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

On October 12, 2021, the World Intellectual Property Organization (WIPO) held its of the series “Closing the Gender Gap in IP,” titled “Looking at Good Practices.” This part of the series looks to the existing policy changes that, according to the session’s moderator Aurora Diaz-Rato Revuelta, a UN ambassador for Spain, will “trace the path to be followed.” WIPO had a commendably diverse group of panelists. Four speakers from Mexico, Oman, Uganda, and the UK provided their insights and initiatives to close the gender gap in IP.

The first speaker, Anel Valencia Carmona, is the Deputy Director General for Support Services for IMPI, the Mexican Institute of Industrial Property. This organization aims to increase women’s role in innovation and entrepreneurship. Interestingly, when her group attempted to assess the gender gap using patent data, they initially found no way to identify if a man or a woman wrote a patent. The group thus implemented a gender-identifying number which patentees can add to their application if they choose to participate in gathering data on women in IP. Prior to the gender identifier, any applicant without a gender-specific name was considered a man. The that from 2014-2018, men filed 62.5% of patent applications, 31.4% of applications involved both genders or were gender neutral, and women filed 6.2%. The project had two main goals: enhancing women’s visibility in the IP space and providing women the information to help them innovate. The team put on weekly podcasts to spotlight women inventors and held sessions with outside experts to help women with IP processes. In creating network opportunities for women in IP, the hope is that entrepreneurial women will be emerged in IP for years to come.

The second speaker, Thuraya Saud Al-Alawi, is the head of the intellectual property section and innovation and technology transfer center at Sultan Qaboos University in Oman. Ms. Al-Alawi also spoke to the barriers in Oman as women are still in IP in the country. IP was initially not accessible in Oman. The IP office, located in the country’s capital Muscat, required paper applications. The distance to the IP office and the physical requirements only further discouraged people from filing. However, Oman has recently implemented an electronic patent system set to fees by up to 90%. The University has also collaborated with WIPO to set up efforts to incubate women’s ideas and help explain IP policy by setting up a ‘summer school’ program. The hope is to enhance women’s IP knowledge and accessibility to registration to close the gender gap.

The third speaker, Ms. Mubiru Lilian Nantume, is the Founder of Grooming a Successful Woman with Intellectual Mind , a Ugandan NGO to empower women in the community to create a business and utilize IP to commercialize their products. The perception of women’s roles in remote communities is belonging ‘in the kitchen.’ This mindset is a significant barrier to women’s participation in innovation. GSWIM works with women in the community, finding out their interests and passions, then giving them a small amount of capital to help them grow their business ideas. GSWIM equips women with knowledge regarding product development, branding, and IP. The organization further empowers women with business sense by giving them capital and hosting product expos for them to display their work. This grassroots initiative demonstrates how we can collaborate to help all women participate in IP, including those living in remote and metropolitan communities.?

The final speaker, Andrea Brewster, is the lead executive officer of , a volunteer group of UK-based IP professionals. Ms. Brewster emphasizes that inclusivity is crucial, as it will “facilitate and sustain diversity.” Hence, it is essential to have professionals that are willing to grow their networks and practices to involve women. IP Inclusive has several members and hosts joint events across communities. They have a for business leaders to commit to championing diversity and inclusion. IP Inclusive wishes to focus less on the symptoms of gender disparity, like the pay gap and societal perceptions and targets the underlying causes such as lack of inclusivity and insufficient allyship in the profession.

The commonalities between the panelists included mentorship, encouragement, and accessibility in their communities as methods for encouraging women in IP. With WIPO continuing the series in 2022, the hope is to improve the statistics and perhaps see these initiatives implemented on a larger scale.

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On April 26, 2021, the theme of World IP Day 2021 is “”. Since I founded the IP Innovation Clinic in 2010, the Clinic has helped countless innovators, entrepreneurs, and small businesses to do exactly that. Our students have provided basic legal information to clients who otherwise would not have any access to it. To date, the Clinic has subsidized over $2,000,000CDN of legal fees that would otherwise have been paid by those without access to resources. This past year, the Clinic has expanded its impact through the recently launched , a free legal chatbot which uses a vast database of credible IP information to answer users’ initial IP questions and guide them to the type of legal help they need. This is only the beginning of the ChatBot’s story.

In a critical time of Covid-19 isolation, I aim to ensure that the IP Innovation ChatBot’s content is accessible and attuned to the unique realities of underrepresented communities in Canada’s intellectual property (IP) innovation ecosystem; namely, women and indigenous peoples. Having assisted clients in these underrepresented groups in the IP Innovation Clinic, and through my own research and writing in this area, I have seen first-hand the distinct struggles these groups confront in the traditional IP innovation ecosystem and the distinct challenges they face to bring their innovations to society; from being silenced in their ideation phase to lacking adequate resources and know-how to develop IP strategies attuned to their unique needs and perspectives.

This AI-powered initiative has been launched thanks to the Canadian government’s , and supports its mandate to increase IP awareness and education by making IP information more accessible. These learnings can easily be applied to other areas of the law.

