Osgoode Hall Review of Law and Policy (OHRLP)

Osgoode Hall Review of Law and Policy

© 2008 Osgoode Hall Review of Law and Policy 

Volume 1                    November 2008                          Issue 2

(2008) 1 Osgoode Hall Rev.L.Pol’y 100.

Osgoode Hall Review of Law and Policy

© 2008 Osgoode Hall Review of Law and Policy 

Volume 2                    March 2009                          Issue1

(2009) 2 Osgoode Hall Rev.L.Pol’y 1.

Osgoode Hall Review of Law and Policy

© 2008 Osgoode Hall Review of Law and Policy 

Volume 2                    November 2009                          Issue2

(2009) 2 Osgoode Hall Rev.L.Pol’y 55.

D. Vaver, “Chocolate, Copyright, Confusion: Intellectual Property and the Supreme Court of Canada” (2008) 1 Osgoode Hall Rev.L.Pol’y. 5.

Adrian Scotchmer et al., “The Right to Counsel: Policy Reasons for Fundamental Reforms to Promote Access to Justice” (2008) 1 Osgoode Hall Rev.L.Pol’y. 36.

This comment focuses on the Supreme Court of Canada decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc. (2007) and attempts to explore the Court’s reasoning in the decision and the subsequent effects that may flow from it. This comment also touches briefly on the recent case of New Brunswick (Board of Management) v. Dunsmuir and the complications stemming from it. The comment concludes that it remains uncertain how these newly developed dynamics from VIA Rail and Dunsmuir will interact with the broader legal and policy forces shaping the duty to accommodate.

Christopher Pigott et al., “In the Wake of VIA Rail: Implications and Future Considerations” (2008) 1 Osgoode Hall Rev.L.Pol’y. 88.

In November 2007, the Songwriters Association of Canada (SAC) released a proposal for the monetization of the file sharing of music in Canada. This article attempts to determine whether or not Canada, given its international and bilateral treaty agreements, could ever adopt the SAC’s proposal. The article approaches this analysis through the “three-step test”, which was adopted under the Berne Convention in 1971 and enshrined in the subsequent TRIPS Agreement and NAFTA; the article also analyzes whether or not the Proposal is compatible with Canada’s obligations under the Rome Convention.  The article concludes that, without amendments to the international treaties to copyright of which Canada is a part, a proposal like SAC’s could not be successfully enacted.

Barry Sookman, "The SAC Proposal for the Monetization of the File Sharing of Music in Canada: Does it Comply with Canada's International Treaty Obligations Related to Copyright?" (2008) 1 Osgoode Hall Rev.L.Pol'y. 101.

This article focuses on how the investigation and prosecution of Paul Bernardo not only exposed one of Ontario’s most notorious killers but led to significant discussion about the legal and ethical obligations faced by criminal defence lawyers. Using the example of the prosecution of Kenneth Murray, Bernardo’s lawyer, for obstruction of justice, this paper examines the tension that is created between the conflicting duties owed by defence lawyers to candor and confidentiality. The limits of confidentiality are explored, as is the importance of the solicitor-client relationship to the legal system and whether (or when) there is a duty to disclose the possession of physical evidence. This paper will ultimately demonstrate that the ethical obligations faced by criminal defence counsel are often highly contextual and can only be decided on a case-by-case basis. As such, it is important that lawyers are provided with adequate guidance on difficult ethical and legal situations. However, despite Murray’s prosecution (and acquittal), defence lawyers could still benefit from greater guidance in these difficult and legally-significant situations.

Christopher D. Clemmer, "Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel's Conflicting Obligations to Clients and the Court" (2008) 1 Osgoode Hall Rev.L.Pol'y. 137.

This article examines Professor Geist's reaction to Bill C-61 as manifested through his Facebook group "Facebook Fair for Copyright of Canada" and his blog. The author argues that Professor Geist's assessment of the Bill is unbalanced. In particular, he attempts to rebut eleven of the claims made by Professor Geist with the aim of mitigating any unwarranted adverse public opinion about the Bill that those claims may have engendered. 

Barry Sookman, "Facebook Fair Copyright of Canada: Replies to Professor Geist", Comment, (2008) 1 Osgoode Hall Rev.L.Pol'y. 198.

Lawrence Lessig’s latest book, Remix:  Making Art and Commerce Thrive in the Hybrid Economy was inspired by concerns about the reach of copyright law in the United States, and the generation of “pirates” that it has criminalized.  In the following review Catherine Lovrics explores the cultural, economic and legal implications raised by Lessig.

