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The  (IRAP) and the  (IPIC) have partnered to offer the  program for Canadian small and medium-sized enterprises (“SMEs”). IPilogue readers may have seen ’s&�Բ�����; of another CIC program, , which provides funding for a similar purpose through a different government channel. That article outlined the motivation behind these types of programs and summed up that  Canadian SMEs often lack access to the means to protect intellectual property (IP) and highlighted a clear economic need for innovative Canadian businesses to improve their IP commercialization.

NRC IRAP, CIC, and IPIC

The NRC IRAP provides a range of innovation support services for Canadian SMEs. The program offers funding, advisory services, and networking opportunities to help SMEs undertake research and development (“R&D”) and to commercialize, and improve their competitiveness in domestic and global markets. IRAP also provides support for technology adoption, productivity improvement, and business expansion. On February 16, 2023, the Government of Canada announced that NRC IRAP will be integrated into the  (CIC).

The CIC will be a new, operationally independent organization solely dedicated to supporting business R&D across all regions and all sectors of the economy. It is a federal initiative that will be  that aims to “play an important role in building a stronger and more innovative Canadian economy for generations to come.” The CIC will include an umbrella of programs, including both IP Assist and ElevateIP, to support the development and exploitation of IP.

IPIC is Canada’s professional association of patent agents, trademark agents and lawyers practicing in all areas of intellectual property (“IP”) law and is comprised of over 1700 members.  is to match SMEs with IPIC members who practice in their specific industry. The IP professional will help SMEs better understand the key aspects of IP and how it can support their business goals.

The IP Assist Program

There are three levels to the IP Assist Program — levels 1, 2 and 3 (L1, L2, L3, respectively). Each level brings :L1 – up to $1k, L2 – up to $20k, L3 – up to $20k+), as well as increasing engagement with an IP professional matched to the SME:

The L1 IP Awareness is a one-to-one IP awareness session during which an IP professional will provide industry-specific IP information and guidance to an SME. Engagement at L1 provides IP professionals with an opportunity to connect, support and guide innovative Canadian SME to help them achieve their business goals. Engagements with SMEs will take, on average, up to 3 hours and include an IP awareness presentation followed by Q&As.

The L2 IP Strategy relates to the IRAP SME’s specific technology space, aligns with the IRAP SMEs business objectives, and provides IRAP SMEs with specific prioritized IP actions. The IP Strategy must be informed by key relevant information relating to the technology and competitor landscapes relevant to the IRAP SMEs.

The L3 IP Implementation relates to detailed IP asset assessments, such as IP audits, trademark clearance searches, prior art searches and analysis, advice on branding strategy, legal analysis of IP landscaping, patentability analysis, licensing strategy formulation, and other activities. However, some patent and trademark preparation services and filing fees may not be covered.

Conclusion

Canada’s investment in the CIC indicates that there is an increased focus on innovation as a driver of economic growth. There is also a clear aim through programs like IP Assist and ElevateIP to ensure that IP generated by innovative SMEs in Canada are carefully strategized for and well-protected. Hopefully, this increases Canadian presence in innovation and brings greater investment in R&D into Canada.

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In March 2022, the Canadian Intellectual Property Office (“CIPO”)  its first artificial intelligence (AI)-authored copyright registration of a painting co-created by the AI tool, RAGHAV Painting App (“RAGHAV”), and the IP lawyer who created RAGHAV, Ankit Sahni. RAGHAV is the first non-human “author” of a copyrighted work. However, Canadian courts  that “[c]learly a human author is required to create an original work for copyright purposes” (para 88). Though the AI tool is a co-author with a human, the registration suggests that both RAGHAV and Ankit Sahni can constitute an author under the copyright regime and  amongst Canadian artists. Though the landscape in Canada is still unclear, the US Copyright Office (“Office”)  a clarification on March 16, 2023, about its practices for examining and registering works that contain material generated by artificial intelligence (AI) technology.

