What does copyright protect? ĢżĢż

Copyright exists in every original literary, dramatic, musical, and artistic work. Creativity is not necessary, rather the only requires that an individual exercise their skill and judgement in creating a work. Text documents, computer programs, photographs, templates, plans, and sketches are just some of the works that can attract copyright protection. And unlike patents and trademarks, copyright arises as soon as a work is created.Ģż Moreover, a to produce, reproduce, perform or publish the work. Generally, the creator of a work is the copyright owner. However, employer-employee relationships are a big exception to this rule.

Employees and the Copyright Act ĢżĢżĢż

Under , employers own works created by their employees during the course of their employment ā€“ unless an agreement stating otherwise exists.

The decisions that have considered what ā€œin the course of employmentā€ means are limited and were decided pre-pandemic. However, these cases suggest that work created after hours and outside the office may still belong to the employer if it relates to the employeeā€™s duties.

In 2009 ONSC 11215, the Ontario Superior Court held that it was immaterial that an employee had created a project on his own time. In this case, the court found that the employee was developing a product in his off-hours to compete with his employer.

Similarly, the Ontario Court of Appeal in 1998 ONCA 7126 held that labelling a project as ā€œpersonalā€ does not determine who is the copyright owner.

Contrast these decisions with 2014 BCSC 1559. In this case, the defendant school employer was held liable for copyright infringement after publishing an instructorā€™s photo on the schoolā€™s Facebook page without permission. Although the teacher took the photo in a school classroom during a school event, the BC Supreme Court concluded that the location was not enough to transfer copyright to the employer. Again, the court looked at the nature of the employeeā€™s duties and determined that the school hired the instructor to teach. Photography fell outside the scope of the instructorā€™s general employment duties, therefore the copyright did not belong to the employer.

It is worth noting that only applies to employees. Independent contractors generally retain copyright ownership over their work unless a contract states otherwise.

Distinguishing between employers and independent contractors

No single test exists to determine whether someone is an . Instead, the nature of the relationship needs to be examined to determine whether a person is in business for themselves (independent contractor) or working for someone else (employee).ĢżĢż
How much control an employer has over a workerā€™s activities is always a consideration, but other factors are also relevant including whether the worker supplies their own equipment, hires their own staff, is exposed to financial risk, and has the potential opportunity to make a profit.

The shift to remote work may be on the rise, but this does not necessarily change the nature of the employment relationship. Prior to the pandemic, working from home was generally not enough to transform an employee into an independent contractor.

What about moral rights?

Copyright protects two categories of rights: economic and moral rights. Economic rights (discussed above) relate to who can make money from a work. These types of rights can be assigned to anyone.
For instance, from an employee to their employer. Moral rights are different. These are personal rights that recognize that a work is an extension of a creatorā€™s personality. As a result, moral rights can never be sold or given away to anyone ā€“ but . In an employment setting this is usually done by contract.Ģż

Without a waiver, an employee still has rights to attribution and the integrity of the work. Attribution includes the right to be credited, remain anonymous and use a pseudonym in association with the work. Integrity means that the work cannot be modified, distorted or mutilated in a way that prejudices the honour or reputation of the author.

The future of work

A published by PwC Canada concluded that remote work may be here to stay and employees appear to be for remote and flexible work options. In terms of copyright, the location where employees complete their work may not have much bearing on who owns a work.

If a work is created by an employee and is connected to their employment duties, it is more likely that the work belongs to the employer. Moving forward, the importance of clear contracts and agreements that address employee duties, particularly around IP ownership and any waiver of moral rights within a remote working environment may be of growing importance for both employers and employees.

Written by Maggie Vourakes, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

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Intellectual property (IP) can be used as a business tool by SMEs to grow. IP assets enable businesses toĢż,ĢżĢż and access to IP assistance through law firms, universities, and schools have certainlyĢż of these benefits among SMEs; however, there is still a gap in the understanding of exploiting IP in Canada.Ģż

It is crucial to recognize that registering IP is only a step towards fully realizing the commercial benefits of IP. It is unlikely that a business will be able to generate substantial financial returns unless the IP is successfully commercialized. IP commercialization means turning ideas or IP into with the view to profit and grow. Several obstacles impede the effectiveness through which IP is commercialized.

One significant issue is the lack of IP management strategiesĢż. This limited knowledge leads to the underutilization of IP held by SMEs ā€“ for example, patents owned by smaller entities have than those owned by large entities. To optimally utilize IP, SMEs must assess how their IP fits within the overall business goal and plan;ĢżĢżhelps bring value to the business through IP. There are several ways to commercialize IP (likeĢż), but choosing the most appropriate method depends on various factors specific to each business. Every approach has its advantages and drawbacks; irrespective of the method, a business will likely have to conduct an IP audit, IP valuation, and market analysis (to assess target markets, competitors, the receptiveness of IP, etc.).

