In cardiac medicine, the condition of the heart cannot be assessed in a state of rest, nor is it wise to wait for moments of acute failure. Clinicians instead employ stress testing to measure cardiac performance under conditions of controlled exertion, typically by monitoring patients as they walk or run on a treadmill. This diagnostic technique often reveals vulnerabilities undetectable at rest.Ěý Under strain, hidden weaknesses surface—irregular rhythms, constricted pathways, structural fragilities that calm conditions conceal.

At the recent panel, “,” hosted at Osgoode by Professor , one theme pulsed beneath every doctrinal discussion: artificial intelligence is placing the law under sustained pressure. And if law is the heart of a democratic society - circulating norms, distributing responsibility, sustaining trust - then AI functions as the stressor that tests its endurance in the face of emerging and increasingly complex legal challenges. 

AI systems now influence hiring, lending, securities trading, education, communications, and health care. They make or shape decisions once exclusively human; and when harm occurs (economic loss, discrimination, psychological injury, market manipulation), the causal chains are longer, more opaque, and more distributed across multiple actors and systems. In this context, the question becomes whether the law can preserve its steady cadence as the pace of technological change pushes it to run faster and faster.

For centuries, the common law has evolved incrementally, adapting to industrialization, mass production, financialization, and digitization. Negligence, fraud, public nuisance, product liability - these doctrines were built to regulate human actors making human decisions. At the same time, the legal system has embedded adaptive principles that enable it to evolve—doctrines such as technological neutrality, incrementalism through analogy, the “living tree” doctrine, and the open-textured character of standards such as reasonableness and foreseeability. Duties of care are established through proximity. Fault turns on knowledge and intent. Causation links conduct to harm. Liability is allocated. These principles have allowed the law to endure and respond to social and technological change. Artificial intelligence, however, introduced pressures of a different magnitude and speed. It was precisely this tension between doctrinal continuity and technological acceleration that animated the panel’s discussion, which examined how negligence, fraud, and the allocation of responsibility are each being placed under strain in distinct but interconnected ways.

Negligence Under Strain

One of the most vivid examples discussed by the panel was brought by Ontario school boards (including the Toronto District School Board), against Meta Platforms, TikTok, and Snap Inc. Their claim alleges negligent design and public nuisance, that these companies knowingly engineered platforms in ways that caused widespread disruption of the education system – diverting resources, exacerbating behavioural issues, and contributing to mental health crises.

The legal framework invoked in the litigation is not novel. The plaintiffs ground their claim in established negligence principles traceable to : duty of care, breach of the applicable standard, causation, and damages. But here is where the incline steepens, the doctrinal structure is familiar, the difficulty only arises in its application. The harm alleged is primarily relational and economic in nature. Canadian law has historically been cautious about pure economic loss. Establishing a duty therefore requires demonstrating sufficient proximity, and any extension of liability must be justified as an incremental development grounded in considerations of justice and fairness. The central issue is whether the relationship between social media platform designers and educational institutions is sufficiently close to ground such a duty. The negligence doctrine is thus being tested in a new context.

The negligence claims against social media companies illustrate how familiar doctrinal elements encounter novel factual configurations. The plaintiffs do not allege that defendants erected physical barriers to education. Rather, they contend that the platforms were deliberately and knowingly engineered - through geolocation, engagement optimization, and targeted notifications – in ways that foreseeably disrupted the educational system. The defence contests both proximity and foreseeability, arguing that the relationship between platform designers and educational institutions is too attenuated to ground a duty of care. Under these pressures, the courts must decide whether established negligence principles can coherently accommodate systemic harms arising from algorithmic design.

Fraud, Intent, and the Autonomy Problem

Where the social media litigation is testing the elasticity of proximity and foreseeability with negligence doctrine, the emergence of autonomous and learning AI systems places even more profound pressure on the mental-state architecture that underpins fraud.  Traditional fraud requires scienter: knowledge, recklessness, and intent to deceive. A plaintiff must establish a material misstatement, reasonable reliance, and causation. These elements presuppose a human decision-maker capable of forming a culpable state of mind. The difficulty arises when the operative “actor” is an algorithm that develops strategies through machine learning rather than explicit human instruction.

Panelists and considered scenarios involving high-frequency trading systems that might manipulate markets while pursuing a generic instruction such as “maximizing profit.” If no individual human formed a fraudulent intent in the classical sense, can we still allocate liability? Here, the stress test becomes acute. Fraud doctrine was built around human mental states. AI systems destabilize that foundation by generating outcomes that may be strategically sophisticated yet not traceable to a single, conscious mental state. In response, the panel considered several adaptive pathways: imputing an AI system’s “knowledge” to its developers or deployers; analogizing AI to an employee under agency principles; adopting burden-shifting or quasi-strict liability approaches; or relaxing reliance on scienter requirements, as has occurred in certain areas of U.S. securities regulation.  

These proposals do not abandon the doctrinal core. Rather, they attempt to recalibrate its rhythm. The deeper inquiry is whether intent and knowledge must be reconceptualized in functional terms—perhaps by asking whether the AI system would have behaved differently had a consequence been removed (a counterfactual test for “intent”), or whether it used specific information for a defined objective (a scope notion of “knowledge”). The law has historically adjusted its doctrines under technological pressure. The open question is whether the adaptation required here will remain incremental, or whether the strain risks distorting foundational concepts beyond recognition.  

