September 29, 2021
Carys Craig and Martin Kratz are esteemed experts in IP law sporting numerous publications between them. Thankfully, they are also on staff at OsgoodePD and function as Co-Directors of the Part-time Professional LLM in Intellectual Property Law.
We sat down together to discuss their thoughts, experiences, and perceptions of both the LLM and the greater IP law field.
Carys Craig and Martin Kratz
Academic Directors of Osgoode’s LLM in Intellectual Property Law
How would you advise those who are thinking about undertaking the LLM in Intellectual Property Law? Who does the degree appeal to and what kinds of interests or questions should they have?
They should question whether they want to be challenged to broaden and deepen their knowledge of intellectual property, a growing area of law and one that has increased importance in the future. The LLM in Intellectual Property Law is the elite advanced education program in Canada. If you want the strongest program, this is it.
There are generally 3 categories of students. The first includes practicing lawyers who generally have all the skills necessary to be successful, whose strong background experience in IP will have prepared them to extract a great deal from the program.
The second category are recent law students seeking to qualify as lawyers who can still benefit enormously, and who tend to engage effectively with the concepts and principles; for those who are from outside of Canada their foreign backgrounds add diversity and are welcome additions.
The third category are non-lawyers who are completely welcome in our program. They typically have technology, university, and intellectual property rich roles. Librarians, for example, have done extremely well, for they work with copyright daily.
Each of these students has found that the IP program has been enriching for them and has made them deeply successful in their workplace.
One of the things we love about IP law is the sweep and the scope of the field, including arts and entertainment, digital archiving and librarianship, and technology and software development.
Intellectual property can pull in people from all areas of practice and all kinds of professions and bring them together to explore this increasingly valuable area.
It’s also very conceptually rich. If you come with an interest in the nature of law, culture, and the impact of technology on society, you will find some enriching ideas and topics to develop your interests and experiences.
Can you talk about the dynamic between the lawyers and non-legal professionals? How do their unique experiences contribute to the diversity?
The non-lawyers who are working in industry typically enrich the students who are recently graduated lawyers or qualifying by applying their practical experience and industry knowledge. There are nuances that can’t be perceived from reading about a subject that people working in a field know.
Similarly, the people without law degrees benefit from exposure to legal principles and an understanding of how to read a case and determine what a decision really means. They find that rich deep dive into law very invigorating.
I think that’s absolutely right. The non-lawyers learn in real-time through classroom discussion and engagement with the materials. They learn how to formulate legal arguments and think about larger policy issues around law making, negotiation, and litigation. What’s interesting about this field is that its rife with debates between different parties with different interests who are trying to understand the subject matter and the scope of the rights to which people are entitled.
Another dynamic that emerges is that we often have people whose allegiances are on difference sides of this divide engaging in critical debates over these fault lines. It’s wonderful to see that play out and nurture that dialogue. An example might be librarians engaging with people who work with publishers.
Currently, we have a student from the film industry who has spent many years working with Disney engaging with people advocating for the public domain and limits on copyright control. These are very lively and instructive debates around critical issues in the law!
Another way of looking at this is that it’s multidimensional. A lawyer comes with the assumption that IP is inherently good and that “the more, the better.” We take this critical lens to IP, deconstruct it, and find the roots, balance points, and fracture points. It illuminates and enriches the experiences for the students.
What about your experience in the classroom? How do you challenge your students and how would you say they challenge you?
As Martin suggested, the program doesn’t begin by taking intellectual property for granted. We begin by thinking critically about the legal concepts and constructs that are engaged in the field. For example, in the Introduction to Intellectual Property seminar… my sense is that the students show up thinking they’re going to learn that “these are the rules, this is the law,” and go from there.
Instead, we like to give them an academically rich foundation for what’s to follow. We have them reading John Locke and resources about Hegel and Kant. Debating philosophical foundations ensures that it’s an academic experience and not purely a professional or practical one. Then, we build on those foundations.
As the program develops, you’re able to zoom in on areas of intellectual property and aspects of intellectual property policy making and practice, so that by the end of the program, you have a very deep engagement with the whole field that ranges from the foundational and philosophical to the practical and policy-oriented.
What is a hot topic in the field of Intellectual Property Law at the moment? What has personally sparked your professional or research-oriented interests?
The international aspect of intellectual property isn’t a passing phase, but a fundamental element of how IP continues to develop. It’s a core part of the field that constantly influences how IP evolves – as does technological change.
One exciting, interesting, and challenging area is artificial intelligence. We now have a Federal Court in Australia finding that artificial intelligence can be an inventor on a patent application, for example. The name of the inventor is the name of the software. It’s very controversial.
These patent applications have previously been rejected in Europe and the United States but allowed to proceed now in Australia and South Africa. These developments raise questions around why, should we, and what interests are we trying to protect here?
A lot of my own work recently has been in the area of AI and copyright and whether AI should be recognized as an author or owner. It’s a topic under consultation in Canada, the UK, and Europe, so it’s a very live issue. What we tell the students is that you ought not to begin by looking at AI, but look at the basic building blocks – why do we protect what we do, who are we trying to protect, and does it make sense to reward AI for the works that it generates?
Should we protect it? Who would we protect? The maker of the software, the person who populates the engine with the data, the person who formulates the original question? Lots of really interesting questions.
What we can see is that the live issues revolve around advancements in technology that challenge the core assumptions that have informed the law and its developments up until now. It forces us to think about the limits and the exceptions of intellectual property – the way that IP can hinder innovation and obstruct creativity, as well as encourage it. It’s just one example of a recent debate.
This is a fast-moving area, and the IP program continually adapts to respond. As well as looking at the history and development of Intellectual Property, LLM students are engaging in the most current debates in Canada and internationally.
How do you see the LLM in Intellectual Property Law evolving over the next few years?
As Co-Directors, we’ve just gone through an exercise of brainstorming for the next 5 years. We’ve looked at adding specialized courses to deepen the educational possibilities available and to reach into specialized areas of practice.
One of the areas we’re looking at is a course on industrial design law. This would be an international course comparing European, US, and Canadian approaches.
In terms of the trajectory of the program, IP used to be a relatively siloed, somewhat arcane part of commercial law practice. Those days are long gone.
IP is of increasing importance across almost every area of legal practice and life. Everything from what you read or watch, to where you get your news, to what medications are available at the pharmacy – all of these things are affected by IP law. It will only become more important and more vital as an area of practice and expertise.
Do you have a favourite memory or experience you can share from your time at OsgoodePD?
No single favourite. I really enjoy engaging with students who are really switched on. The lights are on upstairs, they’re thinking and asking really good questions, and they’re bringing the debate to the edge. We’re exploring innovative topics together. I find that invigorating and exciting.
I love going downtown to the OsgoodePD offices and being in the heart of the city and meeting with students there… circulating and socializing in the coffee room and over lunch, talking about what we’re doing in class and what they’re doing in life.
But perhaps my favourite teaching experience was this past year when we were on Zoom running an intensive course. I had worried that people wouldn’t be interested or able to engage online, or really connect with one another. Instead, I saw just how good the program and class are at bringing people together with shared interests.
Even on a particularly busy day with 6 hours of classes, I’d take a break and come back and find the students chatting together, talking about the course content, excited to be having these conversations… from across Canada, as far away as India, some even joining in the middle of the night to discuss IP.
I found these classes so enlivening, engaging, and reinvigorating during a difficult and isolated period.
For all the fears that the online world would not work, the program we offered was an exceptional success.
Yes, and we’re excited about what’s to come!
Want to know more about the Professional LLM in Intellectual Property Law? Sign up for an Information Session!