Intellectual Property Law Commons^™

Regime For Use Of Out-Of-Commerce Works, Lucie Guibault

Articles, Book Chapters, & Popular Press

A presentation of the new provisions in European Directive 2019/790 on Copyright in the Digital Single Market on the licensing and use of out-of-commerce works by cultural heritage institutions.

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Christophe Geiger, Joao Pedro Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault, Michael W. Carroll

Articles, Book Chapters, & Popular Press

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

From Discovery To Delivery: Public Sector Development Of The Rvsv-Zebov Ebola Vaccine, Matthew Herder, Janice Graham, Richard Gold

Articles, Book Chapters, & Popular Press

The discovery and development of the Ebola rVSV-ZEBOV vaccine challenge the common assumption that the research and development for innovative therapeutic products and vaccines is best carried out by the private sector. Using internal government documents obtained through an access to information request, we analyze the development of rVSV-ZEBOV by researchers at Canada’s National Microbiology Laboratory beyond its patenting and licensing to a biotech company in the United States in 2010. According to government documentation, the company failed to make any progress toward a phase 1 clinical trial until after the WHO Public Health Emergency of International Concern freed substantial …

Unscrewing The Future: The Right To Repair And The Circumvention Of Software Tpms In The Eu, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this …

Ethical Hacking By Alana Maurushat, Laura Ellyson

Canadian Journal of Law and Technology

Book Review of Ethical Hacking by Alana Maurushat (Ottawa: University of Ottawa Press, 2019).

Law And The “Sharing Economy”: Regulating Online Market Platforms By Derek Mckee, Finn Makela & Teresa Scassa, John D. Gregory

Canadian Journal of Law and Technology

No abstract provided.

Digital Evidence: A Practitioner’S Handbook By Gerald Chan & Susan Magotiaux, Robert J. Currie

Canadian Journal of Law and Technology

No abstract provided.

Intellectual Property And Culture, Lucie Guibault

Articles, Book Chapters, & Popular Press

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Back To The Future: Reviving The Use Of Video Link Evidence In Canadian Criminal Courts, Helena Gluzman

Canadian Journal of Law and Technology

Section 714.1 of the Criminal Code of Canada allows for witnesses and victims to testify remotely via video link, within Canada. The legal test embedded within this provision — “appropriate in all the circumstances” — has led to inconsistent application across the country. Some jurists have embraced the flexibility provided by the video link process. Others have expressed reluctance, articulating the position that in-court testimony is to be preferred and permitting the use of video link evidence only in exceptional circumstances. R. v. S.D.L. is the first treatment of s. 714.1 by an appellate court. The Nova Scotia Court of …

Social Media Threats: Examining The Canadian Criminal Law Response, Benjamin Perrin

Canadian Journal of Law and Technology

This article begins by discussing the legislative history, essential elements, and purpose of the threats offence in s. 264.1(1) of the Criminal Code. It then analyzes major reported Canadian judicial decisions dealing with social media threats, based on the five themes identified above. Finally, this article concludes by highlighting the implications and limitations of this study, as well as areas for future research.

The Missing Hyperlink — An Empirical Study: Can Canadian Laws Effectively Protect Consumers Purchasing Online?, Mariella Montplaisir

Canadian Journal of Law and Technology

Canadian consumer protection legislation applicable to online transactions generally works by a two-pronged method: first, private international law rules ensure that in most cases, consumers can sue in their home province under that province’s law; and, second, a wide range of substantive obligations are imposed on merchants, and failure to comply with these obligations provides consumers with a right of cancellation. This study considers the private international law rules applicable to online consumer contracts, and discusses the unique jurisdictional challenges presented by online transactions. This study also provides an overview of Canadian legislation applicable to online consumer transactions, and examines …

Government Surveillance Accountability: The Failures Of Contemporary Canadian Interception Reports, Christopher Parsons, Adam Molnar

Canadian Journal of Law and Technology

Real time electronic government surveillance is recognized as amongst the most intrusive types of government activity upon private citizens’ lives. There are usually stringent warranting practices that must be met prior to law enforcement or security agencies engaging in such domestic surveillance. In Canada, federal and provincial governments must report annually on these practices when they are conducted by law enforcement or the Canadian Security Intelligence Service, disclosing how often such warrants are sought and granted, the types of crimes such surveillance is directed towards, and the efficacy of such surveillance in being used as evidence and securing convictions.