The ChatBot has been realized due to visionary IP Innovation Clinic champions backing our work, Innovation York at 快播视频, Ontario Centre of Innovation (OCI) at the very outset and Bergeron Entrepreneurs Science and Technology (BEST) Program at Lassonde School of Engineering and Norton Rose Fulbright (NRF) Canada LLP. Indeed, the technical and legal expertise of Partner, Maya Medeiros, and Al Hounsell at NRF, and our Osgoode JD team of students led by Ryan Wong, class of 2021. It is also an honour to work closely with other leaders in the federal government such as the Konstantinos Georgaras, CEO (Interim) at the Canadian Intellectual Property Office (CIPO) and Jennifer Miller, Erin Campbell and their teams at Innovation, Science and Economic Development (ISED), who understand and work hard to overcome the challenges Canadian innovators face.

I previously uncovered the various challenges that underrepresented communities face in the IP innovation system and how grassroots initiatives, such as IP legal clinics, can assist in and in more recent work to use the power of artificial intelligence (AI) to build an IP Innovation ChatBot to make IP law more accessible. Going forward, I plan to expand on this foundational and empirical work to build the IP Innovation Clinic and the ChatBot to make the IP innovation ecosystem more accessible.

Ultimately, in an era of increasing technological disruption and lingering societal inequality and pandemic isolation, I hope to influence future legal education and make our justice system accessible to all Canadians.

Indeed, AI applications, including legal chatbots, use machine learning to make the law more understandable, manageable, useful, accessible, predictable, and efficient. Legal chatbots increase access to justice through their wider reach and lower costs. Many underrepresented communities receive either inadequate or no legal help at all. Technology currently cannot provide complex legal advice, but AI-powered online legal services can cost-effectively deliver accessible, basic legal help. Some, like our IP Innovation ChatBot, do so for free. Chatbots can thus democratize access to basic legal services for the underserved, and therefore deserve greater study and adoption.

Since its January 29, 2021 launch, the IP Innovation ChatBot has been a magnet for public use. Several members of the legal community have already inquired to learn how to emulate it. With the information from these analyses, I plan to design and build an enhanced, interactive, dynamic, and accessible portal powered by next-generation artificial intelligence operating on big data curated by our pioneering IP Innovation ChatBot.

The ChatBot will remain a free, sophisticated, and smart online tool, driven by AI and designed to cater to underrepresented and disenfranchised innovators. It will soon house key IP resources and information, leading updates, and links to Canadian and international government IP resources. The ChatBot’s scaled-up national platform will analyse its amassed archive of data and identify common IP knowledge translation problems to devise and anticipate solutions. Adapted for the COVID-19 era and beyond, the ChatBot will support the next generation of lawyers, educate and stimulate innovation from underrepresented communities, provide start-up entrepreneurs with access to IP resources, and be the public’s go-to tool for independent and impartial IP knowledge.

Prof Pina D’Agostino is Associate Professor at Osgoode Hall Law School and Founder and Director of IP Osgoode, the IPilogue, the IP Innovation Clinic, and officially since January 2021 the recently launched IP Innovation Clinic ChatBot.

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In order to?examine the role of?copyright in this emerging situation, , assistant professor?of political science?at Brock University, chaired a panel focused on (TD34). This panel was comprised of renowned and emerging scholars working on copyright and related issues.

, professor of political science and international affairs at the Elliot School of International Affairs (The George Washington University), began the panel by discussing what she describes as "the cat and mouse game" of global copyright politics. Professor Sell has had a distinguished career examining the . She describes the contemporary situation as the interplay between "cats" (intellectual property (IP) rights holders seeking to ration IP) and "mice" (stakeholders advocating for greater access to IP-related goods and services). In institutional and legal contexts, the cats and mice each work to assert their interests, concerns, and positions.

For example, the negotiations are described as an instance of "forum shifting" where IP rights holders (cats)?and their supportive governments seek to expand and entrench beneficial IP law internationally without public consultation or participation via trade negotiations operating outside of the multilateral (WTO) framework. In response, "mice" worked to derail the ratification of the treaty by motivating public opposition. This "recursive dynamic" leads to unintended consequences: while IP rights holders and beneficiaries seek to reinforce their privileged positions, their actions lead to reactionary movements that highlight the concerns?of stakeholders that are often unrepresented.

Professor Haggart further explored this situation by presenting a paper based off of work included in his new book, . The pervasiveness of digital technologies in daily life is contributing to a rising public interest in copyright issues and reform initiatives. The international protests over ACTA as well as the and reflect this rising concern that digital copyright – and IP reforms – are not attending to the interests of citizens and users. As Professor Haggart argues, it is becoming increasingly?more difficult?for digital IP reforms to be passed in domestic legislatures due to vocal opposition and processes that are becoming increasingly polarized.

, assistant professor of communications and multimedia at McMaster University, then shifted the discussion to the role of IP law in the economies of so-called rising states. In a co-authored with , professor of political science at the Université Libre de Bruxelles, Bannerman discusses how South Korea and Japan moved from having economies based on importing IP-intensive goods to "innovation exporters" that favour strong IP protection. Borrowing Sell’s metaphor, Bannerman and Morin ask, "what would happen if, in the course of this pursuit, one of the mice progressively transformed into a cat?" Their paper finds that prior to becoming IP-exporters, these countries relied upon relatively lax positions towards foreign IP as a means of benefitting from technology transfers. However, once IP based?domestic industries?were established, concern shifted towards stronger IP protection in order to benefit and maintain these domestic champions.

