Intellectual Property Law Commons^™

The Future Of Data Protection Enforcement In Canada: Lessons From The Gdpr, Guilda Rostama, Teresa Scassa

Canadian Journal of Law and Technology

Imagine a not-too-distant scenario in which a private sector organization in Canada is investigated by the Privacy Commissioner of Canada jointly with the Commissioners of Quebec, British Columbia (‘‘BC”), and Alberta in relation to complaints that it shared massive quantities of personal data with third parties contrary to its stated practices in its privacy policies. Imagine also that each of the commissioners is empowered under newly amended data protection legislation to issue substantial Administrative Monetary Penalties (‘‘AMPs”). If each of the commissioners finds that its respective laws were breached, should the organization be subject to four different AMPs, or just …

Slouching Toward Regulation: Assessing Bill 88 As A Solution For Workplace Surveillance Harms, Danielle E. Thompson, Adam Molnar

Canadian Journal of Law and Technology

Employee monitoring applications (‘‘EMAs”) are proliferating in Canada and provide employers with sophisticated surveillance tools for the monitoring of workers (e.g., on-device video surveillance, browser activity, and email monitoring). In response to concerns about these increasingly invasive surveillance practices, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022, which requires all employers with 25 or more workers to have a written policy stating whether and how they electronically monitor their employees. Bill 88 marks a more explict attempt to regulate workplace surveillance in a modern digital context in Canada; however; however, an analysis of the Bill’s …

When Your Boss Is An Algorithm: Preserving Canadian Employment Standards In The Digital Economy, Fife Ogunde

Canadian Journal of Law and Technology

The platform or ‘‘gig” economy is a rapidly growing economy in Canada. Between 2005 and 2016, the share of gig workers among all workers in Canada rose from 5.5% to 8.2%. These include independent contractors, select freelancers and platform workers. In 2018, 28% of Canadians aged 18 and older reported making money through online platforms. Research by Payments Canada in 2021 showed gig workers as representing more than one in 10 Canadian adults with more than one in three Canadian businesses employing gig workers. As the share of platform workers in the economy has grown, so has the discussion regarding …

The Challenge Designing Intermediary Liability Laws, Emily Laidlaw

Canadian Journal of Law and Technology

The ideal framework for intermediary liability has vexed policymakers since the internet’s commercialization. The quest has taken on a frenzied pace in recent years with intense scrutiny of who they are, what they do and what they should be responsible for. Over the years a theme has emerged from my discussions about intermediaries, and its subset platforms, and it prompts me to explore it as the focus of this article. My question is simple: why is it so difficult for law and policymakers to agree on a regulatory framework?

This article tackles two parts of the regulatory challenge that are …

The Need For Cyber Resilience Of Space Assets: Law And Policy Considerations Of Ensuring Cybersecurity In Outer Space, Daniella Febbraro

Canadian Journal of Law and Technology

In 2018, NASA’s Jet Propulsion Laboratory was the subject of a data breach where over 500 megabytes of data from a major mission system was stolen by hackers. This attack affected NASA’s Deep Space Network, prompting the United States Johnson Space Center to disconnect the International Space Station from the affected gateway due to fears that mission systems could become compromised. NASA has acknowledged that its vast online presence, which includes thousands of publicly accessible datasets, offers a large potential target for cybercriminals. The 2018 incident was one of many, with NASA experiencing more than 6000 cyberattacks from 2017-2021 alone. …

Copyright And Political Campaigns: How Much Control Should A Copyright Owner Have Over The Use Of Their Musical Work In A Political Campaign, Jared Zim

University of Miami Business Law Review

Music often tells a powerful story, driving emotional connections. As a result, politicians rely on music in every aspect of their political campaigns from political advertisements to campaign rallies. There is a long history of such political uses of music, often without an artist’s permission. While most disputes over such uses have ended in either settlement or the campaign stopping use of the infringed work, former President Donald Trump’s unauthorized use of music on the campaign trail sparked countless artist complaints. The complaining musicians feared any implication that they endorsed Trump and did not want any association with a political …

