate the roles and responsibilities of the government to artists; ensure that Nova Scotians have access to artistic training and education; acknowledge the working conditions of artists; maintain the government’s dedication to the rights of artists, including safe working environments and freedom of expression and association; and ensure that the necessary tools  to support Nova Scotian artists and their unique needs are secured by the government.

Currently, the legislation, in conjunction with a host of other action plans has garnered emphatic support from the arts community. contend that finally, legislation recognizes the importance of artists and their role in the enrichment of the social and cultural fabric in Nova Scotia. More specifically, , a member of the legislative assembly for Luneberg and an artist, rose in the house to speak on the legislation and stated that the Bill is an important piece of the professional arts sector that will enable the creative economy to flourish.  She went on to relay a quote by Ron Bourgeois, the Chairman of the Creative Nova Scotia Leadership Council, who asserted that the legislation defines “where I fit in the Nova Scotia fabric. Where yesterday there was nothing, today I feel I am recognized, respected as artist within this government.” Notwithstanding such strides in the evolution policy affecting the status of artists, recognition in the absence of tangible measures will be insufficient in advancing the position of artists in Nova Scotia.

Perhaps Nova Scotia can derive inspiration from and regimes that address the socioeconomic status of artists.  For instance, in Ireland, artists are exempt from paying income tax, while provisions in the Australian Sales Tax Law alleviate creative artists from paying tax on equipment and materials.  In France and Belgium, self-employed artists have dual status for taxation and social benefit purposes.  In the Nordic countries, performing artists are able to garner access to unemployment insurance schemes.  In the Netherlands, the government administers the social assistance program for artists, with funds acquired from matching government money and fees collected from artist unions.  Funds are utilized to provide a weekly minimum wage, holiday allowance, various occupational expenses and health insurance contribution to artists.

The Status of the Artist Act should be approached critically, and with caution. Efforts to effectively ameliorate the status of artists should be deployed swiftly and with genuine concern. As previously stated, recognition and acknowledgement in the absence of tangible solutions will prove futile in remedying issues that face artists. Perhaps a compelling approach is one that addresses the intersectionality and multiplicity of matters affecting artists, and cohesively integrates policy pertaining to economics, social welfare, human rights, education and labour law. Such an approach will ensure the  “”, a phrase coined by Danielle Cliche.

Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.

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Debate Over Hot-Tubbing In Patent Litigation /osgoode/iposgoode/2011/10/04/debateoverhottubbinginpatentlitigation/ Tue, 04 Oct 2011 06:21:27 +0000 http://www.iposgoode.ca/?p=14084 Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in Professor Ikechi Mgbeoji's Patents course, in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice. Concerns surrounding expert testimony before the Courts, primarily the independence of experts, the length of […]

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Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in Professor Ikechi Mgbeoji's Patents course, in Fall 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

Concerns surrounding expert testimony before the Courts, primarily the independence of experts, the length of trials and the ensuing increase in the cost of litigation, have incited amendments to the governing expert witnesses.

Following studies of provincial and international approaches to issues surrounding expert witnesses, the Rules Committee of the Federal Court of Appeal and the Federal Court have amended court rules to incorporate: rules governing pre-hearing expert conferences; processes to streamline the qualification of experts; and a code of conduct to clarify the duties and responsibilities of expert witnesses. Concurrent witness evidence, or hot-tubbing is amongst the list of amendments made to the Federal Court Rules.

is a term utilized to describe the practice of having some or all experts testify as a panel. Expert witnesses in complex, technical trials – such as patent litigation regarding pharmaceuticals, testify on the same issue sworn in together, as opposed to individual testimonies in a witness box. , hot-tubbing may involve a free–flowing forum where a decision-maker leads a panel through the discussion of a specific issue. A more traditional approach allows legal counsel to alternate in the cross-examination of opposing panel witnesses, followed by a rebuttal from his or her own witness. The need to curb partisan experts and the rising costs of litigation are often offered as for the requirement of this practice. Nevertheless, various intellectual property lawyers have contended that such an approach may in fact exacerbate these issues.

of Heenan Blaikie LLP asserts, “situations in which experts are permitted, or in fact required, to confer together or to question each other naturally lead to situations which favour experts who are loud, aggressive, partisan, and maybe even a bully.” Litigants may strategically seek experts with assertive personalities, and a flare for advocacy to drown out less domineering experts. As a result, an expert witness may be unable to express certain points that may have otherwise been made during more regimented, traditional examination and cross-examination. Furthermore, since witnesses are able to be questioned by judges, the separation of the role of the judge as neutral decision-maker may become blurred.

Irrespective of such skepticism, frustration over the current adversarial arrangement of expert witnesses has enabled hot-tubbing to garner support, due to its ability to synthesize often conflicting expert evidence. echoes this position in the following statement: "the courtroom, with all its formalities and evidentiary rules, is a poor schoolhouse, and 'duelling experts' may make bad teachers". As a solution he asserts, "a court should be able to require opposing experts to testify on the same panel and to be subject to questioning in the presence of each other, with the right to question each other in the presence of the trier of fact". In Eli Lilly & Co v Apotex, goes on to state that "the use of hot-tubbing would have been particularly useful" in the patent infringement case. Experts also seem to be fond of hot-tubbing since it permits a fleshing out of issues in a seemingly less adversarial way.