The final presenter, , a doctoral candidate in the Department of Political Science at The George Washington University, focused on how countries in the global South are turning towards traditional knowledge (TK) protections as a reaction to the international IP regime advanced by the WTO—in the —and the US via bilateral and plurilateral trade agreements. In an exhaustive mixed-methods survey, Mr. Michael finds that there are now more than 70 countries that are protecting TK through national legislation. He describes this as a form of "reactive diffusion" where countries enact TK legislation to increase their domestic advantage in certain sectors, as a counter balance to disadvantages imposed by international obligations to increase IP protection in other areas.

Having surveyed different, albeit overlapping, aspects of the current state of global copyright, IP, and?politics, the panel ended with comments from discussant , the Canada Research Chair in Law, Communication, and Culture at 快播视频. (Note: Professor Coombe is the Chair of the author’s dissertation committee) Professor Coombe has written extensively about the intersections of copyright and IP law, culture, political theory, and anthropology. Her comments helped tie the papers together and raised further questions regarding the future of copyright and IP law in a global context. In particular, she highlighted how attention must be given to local, community, and domestic circumstances in order to understand the rights, norms, and concerns that various "stakeholders" bring to these scenarios.

The future of global copyright and IP regimes is broad, in terms of the issues at stake, and far from certain. This panel highlighted some of the key issues at play and emphasized the need for continuing research in order to understand the current state and future make-up of IP law.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 快播视频, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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Movies – A Global Passion

This year, the World IP Day theme is: Movies – A Global Passion.

As WIPO Director General, Francis Gurry stated at the U.S. Copyright Office's “early” celebration of World IP Day on April 23, 2014, “movies really are collections of intellectual property.” Gurry also said, “intellectual property ensures we have a global production of movies that rewards all of those who are involved in the production of movies.”

IP is of course essential to the film business, from the inception of a film throughout the process, including the film hitting the screen. For more information, see?

What Role for You on World IP Day?

Organizations around the world are seizing the opportunity to educate others about IP and the people and process involved in creating IP. ?You too could join in and host a film festival, organize a concert, or exhibit inventions of local inventors. WIPO makes several of activities you can do.? These activities include:

• Mounting a public exhibition displaying how consumers benefit from IP
• Organizing a workshop to educate specific users such as artists, musicians and inventors about how IP rights benefit them
• Promoting IP through social media
• Running a photo contest to manifest creativity and the working of copyright in practice
• Creating and distributing World IP Day publicity materials such as posters, brochures, etc., for specific audiences

WIPO can help if you are planning a public outreach campaign. Its site suggests that you establish your campaign with specific objectives, you identify the target audience, research the best way of getting the word out to your audience and develop a plan to get that word out. For more information, see?.

Spreading the IP Word

A celebration of World IP Day could be as simple as discussing downloading music with your children around the dinner table. Or sharing with a colleague a URL to an article about legally using trade-marks. Or posting a message on your Facebook page about others obtaining permission to use your photos. Whether we create or use IP, it is easy to see how IP is an integral part of our daily lives. And it seems that IP has grown so quickly to encompass even more of our activities.

One of my favourite quotes about understanding copyright law and “spreading the copyright message” comes from U.S. Register for Copyright, Maria Pallante, where she states that copyright is a life skill:

It’s one of those life skills now, right? When you graduate from high school or college, you should know how to read a map, you should know how to use GPS, you should know a little bit about copyright. If you are somebody who is going to be in a field where you will encounter copyrighted materials all the time, you should know more. If you’re going to be an artist or musician and you’re getting a red-hot degree in the performing arts, you should know a lot. And I don’t think that’s quite the case - I don’t think it’s been built into the curricula.

Do you know a little bit about IP or more? And what can you do today to help your friends, families and colleagues understand how IP affects us all?

Lesley is a lawyer, author, educator, and Osgoode??(’85). Her book,?, was recently published by Wiley. You can read more of Lesley’s posts at?.?

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Entitled "Can the Canadian UGC Exception Be Transplanted Abroad?", this article builds on the excellent??on the international law aspects of the Canadian UGC exception chaired by Prof. David Vaver. The panel also featured presentations by?Barry Sookman,?a partner of the law firm of?McCarthy Tétrault, and Prof. Joost Blom of the Faculty of Law of the University of British Columbia.

Although the panel presenters examined the international law aspects of section 29.21, including its compliance with the Berne Convention?and the WTO TRIPS Agreement, one issue that has not been covered much is whether this exception?would serve as an ideal model for other jurisdictions that are now undertaking digital copyright reform.?Using Hong Kong as an example, my forthcoming article will argue that the Canadian UGC exception, with appropriate modifications, can be—and should be—transplanted abroad.

This article begins by?discussing the efforts by the Hong Kong government to transplant copyright laws from abroad as part of its digital copyright reform. It further examines the benefits and drawbacks of legal transplants.?Using the US Digital Millennium Copyright Act of 1998 as a point of comparison, this article argues that the Canadian UGC exception provides a timely and attractive model for legal transplant.

The article then?discusses specifically the UGC exception proposal I submitted to the Hong Kong government. Focusing on two major aspects of legal transplant—modelling and adaptation—it discusses the policy choices the submission considered.?It also addresses the key objections raised by copyright holders and their industry groups, in particular their claim that the Canadian UGC exception may not?comply with the TRIPS Agreement.

