Technology Archives - IPOsgoode /osgoode/iposgoode/category/technology/ An Authoritive Leader in IP Wed, 09 Oct 2024 16:07:18 +0000 en-CA hourly 1 https://wordpress.org/?v=6.9.4 Dr. Tesh Dagne Shines a Light on the Unseen Hands and Invisible (Copy)Rights Behind AI Systems /osgoode/iposgoode/2024/10/04/dr-tesh-dagne-shines-a-light-on-the-unseen-hands-and-invisible-copyrights-behind-ai-systems/ Fri, 04 Oct 2024 17:45:43 +0000 /osgoode/iposgoode/?p=40924 By bringing to the fore the roles of digital workers, Dagne hopes to unearth the collaborative creation that goes into the AI production chain and feeds into the AI output.

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By ‘Damola Adediji
A professional headshot of Tesh Dange
Teshager Dagne, Ontario Research Chair
and IP Osgoode Affiliated Researcher

Artificial intelligence systems often “give the vibe” of complete automated processing without human involvement. However, as reminds us, upon a closer “vibe check” there are layers of unseen and under-appreciated human inputs, efforts, and labour involved. The efforts of those unseen human hands are, in fact, the engine of AI innovation.

Dr. Dagne is the Ontario Research Chair in Governing Artificial Intelligence and an Associate Professor at 첥Ƶ’s new Markham campus in the School of Public Policy & Administration. He also teaches Property Law at Osgoode Hall Law School, where he is an Affiliated Researcher with IP Osgoode. His current project, which he recently presented at the at the University of Cape Town, highlights how copyright enables the proactive exploitation of digital workers’ contributions as inputs to AI training or, in some cases, AI-assisted outputs.

By bringing to the fore the roles of digital workers, Dagne hopes to unearth the collaborative creation that goes into the AI production chain and feeds into the AI output. His paper, “Unseen Hands, Invisible Rights: Unmasking Digital Workers in the Shadows of AI Innovation and Implications for the Future of Copyright Law”, is soon to be published in a forthcoming volume on IP’s Futures: Exploring the Global Landscape of Intellectual Property Law and Policy (Ottawa UP, 2025), which Dagne is co-editing with and . His chapter probes the future of copyright law, attempting to turn the focus of copyright to collaborative authorship. This move, Dagne argues, could respond to demands for the fair allocation of rights between digital workers, as authors or joint authors in some cases, and AI designers as exploiters of digital works. 

Digital Workers are the Lifeblood of AI Development

As , “[AI] doesn’t run on magic pixie dust… [AI training] is a job that actually takes quite a bit of creativity, insight, and judgment.” Such ingenuity involves the preparation of data works for the datasets used to train and build AI technologies, which consists of a number of decisions as to the kind of data to collect, curate, clean, label, abstract, index, etc. The process of dataset development starts with formulating the problem, which is the conceptualization of the machine learning task by making the problems “into questions that data science can answer”. The task conceptualization is typically the responsibility of the AI designer, which may be an AI company like Open AI or Anthropic AI, for example, or platform company like Microsoft, Meta, or Amazon. After the conceptualization process comes the data collection, refining, and measuring stage. Dagne’s focus is on the “digital workers” who enter the picture at this stage in the AI production process.

According to these digital workers contribute to the training process of AI systems in three steps: generating and annotating data (AI preparation), verifying model output (AI verification), and directly mimicking model behaviour to produce a service (AI impersonation).  They range “from higher-skilled, ‘macro-task’ […] workers [who] offer their services as graphic designers, computer programmers, statisticians, translators, and other professional services, to [those engaged in] ‘micro-task’ [work] which typically involve clerical tasks that can be completed quickly and require less specialized skills.” () As described by , “complex projects are broken down into smaller, easily accomplished tasks, which can then be distributed to a large number of workers.” Micro-task activities mainly involve the AI preparation aspect of AI training processes but can also include the AI verification and AI impersonation steps in AI training.