Control, Foreseeability, and the Circulation of Responsibility

Building on the panel’s examination of negligent design claims and the challenges of proving scienter in algorithmic fraud, a further axis of strain emerged in the discussion: how to allocate legal responsibility in AI systems characterized by distributed and fragmented control. The allocation of legal responsibility has long been structured around the concept of control; agentic AI disrupts this conventional alignment. Large language model-based agents can iteratively plan, access external tools, access databases, refine strategies, and execute tasks with minimal ongoing human oversight. A user provides a broad instruction, and the system determines the operational pathway. When harms result, the attribution of control becomes contestable. Is responsibility property assigned to the user who articulated the goal, the developer who designed the model architecture, the corporation that deployed the system, or some distributed network of actors who collectively shaped its training data, parameters, and deployment context? The difficulty is not merely practical but conceptual.

As the incline increases with complexity, foreseeability becomes more and more blurred. Developers may possess systemic knowledge of general risks while lacking foresight into specific outputs. Users control initiation, but not the path taken. Corporations manage deployment but may not anticipate emergent behaviours. This diffusion of control does not mean responsibility disappears. Rather, it strains the arteries through which liability traditionally flows.

Litigation as Emergency Response

As panelist observed, litigation is inherently reactive. By the time a case reaches court, the harm has already materialized. A stress test, by contrast, is diagnostic: it identifies vulnerabilities before catastrophic failure.  When the heart falters under exertion, clinicians intervene (perhaps with medication, with surgery, or with lifestyle change). Similarly, the legal responses to AI cannot be singular. The panelists outlined a list of options. Ex post liability regimes (negligence, nuisance, fraud) will continue to evolve incrementally through judicial interpretation. Ex ante regulatory frameworks may articulate risk tiers or sector-specific obligations. Insurers may function as soft regulators, pricing AI-related risk and influencing corporate behaviour through coverage conditions. Gatekeepers (i.e. auditors, platforms, financial institutions) may assume greater responsibility in monitoring systemic risk.

Evidence of strain does not necessitate doctrinal abandonment. The discussions of the panel suggest that the legal system has not reached doctrinal failure. Negligence law remains operational, even as it confronts novel factual matrices. Fraud doctrine exhibits strain but retains conceptual elasticity. Public nuisance and product liability continue being extended incrementally, grounded in established principles of proximity, knowledge, and control. Nevertheless, the pressures on these doctrines are intensifying, and their continued adaptive resilience cannot be taken for granted.

AI systems scale rapidly. The harms they generate may be diffuse, cumulative, and distributed across institutional and geographic boundaries. Their evidentiary opacity complicates discovery and proof. At the same time, powerful economic incentives drive their deployment and expansion. The heart of the law continues to beat—but at a much faster pace. The real risk is not that AI requires immediate, sweeping abandonment of existing doctrine. Rather, it is that we fail to attend to the diagnostic signals now emerging.  Where the law shows early signs of strain (evidentiary bottlenecks, liability gaps, doctrinal contortions), we must respond with thoughtful regulatory design—not complacency.

AI does not introduce entirely new moral dilemmas. Rather, it accelerates, amplifies, and exacerbates existing ones. The discomfort of the present moment reveals where our legal assumptions about agency, causation, and responsibility may require attention and refinement. If law functions as the heart of a democratic society, its vitality depends upon its capacity to respond under pressure. For now, the heart continues to pump—but the stress test is just getting started.  

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

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The development of copyright law in Canada has never been quick to move but rather advances like a river carving its course, slow, persistent, and shaped by centuries of cultural and legal history. From the imperial statutes imported in the nineteenth century to the quiet but profound pronouncements of today’s Supreme Court, its progress has been less a leap than a measured accumulation of meaning across generations. Each judgment is a stone laid carefully in the stream, sometimes uneven, sometimes contested, yet together forming a path that reflects Canada’s patient effort to balance the rights of creators with the needs of users, tradition with innovation, and private reward with the public’s access to knowledge.

In March 2004, the Supreme Court of Canada released CCH Canadian Ltd. v. Law Society of Upper Canada, (“CCH”), a case that began as a dispute over library photocopying but grew into one of the most influential copyright rulings in Canadian history. In a single unanimous judgment, the Court redefined the purpose of copyright, reshaped its doctrinal foundations, and projected Canada’s legal voice onto the international stage. Twenty-one years later, on a bright, sunny weekend in , scholars, practitioners, professionals, and observers gathered at the Centre to reflect on the enduring legacy of CCH at home and abroad, asking: what did this ruling truly accomplish, and what did it set in motion?

The CCH ruling addressed four critical questions. First, the Court adopted the “” test for originality, rejecting the idea that mere industrious effort, what had been called the “sweat of the brow”, was enough to qualify for copyright protection. Originality required more: an intellectual contribution that reflected thought and decision.

Second, the Court narrowed intermediary liability. Simply providing the means for infringement, such as photocopiers in a library, would not make an institution liable unless it the infringing use.

Third, it clarified “,” a concept increasingly relevant in the digital age, limiting how far publishers could stretch their rights against libraries sharing works with their patrons.