This article concludes by recounting the Hong?Kong?government’s recently-released??on the parody consultation, which sadly echoed the concerns raised by copyright holders and their industry groups.?Although I strongly disagree with the government's preliminary analysis of the proposed UGC exception, this article takes the government's international compliance concerns seriously and offers additional modifications to further adapt the proposed transplant.

To begin with,?the government could easily build the relevant WTO standards into the proposed UGC exception, similar to the existing provisions in the Hong Kong Copyright Ordinance and the laws of other jurisdictions. The government could also introduce a fair dealing exception for UGC. If it takes the position that fair dealing exceptions meet international standards, a fair dealing exception for UGC will clearly meet those standards.

In addition, the government could introduce a quid pro quo arrangement that allows authors and copyright owners to use the internet users’ derivative creations for predominantly non-commercial purposes. If significant commercial interests are involved, the government could also introduce a profit-sharing arrangement that requires internet users and intermediaries to provide equitable remuneration to copyright owners. Levy systems, for example, have been widely practiced in Canada, Europe, the United States and other parts of the world.

Even if the government remains reluctant to legalize the creation of UGC, in light of the ongoing, unsettled international copyright policy debate, the government could introduce laws to prevent internet users from being criminally prosecuted or sued in civil actions. The government could also institute a five-year sunset period for the proposed exception?if it considers a permanent exception unsuitable for a rapidly changing licensing environment.

In sum, regardless of whether one agrees with the Hong Kong government's?highly restrictive interpretation of the?TRIPS Agreement, many ways still exist to address its international compliance concerns.?From the standpoint of examining the expediency and viability of transplanting the Canadian UGC exception abroad, it is also important to separate drafting problems from modelling problems.?A good model of legal transplant should not be abandoned when adaptations can be made to improve the transplanted law.

Peter K. Yu, an affiliated scholar of IP Osgoode, holds the Kern Family Chair in Intellectual Property Law at Drake University Law School in the United States. Born and raised in Hong Kong, he serves as the general editor of?The WIPO Journal?published by the World Intellectual Property Organization and chairs the Committee on International Intellectual Property of the American Branch of the International Law Association.

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The problem? In 2001, Wujian Xili Textile Co Ltd, in Jiangsu province, “喜力” with the Changan Trademark office in association with “sewing needles and stitches”. Last month Heineken accused Wujian Xili Textile Co. of pirating its trade-mark. The action was allegedly triggered by Wujian Xili's use of the name at an industry trade show in Shanghai. Cai Fuwei, Wujian Xili Textile Co.'s legal officer, has that he has never heard of Heineken beer and had never seen their branding before.

It is not yet clear whether this suit will be heard by the .


A. China’s Recent Trademark Reform: Good News for Rights-Holders?

Heineken's law suit comes at an interesting time in the Chinese legal landscape because on August 30, 2013, the the (PRC Trademark Law). While most of the revisions were procedural, there were a number of substantive changes and clarifications that may be relevant to the Heineken suit. An English summary of the revisions can be found .

Applications Made in Bad Faith: Of particular interest to foreign rights holders may be the appearance of a broad new principle that “all trademarks must be applied and used in accordance with the principles of honesty and integrity” ().

It specifically provides that if the applicant is aware of another party’s mark through a prior contractual relationship, business dealings or other prior relationship, the applicant’s application to register a trade-mark identical/similar to that party’s mark for the same/similar goods or services will be rejected if it is opposed by the party with prior use.

Recognition of Prior Use: A registered trade-mark owner who is “squatting” on a famous but as-of-yet unregistered trade-mark is no longer allowed to prohibit a prior user from continuing to use an identical/similar mark within the original scope of his or her use. However, the registrant may request the prior user add appropriate markings to distinguish the marks ().

“Use” under Chinese trade-mark law has been defined to appearance on products, packaging, containers and business papers, or use in advertisements, at exhibitions and for other business activities to designate the origin of the products ().

Clarification of China’s Protection of Well-Known Marks: The new law expressly confirms the “case-by-case” recognition principle for well-known marks and the channels of seeking well-known mark recognition (). Basically, it states that the recognition of well-known trade-marks shall be conducted by competent authorities at the request of the trade-mark holder.

Additionally, use of the phrase “well-known trademark” (“驰名商标”) is now expressly prohibited from use on goods, packaging or containers, in advertisements, exhibitions or other commercial activities. (). Any violation may be subject to injunction and a fine of 100,000 RMB (~ $16,000 USD).

Increase in Damage Awards: Before this revision, statutory damages were only about 500,000 RMB (~ $81,000 USD). This amendment has increased it to 3 million RMB (~ $490,000 USD) (). Punitive damages, up to three times the amount in other damages, are also now available when an infringement occurs in bad faith ().

The changes are scheduled to come into effect on May 1, 2014.

B.? Good News for Heineken’s Case??

How might these amendments affect Heineken’s suit against Wujian Xili? Certainly the protection of well-known marks and the recognition of prior use of the mark appear to weigh in Heineken’s favor, given that Heineken entered the Chinese market before Wujian Xili registered for the mark. Moreover, some blogs have reported that Wujian Xili has been censured for in the past by - suggesting an opposition from Heineken may receive sympathy by the Trademark Review and Application Board.

