Unlike a traditional moot, the Copyright Policy Moot was designed so that students could gain experience in drafting public policy and conducting a policy briefing. Rather than preparing a factum, the students engaged in a different sort of persuasive writing: the “Memorandum to Cabinet.” And instead of arguing before judges, the students defended their policy proposals in front of senior policymakers, seeking to persuade them that their proposals should become law. The Moot was timed to coincide with the s. 92 parliamentary review of the Copyright Act, which allowed for the mooters to not just compete in the academic arena, but also to have a real chance to shape Canadian copyright policy.

Osgoode sent three teams to the moot, comprised of , , , Will Chalmers, Cameron McMaster, Ankita Nayar, and Amanda Rosenstock. , a lawyer at Paliare Roland LLP, spent the winter semester coaching the teams and provided input in the development of their Memoranda to Cabinet. The proposals submitted by the Osgoode teams concerned a broad range of topics: an innovative method for compensating entrepreneurial musical artists; a sui generis copyright for the programmers of AI-generated works; and using the Copyright Board’s tariff scheme to provide fair compensation for authors when AI utilizes their copyright protected works.

At the Moot, 16 teams from��Université de Montréal, University of Ottawa, McGill University, Osgoode Hall Law School, and the University of Toronto convened in the morning at Fauteux Hall at the University of Ottawa. After opening remarks, the preliminary rounds commenced, with each team presenting their policy proposal to panels made up of three policy experts. During the 20-minute presentations, the panel would interrupt the competitors to ask questions. In answering the questions, the mooters had to be poised and had to understand their subject matter well in order to persuade the panels that their proposal deserved the attention of lawmakers.

After the preliminary rounds, the top four teams (including Osgoode’s team of Alexandria Chun and Will Chalmers) were announced. Those teams were to participate in the finals at the Grand Oral. In the final rounds, the competitors were challenged with tough questions from Nathalie Théberge, Director General, Creative Marketplace and Innovation, Canadian Heritage, and Mark Schaan, Director General, Marketplace Framework Policy, Innovation, Science and Economic Development Canada. In the end, the team of Ashley Seely,��Jamaloddin Hakimi, and��Roxanne Alam from University of Ottawa was successful in winning the top prize for best policy briefing. The full results of the competition can be found .

The Osgoode teams dominated the written submission component of the competition. The team of Alexandria Chun and Will Chalmers won the prize for the top Memorandum to Cabinet, while, Cameron McMaster, Ankita Nayar and Amanda Rosenstock won the second-place prize. Osgoode was also the only school to have teams place in the final-four for both the written component and the briefing component of the competition.

The Copyright Policy Moot was an incredible experience. It allowed us to see the role lawyers have in shaping Canadian legal policies and provided an opportunity for us to practice our oral advocacy skills. Furthermore, we had the chance to explore Ottawa and to see the Parliament buildings and the Supreme Court. Between the sightseeing, midnight pool parties at the hotel, and the rush of defending our own copyright policy proposals, this experience has certainly been a highlight of our legal education.

(L-R: Ankita Nayar, Cameron McMaster, Roger Angus, Amanda Rosenstock, Stephen Cooley, Alexandria Chun, Will Chalmers)

William Chalmers is a JD Candidate at Osgoode Hall Law School

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Osgoode Hall Law School was one of a select 28 international teams to receive a coveted invitation to compete in the at the University of Oxford in England, a remarkable achievement considering that 66 teams applied from around the globe. Invitations were based on the top facta submitted over the fall term. The moot took place over three days from March 15^th – 17^th, 2018. Representing Osgoode were Will Chalmers, Jasmine Godfrey and John Wu. As the premier international IP moot, the event attracted some of the top international IP academics and practitioners to spend a few days in Oxford as judges.

The team faced an intensive two days of mooting during the preliminary rounds, with two moots each day, once as the appellant and once as the respondent. On the first day of the preliminary rounds, Osgoode faced the University of West Bengal (India) and Boston University (U.S). After a tiring first day of preliminary rounds, a cocktail reception re-energized the teams, giving students the opportunity to network with panelists, as well as converse with fellow mooters from all over the world. The team sported clever t-shirts with the phrase “I Am Sexy and I Know It!” (referencing a line in the moot problem), quickly winning Osgoode popularity amongst the other teams.

