Copyright Policy Work? ISED I Like it Like That

Without a doubt, I have learned a lot about intellectual property law during my time with the Copyright and Trademark Policy Directorate (CTPD) at Innovation, Science and Economic Development Canada (ISED). As is my usual fashion, I tend to make bad jokes about it – “It’s called an Intensive Program for a reason”; “I’m pretty sure I’m now one of Canada’s foremost experts in the area of copyright I focused on.”

But apart from substantive knowledge, perhaps the most important lesson I’ve learned in my time at ISED is that government, while a unique institution with a responsibility to the public and mandate to act in its best interest, is still an organization in its own right. In hindsight, it seems strange to view the federal government, which on its own accounts for 1/7th of Canada’s GDP, as a monolith. It is a collection of diverse groups and interests which, despite the (sometimes understandable, sometimes irrational) frustration directed at it, is full of people who genuinely go to work every day with the needs of this country front-of-mind.

There was perhaps no better time for me to have joined ISED; with the caretaker phase of the election, I got a sense of the government’s unambiguous awareness that its actions and legitimacy are deeply intertwined with the Governor-in-Council, and its accountability to Parliament and the Canadian people. But even during this time, with the sensitivity it brings, things need to get done. Without the overarching direction of Cabinet, the iterative nature of governance was on display in a way that might not have otherwise been obvious. That is to say, as much as the activities of a government department may be shaped by the Minister at its helm or the Government of the day, so too does the bureaucracy have a role, indeed a responsibility, to gather information and evidence, to inform, and to provide elected leaders with the tools they need to make decisions and evaluate whether and how past decisions are working.

To do their job properly, policy-makers must consult with a diverse range of stakeholders to ensure that all perspectives are canvassed. But, unlike the adversarial common law framework that has been so engrained in my head these past two years of law school, it is also important that points of view not expressed by stakeholders are considered – in my opinion, it is perfectly reasonable, if not essential, for the government to have its own perspective on a given issue (though it must be tempered by a vigilant ‘step-back’ to ensure that this view is in line with the public interest, both as defined by Canada’s elected leaders and as a more general concept).

Developing that kind of holistic perspective requires continual engagement – identifying stakeholders (including those who may not realize they are stakeholders), receiving their points-of-view, critically evaluating their ideas and concerns, including as against those of other stakeholders, and re-engaging with that newly-informed perspective to repeat the process. The end goal of this is, cognizant of elected leaders’ priorities, to build a consensus where possible, or at least narrow down the range of options and implications. Consensus-building doesn’t just extend beyond government, however. I’ve also very much internalized the importance of understanding that, much as private entities build partnerships and dialogues to achieve their shared interests, it is also invaluable for policy makers to develop those kinds of relationships within government.

Looking toward my future, this process has given me a newfound appreciation for judges, who by the nature of their job have to rely on a limited set of viewpoints. It has also made me, personally, question the advancement of wide-reaching, complex, controversial policy through the courts. It is not a question of trust or competence – judges, from my (relatively) limited experience are certainly among the best and brightest individuals who could be chosen for the role. But that role comes neither with the mandate to consider all points of view nor the institutional supports to do so. I therefore come away from government (and law school) appreciating the judicial system as a pivotal institution to hold the government to account and prod it to action, but am more understanding of decisions that leave the ‘how’ to Parliament, the Executive, and the Administration – when it comes to the judicial branch of a healthy liberal democracy, justice is best served correctively, not prescriptively.

To close, thank you to ISED, MFPB, and my team at CTPD. It was an enriching experience, and I was genuinely sad to leave.

Peter Werhun is an IPilogue Editor and JD Candidate, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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