IP Intensive: The Purview of Industrial Policy – Ruminations from Selected INDU Committee Meetings - A Semester at ISED

At law school, policy is often a background discussion – something left to private chats with professors or fellow students as a creature of curiosity. However, at Innovation, Science, and Economic Development Canada (ISED), I was challenged to rethink my perspective on popular legal concepts and consider how the law ought to serve Canadians.

During my placement at ISED, as part of Osgoode’s IP Law and Technology Intensive Program (IP Intensive), I was able to attend many of the Standing Committee on Industry, Science, and Technology’s (INDU) review meetings of the Canadian Copyright Act. These meetings involve a selected group of Members of Parliament who are well-versed in the Canadian digital and creative economies. The INDU Committee is currently tasked with studying and reporting on the activities of stakeholders in any market where copyright legislation may be implicated. Interested parties – known as ‘witnesses’ – are able to appear before the INDU Committee, explain what their organization does, how copyright reform can impact their operations, and what reform ought to occur to accommodate their interests in the years to come. As for my role, I was able to sit back and observe a panel of MPs choreograph the delicate balance of competing rights among a diverse range of experts and industry leaders.

 

Copyrighting a Choreographic Work

Speaking of choreography, the submissions by Kate Cornell, Executive Director at the Canadian Dance Assembly at INDU’s 131st meeting taught me a thing or two about how copyright law interacts with choreographic works. Kate Cornell argued that the definition of ‘choreography’ under s.2 of the Copyright Act ought to be amended to reflect the present-day use of dance movements. The Canadian Dance Assembly sought a broadening of the definition to include dance movements that occur on digital platforms, citing as support purchasable dance emotes in the billion-dollar game Fortnite. However, the boundaries of what constitutes a protectable choreographic work or a mere physical movement were left undefined.

In its deliberation, the INDU Committee considered several examples, including jazz hands, the similarities between Beyoncé’s Countdown music video and Anne Teresa De Keersmaeker’s ‘Rosas danst Rosas’, and the iconic bomb-riding scene from Stanley Kubrick’s Dr. Strangelove. The Committee cited discontent from Chance the Rapper, who claimed that games like Fortnite “unfairly [profit] off of already named and recognized dances without giving credit or compensation to creators”, to frame the loss of control creators experience over their choreography and how software with a free-to-play business model can subsist, at least in part, by selling digital dances. However, drawing inspiration from pre-existing works is a cornerstone of creative arts and, in some cases, a third-party repurposing a work for a new audience can have a positive impact on the original creator’s popularity.

 

Accessibility and Usability

Balancing competing interests is also paramount to ensuring creative and educational content is available to all Canadians. The INDU Committee’s 133rd meeting invited representatives from the Canadian National Institute for the Blind (CNIB) and the Council of Canadians with Disabilities (CCD) to address the accessibility and usability needs of Canadians under the current copyright regime. The CNIB proposed amending the Act to ensure copyright protection “[could not] be granted to a literary work unless the production of such a work is done in an alternate format for persons with a print disability”. John Rae, speaking on behalf of the CCD, suggested an amendment that would prohibit the disbursement of federal funds to “any program, policy, contract or grant that would contribute to perpetuating barriers or creating new ones” and drafting legal documents in plainer and more understandable language. On the other hand, publishing creative or educational works in alternative, accessible formats incurs additional production costs which can impact the competitiveness and market success of publishers – especially so for smaller publishers.

At first glance, the proposed amendments may seem strict, but they highlight the importance of understanding the barriers faced by many Canadians. For example, the inability to access alternative format academic materials can impede one’s ability to participate and succeed in a post-secondary environment, consequently disadvantaging one’s competitiveness in the job market.

 

In Summation…

In shaping Canadian policy, it is important to reflect on the bigger picture and consider the real-world impact of legal debate. Attending INDU Committee meetings humanized legal discussions and presented the unique opportunity to observe the law beyond the books – as advocates and politicians regularly do.

 

Written by Dominic Cerilli.  Dominic is a Senior IPilogue editor and JD candidate at Osgoode Hall, and  was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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