(L-R: Will Chalmers, Jasmine Godfrey, Dr. Emily Hudson, Aviv Gaon, John Wu, Jennifer Davidson)

The second day of the preliminary rounds consisted of another two rounds of moots, one against the University of Swinburne (Australia) and the other against the University of Cambridge (UK). Unlike most of the moots Osgoode participates in, the diversity of teams faced provided Osgoode students with the opportunity to observe styles of oral advocacy from almost every corner of the globe. Not only did the backgrounds of the mooters differ, but each judge’s background (for example, whether an academic or a practitioner) differed, and a team's success depended on their ability to read the judges’ styles and respond accordingly in answers. The Osgoode team performed well in the preliminary rounds, winning their first three moots, with the only loss coming narrowly to the ultimate finalists, Cambridge.

The preliminary rounds were concluded that night by a panel, or as Oxford likes to call it, a “Converszione”. Mr. Justice Arnold, the author of Performers’ Rights, led the discussion with his thoughts on IP protection for non-human performers, particularly robots. Despite recognizing the economic reasons in support of protecting original AI produced work, he ultimately believes that the law quite clearly only protects human performances.

Dr. Manuel Berdoy, a biologist, spoke about the evolutionary factors leading to the dances and displays of exotic birds. He was followed by IP professor, Dr. Johanna Gibson, who proposed a new paradigm for IP inspired by the creative expression of dogs, shifting the focus away from an exclusionary property model, and towards a model based on relations between holders and users, producers and consumers. The panel was concluded by a presentation by Dr. Tom Smith, a famed chemist and pyrotechnics expert, who shared a behind-the-scenes look at the setup of a world-class fireworks display.

The panel was followed by a reception and dinner at the beautiful 15^th century dining hall at Pembroke College (once frequented by JRR Tolkien and Sir William Blackstone when they were students at Oxford!), where mooters, observers, clerks and judges were encouraged to engage with the panel topics and pose questions to the panelists. After dinner, the quarter-finalists were announced, with two Canadian teams advancing among the top-scoring eight teams: University of Ottawa and the winners of the 2017 Fox Moot, the University of Alberta.

On the final day—once the quarter-finals and semi-finals had taken place—students gathered in the Pichette Auditorium to listen to the finalists, the University of Cambridge and the University of New South Whales. Students had the unique opportunity to observe key questions posed to mooters by leading judges: Lord Justice Kitchin, the Honourable Mr. Justice Birss, and Mr. Justice Carr. The audience patiently waited for the judges to deliver the final decision on the case. The win was ultimately given to the deserving University of New South Whales.

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Cockatoos and Fireworks Displays: The Moot Problem

Most of us own smartphones, and few would imagine that taking a recording of a Canada Day fireworks display and subsequently producing our own display inspired by the original would constitute copyright infringement. Nonetheless, the appellant in the moot problem Arbus v Harris thought otherwise, and 28 teams from law schools all over the world congregated at beautiful Pembroke College to discuss whether the reproduction of such a display can constitute infringement. The teams also argued whether there can be copyright in a cockatoo dance performance despite the inherently chaotic nature of such a show, in addition to whether someone can be a joint author of a software, despite possessing no coding knowledge.

The was designed to deal with all these emerging IP issues, in addition to the more fantastical question of whether animals can be considered “individuals” for the purpose of creating IP (recently raised in the case of , the “monkey selfie” case in the U.S.). Despite the seriousness of the issues discussed in the problem, the writer of the moot problem—Dr. Emily Hudson, Chair of the Organising Committee and co-ordinator for the moot—clearly has a sense of humour. The Cockatoo Performance in the case featured cockatoos dancing to the song “I am Sexy and I Know It’ by LMFAO, and the crowd chuckled upon finding out on the first day that the parties in the problem were based off characters from the movie Horrible Bosses.

Given that the case takes place in the fictional court of “Erewhon” (a semi-palindrome of “Nowhere”), teams were welcome to bring in case law and legislation from any jurisdiction. The Osgoode team benefitted from understanding how IP law differs across jurisdictions, an appreciation that we gained through our own research in drafting the facta. Given that the moot problem left issues intentionally vague, the Osgoode team heard a variety of different approaches to the problem during the oral rounds, such as how fixation of the performance can occur without the author’s permission, or how the fireworks display that the respondent created can be considered an adaption of the software.