The Human Authorship Requirement

The Office  that the term “author,” used in both the US Constitution and the Copyright Act, excludes non-humans. To qualify as a work of ‘authorship,’ a work must be created by a human being and works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author are not registrable. This threshold reflects the Canadian copyright regime,. The author  significant original expression to the work that is  to be characterized as a purely mechanical exercise.

The US Copyright Office’s Approach to AI-Generated Work

The Office provided important  on assessing the protectable elements of AI-generated works. It begins by distinguishing whether the ‘work’ is one of human authorship, with the AI tool merely being an assisting instrument, or whether the protectable elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were conceived and executed not by man but by a machine.

If the machine produced the expressive elements of the work, it is not copyrightable. This guidance is critical for  surrounding Chat-GPT, where the AI tool receives a prompt from the user, and the user does not exercise ultimate creative control of the output. The Office provided an  where a user instructs an AI tool to “write a poem about copyright law in the style of William Shakespeare”. Given that the user contributes little to no expressive elements to the AI-generated output, the output is not a product of human authorship or protected under the US Copyright Act.

However, the Office also  that, in some cases, AI-generated works might contain sufficient human-authored elements to warrant copyright protection. This may apply in cases where the human selects or arranges the AI-generated elements or modifies the AI-generated material to a degree where it constitutes original expression. The analysis seeks to determine whether a human had ultimate creative control over the expression and formed the traditional elements of authorship.

This guidance is in response to a recent review by the Office of a  titled “Zarya of the Dawn” containing human-authored elements combined with AI-generated images. While the Office  that the author, Kristina Kashtanova, owned the work’s text and the selection, coordination, and arrangement of the work’s written and visual elements, copyright protection did not extend to the images generated by the AI tool, Midjourney. Though Kashtanova edited the Midjourney images, the Office held that the creativity supplied did not constitute authorship.

How will this apply in Canada?

Given the registration of RAGHAV as an author under Canadian copyright law last year, it remains to be seen whether CIPO will follow a similar assessment as the US Office and revisit the decision to register an AI-generated work as a work of joint authorship. However,  question whether moral rights, which are not part of the US regime, will extend to AI authors and if AI authorship will alter the copyright term of the last living author’s death plus 70 years. The increasing traction of AI warrants similar guidance from CIPO regarding the status of AI authorship under Canadian copyright law.

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On November 14 2022, the United States Court of Appeals for the Ninth Circuit ruled in &�Բ�����;(“Jiaxing”) that foreign parties to a trademark infringement complaint can be served by trademark owners within the U.S. because of . Statutory interpretation of s.1051(e) in this case provides a new way to serve foreign defendants via the Director of the United States Patent & Trademark Office (“USPTO”).  Specifically, Jiaxing provides that a foreign defendant may be served if they have filed an application for a conflicting trademark at the USPTO. This mitigates the traditional temporal, financial, and logistical challenges associated with preventing trademark infringement by foreign companies.

The Los Angeles-based &�Բ�����;(“San Antonio”) is known for their Stella Rosa brand that they have produced under the trademarks  since 1998. They , a Chinese company, for registering the mark “RIBOLI” for tands, containers, cocktail shakers, dishware, and other kitchen products. Jiaxing registered “RIBOLI” in 2018 for clothing and shoes and in 2020 for kitchen products. Accordingly, San Antonio filed a complaint for trademark infringement, trademark dilution, and false designation of origin. They are seeking an injunction against Jiaxing from using the “RIBOLI” mark, and an order to prohibit Jiaxing’s registrations.

The current route to service of foreign defendants is the Hague Convention, but San Antonio sought a faster and inexpensive way to serve Jiaxing. They did so under  which allows U.S. residents to serve the foreign defendant’s O agent or the USPTO director in “proceedings” that affect the mark. The provision states that if the trademark applicant is not in the U.S., they can designate a person in the U.S. who may be served on their behalf regarding the marks; and if that person is not found then the USPTO director may be served. 

