Feds promise to create data commissioner, more funding for IP as part of fiscal plan

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc, on May 3, 2021.

Although the Trudeau government focused much of its attention in the recent federal budget with the continuing fight against the COVID-19 pandemic, buried deep in the document were promises to tackle data and intellectual property (IP) issues which it says will be key as a digital economy becomes the norm for many.

With more and more of people’s lives happening online — and the pandemic forcing individuals to move their workstations from gleaming towers to cozy home offices — the federal government is saying a digital economy that serves and protects Canadian business is vital for long-term growth, but Canadians must be able to trust that their data is protected and being used responsibly.

To that end, the federal Liberals are promising to create an office of data commissioner aimed at informing government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace.

Pina D’Agostino, founder and director of the Intellectual Property Law and Technology Program at Osgoode Hall Law School (IP Osgoode), said appointing a data commissioner is “basically signalling the importance of data as a new currency.”

“Ownership and governance issues of data are not privacy issues, so it would be beyond the mandate of a privacy commissioner,” she said. “The signal is that it’s not just about privacy that matters, there are other social implications — what they speak about in artificial intelligence is that data can tend to privilege certain demographic groups in society, so we want to ensure that doesn’t happen and someone like a data commissioner would be mindful of that.”

Marc Yu, a privacy and data management lawyer with Edmonton’s Field Law, said the concept of a data commissioner is “interesting” for Canada.

“It is a fairly short description in the budget as to what the data commissioner is intended to do, so it is likely there will be further details once the commissioner’s office is developed in the future and becomes operational,” he said. “I would think one of the data commissioner’s roles would be to streamline information sharing amongst the public sector, so amongst the federal agencies and federal departments we would have a clearer process in terms of how data might be shared between these different agencies and departments to help them further their objectives and functions in this digital environment, while also maintaining the personal privacy of individuals to whom this information belongs.”

In addition to creating a data commissioner’s office the budget also contains several direct investments in intellectual property, building on the national intellectual property strategy announced in the government’s 2018 fiscal plan. Ottawa is promising to establish ElevateIP, a program to help accelerators and incubators provide startups with access to expert intellectual property services, and allow companies to expense the cost of some investments in digital and IP assets.

These initiatives would be complemented by a strategic intellectual property program review, which would be a broad assessment of intellectual property provisions in Canada’s innovation and science programming, from basic research to near-commercial projects.

D’Agostino said the funding is welcome because the costs associated with many intellectual property matters, such as filing patents, are very high. And she noted a setting up a review “really speaks to the issues which we have seen in the IP system.”

“It is not useful to have siloed approach — we have a Patent Act, a Copyright Act and a Trademark Act that don’t speak to one another and at the same time develop polices in isolation,” she said. “We need to look at all of them and how they benefit innovation and science generally because they all work together, and ensuring there is no siloing and how the laws and the programs we have can really benefit research commercialization and ultimately innovation for Canada.”

More information on the federal budget can be found here.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

Ian Burns is a Digital Reporter for The Lawyer’s Daily.

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