Catherine Lovrics, Book Review of Remix: Making Art and Commerce Thrive in the Hybrid Economy by Lawrence Lessig, (2008) 1 Osgoode Hall Rev.L.Pol'y. 242.

This lecture scans the development of human rights law in Canada from a period of judicially implied rights, to the era of legislative protection, and finally to the status quo of constitutional entrenchment. Progress to this final stage has ensured that human rights are not threatened in Canada. Nevertheless, significant challenges have arisen: The first involves a challenge between advocates of civil liberties and advocates of anti-discrimination rights. The second growing challenge is the practice of removing human rights from judicial review to specialized tribunals free from judicial scrutiny in the interests of national security. The third challenge lies in applying the concept of accommodation inherent in anti-discrimination rights in our increasingly diverse, multi-cultural societies.  Through our legal institutions and our institutions of citizenship and community inclusion, these challenges can be acknowledged and brought into the democratic dialogue, thereby ensuring that human rights can be strengthened and sustained.

The Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada. "Human Rights Protection in Canada" (2009) 2 Osgoode Hall Rev.L.Pol'y.3.

In this lecture the author notes that in order for judges to be seen to dispense justice they must possess a developed understanding of the world. This has important implications for how judges are to be chosen as well as whether, and if so how they are to be trained. Judges appointed from the bar will likely have a greater knowledge of the world, while a more inclusive, open and diverse selection procedure will enhance the prospect that justice will be perceived to be done. Judicial training, in turn, may increase judge’s knowledge of the world, or at least the perception that justice is being done, Ultimately, knowledge of the world is a personal pursuit whose end lies in the ability to identify with the other – an instrumentally useful ability for a judge, and an inherently worthwhile activity for any person.

The Right Honourable Lord Justice Jacob. "Knowledge of the World and the Act of Judging" (2009) 2 Osgoode Hall Rev.L.Pol'y.22.

In this lecture, the author addresses the appropriate role of the judge in society. Judicial independence and impartiality require that a judge seek to distance herself from the world, prior connections, conflicts of interest and social activism. Although judges may take judicial notice of certain facts, they are otherwise limited to the arguments of the parties to a dispute. Nevertheless, judges must be attentive and critical observers of the world, eager to learn and gain knowledge about the evolving nature of economic life, science, religion and all other issues in contemporary society because distance and impartiality from the world do not imply ignorance of it.

The Honourable Justice Louis LeBel. "L'Acte de Juger Entre Connaissance et Distance du Monde" (2009) 2 Osgoode Hall Rev.L.Pol'y.29.

In this lecture the author argues that the system of granting a time-limited monopoly is a prudent means of obtaining disclosure of an invention. Yet the modern ramification of disclosure is the presence of a surfeit of information exacerbated by the globalization of commerce. The result is a marked increase in transaction costs. Transaction costs can be lessened to the extent that the scope of the right in question can be sharply delineated and the time-limit is not excessively generous. Unfortunately, the system of intellectual property rights currently in force ensures that there is a substantial amount of grit in the wheels of industry.

The Right Honourable Lord Justice Jacob. ""Is Intellectual Property the Grit in the Wheels of Industry?" (2009) 2 Osgoode Hall Rev.L.Pol'y.41.

In this submission, the author presents seven principal proposals for reform that he argues would foster innovation, creativity and marketplace success.  First, he argues for an expanded fair dealing provision that would enhance its flexibility.  His second reform proposal engages with the issue of anti-circumvention provisions, where he argues: 1) for a direct link between anti-circumvention provisions and copyright infringement; 2) against bans on devices that can be used to circumvent technological protection measures (provided that it has non-infringing uses); 3) for the creation of authorized circumventers; and 4) for a positive requirement to unlock for exceptions/right of access.  The author then moves on to a consideration of intermediary provisions, and argues for the establishment of a legal safe harbor in the form of a “notice and notice” takedown system for internet intermediaries and a useful provision for Information Location Tool Providers, while rejecting the “three strikes” system adopted in other jurisdictions.  Fourth, the author proposes reforming the backup copy provision and rationalizing the statutory damages provisions as a means of modernizing copyright law. The fifth reform proposal involves enhancing the public domain, by rejecting an extension in the copyright term and abolishing Crown copyright. Sixth, library provisions should rely on fair dealing provisions, while there should be no internet exception for education. Lastly, it should not be possible to contract out of the core protections and policies underlying the copyright balance.

Michael Geist, Copyright Consultations Submission (2009) 2 Osgoode hall Rev.L.Pol'y. 59.  

