Background

By contrast with the fair dealing user’s right in Canada, the United States copyright law provides a fair use exemption. Since the reader might encounter US commentary of decisions addressing the fair use right the following comments are provided to introduce the fair use exemption.

The Canadian fair dealing user’s right has some superficial similarities to the United States fair use exemption. Under the US copyright law, “a copyright holder cannot prevent another person from making a “fair use” of copyrighted material.”^[1]

The US Supreme Court describes the fair use doctrine as “an “equitable rule of reason” that . . . [more]

Canada’s Federal Court is the go-to forum for intellectual property litigation in Canada. While provincial superior courts have concurrent jurisdiction over infringement proceedings, for several reasons, rights owners often look to the Federal Court to start their proceedings and some recent announcements have reinforced this dominance of the Federal Court for intellectual property matters.

Legislative Background

The Patent Act, Trademarks Act and Copyright Act all include provisions granting concurrent jurisdiction to the Federal Court alongside the provincial superior courts. For example, section 54(1) of the Patent Act states that infringement may be brought in superior courts which is concurrent . . . [more]

The publisher Springer Nature is issuing books with such subtitles as A Machine-Generated Literature Overview, while ChatGPT is being credited as co-author on research papers published in Elsevier journals. Yet Springer Nature’s premier journal, Nature, declared in January, that papers generated by a large language model (LLM), such as ChatGPT, will not be accepted for publication: “An attribution of authorship,” states Magdalena Skipper, editor-in-chief of Nature, “carries with it accountability for the work, which cannot be effectively applied to LLMs.” This soon became part of Nature’s authorship policy. Then on March 16th, the U.S. Copyright Office launched . . . [more]

The Federal Court has noted that the Patented Medicines (NOC) Regulations^[1] “seek to balance the patent enforcement rights of innovative drug manufacturers with the timely market entry of lower-priced generic drugs by “enabling summary legal proceedings that would address patent concerns without unduly delaying access to generic medicines”.^[2]

Before marketing a drug in Canada, manufacturers must obtain a Notice of Compliance (NOC) from Health Canada. A “first person” who obtains a NOC for an innovative drug may list any associated patent on the Patent Register. If a “second person” subsequently requests a NOC for a competing drug by . . . [more]

The Federal Court recently analyzed what portions of postal codes were personal information and how the data could be made suitably anonymous. Anonymizing data will become increasingly important under Canada’s proposed Consumer Privacy Protection Act and Artificial Intelligence and Data Act, currently at second reading as Bill C-27.

In Cain v. Canada (Health), 2023 FC 55, the Federal Court considered an application under the Access to Information Act for disclosure of postal codes and cities for licensees entitled to grow medical marijuana. The applicant sought access to the ‘Forward Sortation Area’, namely the first three digits of the . . . [more]

As someone intent on reforming copyright law, so that it can begin to serve open access to research as well as it currently serves exclusive subscription access to research, one obvious challenge is research’s international basis at every level. How can one expect copyright changes, which necessarily take place at a national level, to facilitate research’s global circulation?

Before responding to this vital question, allow me to briefly address why change is needed and that change I am recommending. The value of open access to humankind has been forcefully stated by Alondra Nelson, head of the White House Office of . . . [more]

What relief is available to a Court when dealing with the breach of a protective order and breach of the implied undertaking rule? The Federal Court had occasion to consider this question in Molo Design Ltd. v. Chanel Canada ULC, 2023 FC 140. In a decision dated January 30, 2023, the Federal Court made an order to enforce a Protective Order issued in the action and to enforce the implied undertaking rule.

The facts were that a co-founder of the plaintiff Molo Design Ltd. disclosed information in documents disclosed by Chanel in the action that were designated “Confidential” under . . . [more]

The use of generative AI to produce text and image has raised many questions about how the law of copyright applies to these systems. There are two important aspects of these tools which implicate copyright: i) using training data obtained from third parties; and ii) the authorship and ownership of the output.

Generative AI typically refers to the use of artificial intelligence systems to produce text or images based on prompts or other inputs. Some popular examples are the DALL-E image generator and the ChatGPT chat system both from OpenAI.

In Canada, copyright is governed by the Copyright Act and . . . [more]

I’ve come to realize that I’m in the early stages of a political campaign to amend copyright for open science. It didn’t start out as a campaign. It began as a series of talks and meetings that followed from an (open access) book on copyright reform that I published this fall. Having worked out a proposal for copyright reform, I wasn’t interested in promoting the book so much as learning more about what was involved in advancing open access through such a process. Very early in the process, it was made clear to me that the law is not an . . . [more]

The “dark web” sounds mysterious and dangerous. The dark web is described as a set of pages on the internet that cannot be indexed by search engines, further can not be viewed in a standard web browser, and typically require specialized software or network configurations in order to access. These pages commonly use encryption to provide anonymity for users.

There are marketplaces on the dark web where individuals buy and sell illicit goods and services.

One of the largest dark web marketplaces in the world was the Canadian Headquarters (or Canadian HQ). This site sold spamming services, phishing kits, stolen . . . [more]

Patent applications are filed, work their way through the patent office, some are granted and after twenty years, they expire. How many patents are actually granted, and now many make it to expiry?

I tracked the 42,000 or so patent applications filed in Canada with a 2001 filing date. All of these patents expired by the end of 2021. Overall, about 43% of the original applications were granted, about 18,000. About 105 were involved in litigation in the Federal Court.

Only about 17% of the original patent applications were granted and still enforceable in 2021 when they expired. About 30% . . . [more]

I have championed ways of increasing the public availability of research and scholarship in these Slaw columns for well over a decade under a variety of names, from open access to the catchy right to research (R2R). I picked up R2R, as I’ve noted, from the inspiring Program on Information Justice and Intellectual Property at the American University Washington College of Law in an initiative led by Sean Flynn. What I’ve now realized about R2R is that it can be read in two historically significant ways, with the difference between them neatly capturing what sets Prof Flynn’s and my current . . . [more]