Key Learnings

The team was supported every step of the way by our fabulous coaches, which included and , from Cassels Brock & Blackwell LLP, , from Deeth Williams Wall LLP, , PhD candidate at Osgoode Hall, and renowned IP law professor . Our coaches whipped the team into shape and ensured that we were ready to face the rigorous standards demanded by the Moot. These coaches were incredibly generous in offering hours of their time week after week, to ensure that we could answer a host of possible questions from judges as seamlessly as possible—with proper Oxford etiquette—which was crucial to the team’s success. Along the way, the team received invaluable feedback from mooting before top practitioners and judges, including the Honourable Mr. Marshall Rothstein, QC. and the Honourable Mr. Roger Hughes, QC. The team is grateful for the support of Prof. Shelley Kierstead, Director of Mooting, Prof. Giuseppina D’Agostino, Founder & Director of IP Osgoode, and Maria Frasca, Administrative Assistant of Mooting and Lawyering Competitions, without which participation at the moot would not have been possible. Of course, we are grateful for the help of fellow mooters at Osgoode, who listened to our submissions and actively asked us questions.

(L-R: The Honourable Mr. Roger Hughes QC, Jasmine Godfrey, John Wu, Will Chalmers, Jennifer Davidson)

This was a unique competition, bringing together people from all over the world to the ancient town of Oxford, united by their shared passion for IP law and litigation. Observing the dedication of the judges, many of whom return to Oxford year after year to judge the moot, was truly inspiring to the Osgoode team, and this year’s team will surely continue their involvement by helping prepare future teams. The Osgoode team left Oxford not only with a new international IP network, but also a greater understanding of IP law internationally. The Oxford IP Moot has undoubtedly been one of the highlights of our legal education, and all three of us are immensely grateful to have been given this opportunity.

(L-R: Prof. David Vaver, Will Chalmers, John Wu, Jasmine Godfrey, Aviv Gaon, Jennifer Davidson).

William Chalmers is a JD Candidate at Osgoode Hall Law School.�� Jasmine Godfrey is a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business. John Wu is�� JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.

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The plaintiffs, the Chapniks, own an architect-designed, multi-million dollar home in the Forest Hill neighbourhood of Toronto. In 2013, the defendants bought a house nearby and promptly began renovations. According to the plaintiffs, the renovated house looked “strikingly similar” to their home and the Chapniks commenced an infringement action.

Architectural works may be protected by copyright as an “artistic work”.[2] However, in asserting infringement claims regarding housing designs, homeowners (Chapniks included), face two significant obstacles. They are required to prove: (1) ownership in the copyright; and (2) that the defendants reproduced a substantial part of the expression.

Ownership

In order to succeed in an infringement action, the plaintiff must be the owner of the copyright. In Canada, the author of the work is the first owner.[3] With respect to architectural works, it is usually the architect who is the first owner of the copyright that subsists in the design of a house.[4] In the case of Hay v Sloan, the court stated, “[f]or copyright purposes, the owner of the architectural work of art is the author of the plans … [n]or does copyright pass to the owner of the building.”[5]

Similarly, in Chancellor v Oasis, the court concluded that it was the architect who was the owner of the copyright and not the owner of the building. The owner’s contribution was “limited to suggesting certain design elements in a general way”, while it was the architectural firm that implemented these suggestions into the design.[6]

Therefore, had the Chapniks’ case gone to trial, unless the architect assigned to them the copyright, it seems unlikely that the Chapniks could have succeeded since they are not the owners.

Reproducing a Substantial Part

Copyright provides the owner with the sole right to reproduce the work in a substantial part.[7] Copying is not necessarily infringement if what has been copied is not a substantial part of the original work.[8]

The Chapniks would likely have established copying. According to the Article, the trim, stonework and the shape of door were similar. Also, the defendants’ contractors allegedly were instructed to copy the architectural work. Finally, there is a causal connection with the original work since the two homes are located only 850 metres apart.[9]

The more difficult aspect of the claim is proving that the defendants reproduced a substantial part of the expression. It is trite law that copyright protects only expression and not ideas. However, when answering the question of whether copying is substantial, the assessor must take a holistic approach having regard to the quality and quantity of what was copied.[10] Excluding unprotectable ideas at the outset prevents this holistic approach.[11]

Upon the facts and photos provided in the Article, it is difficult to come to a firm conclusion on whether a substantial part of the expression was copied. When considering the alleged similarities between the two houses, it seems that some aspects are very common elements of architecture such as the trim colour and stonework. In Rains v Molea, the Court considered whether a painting of a crumpled piece of paper was infringed by a different artist also painting crumpled paper. The court found that although there were many similarities, these were common techniques used by artists and not capable of copyright protection.[12]

Several friends of the Chapniks had allegedly called to inform them of the copycat house. This would have bolstered their claim since when considering substantiality, “the perspective of a lay person in the intended audience for the works at issue is a useful one”.[13] Similarly, even though there are many differences between the houses, differences in the number of rooms and areas may not be enough to prevent judges from concluding that the substance of the architectural work has been copied.[14]

Conclusion

A homeowner asserting copyright in the design of their house as an architectural work will face difficulties due to issues of ownership and substantial reproduction. This appears to be a laudable result since approximately 84% of the Article’s readers believe that copyright should not subsist in the “look of your house”.[15]

William Chalmers��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 blog on a topic of their choice.

