Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E 2 0 1 6 33 says it's not to suggest that oil companies will circumvent IP laws via 3D printing, but "if we can do that and still be in compliance with the IP rights of others, we would be looking at that. If the new technologies allow for us to produce or design products that we would otherwise pay for because the company we're paying has some pro- prietary advantage, I can't say that we wouldn't take advantage of that from a supplier point of view, provided that our initiative to do so will not violate the IP rights of others." Tesh Dagne, an assistant professor of law at Thompson Rivers University in British Columbia, studies the rela- tionship between intellectual property and 3D printing and says: "What 3D printing brings to IP generally is uncer- tainty." Companies typically use digital locks to protect their computer-aided designs from which 3D prints can be made. Circumventing those locks is a copyright infringement, but exactly how patent laws are engaged when people use CADs to print their own products is unclear. According to Dagne, busi- ness lobbyists want to make it illegal to reconstruct products using 3D printers, but consumer groups would argue 3D printing should be permitted for the purpose of repairing products, which is already permitted by the jurisprudence. "Now, because you do it at home, it will become difficult to know the dis- tinction between the two," says Dagne, who adds 3D printers will soon become household items. But exactly how pat- ent laws will address 3D printing will have broader economic impact. Cher- nys says the recent downturn in the oil and gas sector, for example, has taught companies they have to get creative with their technologies. "If oil prices are $30 a barrel but the technologies we currently have in place produce oil at $50 a barrel, then we lose money for every barrel of oil we produce, which is exactly the opposite of what any busi- ness wants to do," she says, adding that creates an incentive to be innovative. But, Chernys continues: "One has to ask, if we innovate, do we have IP incen- tive there? What can we do to protect that innovation to give us that com- petitive advantage? Because, if after this downturn there are 20 oil companies and only 10 will survive, will the deter- minant of who survives be the strength of their technology, and as an add-on to that, their intellectual property?" IP and innovation Whether IP laws exist to foster innova- tion or to stifle it is an age-old contro- versy, and the answer depends on whose shoes you're walking in. But the ques- tion has become more prevalent now as governments and laws struggle to keep up with dramatic changes in the type of technology they're designed to govern. With easy digital access to almost every- thing, creators worry more than ever about the security of their brainchild. In Canada, the link between IP and innovation also come up when people question why this country lags quite dramatically in innovation. The 2015- 2016 World Economic Forum's Global Competitiveness Report said Canada's "insufficient capacity to innovate" is the most problematic factor for doing business here. Last year, Canada earned a dismal "C" grade on the Conference Board of Canada's grading scheme for innovation after it ranked ninth out of 16 peer countries. "We need to really think about the role intellectual property plays in that," says Victoria Lennox, co-founder and CEO of Startup Canada. "As the govern- ment of Canada implements an innova- tion strategy — they are about to pour $800 million into innovation in Canada — I think it's really important that they consider the role of intellectual prop- erty laws and the challenges of the 21st century as it relates to that innovation strategy." When it comes to the link between IP laws and innovation, the jury is still out on the degree to which the former drives the latter. According to Michael Geist, Canada Research Chair in Inter- net and E-Commerce Law, the strength of IP laws has minimal impact on inno- vation. "When you look through the economic literature, there just isn't a whole lot of evidence that suggests that there are these strong linkages," says Geist, adding that in some areas, flex- ibility, not restrictiveness, of intellectual property rights allows more innovation. "Some of the companies that we look to as being innovative in the Internet space — companies like Google and Facebook, for example — their growth has been largely based on, first, flex- ibilities in copyright law." Google, for example, isn't looking to create more restrictive copyright rules; it's a supporter of fair use because it rec- ognizes flexibilities in the law provide the impetus for its kind of innovation, adds Geist. "We don't have the same kind of flexibility in our law as com- pared to the United States. So, if I were an Internet company like Google, I'd look at the Canadian rules and the U.S. rules and see that the Canadian rules are more restrictive compared to the U.S. There are things I may be able to do and bring to market as digital products in the U.S. that I can't do in Canada." Surely, there are things we can do in the law to better encourage innovation, but it's not about "ratcheting up protec- tions," adds Geist. "In some instances, it's recognizing that it's actually flexibili- ties that help spur innovation." Awad agrees stronger IP alone doesn't drive innovation. He says you need an "IP strategy" that takes into account the different stakeholders in the system — everyone from individual innovators to nimble patent offices and savvy lawyers who can help choose the right type of IP to protect specific innovations. "You need also to develop some cost-effective models to help the universities commercialize the IP com- ing from their labs," says Awad, add- ing the missing link between university innovations and the marketplace is a strategy to commercialize inventions. Canadians are good at doing the kind of cutting-edge research no one else in the world is doing, but lack the know-how to reach the market and thrive in it. From investors' points of view, a

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