The Copyright Question

Much of the debate around copyright and AI has focused on whether using the underlying work of which inputs are constituted (the images, texts, musical works and other subject matter) for unauthorized learning constitutes copyright infringement. However, Dagne’s focus is on the copyright that can subsist over collected data, as we see in some and cases, and whether digital workers’ activities in the preparation of training data sets in the AI pipeline could itself give rise to a copyright interest. This question can be answered by examining the nature of digital workers’ contributions to the tasks assigned to them and the ownership of copyright under the contractual agreements that digital workers sign with platforms.

Digital workers in the AI production value chain collect raw data and help add extra meaning by associating each piece of data with relevant attributive tags. Although have argued that this attributive task is a mundane exercise that could ultimately be automated, others like have contended that tasks such as attribution will always be assigned to humans because of their capacity to recognize and classify data. Indeed, human intervention is now in demand to recognize the nuances and sophisticated details of specific data. As noted by , an example of such demand is in the medical field, where an understanding of scientific vocabulary is required.

From a doctrinal perspective, the copyright question is whether the contribution of digital workers described above meets the threshold of originality—which is defined, in Canadian law, by the Supreme Court of Canada’s ruling in , and requires more than trivial skill and judgment in the selection or arrangement of data. If so, we might ask whether recognizing the copyright status of such contributions could address these workers' invisibility. Even if, on account of originality, the tasks executed by digital workers amount to authorship, of course such authorship does not automatically translate into ownership. The ownership of the creative tasks conducted by digital workers as part of the collaborative venture is determined either by the workers’ status as employees or otherwise by contract—which means that it is determined in the context of significant power asymmetries and the routine exploitation of digital workers.

If copyright entrenches the inequities of an asymmetrical situation—by ensuring that the collective effort of digital workers in compiling essential datasets for AI training and AI development remains unseen and undervalued—Dagne thinks the time has come to confront its complicity. He suggests that, spurred by the arrival of AI, the copyright system needs to restructure the relationship between authors-as-(data)workers and corporate proprietors in pursuit of greater fairness.

‘Damola Adediji is a Visiting Researcher with IP Osgoode and Doctoral Candidate with the Centre for Law, Technology & Society at the University of Ottawa.

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Working In-House at a Start-up: an Interview with Kevin Keller /osgoode/iposgoode/2023/03/24/working-in-house-at-a-start-up-an-interview-with-kevin-keller/ Fri, 24 Mar 2023 16:00:00 +0000 https://www.iposgoode.ca/?p=40703 Sally Yoon is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School. 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 […]

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Sally Yoon is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

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 첥Ƶ 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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The (Not-So) Secret Side of Bill C-18: Google Tests Blocking Online News Content for Canadians /osgoode/iposgoode/2023/03/23/the-not-so-secret-side-of-bill-c-18-google-tests-blocking-online-news-content-for-canadians/ Thu, 23 Mar 2023 16:00:00 +0000 https://www.iposgoode.ca/?p=40701 The post The (Not-So) Secret Side of Bill C-18: Google Tests Blocking Online News Content for Canadians appeared first on IPOsgoode.

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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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Ontario Government To Eliminate Fax Machines Within The Next Five Years To Promote Patient Privacy And Access To Health Care /osgoode/iposgoode/2023/02/27/ontario-government-to-eliminate-fax-machines-within-the-next-five-years-to-promote-patient-privacy-and-access-to-health-care/ Mon, 27 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40621 The post Ontario Government To Eliminate Fax Machines Within The Next Five Years To Promote Patient Privacy And Access To Health Care appeared first on IPOsgoode.

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on on Feb 23, 2023.


On February 2, 2023, Ontario’s Ministry of Health (the Ministry) released its new health care plan, entitled(the Plan). As part of the Plan, the Ministry intends to replace fax machines with digital communication alternatives at all Ontario health care providers within the next five years.

The first pillar of the Plan is called “The Right Care in the Right Place” and focuses on making health care more available and convenient for those seeking to access health resources. The Ministry’s mission to “axe the fax” falls under this pillar by eliminating the use of fax machines to reduce health care delays, promote safer patient care, and allow health data to easily follow the patient wherever they may access care.

