Legal issues are crucial to the commercialization of new technologies. This course will focus on issues related to the creation, development, protection and exploitation of intellectual property rights as a business asset for both high-growth start-ups and established businesses. We will examine the entire process of creating, capturing, protecting, leveraging and transferring technology and ideas, including internal strategies designed to create a culture of innovation; deciding whether, what, where, and how to obtain IP registrations and the related economics; the development of a commercialization strategy (such as selecting the target market and application for the idea) and business model; drafting and negotiation of related agreements; offensive and defensive IP strategies; assessing competitive IP; negotiating and interpreting IP sensitive contracts ; transactional IP processes, with discussion on emerging markets; and key technology specific legal issues relating to software, digital communications and data processing, mobile devices and social media, financial services and life sciences. The course will also address the financing options available to the high-growth start-up, including crowd-sourcing and other modern financing techniques, as well as a general overview of pertinent tax ad structural topics. Media coverage of current developments and case studies will be introduced to enrich class discussions. Guest speakers will include leading experts in the field. While students with some background in substantive areas are welcome, no prior experience in these areas is required. Of course it goes without saying that a keen enthusiasm to learn about IP issues and participation in the course are encouraged by the instructors. All IP Osgoode Innovation Clinic students are required to enrol in this course.
Course or Seminar Category: Technology and the Law
Legal Values: Copyright Policy in the Making
The development of digital and network technologies has posed both opportunities and challenges for creators, publishers, and users of intellectual works. For the most part, copyright law has evolved to address these challenges by extending to embrace new media. But how well do traditional copyright principles and doctrine, developed in the heyday of the printing press, apply in the digital era when works can be created, shared, and transformed more easily than ever before? What considerations should be brought to bear by policymakers as they respond to urgent calls for copyright to “catch up.”
The objective of this seminar is to examine some of the key copyright policy questions currently before Canada’s Federal Government Departments of Innovation, Science and Economic Development (ISED) and Canadian Heritage. The seminar exposes students to the complicated process of crafting public policy and proposing law reform, and is uniquely designed to build on (and perhaps even feed into) ongoing public consultations on amendments to Canada’s Copyright Act. Students will tackle issues such as Technological Neutrality and the Copyright Balance; Authorship and Artificial Intelligence; Reproduction for Informational Analysis (Text & Data Mining); Digital Locks and the Right of Repair; Intermediary Liability and Website-blocking; the Regulation of Digital News Intermediaries; Non-Fungible-Tokens and Digital Art; User-Generated Content and Fair Dealing; Controlled Digital Lending and e-Books; Crown Copyright; and Copyright Term Extension. We will critically examine recent policy reports, bills, statutory amendments, treaties, and case law, as well as emerging industry and consumer practices, stakeholder demands, and the political dynamics of the copyright lawmaking scene. Copyright policy implicates, in addition to the letter and spirit of Canada’s Copyright Act, issues of constitutional law and fundamental rights, international and comparative law, and socio-legal theory.
Directed Reading: IP Innovation Clinic
The IP Innovation Program was established in 2019, to support the work of the IP Innovation Clinic, founded in 2010 by Prof Pina D’Agostino. The IP Innovation Clinic is a year-round, needs-based innovation-to-society intellectual property (IP) legal clinic operated in collaboration with Innovation York and supervising law firms Norton Rose Fulbright Canada LLP, Bereskin & Parr LLP and Own Innovation. Under the guidance and mentorship of the Clinic Director and supervising lawyers, law students provide one-to-one legal information services (not legal advice) to inventors, entrepreneurs, and start-up companies to assist with the commercialization processes. Through this hands-on practical experience, law students learn about common early-stage IP and business issues facing actors in the innovation ecosystem.
Under the rubric of the IP Innovation Program, approximately 15 upper year law students called “senior clinic fellows” (2L and 3L students) will work in the clinic for the academic year, under the supervision of the Clinic Director, lawyers, and the Clinic Supervisor. Senior clinic fellows spend approximately 6 hours/week throughout the year on client file-related work and clinical projects. The clinical work includes managing at least two client files, conducting intake meetings, performing prior art searches, reviewing patent specifications, performing freedom-to-operate and clearance searches, reviewing IP licensing transactions, assisting with the preparation and filing of provisional patent applications, drafting memos and conducting legal research. In addition to client file-related work, senior clinic fellows will also work on clinical projects, such as providing IP awareness and education to the clinic clients and the community. IP awareness and education activities include presentations and/or workshops about the basics of IP law, commercialization, licensing, IP strategy, etc.
In addition to the approximately 78 hours per semester on client file-related work and clinic projects, Senior clinic fellows will attend pre-scheduled, mandatory 2-hour monthly seminars with the Clinic Director (and Clinic Supervisor and sometimes guests and/or participating supervising lawyers) and attend other informal meetings as necessary. The purpose of the seminars will be to deepen the students’ understanding of IP in a practical context, the role of IP in commercialization and IP skills and strategies. Students will also have an opportunity to rotate on presenting and discussing assigned reading materials on select topics to enhance their collective learning and reflection of their clinical work, and wider community legal IP context. Presentations and seminars may take place online via Zoom or other similar platform with mandatory audio and video participation for Senior clinic fellows.