This …

Public Authority Liability And The Regulation Of Nanotechnology: A European Perspective, Nina Natalia Baranowska

Canadian Journal of Law and Technology

This paper argues that in certain circumstances public authorities should be liable for regulating nanotechnology. Nanotechnology is an emerging field of technology that enables to control shape and size of various structures, devices and systems at nanometer scale on which one nanometer is equal to one-billionth of a meter. In spite of being a nascent field of science and technology, its scope of application – in the food, pharmaceuticals, cosmetics, construction, textile, electronics, and agricultural industries – is expanding rapidly. The risks associated to nanotechnology, however, and its long-term consequences are still largely unknown, particularly in regards to its health …

The Aleph Bet: Debating Metaphors For Information, Data Handling And The Right To Be Forgotten, Chris Prince, Micheal Vonn, Lex Gill

Canadian Journal of Law and Technology

Court rulings in the European Union (EU) have now established that individuals may seek erasure of personal information posted online. Typically, this involves de-indexing a website from search results, and in some instances the removal of content from primary sources sites. This has, in turn, led to debate around both the logistics and the unintended consequences of removing information online, and subsequent discussions have grappled with a range of images and metaphors to map that new legal reality. This essay surveys that debate, the imagery it employs, and the various logics associated with these metaphors.

Towards An Effective Regime Against Online Copyright Infringement In India, Ashwin Ramakrishnan

LLM Theses

With Internet usage on the rise, it is important for India to establish an effective regulatory regime to combat piracy and mass copyright infringement online. This thesis argues that, in the face of unique legal and cultural challenges specific to India, present laws in the country have failed to do so. Unless and until these challenges are met it will be difficult to have an effective mechanism that deals with online copyright infringement. Countries like the United States, Canada, Ireland, and France have all adopted different regulatory models. However, this thesis argues that each not only have significant limitations on …

The Theoretical Case Against Criminalized Copyright Infringement In Canada, Maria Dugas

Articles, Book Chapters, & Popular Press

Criminalized copyright infringement has existed in Canada for close to a century. It has continued to expand in scope and severity since its first appeared in the Copyright Act, 1921. As Canada approaches 2017’s scheduled review of the Copyright Act, the time has come to ask whether the criminalization of copyright and its enforcement is theoretically justifiable. Yet, Canadian scholarship on criminalized copyright infringement is particularly scarce; there is a noteworthy gap in the existing literature wherein no one has systematically argued against criminalized copyright infringement from a theoretical perspective. This thesis aims to fill that gap, setting out a …

Individual Licensing And Consumer Protection, Lucie Guibault

Articles, Book Chapters, & Popular Press

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

The Dark Web: Some Thoughts For An Educated Debate, Vanessa Henri

Canadian Journal of Law and Technology

The ‘‘dark web” is a part of cyberspace that is only accessible through an anonymity software, such as The Onion Router. This encrypted network has prompted important legal challenges. As jurisprudence develops, many factors are at risk of inhibiting users’ right to privacy. Misunderstandings of the dark web’s functioning or myths regarding its veil of anonymity has justified invasive criminal investigations that has threatened users’ right to remain anonymous online. This article discusses these challenges while analyzing current legal developments in the United States and Canada.

Has The Era Of Privacy Come To An End?, Avner Levin

Canadian Journal of Law and Technology

This keynote address to the 2016 McGill Law Graduate Conference provides a brief history of privacy before discussing contemporary challenges in the form of increasing technological ability to create, store and process personal information, and powerful advocacy against privacy from both government and the private sector. In order for privacy to survive, a new set of personal information protection principles is required and new ways of enforcing these principles must be developed, which will leverage the power of technology to develop hybrid regulatory/ technological solutions, such as Google’s content removal tool.

Cyber Operations And The Humanization Of International Humanitarian Law: Problems And Prospects, Giacomo Biggio

Canadian Journal of Law and Technology

The aim of International Humanitarian Law (‘‘IHL”) is to regulate the conduct of hostilities while, at the same time, balancing the two overarching concepts of military necessity and humanity. While the principle of military necessity allows a party to a conflict to exercise any amount of armed violence which is necessary for the accomplishment of a military purpose, the principle of humanity aims at minimizing the amount of physical violence caused to combatants and the civilian population. From the late 19th century onwards the principle of humanity has progressively eroded the domain of military necessity, influencing the creation and interpretation …

A Critical Assessment On The Extraterritorial Application Of Human Rights Treaties To Transnational Cyber Surveillance, Wanshu Cong