The Plan also recognizes that eliminating the use of fax machines would promote patient privacy, which aligns with the Information and Privacy Commissioner of Ontario’s (IPC’s) initiative to modernize Ontario’s health communication infrastructure. As previously reported by the E-TIPS® Newsletter, the IPC joined fellow Canadian privacy regulators in September 2022 to acknowledge the link between certain data breaches and the use of fax machines, and call for the phasing out of faxes.

This was recently reinforced by the IPC’s(the News Release) following its review of a large number of privacy breaches at St. Joseph’s Healthcare Hamilton caused by misdirected faxes. In the News Release, the IPC stated that “misdirected faxes are the leading cause of unauthorized disclosure of personal health information in Ontario” and there is an “enormous potential” for stakeholders to work with the government to replace this outdated communication system. The IPC’s full review can be found.

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When Modern Technology Meets History - How Museums Are Creating Interactive Experiences /osgoode/iposgoode/2023/02/21/when-modern-technology-meets-history-how-museums-are-creating-interactive-experiences/ Tue, 21 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40592 The post When Modern Technology Meets History - How Museums Are Creating Interactive Experiences appeared first on IPOsgoode.

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Sally Yoon is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.


Museums have long been a source of education and inspiration, but technological advancements have allowed for exhibitions that display a unique intersection of modern technology and history. Exhibitions incorporating the use of AR and VR technologies enable visitors to and absorb educational content through interactive games. Museums have become some of the world's most innovative content creators, capturing the attention of individuals of all ages.

Engaging, accessible and a springboard for creative projects

What exactly does it look like when a museum embraces technology? In 2021, Athena Art Foundation, Colnaghi Foundation, National Portrait Gallery and Megaverse collaborated to launch the “” series. The series features digital, interactive versions of the gallery’s portraits in place of their traditional, static counterparts. Brought to “life,” the portraits tell their stories in an engaging and authentic style. The first portrait in the series featured Jem Belcher, a 19th-century bare-knuckle boxer and butcher who speaks of his accomplishments as one of the best boxers of his time. Additionally, these digital portraits are more accessible to a wider audience, including those with visual impairments.

Augmented reality (AR) has also been utilized to explore various perspectives. Last year, LACMA collaborated with Snapchat in the Monumental Perspectives Collection to explore LA community histories through AR. As a part of the collection, Sandra de la Loza’s “” is an AR animation to portray what has been lost and “a vision of new ecologies in the future.” The piece revives native plants in South Los Angeles and illustrates how the land is linked to time and history with the transition of seasons.

(Caption: Sandra de la Loza, What the Willow Whispers, 2022, in collaboration with LACMA × Snapchat: Monumental Perspectives, © Sandra de la Loza, image courtesy of Snap Inc)

A new box of legal issues

Museums will need to consider new issues as they explore new technological media. For example, they will need to weigh the potential benefits and drawbacks of allowing visitors to use various AR apps and tools to customize works. While some argue that such acts would be a defilement of fine art and would prefer that works are preserved in more controlled environments, others see that these technologies offer opportunities to study works in greater depth. Loic Tallon, Digital Chief of the Metropolitan Museum of Art, : “[t]he museum’s mission is to collect, preserve, and study works of art … if someone is making an AR experience out of the collection, I see it as pure mission fulfillment.”

Furthermore, remains a key issue that can easily be complicated when it comes to these technologies. For AR works that may be the product of multiple copyright holders, the museum must make sure that proper steps are taken to locate and obtain all permissions or licenses for the use of the work. In this process, it will be important to discuss with artists the extent to which their work is original and what is sourced from third parties.

Annually held conferences such as the “” by MuseumNext, bring together members of the world’s leading institutions, to continue exploring the ways technology can be integrated in exhibitions in the future. If you love both history and technology, chances are your local museum has something for you.

