Intellectual property education: are Canadian law schools doing enough to support innovation?

November 26th, 2013 by Barry Sookman Leave a reply »

Innovation is a major driver of economic growth. It is also central to the competitiveness of the Canadian economy. It is an engine that creates challenging and well paying jobs. The protection of intellectual property is an important element in promoting innovation and in supporting markets in the trade and dissemination of innovative and creative products and services.[1] Intellectual property is now a crucial asset, the ownership of which has become pivotal to corporations.  In some sectors their ultimate value is their IP.[2] Intellectual property lawyers can play an important role in enabling the acquisition, protection, and exploitation of intellectual property rights. Law schools can play an important role in training lawyers to provide these important services.  Are Canadian law schools meeting these innovation challenges?

In these times of accelerated technological change intellectual property laws are now being scrutinized more than ever. There are continual calls for reforms to IP laws. IP laws are at the center of bi-lateral and multi-lateral trade negotiations. There are heated debates about the role of intellectual property laws in spurring creativity and innovation. There are questions about what is the proper balance between promoting and stifling innovation and creativity. Canada just completed over seven years of debates about reform to our copyright laws leading up to the passage of the Copyright Modernization Act.  However, there are many more issues of key importance including in the patent, trade-mark and copyright areas.  How IP laws adapt to new challenges and the nature of the legal rules governing IP can have important consequences on the development of markets and investments, and the pace of innovation in the dynamic knowledge-based 21st century economy. Law schools can also play an important role in training lawyers to help make or influence important policy decisions about IP law reform. Are Canadian law schools meeting these innovation challenges?

This blog post endeavors to take two modest steps to begin to answer these questions. The first is to report on the results of a survey I recently conducted on IP education in Canada. The objective of the survey was to collect data to identify the current courses, faculty, programs, and research focus of IP educators in Canada. The second is to ask questions intended to stimulate further research to determine whether and in what respects IP education in Canada should and could better support Canada’s goals of increasing innovation and creativity and thereby enhancing our country’s economic growth.

Survey of intellectual property education in Canada

To assess how law schools in Canada are faring in their intellectual property training of lawyers, I conducted a survey of law schools in August of 2013. The focus of the survey was the curricula and other activities of the law schools in the 2012-2013 and 2013-2014 academic years. The survey covers sixteen of Canada’s law schools. The objective was to assess how well they train law students to help organizations obtain, protect, and exploit intellectual property and to thereby support the innovation process and train lawyers to make or influence important policy decisions about IP.

The survey focused on the following with respect to each law school surveyed:

  • Whether all of the core courses in patents, trade-marks and copyrights were offered.[3]
  • Whether advance courses in IP law were offered and the nature of the advanced courses.[4]
  • The number and backgrounds of faculty, both full time and adjunct, including areas of research, publications, and the practical experience of the faculty that taught the courses.[5]
  • Whether the law school offered students an opportunity to specialize in IP, including by offering an intensive or clinical program or research opportunities in IP, or an opportunity to write or blog on IP developments.
  • Whether the law school participated in the Fox Moot and the success including placements of the team in the last two years.

The survey responses, together with some other publicly available information, were compiled and organized in a table by law school. The detailed information is set out in the table available at thislink.[6]

There is a great deal of variation in the intellectual property curricula and programs of law schools offered to law students. There are also major differences in the focus of laws schools and their faculties towards intellectual property and intellectual property education. To help understand the differences, I summarize the results of the survey by grouping the law schools surveyed according to the criteria set out below.  Though groupings are not intended as a ranking of schools within a group or between groups, it will be apparent that there are important differences within and across the groupings.

Group 1 Osgoode, Ottawa, and Toronto[7]

Three law schools, Osgoode, Ottawa, and Toronto, have programs that offered students substantial opportunities to learn about IP law. Each program offered all of the basics including survey courses and core courses in patents, trade-marks and copyrights.[8] They also offered both theoretical and practical advanced courses in IP law as well as intensive or clinical programs that enable students to specialize in IP law. These law schools also have full-time and adjunct faculty with diverse backgrounds that enable the law schools to teach students the technical aspects of IP law and provide them with varied perspectives about IP laws. Moreover, faculty in these schools, led particularly by Osgoode and Ottawa, have authored (or co-authored) leading textbooks, articles and publications in the IP field.

Osgoode had a survey course in IP as well as course offerings in each of the core patent, trade-mark and copyright areas.  It also offered additional advanced courses in IP that offered students opportunities to gain both theoretical and practical understanding of IP. For example, Prof. Vaver offered two courses on law reform, one dealing with copyright and design law, the other with patents and trade-marks. Prof. Craig offered two courses in IP theory. Visiting Prof. Nabhan (who also taught at Ottawa) taught an intensive course in international and comparative copyright law. Another course in international IP law was jointly taught by Profs. Craig and Mgbeoji. Osgoode also offered courses with substantial practical content such as a course on commercializing IP taught by adjunct Profs. Ed Fan, an IP partner at Torys LLP, and Loreto Grimaldi, COO and GC at MedAvail. Adjunct Prof. Chauhan, the head of Content Protection for the MPAA-C, taught a course on the law affecting the creative industries. Adjunct Prof. Duarte, Legal Counsel to the Ontario Media Development Corporation, taught a course on entertainment and sports law.

Osgoode also offers students the Intellectual Property Law and Technology Program, IP Osgoode, an IP law and technology intensive program.  It also runs the IP Osgoode Innovation Clinic, a clinic that works with start-up companies to help them secure and protect their IP en route to commercial success.  Osgoode also has offered an LLM program in IP law. It also offers students opportunities for research and writing including through its IP Writing Challenge.

Osgoode has accomplished full time and adjunct faculty. Prof. Vaver, who offered several courses and directed Osgoode’s intensive program in 2013, is (in my opinion) Canada’s most distinguished and respected professor of intellectual property law. He is the author of numerous books on IP, including Intellectual Property Law: Copyright, Patents, Trade-marks, 2nd ed. (Irwin Law, Toronto, 2011), Competition Policy & Intellectual Property (Irwin Law, Toronto, 2009), (with Profs. M.J. Trebilcock & M. Boyer) Intellectual Property Rights: Critical Concepts in Law (Routledge, 2006), Intellectual Property in the New Millennium (Cambridge U.P., October, 2004), Principles of Copyright Law (World Intellectual Property Organization, Geneva, 2002, Copyright Law (Toronto: Irwin Law, 2000) and has several books forthcoming.  His books are frequently cited by the Supreme Court of Canada. Prof. D’Agostino, the founder of IP Osgoode, is the author of two books, Copyright, Contract, Creators: New Media, New Rules (Cheltenham: Edward Elgar 2010) and The Common Law of Intellectual Property: Essays in Honour of Professor David Vaver (edited with Catherine Ng and Lionel Bently) (Oxford: Hart Publishing 2010). Prof. Craig, who teaches copyright and trade-mark law, among other courses is also a co-author (with Barry Sookman and Steven Mason) of a casebook on copyright law and the author of Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham, UK, Northampton, Mass: Edward Elgar Publishing, 2011), and Trade-marks & Unfair Competition Law in Canada: Cases and Commentary, co-edited with Bita Amani (Toronto, Canada: Carswell, Thomson Reuters, 2011). Prof. Ikechi Mgbeoji, who teaches patent law, has authored and co-authored several books and is a prolific author of law review articles and other publications on various patent law topics.  Some of Osgoode’s adjunct professors have also published extensively.  Adjunct Prof. Mr. Duarte is the author of Canadian Film & Television Business & Legal Practice (Canada Law Book, 2000), and I am the author of the six volume treatise on Computer, Internet and E-Commerce Law (Carswell 1999-2013), Copyright Cases and Commentary on the Canadian and International Law (Carswell, Second Edition) (co-authored with Profs. Steven Mason and Carys Craig ), Intellectual Property: Cases and Commentary on the Canadian Law (2nd. Ed. Carswell, 2012) (co-authored with Profs. Steven Mason and Dan Glover), and Sookman: Computer, Internet and E-Commerce Terms: Judicial, Legislative and Technical Definitions (Carswell 2001-2013).

Ottawa offered a plethora of courses in intellectual property law.  The survey course in IP was offered by different faculty, including Profs. Judge and Scassa, and by several adjunct professors from Gowlings, including Stephane Caron. Ottawa also offered a course focusing on the theoretical underpinnings of intellectual property law called Foundations of Intellectual Property Law taught by Prof. Hiram, a visiting professor from the University of Puerto Rico. It also offered core courses in patent law taught by adjunct professors from Smart & Biggar (Steven Garland and Colin Ingram) and trade-marks taught by adjunct professors Peter Cooke and Tim Bourne from Ridout & Maybee. It did not offer any core course in copyright. However, it offered other courses with substantive copyright subject matter including a course in International and Comparative IP law taught by visiting Prof. Nabhan (who also taught at Osgoode) and Digital Media & Music Law taught by Prof. de Beer. Ottawa also offered a seminar taught by Prof. Geist, Regulation of Internet Commerce, which includes a topic on copyright.  It also made available to students several advanced courses in IP litigation, one offered by adjunct Profs. Michael Crichton and Marc Richard, litigation lawyers from Gowlings, and an advanced IP advocacy practicum taught by Prof. de Beer. The curriculum also included other advanced courses, IP and Human Rights by Prof. Chidi Oguamana, and Biotech and Pharma IP law by adjunct Profs. from MBM Randy Marusyk and Philip Oliver, and an intensive three-week seminar course lead by Prof. Geist, Global Technology Law and Policy held in Ottawa and Haifa that includes an IP component. Students are given opportunities to do technology law internships which includes IP placements and opportunities to do research for professors.

