Art as Misleading Endorsement on the U.S. Campaign Trail

September 6, 2008 by Dan Hartrell

At this week’s Republican National Convention, U.S. presidential candidate John McCain accepted his party’s nomination in front of a picture of the Walter Reed Army Medical Center. But there was one small problem. He instead used a picture of the Walter Reed Middle School. While the McCain campaign was silent on the error, they received some harsh words from Los Angeles Unified School District Board Member Tamar Galatzan:

“Though I am flattered that Senator McCain chose to use a school from my district as backdrop to his remarks at the Republican National Convention, I wished he had checked with me first. As a strong believer in public education, I don’t think the Senator is the most appropriate person to showcase one of the premier schools in the Los Angeles Unified School District. He is unwilling to bring fairness and equity to No Child Left Behind and ensure that schools like Reed get the resources they need from the Federal Government. From what I’ve heard, that’s not a priority for the McCain/Palin ticket.”

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US Court: Consider “Fair Use” Before Sending Takedown

August 22, 2008 by Dan Hartrell

Just days ago, a U.S. court made a decision that has reinforced the strength of “fair use”. From the EFF:

“A judge’s ruling today is a major victory for free speech and fair use on the Internet, and will help protect everyone who creates content for the Web. In Lenz v. Universal (aka the ‘dancing baby’ case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act (’DMCA’).

This could have an important effect on the balance between copyright protection and free expression. More below the fold… Read the rest of this entry »

Canada in the back of the class

June 30, 2008 by Giuseppina D'Agostino

Today the Conference Board of Canada gave Canada another “D” grade for innovation. As indicated on the Board website, Canada is at the back of the class. As last year, where Canada also got a “D” grade, this should be another alarming call to government, industry, and members of the public that we need to do our homework. The solutions are not simple but all the more reason to revitalize discussion across many sectors of our economy and act today. No doubt, this country’s intellectual property system should be among the many considerations.

For the complete report card see 

C-61 and Canadian Copyright Law

June 19, 2008 by Giuseppina D'Agostino

“Not all Sides represented in the debate on copyright bill” was published in the Toronto Star, June 19, AA8.

The long-awaited copyright bill is about much more than copying music onto iPods or throwing kids in jail (and, no, the bill doesn’t endorse this, contrary to sensationalized beliefs). The bill is important and affects us all. Since Bill C-61, An Act to Amend the Copyright Act, was tabled on June 12, opponents and proponents have been loud in blasting or praising the government. It has sent the online and offline world into a frenzy.

Welcome to the copyright combat zone. When it comes to copyright reform, stakeholders and their advocates from all sides insult, condemn, lobby and oversimplify. While it is great that copyright is finally the talk at the water cooler, how unfortunate that the debate in Canada is distilled to positional and hostile battles. Not even all sides are represented: creators are often lost in the mix of what is now a contest between users and owners. Sadly, Canadians suffer because they are left with misinformation and sound bites.

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Bill is Born!

June 17, 2008 by Giuseppina D'Agostino

On June 12, 2008 the Ministers of Industry Canada and Canadian Heritage tabled Bill C-61 in Parliament. The Bill is expected to go to Second Reading at some point in the Fall at which stage will go to committee for review.

You can find the Bill at:

Since the Bill’s debut, copyright has been the talk of the town. Sadly, the discussion is full of many sound-bites and less substance. Don’t believe everything you hear/read, rings true (well at least, not on ipilogue!)

Please watch this blog for a fuller update.

Canadian copyright bill to arrive…finally?

June 1, 2008 by Julian Ho

There are rumours that a new copyright bill is imminent. Copyright issues are increasingly gaining public prominence and there are views of every stripe.

See below for a distinct view by Barry Sookman, copyright expert and co-chair of the Technology Group at McCarthy Tétrault, on the copyright debate as we await the new legislation and continue discussing the issues.

