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 This article, published in the Telecommunications Journal of Australia, contributes to the growing body of network neutrality literature by describing and commenting on recent developments in Canada. There have been and still are ongoing industry practices, regulatory policy proceedings, judicial decisions and pending litigation, and legislative proposals relevant to the issue of network neutrality in Canada. While most of the network neutrality literature has an economic focus, this paper dwells more on implications for Canadian culture. Though the dominant technological and economic discourses about issues like innovation and competition cannot be ignored, these are not the only paradigms with which to frame regulatory and other decision-making. Ultimately, this paper recommends a light-handed cultural policy response – one that clearly imposes neutrality obligations but does so in a principled rather than prescriptive manner.
Because I've granted the journal's publisher a 3-month window of exclusivity, you can't download the full paper yet. You can, however, access the article with a paid subscription to the TJA via its website, or email me and I'll be happy to provide you with a copy.
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 This article was published in the Canadian Legal Eduaction Annual Review (CLEAR), 2008. It examines the legal issues that arose when the Stanley Cup was not awarded on year because of a labour dispute between the National Hockey League and its players. I trace the history of the Stanley Cup trust, and describes the events surrounding the 2004-2005 lockout, including a lawsuit over ownership of the Cup. I show that a case study of the Stanley Cup can be a rich resource for teachers of property law and that it can enliven the sometimes dreary subject of property law.
CLEAR is available from Thomson Carswell here.
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Last Updated ( Sunday, 10 May 2009 )
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 This research, published in the Canadian Business Law Journal, explores legal strategies to profit from "peer production" of digital content. I use the term "profit" broadly, to connote financial as well as social, cultural and democratic gains possible in the networked information economy. It used to be that creators would create and consumers would consume. No more. While digital content production in the 20th century was characterized by centralized, hierarchical models, the 21st has brought about decentralized and organic modes of digital production.
New legal strategies are required to capitalize on the opportunities available in this new environment. This paper begins by analyzing the potential legal liabilities of firms dealing with peer produced content, and the safe harbours protecting those firms. It then examines strategic commercial responses to legal uncertainties, and suggests best practices and policies for enabling and profiting from peer production.
Download right here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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 This book chapter was co-written by me and my colleague at the University of Ottawa, Michael Geist. It was just published by McGill-Queen's University Press in the 2007 volume of the book series, Canada Among Nations, which for twenty years has brought together leading
scholars, practitioners, journalists, and members of the NGO community
for an assessment of the country's foreign policy. The books in the
series are widely adopted in Canadian foreign policy and international
relations courses and have become a major publication of record on
Canada's policies and actions in the world.
In the chapter, the new global intellectual property framework is explored in order to identify what room to maneuver exists for Canadian foreign and domestic policies. By taking advantage of flexibilities in existing international agreements and promoting progressive attitudes toward new international initiatives, Canada can advance its own interests while simultaneously facilitating social and economic development in other parts of the world. To seize this opportunity, Canada should leverage its technocratic expertise to positively influence global knowledge governance policies and implement domestic reforms as ‘middle-ground’ models for the information society. Adopting the incisive strategies proposed here will se cure a leadership role for Canada in the world’s new knowledge economy.
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Last Updated ( Sunday, 10 May 2009 )
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In this article, published in the Bulletin of Science, Technology and Society, Vol. 27, No. 4, August 2007, 287-300, I examine the rationale for a tort of “biotrespass”. Given the rapid and continuing advancements in biotechnology, synthetic biology and nanotechnology, questions of liability will continue to arise. Recent Canadian cases concerning Monsanto’s liability for crops contaminated by the spread of genetically modified seeds have neither adequately decided nor correctly considered the issue.
Although the torts of nuisance and negligence may be appropriate in some circumstances, I argue that trespass should be considered a relevant cause of action. I identify the doctrinal and practical obstacles to adapting the legal principles of trespass to accommodate advances in biotechnology. Those obstacles include i) the meta-physicality of molecular trespass; ii) the liability of patent licensors for the actions of licensees; and iii) the relevance of intervening forces to the question of directness. I show how those obstacles can be overcome by drawing analogies to “cybertrespass”, landlord-tenant law, and well-established laws concerning strict liability for wandering animals. The paper concludes that biotrespass can be a viable cause of action, if crafted carefully and understood properly.
An amended final version is available through Sage Publications here, or by email from me. A close-to-final version is available to download right here. The paper can also be downloaded from SSRN here or bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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The idea that IP owners have both rights and responsibilities underlies several of my recent papers, public lectures and conference presentations. One of my most recent publications on point is, "The Rights and Responsibilities of Biotech Patent Owners" (2007) 40:1 U.B.C. L. Rev 343-73.
In this article, I identify a legal disequilibrium in Canadian IP law. Recent decisions in Schmeiser and Hoffman illustrate a trend away from accountability for technological innovation and toward according technological innovators more numerous and powerful property rights. I show how this is a result of a failure by the Court to consider biotechnology issues as part of a bigger picture. By looking at these issues though the lens of patent law or tort law in isolation, Canadian courts have held that a patent entitles its owner to all of the rights but none of the responsibilities of ownership.