Ottawa’s full time faculty are also the authors of numerous books, articles, and other publications in the IP area.  Prof. de Beer is co-author of The Collaborative Dynamics of Innovation and Intellectual Property in Africa (Cape Town: UCT Press), Access to Knowledge in Africa: The Role of Copyright (Cape Town: Juta 2010) ,and Implementing the World Intellectual Property Organization’s Development Agenda (Waterloo: Wilfrid Laurier University Press/Centre for International Governance Innovation/International Development Research Centre, 2009).  He is also the author of other publications in a variety of fields including copyright and international copyright.  Prof. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest: The Future of Canadian Copyright Law (2005, Irwin Law).  He is also author of IP articles principally in the field of copyright.  He is also a prominent blogger with frequent posts on copyright.  Prof. Scassa wrote or co-authored several books, including Canadian Trade-mark Law, LexisNexis (Butterworths) Canada, Inc., 2010, (along with Courtney Doagoo, Mistrale Goudreau, and Madelaine Saginur) Interdisciplinary Approaches to Intellectual Property Law, (Irwin Law), and (with Gregory Hagen, Cameron Hutchison, David Lametti, Graham Reynolds, and Margaret Ann Wilkinson) Canadian Intellectual Property Law:  Cases, Notes and Materials (Emond Montgomery).  Her articles often span copyright and trade-mark topics. Prof. Judge is the co-author of Intellectual Property: The Law in Canada, with Dr. Daniel Gervais (Carswell) and Le droit de la propriété intellectuelle (Éditions Yvon Blais).  Her IP-related articles are mostly also in the copyright area. Dr. Oguamanam is the author of: International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine (University of Toronto Press in 2006) and Intellectual Property in Global Governance: A Development Question (Routledge 2011). His articles are in different fields including those covered by his books. Some of Ottawa’s adjunct faculty have also published in the copyright (Stephane Caron) and patent (Steven Garland, Colin Ingram, Jay Zakaib, Michael Crichton, Aumand Livia, Marc Richard) fields.  Although he didn’t teach any IP courses in the two years surveyed, Ottawa’s Prof. Kerr has also authored articles and book chapters with a focus on legal protection for technological measures under copyright law.

Toronto had a survey course in IP as well as course offerings in each of the core patent, trade-mark and copyright areas. It also offered additional courses in IP in the areas of Law and Policy of Bio-technology, Patent law for the Life Sciences, an intensive course in IP Medicine and Health, and courses in Digital Content and the Creative Economy, International IP law, and Competition Law and Intellectual Property.  The IP survey course was taught by Prof. Drassinower who also teaches copyright law.  Prof. Drassinower is an author of numerous articles in the field of copyright. The IP survey and copyright course was also taught by Prof. Katz who also taught the patent law for the life sciences (along with adjunct prof. Parker), and the competition law course.  He also teaches a seminar on Collective Administration of Copyrights. Prof. Katz is the author of many articles mostly in the field of copyright and competition law. The trade-marks and patents courses were taught by adjunct faculty Kelly Gill from Gowlings (trade-marks) and patents (Don Cameron and Scott MacKendrick of Bereskin & Parr).  Richard Owens, the founder and former head of Toronto’s Centre for Innovation law and Policy, taught the law and policy of biotechnology course and the course on digital content and the creative economy along with Blackberry lawyer Aaron Sawchuk. The international IP law course was taught by adjunct Prof. Chapdelaine.  Prof. Gibson taught the intensive medicine course and is the author of several publications in the field. Some digital IP topics are covered in a course taught by visiting Prof. Radin in Internet Commerce. The law school also offers students the opportunity to participate in a clinical legal education with the Innovation Law Clinic, a student clinic helping early start-up businesses mostly from MaRS. This clinical program is coordinated by adjunct Prof. Sutin from Norton Rose.