And fourth, and most famously, the Court recognized fair dealing and other exceptions as “.” With this declaration, the Court placed access and fairness at the heart of copyright law, ensuring that copyright was not simply a monopoly for rightsholders but a balanced framework serving creators, users, and the public interest.

As with any turning point in law, CCH’s legacy is complex. Supporters celebrate it as the moment Canada broke from overly restrictive copyright models and embraced a fairer balance between access and control. Critics, however, argue that the decision distorted the legislation and accelerated the decline of Canadian educational publishing. While Quebec largely charted its own cultural path, much of English Canada embraced the Court’s expansive vision of user rights, leaving local publishers crying foul as they struggled to adapt and compete in the digital era.

Even within institutions, the embrace of user rights has been uneven. While fair dealing has flourished through subsequent cases in the Supreme Court’s “” and amendments to of the Copyright Act, other exceptions, such as disability rights under , remain under-utilized. Libraries and universities, wary of litigation, often adopt risk-averse policies that fail to reflect the spirit of CCH. It is a reminder that judicial doctrine alone cannot change practice; institutions (and the people who work for them) must also to carry the torch.

Though born of a Canadian library, the CCH decision quickly echoed abroad. In India, the Supreme Court adopted Canada’s “skill and judgment” test in (2008), and today Indian courts continue to revisit CCH as they grapple with generative AI disputes and the role of user rights in text and data mining. In South Africa, reform efforts to decolonize and modernize copyright law have built upon CCH, with the proposed seeking to expand exceptions and incorporate fair use principles that mirror Canada’s emphasis on balance. Across Africa’s music economy, the narrowing of intermediary liability established in CCH resonates strongly: while limiting liability can promote innovation, in regions with weak enforcement institutions, it risks enabling exploitation—highlighting the danger of transplanting doctrines from well-resourced systems into fragile infrastructures. Meanwhile, in Europe and Latin America, Canada’s approach has sparked reflection of another kind. European scholars contrast Canada’s robust recognition of user rights with the EU’s narrower framework, while in Brazil, cultural policy debates under Gilberto Gil in the early 2000s similarly sought to reframe copyright as more than just a market commodity. In each of these contexts, CCH has functioned as both compass and caution—proof that a single Canadian decision can shape global debates, but also a reminder that law must always be adapted to the realities of place and culture.

CCH Canadian Ltd. v. Law Society of Upper Canada stands as a milestone not just in Canadian copyright, but in the global story of how law adapts to new technologies and shifting cultural priorities. Its vision of user rights has shaped debates from Ottawa to Delhi, Cape Town to SĂŁo Paulo.

Looking back, CCH reminds us of the slow dance of law in Canada. It did not arrive with fanfare but unfolded through a quiet dispute about photocopiers and fax machines, carried by careful words and judicial reflection. Yet over time, its influence spread like ripples on water—shaping institutions, and practices, inspiring courts and policymakers abroad, and offering copyright law a compass for navigating entirely new technological challenges.

Law evolves slowly, but its slowness is part of its strength. In a world of disruption, it anchors us to principles that endure: fairness, balance, and the recognition that the rights of users and the public are not afterthoughts but part of the very purpose of copyright. As Canada reflects on the case twenty-one years later, it is worth remembering the lesson woven through its legacy: law does not race to keep up with every innovation, but moves like water in a stream, guided by the memory of where we have been and the hope of where we might yet go.

Links to the recorded panel presentations, speakers' bios and paper abstracts are now available .

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

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Prof. David Vaver presenting the 14th Annual Sir Hugh Laddie Lecture ()

Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

On June 22, 2022, I had the pleasure of tuning into the 14th Annual Sir Hugh Laddie Lecture. Over the years, the lectures have been delivered by distinguished experts from across the globe. This year, the lecture was delivered by our own Professor David Vaver, Professor of Intellectual Property Law at Osgoode Hall Law School, the first Chair in Intellectual Property & Information Technology Law at the University of Oxford, Fellow of the Royal Society of Canada, member of the Order of Canada, and Member of IP Osgoode’s Advisory Board. The was delivered in person at the UCL Cruciform Lecture Theatre and live-streamed for viewers across the world.

Sir Hugh Laddie was born in 1946 and studied law at St Catherine’s College, Cambridge. He was a judge of the High Court of England and Wales, a professor, and a leader in the field of intellectual property. Since his passing in 2008, the Institute of Brand and Innovation Law (IBIL) at the University College London (UCL) Faculty of Laws has organized and delivered , in honour of Justice Laddie, the founder of IBIL.

Prof. Vaver began the lecture by summarizing strands of Justice Laddie’s thinking – he believed IP legislation, which is not different from other legislation, should be looked at as a whole, and that precedence he believed to be misguided should be challenged. He then mentioned three maxims that guided Justice Laddie’s career and offered a general view of his philosophy. A few examples, translated from Latin, being “if someone’s got a right, do something about it”, “in equity, good folk win, bad folk lose”, and “deep pockets shouldn’t always prevail”. As a result of the combination of these strands of thinking, Justice Laddie was able to firmly stand for what he believed intellectual property should and should not do, over the course of his career.