“Copyright reform in Canada has long been the subject of lively and ongoing debate. Michael Geist, professor of law at the University of Ottawa, has written a series of editorials and blog posts criticizing the US Digital Millennium Copyright Act (DMCA) and claiming that the new Canadian copyright legislation will likely be modeled after it. He also established a group on Facebook, Fair Copyright for Canada, which quickly amassed over 12,000 members. When a copyright bill was not tabled by the federal government in December as had been expected, it was suggested that the bill was delayed due to a groundswell of opposition, much of it stemming from Prof. Geist’s efforts.

Barry Sookman responds to Prof. Geist by discussing the impact of the DMCA, the level of adoption of WIPO treaties in other countries, the level of consultation about copyright reform, the impact of P2P file sharing on rights holders, and the process to effect legislative change.”

Read more:

ACLU: Patenting Abstract Ideas Violates First Amendment

April 8, 2008 by Dan Hartrell

Christopher Hansen, an attorney with the American Civil Liberties Union, has become involved in a patent case for an “abstract idea”. The patent in dispute belongs to Bernard L. Bilski:

“In 2006, Bilski sought a patent for his idea that the weather risk involved in buying and selling commodities could be minimized if sellers had conversations with two buyers instead of one. The U.S. Patent and Trademark Office denied his request and the Board of Patent Appeals and Interferences affirmed the denial. Bilski appealed that decision to the U.S. Court of Appeals for the Federal Circuit, and the court has agreed to hear the case in a single joint session in May.

The ACLU is concerned that granting ownership of an abstract idea would violate the right to free speech under the American Bill of Rights:

“Patent law prohibits the patenting of abstract ideas, but recently the courts and the patent office have been granting patents that consist essentially of speech or thought,” said Hansen. “If the government continues to allow patents of speech or thought it risks violating the First Amendment. No one can have a monopoly on an idea or prohibit speech on a particular subject.”

The scope of patentable subject matter continues to be controversial around the world. In Canada, there have been recent disputes over the patentability of computer algorithms and higher life forms. This represents another key battleground, although concerns about the effect of intellectual property on free expression are not new. As the scope of patentable subject matter grows more abstract, the conflict between intellectual property and free speech will only intensify.

A link to the ACLU’s brief is here. (in .pdf format)

A thought on the scope of patent protection today

April 3, 2008 by khshin

Suppose there are two researchers, X and Y, who separately study the same thing, say, new energy. X wants a patent right for a financial gain while Y wants to make his results freely accessible to the public. Unfortunately, X comes up with a result one day before Y. Now, people have to pay for X’s patent right. Did X contribute to the welfare of all mankind? If not, why should X be rewarded with monopoly? Can the general public demand to use Y’s technology instead of X’s for free by simply waiting one more day? Before Edison’s development of the bulb, no one had even imagined about such a thing. If it were not for him, mankind might have had to wait for a long time to have a bulb. Things are different in today’s world. Every researcher competes vigorously to win the speed game. This indicates that a new development is simply a matter of time. That is, today’s new finding would have been found by another researcher in the near future.

This leads me to question the current scope of patent right. Should we protect recent innovations with the same patent right as we did before? The reason why we allow monopoly through patent protection is to acknowledge the disclosure of new inventions, and not to simply reward the “first comer.” We can have access to the competitive price, rather than the monopoly price, by waiting for some more time.

There is another point to think about this. Let’s say that we do not allow a patent for the new Intel processor, even though Intel was the first to develop faster data managing technology. Would they give up innovation while AMD is chasing one step behind? To win the market, Intel has to invest continuously. Not only to win but also to survive in the printing market, HP has to invest time and money for innovation regardless of whether we protect their technology through intellectual property rights or not.

Nowadays, intellectual property is abused in biotechnology or information technology field. Many patents are used to press competitors to enrich the first-comers without providing meaningful benefit to the public. In the era where market competition alone can drive participants to advance and innovate, the justification for awarding monopoly in those fields significantly loses strength.

Is Canada Delivering on its Pledge to Aid Africa?