Group 2 Queen’s, Windsor

Queen’s and Windsor, also offer students substantial opportunities to learn about IP law. Their focus is on teaching each of the core fields of IP, patents, trade-marks and copyrights.

Queen’s offered each of the core IP courses, trade-marks and unfair competition, copyright, and patent law. It also offered an advanced IP seminar. The trade-marks, copyright and advanced IP seminar were taught by Prof. Amani. She is a co-author (with Prof. Craig) of the casebook Trade-marks and Unfair Competition Law in Canada (Carswell, 2011)  (Second edition, forthcoming 2014) and is the author of State Agency and the Patenting of Life in International Law: Merchants and Missionaries in a Global Society (Aldershott: Ashgate Publishing Company, 2009), as well as articles, principally in the field of patent law.  The patent course was taught by Adjunct Prof. Tape, a patent litigator with Goodmans.

Windsor offered a core course in each of the copyright, patent and trade-marks fields.  It also offers students the opportunity to take courses in IP law at the University of Detroit Mercy and Wayne State University through its participation in the Intellectual Property Institute (IPLI). Copyright was taught by Prof Tawfik. The patent course was taught by Prof. Crowne, who also taught copyright issues in the course he gives on Internet law. Adjunct Prof. and trade-mark lawyer Aoun taught the trade-marks course.  Prof. Tawfik has published articles on topics in the copyright and IP international areas. Prof. Crowne has published articles in the fields of patent and copyright law and is the author of a forthcoming book on patent law. He was also the founder of the Fox moot.

Group 3 McGill, Montreal, Western

McGill and Montreal also offered students substantial opportunities to learn about IP law. The programs offered a survey course and advanced courses in at least two of the three core IP areas. These schools also have faculty that have published extensively in their fields.

McGill offered survey courses in intellectual property, in English taught by Prof. Lametti and in French taught by Prof. Moyse. McGill did not offer any core courses in patent law, although it offered a course in Patent Theory and Policy taught by Prof. Gold. It also did not offer any core course in copyright. It did, however, offer several topical courses in copyright, Analog Copyright and Copyright and the SCC Pentology and C-11: Access versus Excess? both taught by visiting fellow Sandy Pearlman and Prof. Lametti, and The Remonetization of Music and Other Promiscuously Transportable Media Objects also taught by Prof. Lametti. It also offered the course Intellectual Property and Its Discontents, taught by Prof. Attar. It did not offer any core course in trade-marks. McGill also has a Centre for Intellectual Property & Policy (CIPP), through which it organizes various research initiatives, symposia and lecture series.  Prof. Lametti is co-author of Canadian Intellectual Property Law: Cases and Materials (Toronto: Emond Montgomery Publications, 2013 with Profs Hagen (Calgary), Hutchison (UBC), Reynolds (Alberta), Scassa (Ottawa), and Wilkinson (Western). He is also the author of numerous articles with a particular focus on ethics and intellectual property, especially copyright.  Prof. Gold is the author of numerous publications with a focus on patents in the biotech, pharma, and medicine fields. Prof. Moyse also publishes in the area of copyright law and IP and competition law.

Montreal offered four courses in intellectual property. It offered a survey course in intellectual property and an advanced course in international intellectual property law, both taught by Prof. Gendreau. It also offered a course in law and the biological sciences which included topics related to biotechnology and drug development and an advanced course in biotechnology, both taught by Prof. Leroux. Prof. Gendreau has published extensively, both in Canada and abroad, and among her more recent publications are contributions to two books she has edited: An Emerging Intellectual Property Paradigm – Perspectives from Canada (Cheltenham: Edward Elgar, 2008) and Langues et droit d’auteur / Language and Copyright, (Montreal: Carswell & Brussels: Bruylant, 2009) (edited with A. Drassinower).

Western offered a survey course in IP law.  It did not offer core courses in copyright, trade-marks or patent law, but did offer advanced courses in intellectual property, comparative copyright, and international protection of IP. It also offered courses in entertainment law and media law. It has an area of concentration in IP and IT law. Prof. Wilkinson, who teaches the survey course in IP, is a contributing author to the Canadian Intellectual Property Law: Cases and Materials (Toronto: Emond Montgomery Publications, 2013), co-authored with Profs Hutchison (Alberta), Lametti (McGill), Scassa (Ottawa), Reynolds (UBC), and Hagen (Calgary).  She is also the author of a number of articles in the fields of copyright and privacy. Prof. Trosow teaches the comparative copyright and media law courses. He is the co-author (with Laura Murray) of  Canadian Copyright Law: A Citizen’s Guide and the author of a number of articles in the copyright area.