Jurisprudence conflicts as to whether s.1051(e) is limited to USPTO proceedings or includes civil lawsuits. As such, the  that held the provision only applies to administrative proceedings. The Ninth Circuit reversed this by interpreting that the words “proceedings affecting a trademark” are broad enough to include civil litigation. Since , the provision must encompass serving process for disputes in district court. The Court held that the wording only requires that it’s plain and ordinary meaning be taken. Moreover, since the Lanham Act grants courts the power to affect trademarks in other ways, s.1051(e)’s use of the word “process” must apply to court proceedings. Further, the word , and thus it would have been  if it were not meant to also include civil proceedings.

Serving foreign defendants through s.1051(e)  as it governs service amongst foreign countries whereas s.1051(e) governs service within the U.S without international transmittal of documents; which means it .

Foreign infringers are increasingly popular and  on marketplaces that verify IP ownership, such as Amazon. The decision is significant, in that it may act as a deterrent — it warns foreign companies that an application at the USPTO is all that is needed to be served a U.S. lawsuit. The Court’s adoption of the plain and ordinary meaning is akin to the starting point of statutory interpretation in this context in Canada —  as adopted in Rizzo and Bell ExpressVu. This points to an expectation of similar results in Canadian courts, wherein a purposive analysis would be adopted to assess the ability of domestic trademark owners to serve foreign infringers.

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Every year on January 1, works protected under copyright law enter into the public domain due to their copyright protection expiring. Thus, as a new year approaches, those in the field of copyright look to see which works will expire at the end of the year. As the world entered January 2023, many excitedly anticipated that Disney’s copyright protection of Mickey Mouse in the United States (US) would expire at the end of 2023, allowing Mickey Mouse to . This means that  reproduced, adapted, published, publicly performed, and publicly displayed by anyone in the United States without infringing upon Disney’s copyright.

As a general rule in the U.S., for works created after January 1, 1978,  for the life of the author plus 70 years. However, for works created before January 1, 1978, the duration of copyright protection depends on several factors as set out by  in the United States. Mickey Mouse  in the US in 1928 with the film “Steamboat Willie,” so its copyright protection term was dictated by several factors outlined in chapter 3.Additionally, the expiration of the copyright term only applies to the original version of Mickey Mouse displayed in Steamboat Willie; later versions of Mickey Mouse will still be protected by copyright. This original version of Mickey Mouse is a black and white rat-like depiction with a long snout and black eyes, whereas later versions of Mickey Mouse include the version of Mickey with his signature red shorts and white gloves.  

Copyright law in the US has evolved many times in part as a result of Disney lobbying for copyright term extension. Originally, the Mickey Mouse copyright was supposed to expire in 1983 because when Mickey Mouse was first debuted to the public in 1928, copyright law only protected works for 56 years. However, in 1976 Congress passed the  which extended the copyright term to 50 years after the death of the author or 75 years after the death of the author if the author was hired by an employer to create the work. As a result, the Mickey Mouse copyright was then set to expire at the end of 2003.

Starting in 1990, Disney pushed hard for an extension of copyright protections. This resulted in the  which extended copyright protection to 70 years after the death of the author. This extension is why Mickey Mouse’s copyright protection is set to expire at the end of 2023. The extreme lobbying from Disney to extend copyright protections earned the 1998 act the nickname of the “Mickey Mouse &�Բ�����;������.”

Although the original Mickey Mouse’s copyright protection will expire at the end of 2023, Disney will still be able to protect the Mickey Mouse brand through trademark law. Mickey Mouse is  as Disney’s property because . Trademark protection can theoretically last forever if Disney can continually show that Mickey Mouse is associated with its company.  Disney will likely be able to continually show an association with Mickey Mouse. In 2007, Walt Disney Animation Studios  to incorporate the original version of Mickey Mouse. Therefore, although someone may use the original version of Mickey Mouse in a work, they are not able to use this version of Mickey Mouse for any branding purposes or any purpose that would cause consumers to be confused about the source of the Mickey Mouse product. These intersections between trademark and copyright law may stop Mickey from strolling into public use for the coming years.

