Law Commons^™

Bio-Cultural Knowledge And The Challenges Of Intellectual Property Rights Regimes For African Development, Ikechi Mgbeoji

Dalhousie Law Journal

African states have, since the colonial encounter, been part of the international regimes on intellectual property rights. Formal accession to various treaties and conventions on intellectual property rights instruments should not be mistaken for actual internalization of the policies, structures and norms required for reaping the promised benefits of participation in such regimes. There is ample evidence showing that most African states do not have the requisite structures for fruitful engagement with international intellectual property rights regimes. Until this anomaly is rectified, African states' engagement with international intellectual property regimes will remain structurally flawed and inimical to the human development …

The Progress Of Science And The Useful Arts: Misadventures In Canadian Law On Patent-Eligible Subject Matter, Ken Bousfield

Canadian Journal of Law and Technology

Patent-Eligible Subject-Matter in Canada

The law of patent-eligible subject-matter in Canada has become badly muddled. There has been repeated confusion of subject-matter issues with non-subject matter issues such as novelty, obviousness, and utility. There has also been repeated confusion within the following group of issues pertaining to whether subject-matter is patent-eligible: whether a claim is for a mere idea or aggregation or for a patentable invention; whether claimed subject-matter falls within science and the useful arts; and whether claimed subject-matter falls within the statutory classes listed in the definition of “invention”. Echoes of older UK-based cases, relating to statutory provisions …

Harvesting The "Forbidden Fruit" Of Biotechnology Research: Genetic Engineering, International Law And The Patentability Of Higher Life Forms In Canada, Eugene C. Lim

Canadian Journal of Law and Technology

As the frontiers of science are constantly redefined by the emergence of new technology, patent law often has to struggle to keep pace with the changing conception of what constitutes a protectable “invention”. A key challenge facing patent law in the age of biotechnology lies in ascertaining the extent to which genetically engineered life forms should be protected. A major concern relates to whether such life forms should be excluded from patentability on grounds of ordre public, ethics and morality.

This article critically explores the extent to which patent law in Canada protects this “forbidden fruit” of biotechnological innovation, and …

A Delicate Balance: Defining The Line Between Open Civil Proceedings And The Protection Of Children In The Online Digital Era, Courtney Retter, Shaheen Shariff

Canadian Journal of Law and Technology

He thought of the telescreen with its never-sleeping ear. They could spy upon you night and day, but if you kept your head you could still outwit them. [. . .] They could lay bare in the utmost detail everything that you had done or said or thought; but the inner heart, whose workings were mysterious even to yourself, remained impregnable.

— George Orwell, 1984

On Thursday September 27, 2012, a few months after our paper was written, the Supreme Court of Canada solidified the rights of children victimized by cyberbullying in the landmark decision of AB (Litigation Guardian of) …

Understanding The Internet As A Human Right, Michael Karanicolas

Canadian Journal of Law and Technology

Around the world, fundamental human rights have undergone a dramatic conceptual shift as a result of the spread of the Internet. The right to freedom of expression, once largely limited to printing, has exploded in a digital world that provides users with an unprecedented megaphone to broadcast their views. The right to political participation and the right to free assembly have similarly been reborn in an age of instant communication, allowing activists to mobilise hundreds of thousands of followers with a single email, text or tweet. Although these are the most notable examples, the Internet has also had a transformative …

The Limitations Of Regulatory Oversight On Online Video, Jennifer Simpson

Canadian Journal of Law and Technology

Discussion in this paper focuses on the factors, attributes, and elements of telecom and broadcast regulation in Canada. Part I of this study briefly outlines the history of online video regulation in Canada to date. In Part II speculation as to how online video might be regulated, based on prior decisions of the CRTC, is presented. Part III considers the challenges of applying the Broadcasting Act to new media entities in order to create a regulatory framework for online video. Part IV looks at judicial decisions related to broadcast law that may be used to define the nature of the …

Intellectual Property, Traditional Knowledge, And Biodiversity In The Global Economy: The Potential Of Geographical Indications For Protecting Traditional Knowledge-Based Agricultural Products, Teshager W. Dagne

PhD Dissertations

The relationship between international regimes regulating intellectual property, traditional knowledge and biodiversity has received much attention in recent times. Of the many complex and controversial issues in contemporary international legal discourse on this matter, the protection of traditional knowledge (TK) stands out as a significant challenge. Choices abound in the search for modalities to regulate rights to use and control TK systems and their underlying biodiversity. In recent times, the protection of geographical indications (GIs) has emerged as an option for protecting TK. Despite the considerable enthusiasm over it, there is appreciable research dearth on how far and in what …

Study On The Implementation And Effect In Member States' Laws Of Directive 2001/29/Ec On The Harmonisation Of Certain Aspects Of Copyright And Related Rights In The Information Society: Final Report, Lucie Guibault, Guido Westkamp, Thomas Rieber-Mohn

Reports & Public Policy Documents

This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is 'to assess the role that the Directive has played …

Open Connectivity, Open Data: Two Dimensions Of The Freedom To Seek, Receive And Impart Information In The New Zealand Bill Of Rights, Jonathon Penney