Making Small Claims Work For Copyright Law: Why The Decisions Of An Unprecedented Judicial Authority Should Hold Precedential Weight, Emma C. Johnson

University of Miami Business Law Review

Individual creators increasingly struggle to protect their copyrights, especially in the digital age. It is already often difficult for many creators to make a living, and more often than not, they cannot afford to pay thousands in court and legal fees to bring a copyright infringement claim. With the passing of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) in December of 2020, Congress and the United States Copyright Office formed a federal small claims court for creators in such positions to be able to enforce their copyrights.

The CASE Act seeks to give small copyright …

Defining Open Scholarly Infrastructure: A Review Of Relevant Literature, Saman Goudarzi, Richard Dunks

Copyright, Fair Use, Scholarly Communication, etc.

This report outlines IOI’s initial attempt towards a framework for understanding open infrastructure for research and scholarship. For this report, we examined a body of literature that includes works across the fields of anthropology, scholarly communications, international development studies, science and technology studies, and infrastructure studies. ....

This review also makes clear that the distinguishing feature between open infrastructure and its commercially-run and -operated counterparts is the fact that its value lies not just in its ability to support productive functions but how it fosters positive and desirable social practices and values. It is insufficient to simply assert certain values …

Conquering Copyright: Why Copyright Needs To Be Modernized Based On Practical Illustrations Of Inconsistent Copyright Precedent, Saipranay Vellala

Akron Law Review

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may …

Parallel Play: The Simultaneous Professional Responsibility Campaigns Against Unethical Ip Practitioners By The United States And China, Mark A. Cohen

Akron Law Review

“Parallel Play: The Simultaneous Professional Responsibility Campaigns Against IP Practitioners by the United States and China” describes efforts by the United States Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many of these bad faith filings have originated from China. In both countries, these bad faith activities have imposed significant burdens on IP agencies, the courts, and legitimate rights holders. The campaign is likely the largest professional responsibility campaign undertaken by an IP agency, and the largest cross-border IP disciplinary …

Under Nifty Light: Trademark Considerations For The New Digital World, Willajeanne F. Mclean

Akron Law Review

Three cases involving non-fungible tokens are grabbing the attention of fashionistas, intellectual property mavens, and metaverse cognoscenti alike. All three are cases of first impression, despite involving trademark infringement claims. All are considered to be cases that will determine whether old trademark principles apply to new technology, and each has compelling and competing arguments that may militate against findings of infringement. While most commentators have focused on the questions surrounding alleged infringement, very few have discussed the challenges of applying remedies, such as injunctions, traditionally used in trademark infringement cases.

This article considers trademark law and examines it in a …

Visualizing Copyright Law: Lessons From Conceptual Artists, Sandra M. Aistars

Akron Law Review

Copyright law does not require an object to be “art” to be protectable, except in one respect: copyright protection does not extend to useful articles. As a result, courts engage in analysis strikingly similar to that of conceptual artists visualizing art. Copyright law has an uneasy relationship with conceptual art because the Copyright Act also requires works to be original and fixed in a tangible medium. Requirements that have led some to conclude that the kind of art where “the idea or concept is the most important aspect of the work” should not be protectable by copyright.

This article examines …

Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon

Akron Law Review

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …

“Tiktok Told Me I Have Adhd”: Regulatory Outlook For The Telehealth Revolution, Kaitlin Campanini

Washington Journal of Law, Technology & Arts

Telehealth’s expansion during the COVID-19 pandemic has drastically changed the approach to healthcare in the United States. This is particularly true in the behavioral health sector where several behavioral telehealth companies have emerged to treat Attention-Deficit/Hyperactivity Disorder (“ADHD”). These companies utilize a direct-to-consumer (“DTC”) model with a virtual platform that connects subscribing patients to medical providers who can treat them for ADHD. Although this telemedicine model emphasizes convenience and efficiency, the reality is that those benefits come at the cost of patient care. The federal regulations promulgated in the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 to curtail …