SMEs may not have the appropriate level of awareness or the wherewithal to navigate the IP commercialization process. After experiencing challenges in raising capital for their business and IP protection, further investing in building an IP strategy may seem unattractive in the early stages. However, in an increasingly innovation-driven economy (with IP and data as the most ), IP commercialization becomes even more vital for success. Government initiatives, like the recently launched , are a step in the right direction. Nevertheless, more efforts need to be made at the grassroots levels to spread awareness about such initiatives and the importance of commercializing IP within Canada to avoid draining Canadaā€™s innovation economy. There is a need to increase access to resources for SMEs ā€“ both in terms of finances and human capital skilled in managing IP ā€“ to tap into the immense potential that lies in SMEs.

Written by Tanya Tawakley, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

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What is NFT?

are non-fungible tokens based on Ethereum, powered by smart contracts. means it is unique and one of a kind. It can also be understood as a proof of ownership and authenticity. is an open source and decentralized software platform, and it is also the technology behind the cryptocurrency ether (ETH).

There are various platforms for NFT marketplace, such as , , and (for sports digital collectibles).

What does NFT mean for artist, collectors and the market?

Traditionally, artists would sell the physical copy of their painting, but this business model is not as suitable for digital artworks as physical artworks. Some artists were posting their artwork , or unable to sell their digital work, because there was significant difficulties in the digital work or authenticating the owner of the original copy when there is no physical copy. With NFTs and increasing amount of marketplaces for digital works, artists might be able to finally make money with their works.

This article written by Andrew R. Chow also mentioned that NFTs seemed to encourage and applaud more creative and innovative forms of artworks - ā€œ[m]any other artists working in groundbreaking and sometimes controversial styles are also receiving unprecedented interest from NFT collectors. Art with whirling 3-D renderings, street-style oversaturated color schemes, and hyper-referential (and often crass) cartoons are thriving.ā€

For collectors and the digital art market, NFT is a proof that the person is the owner of the original copy. Collectors might be paying more for ā€œā€ or appreciation of digital arts than just for the money in this .

Concerns about NFTs?

Ioanna Lapatoura has discussed copyright ownership with respect to NFTs in her recent article on . NFT ownership is different from copyright ownership or a proprietary right over an actual asset. NFT is the ā€œproof of owning an unique digital version of an asset, rather than the asset itselfā€. There is also new type of alleged infringement ā€“ copied artwork . Since NFTs are still new and developing, there is likely to be difficulties in enforcing intellectual property rights.

Whatā€™s in the Future of NFTs?

Some people view NFTs as cards and were bidding on the virtual future. Some people were skeptical and worrying that the NFT bubble might burst. Nonetheless, NFTs are providing creators of digital works a way to monetize their work product and receive real returns for their virtual work. Since NFTs are based on the Ethereum blockchain, maybe the other question that we ought to ask is ā€“ what is Ethereum and ETHā€™s long term growth potential?

Written by Ya-En Cheng, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

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In response to issues with Canadian IP rights leaving the country and ensuring SMEs are better equipped to utilize their IP rights, the Ontario government commissioned an Expert Panel on Intellectual Property in 2019. The produced by the panel provided multiple recommendations such as the need to: clarify the mandates of commercialization offices within postsecondary and research institutions, develop a standardized, online, IP education curriculum for these institutions, implement a centralized provincial resource to provide legal and IP expertise, and develop a governance framework for organizations supporting entrepreneurial and innovation activities. In July 2020, the Ontario government it would begin to implement these recommendations by appointing a Special Implementation Team on Intellectual Property.

The recommendations of the expert panel appear to mirror the pillars of Canadaā€™s Intellectual Property Strategy to some degree. The National IP emphasizes IP awareness, education and advice, strategic IP tools for growth, and IP legislation. The recommendations of the expert panel focus primarily on IP awareness, education and advice. Whether the ā€œcentralized provincial resourceā€ will amount to tools that business owners, inventors and entrepreneurs can utilize beyond general advice is yet to be seen but on its face the recommendations focus on education and awareness. This focus appears to be a concerted effort to establish IP commercialization hubs within postsecondary and research institutions. These institutions are important avenues of innovation which will hopefully begin to capitalize on inventions stemming from work within them but also educate those moving on to invent elsewhere in Ontario.Ģż

It is unclear whether this framework is the most appropriate method for promoting IP commercialization in Ontario. have cited this as a narrow approach, stating that postsecondary institutions focus primarily on basic research that has little need for commercialization at its current stage. This presents problems for those wishing to license their IP because it will most likely require further development. While this concern is warranted, the implementation of a functional IP commercialization ecosystem would allow for postsecondary and research institutions to become more IP literate, and, in turn, more efficiently conduct their research to maximize IP commercialization. This would lead to a stable flow of IP rights in Ontario.

