Recognizing the Relevance of Human Rights: The Application of the Presumption of Conformity in the Context of Copyright

This article discusses the application of the presumption of conformity with international law in the context of copyright. Although Canadian courts have applied the presumption of conformity in a number of copyright cases, no Canadian court has explicitly considered, under the presumption of conformity, whether interpretations of provisions of the Copyright Act are consistent with, or reflect the values and principles of, international human rights treaties that Canada has signed and ratified. In this article, I will argue that Canadian courts applying the presumption of conformity in the context of copyright should do so with reference to Canada’s obligations under international human rights treaties as well as its obligations under international intellectual property rights agreements. Using fair dealing as my illustrative example, I will offer some preliminary reflections on the impact of applying the presumption of conformity in the context of copyright with reference to Canada’s human rights obligations

Discovery of a new population of boas on the Turks Bank, Turks and Caicos Islands

The Turks & Caicos Boa, Chilabothrus chrysogaster, is among the best-studied snakes in the Caribbean. With nearly 20 years of annual study, much is known about the species’ biology, but most of this information comes from a single population on Big Ambergris Cay, located on the Caicos Bank. Other populations are poorly known, and, indeed, a subspecies (C. chrysogaster relicquus) is almost entirely unknown. Turks & Caicos Boas have been recorded from 10 islands on the Caicos Bank, and historically only from Grand Turk on the Turks Bank. The Grand Turk population is now functionally extirpated. In 2008 I documented a new Turks Bank population on Gibbs Cay, a very small islet east of Grand Turk. Additional surveys of some of the Turks Cays did not reveal additional populations, although the island of East Cay remained unserved. In March 2022 I conducted nocturnal herpetofaunal surveys of the Turks Cays, including East Cay. I found a total of nine boas in just over four hours on East Cay and three boas in under sic hours on Gibbs Cay, but none on Long Cay. Here I report the discovery of the East Cay population, some morphometric data, and the first record of the striped color morph from the Turks Bank

An Essential Service: Public Libraries and their Role in Law and Society

On March 16, 2020, in order to help slow the spread of COVID-19, the City of Vancouver closed all of its public library branches. I experienced these closures on a number of different levels: as a Vancouver resident who loves to read and to visit libraries, as the partner of an avid reader, as the father of a four and a half year old who is as excited about the prospect of trips to the library to pick up “fresh books” as he is with the chance to practice riding his pedal bike through the neighborhood, and, among other identities, as a law professor whose work focuses on the intersection of copyright, human rights, and social justice, and who believes that libraries are integral to the achievement of the objectives of each of these areas of law. Drawing on these identities, I’ll reflect in this essay on the important role played by libraries and librarians in both law and society, on what is lost when libraries close, and what we should celebrate – and fight for – when they re-open

Book Review: William F. Patry, How to Fix Copyright

In How to Fix Copyright, William F. Patry, one of America’s leading experts on copyright, calls for a “top-to-bottom, systemic overhaul” of copyright laws. For a Canadian readership in the midst of our own process of copyright reform, such a call to action is both timely and relevant

The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment

This chapter considers whether the precautionary principle - a central element of contemporary environmental law and policy - can be usefully applied in the intellectual property context as a means through which the public domain can be protected. Assuming the importance of the public domain, and arguing that expansions in intellectual property protection risk harming the public domain, this chapter contends that it is appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain; suggests several ways in which a precautionary principle (or a precautionary approach) could be applied in the intellectual property context; and considers one possible instantiation of the precautionary principle in the context of intellectual property reform, namely in the form of a Public Domain Impact Assessment (PDIA). Modeled on the Canadian Environmental Assessment Act, the PDIA is envisioned as a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain

Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canada\u27s Copyright Pentalogy

