The Power of Perspectives

The Canadian Bar Association
Intellectual property

Can a machine produce copyright material?

By Yves Faguy May 3, 2018 3 May 2018

Can a machine produce copyright material?

 

As businesses across all industries set their sights on a future built on artificial intelligence, there is a growing sense that policy makers are going to have to get serious about thinking through the impact of AI on intellectual property.  James Hinton and Peter Cowan wrote a piece about this last year, rightfully pointing out that most entrepreneurs in tech innovation have a limited understanding at best about IP in general.  Most of the concerns tend to focus on patents, particularly as Canada has set out to position itself as a hub of AI initiatives.

At the CCCA National Conference in Toronto this week Stephen Spracklin, a City of Mississauga lawyer focused on IT and IP issues raised another set of concerns around copyright, particularly as it applies to the more advanced artificial general intelligence, which is capable of learning in its own right without any human intervention (as opposed to artificial narrow intelligence – or ANI –, which is algorithmic learning that analyzes and synthesizes data, and with the input of human resources is able to arrive at a conclusion):

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Corporate counsel

SCC dismisses leave in litigation privilege case dealing with internal investigation

By Yves Faguy May 3, 2018 3 May 2018

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor to provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

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CCCA Conference

Trends in business: #M&AToo?

By Kim Covert May 2, 2018 2 May 2018

Trends in business: #M&AToo?

 

A panel discussion on global trends in mergers and acquisitions on Tuesday landed on an increasingly familiar topic in a fairly unfamiliar place.

Panellists for the plenary session were Jeremy Fraiberg, National Co-Chair and Parter, M&A Practice, Osler, Andrea Wood, Senior Vice-President, Legal Services, Telus, and Anthony Pagano, Chief Counsel, Mergers and Acquisitions, Royal Bank of Canada.

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Doing business in the U.S.: Build your relationships

By Yves Faguy May 1, 2018 1 May 2018

Doing business in the U.S.: Build your relationships

“Relationships do matter. But remember that presidents and Congresses come and go.”

That was the message from James Blanchard, former U.S. ambassador to Canada, at the morning plenary at the CCCA National Conference, where panelists shared their thoughts on the evolving U.S. -Canada relationship.

The discussion took place only hours after the Trump administration announced its decision to postpone imposing steel and aluminum tariffs on Canada and Mexico, as the three trade partners are in the thick of renegotiating a new NAFTA deal.  Blanchard, now a partner at DLA Piper ventured a guess that President Donald Trump “will not issue a termination” of the current trade deal. “His advisors will advise against it.”

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CCCA Conference

People skills in an era of advancing technology

By Yves Faguy May 1, 2018 1 May 2018

People skills in an era of advancing technology

 

With automation promising to shake up the legal industry, lawyers are understandably fearful that machines will replace them. But even as technology becomes more widely deployed, law firms will still have to focus their efforts on hiring the right people, says Mark A. Cohen, a legal strategist and a keynote speaker at the 2018 CCCA National Conference in Toronto.

In the battle for talent, there will be a premium on a mix of contemporary skills. These include an understanding of technology’s role in legal delivery, project management, marketing and data analytics. 

 

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CCCA Conference

The risk of negotiating new cyber norms in international law

By Yves Faguy May 1, 2018 1 May 2018

Earlier this month, 34 high-tech firms signed the Cybersecurity Tech Accord, first proposed by Microsoft’s president Brad Smith.

"We called on the world to borrow a page from history in the form of a Digital Geneva Convention, a long-term goal of updating international law to protect people in times of peace from malicious cyberattacks," Smith wrote in a blog post . “Just as the Fourth Geneva Convention has long protected civilians in times of war, we now need a Digital Geneva Convention that will commit governments to protecting civilians from nation-state attacks in times of peace.”

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CCCA Conference

Vacuums and crickets: The ultimate in-house counsel

By Kim Covert April 30, 2018 30 April 2018

Vacuums and crickets: The ultimate in-house counsel

 

How is the ultimate in-house counsel like a Dyson vacuum cleaner?

In both cases, they’re not designed for artistic value, function trumps form. They’re built to do a certain job to a certain standard. And perhaps in both cases, those standards keep changing as technology evolves.

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CCCA Conference

I Am Jane Doe: Ethics and morality for the in-house counsel

By Kim Covert April 30, 2018 30 April 2018

I Am Jane Doe: Ethics and morality for the in-house counsel

 

It’s a lawyer’s job to advocate for clients. But what can or should a lawyer do when the clients they’re representing cross moral or ethical – if not strictly legal – lines? It’s a question we’re used to hearing criminal defence counsel answer; we’re less used to the idea of in-house counsel taking it on.

But that was the topic of discussion Sunday night at the opening of this year’s CCCA conference in Toronto. The conference, titled Beyond Borders, certainly pushed the boundaries of what’s expected at a CCCA conference by screening the documentary I Am Jane Doe, which follows the successive cases brought against Backpage.com by young sex trafficking victims whose bodies had been sold on the company’s web pages.

 

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The Pitch 2018

Getting to know The Pitch finalists: PatentBot

By Yves Faguy April 30, 2018 30 April 2018

 

As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Valentin Pivovarov​ (featured in the above video), managing director of PatentBot, a legal chatbot that helps users register their trademarks.

CBA National: What are the origins of PatentBot?