Written by Christian Bekking, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

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In addition to incorporating theoretical concepts of IP in engineering programsā€™ curricula, educators should also consider teaching students how to review publicly-accessible prior art documents. Learning to engage in prior art review will benefit engineers in two ways. First, since are granted to improvements made to already-patented inventions, engineers will be able to utilize knowledge about existing technologies in order to further innovate as opposed to investing resources into recreating old inventions. Second, learning how to access and review prior art documents in the early stages of their education will equip them with tools to avoid committing IP infringements in the future. Although engineering students tend to gain some insight into their IP rights and the patenting process during their capstone projects, they are often not adequately prepared to deal with the challenges of IP commercialization. To address this issue, a group of academics in Indiana University proposed the . The goal of the project was to bolster engineering studentsā€™ understanding of IP law through a set of elective courses that would count towards their degrees. The project also proposed interdisciplinary collaborations between STEM and law students to create a mutually educational experience for both sets of students in the area of patent law. At æģ²„ŹÓʵ, the success of in through a collaboration between the at the Lassonde School of Engineering and the is a testament to the fruitfulness of these kinds of collaborations.

Incorporating IP education in engineering programsā€™ curricula will require significant investment of resources by Canadian universities. However, since a large portion of patent applications filed with CIPO seek to protect engineersā€™ inventions, empowering engineers-in-training by providing IP education and setting them up for future commercial success will be a worthwhile investment.

Written by Bonnie Hassanzadeh, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

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As an emerging market, you might be wondering what exactly is digital fashion? Amber Jae Slooten, co-founder of digital fashion house , defines digital fashion as ĢżDigital fashion pushes the boundaries of what materials can be represented and featured in a design. Buffalo London, a brand known most famously for their platform sneakers, created a shoe that uses Brands and designers are now increasingly designing digital fashion in response to consumer demand for avenues of self-expression in a virtual space. A joint venture with virtual sneaker brand Ģżand crypto-artist FEWOCiOUS, resulted in over

Digital fashion presents unique intellectual property considerations. As a highly collaborative industry, what might be the risks to artists and designers? Trademark Attorney Alison Cole poses that ā€œ When a physical garment is converted into its digital twin, ownership may vary depending upon the particular software used. In some cases, ownership may vest in the 3D license holder. Subject to the particular scenario, questions of ownership could get quite complex. For example, an artist may create a design that is then converted into a 3D iteration by an agency with a third party combining these elements for an editorial. Artists should be aware of the effects of these arrangements and consider crafting specific contracts that ensure their work is protected in an agreed upon manner.

ĢżSteps Towards a More Sustainable and Inclusive Industry

Digital Fashion has the positive effect of prioritizing sustainability and inclusivity within the fashion industry.Ģż As per The Fabricantā€™s mantra ā€œ As digital clothing requires no physical outputs and is made from pixels rather than textiles, the Further, with the use of digital production, artists can seamlessly switch between different shapes and heights of bodies.

Whether youā€™re interested in trying on virtual sneakers or creating your own designs, digital fashion is now a highly commercially viable asset. The future of digital fashion presents endless possibilities and as Dress-X encourages

Written by Samantha Melhado, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

The post Your Next Pair of Sneakers Might Be Made Out of Fire & Here's Why appeared first on IPOsgoode.

This yearā€™s problem was extremely timely to the pandemic-pervaded world that we find ourselves in. The topic is a dispute arising from research and development into the COVID-19 vaccine. The fictional problem involves Respondents granting Ross Pharmaceuticals (a third-party to the arbitration) an exclusive license to use a viral vector for the development of vaccines in the field of ā€œmalaria and related infectious diseasesā€. It is later discovered that the vector in question has a high potential of being used in respiratory vaccine development research. With the advent of COVID-19, Ross claimed that the arguably vague language used in the original licensing agreement allows them to carry out vaccine development for respiratory diseases using the vector. Later, the respondents granted the Claimant the rights to use that viral vector for vaccine development in the area of ā€œrespiratory infectious diseaseā€. Once the claimants became aware of Rossā€™ allegation, they initiated an arbitration claiming that the Respondents had violated their contract by providing goods encumbered by a third-party IP claim in contravention of Article 42 of the United Nations Convention on Contracts for the International Sale of Good (CISG), which the Claimant believes applies to its contract with the Respondents.