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Bill C-18: Policy Concerns for the Independent Press /osgoode/iposgoode/2023/02/17/bill-c-18-policy-concerns-for-the-independent-press/ Fri, 17 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40586 The post Bill C-18: Policy Concerns for the Independent Press appeared first on IPOsgoode.

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Ivana PelozaIvana Peloza is a 3L JD Candidate at Osgoode Hall Law School. This article was submitted as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.


Bill C-18, the , which was introduced by the Minister of Canadian Heritage in April 2022, seeks to ensure that news outlets are fairly compensated for their news content by digital platforms. The bill establishes a framework for bargaining and negotiation between dominant digital intermediaries (DNIs), like Google and Meta-owned Facebook, and eligible news businesses.

Bill C-18 authorizes the to initiate mandated arbitration between an eligible news business and a digital platform or group of digital platforms. Under Section 53 of the Act, the CRTC has the power to compel commercially sensitive and undisclosed editorial material from eligible news businesses under Bill C-18. Section 58 outlines the CRTC’s power to order production of any record, report, electronic data or other document. If the operator or eligible news business fails to provide all assistance that is reasonably required for the CRTC to exercise their powers and perform their duties, the DNI or news business is in breach of subsection 3 of this section.

The CRTC has emphasized that the is designed to maximize transparency and minimize government involvement. According to the Parliamentary Secretary to the Minister, the promise of minimal government intervention is ensured by the exemption order outlined in Section 11(1) of the bill. While this criteria may incentivize voluntary commercial agreements, it does not exempt the parties of these pre-existing agreements from the duty to provide information under section 53 or the .

Advocates and critics of Bill C-18 agree that the Canadian news market is in dire need of long-term structural supports in a rapidly evolving digital age. What they disagree on, however, is whether the Online News Act is a solution or a threat to that cause. , for instance, have suggested that Bill C-18 actually poses a more significant threat to the news industry and Canadian democracy press; it gives the government and its regulator dangerously vague powers to intervene in the news sector.

Without a thriving news industry and robust protection of ethical journalism, the foundations of Canadian democracy are jeopardized. There is, regrettably, no entirely harmless solution – to at least some or certain stakeholders and journalistic entities. While there are recommendations that must be considered in regulations, such as an amendment to designate a section of legislation – if not an entirely separate Act within the bill – and a regulatory body to consider the eligibility of freelance journalists and start-up news outlets, to take an anti-regulatory stance is a defeatist approach. Given the nature of how content is generated and the interconnectedness around the world, it’s easy to forget that digital content is not accessible everywhere and to everyone. Forcing entities to enter into negotiations for the sustainability of the larger news ecosystem, therefore, is a more worthwhile approach than attempting to enforce existing (and failing) initiatives such as and or worse yet – doing nothing at all.

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“Smart Nation” Building in Singapore /osgoode/iposgoode/2023/02/14/smart-nation-building-in-singapore/ Tue, 14 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40562 The post “Smart Nation” Building in Singapore appeared first on IPOsgoode.

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Henry Rhyu is a 1L JD Candidate at Osgoode Hall Law School. This article is a summary of the author’s dissertation written as part of his program requirement for his MSc in Criminology at the University of Oxford.


After decades of political instability and economic turmoil during the 20th century, Singapore has advanced into one of the wealthiest countries in the world. , Singapore is committed to becoming the world’s first Applying the the People’s Action Party (PAP) has been increasingly integrating AI and other cutting-edge technology into addressing the city-state’s concerns, prioritizing ” cited as a primary sector when implementing this strategy.

What are “Xavier” Surveillance Robots, and Do They Help Minimize Human Bias in Police Decision-Making?

AI-powered surveillance robots are at the forefront of Singapore’s commitment to enhancing the safety and security of the city-state. On September 5, 2021, the government released that they will deploy the “Xavier” police robots as part of a 3-week trial. Developed together by the HTX and the Agency for Science, Technology and Research alongside several other government agencies, these twin artificial intelligence (AI) robots were stationed at a at the heart of Singapore. The robots were programmed to detect “ that amount to minor infractions, such as improperly parking a bicycle or smoking in forbidden areas.