Valentin Pivovarov: The idea came from our BDO Artem Afian and CEO Nataly Vladimirova. We saw that the procedure of trademark registration – which is quite similar in most countries – could be disrupted and this market. So our team created chatbots because it’s simple to create them, and easier than to build a full website. We started to build our bots in late May. Once we built a better version of PatentBot, we posted about it on Facebook and we got 800 customers in one day.  It was really impressive for me, because we had no marketing, and no advertising.

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The practice

Firm foundations: A look at best hiring practices

By Ann Macaulay April 27, 2018 27 April 2018

Firm foundations: A look at best hiring practices

 

Building a strong law firm is an ongoing challenge—not only when it comes to hiring the best people but, more importantly, keeping them. Fortunately, hiring experts say there’s plenty that can be done to cultivate a winning team.

The legal market “is showing confidence by hiring new lawyers,” says Christopher Sweeney, CEO of ZSA in Toronto, though he adds that firms are still being cautious in their hiring of both lawyers and support staff. Hiring activity this year should remain steady, according to The Robert Half 2018 Salary Guide for Legal Professionals, as “attrition rates at law firms and corporate legal departments continue to rise.”

There is a strong demand for professionals with backgrounds in high-growth specialty areas and more than three years of experience. There is also rising demand for tech-savvy support staff, as law firms hire paralegals to help meet the need to provide quality services at lower billing rates.

Behavioural interviewing is a growing trend that is useful for law firms that want to ensure they’re attracting and hiring the right people, says Warren Smith, Managing Partner at The Counsel Network in Vancouver.

Building a strong law firm is an ongoing challenge—not only when it comes to hiring the best people but, more importantly, keeping them. Fortunately, hiring experts say there’s plenty that can be done to cultivate a winning team.

The legal market “is showing confidence by hiring new lawyers,” says Christopher Sweeney, CEO of ZSA in Toronto, though he adds that firms are still being cautious in their hiring of both lawyers and support staff. Hiring activity this year should remain steady, according to The Robert Half 2018 Salary Guide for Legal Professionals, as “attrition rates at law firms and corporate legal departments continue to rise.”

There is a strong demand for professionals with backgrounds in high-growth specialty areas and more than three years of experience. There is also rising demand for tech-savvy support staff, as law firms hire paralegals to help meet the need to provide quality services at lower billing rates.

Behavioural interviewing is a growing trend that is useful for law firms that want to ensure they’re attracting and hiring the right people, says Warren Smith, Managing Partner at The Counsel Network in Vancouver.

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Mental health: A factor in sentencing?

By Justin Ling April 27, 2018 27 April 2018

Mental health: A factor in sentencing?

A new bill, if passed, will require the courts to take into account offender’s mental health status before sentencing.

Bill C-375 comes before the House of Commons justice committee today for the first time, as MPs seem set to push ahead on the bill.

At present, pre-sentencing reports only include the offender's "age, maturity, character, behaviour, attitude and willingness to make amends," as required in the Criminal Code, as well as a report on the offender's previous criminal and rehabilitative history.

What’s the issue? According to the federal prisons watchdog, more than one-in-ten federal inmates reported mental health issues — although there is some data to indicate that number may be significantly higher.

The watchdog has for years recommended new measures to divert offenders with mental health issues away from prisons, and into treatment, given that Correctional Services Canada does not have the capacity or speciality to handle the complex mental health needs of these inmates.

What does C-375 do? The bill is relatively straightforward. It requires that the report include details of “any mental disorder from which the offender suffers as well as any mental health care programs available to them.”

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Access to justice

How an adversarial system can adapt to the rise of self-represented litigants

By Yves Faguy April 26, 2018 26 April 2018

How an adversarial system can adapt to the rise of self-represented litigants

In a recent Canadian Bar Review article, Jennifer A. Leitch notes an uptick in members of the traditional middle class joining the ranks of self-represented litigants. With time these litigants -- “not otherwise marginalized within society” -- are likely to take a more critical view of the legal profession’s value. Leitch also discusses how our adversarial system of justice is being forced to evolve as a result of the extraordinary growth of self-representation:

This approach to truth-seeking in an adversarial system is problematic due to the fact that the truth-finding process is often idealized but not always functional. The reality is that the adversarial process tends to ignore inequalities within the system and between the parties.

These inequalities may stem from a lack of resources (e.g., monetary) or a discrepancy in skills or experience such that one party is disadvantaged in terms of being able to investigate and present their best case and test the opposing party’s case. The result is that inequalities between the parties leave the truth-finding mechanism open to manipulation and this serves to undermine the objectives of the system as a whole. One example in this regard is cross- examination. Notwithstanding that cross-examination is often touted as an essential component of the truth-finding process in an adversarial system, the benefits of cross-examinations may also be subverted through rhetorical manipulation and imbalances in lawyers’ resources and/or skills. This further helps to discredit “opposing testimony known to be truthful.” At best, cross-examinations may discover and reveal untruths, but may be less effective at discerning the truth. At worst, the process of cross-examination reflects an affront to the dignity of those being cross-examined. The consequence of this manifestation of adversarialism is that the legal system becomes “more and more removed from the substantive justice concerns of ordinary people.”

Interestingly, Leitch suggests it might be time to accept SRLs as a normal feature of our modern civil justice system, which would require rethinking the code of conduct rules around the legal profession’s engagement with SRLs, possibly borrowing from inquisitorial norms, and redefining the responsibilities of lawyers toward them.

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