Additionally, Prof. Vaver recognized some of Justice Laddie's significant contributions to trademark, copyright, and patent law.ĚýHis contribution to trademarks included extending common law protection to unregistered geographical indications when he ordered , cautious of Cadbury’s marketing tactics potentially fooling customers.

In copyright, Justice Laddie warned us about the possibly of being misled by , that is, “chipping away and ignoring all the bits which are undoubtedly not copied may result in the creation of an illusion of copying in what is left”. Moreover, in an effort to determine what was actually copied in a work, he considered whether the work as a whole or its individual components should have their own copyrights. Eventually he rejected the concept of multiple copyrights, noting that legal millefeuilles with layers of different artistic copyrights would be “slicing too finely or indiscriminately”.

Lastly, Justice Laddie's approach to the Haberman Feeder case demonstrated his values regarding patentability.Ěý, named after its inventor Mandy Haberman, is a specialty bottle which uses a slit valve and is especially useful for feeding babies with feeding difficulties. When the patent for the bottle was challenged for obviousness, Justice Laddie considered the long history of infant feeders (and the absence of anything like the Ms. Haberman’s bottle within it), utilizing unique perspectives to see the value in otherwise readily available solutions.

Overall, Prof. Vaver’s lecture was a wonderful way to remember his valuable contributions and to learn more about the diverse topics (as the title suggests) he dealt with in his career in intellectual property. Justice Laddie’s lasting mark on each of his cases makes it easy for us to remember annually why he remains a cherished figure in the field of intellectual property law.

You can watch UCL's full recording of the lecture here:

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Photo by Milad Fakurian ()

Pankhuri Malik is an IPilogue Writer and an LLM Student at Osgoode Hall Law School.

Ěý

I attended the Global Online Thesis Topic Meetings (“GOTTMs”) hosted by Leiden University on April 5, 2022. Prof. of Leiden University moderated this discussion on non-fungible tokens (“NFTs”) and intellectual property (“IP”), which featured three speakers—, , and —who discussed different aspects of NFTs through their individual presentations.

Richard Z. Lehv

Richard Z. Lehv is a senior litigation counsel at Fross Zelnick Lehrman & Zissu, P.C. His presentation, titled “What an IP Lawyer Needs to Know about the Colorful World of NFTs”, discussed the current NFTs’ landscape globally. He began with a general overview of NFT and blockchain technology and proceeded to discuss many interesting NFT trade examples from the past two years.

He explained that an NFT typically includes only information about the artwork’s location. The actual artwork is not stored within the NFT because storing large amounts of data on a blockchain is fairly expensive. He also discussed the novelty of owning or creating an NFT, rights acquired by purchase, and open NFT trade sources like , , and . Lehv pointed out that purchasing an NFT does not necessarily include copyright assignment, and therefore, returns from the NFT are limited to resale.

Lehv proceeded to discuss interesting examples of NFTs. He spoke about , which are collectibles featuring one or more NBA players with their statistics. Think basketball cards, but virtual! Other examples of NFTs include (sold for a total of $3.1 million USD) and 2021.

My biggest takeaway from the discussion was the range of possibilities that NFTs’ creation and trade present. My favourite example is the virtual artist photograph. She received a cease-and-desist notice from the photographer Michael Halsband, directing her to destroy the artwork. In response, she filmed herself painting over it with black spray paint and converted the video into an NFT.

Dr. Andres Guadamuz

Guadamuz is a reader in intellectual property law at the and the editor-in-chief of the . He authored “”. Guadamuz has also created and sold many NFTs and so, in addition to law, he provided answers on the business side of the trade.

Guadamuz was a critic of NFTs since 2011 and only got involved in their trade to understand what the fuss was all about. He said that most people lose money trading NFTs. According to the statistics he presented, the average price for NFT sales is less than $15 per NFT for 75 percent of the assets. He also said that the top ten percent of NFTs’ traders comprise 85 percent of total transactions. He said since the asset is only a photograph/video, which is usually transferred without the underlying copyright, or other rights in the underlying asset, there is only so much to gain from purchasing an NFT. He also briefly touched upon the high prevalence of fraud in NFT trades.

Alexandra Giannoloulou

Alexandra Giannoloulou is a postdoctoral researcher at the Blockchain and Society Policy Research Lab at the University of Amsterdam’s Institute for Information Law. She co-authored “”.

Due to paucity of time, Giannoloulou was only able to discuss NFT marketplaces and copyright management therein. She discussed three types of NFT intermediaries: open marketplaces (e.g., Opensea), collection-based marketplaces (e.g., NBA Top Shots), and curated marketplaces (e.g., SuperRare). She also discussed copyright licensing by intermediaries necessary for creating and trading NFTs. She discussed this topic in greater detail in her aforementioned paper.

What I Am Taking Home

NFTs are not a new concept; they have existed since , but only recently blew up during the pandemic. This discussion, however, did make me wonder if NFTs are as valuable an asset as they currently appear. The crossover with IP rights is unreliable at best, and breach of obligations by buyer or seller in the trade can only be mitigated through breach of contract remedies. As such, both future incentives and remedies for loss seem dubious.

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Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode, and a 2L JD candidate at Osgoode Hall Law School.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

On Thursday, March 24th, 2022, the Canadian Intellectual Property Office (CIPO) and the Centre for International Governance Innovation (CIGI) hosted their 5th Annual IP Data & Research Conference. For their third themed session, “IP Metrics”, experts were invited to speak about the ways they have been observing global IP trends, making IP data more accessible, and measuring the impact of IP on economic growth in Canada.

Where do Canadians Patent? Implications for Canada’s Patent Regime

Joel Blit, Professor of Economics at the University of Waterloo and CIGI Senior Fellow, kicked off the session. Blit examined the countries in which Canadian investors filed patent applications and sought to determine the extent to which the Canadian patent regime fosters domestic innovation. He found that Canadians were increasingly filing patents abroad, with more Canadians filing in at least one other country each year. Results also showed that patents filed exclusively in the US related to more advanced fields of computer sciences and technologies, while Canada-exclusive patents focused more on special-purpose machinery and the resources and energy sectors. Canadian patents also tended to belong to individual inventors rather than larger assignees, involved fewer inventors, and were cited less frequently, making them relatively less valuable in the global market for innovation.

Blit puts forward several potential explanations. One is that the Canadian patent system is providing less incentive over time for protecting domestic innovations. Another explanation is that Canadian patents are too strong, meaning it may be preferable to “weaken” them by setting higher examination standards, limiting patentable subject matter, or reducing the scope of issuable patents. That Canadians are increasingly patenting abroad could mean that Canadian inventors are becoming increasingly sophisticated, yet it could also mean that Canadian innovations and ideas are more frequently bought up by multinationals. Either way, the current Canadian patents regime seems to play a relatively minor role in promoting domestic innovation worldwide.

Identifying Artificial Intelligence (AI) Invention: A Novel AI Patent Dataset

Nicholas A. Pairolero, Economist in the Office of the Chief Economist at the United States Patent and Trademark Office (USPTO). delivered the second presentation of the session. Pairolero’s team sought to make data on AI more accessible to the public by developing a novel dataset that identified AI tech components in over 13.2 million USPTO patents and pre-grant publications.

After first determining a definition of AI, Pairolero and his team searched through USPTO’s patents using an automated machine learning (ML) model that differentiated between patent documents that did and did not contain any AI component technology. In the evaluation stage, expert AI examiners evaluated each document for AI component technology. Compared to more traditional, query-based approaches, the ML approach resulted in relatively lower precision (as a much larger number of documents were identified as containing AI), but a much higher recall (higher probability of correctly identifying AI). Moreover, both machines and humans seemed to struggle with classification at the boundaries of the various AI component technologies. However, results indicated that the ML approach achieved state-of-the-art overall performance relative to a variety of existing benchmarks from academic and policy literature, holding much promise for the future of automated processing in expediting the transmission of publicly available data.

Missions, Mandates and Metrics: What are the Right Metrics for Academic Technology Transfer?

The session concluded with a pair of presentations by Mike Szarka, Director of Research Partnerships at the University of Waterloo, and Natalie Raffoul, IP Lawyer and Managing Partner at Brion Raffoul LLP. Szarka began by suggesting that most Technology Transfer Offices (TTOs) focused on some combination of a) maximizing gross revenue and licensing income generally; b) focusing on the few projects that would maximize profits; c) maximizing knowledge mobilization and research impact; d) maximizing local economic growth, and e) maximizing client satisfaction and prioritizing the needs of faculty and students. Szarka’s surveying of TTO directors across the country demonstrated that knowledge mobilization, economic development, and service to academic communities ranked much higher in the minds of the respondents than revenue generation, indicating that commonplace TTO metrics focused on royalties do not reflect the true priorities and missions of most TTOs.

Raffoul identified several alternative metrics focused on “the betterment of Canadian society”. Average reported business expenditures invested into research and development () and have been low in Canada compared to the global stage. The greater concern is whether Canadians are owning their ideas and subsequently having the opportunity to commercialize those ideas downstream (instead of assigning their rights over to foreign firms). Raffoul suggested that TTOs ought to track the number of patents they are licensing/optioning/transferring to Canadian headquartered firms compared to foreign ones, along with the revenue generated from those licenses/options/transfers and any research collaborations with those firms. For company-sponsored academic research, co-ownership of patents ought to be held up to co-authorship of papers and publications, in order to correlate evidence of knowledge creation with the ultimate ownership and control of that knowledge.

Conclusion

Though there is much work to be done for Canadian innovators and owners to remain competitive in the global market, the most recent advancements in research and technology prove that Canada is well-positioned to identify shortcomings and well-equipped to tackle them.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

Session III from the focused on IP in the context of the Covid-19 pandemic. The economic impact of Covid is not as bad as expected, partly because of the prosperous IP industry in the digital world. The pandemic, in effect, accelerated the development of IP-related entrepreneurial activities. The presentations in this session look at the power of IP in economic and social growth.

In the first presentation, Carolina Arias Burgos, an economist at , discussed trademark filing as a leading indicator of the state of the European economy. Data shows that EU trademark filings correspond well with other economic indicators such as employment, domestic demand, GDP, and the overall attitude of investors toward a particular market (sentiment/confidence indicator). Domestic demand, confidence indicator for the retail sector, and Gross Capital Formation have cyclical correspondence to EU trademark filings. The values of these indicators are closely interrelated, shaped by their past values and the current and past values of other indicators (Multivariate VAR models).Ěý Burgos is still working on the model to include more variables and restrictions in VAR. It will hopefully generate more accurate forecasts in the future.

The second presentation examined and ‘s study taking a textual approach to analyzing trademark activity during the pandemic. They extracted the goods and services statements from around 300,000 trademark applications between 2010 and 2021, and the study looks at the topics and word meanings of these applications. Their research shows that pandemic-era trademark activities fundamentally changed in the application text context. These changes vary based on Nice class and application country origin.

and , from (ICTC), focused their presentation on the interaction between foreign direct investment (FDI) and IP in Canada. Their research employed a thematic analysis / grounded theory approach and 43 semi-structured interviews. It finds that various factors attract FDI; they include market size, talent, private investment, exit planning, government regulations, financing and innovation infrastructure, etc. Their research also identifies the aspects that can strengthen the impact of FDI on Canadian innovation, such as the VC/PE ecosystem, tax planning, procurement, IP literacy, and access.

, , and presented the they developed that educates students on IP in applied research settings. A consultation with 50 respondents from Ontario colleges undertaken early in the project indicated that 90% of them had little IP knowledge. In response to the virtual learning strategy of eCampus Ontario, they developed this online program to raise IP literacy in the context of applied research in colleges. It is an interactive module that turned out to be very effective in educating the participants.

Data shows that IP-related industries continued to prosper during the Covid-19 pandemic. Researchers are working on studies that identify and explain its development.

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Jasmine Yu is anĚýIPilogueĚýWriter and aĚý1L JD Candidate at the University of Toronto.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

The sixth session of the 5^th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office (“CIPO”) and the Centre for International Governance Innovation (“CIGI”), centered around IP, data, and digital platform governance. The two-part session was moderated by Michael Falk (director of the Office of the Chief Economist at IP Australia). It kicked off with a presentation on standards used in data ecosystems, followed by a panel discussion on the value of data and the processes involved in building collaborative ecosystems.

Falk’s opening remarks set the stage for this truly enlightening session. Over the past couple of years, our reliance on digital platforms has greatly increased, transforming how we do business and conduct our lives. This revolution has made data ecosystems and international standards all the more important.

Part I: Presentation

The first presentation was delivered by Sean Martineau (acting director and research economist at the CIPO) and Keith Jansa (executive director of the CIO Strategy Council).

They first highlighted several trends in intellectual property:

• Intangible assets’ growing importance
• Increased IP filings within the past two decades, both internationally and in Canada
• Growth in standard essential patents (“SEPs”) across the world, by country, and by individual standard setting organizations (“SSOs”)

Moving into a discussion on standards, they noted that standards establish accepted practices, technical requirements and, at times, modernize public policy. It is fascinating how standards are so integrated with our daily lives. The device you are reading this article on interacts with multiple technologies, implicating hundreds of SEPs! Some organization collects profits from licensing, and others to write cheques as cost to market each time that you use your device!

Jansa emphasized the importance of recognizing standards’ significance, the levers and process of standard development, and the impact that standards may have on advancing innovation. Ěý

Part II: Panel

ĚýThe subsequent three-person panel consisted of Evegueni Loukipoudis (strategic advisor at Digital Technology Supercluster), Peter Cowan (co-founder, director, and CEO advisor at Innovation Asset Collective, and principle consultant at Northworks IP), and Karima Bawa (strategic advisor on IP at Digital Technology Supercluster and senior fellow at the CIGI).

Loukipoudis kickstarted the panel with a discussion on the value of data, which he noted depends at least partly on who the user is, what they know about the data, and what they can do with it.

Cowan, on the other hand, discussed the importance of institutions having data strategy and proper infrastructure in place to collect, store, process, and use data properly. He also expressed concern for the inadequate literacy on data strategy in Canada.

Bawa focused largely on the legal aspect of data use. Data has become increasingly commercialized, with more entities entering into data-sharing arrangements to yield value out of data. She advised (informally!) parties in data-sharing arrangements to be aware of considerations such as the rights that stakeholders have over the data, regulatory compliance, management of cyber-attacks with limiting liability clauses, and how the data is accessed, stored, and guarded. Bawa also noted that it is wise to be circumspect with who you share data with, and how you share it.

ĚýConclusion

As the space-time continuum continues to shrink in our rapidly evolving world, data, standards, and privacy become even more important. The sixth session of the 5^th Annual IP Data & Research Conference rounded off a day of excellent presentations and discussions.

For start-ups, aspiring IP specialists, or those simply interested in IP strategy, check out this by CIGI: the CIGI Massive Open Online Course (MOOC) on Foundations of IP Strategy, co-created by Karima Bawa.

If you missed the conference, be sure to take a look at the materials shared by the presenters (also available in French).

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

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

, organized by the (“CIPO”) and the (“CIGI”), included a session on “Clean Technologies” about the status of Canada’s IP ownership and cleantech sector. The moderators were Joel Blit (professor of economics at the University of Waterloo and senior fellow at CIGI) and Rich Corken (deputy director of economics, research and evidence at ).