Group 4 Alberta, British Columbia, Calgary, Dalhousie, Victoria

These law schools each offer a survey course in IP. In addition, they offer at least 2 other courses which have some IP content. 

Alberta offers a survey course in IP. It was taught by Prof. Hutchison, a co-author of Canadian Intellectual Property Law: Cases and Materials (Toronto: Emond Montgomery Publications, 2013), (along with Profs. Wilkinson (Western), Lametti (McGill), Scassa (Ottawa), Reynolds (UBC), and Hagen (Calgary)). The survey course was also taught by adjunct Prof. McDonald from Dentons and Prof. Yoo from Bennett Jones. Alberta also offered  two advanced courses in IP, Musicians and the Law taught by Prof. Hutchison and Biotechnology policy, taught by Prof. Tim Caulfield. Prof. Caulfield is a Canada Research Chair in Health Law and Policy and a Professor in the Faculty of Law and the School of Public Health at the University of Alberta. He is also the author of numerous publications, many of which are in the field of biotechnology.

British Columbia offered a survey course in IP. It also offers various seminars in specific topics in IP, Video Game Law, Current Issues in Copyright, and IP and Human Rights. It also offered a course in Media and Entertainment Law. It did not offer any core course in copyright, trade-marks, or patents. The survey course was offered by Prof. Blom, the author of several articles in the field of private international law and IP. Prof. Reynolds taught the copyright seminar. He is one of the authors of Canadian Intellectual Property Law: Cases and Materials (Toronto: Emond Montgomery Publications, 2013 along with Profs. Wilkinson (Western), Lametti (McGill), Hutchison (Alberta), Scassa (Ottawa), and Hagen (Calgary)). Prof. Weiler taught the course on Media and Entertainment law. The video game seminar was taught by adjunct Prof. Festinger, a well-known practitioner and author of a text on Video Game Law published by LexisNexis.

Calgary offered a survey course in IP.  It was taught by Prof. Hagen, a co-author of the Canadian Intellectual Property Law: Cases and Materials (Toronto: Emond Montgomery Publications, 2013), (along with Profs. Wilkinson (Western), Lametti (McGill), Scassa (Ottawa), Reynolds (UBC), and Hutchison (Alberta)). He is also the author of various articles in the fields of copyright and patent law. Prof. Hagen also taught a course in Biotechnology and the Law. Calgary also was one of the only law schools to offer a course in IP Transactions, a course taught by adjunct Prof. Ramsay.

Dalhousie offered a basic survey course in IP. It was taught by Prof. John Penney. It did not offer any of the core copyright, patent or trade-marks courses.  It also offered three other related courses which did not focus on IP, but which had some IP content, namely Entertainment law taught by Prof. Aske, a course in Law and Technology, a seminar course led by Prof. Currie, and Internet and Media Law, taught by adjunct Prof. David Fraser, a leading privacy lawyer from McInnes Cooper. Dalhousie publishes the Canadian Journal of Law and Technology.  It also offers the  “The Roman Elster Innovation Award in Intellectual Property” which is given to a second- or third-year student who has an interest in intellectual property and who intends to leverage that interest in a creative way to stimulate new business opportunities.

Victoria offered a survey course in intellectual property taught by Prof. Howell and a patent course by adjunct Prof. Ferance from Smart & Biggar. Prof. Howell also coordinated a course offered by practicing lawyers from Smart & Biggar and elsewhere on Managing Intellectual Property. The course included strategies for protecting, managing and marketing IP.

Group 5 Manitoba, New Brunswick, Saskatchewan

These law schools essentially offer only a survey course in IP.

Manitoba offered an introductory course in trade-marks and patents and a second course that had an emphasis in copyright law.  The trade-marks and patent course was taught by Prof. Oshionebo, and the course in copyright law was taught by adjunct Prof. Jason, Corporate Counsel at Richardson International.

New Brunswick offered only a survey course in intellectual property.  It was taught by Prof. Siebrasse.  Prof. Siebrasse is a prolific author particularly in the field of patent law.

Saskatchewan offers a basic survey course in intellectual property law. It is taught by Prof. Roberts, an in-house legal advisor with the university.

Observations and questions

The survey shows a great variation in the quality of legal IP education in Canada.  In some parts of the country, law students in the group 5 law schools can only get the most basic level of IP education, a survey course that introduces them to the basic concepts and principles of IP law.  The Group 4 category offers a few more course offerings, but fall short of offering advanced courses dedicated to providing a thorough theoretical or practical training in IP law.