Genetic Technologies: Patent Protections & The Case For Technology Transfer, Smitha Gundavajhala

Washington Journal of Law, Technology & Arts

Genetic technologies range in scope from agricultural to medical applications. Most recently, during the COVID-19 pandemic, companies like Moderna developed and patented genetic technologies for diagnostic and therapeutic purposes, like the mRNA vaccine. However, patent protection provides these companies with a monopoly that ultimately limits domestic production of generic versions, thus limiting access to life-saving diagnostics and therapeutics. When a company located in one country files a patent for recognition in another country, it effectively places a hold on production of any technologies covered by that patent’s reach, whether that patent is enforced or not. However, the TRIPS Agreement, the …

What You Don’T Know Will Hurt You: Fighting The Privacy Paradox By Designing For Privacy And Enforcing Protective Technology, Perla Khattar

Washington Journal of Law, Technology & Arts

The persistence of the privacy paradox is proof that current industry regulation is insufficient to protect consumer’s privacy. Although consumer choice is essential, we argue that it should not be the main pillar of modern data privacy legislation. This article argues that legislation should aim to protect consumer’s personal data in the first place, while also giving internet users the choice to opt-in to the processing of their information. Ideally, privacy by design principles would be mandated by law, making privacy an essential component of the architecture of every tech-product and service.

Consensus’S Consolidation Conundrum, James J. Bernstein

Washington Journal of Law, Technology & Arts

In Part I, this piece will highlight the history, basis, and justifications for blockchain systems over the present version of the internet. This section helps to frame where consensus mechanisms may undermine Web3’s core premise. Part II will describe the fundamentals of consensus mechanisms. Thereafter, in Part III this piece will demonstrate the pitfalls of each system - and why proof of stake is not necessarily better at fighting off some of the risks associated with consensus mechanisms. Finally, in Part IV this article offers an architectural solution: introducing a series of new protocols which would increase the cost of …

Toward A Canadian Right To Repair: Opportunities And Challenges, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This Article draws a picture of the past, present, and future of the right to repair in Canada. It looks to early successes toward automotive right to repair, challenges faced in proposing consumer protection reforms in Ontario and Quebec, and the utility of a proposed copyright “Technological Protection Measure (TPM) exception” allowing circumvention for repair purposes. In light of right to repair priorities identified by Canada’s current federal government, the Article identifies a selection of reforms that could achieve these goals. Such reforms include creating regulations under the Copyright Act governing the use and implementation of TPMs, passing an exception …

Problems In The Copyright Industry: Making The Case For A Corrected Case Act, Megan Grantham

Et Cetera

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act, which established a small claims court system within the United States Copyright Office, called the Copyright Claims Board. This new board hears cases of copyright violations involving damages of $30,000 or less. President Donald Trump signed the bill into law on December 27, 2020, and the board officially began hearing claims in June 2022. This was meant to benefit smaller creators who do not have the means to pursue their copyright claims in costly federal court. While small or independent creators should indeed have access to a means of …

Cardozo Aelj Author Interview Series: Scott Semaya, Class Of 2023, Scott Semaya

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Scott Semaya discusses his Note, Name, Image and Likeness: Giving College Athletes the Clearest Guidance to Best Profit off Their NIL, which was published in Volume 41, Issue 2.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on June 6, 2023. The original post can be accessed via the Archived Link button above.