As they gather more data with every novel type of infraction they are confronted with, the Xaviers continue to. - such as location, date, and time -these robots identify areas that demonstrate a statistical likelihood of exhibiting undesirable activity.

One societal benefit of the robots is combatting potential future shortages of human police, as well as allowing existing officers to allocate their limited resources.

Other proposed benefits are more difficult to verify. often describes the deployment of the Xaviers as a helpful method of reducing human bias in police decision-making, but this remains to be seen., argues that while AI is adept at recognizing patterns of behaviours, it fundamentally cannot explain nor question the logic underlying why they generate certain decisions.

Indeed, debates surrounding the potential for racial profiling have lead to pushback against predictive policing technology in some western countries. , the European Parliament prohibited the use of AI-powered preventive justice tools because they could generate racially biased outcomes. indicate that Singaporean citizens express similar concerns. One Singaporean human rights activist even stated that the Xaviers reminded her of ,” citing the potential for this surveillance technology to encroach on citizens’ right to privacy and due process.

What are the Existing AI regulations?

Presently, Singapore has . Instead, in 2019, the Personal Data Protection Commission - the national government-mandated body for AI-related concerns - established the a developed on behalf of Singapore-affiliated organizations that make use of AI in their company’s decision-making processes. This ethics framework states that 1) the decision-making process of AI technology must be “explainable, transparent, and fair,” and 2) that AI-based solutions must ensure that promoting the well-being of society is their number one priority.

Conclusion + Policy Implications

allocated to AI research in Singapore, surveillance technology is expected to continue to become more sophisticated in the city-state. Whether the existing AI regulatory framework effectively in safeguards against various potential unethical manifestations and implications of predictive policing technologies is beyond the scope of this article. However, one thing is clear. Singapore should remain wary of arming surveillance robots. While the Xaviers are not programmed to apply force against citizens, armed robots exist in other countries. the Dallas Police Department famously used a police robot to detonate a bomb against a suspect. Singapore must therefore identify and carefully straddle the fine line between using cutting-edge surveillance technology to enhance national security as opposed to providing the police with unfettered powers that risk violating citizens’ right to privacy and due process.

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US Supreme Court to Deal with the Patent Enablement Standard /osgoode/iposgoode/2023/02/13/us-supreme-court-to-deal-with-the-patent-enablement-standard/ Mon, 13 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40559 The post US Supreme Court to Deal with the Patent Enablement Standard appeared first on IPOsgoode.

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Emily XiangEmily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.


For the first time in decades, the US Supreme Court will engage with enablement in patent applications. On November 4th, 2022, the Supreme Court to review the Federal Circuit’s decision in Amgen v Sanofi, against the . Specifically, Amgen seeks to appeal a , in which the court found Amgen’s patents invalid for lack of enablement.

The requirement of enablement in US patent law is codified in , which requires that the specification of a patent application “enable any person skilled in the art…tomake and use” the invention in question. The in Amgen v Sanofi is whether this statutory requirement governs enablement (that the specification teaches those skilled in the art to “make and use” the claimed invention) or whether it must instead enable those skilled in the art “to reach the full scope of the claimed embodiments” without “undue experimentation” (characterized by substantial “time and effort”).

In 2014, Amgen sued Sanofi for infringing on its patents concerning drugs for lowering cholesterol. The genus patents specifically cover that bind to the PCSK9 protein in the body. The patents disclose the amino acid sequences for 26 antibodies that bind to one or more of 15 residues found on the PCSK9 protein. Importantly, the claims at issue are considered , in which the antibodies are not claimed based on their structural components but rather on what they do.

On January 3rd, 2023, many interested parties submitted to offer the Supreme Court their take on the issue to be considered. For instance, in a brief submitted by a group of , it was argued that the Federal Circuit’s standard imposes “an impossible burden” on patentees and that such a decision represents “a categorical shift in thinking away from teaching the PHOSITA and towards a precise delineation of the boundaries of the claim”. The professors further submitted that such a heightened requirement would be especially burdensome for patentees seeking to protect their innovations in the fields of chemistry and the life sciences, as “a chemical genus with any decently large number of species will never be able to satisfy the new enablement standard”.

Other parties in support of Amgen presented some other reasons as well. In their amicus brief, the stated that the court’s reasoning “leaves patent practitioners guessing about how to advise client-inventors regarding the extent of disclosure required”. The , warned of the adverse impact that the new enablement requirement might have on the effectiveness of patent incentives for investors to contribute towards research and development, especially in the case of startups and smaller companies.

Moreover, the has filed a motion for leave to participate in oral argument, claiming a “paramount and unique institutional interest and perspective” – that is, the perspective of individuals and companies working in the chemical, pharmaceutical, and biotechnology fields. CHAL asserts that the Federal Circuit’s enablement standard potentially jeopardizes the benefits of many modern innovations and that adhering to the plain meaning of 35 USC s. 112 should continue to be the prevailing approach.

The Supreme Court’s decision regarding the enablement standard for functional claims could also have wide-reaching implications that spill over into other fields, such as technology and computer-implemented inventions. By too narrowly focusing on the “full scope of the claim” and “undue experimentation” instead of on what those skilled in the art could determine from the specification, it is unclear how broader claims for (such as those that describe the desired result to be achieved by the AI rather than its structural components or any specific software solutions) might fare in the face of such a standard.

Amgen v Sanofi is scheduled to be heard by the US Supreme Court in the upcoming Spring Term.

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The future of the crypto industry after the FTX collapse /osgoode/iposgoode/2023/02/09/the-future-of-the-crypto-industry-after-the-ftx-collapse/ Thu, 09 Feb 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40556 The post The future of the crypto industry after the FTX collapse appeared first on IPOsgoode.

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Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.


On Friday, November 11, 2022, FTX. Shortly after that, filed for bankruptcy, and a Japanese exchange called Bitfront shut down. FTX is a global, centralized cryptocurrency exchange based in the Bahamas. It enables customers to exchange their digital currencies for other digital currencies or regular money. Sam Bankman-Fried ("SBF”) was the CEO of FTX.

The collapse came when FTX. is the cryptocurrency exchange with the highest daily trading volume of cryptocurrencies globally. On November 9, Binance it would no longer purchase FTX, mentioning reports of mishandled funds and regulatory investigations. Since then, the price of has plunged by more than 90%. The FTX's native token is called . It is generally used as collateral for future positions and to lower trading fees.

According to a report by , on November 2, Alameda Research ("Alameda”), the cryptocurrency trading firm led by SBF, was found to have an unusually high stockpile of FTT. FTX and Alameda's connections may have been more complex than had been previously disclosed, raising the question of whether FTX moved customers’ assets to Alameda. Since Alameda and FTX owned most of the FTTs, the other business would suffer severe financial consequences if one of them is compelled to sell or transfer its FTT holdings.

On November 6, that it would sell its FTT tokens. The value of FTT fell, triggering investors to race to sell their holdings in FTX out of concern that it would collapse like other cryptocurrency corporations. FTX rushed to execute withdrawal requests, but could not pay. As a consequence, FTX filed for bankruptcy.

John J. Ray, the new CEO of FTX, believes such a disaster is due to a lack of supervision and poor record-keeping. He numerous mismanagements leading to the disaster, including concealing misuse of customers' funds through software, using unprotected group emails, and communicating using applications with auto-delete features that restrict access to FTX records.

Platform customers, unsecured creditors, must wait in line to receive whatever assets the court may take from FTX based on priorities established by equitable principles. The bankruptcy has highlighted an $8 billion shortfall. After the fall of FTX, it will be more difficult for crypto exchanges to gain trust.

Industry experts are now predicting a "". The cryptocurrency market has long battled to win over investors and authorities. Investor trust in digital assets has weakened in the fallout of FTX, which will likely lengthen the impending crypto winter.

The FTX collapse underscores the lack of investor fund regulation in cryptocurrency markets. The cryptocurrency industry requires more stringent regulation to be rid the market of manipulation, fraud, mismanagement, cyber security risks, and money laundering. What steps will be taken to address these concerns will remain to be seen.

Further Reading:

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How do Tech Incubators Handle IP? My IP Intensive Experience with ventureLAB /osgoode/iposgoode/2023/01/20/how-do-tech-incubators-handle-ip-my-ip-intensive-experience-with-venturelab/ Fri, 20 Jan 2023 17:00:00 +0000 https://www.iposgoode.ca/?p=40467 The post How do Tech Incubators Handle IP? My IP Intensive Experience with ventureLAB appeared first on IPOsgoode.

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Tushar Sharma is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.


My name is Tushar Sharma, and I did my IP Intensive internship with VentureLAB, one of Canada’s premier technology incubators and a non-profit organization that supports start-ups throughout the early stages of their growth.

I joined the IP Intensive Program with the hopes that I would be able to work with VentureLAB, having a keen interest in venture capital work, technology, and intellectual property. This opportunity seemed like the perfect blend of all three and spoke to how I would like to practice law in the future. Needless to say, I had high expectations going into the experience because of how keen I was about the subject matter.

From the first day I had my expectations exceeded in every way. My initial introduction with my supervisor Josée was incredibly warm, open, and made me feel very welcome. She supplemented this introduction with having me sit in on one-on-one sessions with VentureLAB clients from the very first week of the placement. I was not expecting to be meeting directly with clients this early, or honestly at all given my limited experience, but Josée had enough confidence in my abilities to let me participate, and even offer my opinion to clients when I had something to say and felt comfortable. My supervisor’s confidence in my abilities helped me develop my own confidence in this arena, and I slowly began to become more comfortable talking to clients and offering IP advice as my experience grew.

As I spoke on earlier, I am interested in, and hope to practice, in the intersection of intellectual property and venture capital. This experience opened my eyes to the direct needs of start-ups, and the best way to serve their interests. As their resources are limited and they do not often have a breadth of legal knowledge, start-ups tend to be IP agnostic, or at least unsure of the best ways to develop and implement a viable IP strategy. I think this is something that is often missed by lawyers, based on conversations with lawyers, and in order to best serve clients, I need to understand their struggles and also understand that every start-up is particular in their needs. Being able to be flexible, knowledgeable, and considerate will help me serve clients better, and those are exactly the skills I developed throughout my internship with VentureLAB.

The intellectual property department at VentureLAB is fairly small relative to other internships in the IP Intensive program, but I think I preferred it to be organized in this manner. This gave me a lot more one-on-one time with my supervisor, and it created an environment where we could lean on one another, bounce ideas off each other, and work through intellectual property issues plaguing clients as a team. What really helped this process was how much Josée respected me, valued my opinions, and took in what I had to offer despite her having vastly more experience than me in this arena. Josée understood that, as a law student, I tackle issues from a different perspective from her and she would often look to me for a legal perspective, which clients often found valuable (with the explicit caveat that nothing either of us stated was legal advice in any way, shape or form). Moreover, this allowed me to learn and absorb techniques that my supervisor used in breaking down complicated IP processes into palatable information sessions. Being able to learn and observe how the IP was structured at VentureLAB gave me a holistic understanding of effective IP strategization at a successful enterprise.

Outside of my direct IP experience with VentureLAB, the team at the company is phenomenal and their familial culture makes it easy to integrate and feel like a part of the team, even in the short amount of time I was there. VentureLAB is filled with people who are willing to learn, teach, work hard, and have fun. I never had a negative experience with any of my colleagues, and I believe I have built lifelong connections with some of my peers there. My experience was also enhanced by the fact that I was able to participate in VentureLAB’s premier annual conference on Canadian hardware innovation, HardTech. Given the breadth of knowledge and experience on the team, I was able to learn a lot during my placement, and this experience has been invaluable to my growth and future career as a lawyer.

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