April 1, 2008 by Joanna Vatavu

In 1999, between 1.3 and 2.1 billion people did not have access to essential medicines (around 30% of the world’s population), with most of these people being concentrated in Africa and India.[1] In May 2004, after pressure from Canadian civil society groups and Stephen Lewis (the UN Special Envoy on HIV/AIDS in Africa), and in an effort to “facilitate access to pharmaceutical products to address public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics”[2], the Canadian government enacted Bill C-9 the Jean Chrétien Pledge to Africa Act (JCPA), which implemented the WTO August 30th Decision to waive the Article 31(f) requirement of the TRIPS Agreement. However, since Canada passed the legislation in 2004, not a single drug has been manufactured for export under a compulsory license.[3] In a 2005 Globe and Mail article, Dennis Bueckert reported: “Government officials say the Jean Chrétien Pledge to Africa Act has been stalled by technicalities. Critics say it is fatally flawed and will never have any real impact”.[4] Médecins Sans Frontières Canada also expressed concerns regarding several flaws that undermine effectiveness of the legislation. First, the JCPA includes a limited list of drugs (Schedule 1) that can be manufactured under a compulsory licence for export (even though the August 30th Decision does not impose any limits), which has especially negative consequences in the case of fixed-dose combination formulations of antiretrovirals which are critical in HIV/AIDS treatment and which are currently not in Schedule 1. Second, the JCPA also appears to employ a double standard between WTO members and non-members, in that it only allows for export to non-members when they have declared a “national emergency”. This is too restrictive and since this condition that does apply to WTO countries, there is little justification for this double-standard. Moreover, a compulsory licence granted under Canadian legislation is limited to two years, even though such a restriction on the term is not required under the August 30th WTO Decision. As a consequence, the financial costs associated with obtaining the regulatory approvals for the use compulsory license by generic manufacturers may be greater than the revenues that could be made, and only serves as a disincentive for using the legislation. Furthermore, before a compulsory license can be issued under the JCPA, the generic manufacturer must notify the patent holder of the name of the prospective importing country. This can expose the importing country to outside pressure from the patent holder and other countries, such as the U.S., to refrain from importing generic drugs. Nevertheless, the legislation has some positive aspects. The JCPA JCPA provides a clear formula for calculating the royalty rate payable to the patent holder, which sets the maximum royalty at 4 percent of the total value of the product to be exported under a licence (whereas the WTO 2003 Decision refers to “adequate remuneration”). The Act also provides a clear negotiation period of 30 days for a voluntary license (whereas WTO Decision states that a voluntary license was to be negotiated “within a reasonable period of time”).

The effectiveness of the JCPA is yet to be determined. However, Stephen Lewis had this to say: “If in fact there’s been no significant initiative for drug production and export thus far under the bill, then I think the bill is in danger of becoming a non-entity because it will be lost in the politics of Canada.”[5] As submitted in a joint statement made by over 30 non-governmental organizations and civil society groups[6], the government of Canada needs to immediately amend the JCPA in order to create an approach that is simpler and more direct than the current cumbersome process, while still complying with the World Trade Organization rules.

[1] World Health Organization, “The World Medicines Situation. Chapter 7: Access to Essential Medicines” (2004), online:

[2]An Act to Amend the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to Africa), S.C. 2004, c. 23 (Bill C-9), S.C. 2004, c. 23.

[3] Canadian HIV/AIDS Legal Network Submission to the Government of Canada, Delivering on the Pledge: Reforming Canada’s Access to Medicines Regime” (January 2007) at page 1, online: [Canadian Legal Network].

[4]Dennis Bueckert, “Drug Aid for Africa Political Illusion” (Globe and Mail: May 1, 2005).


[6]Canadian HIV/AIDS Legal Network Submission to the Government of Canada, Delivering on the Pledge: Reforming Canada’s Access to Medicines Regime” (January 2007) at page 1, online:

Is the tragedy of the anti-commons for the greater good?