[1] Vjosa Isai, “This Forest Hill couple sued their neighbours for $2.5 million over a house they claim was renovated to look like theirs”, The Toronto Star (October 5, 2017), online: < > [Article].

[2] Copyright Act, RSC 1985, c C-42, s 2 [Copyright Act].

[3] Copyright Act, supra note 1, s 13(1).

[4] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (Toronto: Irwin Law Inc., 2011) at 138.

[5] Hay v Sloan (1957), 12 DLR (2d) 397 at para 7.

[6] Chancellor Management Inc. v Oasis Homes Ltd, 2002 ABQB 500 at para 65.

[7] Copyright Act, supra note 1, s 3(1).

[8] Ladbroke (Football), Ltd. v William Hill (Football), Ltd., [1964] 1 All ER 465 at 481,��per��Lord Pearce (HL).

[9] Gondos v Hardy (1982), 38 OR (2d) 555 at para 33 (ONSC).

[10] Cinar Corporation v Robinson, 2013 SCC 73 at para 26 [Cinar].

[11] Cinar, supra note 10 at para 36.

[12] Rains v Molea, 2013 ONSC 5016 at para 30.

[13] Cinar, supra note 10 at para 50.

[14] Kaffka v Mountain Side Developments Ltd. (1982), 62 CPR (2d) 157 at para 15 (BCSC).

[15] Article, supra note 1.

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The most exciting part of my internship was learning the business of a pharmaceutical company. Like all heavily regulated industries, there are many complexities involved in bringing a product to market. In the pharmaceutical context, the product must be approved by Health Canada, the style of marketing is closely monitored and the organizations that pay for the product are not usually the patient. All of these complexities create a fascinating industry to explore. Through meeting with individuals in different roles and learning about their contributions to AstraZeneca, I learned about all of these considerations.

In addition to learning about the business, my time at AstraZeneca allowed me to explore the many different aspects of IP protection for pharmaceuticals. Patents are not the only avenue of IP protection for a pharmaceutical company. I had the experience to research the law on the requirements to obtain a 6-month pediatric extension for data protection. I completed various research projects involving the PM(NOC) Regulations. Additionally, I wrote a memo for people without legal training explaining the requirements and application process for obtaining a Certificate of Supplementary Protection.

Some my most rewarding work was contributing to policy position documents prepared by (IMC), an organization that represents innovative pharmaceutical companies in Canada, including AstraZeneca. During my internship, IMC wrote a consultation submission in response to Health Canada’s proposed expansion of the definition of “identical medicinal ingredient”. This change would make it easier for generic manufacturers to file Abbreviated New Drug Submissions (ANDS), which allows the generic manufacturer to refer to the safety and efficacy data of the innovator manufacturer. I had the opportunity to research the Food and Drug Regulations, propose new arguments and provide feedback on IMC’s submissions. I also provided a similar contribution to IMC’s submission regarding changes to the Patented Medicines Prices Review Board.

My experience at AstraZeneca shaped my views on the innovative pharmaceutical industry as a whole. It is no secret that many people distrust the pharmaceutical industry that enjoys large profits by selling products that are necessary for survival. However, I found that AstraZeneca is a company filled with hard-working, smart people who are dedicated to providing life-saving medicines to the public. The entire culture of the company is fueled on innovation. Everyone is excited to hear about data from new clinical trials involving an AstraZeneca product that will make a real difference in somebody’s life. I felt honoured to be a small part of the company when during a town hall, the Executive Team showed a video of an interviewed patient who had received an AstraZeneca product for free during his involvement in an . The AstraZeneca product had saved his life.

I am incredibly thankful to the Legal Team at AstraZeneca Canada. They have been unbelievable resources for me and I cannot express everything that I have learned from them. They are amazing practitioners and wonderful people. I look forward to continuing to learn from them in the future.

William Chalmers��is 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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