The laws schools in Group 2 and 3 offered a basic survey course in IP as well as either core courses in each of the main fields of IP or advanced courses with the principal emphasis in either theoretical training or in some select areas of IP.  The Group 1 law schools went much further.  They offered the full range of foundational courses and an array of advanced IP law courses.  They offered courses that emphasized both theory, advanced courses in specific areas of IP, and the application of theory in practice.  These programs, while varied in actual offerings, provide students the full range of options to obtain an IP legal education and provide a model for educating leaders in intellectual property law.[9]

There are many questions that can be asked with respect to the results of the survey.  For the purposes of this article, I want to focus on questions related to IP education and its relationship to supporting innovation. The goals of a law school education are obviously and necessarily diverse. However, if one assumes that one of the many objectives of a law school is to offer lawyers training that enables them to support innovation, including law reforms that promote and support innovation and the creative and innovative industries, then the following questions and observations are pertinent.

  • Is the quality of IP education across the country sufficient to meet the needs of our knowledge economy?  Is the IP legal education producing a sufficient number of properly qualified and trained lawyers and academics?  Are the law schools in Groups 4 and 5 meeting these requirements?
  • The law schools in Groups 4 and 5 are located outside of the major urban centers of Ontario and Quebec.  IP intensive industries span a range of industries including manufacturing, energy, agriculture, biotechnology, film, music, book publishing, software and video game development, and retail.[10]  These are industries that can be found in all parts of the country, to a greater or lesser extent. Are there good reasons why none of these law schools do not offer more opportunities for IP education?
  • The law schools in Group 1 are all located in Ontario. There are no comparable programs in Quebec or British Columbia, the next more populous regions in the country, regions with significant IP intensive industries such as bio-technology, manufacturing, music, film and video game development. Are there good reasons for the differences in approach to IP legal education in the law schools surveyed in Ontario, Quebec and BC?
  • Why does Alberta, a province with a thriving energy sector, not offer more courses in IP education including at least a core course in patent law?
  • How can the level of IP education in Canada be augmented, especially for the law schools in Groups 4 and 5?
  • If law schools do not have the resources to development programs as rich as those offered by the law schools in Group 1, which of the other models, if any should they aspire to emulate?  For example, the Group 2 law schools, Queen’s and Windsor, offer advanced courses in the core areas.  By comparison McGill, in Group 3, offers only a basic course in IP and several advanced courses that are principally theoretical in nature.  Montreal, also in Group 3, offers a basic survey course as well as advanced courses in a specific area of IP law, bio-technology.  Are either of these approaches preferable?  How does each model advance the goals of IP education and how does one evaluate the relative advantages of each program?
  • The only law schools to offer core courses in trade-marks law are those in Groups 1 and 2. No law school offered any advanced course in trade-marks including an advance course in trade-marks prosecution. Yet, trade-marks is one of the fields of IP that is most used in the IP intensive industries.[11]  Further, of all of the areas of IP in which law school professors have written, trade-marks appears to be given the least attention. Is there a good explanation for this? In light of the high reliance by industry on trade-marks, is this an area that deserves more attention?\
  • The law schools that had the most IP offerings tended to use adjunct faculty and visiting professors to supplement full time-faculty.  For example, the core patent and trade-mark courses at Ottawa were taught by adjunct professors. The international comparative IP courses at Ottawa and Osgoode were both taught by visiting professor Nabhan.  Montreal and Toronto both also offered courses taught by visiting professors. Can law schools offer more opportunities for their students by retaining the services of adjunct and visiting professors?
  • The only schools to offer core courses in patent law are also those in Group 1 and 2. There are very few advanced courses in patent law being taught across the country. Yet many Canadian businesses rely very extensively on patents, which is one of the fields in which the IP intensive industries dominate.[12] Except for the patent courses taught at Osgoode and Windsor, all of the core patent courses are taught by adjunct faculty. This may be explicable because of the very technical nature of the area.  However, the result is that, compared to other areas like copyright, there is relatively little academic research in patent law in law schools by full time IP faculty.  Exceptions are Osgoode’s Prof. Ikechi Mgbeoji, Prof. Siebrasse of New Brunswick, and Prof. Crowne of Windsor who are widely published in the field of patent law and Prof. Caulfield of Alberta who has published extensively in the field of patents and biotechnology. Prof. Gold of McGill has also published in the patent area in the biotech, pharma, and medicine fields. Prof. Vaver of Osgoode, who is a prolific writer in all fields of IP has also published in the patent law field.