March 31, 2008 by Linh Le

During Professor Bruce Ziff’s discussion on Private Property, he referred to Garrett Hardin’s theory on the Tragedy of the Commons. The common hypothetical relates to the relationship of farmers overgrazing on common land. Since resources are finite, the over-exploitation of land by some members of the community results in a consequential detriment to all. Thus, through the creation of private property and the right to exclude others, one is able to internalize both the benefits and the burdens of individual activities. [1] How then does one justify Intellectual Property Rights? Unlike real property, ideas theoretically should be infinite. Where one claims proprietary rights to an invention or a unique process, rather than taking from the commons, detailed disclosures of the invention, in theory, enables further dissemination of knowledge and a “putting back” of resources into the commons. One of the justifications of the patent system is that by creating proprietary rights, knowledge that would have remained as a trade-secret is now placed in the public domain/commons. By disclosing this knowledge, the patentee now has a limited monopoly (20 years from the filing date) to commercially exploit the invention against the world. [2] The overall expectation is that this IP protection should be an incentive for further research and innovation. In essence, within the realm of intellectual property, the law encourages the creation of the anti-commons.

Where then does the tragedy reside? In enabling individuals and corporations to maximize their commercial interests through patent protection, it effectively excludes other researchers from using and enhancing this knowledge. Especially within the biotechnology industry, where downstream technologies (biomedical products, diagnostic tests etc.) rely on upstream tools (non-commercial, genetic tools) to produce the final commercial product, upstream patents become a major barrier to innovation. While some might argue that strong intellectual property protection serves as an incentive to create new knowledge and foster industrial and economic development, where the protection is too strong or too broad, the flow of knowledge becomes hindered and potentially harms the public interest. The tragedy of the anti-commons occurs where resources, or in this case, knowledge, is under-utilized. A prime example of how the enforcement of strong IP rights may discourage innovation is the BRCA1 and BRCA2 gene patents held by Myriad Genetics (a biotechnology firm based in Utah). In cases where breast cancer is inherited, it is estimated that half of all mutations occur along the BRCA1 gene. Myriad was granted exclusive rights in Canada (US and Europe – now repelled in Europe [3]) to control the uses of the BRCA1 & 2 genes, as well as diagnostic tests developed for BRCA analysis. Myriad pursued aggressive enforcement of their patents. All tests for the BRCA genes had to be sent to Myriad’s Utah lab for ~$2400-2600 per sample, or labs wanting to conduct in-house testing were forced to negotiate for licences. The three main complaints against Myriad’s patent was that:

1. The price for the testing was unfair; most labs could conduct the same or better testing at 1/3 the price.

2. By sending the samples to Myriad, it prevented other labs from collecting data and enhancing their own research on breast and ovarian cancer.

3. Myriad’s test was only capable of detecting 10-20% of the detectable mutations. One firm had created a test method that was able to detect a new deletion that accounted for an additional 15% of mutations on the gene. Myriad’s test had failed to detect this new deletion. [4]

Although the first argument deals with the public’s interest on affordable access to health-care (which will not be discussed further), the second and third arguments clearly show how proprietary rights can negatively affect innovation.

Innovation is an interesting word. It is defined as “the introduction of something new” [5], but what is this something? Is it the promotion of new research and ideas? Or, is it the commercialization of new products? Relying on the premise of the Bayh-Dole Act, enacted in the US, it is clear that the basis behind patenting in biotechnology is to have research geared towards commercialization. After interviewing a former CEO of a bio-pharmaceutical venture start-up, his last words were, “the cemetery is full of good ideas”. Without strong patent protection, the private industry is not going to invest and drive products to the market. While the patent system may have established a tragedy of the anti-commons, it may also be the only justification for companies to invest. Is it better to have some products in the market (albeit overpriced), than none?


[1] Bruce Ziff. Presentation: The case for Private Property. January 31st 2008. Vari Hall, York University.

[2] David Vaver, Intellectual Property Law: Copyrights, Patents, Trade-marks (Toronto: Irwin Law, 1997) at 161.

[3] Canadian Cancer Society:,3182,3172_31282995_32749610_langId-en,00.html

[4] Declan Butler & Sally Goodman, “French Researchers take a stand against cancer gene patent” (2001) 413 Nature 95.

[5] Merriam-Webster Dictionary: