Increasingly, the Canadian economy is dependent on Canadians generating new ideas and knowledge, and retaining their value in this country. Intellectual property rights secure our creative and innovative efforts so that we can extract commercial value from them. In this way, intellectual property (IP) is increasingly becoming the most important global currency.
Canadian law and policy need to ensure that Canadian creators and innovators have all the necessary tools to successfully leverage their IP to competitive advantage. The federal government’s national IP strategy (“IP Strategy”), launched on World IP Day, recognizes the important role that IP plays in Canada’s economic prosperity.
It contains important measures to help Canadian innovators and entrepreneurs navigate an increasingly complex domestic and global IP system. Some of these proposals have already garnered public attention, such as the initiatives to combat trolling and other misuse of patents, copyright and trademarks.
However, there are other initiatives that will have a significant, pervasive and long-lasting impact even though they may seem more modest at first blush. These relate to the measures on IP education and awareness and the initiatives in favour of groups systemically underrepresented within the IP ecosystem, such as women and Indigenous peoples.
The IP Strategy recognizes that if Canadian innovators possess only a rudimentary understanding of IP they will not succeed against global competitors who possess greater IP strategic skills and enjoy better access to a network of experienced expert advisors.
To correct this IP knowledge deficit, measures will be put in place with three interconnected objectives: to raise the levels of IP literacy of Canadian creators and innovators, to raise the levels of IP strategic knowledge throughout the entire innovation ecosystem and to facilitate access to the IP system by underserved and underrepresented groups. I’d like to emphasize this access element, because its potential impact is significant. Presumably, the funding could be earmarked to enhance existing IP law clinics, such as the ones at Windsor Law and Osgoode Hall Law School, but would also encourage other law schools to establish their own.
Canadian startups are a group underserved in their ability to access IP legal services. To provide cost-effective access to IP legal expertise, the IP Strategy sets aside funding for IP law clinics at Canadian law schools. Presumably, the funding could be earmarked to enhance existing IP law clinics, such as the ones at Windsor Law and Osgoode Hall Law School, but would also encourage other law schools to establish their own.
IP law clinics provide multiple benefits for relatively low cost. They enhance the IP literacy of start-ups by offering a broad range of legal services including informational workshops. They provide much-needed free IP legal advice and assistance with IP searches and filings. Finally, they offer invaluable experiential skills-training for the next generation of IP lawyers.
If every law school in Canada established some form of IP clinic that operated in a collaborative network across the country, the beneficial impact on supporting Canadian innovators and providing sophisticated training to law students would be immeasurable.
Access to legal services through IP clinics is not the only form of access recognized in the IP Strategy. Some important first steps are being undertaken to understand why there is systemic underrepresentation of certain groups within the IP ecosystem.
For example, the evidence demonstrates that women are less likely to hold patents or other forms of IP and that only one in seven Canadian female inventors is filing international patents. This gender gap also exists among expert intermediaries within the IP system. There are significantly fewer female patent agents and other IP professionals including IP lawyers. This remains the case despite numerous attempts over many decades to foster greater participation.
We clearly need a different approach. The IP Strategy proposes a survey to identify why women and Indigenous entrepreneurs are less likely to use IP. It is important that this consultative process genuinely listens to these diverse voices including giving meaningful recognition to the fact that entrepreneurial Indigenous women or women of colour are likely to face greater limitations or restrictions.
Importantly, the IP Strategy also earmarks funding for larger Indigenous IP issues, including ensuring Indigenous peoples’ participation in international discussions surrounding traditional knowledge and cultural expressions. These are significant first steps in redressing some of the structural and systemic obstacles embedded within Canada’s IP laws and practices.
A word of caution, however: The consultation process must result in more than merely providing these groups with another seat at the table. We have been doing this for years without significant improvement because we still expect them to conform to an IP system that in subtle and, often, not-so-subtle ways, denies them full participation.
The entire table must be set differently – in a way that genuinely recognizes and respects the diverse ways that different people create and innovate. Aside from the fact that this is the right thing to do, other benefits will accrue.
We are a country with a relatively small population and a small market. Success in the global innovation economy will require a concerted and collective effort that encourages, supports, harnesses and celebrates the rich diversity of all our creative and innovative abilities – this is Canada’s true competitive advantage.
I am optimistic that, understood in this light, this inaugural IP Strategy will bring manifold and lasting economic, social and cultural returns to this country.