D Lynne Watt of Gowling WLG in Canada talks about her career in IP law, recent client matters, and life outside work.
Career in IP law
When did you decide to pursue a career in law?
I originally planned to go to law school right after my undergraduate degree, but an interesting job offer sidetracked me. I eventually made it to law school eight years later.
Why did you choose IP law?
I didn’t really choose IP law, IP chose me. Shortly after I moved to my current firm, I was approached by a partner in the IP department who said they needed a commercial litigator (which I was) to assist with IP valuation matters before the Copyright Board of Canada.
I had never heard of the Board nor of the Society of Composers, Authors and Music Publishers of Canada (SOCAN), had no experience with copyright, and had never considered a career in IP; but when the opportunity knocked, I answered and I have really enjoyed practising in the area of copyright.
How did you get into the IP profession? Did you experience significant challenges?
I had a fairly steep learning curve as I had never practised IP. I used to stay up at night trying to work my way through the Copyright Act until I fell asleep. I had charts and diagrams on my office wall, charting the rights and relationships between the various collective societies in Canada and around the world. I eventually figured it out and now I really enjoy it.
Even though the Act and the concept have been around for a long time, the application of that law to new and emerging technologies is interesting, as are the valuation concepts.
Why and/or how did you join your current firm?
I joined Gowling WLG in 2006 from another major Canadian law firm. I was drawn to the firm because it was (and is) the largest firm in Ottawa, with strong roots in the city, a strong advocacy practice, and a pre-eminent reputation in IP.
What do you enjoy most about working for your firm?
At Gowling WLG, I have access to the knowledge, support and comradery of hundreds of other professionals across Canada and around the world, as well as opportunities that present themselves through the cross-pollination between departments.
I mentioned, above, how the IP department was looking for someone with a background in commercial litigation when I joined the firm. Another opportunity was offered to me a few years later when a partner in the firm’s Supreme Court of Canada practice was retiring and needed someone to take over his agency practice before that court, which has been an amazing experience.
What career advice would you give to women interested in joining the IP profession and getting to your position?
Don’t assume that if you don’t have a science background, you can’t practice IP. There are a lot of IP practitioners with all kinds of backgrounds, training and experience.
My undergraduate degree was in history and political science, and I worked in social services for eight years between undergrad and law school.
Client work
What is your most memorable piece of work as an IP practitioner?
Appearing before the Supreme Court of Canada on two cases (heard together) that made a major impact on copyright law in Canada: Rogers v SOCAN, and ESA v SOCAN.
Both cases were important for the development of copyright law in Canada and in particular the delineation between reproduction rights and performance rights under the Copyright Act and the scope of “communication to the public by telecommunication”.
Could you briefly share two interesting client matters you handled within the past 18 months?
One was a trial in the Federal Court, successfully defending SOCAN in an action for restitution of copyright royalties brought by certain large broadcasters who have argued that a change in the law rendered the collection and retention of the royalties by SOCAN unjust.
The second case is an appeal that will be heard by the Supreme Court of Canada next year, dealing with the proper interpretation and effect of a new section, the making available provision in s.2.4(1.1), that was added to the Copyright Act as part of the Copyright Modernization Act in 2012. It is an appeal from a 2020 decision of the Federal Court of Appeal.
Did you find any part of the work you have just described uniquely challenging? If so, what were the challenges and how did you overcome them?
The valuation of IP rights is complicated. In my practice area, the setting tariffs for the public performance of music rarely has free market transactions so we need to use proxies and benchmarks. I didn’t understand any of this when I started! The solution is to find a good expert and have them spoon-feed it to you until you, in turn, can explain it to a judge or Copyright Board member.
What qualities and skills are required to do your job?
The best qualities for any litigator, including an IP litigator, are curiosity and the constant willingness to learn new subject matters.
What key principles do you follow or use to deliver the best possible outcome(s) for a client?
Listen to the client to figure out the outcome they need, not the outcome you think they should get.
What if things don’t go or aren’t going according to plan, what keeps you going or motivated?
A famous lawyer from my firm (E. Peter Newcombe) once said, “The worst never happens.”
So, when you think you cannot possibly meet all the conflicting deadlines, or that you will never be able to get through an impossible examination, just keep going. Things have a way of working out. One case will settle and another will be adjourned. You’ll figure out a way to ask the difficult questions or the witness will unexpectedly admit a key fact. Hard work pays off but serendipity doesn’t hurt.
Life outside work
Are you working on any interesting project(s) outside your firm? If so, please tell us a little bit about the project and why you care about it.
I sit on the board of MusicFest Canada (an annual national event that brings together thousands of Canada’s best young musicians who perform for recognition as the country’s foremost musical ensembles).
I don’t have a musical bone in my body. I’m on the board because of my knowledge of music copyright, but I love the passion that young performers have to improve their skills.
What is your favourite food and sport?
I have no favourite food; I like everything. The favourite sport to play is golf and I like to watch rugby.
About D Lynne Watt
D Lynne Watt is an IP litigator who specialises in copyright matters, including rate-setting hearings before the Copyright Board of Canada, and infringement and enforcement actions before the Federal and Ontario courts. She became a partner in 2006 and leader of Gowling WLG’s Supreme Court of Canada Services Group in 2014.