Silence on Dilution: There is, however, one nagging problem for Heineken - the continued absence of the explicit codification of the dilution principle in Chinese law.? Protection against “brand dilution,” is the protection from a third party who seeks to use a registered trade-mark for an unrelated product. The existence of this principle in China's civil law regime has been a matter of some among academics and practitioners.

To help shed some light on these developments, I sat down with of Hong Kong University who teaches "International Comparative Intellectual Property Law" at HKU. The following is a transcript of that interview.

C.????? Policy Discussion with Dr. Yahong Li

Beatrice Sze: Thanks for sitting down with me today, Dr. Li.

Dr. Li: My pleasure.

Beatrice Sze: Having lived and worked in the Beijing, the United States, and Hong Kong, in your opinion, why do you think China is revising its IP laws now after so many years of being the world’s “Copycat Center”?

Dr. Li: Well first, I think the PRC recognizes that many of its laws are outdated and in need of revision, if only to clean up some of the procedural inefficiencies involved in application and objection. So there is a large practical consideration here. [Editor’s note: The last time there was a major overhaul of the Trademark Act was in 2001.]

Secondly, the impression I get from these amendments is that the PRC is serious about answering the call from the international community to strengthen its protection of IPRs. To me the increase of the damage awards available to rights holders and the inclusion of punitive damages is the strongest indicator of this.

Beatrice Sze: What makes you say that? What makes these revisions substantive as opposed to empty gestures?

Dr. Li: What most people need to understand about China is that, while it has been a member of WIPO for nearly 30 years, its status as a formidable global economy is a relatively recent development. For the last 30 years it has largely been a developing country. Ten years ago, when these laws were drafted, an $81,000 USD award seemed like a low award to most American and European businesses. However, the reality is that kind of award would have crippled many Chinese businesses. The fact that the PRC is revising its laws to reflect the country’s economic growth indicates to me that it is serious about meeting the WTO obligations and the bilateral treaties it recently signed with other countries in Asia.

Beatrice Sze:?What do you think of Heineken’s case? Does the beer company have a shot given the difference between the products and wares in question?

Dr. Li: Yes, as you mentioned in your analysis, to me this case raises the question of whether or not the dilution doctrine is alive in Chinese jurisprudence. Heineken is claiming infringement of its trademark with respect to beer and Textile Co. has been using it with respect to sewing machines.? It is worth noting that there have been some decisions in which Chinese courts have adopted the American approach [Editor's note: which protects against dilution as a matter of law].? However, because China operates under a civil law regime, these decisions are not binding upon future courts or tribunals.

Beatrice Sze:?So it seems like Chinese law has a ways to go in its growth before rights-holders can be assured of the same kind of protection they are used to receiving in the United States and EU.

Dr. Li: Yes, I'd agree with that statement. Although I would suggest that this is certainly a step in the right direction.

Beatrice Sze:?It seems like it's an exciting time to be in this field - particularly in this part of the world.? Cheers!

Dr. Li: It is indeed. ?干杯! [Translation: "Cheers!" Pronounced:"Gan bei!"]

Dr. Yahong Li is an Associate Professor and Deputy Head at the Department of Law at HKU. She is also an Associate Director at HKU Technology Transfer Office.?? Read more of Dr. Li 's research in her book “” (Edward Elgar, 2010).

Beatrice Sze is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. She is currently on exchange at Hong Kong University studying international law and the intellectual property and commercial laws of China.

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Stakeholders from all of the above-mentioned groups and more gathered at the in Indonesia, October 22-25, 2013, to discuss all manner of issues related to including online surveillance, privacy, big data, online child protection, youth perspectives, cybersecurity and cybercrime, freedom of expression, ?and?access to information, human rights in context of the Internet, jurisdictional conflicts and harmonization, international development, and of course, intellectual property (relating mostly to copyright and domain names). First convened by the United Nations in 2006, the IGF is the world's largest and highest-profile conference wholly dedicated to the betterment of the Internet and its continued governance and preservation. With no binding goals, negotiations, or decision , the ostensibly affair provides a platform for otherwise-rare direct dialogue between multiple cross-sections of society and mass cross-pollination of ideas, general principles, and best practices, which can be taken back by members to be used in their own decision-making processes.

This year, the Indonesian government—whose national population includes over 63 million Internet users—hosted approximately 2000 delegates from 111 countries, who explored this year's across 135 workshops, focus sessions, open forums, roundtables, and panels (with more participating remotely and millions checking in on Twitter). Organizers made a concerted effort to integrate into the sessions more tangible policy outcomes that participants could take away with them, as well as attention to initiatives. Meanwhile, “ ” and “” constituted an underlying all discussions, while “” and “” infused electric static into the air.

As providing complete coverage of all news, events, discussions, and ideas that emerged during the week-long IGF within one post would be impossible, this article will restrict itself to highlighting certain issues directly encompassed by intellectual property law, particularly those explored in a titled, “”.

