Judges, Rabbi Talk Copyright Law

Montreal Gazette

The settlement this week of a $250-million lawsuit over a decade-long fight for the use of the trademark name Target for retail stores in Canada is just the tip of the iceberg in the fast moving and lucrative world of intellectual property (IP) law.

As close to 100 Montreal lawyers gathered at Chabad of the Town for a law symposium featuring two sitting judges, a lawyer and a rabbi pronouncing on intellectual property law learned this past Tuesday, the whole field of law that deals with the protection of trademarks, patents, and copyrights is in the throes of change – a change that is providing bountiful and unbounded opportunities and challenges for lawyers and judges working in the field.

On the one hand, the hurtling degree of technological change is outpacing the adoption of new laws, giving judges an important and expanding role in interpreting and applying existing intellectual property laws.

Consider, for example, that the Supreme Court of Canada is currently pondering how to rule on no less than five separate appeals involving copyright law.

The appeals, heard together last December, deal with such issues as tariffs for music use on the Internet, the scope of photocopying copyrighted educational materials in schools, if telecom companies should pay royalties for single downloads of music by millions of customers, and whether or not performers and makers of sound recordings have rights separate from those attached to the actual completed recorded work itself.

While judges now have a beefed-up role in ruling on issues that never came up before, lawyers are stretching the boundaries with new interpretations of exactly what is protected through the intellectual property registration process, fuelling a boom in litigation over the application of established IP reference terms such as use, validity and exclusiveness.

“From a practical standpoint, you can spend five years trying to get a patent, you get your registration and you own it, only to find out later on when you enforce it in court (that) a court can still invalidate your patent even though you have it, so it is a property that is not definitive in any sense of the word,” said Montreal intellectual property lawyer Frederick Pinto, one of the featured speakers at the latest continuing legal education series offered by the Chabad’s Canadian Institute of Contemporary Jewish Law & Ethics.

“That is how it is with intellectual property (law),” Pinto said. “We are in a constant grey area and we are constantly struggling to attribute meanings to terms, realizing that meanings for the purpose of intellectual property are very different from their meaning in an ordinary sense and with their meaning in other areas of the law as well.

“It is an area of law that applies to constantly changing industries structured around intellectual property – high-tech, the pharmaceutical industry, the medical field, or even the cultural industries, the Internet – and the ground is always changing.”

Federal Court Justice Roger T. Hughes, another headliner at the Chabad event along with Supreme Court Justice Marshall Rothstein and Montreal rabbi Dayan Berel Bell, and a longtime IP litigator before his appointment to the bench, provided further insight into how elastic intellectual property terms have pushed an unprecedented growth of litigation cases from large companies like pharmaceuticals seeking strategic market advantage or protection.

New catchwords like the “promise” of a patent, and “sound prediction” for use are increasingly under scrutiny by judges as they face up to a tide of litigation resulting from races to the patent office and challenges over a patent’s “obviousness,” another IP term to measure the intangible. Hughes also remarked on the proliferation of what are called related rights in areas such as copyright – whether or not the makers of a studio recording should get recognition and compensation is one example.

Like the rest of intellectual property law, where intangibility is the defining feature, Hughes said, copyright “is limited only by your imagination and your power to extract money.”

“It is like the golden goose that keeps on giving.”

New management blood has started coursing through the veins at several Montreal law firms. At Spiegel Sohmer Inc., the taxation law, business law and litigation boutique that services many of Montreal’s entrepreneurial and privately held companies along with several insurers, tax lawyer Robert Raich has passed the managing partner reins at the 40-lawyer firm to Alexandre Dufresne after more than 26 years in order to practise law full-time. Fasken Martineau LLP is also changing the guard with labour and administrative lawyer Éric Bédard taking office, effective Feb. 1, as managing partner for the Quebec region and the national law firm’s 170 lawyers in Montreal and 39 in Quebec City following a partner election. Bédard succeeds Fasken tax lawyer Claude Auger, who had held the position for the past nine years and will also return the practice of law full-time.