In a nutshell, the claimants alleged that the respondents signed an agreement that Ross claimed gives them the right to carry out respiratory disease research using the viral vector; then, knowing of this claim, the respondents promised those very same rights to the claimant in violation of Article 42 of the CISG. As such, the Claimant request that the arbitral tribunal declare that the respondents breached their contractual responsibilities. In reply, the respondents allege that the claimant is relying of a frivolous claim in order to skirt their contractual responsibilities. This yearā€™s dense fact pattern generates various interesting sub issues including: is Rossā€™ claim frivolous? Were the respondents obligated to inform the claimant of a third-party allegation that they consider spurious? Should the claimant have been aware of Rossā€™ claim before entering into the contract considering that an article published in a popular industry journal made the allegation public? I will answer these questions and give practical advice that flows from this hypothetical.

So, is Rossā€™ claim frivolous?

On its face, it would appear so as COVID-19 does not neatly fit into the category of infectious diseases related to malaria: COVID-19, unlike malaria is a respiratory disease. COVID-19, unlike malaria, is caused by a virus rather than by a parasite. COVID-19, unlike malaria, directly and primarily affects the respiratory system. However, the Claimant posits that as COVID-19 is an infectious disease with almost identical primary symptoms to malaria including fever, shaking, chills, headaches and muscle aches the question of whether COVID-19 is related to malaria is neither frivolous nor unfounded. Ultimately, while the underlying facts suggest that the intentions of Ross and the respondents were not to extend the license to respiratory disease research, the ambiguity of the language may be enough to justify a valid claim pursuant Article 42 of the CISG, thereby triggering a breach of contract.

So, were the respondents obligated to inform the claimant of a third-party claim that they consider spurious?

The claimants argue that since the respondents had actual knowledge of Rossā€™ allegation, they should have communicated this allegation to the claimants so that they may have availed themselves of their responsibility under the CISG. The respondents argue that as Ross' allegation is a frivolous negotiation tactic which poses no serious legal risk, they did not have this responsibility. While Rossā€™ claim is not the strongest, ultimately the respondents should have communicated Rossā€™ allegation to the claimants in order to avoid further fallout from their poorly worded initial agreement. While conveying this information may have allowed the claimants to negotiate a better deal, the risk of being pulled into a costly legal dispute and the tarnishing oneā€™s reputation outweigh any benefit that is to be had by remaining silent on inconvenient allegations.

Finally, should the claimant have been aware of Rossā€™ claim before entering into the contract considering that an article published in a popular industry journal made the allegation public?

The statutory responsibility that buyers have to investigate the status of the IP they are purchasing is low under the CISG. Sellers are only exempted from their responsibility of delivering goods free from an IP claim if the buyer ā€œknew or could not have been unaware of the right or claimā€. However, as this hypothetical reveals, lacking information about the products one is purchasing can be highly prejudicial and unnecessary when there is publicly available information.

The main lessons to take from this hypothetical are threefold. First, the wording of IP transfer agreements should leave no room for ambiguity. Misunderstandings regarding IP rights are likely to result in not only disputes within the contracting parties, but with all other parties that have a stake in the IP in question. Second, transparency is key when transferring IP and one should not bank on inconvenient information remaining hidden. Third, although the licensor holds the greatest responsibility to ensure that the transfer of products does not lead to a subsequent IP dispute, the licensee is well to take reasonable steps to investigate publicly available information about the IP rights they are purchasing. In the modern world, having full information is key when it comes to making effective business decisions and doubly so when those decisions involve IP.

On a final note, I would like to extend my heartfelt appreciation to my teammates whose hard work has made Osgoode Hall proud. I would also like to thank our phenomenally dedicated coaches: Lauren Tomasich, Mani Kakkar and Sarah Firestone. They not only taught us how to be great advocates but also inspired us with their outstanding mentorship, passion and skill.

Written by Joaquin Arias, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.Ģż

The post Is COVID-19 related to Malaria? - Intellectual Property in International Commercial Arbitration appeared first on IPOsgoode.

, Founder and Director of IP Osgoode, opened the event by highlighting the ā€™s success throughout its years in making IP information more accessible and elevating diverse voices in the IP and innovation space. Professor Dā€™Agostino laid out the event agenda, introduced the exceptional team behind the , and the for the Launch Event.