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Kevin Keller is General Counsel at Super, a Series B startup with business verticals in travel, fintech and commerce. Before Super, Keller worked at many notable technological companies, such as Facebook, Microsoft, Instacart and Amazon. He is a first-generation college graduate who obtained his Bachelor’s Degree in Electrical and Electronics Engineering from Brigham Young University and JD from New �첥��Ƶ School of Law. Keller generously offered his time to the IPilogue to discuss his experiences to inspire law students interested in supporting startup companies.

How has your background as a first-generation college graduate influenced your approach to your legal career?

Those of us who are first-generation graduates can fall into one or two groups; some may be overly cautious and conservative with their approach because they’ve gone so far, learned so much, secured the job, and obtained the education. They have already taken so much risk, going outside every expectation, that turning down a solid and more predictable path is one step too far. Then there’s a group of people who will take every chance because they have nothing to lose - you get a lot of entrepreneurs that are first-generation.

I started my career a little more conservative. But, as I went further along, I got more comfortable with risks and decided that I could lean on my own skills and experiences. Taking those risks has, by and large, led to greater outcomes for me and my career, but it can be hard to do as a first generation.

What’s the story behind how you became one of the founding members of InSITE, one of the world's first technology incubators/launchpads?

I realized mid-way through law school that there was a part of me that was entrepreneurial.

I shared this feeling with Alex Cohen from Columbia Law, and we decided that if something didn’t exist that gave us the opportunity, we would have to create it. We went to both the law and business schools of our schools and put up posters claiming that we were starting an elite group, with venture capitalists and the hottest startups in the city. We had none of that, but we decided that’s what we were going to have. We eventually got Fred Wilson on board and got some law firms to provide us with space and funding. It came together, partially through force of will because we wanted to create something that didn’t exist.

Oftentimes, when I’m looking at resumes during a hiring process, I look for whether in absence of something, [the applicant] created it - if they were entrepreneurial in some fashion.

You spent 11 years at Amazon and were the first attorney hired by Amazon’s Lab126. You were also named as an inventor on 17 issued and 6 pending Amazon patents. What was it like being a part of the legal and engineering team?

Lab126 was formed by Amazon to develop its hardware products. When I joined, I was sitting alongside everyone. It’s one of the things about joining a start-up that is kind of unique and fun for attorneys - you’re there in the thick of it with the rest of the employees. This environment led me to think of ideas for how the products could work together or how we could make something that might help us around a regulatory problem in a customer friendly way. I was super privileged to be able to participate in that creative process.

You have seen a lot of major tech companies in their initial stages of development. What key roles do you think the legal team had in ensuring the success of these companies?

It’s a fine balance. A good legal team will identify significant risks, but also allow start-ups to be start-ups - they’re going to take some risks and that’s ok. Even with experience, it’s still nerve-wracking as an attorney to know that there are rocks that you haven't overturned, but you have limited time and resources so it’s necessary for you to apply your judgment to best posit which are most likely to harbor significant risks.

Can you briefly describe your company Super? What advice would you give to students who are interested in pursuing a legal career in a start-up?

Super is a startup with business verticals in travel, fintech and commerce. Altogether, we have SuperCash, SuperTravel, and SuperShop, and they are all under the umbrella of “Super” with the overall mission to help people save and build credit.

For people who want to go into start-ups, you’re probably not going to be right out of law school. The first attorney, the start-up hires because they’re going to want someone who can jump in and do everything across the board. Even if you are that one person with experience, it’s difficult to have all that experience - employment, real estate, compliance, corporate, security, intellectual property… hopefully not bankruptcy. There’s a combination of classes that could be helpful: venture capital or corporate finance courses that talk about funding would be very helpful. Some general knowledge of IP would also help, it doesn’t have to be deep. I would consider myself an IP expert at this point in my career, and the only course I took in school was Trademarks.

I just hired someone in November who was largely in corporate security and M&As. Now she’s two months in supporting our marketing team, doing some trademarks analysis, dealing with consumer complaints, working on our end-user agreements and thinking about privacy and doing a great job of learning that stuff quickly. You’re not gonna have everything but you need to realize that even without everything, you have that one core skill set of being able to learn things fast, and that’s something valuable you can bring to the start-up.