Trends and Challenges in Canada’s IP Ownership and a Collective’s Role in Addressing these Challenges

Mike Mclean (chief executive officer of the (“IAC”)), Emma Start (director of intellectual property at ), and Dan Herman (founder of and special advisor on the Establishment of a Centralized Resource Entity on the Intellectual Property) spoke about Canadian small-to-midsize enterprises’ (“SMEs”) role as significant economic drivers. They outlined some of the key challenges SMEs face in participating successfully in the IP ecosystem:

1. Cost and complexity: The cost of acquiring patents and the complexity of the international system deters companies from participating.
2. Lack of focus in IP education on strategy-linked business outcomes and commercial success: There are challenges in applying theoretical IP knowledge to real-life practical situations, which shows a need to provide SMEs with more “granular, case-study-based” education.
3. Limited talent capacity available: There is a limited talent capacity available to help businesses with their IP strategies and limited connectivity to institutions and existing expert players.
4. Limited tools for support: Companies require more support to bridge the gap from starting an IP program to having a self-sufficient IP system and operation. This is also critical for international commercialization.

The IAC is taking a collective approach to tackle these challenges. Their initiatives include building a collective patent portfolio and obtaining IP insurance at cost-effective rates for members, conducting market and patent research to inform strategy development, and providing businesses with IP software tools. Moreover, Intellectual Property Ontario, a board-governed agency set to begin operations later this year, will also work towards addressing the above four issues to help clients access the market.

Clean Technologies’ Economic Impact and Innovation

Nicholas Johnston (junior policy analyst in the Strategy and Innovation Policy Sector at ) and Mazahir Bhagat (data scientist in Business Improvement Services at CIPO) shared statistics on the Canadian cleantech sector and its activity in IP.

Overall, statistics showed that the cleantech sector is steadily growing and well-funded, with nearly all financing requests made by SMEs being approved in 2017. The sector was also active in IP—cleantech firms were most likely to participate in strategic activities related to IP, and enterprises in the sector showed more overall familiarity with IP than the average enterprise. Patent filing trends related to CO2 conversion and hydrogen production showed that Canadian inventions constituted about 1-2 percent, with the U.S., China, and Japan being the leaders. Businesses formed a significant chunk of the institutions filing the patents in Canada and globally, with interestingly high participation from the academic sector.

Patent Analytics on Hydrogen and Low Emission Technologies

Catriona Bruce (head of Patent Analytics Hub at ) looked at the patent filing of low emissions technology and hydrogen. Global patent data from showed that solar photovoltaic cells had the leading number of global patents filed, with most hydrogen patent filings being direct to production and utilization. China was the leading source of invention for both solar photovoltaic cells and inverter and hydrogen patents, as well as a leading target market. Interestingly, patents filed in China mostly stayed within the country; 17264 filings out of about 30000 hydrogen filings were from China, with only 809 from outside of the country. Relatively fewer inventions came from Canada and Australia, indicating further initiative for investment in domestic capability.

IP in Climate Transformative Technology Companies: The SDTC Approach

Amber Batool (vice president and chief of staff at (“SDTC”)) spoke about how SDTC enforces business leadership through mentorship. Its education programs frame advice for companies and address the issue that very few Canadian companies have the mature IP to compete or financial ability to keep up. have been mentors in education programs to frame advice for companies. SDTC’s approach to making an impact includes thought leadership, tailored IP strategies and learning pathways, and IP capacity creation. It plans to continue collaborating with others doing valuable work in this area to meet its clients’ changing IP needs.

Canada has the lowest labour productivity of the G7 and is the only G7 country whose R&D has gone down over the last 20 years. The panel discussions provided valuable insights into Canada's current position within the cleantech sector and the next steps necessary to achieve our national objectives for the environment and economy while maintaining a globally prominent position within the IP ecosystem.

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Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

I attended the The panel broadly discussed how underrepresented groups navigate the IP and innovation space. I left the presentations with a better understanding of what various public service groups are doing to promote diversity, equity and inclusion (“DEI”) initiatives in their practices.

The first speaker was Peigi Wilson, research manager for the . Her presentation was titled “First Nations Data Sovereignty and the Intellectual Property Regime”. FNIGC’s mandate arose from trying to address the data gap caused by from three major national population surveys. Now, the FNIGC asserts data sovereignty and supports the development of information governance and management at the community level through regional and national partnerships.

After a brief overview of First Nations rights and sources, Wilson defined what First Nations Data is and how it is founded on the principles of . I thought it was quite powerful when she said that First Nations Data is “acquired from First Nations, by First Nations.” Some include data from resources and the environment,

With funding from Indigenous Services Canada, FNIGC is currently researching First Nations’ interests respecting orphan works and artists’ resale rights and developing possible solutions regarding opportunities to co-develop new laws or policies. Wilson emphasized that DEI initiatives are more than ensuring that First Nations have a seat at the table; it means that First Nations must have a role in the decision-making process as active participants in IP policy reform and innovation. She stressed the importance of recognizing Canada’s pluralistic foundations beyond the English/French history to include First Nations legal systems. She also called upon attendees to consider how they may shape new processes for consultation, free, prior, and informed consent, and co-development to address the economic inequality inherent in the system.