A Proposal For A Model Indigenous Intellectual Property Protectiontribal Code (Miipptc), Prof. Tomasz G. Smolinski

Tribal Law Journal

The appropriation of Native American cultural and intellectual property has become commonplace in the United States. At the same time, mainstream, Western cultural/intellectual property laws are inadequate to properly protect traditional Indigenous knowledge. To address this problem, scholars have begun to advocate for a three-tiered system, in which, in addition to national and international legal protections, tribal laws would play a fundamental role in the fight against cultural appropriation. Alas, few Native American tribes explicitly address cultural and/or intellectual property rights in any of their legal instruments. This is especially true with respect to intangible intellectual property, such as traditional …

Game On—Copyrighted Tattoos In Video Games As Fair Use, Emilie Smith

Marquette Law Review

With its fact-intensive inquiries and limited bright-line rules, copyright law is known for its ambiguity, and courts often differ in their interpretations of various doctrines. The fair use doctrine is no different, and was in fact designed to grant courts discretion in making their determinations, all with the aim of maintaining the true purpose of the copyright law. Recent technologies and popularized forms of art only complicate things, adding rougher terrain to an already confusing landscape.

The Open Access Journals Toolkit, Alex Mendonça, Andrea Chiarelli, Andy Byers, Andy Nobes, Chris Hartgerink, Clarissa França Dias Carneiro, Elle Malcolmson, Ivonne Lijano, Katie Foxall, Lucia Loffreda, Rebecca Wojturska, Solange Santos, Susan Murray, Tom Olijhoek, Wendy Patterson

Copyright, Fair Use, Scholarly Communication, etc.

Contents: Getting Started 5 • Scope, aims and focus 5 • Choosing a title for your journal 6 • Types of content accepted 7 • Kick-off and ongoing funding 11 • Disciplinary considerations 16 • Journal setup checklist and timeline 18 • Running a journal 20 • Article selection criteria 20 • Publication frequency and journal issues 23 • Attracting authors 25 • Peer review and quality assurance 27 • The costs of running an online open access journal 31 • Running a journal in a local or regional language 34 • Flipping a journal to open access 36 • …

Fast-Tracks And Prizes: A Multi-Pronged Approach To Incentivizing Green Technology Innovation, Benjamin Desch

Washington Law Review

Faced with the ever-worsening climate crisis, many nations—including the United States—have increasingly recognized the urgent need for rapid advancements in green, clean, and sustainable technologies. Patents play a fundamental role in incentivizing technological innovation, but the traditional patent process is too slow to match the urgency of the climate crisis. At the same time, the marketplace significantly undervalues green technology patents because they confer benefits to third parties not involved in the transaction (referred to as “positive externalities”). To address the urgency issue, patent “fast-track” programs have been implemented to speed up the patent application review process. To mitigate the …

The Nil Glass Ceiling, Tan Boston

University of Richmond Law Review

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s …

United States Department Of Energy Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (June 2023)

Copyright, Fair Use, Scholarly Communication, etc.

DOE response to OSTP memo, 2022: Public Access Plan (June 2023)

United States Department Of Agriculture Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (June 2023)

Copyright, Fair Use, Scholarly Communication, etc.

USDA response to OSTP memo, 2022: Public Access Plan (June 2023)

U.S Department Of Energy Public Access Plan, U.S Department Of Energy

Copyright, Fair Use, Scholarly Communication, etc.

This document, the Public Access Plan (the Plan) for the Department of Energy (DOE or Department), including the National Nuclear Security Administration, presents the Department of Energy’s plan for increasing access to the results of the research and development (R&D) it supports in response to the August 25, 2022, Office of Science and Technology Policy (OSTP) Memorandum, “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research”1 and to the previous February 22, 2013, OSTP Memorandum, “Increasing Access to the Results of Federally Funded Scientific Research.”2 This Plan, which supplants the Department’s July 2014 Public Access Plan, was developed by …

When Patent Litigators Become Neurosurgeons, Katie Chang

Washington Law Review Online

Patent law is where the law meets the most cutting-edge and innovative technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones applying for patents. But when it comes to granting and enforcing patent rights, the job falls onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical field. Bridging the gap between technological expertise and legal expertise has been a pain point in patent litigation, one that Congress has tried to rectify for many years. This Comment primarily examines one of Congress’s solutions—the Patent Pilot Program—and …

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …