Faculty Blog

Conventional wisdom holds that the European Union has opted to apply its competition law to the exercise of intellectual property rights to a much greater extent than has the United States. In a new article, published in Vol. 79(1) of the Antitrust Law Journal, Paul-Erik Veel and I argue that, at least in the context of copyright protection, this conventional wisdom is false.

While European antitrust regulation of refusal to license one's intellectual property does seem much more robust and activist than U.S. antitrust regulation of similar conduct, focusing solely on one narrow aspect of antitrust doctrine—the treatment of a unilateral refusal to deal—tells less than half the story.

Competing theories of corporate criminal liability range along a spectrum.  At one end is vicarious criminal liability for the acts of employees or agents.  At the opposite end of the spectrum is the "directing mind" doctrine which requires the prosecution to prove that the Board of Directors set policy that authorized the criminal conduct. The Canadian corporate criminal model is. like many things that are Canadian, in the middle of the spectrum, based on the concept of a "senior officer". 

Two recent cases demonstrate how the Canadian model works in practice.  Global Fuels (R. c. Pétroles Global Inc.2013 QCCS 4262  leave to appeal to the Court of Appeal granted (2013 QCCA 1604))  was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. The Ontario Court of Appeal in Metron Construction (2013 ONCA 541) has affirmed that the actions of an independent agent who manages an important aspect of a corporations' activities and qualifies as a senior officer may result in a conviction of that corporation for criminal negligence causing death where the agent demonstrates a marked and substantial departure from the standard that could be expected of a reasonably prudent person.

Imagine the following scenario.  It is 2030.  You and your loved ones live in a house that is virtually energy sufficient.  Artificial photosynthetic membranes on the roof combine sunlight, carbon dioxide sequestered from the air, and water to generate methane, the main component in natural gas.  The methane is pumped into tanks and available when needed to fuel your gas stove or furnace.   It also supplies all of your household electricity needs after being run through a fuel cell or combusted in a generator.  Although you are still connected to the electrical and natural gas grids, these are mainly used as back-ups for when there is insufficient sunlight (and stored methane) to meet your energy needs.  

The following first appeared in the National Post on July 31, 2013.

EXTRAORDINARY POPULAR DELUSIONS AND THE MADNESS OF CROWDFUNDING

Many, if not most, crowd funded endeavours will head straight for the scrapheap

If you utter the word “crowdfunding” in front of a dusty old-fashioned securities lawyer, make sure you have a fully charged defibrillator on hand. Perhaps a fully equipped contingent of ER doctors and nurses. It won’t be pretty.

Let’s be clear — we’re not talking about the mere solicitation of donations, such as the attempt of a Toronto man, reported earlier this week, to raise $400-million to purchase Mobilicity (note to prospective donors: If he succeeds, he owns the company, not you). That’s perfectly legal. We’re talking about the actual sale of an ownership interest to investors over the Internet.

At present, the default rule is that if a corporation or other issuer is going to sell securities it must assemble an informational document known as a prospectus. Because of arcane securities laws whose full import is only understood by two or three Tibetan monks, this is expensive. Even Buy-Rite-Cut-and-Paste-Prospectuses will charge you about a hundred grand, and the bulge-bracket firms reportedly like to take an option on your firstborn child. Understandably, the prospectus option is not the first choice of startup firms looking to raise money.