The next speakers were from the , a pilot non-profit organization whose mandate is to facilitate data-driven, clean-tech innovation amongst Canadian businesses. Lori DeGraw (vice president of partnerships and member engagement) and Julia Culpeper (program manager of education and strategy) jointly presented “Women and IP: Promoting Inclusion in the Innovation Ecosystem”. The IAC helps Canadian small-medium enterprises (“SMEs”) better understand, generate, commercialize, and protect their IP.

IAC presented the results of a on women’s underrepresentation in the Canadian IP ecosystem. Capturing qualitative data from their inaugural , the study re-emphasized the need to build capacity for women in the IP field, and, in doing so, create a framework to replicate with other equity-seeking groups. They are currently working on three programs to increase community and networking, outreach, and policy and advocacy for women.

One program aims to tackle the inequitable gender balance in patent filing by implementing a twice-annual grant for women to fund IP. $50k is available twice a year to IAC member companies led, founded, or owned by women. .

The last presentation was a partnership between the Canadian Intellectual Property Office (“”) and (“StatsCan”) on “The Awareness and Use of Intellectual Property by Underrepresented Groups in Canada: Insights from Survey and Administrative Data”. Speakers Danny Leung (director of Economic Analysis Division at StatsCan) and Eric Rowe (team leader of Service Insights at CIPO) highlighted results from two studies: the and the

The IPAU study found that 9% of female primary decision makers of businesses had IP that they chose not to formally protect, compared to their male counterparts at 5.4%. Another interesting statistic was that women clients were generally less satisfied with CIPO services overall (51%) than male clients (55%).

The two studies found that firms that file for patent applications are disproportionately more often owned by men. They also found that women-owned businesses are less likely to have their applications for funding granted (54.8%) as compared to their male counterparts (56.1%). More promisingly, however, patent applications by women-owned businesses grew by 133% from 2001 to 2015. Women-owned business were more likely to file patent applications in chemical engineering and medical technology than men-owned businesses. Further research on women’s experiences filing patents could be useful in understanding the trends in the data.

Overall, the presentations were a significant reminder that we still have so much more to do to level the playing field for women-owned and First Nations-owned businesses. However, with organizations like the IAC and FNIGC spearheading new programs and tools, one can be cautiously optimistic about the future of innovation in Canada.

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Photo by Zdeněk Macháček ()

Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

On Wednesday, March 9, I attended the “Breaking the Bias in IP: Reflections from Women in Leadership” held by ChIPs’ Toronto chapter. is a global not-for-profit organization dedicated to showcasing women in leadership positions in intellectual property and technology careers. ChIPs’ is to advance and connect women in technology, law, and policy. They aim to through diversity of thought, participation, and engagement. The organization currently has over members in Canada, the United States, and Europe. ; still, it is important to understand the lived experiences of women-identifying professionals in this area of law in order to bring about change and awareness to this issue.

This event was structured as a question-and-answer panel, with some questions from the hosts and some from the 90+ audience participants on Zoom. The panelists were three women in the intellectual property and technology fields: Sheema Khan, a patent agent currently working at Kinaxis and previously at Stratford Managers Corporation; Judith Robinson, a senior consultant with Fineberg Ramamoorthy LLP focusing on patent litigation; and Alexandria Daoud, a patent agent and vice president of intellectual property and regulatory affairs at Anyon Systems Inc. The event was opened and closed by Daphne Lainson, a partner and chair of Smart & Biggar LLP, and moderated by Beverley Moore, the national leader of BLG’s intellectual property litigation group. It was inspiring to see women from diverse career paths, as not all started as IP professionals or were even sure of entering the IP space.

The Pool Problem

A common concern regarding diversity in many career fields is ‘the pool problem’. Companies put forth that they have a limited number of qualified applicants who are diverse and this drives to disparities in the workplace, as opposed to peoples’ internal biases. The pool problem has especially grown in intellectual property and technology law, with one study reporting that of patent attorneys and agents are women. The pool problem starts early, with less women than men enrolling in science, technology, engineering, or mathematics () programs for their bachelor’s degrees. While the pool problem persists, the panelists shared experiences and advice that demonstrate that the pool problem does not have to allow gender disparities to persist in the IP space.

Supporting Women in IP

Each panelist provided not only words of encouragement for women in IP, but also words of action and change. The participants were encouraged to look beyond the statistics and actually ask about women in the workplace. They suggested participants observe who is the project leader, who clients are asking for, and recommend women for these spaces where they are not considered. For instance, where a project consists of an all-men team, despite there being qualified women for the job, one can ask why women were not considered or excluded and encourage that change if possible. Similarly, they can let clients know that there are qualified women to take on their files. There are existing initiatives that encourage firms to create reference sheets for clients consisting of leading women lawyers in certain sectors, like the program.

Implementable Changes

Allyship and authenticity were two recurring themes for change at this event. Allyship should manifest in both mentorship programs, but also through colleague support such as having men in the office join committees that ensure women’s fair treatment in IP workspaces. The workplace should also welcome authenticity, in the sense that it should acknowledge women’s roles beyond billable hours, including their contribution to fostering committees within the workplace. These elements can help create positive work environments that encourage more women to follow IP careers.

Organizations like ChIPs demonstrate that women in IP can be leaders and successful, all while being themselves. Events such as Breaking the Bias are safe spaces to have these difficult, but real conversations about IP’s gender disparity, and attendees can learn implementable changes that can ameliorate this disparity in the future.

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