Senior clinic fellows will keep a weekly reflective journal and submit it for review by the Program Director at the end of the term.
Entertainment & Sports Law
This seminar course comprises two components:
1. Entertainment Law
The entertainment law portion of the seminar will focus on matters of essential concern to persons in the entertainment industry and their legal advisors. Upstream, we will examine chain-of-title to underlying rights, acquisition of primary, format and subsidiary rights, and perfecting rights from technical and creative personnel, including copyright and other legal considerations. A discussion of personal service contracts will include an examination of the basic terms and types of agreements between service providers and their engagers. Downstream, we will examine distribution and other exploitation of entertainment properties, and the use of incentives as an instrument of government policy in the development of both an indigenous and non-indigenous entertainment sector in Canada. We will also review business modelling, financing and related legal considerations in film and television, music recordation and publishing, the literary arts, and in theatre and live performance, including tax implications, international treaties, government regulation and the sources and vehicles of financing.
2. Sports Law
In the sports law portion of the seminar, we will examine the legal relationship between the athlete and his or her engager, including the concept of the standard player contract and individual and collective bargaining/negotiation versus traditional legal concepts of conduct that is otherwise anti-competitive or in restraint of trade. We will also consider the phenomenon of the “problem athlete”, including the imposition of discipline both at the team employer and league level, and related judicial review. Lastly, we will examine interference with contractual and economic relationships between athlete and engager, including the concepts of inducing breach of contract and tampering in the sports context.
Comparative Law: Privacy & Access to Information
The subject of privacy in 21st century society raises questions in a number of inter-related disciplines, including law, philosophy, sociology, information technology, health care and political science. This seminar introduces and explores the subject of privacy and personal information protection as well as concepts related to data governance and management.
Classes are organized around discussions of current issues in privacy law and policy, based on lectures concerning Canadian and international privacy and data protection law as well as student reading assignments. While the course covers key conceptual foundations of privacy as found in the western legal tradition, some sessions will be spent examining the subject from critical perspectives, including group and feminist views on privacy and data protection.
Students’ participation is required and actively encouraged.
Legal Values: Commercializing IP
Navigating legal issues is crucial to the commercialization of new technologies. This course will examine the application of substantive intellectual property (IP) law in the context of IP management for in-house lawyers or IP managers within IP-rich organizations. Through case studies and facilitated discussion, students will apply principles central to IP management, including creation, development, protection, and exploitation of intellectual property rights as a business asset. Guest speakers will supplement the course’s examination of key technology specific issues relating to high technology and sciences.
In particular, this course will examine the process of creating, capturing, protecting, leveraging and transferring technology and ideas, including internal strategies designed to create a culture of innovation; deciding whether, what, where, and how to obtain IP registrations and the related economics; the development of a commercialization strategy (such as selecting the target market and application for the idea) and business model; drafting and negotiating related agreements; offensive and defensive IP strategies; assessing competitive IP; negotiating and interpreting IP sensitive contracts; and transactional IP processes.
While students with background in substantive areas are welcome, no prior experience is required. A keen enthusiasm to learn about IP as an asset and participation in the course is encouraged by the instructors.
Law, Society & State: Cybercrime
Cybercrime is on the rise. In fact, today, it is everywhere. It dominates the news. Ransomware attacks. Data breaches. Online sexual violence offences. Digital hate speech. Even our social media is now flooded with conduct that is arguably criminal. Consider the mocking Johnny Depp/Amber Heard TikTok videos, for example.
The law is playing catch up in this area, as judges, practitioners, and policymakers struggle to come to grips with how to best deal with the problem. As a result, some of the most challenging and interesting developments in our legal system now arise in the context of crimes committed via the Internet and computers.
This seminar will explore the legal and policy challenges presented by our online digital world. No prior knowledge of the subject matter is required. We will start with the basics and then move toward an advanced study of cyber-related law and procedure, focusing on how it ought to apply in the digital world. We’ll ask: “What is cybercrime?” What types of conduct ought to be criminalized? We’ll explore some of the key variants of offences that come up time and again, such as hacking and phishing, ransomware, and data theft. We’ll do a deep dive on cryptocurrency. We’ll look at the jurisdictional challenges created by crimes that run across national borders. We’ll look at the ways in which cybercrime differs from traditional crimes and the challenges it poses for law enforcement. And perhaps most importantly, we will devote a significant amount of time to exploring how the criminal law and policy concepts that you learned about in first year might be adapted to apply in the cyber context. Examples include: considering our expectations of privacy in the digital age; the application of traditional search and seizure concepts to online police work such as taking over Gmail accounts or acquiring a target’s Facebook messages; the right against self-incrimination and right to counsel when it comes to compelling passwords or forced biometric scans; regulating online speech; prohibiting ransom payments; allowing officers to pose online as sex trafficking victims to capture would-be online predators; monitoring and criminalizing the online distribution of intimate images; etc. In short: We’ll have a broad, discussion-based seminar in which we chat about the unique problems posed by this emerging area of the law and how society might choose to deal with them.