Note from the Interviewer:

I would like to express my gratitude to Kevin Keller for taking the time to participate in this interview and sharing his valuable insights into his experiences across various roles within the tech and start-up industries.

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Eligibility

To be eligible, you must be currently enrolled as a JD candidate at Osgoode Hall Law School.��

All applicants must possess strong grades, exemplary organizational skills, be proficient in legal research and writing, and have a strong interest in intellectual property law.

Term

May-August 2023, with a possibility of continuing on for the academic year.

The successful candidates will receive compensation.

Application Procedure

To apply, please submit:

1. A cover letter;
2. A copy of your resume;
3. A copy of your grades (can be unofficial grades; please include any previous degrees); and
4. A sample of your written work on any topic of your choice (please limit to 3-5 pages).

to��iposgoode@osgoode.yorku.ca��by��March 31, 2023.

We thank all applicants in advance, only those students who will be interviewed will be contacted.

The post CALL FOR APPLICATIONS - Research Assistants (Summer 2023) appeared first on IPOsgoode.

Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On February 22, 2023, it was that Google is blocking news content on its platform for under 4% of Canadian users in a five-week test as a potential protest of Bill C-18. While Parliament referred to this secret news blocking test by the tech giant as “,” this reality of Bill C-18 does not come as a surprise to critics who voiced these concerns throughout the legislative process.

Bill C-18, the , was first passed by the House of Commons in April 2022 and aimed to respect online communications platforms that make news content available to persons in Canada. This would provide news publishers with a framework to strike deals with tech giants, such as Google and Meta, to share the revenue they receive when reposting news content from publishers.

Parliament stressed that Bill C-18 will help recoup financial losses sustained by the news media industry in Canada. However, there is great concern as to whether Google and/or Meta will limit or fully shut down its news aggregation services to avoid payments. These concerns are warranted, as Google its Google News outlet in Spain for eight years to avoid paying for links and snippets citing stories from Spanish newspapers and other outlets. Google also conducted similar news blocking tests in response to the attempting to pass a code similar to Bill C-18 which sought to promote negotiations between news publishers and tech giants. Even more recently, Google Google News snippets in Czechia in response to Czech Copyright Act reform seeking to compensate Czech news publishers.

The costs of Bill C-18 to Google and Meta are not insignificant, with the estimating news businesses to receive a total compensation of $329.2 million CAD per annum from digital platforms. Given that both and generate upwards of $100 billion USD per annum, the costs of Bill C-18 appear to be a drop in the bucket for the tech giants. However, the backlash from Google to a lack of input from the Parliamentary Budget Officer as to how this figure was calculated. Parliament consulted the Australian Communication and Media Authority to learn more about its Bill-C18-like legislation implementation in Australia, so the estimates may have been based on Australian data.

Google’s news blocking test in Canada illustrates that the reality of Bill C-18 may go against its very purpose by digital platforms to link to news materials. This will not only limit access to online news content in Canada, but, more significantly, will further drive the losses suffered by Canada’s news media industry. , more than 450 news outlets in Canada have closed, with 64 closures in the past two years. With the second reading of Bill C-18 now in progress at the Senate, Parliament may need to reconsider its legislative approach to avoid further backlash from Google and Meta.

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Gregory Hong is an IPilogue Writer and a 1L JD candidate at Osgoode Hall Law School

BetterHelp is a mental health platform that provides online mental health services, “the largest therapy platform in the world. We change the way people approach their mental health and help them tackle life’s challenges by providing accessible and affordable care. With BetterHelp, you can message a professional therapist anytime, anywhere”. reads: “Making professional therapy accessible, affordable, and convenient — so anyone who struggles with life's challenges can get help, anytime and anywhere”. Their primary business is online counseling and therapy provided online through web-based interaction and phone/text communication with professional counselors.