This submission elucidates 8 basic principles, and 11 pragmatic recommendations to guide copyright reform. Canadian copyright reform is long overdue, especially in comparison to the progress made in other jurisdictions. The modernization proposed herein is in the public interest as it aims to better protect creators’ rights so as to foster innovation, creativity, competition, and investment and position Canada as a leader in the global, digital economy.

This submission details the reforms that the author believes are necessary in order to “rationalize” the Copyright Act. It attempts to answer five questions which have been posed by the Ministers of Industry and Heritage in connection with the public consultation on the need to “modernize” the Copyright Act. The author is concerned that the ‘modernization’ that is called for may simply serve to protect powerful interest groups such as the MPAA. A variety of reforms are suggested, including: protection from any form of government censorship; a functional definition of ‘works’ which focuses on originality, self-expression and fixation; minimum benefit guarantees for users; an extension of the blank storage device levy; streamlining the acquisition and use of works commissioned for commercial purposes; and the recognition of the right to create and publish works of parody. The author concludes by noting that the whole point of copyright is to obtain the widest access to published works.

This submission addresses the issue of fair use, in both the traditional sense, and in the sense of an expanded and more flexible fair dealing regime. Fair use should not be adopted as it leads to uncertainty, expensive litigation, and leaves important public policy decisions to be made by courts instead of Parliament. Further, fair use would reduce revenues available to creators, (which, in turn would reduce the capacity of creators to innovate), while potentially undermining legitimate collective licensing models. Fair use may also be inconsistent with Canada’s international treaty obligations. Finally, in light of international experience rejecting the adoption of fair use it would be imprudent for Canada to do so.

Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use (2009) 2 Osgoode Hall Rev.L.Pol'y 139.

The Writers Guild of Canada (“WGC”) supports a copyright regime which balances the needs and interests of consumers with the rights and protections of authors. Works should be widely available for use by consumers provided that authors are fairly remunerated for those uses. Rather than criminalize consumers’ actions, the WGC would prefer to see a Copyright Act that pre-authorizes common consumer uses of works in exchange for a revenue stream payable to authors and copyright owners by using the current Private Copying Levy as a model for a more expanded collective licensing scheme. Further, Canada should embrace a National Digital Strategy and implement reforms such that Electronic Rights Management should not be permitted to be removed, fair dealing should not be expanded by the inclusion of a ‘such as’ clause, parody and satire should cease to be infringing activities, shared authorship should be bestowed jointly on the credited writer and credited director of cinematographic work, and the WIPO Treaties should be implemented and subsequently adapted to Canadian circumstances, in no small part to avoid the hostile reception accorded to Bill C-61.

The entertainment software industry is one of the fastest growing market segment in the global economy, with Canada rapidly establishing itself as a world leader in the multi-billion dollar global video game industry.  The employment opportunities in this industry, as well as its investments in research and technology are also significant. These investments are not without risk – in the highly competitive industry of video game production the chance of a video game being a commercial failure outweighs the chances of its success. Internet piracy of video game software has also undergone explosive growth and represents a significant problem for the entertainment software industry. Video game piracy drastically reduces the industry's capacity to sustain the enormously high creative costs associated with video game production, potentially leading to lost revenue, lost jobs, or worse. In an effort to protect their products from piracy, the video game industry has implemented various measures, including technological protection measures and other copy protection techniques, yet such measures are not fail-safe and are subject to circumvention.  Compounding this problem, copyright law in Canada does not provide sufficient protection. Consequently, the Entertainment Software Association of Canada herein presents ways in which Canadian legislators can use copyright law to reduce piracy. Modernizing copyright law will, in turn, allow for a fair and vibrant marketplace and, in so doing, enhance both Canada’s competitiveness and the public interest.

In this submission, the author articulates the principles that she feels should guide copyright reform. Appropriate reforms would aim to restore legitimacy to the Copyright Act by ensuring technological neutrality, and by implementing the WIPO treaties in a manner that best suits Canada’s specific circumstances, policy traditions, and cultural goals. Clear legal drafting so that ordinary Canadians can understand the Act is also essential. Strong users’ rights foster expression, enhance learning opportunities, and make creation possible in the first place. With respect to specific reforms, Digital Rights Management must not prohibit anti-circumvention for non-infringing purposes, licensing regimes must be accountable and transparent, and copyright protection generally should be subject to a flexible and broad fair dealing test by the inclusion of a “such as” clause in the current fair dealing provision of the Copyright Act, as guided by the Supreme Court’s test in CCH v. Law Society of Upper Canada.

Laura Murray, Copyright Consultations Submission (2009) 2 Osgoode Hall Rev.L.Pol'y. 239.