In Canada, we have yet to witness the unfolding of hot-tubbing in patent litigation. However, since expert witnesses play such a pivotal role in these highly technical and complex patent cases, this amendment will vastly alter the ways whereby such litigation pans out.

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Unlocked: Opposition Surrounding Former Bill C-32's "Digital Lock” Provisions /osgoode/iposgoode/2011/03/30/gridlocked-opposition-surrounding-bill-c-32s-digital-lock-provisions/ Wed, 30 Mar 2011 21:00:31 +0000 http://www.iposgoode.ca/?p=11357 Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice. Former Bill C-32’s introduction of provisions regarding “digital locks” or “technological […]

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Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

Former introduction of provisions regarding “digital locks” or “technological protection measures” (TPMs) provoked an array of oppositional responses ranging from wholehearted disapproval to cautioned acceptance.  The proposed TPM provisions prohibited users from circumventing or hacking around digital locks, while providing legal remedies for rights holders of circumvented locks. This post will discuss arguments both for and against these provisions.

It has been argued that in order for Canada to be in compliance with the  and the , digital locks require protection. Canada is a to these treaties, but has yet ratify them, hence the proposed amendments to the Copyright Act in the now dead Bill C-32, which attempted to bring Canada in compliance with the WIPO requirements.  Key among the reforms that would need to be made are the enactment of an anti-circumvention law that provides for rights holders using digital locks to protect content and for the altering or removal of rights management information and subsequent distribution and copying.  Such provisions are necessary for Canada to fulfill its obligations to the international community.

It was argued that “” copyright legislation that provided exceptions for private purposes would not run contrary to the WIPO treaties. Critics of the digital lock provisions argued that the language of the expressly allowed for signatory countries to extend limitations and exceptions in their national laws in such a way that is appropriate in the digital network environment. Therefore, allowing for such an exception satisfied Canada’s obligation to the international community, while reconciling the frustrations of consumers, who want to use their legally-obtained products, with that of rights holders, who want adequate protections for their work.  Other legal scholars refuted this interpretation of the treaties.

of Bill C-32’s digital lock provisions acknowledged the government’s attempt, in a number of areas, to attain some semblance of balance between the copyright holder and the consumer. However, critics argued that reforms surrounding fair dealing rights under Bill C-32 were undermined if a digital lock was used. Under Bill C-32, certain digital content would not be able to be backed up, moved to a different device, or transcoded to an alternative format, if doing so would require the breaking of the lock placed on it.  It was contended that a compromise provision that satisfied compliance with international treaties, protected digital locks, and preserved the copyright balance, should pioneer reforms since the prohibition of circumvention would harm those possessing rights to access their media.

Furthermore, it was also contended that the provision would prevent consumers from using devices of their when attempting to use locked content.  Digital Rights Management (DRM) and digital locks restrict media to an approved platform. Therefore, consumers who purchase content afflicted with DRM are forced to use/purchase the approved platform or bypass these provisions, thus breaking the law.  If the proposed Bill had passed and it had become illegal to circumvent digital locks in an attempt to play a DVD purchased legally overseas or to listen to music downloaded from iTunes on an MP3 player, there could have been less respect for the law and a greater pull towards pirated content without locks.

Proponents of Bill-C32 contended that such concerns were not necessary since the were amended to deter a rights holder from bringing forth an infringement action for private use.  Section 46 of Bill C-32 altered the statutory damages provisions in order to differentiate infringements for commercial purposes (with damages ranging from $500 to $20,000 per circumvented lock) from infringements for non-commercial purposes (with damages ranging from $100 to $5,000 per circumvented lock). Infringements for private purposes were made less punitive.  Furthermore, under section 41.1(3) of Bill C-32, statutory damages would not be available to rights holders suing for the breaking of digital locks done so for private purposes. Damages are to put a rights holder in the position they would have been in had the infringement not occurred; and in the case of private infringements (e.g., back-up copies) these damages are generally seen to be negligible. It was rationalized that without the prospect of attaining statutory damages, the likelihood of a rights holder attempting to enforce a violation would be greatly diminished since the expense of recovering damages would greatly exceed the amount of actual damages.

For the third time in six years, Canada’s latest attempt to reform its outdated copyright law has been rendered futile with the fall of the Harper government.  Critics may silently rejoice; however, Canadian copyright law is in dire need of reform.  While technology has revolutionalized the ways we consume and disseminate media, Canadian copyright law has remained stagnant and misaligned with the aspirations of numerous signatories of international treaties. Perhaps Canada’s next attempt at updating its copyright legislation will take into account the widely voiced concerns over Bill C-32.

The post Unlocked: Opposition Surrounding Former Bill C-32's "Digital Lock” Provisions appeared first on IPOsgoode.

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