1. Square Laws in Round Processes: Has Copyright Policy Gone Awry With Respect To Technological Reality?

This question challenges the notion that current and trending copyright legal frameworks are at all suitable for the way Internet infrastructures and associated technologies work today, suggesting increasing misalignment between laws designed in a more analog world and technological processes where copying is strictly incidental to otherwise legitimate use of the work. Glenn Deen of NBCUniversal asserted that technology should be “policy-neutral”, as in developed without any particular policy favoured or hindered by or coded into the technology itself. In other words, copyright policies should be created such that they fit the technology, rather than the other way around. Other panellists agreed but maintained this is currently not the case—technology has not been made policy-neutral, and through phenomena such as institutional capture of standards fora, it has in fact been designed to promote and enforce certain policies (examples of this are technological protection measures (TPM) and digital rights management (DRM) systems). , argues , takes the Internet for granted and distorts its basic architecture, such as by turning neutral online intermediaries into unofficial law enforcement entities with respect to user behaviour.

2. The Librarians Strike Back: This Isn't the Copying You're Looking For

of the made a compelling case for copyright law to pay closer attention to the kind of copying involved in different situations. Sharing others' concerns over unbalanced copyright frameworks, she explained how in a library research access context provides a clear illustration of copyright laws not fitting an Internet environment. According to Broad, text and data mining is one of several “productive, non-harmful uses” that operated freely outside the realm of copyright in a print environment, but are now captured by copyright frameworks purely through the incidental copying that occurs as part of Internet-enabled technological processes today. She compared licensing text and data mining, in essence the extraction of information, to “placing a toll on the information highway”.

While Article 5.1 of the exempts "[t]emporary acts of reproduction...which are transient or incidental [and] an integral and essential part of a technological process,” in transmitting content between computers, this is a narrow exception that will not encompass all cases that require protection, such as text and data mining. Furthermore, as Broad points out, such a framework presumes infringement unless proven otherwise; one must make an exception rather than find the use not infringing at all to begin with.

Lastly, e-books and their associated licensing regimes present “a huge challenge” in terms of access for consumers, academics, public libraries, and the visually impaired, among other user groups. With respect to the visually impaired, users must overcome obstacles by acquiring a right to remove from the content (recently enshrined in the universally lauded , the first-ever agreement to limit rather than expand copyright), and by possessing the technical ability to actually remove the TPM and access the content through assistive devices. In these respects, some at the IGF spoke of licensing regimes “defeating the purposes of the Internet”, particularly in the context of , where public libraries can play a valuable role in providing access to information.

3. Say It to Belie It: The Language of Limits and Exceptions in Copyright Law

One current problem that IGF 2013 participants identified with current copyright law is its unbalanced nature: in many jurisdictions and on an international level, rather than balancing copyright against user/access rights as if the latter were of equal weight, laws provide for overarching copyright with specific exceptions that are explicitly carved out. The starting point of the law is not one where the limits and exceptions hold the same weight as copyright; this is reinforced by their being referred to precisely as “limits” and “exceptions” to an otherwise default backdrop of established copyright. Speakers suggested instituting a new international norm that would conceptually elevate rights of access and other “limits” or “exceptions” to the same level as copyright in order to better protect them, as seen in the Marrakesh Treaty. As asserted, “We often talk about copyright substantive rights...and having carve-outs for limitations and exceptions.... [W]e should dispatch with that language and think about them as equal partners balancing each other.”

4. Meanwhile at WIPO: Additional Issues & Initiatives

Initiatives and ideas beyond those outlined above were featured in IGF 2013 presentations. These included - according to WIPO legal officer Paolo Lanteri - the ; a WIPO study on and a WIPO-compatible, world-standardized licence (to be released within the next few weeks). Regarding the latter, Ari Gema of Creative Commons Indonesia pointed out the need to educate the general population on the concept of copyright before introducing the Creative Commons license, hinting at cultural and regional differences in the significance and relevance of copyright, and the potential implications for corresponding law, regulation, and policy.

Lest the Marrakesh Treaty be a one-time in terms of internationally-accepted limitations to copyright, the IFLA is working on a , to establish “a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials”.

Lastly, in keeping with the spirit of IGF, a panel titled, "" that "multistakeholderism" was the preferred approach to formulating internet copyright policy and frameworks going forward, despite drawbacks such as being potentially inefficient, time-consuming, or inconclusive.

5. Say 你好?to язык.?????(aka Internationalized Domain Names)!

In a palpable boost to principles of multilingual access and globalization of the Internet, CEO Fadi Chehadé revealed at the IGF 2013 opening ceremony, to rousing applause, that Arabic, Russian, and Chinese i were delegated to the Internet root for the first time. This means that one can now register websites ending in “dot [insert Arabic, Cyrillic, or Chinese characters here]”, resulting in expanded online accessibility for those who use technology—including keyboards—exclusively in one of the three languages added. This will likely have an impact on trademark law in different parts of the world, in the context of branding and domain names, although trademark as managed by the (TMCH) currently provide for ASCII (English and Latin) characters alone.

Logging Out

As mentioned above, this was but a peephole into the ongoings of IGF 2013. Even live, it could only be experienced in self-tailored slices given how much was going on at any given moment. For those who are interested in learning more, are available on the IGF website and further comments and insights abound on the Twitter backchannel, not to mention the multitude of papers, articles, blog posts, updates, and analyses written throughout and in response to the forum. If we care about preserving, protecting, and bettering the Internet as we know it, the least we can do is start by getting to know it.