Law, Society & State: Derivatives Law & Crypto Contracts
Derivatives products have exploded in the last 30 years from being used for important risk hedging in the institutional sector to large speculative trading. We are now seeing a similar explosion of activity for retail investors particularly in the crypto trading area.
This is a two hour course that provides a history of the development of derivatives, and overview and explanation of derivatives and derivatives regulation in Canada and internationally, including crypto assets and the regulation of crypto trading, from the perspective of a regulator. We will review the Ontario Securities Act, regulations and policies, as it relates to derivatives and also look at futures oversight under the Commodity Futures Act and have an in-depth discussion of the post financial meltdown derivatives regulatory reform. We will also provide an introduction to documentation of OTC derivatives.
We will then examine blockchain technology and how it is used in crypto contracts and currencies, Defi, NFT’s, stablecoins, and staking. We will review the developing oversight regime for these products and participants in Canada and internationally. We will discuss the gaps in regulation in this area and look at the Quadriga example to assess the risks involved in trading in these markets and the role of regulation to prevent further investor losses.
In a fast developing new area of the law this will provide students an up to date discussion that will be adjusted through the course to accommodate new developments, particularly as it relates to the oversight of the crypto markets. We will also ask questions regarding these new volatile markets like: Is there anything underlying these assets? Is this the present day version of tulip mania? Will crypto currencies be around for decades or will they be short term speculative investments that benefit some to the detriment of many? Or are they the future that will replace sovereign currencies and provide cheaper sources of payment that will remove the costs associated with financial intermediation from Banks? Who should invest in these products? Who shouldn’t?
The goal is to have students leave the course with a solid grounding in derivatives, crypto and derivatives law. We will use a multi media approach using a variety of related printed and online materials. There will also be expert guest lecturers for some of these topics.
Trademarks
This course explores the legal protection of ‘trade identity’ afforded by the common law and intellectual property rights over signs that indicate the source of goods or services. The course offers students the opportunity to learn about the laws that protect the logos and brands that make up such an essential feature of today’s consumer culture, modern marketing practices, and the creation of commercial value. The focus is on the federal Trademarks Act and its impact on private rights to regulate trademark use and unfair competitive practices. This will include analysis of newly enacted statutory reforms. Topics to be examined include the common law action for passing off, the criteria for trademark registration, the basis for opposing an application or expunging a registration, trademark distinctiveness, use and infringement.
As well as familiarizing students with the substantive law in the area, the course seeks to assess trademark law from the point of view of its normative justifications and policy objectives. We will inquire into the basis of the rights protected and their appropriate limits, and examine the law in light of the various interests at stake, from the entrepreneur’s interest in preventing ‘free-riding’ to the competitor’s interest in free competition, and from the consumer’s interest in avoiding confusion to the public’s interest in full information and free expression.
Objectives: By the end of the course, students will be familiar with the fundamentals of Canadian trademark law, including the common law tort of passing off and the main provisions of the Trade-marks Act. Students will also be able to explain and critically assess the principles, policies and practicalities that shape this area of law.
As such, students successfully completing this course will be able to:
– Address any problem in Canadian trade-mark law relating to ownership, validity, rights, infringment and defences;
– Identify, understand and explain the key provisions of Canada’s Trade-mark Act and judicial efforts to interpret and apply them;
– Recognize the main policy issues that underlie and animate trade-mark law and, in light of those issues, comment critically on case law and legislation;
– Understand and evaluate various justifications for the protection of trade-marks and other distinctive indicia, and recognize and describe the connection between these justifications and the evolution of the law.
Law & Social Change: Disability, Technology and Law
What is the role of technology in advancing the rights and welfare of about a billion individuals with disabilities in the world today? Is technological advancement a catalyst for a more inclusive society? How so? Does technology enhance access for people with disabilities, and access to what exactly? Does it ultimately and unconditionally lead to fostering respect for their human dignity? Is dignity relevant here and should we be bound by a timeless and universal understanding of that in assessing the present and future impact of technology on the well-being of people with disabilities? Most importantly, does and should technology change our understanding of (dis)ability? Does technological advancement change the relationship between law and disability? How?
This course is a collective exercise in tackling these and related questions in an introductory fashion. The literature on disability rights and technology is a tripod: ethics of approaching disability (such as questions arising from medical and genetic technology, artificial intelligence etc.); human and civile rights of people with disabilities and their full inclusion in the society (such as questions of standards of access and meaningful participation as citizens); and disability and development (such as questions around the role of technology in reducing socio-economic and power disparities or creating new unanticipated forms of that among individuals with disabilities in the world or between the disabled and able-bodied population). We will become familiar with this tripod in order to open a new window to the evolving relation between disability, technology, and law.
Central to this new path is a fundamental focus on the future of our understanding of disability in light of inevitable and fast-growing technological changes. Could it be the case that law’s anxious choice between a medical and social approach to disability will have to come to terms with new and further sources of confusion when the enabling or further disabling impact of technology will ruffle current definitions of (dis)ability? If those definitions are destabilized, so shall the punitive, identity-protecting labels such as ‘ablism’ that further divides the disabled from the able.