It is my pleasure to return to my editorial duties (sans a 007 title pun) for the IPilogue to bring a first hand account of the fifth annual Harold G. Fox Canadian Intellectual Property Moot. After months of grueling preparation, I am proud to report that the moot, while a resounding success all-around, was particularly fruitful for those of us representing Osgoode Hall Law School. More on that later.
Full results from the Harold G. Fox Canadian Intellectual Property Moot can be accessed here.
This year’s moot problem was a crafty piece written by Bruce Stratton and his esteemed colleagues at Dimock Stratton LLP. The problem took advantage of the recent developments that the Supreme Court of Canada’s copyright pentalogy have brought to infringement and fair dealing. Specifically, we were compelled to argue first whether the shortening of a licensed, long-lost Batman film to a song-specific clip (“Batman Style”, popularized by the fictional Korean artist “Pi”) infringed the copyright of the appellant’s sound recording. Second, if infringement was established, we turned to whether the respondent, Professor Michael Caine, could rely on the “private study” exception for fair dealing in providing the sound recording in its original context within the cinematographic work. It was a very fun problem, and I had the particularly onerous task of arguing that Caine’s usage was indeed fair dealing with the work.
The Osgoode team that I proudly represented consisted of myself (Ryan Heighton, Class of 2014) and Ryan Keller (Class of 2014) representing the respondent Michael Caine (and we had the pleasure of enduring many “Team Ryan” and “R-Squared” colloquialisms throughout the moot), David Bowden (Class of 2014) and Robert Trenker (Class of 2014) representing the appellant Thomas Hardie Music, Inc, with Danny Titolo (Class of 2013) rounding out the team as our invaluable researcher. We all took Legal Reform seminars with Professor David Vaver in the fall 2012 term, and we all soon found out just how valuable Professor Vaver’s tutelage was.
Our preparation was extensive. We received the problem in mid-November, but with the time constraints that fall exams placed upon us, we did not sink our teeth into the problem until mid-December. Our fantastic coaches, Casey Chisick, Tim Pinos, and Shane Hardy from Cassels Brock provided us with timelines and support throughout the process, which was invaluable. IP Osgoode’s own Professor Giuseppina D’Agostino served as the faculty advisor to the team. Speaking on behalf of the entire team, we would like to offer our deepest thanks to them. We owe a great deal of our success to our coaches. After countless hours of factum prep, including many Google Doc and Skype sessions, our appellant and respondent teams submitted our respective facta for grading by the Fox Moot Committee in early January. Then began the oral preparation. We had many grinding practice sessions with constructive feedback from our coaches at Cassels (who themselves argued many of the cases that we cited at the Supreme Court – giving us unique insights regarding appellate advocacy) as well as innumerable team sessions, and we quickly found ourselves ready to moot!
The Fox IP Moot took place this past weekend (February 22-23, 2013) at the Federal Court of Canada, in downtown Toronto. Teams from five law schools across Ontario competed for the Harold G. Fox Cup: Osgoode Hall Law School, Queens University, University of Toronto, University of Windsor, and Western University. The competition began on noon Friday with the Fox IP Lecture, delivered by the Honorable Randall R. Rader, Chief Judge of the United States Court of Appeals for the Federal Circuit. Chief Judge Rader gave a highly entertaining lecture: IP Rights – Do the Remedies Fit the Infringement?, which spoke to the forces that he perceives as governing IP law. While I was disappointed that the “forces” did not pertain to a Jedi versus Imperial struggle, I was captivated by his views on the misconceptions of “patent trolls”, the strong influence of the media on IP cases, and the “culture” of using litigation as a commercial strategy. However, what stood out to me the most was his concerns about the re-entry of the non-expert jurist in the field of IP. In a personal conversation, he acknowledged that IP is becoming a more “sexy” field of law, and the Supreme Courts (most of which do not have IP experts, save for the Honourable Justice Marshall Rothstein of our own Court) are taking a greater interest in what has historically been the predominant realm of the Federal Courts. He cited the primary difference as one of approach, where the Federal Courts emphasize bright line tests and administrative standards, other Courts favour reasonableness standards. I could talk in much greater length about this riveting lecture, which also included strong encouragement for students to learn international IP law and references to Nicomachean Ethics, but in the interest of space, I must move on.
Shortly after the lecture (which was delivered while we enjoyed a decadent lunch at Arcadian Court), the first of two preliminary rounds started. New to this year’s competition, each appellant and respondent team would face the opposing side of every other school. This meant that we would moot twice in each of the two preliminary rounds (with the second held Saturday morning), with the aggregate score of our four preliminary moots and our factum determining which teams would move on to the playoff rounds. In the preliminary round, each panel consisted of one jurist and two IP practitioners, which made for a challenging and interesting dynamic. I must say that the quality of panelists that Dimock Stratton was able to attract to this event was, as always, top notch and we were truly humbled in appearing before them.
The preliminary rounds were a lot of fun, and some of the panels were incredibly challenging. I personally faced the difficult task of convincing some very “user rights” focused professionals that we should broadly interpret “private study” in the context of fair dealing. All of our team members became very passionate about our positions, and this certainly helped our persuasiveness in the Moot Court. After each round, we were given extensive feedback from the panels, which was a unique and fruitful way to develop our advocacy skills. Learning from the perspective of judges, who regularly hear appeals, and practitioners, who regularly make them, was one of the greatest benefits of this competition. Perhaps my favourite (and potentially embarrassing) piece of feedback was from the Honourable Justice Lois Roberts of the Ontario Superior Court who praised my voice, calling it “beautiful” and suggesting that I should be a singer. However, I refrained from serenading future judges. Justice Roberts also invited us all to sit in her seat at the bench, allowing us to gain her visual perspective, which made us all cognizant of the subtleties that the judiciary can pick up on.
After lunch on Saturday, the semi-finalists were announced, and we were extraordinarily lucky in that both of our teams advanced. Myself and Ryan as the respondents placed first among respondents in the preliminary rounds, while David and Robert placed second among appellants, in what were both inevitably close races. In a strange and wonderful twist of fate, this set the stage for an all-Osgoode semi-final round in front of the Honourable Justice Robert Blair of the Ontario Court of Appeal, the newly appointed Honourable Justice Michael Manson from the Federal Court, and the Honourable Konrad von Finckenstein, Q.C. a former chair of the CRTC. We both had undoubtedly our best rounds to date, bringing our best arguments forward while facing a very sophisticated and challenging bench, and had a lot of fun doing it. To faceoff against our own teammates who we have been working, commiserating, and practising with for months was exciting and a great way for the moot to come full circle.
In what was later described to me by Justice Manson as the toughest decision that he has made as a jurist yet, our incredible respondent team, David and Robert, moved on to represent Osgoode in the finals. Ryan and I could not have conceded to better opponents. In a packed courtroom full of other competitors, practitioners, friends, and academics (including IP Osgoode Director Professor Giuseppina D’Agostino), David and Robert faced the University of Toronto respondent team who had trumped the Western appellants in their semi-final round. Although the teams were anonymous to the judges at the time, this created a Subway Series that the Fox Moot had never seen before, and a proper (yet cordial) grudge match. In a panel that most experienced litigators would fear, our finalists’ submissions were received by five judges: Justice Rothstein, Chief Judge Rader, the Honourable Justice Stephen Goudge of the Ontario Court of Appeal, the Honourable Justice David Stratas of the Federal Court of Appeal, and the Honourable Justice Judith Snider of the Federal Court. Both teams were challenged early and often, with Chief Judge Rader proving to be particularly adversarial, hitting each oralist with a broad and difficult question within 30 seconds of commencing. Each of the four oralists were graceful, deferent, and rose to the occasion.
We were kept waiting for a few hours until an awards dinner at the University Club. In the end, Osgoode was triumphant with David Bowden and Robert Trenker claiming the Harold G. Fox Cup for the best mooting team. Myself (Ryan Heighton) and Ryan Keller took home the Gordon F. Henderson Award for the best factum (which we could not have done without the hours of editing and revisions by Danny Titolo). The Donald F. Sim and Dimock Stratton LLP awards for best oral advocate and best mooter in a non-graduating year, respectively, went to Kevin Siu from the University of Toronto respondent team. Needless to say, we are incredibly proud to be members of the Osgoode community and represent the school well at such a prestigious event.
I could easily write another 2000 words to further texturize all of the exciting, nerve-wracking, and hilarious things that happened this weekend and it would not do this event justice. Perhaps the biggest thing that I will take away from this moot is the value of collaboration in law. As with many other fields of law, the intellectual property bar is incredibly collaborative, cordial, and this is evidenced by the generous and vast sponsorship that the event received. Indeed, this event would not be an annual resounding success if not for this collaboration. We would like to thank all of the sponsors, the organizers, our coaches, and professors for making this possible. The event was orchestrated flawlessly, the abundance of food and drink at the receptions was remarkable, and everyone involved was incredibly accommodating and friendly. On a more personal note, I want to thank my teammates for making this a truly enjoyable and enlightening experience. I truly believe that we were as successful as we were because of our great collaboration and constant challenging of one another, and this will certainly persist as one of my most memorable law school experiences.
As a parting note, I would just like to remind all of the gentlemen reading this to heed the advice of Madam Justice Snider, and be sure to button up your jacket when you stand before the Court.
Ryan Heighton is a JD Candidate at Osgoode Hall Law School and was a proud member of the 2013 Harold G. Fox Moot team for Osgoode Hall Law School.