Equilibrium can be restored in this area of the law in one of two ways: One option is to narrow the scope of patent rights. Another is to recognize responsibilities. Practical and policy considerations suggest the latter response is more appropriate. The thrust of my message throughout this paper is that biotech patent owners must start owning up to their ownership obligations.
Download the full paper here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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In this article, published in the Denver University Law Review, I explore two ways that law can influence the creation and distribution of digital content. Specifically, I examine the relationship between (1) prohibitions against circumventing technological protection measures (TPMs) and (2) levies on products or services used to reproduce or transmit digital materials.
I show how, in attempt to address the concerns of various stakeholders, (some of whom favour locks, some levies), Canadian and American lawmakers may enact compromise solutions that fail to properly take into account the interests of consumers. Simultaneously using locks and levies to address digital copyright issues may force consumers to pay levies to compensate for copying that either cannot occur, is already licensed or is or ought to be fair use/dealing. I advise policymakers to be aware of this concern in order to minimize inconsistencies and incompatibilities when responding to the challenges of private copying and p2p.
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Last Updated ( Sunday, 10 May 2009 )
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Read more...
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This article, "How Restrictive Terms and Technologies Backfired on Sony BMG Music", examines the history and fallout of the Sony BMG DRM/rootkit fiasco. I argue that the root of the problem is Sony BMG's fundamental distrust and disrespect for the fans of the artists on their roster. Those fans are music consumers who want to obtain music in novel and convenient ways on fair and flexible terms and whose property and civil rights are casualties of Sony BMG's war on piracy.
The issues are discussed mainly from a Canadian perspective. Part I
provides an overview of the factual and technical background to this
story. Part II contains an analysis of the legal consequences of Sony
BMG's actions, and offers some insights as to the policy implications
for consumer protection, contract and copyright laws.
The article was recently published in the Febraury and March issues of Internet and E-Commerce Law in Canada. It originally appeared in two parts, but the complete version is available here or from bepress here. You can also stream an audio recording of me presenting the paper as part of an invited lecture series at uOttawa.
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Last Updated ( Sunday, 10 May 2009 )
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In this paper, published in the Canadian Journal of law & Technology, I consider whether levies are an appropriate way to deal with the challenges and opportunities that are arising in Canada's digital music market. I argue that tariffs or levies on the goods and services of third parties are not the best method to support the Canadian music industry in the digital environment.
Although copyright markets are far from perfect, the appropriate response is to simplify market exchanges rather than undermine them through an expanded exemption/levy scheme. The concept of substituting third party liabilities for free-market transactions suffers from numerous flaws. This paper canvasses possible philosophical objections, constitutional constraints, international treaty issues, cross-subsidization concerns and outdated assumptions, all of which must be dealt with before a broad exemption/levy scheme would be viable in Canada. On balance, I argue that the downside of levies outweighs any benefits.
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Last Updated ( Sunday, 10 May 2009 )
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 In anticipation of amendments to Canada’s Copyright Act through Bill C-60, this paper asks whether provisions that would prohibit the circumvention of technical protection measures are “Copyrights”, and therefore the proper subject matter of federal copyright legislation. I show how these provisions in are arguably "paracopyrights" and may be in pith and substance a matter under the provincial authority over property and civil rights.
This work is included in a new book on Canadian copyright reform, "In the Public Interest: The Future of Canadian Copyright Law," and available for download from Irwin's site or right here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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 This research addresses the scope of Parliament's authority under subsection 91(23) of the Constitution Act 1867 to legislate in respect of "Copyrights", with specific reference to Canada’s private copying levy. Because the levy has been interpreted very broadly, it is arguably in pith and substance a matter of Property and Civil Rights and therefore a matter of provincial jurisdiction. More generally, I argue that copyright legislation must remain tightly linked to authors' cultural creativity, and not unduly compromise other Canadians' property and civil rights.
The article can be downloaded directly from the McGill Law Journal here, or from SSRN here, or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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In this essay, I show how to reconcile competing intellectual, common and "classic" property rights, using plants and agricultural biotechnology as an exemplar. Based on the Supreme Court of Canada's decision in Monsanto Canada Inc v Schmeiser, I argue that IP has forgotten its justificatory roots in "classic" property rights and that redressing this is essential to buttress the rights of sustenance farmers in the developing world.
The essay was written in partial fulfilment of my BCL degree at the University of Oxford, and published in the Journal of World Intellectual Property. You can download the published version here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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 Written while I was at the University of Saskatchewan College of Law, this article examines the need for provincial legislation to address a gap in privacy protection that creates uncertainty for employers and leaves many employees vulnerable. I argue that the only tenable solution is for each province to enact laws that address privacy in the employment context, using recently enacted federal legislation as a template.
It is published as (2003) 66(2) Sask L.R. 383, and can be downloaded here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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This was my first publication. As the title suggests, it examined the state of Canadian copyright law in the context of the Internet. In it, I advocated for an evolutionary rather than revolutionary approach to copyright reform.
It is published as (2000) 63(2) Sask L.R. 503, and available right here or from bepress here.
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Last Updated ( Sunday, 10 May 2009 )
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Read more...
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About Me
I am an Associate Professor at the University of Ottawa's Faculty of Law. My expertise is in the area of technology and intellectual property law. Read more details or follow me on twitter.
Mindmaps
Mindmaps for classes and presentations are online here.
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