Privacy Misrepresentation

According to the , BetterHelp requires a questionnaire that asks for sensitive mental health information – “such as whether they have experienced depression or suicidal thoughts and are on any medications” – along with personal information. details BetterHelp’s dubious privacy practices, many of which display an egregious lack of concern for privacy interests. The complaint also details the privacy representations made by BetterHelp, some of which have been altered over time. An example of these changes was seen in the intake questionnaire, where a question asking “Are you currently taking any medication?” included a privacy statement that went through a few iterations (emphasis on alteration added in the complaint):

Up to Dec 2020: “Rest assured—any information provided in this questionnaire will stay private between you and your counselor.”

Dec 2020: “Rest assured—this information will stay private between you and your counselor”

Jan 2021: “Rest assured—your health information will stay private between you and your counselor”

Oct 2021: The statement was removed altogether

Revealing Private Information to Advertisers

The FTC release indicates that BetterHelp “did not obtain consumers’ affirmative express consent before disclosing their health data” and “failed to place any limits on how third parties could use consumers’ health information—allowing Facebook and other third parties to use that information for their own internal purposes, including for research and development or to improve advertising”. According to the complaint, BetterHelp used and revealed consumers’ email addresses, IP addresses, and health questionnaire information to Facebook, Snapchat, Criteo, and Pinterest for advertising purposes”, including “identify[ing] similar consumers and target[ing] them with advertisements for BetterHelp’s counseling service.”

The Punishment

The FTC has issued a (a legal document that outlines the terms and conditions for resolving a complaint or an investigation related to unfair or deceptive business practices) requiring that BetterHelp return funds – amounting to $7.8 million – to customers whose health data was compromised. ��The proposed order also bans BetterHelp from disclosing health information for advertising, prohibits misrepresenting its sharing practices and requires several changes to company practices regarding health and personal data. BetterHelp writes in that this settlement is “no admission of wrongdoing” and that their “industry-standard practice is routinely used by some of the largest health providers, health systems, and healthcare brands”. The says that this enforcement action is not the first of its kind, as it follows the , and that “the FTC has made it clear of its intent to crack down on the trafficking in sensitive health data by businesses not strictly classified as health care providers and thus not covered by HIPAA, the federal privacy rules that govern the health care industry”. Hopefully, this sets a precedent for more stringent enforcement of good privacy practices, particularly regarding the sale of personal and health information.

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The IP Innovation Clinic, the first student-based clinic of its kind in Canada, is seeking law students from Osgoode Hall Law School to provide assistance to under-resourced inventors, entrepreneurs and start-up companies with their innovation and commercialization activities.

IP Innovation Clinic Fellows

It is expected that the majority of the work done by students will relate to patent or trademark law.�� The remaining time would be spent working on other IP-related and start-up business related needs as they arise.�� The students’ work will be supervised by lawyers from Norton Rose Fulbright LLP, Bereskin & Parr LLP, and OWN Innovation and may include:

• Performing prior art searches
• Performing trademark searches
• Conducting legal research and drafting legal memos
• Possibly assisting with other steps in the patent prosecution process (i.e. reviewing patent specifications, etc.)
• Client intake and consultations

Note:�� Please note the position is a part-time volunteer position. ��Students may claim OPIR hours for work done at the IP Innovation Clinic.

��Qualifications:

• an interest in IP law, technology and commercialization issues
• responsiveness and a commitment to client service
• attention to detail and ability to write clearly and concisely
• excellent time-management, organizational, and interpersonal skills
• you must be entering your 2L or 3L year at Osgoode Hall Law School
• completion of the Legal Values: IP Commercialization Seminar course is not required but would be considered an asset
• completion of the Intellectual Property or Patents course is not required but would be considered an asset

Application Process:

Deadline:��Thursday, April 13, 2023

Please provide the following materials via email to��ipinnovationclinic@osgoode.yorku.ca:

• One page cover letter (briefly outlining your interests in IP law)
• Copy of your resume and unofficial grades
• A sample of your written work (max. 750 words)

We thank all applicants for their interest in the positions, but will only contact those selected for an interview.

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