  • Very few programs offer courses or opportunities that focus on teaching lawyers about commercializing IP or IP law strategies. The clinical programs offered in the Group 1 law schools provide the most offerings in this regard. Apart from those programs, Osgoode offered a course on commercializing IP, Victoria offered a course in Managing IP, and Calgary offered a course in IP transactions. Canadian businesses’ trading partners often have access to very experienced IP lawyers many of whom have specialized in providing their clients with strategies for obtaining, commercializing, exploiting, and litigating IP rights. Commercializing IP and developing strategies for IP is an area of increasing importance for businesses. In light of the importance of IP to our knowledge-based economies, should more programs offer these types of courses?  For law schools with limited budgets and resources, should these courses be given more or less priority than teaching the core areas (for the law schools not in Groups 1 or 2)?
  • Only Ottawa taught an advanced course in IP litigation. IP litigation is a growing area of key importance. Should students be offered advanced courses in IP litigation in other schools?
  • A few law schools taught courses in comparative or international law (Osgoode, Ottawa, Toronto, Montreal and Western).  The predominant focus of these courses has been in the area of copyright. However, our domestic industries depend very heavily on major markets in the United States where intimate knowledge of all areas of IP including US patent law is necessary.  Should Canadian law schools place more emphasis on foreign IP?
  • Much of the academic research in Canadian law schools has been heavily weighed in the field of copyright. Some of this may be explained by the fact that Canada has been undergoing copyright reform processes since at least 2005 when Bill C-60 was first tabled. The Supreme Court pentalogy also gave rise to considerable academic writings. It may also be explained because the creative industries have, so far, been the most impacted by the Internet and the ease with which copyright-protected content can be copied and reused.  However, given the importance of patents and trade-marks to businesses, isn’t there a need for greater legal research on patent and trade-mark issues?
  • An examination of the publications of the full-time academics in Canadian law schools, reveals an emphasis on theoretical aspects of IP law, much of it advocating for weaker IP laws or interpretations of the laws that would permit more access to creative or innovative products, with no or less remuneration or control by creators and innovators, or contending that weaker IP rights and remedies promote greater innovation than effective rights and remedies. While intellectual property laws must be balanced to foster innovation, creativity and access to knowledge and information, innovation is mainly founded on investments in fields where IP is protected.[13] Examples in varying degrees are publications by Profs. Geist and de Beer (Ottawa); Prof. Katz (Toronto); and Prof. Trosow (Western). Far less has been written on how effective rights and remedies can promote innovation in the industrial and creative sectors or how strategic use existing IP laws can be used by organizations to obtain, exploit and commercialize IP. A considerable portion of the research is funded through direct or indirect Government grants, research chairs, and through salaries paid to full time faculty. Does this research focus and orientation help foster or support innovation and the creation and dissemination of creative products or law reforms that support these goals?  Does it promote and cultivate a culture of innovation among law students, lawyers, the media and businesses?  Or does it have opposite effects?
  • While innovation is a critical necessity for the Canadian economy, there is not a single Canada Research Chair at a Canadian law school in a core area of IP or that focuses on leveraging IP to promote innovation. There are research chairs in somewhat related areas such as information law (Prof. Scassa, Ottawa), ethics, law and technology (Prof. Kerr, Ottawa), Internet and E-commerce law (Prof. Geist, Ottawa), communications and culture (Prof. Coombe, York), and health law and policy (Prof. Caulfield, Alberta).[14]  As can be seen, these chairs are heavily concentrated in Ottawa with no chairs in Osgoode or Toronto, the other Group 1 law schools, or in large provinces such as Quebec or British Columbia. Is there a need for Research Chairs in a core area of IP such as patents or that focuses on leveraging IP to promote innovation?
  • Some law schools operate or support clinics or centers to support various aspect of IP education.  The focus of these entities varies considerably.  For example, the IP Osgoode Innovation Clinic helps to foster experience in commercializing IP by working with innovative start-up companies to help them secure and protect their IP. Toronto’s Innovation Law Clinic plays a similar role. McGill’s Centre for Intellectual Property & Policy focuses instead on research and policy formulation.  From the perspective of promoting innovation, does each approach contribute equally to supporting innovation?  Can they even be compared given the divergent goals of each? Should other law schools establish these types of entities?