Articles, Book Chapters, & Popular Press

Recently, ideas about "rights" to Internet access or connectivity have received growing recognition from governments, legal institutions, and other political actors in several countries, including New Zealand Despite this emerging political and legal recognition, there are few, if any, systematic studies exploring such ideas. This paper aims to change this. First, it offers a theoretical exploration of the idea of a "right" to Internet access, including the diferent versions of such rights talk. Secondly, it examines whether there is any legal basis for such rights claims in New Zealand and ultimately argues that section 14 of the New Zealand Bill …

Clash Of Cultures - Integrating Copyright And Consumer Law, Lucie Guibault, Natali Helberger

Articles, Book Chapters, & Popular Press

Purpose – This article seeks to deal with the fundamental conceptual differences between consumer law and copyright law that render the application of consumer law to copyright-law related conflicts difficult. Design/methodology/approach – Following a normative approach to copyright and consumer law based on an analysis of the relevant literature and case law, the article examines in which situations consumers encounter obstacles when trying to rely on consumer law to invoke ‘‘privileges’’ granted to them under copyright law, such as the private copying exception. Findings – Research shows that most difficulties lie in the fundamental conceptual differences between consumer law and …

Regulating The Cloud: A Comparative Analysis Of The Current And Proposed Privacy Frameworks In Canada And The European Union, David Krebs

Canadian Journal of Law and Technology

Cloud computing is a growing phenomenon and promises greater efficiency and reduced-cost computing. However, some of the basic technological and business-related features of the Cloud are at odds with personal data protection laws. Canada and the European Union share similar core values related to privacy/data protection, and both regions aim to increase their competitiveness regarding cloud computing. Having these two similarities in mind, this paper explores the current legal and stakeholder landscape in Canada and the European Union with respect to cloud computing, data protection and how adoption of the model can be advanced. The analysis shows that neither of …

In Defence Of A Defence - A Demonstrable Legitimate And Non-Infringing Purpose As A Full Defence To Anti-Circumvention Legislation, Andrew Yolles

Canadian Journal of Law and Technology

In this essay, I will argue that making a demonstrable lawful and non-infringing purpose a full defence to copyright infringement by circumvention of a TPM addresses many of the concerns raised by the currently proposed legislation, while avoiding the pitfalls of directly linking anti-circumvention laws with actual copyright infringement. As the ratification of the WIPO Internet treaties is the foremost concern for this legislation, I will begin with a discussion as to how this model can successfully implement the treaties’ anti-circumvention provisions where the Bill C-60 model may have failed. I will then explain why this model strikes a better …

Book Review: R.L. Campbell, Legal Issues In Electronic Commerce, Robert J. Currie

Canadian Journal of Law and Technology

The juncture of “law and technology” from a legal education point of view is an interesting one. Successfully engaging with law and technology requires stu- dents (of all ages and stripes) to absorb at least some of the substance of many discrete areas of law, as well as to assess how technology creates nexuses between them and challenges some of their underlying notions. As electronic commerce increasingly becomes the bread and butter of many law practices, this need comes into sharper relief — one has to grasp a large variety of fundamentals and simultaneously generate some insight as to where …

Unlocking Health Canada’S Cache Of Trade Secrets: Mandatory Disclosure Of Clinical Trial Results, Matthew Herder

Articles, Book Chapters, & Popular Press

Health Canada should publicly disclose information about the safety and efficacy of pharmaceuticals, biologics and medical devices, and should especially disclose the designs and results of clinical trials. This disclosure is necessary to preserve public trust, address weaknesses in the evidence base, and protect Canadians from harm.

A prime example of the need for this disclosure involves selective serotonin reuptake inhibitors (SSRIs). Health Canada did not authorize SSRIs for sale to people younger than 19 years because of data from clinical trials showing risks of harm, including self-harm, associated with use of SSRIs in that age group. But Health Canada …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

Articles, Book Chapters, & Popular Press

The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

The Press Exception In The Dutch Copyright Act, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

The Evolution Of Consumer Privacy Law: How Privacy By Design Can Benefit From Insights In Commercial Law And Standardization, Muharem Kianieff

Canadian Journal of Law and Technology

This article considers the effectiveness of the present privacy regimes in North America as it relates to the protection of consumer information that is gathered in the ordinary course of business. It is argued that the present moves towards a Privacy by Design approach shows great potential and can gain valuable insights from established doctrines in commercial and consumer protection law. Moreover, it is proposed that the aims of such an approach can be achieved by deeming personal information and behavioral data to be the property of the individual that it pertains to. It is then suggested that a regulatory …

International And Canadian Law Rules Applicable To Cyber Attacks By State And Non-State Actors, Matthew E. Castel

Canadian Journal of Law and Technology

This essay, which contains a broad ranging overview of several important issues raised by the recent number of cyber attacks in Canada and elsewhere, begins with a definition of cyberspace and cyber war. It is followed by a brief survey of some cyber attacks that have occurred in Canada and elsewhere in recent years. The first part addresses the question whether present rules of international law applicable to armed attacks using kinetic weapons apply to the wide notion of cyber attacks by a state actor against the government and critical civilian infrastructures of another state and concludes that they do. …

Book Review: William F. Patry, How To Fix Copyright, Graham Reynolds

Canadian Journal of Law and Technology

In How to Fix Copyright, William F. Patry, one of America’s leading experts on copyright, calls for a “top-to-bottom, systemic overhaul” of copyright laws. For a Canadian readership in the midst of our own process of copyright reform, such a call to action is both timely and relevant.