Canadian Journal of Law and Technology

In this essay, I question the appropriateness of applying the substantive requirements of lawful domestic surveillance developed from international human rights treaties and relevant case law to transnational cyber surveillance. And I argue in the negative. Therefore, for the purpose of this essay, I would not delve into the highly debatable issue of what counts as ‘‘control” in cyber surveillance and which standard of control triggers a state’s jurisdiction. Instead, this essay assumes that a control test was established. In the following section, I shall examine the substantive requirements for states restricting fundamental freedoms drawn on from current human rights …

Third-Party Services As Potential Sources For Law Enforcement Procurement Of Genomic Data, Katherine Kwong

Canadian Journal of Law and Technology

This paper examines two cases studies: Ancestry.com’s experience with law enforcement use of its genetic databases, and 23andMe’s responses to requests for users’ genomic data. Analyzing the responses to law enforcement requests by the two of the largest providers of third-party genomic services provides insight into the struggles third-party genomic services are likely to face and possible future directions for companies facing this type of law enforcement request.

War In The Expanse: The Metaphysics Of Cyberspace, Roy Balleste

Canadian Journal of Law and Technology

No abstract provided.

The Law Of Cyber Warfare: Restrictions, Opportunities And Loopholes, Nicholas Tsagourias

Canadian Journal of Law and Technology

The article considers the applicability of existing international rules on the use of force to cyber attacks and assesses their effectiveness. The author’s conclusion is that the current regime on the use of force fails to capture the particularities of cyber attacks and for this reason he makes some tentative proposals for enhancing security in this area.

Do They Want To Regulate Online Profiling?, Laura Garcia Vargas

Canadian Journal of Law and Technology

Online profiling or behavioural tracking is the process by which private companies track and gather data about users’ activities in online platforms. The data collected by all the companies is aggregated with the purpose of creating a comprehensive profile about users. Since at least 15 years ago, there have been several attempts to regulate online profiling in order to reduce its privacy implications. In general, these regulations have tried to limit the way the information is used, the type of data that is collected, and impose or suggest the security standards that the companies should take to protect it.

This …

Do Androids Dream Of Bad News?, Heidi Liu

Canadian Journal of Law and Technology

Breaking bad news is one of the toughest things to do in any field dealing with client care. As automation and technology increasingly interweave with human experience, there is growing concern about whether automated agents (‘‘AAs”) would be adequate to perform such a complex emotional act. In this paper, I draw from the literature in psychology and computer science to understand how individuals might react to automated agents (AAs) and address some of the strengths and limitations of AAs. I raise several legal and empirical issues that future designers and users of AAs must consider, including disclosure of and liability …

A Whole New Meaning To Having Our Head In The Clouds: Voice Recognition Technology, The Transmission Of Our Oral Communications To The Cloud And The Ability Of Canadian Law To Protect Us From The Dangers It Presents, Sarit K. Mizrahi

Canadian Journal of Law and Technology

Voice recognition technology is now included in modern devices as a matter of course, being used in anything from our cellular telephones, to our televisions, and even the toys of our children. While we may voluntarily interact with some of our devices using this technology, such as conversing with Siri on our iPhones, many of us remain unaware as to the dangerous implications of using voice recognition technology.

Its ability to record some of our most personal conversations allows private companies to eavesdrop on us in an unprecedented manner and amass highly sensitive information about our lives that would have …

The Lawful Access Fallacy: Voluntary Warrantless Disclosures, Customer Privacy, And Government Requests For Subscriber Information, Matthew P. Ponsford

Canadian Journal of Law and Technology

This paper explores the recent legal, political, privacy, and communications developments surrounding warrantless government requests for basic subscriber information. I assert the current practice remains marred in secrecy and therefore poses a significant threat to Canadian civil liberties and privacy rights.

Can You Hear Me Now? Conceptions Of Privacy In Section 8, Chris Sewrattan

Canadian Journal of Law and Technology

This article will examine the different conceptions of privacy that are present in the jurisprudence of s. 8 of the Canadian Charter of Rights and Freedoms. Section 8 guarantees that everyone has the right against unreasonable search and seizure. As a constitutional right, the protection covers the privacy relationship between the state and the individual. It confers privacy over information for which there exists a reasonable expectation of privacy. The article will analyze a taxonomy of four privacy conceptions present in the literature and discuss their presence in s. 8 case law. It will then examine two criticisms that arise …