*Last updated December 8, 2013

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[1] Many studies have demonstrated the importance of intellectual property rights in supporting innovation and creativity and to national economies.  See, Intellectual Property and the U.S. Economy: Industries in Focus, Economics and Statistics Administration and the USPTO, March 2012 (“The granting and protection of intellectual property rights is vital to promoting innovation and creativity and is an essential element of our free-enterprise, market-based system.  Patents, trade-marks, and copyrights are the principal means used to establish ownership of inventions and creative ideas in their various forms, providing a legal foundation to generate tangible benefits from innovation for companies, workers, and consumers.  Without this framework, the creators of intellectual property would tend to lose the economic fruits of their own work, thereby undermining the incentives to undertake the investments necessary to develop the IP in the first place.  Moreover, without IP protection, the inventor who had invested time and money in developing the new product or service (sunk costs) would always be at a disadvantage to the new firm that could just copy and market the product without having to recoup any sunk costs or pay the higher salaries required by those with the creative talents and skills.  As a result, the benefits associated with American ingenuity would tend to more easily flow outside of the United States.”); Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union Industry-Level Analysis Report, European Patent Office and the EU Office for Harmonization in the Internal Markets, September 2013, (“It has never been so important to foster the “virtuous circle” leading from Research and Development (R&D) investment to jobs – via innovation, competitive advantage and economic success – as in today’s world of increasingly globalized markets and the knowledge economy.  This process depends on several different factors, but an efficient system of intellectual property rights (IPR) undoubtedly ranks among the most important, given IP’s capacity to encourage creativity and innovation, in all its various forms, throughout the economy.”); WIPO Studies on the Economic Contribution of the Copyright Industries (2013); Copyright Industries in the U.S. Economy: The 2013 Report (“The overall performance of the copyright industries in the countries surveyed indicates the existence of a sizeable sector, which in most countries was found to be beyond the level of expectations. Copyright has often been perceived predominantly as a legal category and has not been analyzed as a factor of social and economic importance. The overview suggests that copyright industries have a significant overall economic contribution.” “The results of the national surveys confirm the importance of copyright-based industries in overall economic performance. Creative industries are well connected with the rest of the economy and have an active presence in the economic cycle. In many countries, creative industries are playing a more important role than some traditional industries. Creative industries performance is enhanced when stimulated by governments (economic freedom), the legal system (well established property rights) and the businesses environment (competitiveness, innovation.”)

[2] See, Canadian International Council, Rights and Rents: Why Canada must harness its intellectual property resources.  It concluded that the past two decades have seen a dramatic rise in worldwide royalties and licensing fees, from $30 billion U.S. in 1990 to $160 billion in 2009. It also noted the importance and challenges of obtaining, protecting, licensing and otherwise commercializing IP and having the knowledge necessary to defend against IP infringement claims, especially those brought by non-practicing entities (NPEs), often referred to as trolls. It also sounded a warning that “Canada is fast becoming a nation of renters. Competitors bring in billions by selling or leasing their IP, while in Canada we run a stunning technology deficit — no less than $4.5 billion U.S. in 2009 — that is among the largest shortfalls in the industrial world, according to the World Bank.”

[3] Some law school publications list many IP related courses that are offered from time to time. The survey takes a snapshot of what is actually taught in the two year period reviewed and uses this as proxy for the course ranking factor. The results of the survey are as good as the information provided by each law school.

[4] Some programs offer one or more courses in related fields such as media, entertainment law, technology, e-commerce and internet law. Where information was available for these courses they were taken into consideration in the rankings.  However, the weight given depended on the extent to which the program included an IP component and the nature of the IP component.

[5] Some law school have faculty associated with the law school that did not teach any courses in the two year period reviewed.  Only faculty that offered courses were included in the survey.

[6] The survey was completed with the help of Jagtaran Singh, Articling Student at McCarthy Tétrault, Bart Nowak and Zachary Masoud, Summer Students at McCarthy Tétrault.  The survey was not conducted by or on behalf of McCarthy Tétrault or Osgoode Hall Law School.

[7] Law schools are listed alphabetically in each band.

[8] Some law school publications list many IP related courses that are offered from time to time. The survey takes a snapshot of what is actually taught in the two year period reviewed and uses this as proxy for the course ranking factor.

[9] See, Robert W. Gomulkiewicz, Intellectual Property, Innovation and the Future: Toward a Better, Model for Educating Leaders in Intellectual Property Law, 64 S.M.U. L. Rev. 1161 2011 describing the different phases of IP legal education in the US.

[10] See the reports referred to in endnote 1.

[11] ibid

[12] ibid

[13] ibid

[14] Prof. Bergin, Queen’s, holds a chair in economic theory which focuses on the incentives and challenges of patent law.

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