This paper focuses on judicial review of Copyright Board decisions in Canada’s copyright pentalogy (the five copyright law decisions handed down by the Supreme Court of Canada (SCC) on 12 July 2012). Part I briefly discusses the (recent) history of judicial review of decisions of the Copyright Board. Part II analyzes Abella J’s reasons for judgment in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Alberta (Education)) in light of Rothstein J’s implied suggestion, in his dissenting reasons, that Abella J applied a correctness standard of review as opposed to a reasonableness standard of review. Part III discusses the implications of Alberta (Education) for fair dealing (and specifically the fairness analysis), for future Copyright Board decisions, and for the relationship between the Copyright Board and reviewing courts. This paper concludes that Abella J, in Alberta (Education), applied a reasonableness standard of review consistent with the way in which reasonableness has been applied in Dunsmuir v New Brunswick (Dunsmuir), in numerous SCC decisions handed down post-Dunsmuir, and in several Canadian appellate decisions; that one conclusion that can be drawn from Alberta (Education) is that fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be; and that Abella J’s decision in Alberta (Education) provides reviewing courts with the framework through which they can – defensibly and in a manner consistent with prior jurisprudence – overturn a decision of the Copyright Board in which the Copyright Board applies an approach to copyright that is inconsistent with the purpose of the Copyright Act as interpreted by the SCC, on the basis that it is unreasonable

Towards a Right to Engage in the Fair Transformative Use of Copyright‑Protected Expression

Networked digital technologies have given Canadians the opportunity to engage with culture in a way that has never before been possible. Empowered and inspired, individuals from Prince George to the Georgian Bay to George Street are rejecting their former role as passive consumers of culture in order to participate in a continuing process of cultural (re)creation, production, and dialogue. One way in which they are doing so is by engaging in the transformative use of existing expression, a type of creative activity in which previously existing expression is reworked for a new purpose, with new interpretations or with a new meaning

Moving Past \u3cem\u3eMichelin\u3c/em\u3e: Towards Judicial Reconsideration of the Intersection of Copyright and the Charter Right to Freedom of Expression

On a regular basis over the past two decades, Canadian courts considering the intersection of the Charter right to freedom of expression and copyright have cited to Michelin v. CAW-Canada as authority. In this paper, I argue that it is no longer acceptable for them to do so. As I will establish, the approaches to the intersection of freedom of expression and copyright employed in Michelin rely upon and have been shaped by conceptions of copyright and freedom of expression that although once endorsed by the Supreme Court of Canada, are no longer valid, namely the author-centric view of copyright as well as an approach to freedom of expression under which it is accepted that property rights are insulated from Charter scrutiny. As such, the Michelin approaches to the intersection of the Charter right to freedom of expression and copyright are no longer good law, and should be explicitly rejected

Nanotechnology and the Tragedy of the Anticommons: Towards a Strict Utility Requirement

Nanotechnology has been described as a transformative technology that will bring about the next industrial revolution. Over the last few decades, scientists and their research partners have acquired nanotechnology patents in a manner resembling a gold rush. The nanotechnology gold rush has specifically targeted nanomaterials, nanotechnology’s building blocks. Many of the patents that have been granted for nanomaterials are broad, general patents encompassing basic research. A driving force behind the patenting of basic research in nanotechnology was the development-oriented approach to patent rights. This approach emerged in the 1960s and 1970s, and supported the widespread patenting of basic research in the 1980s and 1990s. Development-oriented theorists argued that the most efficient way to achieve the development and commercialization of research is to grant broad patents on research prospects shortly after their discovery. Beginning in 1998 with the publication of Michael A. Heller’s “The Tragedy of the Anticommons,” the beliefs held by development-oriented theorists have been challenged by proponents of “anticommons theory.” In particular, anticommons theorists questioned whether granting broad patents on research prospects necessarily leads to the efficient development of research. Anticommons theorists argued that this assumption fails to take into account the possibility that granting patents on research prospects could stifle development through the phenomenon of the tragedy of the anticommons. This article will examine the contemporary nanotechnology patent landscape in the United States of America to determine whether the broad patenting of nanomaterials has led to the creation of an anticommons. It will also examine whether this anticommons is likely to turn tragic, stifling innovation in nanotechnology. This article proposes the adoption of a strict utility requirement as a solution to the problems posed by the tragedy of the anticommons in nanotechnology in the US

Of Lock-Breaking and Stock Taking: IP, Climate Change and the Right to Repair in Canada

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the fight against climate change. Specifically, it will focus on the provisions of Canada’s Copyright Act that provide protection for technological protection measures (TPM). These provisions limit the extent to which consumers can repair software-enabled products that they have purchased. Reform of the TPM provisions in Canada’s Copyright Act is required in order to ensure that they do not act as a barrier to repair. This paper will discuss several options for reform. While a comprehensive review of Canada’s IP laws is necessary in order to identify and amend all provisions that contribute to climate change or that impede climate action, amending the TPM provisions of the Copyright Act to include an exception for the purposes of diagnosis, repair, and maintenance would be an important step in this direction