Intellectual Property
InvestigationsOur Blog
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In the final instalment of our AI in the Courtroom series, we explore practical challenges that may arise when litigating in an AI world, and within the current framework of the Rules of Civil Procedure, Practice Directions, and common law. While the law is not entirely unequipped to deal with these challenges, evolution in the Rules and common law will likely be necessary as AI becomes more commonly used by various participants in the litigation process.
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Savvy content creators and copyright owners often use technical protection measures (also known as “TPMs”) to restrict what users can do with their works (often digital materials). The prohibition against circumventing TPMs is rooted in sections 41 and 41.1 of the Copyright Act, but their fit within the broader Copyright Act is the subject of ongoing debate.
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As widely reported by the likes of CBC, the Guardian, the Verge and CNBC, OpenAI has indicated they will “pause” the use of their AI-generated voice after users (and Scarlett Johansson herself) noted the striking similarity to Scarlett Johansson's voice from the film “Her”. This connection may have been intentional, OpenAI’s CEO, Sam Altman, posted a one-word message – “her” – on his social media on the day the AI-generated voice was unveiled.
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As artificial intelligence continues to permeate every aspect of our lives, legal challenges involving AI will proliferate. Parts 1 to 3 in our series explored many of these potential questions. AI will create new legal problems and change the texture of old ones. As always, the judiciary, with the assistance of counsel, will assume a pivotal role in navigating this landscape.
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In our last comment on non-patentable subject matter, we provided our thoughts on the Federal Court of Appeal’s decision in Canada (Attorney General) v Benjamin Moore & Co (the “Benjamin Moore Appeal”). As a top line, this decision was a loss for Canadian innovation. As we discussed in detail, the Federal Court of Appeal missed an opportunity to clarify the law of patentable subject matter, adopt the IPIC framework endorsed by Associate Chief Justice Gagné, and signal to the Canadian Intellectual Property Office (“CIPO”) that its examination practices were out of step with the law. Instead, the Federal Court of Appeal further complicated an already complex area of the law, which will increase the costs of innovators to register their technologies in Canada.
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A desire to expedite patent disputes may result in a party pursuing summary adjudication. We have previously commented on a number of cases relating to the use of summary proceedings for resolving patent cases in Canada. In particular, in the Federal Court of Appeal’s 2022 decision in Gemak Trust v Jempak Corporation, the FCA held that summary judgment is not appropriate where there are serious issues with respect to the credibility of witnesses, and the Court observed more generally that “while patent infringement issues are not by definition excluded from the ambit of the summary judgment process, they tend to raise complex issues of fact and law that are usually better left for trial”. We noted that in Gemak, the FCA was tapping the brakes on a trend towards increased adoption of summary proceedings in patent cases, and that for parties interested in summary adjudication, summary trial may be a more attractive option, particularly where witness credibility, and especially expert credibility, is likely to be an issue.
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The multifaceted nature of generative AI is bound to create legal complexities at the intersection of intellectual property law and class actions, as this emerging technology disrupts not only the tech landscape but the legal one too.
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Did Drake respond to an alleged feud with fellow artists, including Kendrick Lamar and Rick Ross? As reported by the LA Times, a track titled ‘Push Ups (Drop and Give Me 50)’ appeared online recently, taking aim at Lamar and several of his recent musical collaborators. However, this track remained unclaimed on any of Drake’s official platforms, causing some to question whether this track was fan-generated using artificial intelligence. This cynicism may be justified: Drake is reportedly no stranger to having to denounce fan-generated songs, and Lamar’s rumoured response was actually the work of artificial intelligence and another rapper.
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The current landscape is inundated with narratives surrounding artificial intelligence and its intersection with the law. From the New York Time’s lawsuit launched against OpenAI in December 2023, to the BC lawyer reprimanded for citing fake AI-generated cases, to the lying Air Canada chatbot, the legal and mainstream media is full of stories of AI or people using AI running up against traditional legal doctrine and practice. Yet, amidst this surge of AI-related incidents, Canada finds itself grappling with more questions than answers.
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In two decisions released on the same day, the Federal Court has confirmed that applications are summary procedures that exclude the right or ability to examine witnesses who have not sworn affidavits.
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