Cynthia Khoo is a JD Candidate at the University of Victoria. She is currently completing an exchange semester at the National University of Singapore, Faculty of Law.?

The post When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013 appeared first on IPOsgoode.

The panel addressed the international aspects of UGC in two different ways: both through public international law obligations imposed on Canada as a result of international treaties, and through addressing private international law issues concerning liability and potential defences to infringement in different jurisdictions.

Sookman: Is the UGC Exception in Conformity with International Treaty Standards?

Barry Sookman's talk focused on whether or not the UGC exception complies with international obligations, in particular the ?(and the provisions of Berne incorporated into the WTO's ).

Sookman has previously mentioned that the Copyright Modernization Act could run afoul of Canada's international obligations by creating “” of new exceptions. His presentation during Thursday's panel elaborated upon how the UGC exception could fail to satisfy the “three step test” for permissible exceptions to copyright protection provided for in: where the exception applies only in “certain special cases”, does “not conflict with normal exploitation of the work”, and does not “unreasonably prejudice the legitimate interests of the author”.

Sookman argued that the UGC exception, which applies to all works and subject matter so long as it is used in a non-commercial context does not qualify as a “special case”, nor is it “certain” when it would apply. Moreover, the provision that addresses economic impact (at ) uses the terminology “does not have a substantial adverse effect”, rather than “does not conflict with the normal exploitation of the work” - which raises questions about whether the provision creates a higher burden for rights holders than expressed under the Berne Convention.

Finally, Sookman took issue with the fact that s 29.21(1)(d) seems to allow users to unreasonably prejudice the interests of the author, as the provision does not clearly allow authors to exercise their moral rights in the context of UGC. In comments which echoed the concerns of Marian Hebb, a panelist from earlier in the day, Sookman pointed out that the exception may not allow an author to prevent certain uses of her works for non-financial reasons – including prejudice to her honour or reputation.

Blom: Private International Law and the UGC Exception

Prof. Joost Blom of the UBC Faculty of Law rounded out the panel by talking about the UGC exception in the context of the Conflict of Law rules. Prof. Blom's discussion of IP liability and jurisdiction seems particularly important given the global operation of the market for copyright-protected subject matter and a by the European Court of Justice (to see the IPilogue's coverage of this decision, click ).

Blom began his presentation by outlining the three fundamental questions posed by private international law:

1. Jurisdiction (Where can a proceeding can be initiated?)
2. Choice of Law (Under what rules is a proceeding decided?)
3. Foreign Judgments (Will a judgment in a proceeding be enforced in another jurisdiction?)

Blom indicated that although IP rights are territorially defined, much infringing activity takes place either abroad or on the Internet (the nature of which can make the question of where an infringement has occurred very difficult to determine). In previous infringement proceedings involving the Internet, the Supreme Court has held that a plaintiff must establish a “” between the actionable wrong and Canada before a Canadian court may assume jurisdiction over a proceeding. However, as mentioned by Prof. Blom, this terminology is not specific enough to allow Canadian users to adequately assess their risks before reproducing or communicating their personal UGC.

Prof. Blom provided a powerful example of the potential international liability of creators of UGC, even given the recent amendments to the Copyright Act. Imagine a group of UBC students use five popular songs in a “flash mob” demonstration on campus. The flash mob is recorded, and the subsequent recording is uploaded on YouTube.

In this scenario, the student group has potentially infringed on three different exclusive rights: the right of reproduction, the right of performance and the right of communicating the work to the public. The first two acts occur in Canada, but the third could occur anywhere in the world – and although the UGC exception could exempt the student group from liability in Canada, it would be ineffective against a proceeding brought under any other jurisdiction (such as the USA).

Prof. Blom's presentation, therefore, served as a strong reminder that in the digital age, a domestic exception to copyright infringement only provides limited protection when the new work is provided on the Internet.

David Bowden is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post International Aspects of the New User-Generated Content Exception in the Copyright Act appeared first on IPOsgoode.

The Guide’s primary author is Canadian . In the Guide’s acknowledgments, Pantalony recognized the instrumental help of fellow Canadian art IP expert . Art and law commenters the new guide, but that it fails to address what museums can do when faced with copyright law shortcomings born from the in counterfeit art facilitated by new technologies. The Guide openly states that it “does not argue for strong or weak IP protection” but rather focuses on how museums can manage IP while balancing their societal mandates to be centres of learning and intellectual curiosity.

Analysis: Guide Review

This 90-page document is a must read for anyone in the museum, art or cultural industries. It’s an accessible, straightforward read. Given the variability in copyright and intellectual property between countries, it acts to whet the appetite of anyone looking for a general guide to the issues of art and culture preservation within a legal context.

Moreover, the document flows brilliantly. The author takes the reader through introductory definition chapters; for example, how copyright and trade-marks are defined in a museum context. The author then goes into heavier issues such as best practices for a museum IP audit. It also covers digital rights management solutions and notes on social media and museums. It includes case studies of successful museum IP management models around the world. Finally, it lists out important commercial considerations such as distribution, licensing and co-branding with non-museum entities.

In regards to the Guide’s attempt to take a neutral position vis-à-vis the laws themselves, there is certainly no such thing as neutrality, especially when it comes to museum art and ownership. One need look no further than the or the to know that even where the law is clear, politics pervades. Additionally, WIPO in its entirety has for its western cultural and legal bias.