Following Professor Dā€™Agostinoā€™s remarks, , Vice President of Research and Innovation at æģ²„ŹÓʵ, provided land acknowledgements and highlighted æģ²„ŹÓʵā€™s commitment to welcoming diverse voices to the academic space. Dr. Asif echoed the importance of making credible IP knowledge more accessible through tools such as the IP Innovation Clinic ChatBot.

, Associate Director at Lab introduced , Co-Founder & CEO of . Nikitaā€™s inspiring story of turning his vision into reality, with the help of the BEST Lab, the IP Osgoode Innovation Clinic, and the Schulich School of Business, is a testament to the remarkable achievements that are possible through collaboration. Nikita, alongside his partner at Skygauge Robotics, , used BEST Lab resources to invent and develop a drone which uses ultra-sound technology to inspect metal structures. aims to provide a safe, efficient, and cost-effective way to inspect metal structures. With the help of the IP Innovation Clinic, Nikita and Skygauge patented their invention.

After Nikitaā€™s presentation, it was time for the demo. The ChatBot was developed through the efforts of , Partner at Norton Rose Fulbright Canada LLP, Senior Innovation Lawyer at Norton Rose, , JD Candidate and IP Innovation Clinic Coordinator, and at IP Osgoode. Al Hounsell provided a primer on artificial intelligence (AI) and how it can be utilized to deliver legal information to clients, innovators, and entrepreneurs. The can be classified as a rules-and-pattern-based AI system because it derives its baseline system of rules from information fed to it by legal experts. The ChatBot gets ā€œsmarterā€ by identifying patterns in its usersā€™ input. The ChatBot identifies two key components form these patterns: intents and entities. Intents are what the ChatBot users intend to derive from the questions they ask. Entities modify intents in an AI-based system. In the context of the ChatBot, as Ryan demonstrated in the demo, entities can be defined as the alternative ways in which a question can be asked. As a result, the more familiar the ChatBot becomes with different iterations of a question, the more intelligent and competent it becomes.

The final portion of the event was a thoughtful panel discussion moderated by Osgoode Hall Law School about navigating the IP and innovation ecosystem. The came from different sectors in the IP and innovation space. Each one brought a valuable perspective on the pressing IP and innovation issues that Canada and the world face, including economic growth, accessibility, and elevating diverse voices . A common theme running through the panel discussion was the importance of creating an inclusive and accessible environment for Canadian innovators of all backgrounds to flourish; and elevating voices from underserved communities who have been left out of the conversation for too long.

The deepened my understanding of how AI can easily, accessibly, and cost-effectively deliver information to users. Intellectual property assets are often a businessā€™s first and most valuable assets, especially in its early stages. However, many innovators cannot access legal advice about their IP rights so early on in their business. I hope that free and user-friendly tools, such as the , can alleviate some of the barriers that currently halt innovation.

For more information and a full recording of the ChatBot Launch Event, click

Written by Bonnie Hassanzadeh, IPilogue Editor and Clinic Fellow at Osgoode Innovation Clinic.

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The more questions that are fed into the Chatbot the more intelligent it becomes. The Chatbot provides tailored answers using data from previously asked questions as well as pulling information from the (World Intellectual Property Organization), (Canadian Intellectual Property Office), (United States Patent and Trademark Office) and other databases. The only disclaimer is that the information provided is not legal advice and any specific legal queries must be consulted with a legal practitioner.

User-friendly, efficient & accessible

The IP Innovation Chatbot would not have been possible without the leadership of , her students, and the expert collaboration with , Partner, Norton Rose Fulbright LLP and , Senior Knowledge Manager, Norton Rose Fulbright LLP and their team. provided the crucial start-up funding through its National IP Clinics Program. The list of collaborators and supporters is long and each one has had an important role to play in bringing this project to reality. Here is the . We encourage you to attend and help celebrate with us!

Ģż

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Intellectual property (IP) legal clinics play a crucial role in helping Canadian inventors and entrepreneurs bring their inventions to market while strengthening the foundations of the country's innovation ecosystem. IP legal clinics provide pro bono IP information and assistance to under-resourced inventors who are not served by the profession. At the same time, when based at law schools, these clinics provide experiential learning opportunities to law students who want to work in the IP profession, which contributes to their career development and increases their legal and interpersonal acumen. These client and student-facing goals improve the ability of Canadians to recognize, protect and exploit intangible assets through IP commercialization strategies, skills that have proven necessary for Canadian businesses to succeed at home and abroad.

To read the rest of the report, click .

Giuseppina Dā€™Agostino is a senior fellow with CIGIā€™s International Law Research Program (ILRP), effective November 2016. She isĢżthe Founder & Director of IP Osgoode, the IP Intensive Program, and the Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

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