Our Oxford Experience
Osgoode Hall Law School was one of a select 28 international teams to receive a coveted invitation to compete in the 16th Annual Oxford International Intellectual Property Moot at the University of Oxford in England, a remarkable achievement considering that 66 teams applied from around the globe. Invitations were based on the top facta submitted over the fall term. The moot took place over three days from March 15th – 17th, 2018. Representing Osgoode were Will Chalmers, Jasmine Godfrey and John Wu. As the premier international IP moot, the event attracted some of the top international IP academics and practitioners to spend a few days in Oxford as judges.
The team faced an intensive two days of mooting during the preliminary rounds, with two moots each day, once as the appellant and once as the respondent. On the first day of the preliminary rounds, Osgoode faced the University of West Bengal (India) and Boston University (U.S). After a tiring first day of preliminary rounds, a cocktail reception re-energized the teams, giving students the opportunity to network with panelists, as well as converse with fellow mooters from all over the world. The team sported clever t-shirts with the phrase “I Am Sexy and I Know It!” (referencing a line in the moot problem), quickly winning Osgoode popularity amongst the other teams.
(L-R: Will Chalmers, Jasmine Godfrey, Dr. Emily Hudson, Aviv Gaon, John Wu, Jennifer Davidson)
The second day of the preliminary rounds consisted of another two rounds of moots, one against the University of Swinburne (Australia) and the other against the University of Cambridge (UK). Unlike most of the moots Osgoode participates in, the diversity of teams faced provided Osgoode students with the opportunity to observe styles of oral advocacy from almost every corner of the globe. Not only did the backgrounds of the mooters differ, but each judge’s background (for example, whether an academic or a practitioner) differed, and a team’s success depended on their ability to read the judges’ styles and respond accordingly in answers. The Osgoode team performed well in the preliminary rounds, winning their first three moots, with the only loss coming narrowly to the ultimate finalists, Cambridge.
The preliminary rounds were concluded that night by a panel, or as Oxford likes to call it, a “Converszione”. Mr. Justice Arnold, the author of Performers’ Rights, led the discussion with his thoughts on IP protection for non-human performers, particularly robots. Despite recognizing the economic reasons in support of protecting original AI produced work, he ultimately believes that the law quite clearly only protects human performances.
Dr. Manuel Berdoy, a biologist, spoke about the evolutionary factors leading to the dances and displays of exotic birds. He was followed by IP professor, Dr. Johanna Gibson, who proposed a new paradigm for IP inspired by the creative expression of dogs, shifting the focus away from an exclusionary property model, and towards a model based on relations between holders and users, producers and consumers. The panel was concluded by a presentation by Dr. Tom Smith, a famed chemist and pyrotechnics expert, who shared a behind-the-scenes look at the setup of a world-class fireworks display.
The panel was followed by a reception and dinner at the beautiful 15th century dining hall at Pembroke College (once frequented by JRR Tolkien and Sir William Blackstone when they were students at Oxford!), where mooters, observers, clerks and judges were encouraged to engage with the panel topics and pose questions to the panelists. After dinner, the quarter-finalists were announced, with two Canadian teams advancing among the top-scoring eight teams: University of Ottawa and the winners of the 2017 Fox Moot, the University of Alberta.
On the final day—once the quarter-finals and semi-finals had taken place—students gathered in the Pichette Auditorium to listen to the finalists, the University of Cambridge and the University of New South Whales. Students had the unique opportunity to observe key questions posed to mooters by leading judges: Lord Justice Kitchin, the Honourable Mr. Justice Birss, and Mr. Justice Carr. The audience patiently waited for the judges to deliver the final decision on the case. The win was ultimately given to the deserving University of New South Whales.
Cockatoos and Fireworks Displays: The Moot Problem
Most of us own smartphones, and few would imagine that taking a recording of a Canada Day fireworks display and subsequently producing our own display inspired by the original would constitute copyright infringement. Nonetheless, the appellant in the moot problem Arbus v Harris thought otherwise, and 28 teams from law schools all over the world congregated at beautiful Pembroke College to discuss whether the reproduction of such a display can constitute infringement. The teams also argued whether there can be copyright in a cockatoo dance performance despite the inherently chaotic nature of such a show, in addition to whether someone can be a joint author of a software, despite possessing no coding knowledge.
The moot problem was designed to deal with all these emerging IP issues, in addition to the more fantastical question of whether animals can be considered “individuals” for the purpose of creating IP (recently raised in the case of Naruto, the “monkey selfie” case in the U.S.). Despite the seriousness of the issues discussed in the problem, the writer of the moot problem—Dr. Emily Hudson, Chair of the Organising Committee and co-ordinator for the moot—clearly has a sense of humour. The Cockatoo Performance in the case featured cockatoos dancing to the song “I am Sexy and I Know It’ by LMFAO, and the crowd chuckled upon finding out on the first day that the parties in the problem were based off characters from the movie Horrible Bosses.
Given that the case takes place in the fictional court of “Erewhon” (a semi-palindrome of “Nowhere”), teams were welcome to bring in case law and legislation from any jurisdiction. The Osgoode team benefitted from understanding how IP law differs across jurisdictions, an appreciation that we gained through our own research in drafting the facta. Given that the moot problem left issues intentionally vague, the Osgoode team heard a variety of different approaches to the problem during the oral rounds, such as how fixation of the performance can occur without the author’s permission, or how the fireworks display that the respondent created can be considered an adaption of the software.
Key Learnings
The team was supported every step of the way by our fabulous coaches, which included Stephen Selznick and Stephen Henderson, from Cassels Brock & Blackwell LLP, Jennifer Davidson, from Deeth Williams Wall LLP, Aviv Gaon, PhD candidate at Osgoode Hall, and renowned IP law professor David Vaver. Our coaches whipped the team into shape and ensured that we were ready to face the rigorous standards demanded by the Moot. These coaches were incredibly generous in offering hours of their time week after week, to ensure that we could answer a host of possible questions from judges as seamlessly as possible—with proper Oxford etiquette—which was crucial to the team’s success. Along the way, the team received invaluable feedback from mooting before top practitioners and judges, including the Honourable Mr. Marshall Rothstein, QC. and the Honourable Mr. Roger Hughes, QC. The team is grateful for the support of Prof. Shelley Kierstead, Director of Mooting, Prof. Giuseppina D’Agostino, Founder & Director of IP Osgoode, and Maria Frasca, Administrative Assistant of Mooting and Lawyering Competitions, without which participation at the moot would not have been possible. Of course, we are grateful for the help of fellow mooters at Osgoode, who listened to our submissions and actively asked us questions.
(L-R: The Honourable Mr. Roger Hughes QC, Jasmine Godfrey, John Wu, Will Chalmers, Jennifer Davidson)
This was a unique competition, bringing together people from all over the world to the ancient town of Oxford, united by their shared passion for IP law and litigation. Observing the dedication of the judges, many of whom return to Oxford year after year to judge the moot, was truly inspiring to the Osgoode team, and this year’s team will surely continue their involvement by helping prepare future teams. The Osgoode team left Oxford not only with a new international IP network, but also a greater understanding of IP law internationally. The Oxford IP Moot has undoubtedly been one of the highlights of our legal education, and all three of us are immensely grateful to have been given this opportunity.
(L-R: Prof. David Vaver, Will Chalmers, John Wu, Jasmine Godfrey, Aviv Gaon, Jennifer Davidson).
William Chalmers is a JD Candidate at Osgoode Hall Law School. Jasmine Godfrey is a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business. John Wu is JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.