Another controversial issues is that assertive museum IP policies – aptly described in Canadian Heritage Information Network’s (CHIN’s) as the demise of the “” – can have a on museums as educative experiences for consumers.?Growing focus on IP laws by museums increases the tension between museums and the consumers of the content; copyright versus education is one of the most common debates in intellectual property law. One of the most obvious examples of this, one that touches all of us, is the way museums choose to restrict visitor photography. Some museums believe that photos violate intellectual property, while some and ?are advocating for more open photo policies.

Even with these tectonic issues underlying museum IP and WIPO, the Guide does do a fairly good job of being fair. It attempts to stand back from the fray and be as politically agnostic in its recommendations as possible. And it succeeds.

On a final personal note, it’s nice to see the Canadian authors and those that influenced the document comfortably promote our domestic museum management practices on the world stage. CHIN's Community Memories initiative for smaller Canadian museums and community centre archives is profiled. The Guide also outlines CHIN’s North America-wide studies of museum IP and management practices. And finally, the Guide profiles the Department of Heritage’s launch of the , an online museum of internet-based exhibitions.

So even amidst mild criticisms of the Guide’s neutrality in regards to the current IP laws, it’s hard not to be proud of this document, its authors, and the progressive work that Canada has done to support museums and their IP management.

Denise Brunsdon is an IPilogue Editor, JD/MBA Candidate at Western University, and researcher for GRAND (Graphics, Research and New Media) Centre.

The post Canadians Make Their Mark on Global Guide for Museum IP appeared first on IPOsgoode.

Background

This LRO by the Objector was one of 14 objections that have so far been decided by , all of which have been rejected. For further coverage of these 14 decisions, and the framework that WIPO and the?Internet Corporation for Assigned Names and Numbers () works within, see past IPilogue coverage .

The Parties

Afilias Limited (the?) is a domain holding and development?organization based in Ireland that owns and manages many other domains, including .info, .mobi and .org. The Panel decision shows that?their intent in applying for the .mls domain is to develop it into a worldwide domain for the listing of real estate properties.

The Canadian Real Estate Association of Ottawa (the?) is a Canadian not-for-profit trade organization?involved?in the management of real estate professionals in Canada. The Objector also possesses a certification mark for MLS, which its members use to brand real estate advertisements.

The Meaning of MLS

The letters "MLS" are??as an?abbreviation?for Multiple Listing Service; services used for displaying residential and commercial real estate properties for sale or lease. The Panel discussed the nature of the term, and its usage across English and non-English speaking countries both as a generic term for a collection of real estate listings, but also its other meanings.

The Decision

The??included two findings: first, a determination of whether the Objector has a legal right adequate for an LRO; and second, whether that legal right was?sufficient?to block the registration of .mls by the Applicant.

The adequacy of the Objector's legal right was brought up by the Applicant, who challenged the Objector's certification mark in "MLS" as insufficient for an LRO under the . The Panel found that under interpretation of the Guide Book, a?certification?mark is a sufficient right with which to challenge a gTLD registration. The Panel relied upon the fact that such marks, in addition to unregistered?trade-marks?are all sufficient for domain name?objections?under the?. The Panel also found there is nothing indicating the intention of ICANN to exclude these types of rights as insufficient for providing standing to launch an LRO.

Once the Panel established the Objector had?standing?to challenge the application, they considered the Objection. There were three key findings that caused the Panel to reject the LRO.

The Panel first discussed what level of infringement is?required?for a?successful?objection. Here they adopted the approach used in?, in which the Panel interpreted the Guide Book as?requiring?a high level of infringement to the point of "untoward impairment" of the Objector's rights, or something "intolerable" in allowing the gTLD registration. Many have seen this as an exceeding high level of?infringement, making it very difficult to raise a successful Objection.

Once this objectionable level of?infringement?was defined, the Panel considered if the infringement by the Applicant would rise to this level. Of key finding here was that the term "MLS" is widely considered a generic term, which would not qualify for trade-mark registration in many jurisdictions. Even in Canada, the Objector does not hold a trade-mark for the term, but a certification mark. The Panel also?found?that the Objector holds those rights only in Canada, and nowhere internationally where the term is used as a general term and not a trade-mark. While finding this, the Panel did acknowledge that the Objector does hold title to "MLS" in Canada, and that?impairment?of that mark?would?result from issuing the .mls domain to the Applicant. The Panel rejected, however, the objection as the?potential?infringement?failed to rise to the level adopted from?Right at Home.?

Commentary

Taken in context with the other 14 rejected LROs, this decision further bolsters future gTLD applicants in two ways. It first endorses the high bar for permissible infringement set out by?Right at Home, and second it?highlights?the difficulties any objector will have establishing an objection to the registration of a generic term when they possess a legal right in only limited jurisdictions. ?There is some good news for future Objectors?however, as the decision acknowledges both Certification Marks and Unregistered Marks as valid bases to propose an LROs. Given the exceedingly high allowance of ?permissible infringement, however,? it is difficult to see what will be required for a successful LRO. This paints an overall ominous future for other potential Objectors.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at The University of British Columbia.

The post Canadian Objection to proposed .mls domain .rejected appeared first on IPOsgoode.