In September of last year, the Law Society of Upper Canada released a report titled: Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper (the “ABS Report”) and invited responses by December 31, 2014. The ABS Report raises the possibility of expanding current law firm business structures with a view to, among other things, improving consumer access to legal services. The increasing inability of most consumers to access affordable and timely legal services continues to plague the legal profession with well-documented failures in such fundamental areas as family law and criminal law. Where then, does this leave those who need specific specialized services, especially legal advice and transactional services that pertain to the core ‘commodities’ of the knowledge economy namely, intellectual property rights (IP)? While, admittedly, access to affordable and timely IP legal services is not of the same order as access to representation in criminal matters, IP knowledge mobilization presents another fundamental public policy imperative for which continued disregard would be to our collective economic peril.
Canada has some of the most sophisticated IP laws in the world and it is signatory to multiple international trade treaties that establish the ground rules for global trade in IP. This country also invests considerable sums of money on research and development (R&D) on university and college campuses as well as in a variety of research centres and institutes and yet, by every measure of global competitiveness in innovation and economic growth, Canada does not fare well. We do not seem to be nearly as well-equipped as a number of our international competitors in our ability to commercialize this R&D.
Could Canada’s inability to compete effectively in the global marketplace lie, at least partially, in the fact that our innovators are not well-equipped to understand and manage their IP portfolios? Could part of the problem relate to the possibility that we may not be getting the right legal information and advice to the right people at the right time? The truth is that, in Canada, IP legal expertise is hard to come by, is largely based in a major centres and is, quite frankly, unaffordable, especially for start-ups for whom early stage legal intervention could mean the difference between success and failure. It seems to us that if, as a society, we continue to build our collective prosperity on the backs of science, technology, engineering and math (STEM) start-ups and IP intensive small and medium-sized enterprises (SMEs), we ought to ensure that we are providing them with all of the resources and tools they need in order to succeed both domestically and internationally.
The overarching problem of access to legal services identified in the ABS Report offers the Law Society of Upper Canada the opportunity to exercise leadership in facilitating greater early stage IP legal intervention for start-ups. In our response to the ABS Report, we proposed the following solutions:
1) The Law Society should broaden its existing rules for law school clinics to more clearly permit clinical expansion into non-traditional practice areas and to facilitate the establishment of IP law clinics at law schools. Existing law school legal aid clinics already offer an alternative to the tradition law firm structure even though they were not discussed in the ABS Report. It would not take much to expand the existing Law Society rules to encompass additional practice areas, especially in IP law.
2) As another alternate business structure, in defined circumstances and under appropriate supervisory models, the Law Society should permit third-party entities (ex: CIGI) to establish and fund IP law clinics for the start-up community to be based in community accelerators and other innovation hubs and to shield them from direct liability
3) The Law Society should facilitate the ability of lawyers (and law professors) to provide greater pro bono IP services to the start-up community.
More would need to be done, of course, but what we have proposed would be useful first steps and ones that could be fairly readily accomplished.
Former Research Fellow Jim Hinton is now practicing law at Bereskin & Parr in Waterloo, Canada.