Prof. Carys Craig is the Director of IP Osgoode, Editor-in-Chief of the Osgoode Hall Law Journal, Academic Director of the Osgoode Professional LL.M Program in Intellectual Property, and an Associate Professor at Osgoode Hall Law School.

I am delighted to be writing my first IPilogue post as incoming Director of IP Osgoode! I would like to begin by thanking the whole IP Osgoode team, community, and partners for their warm welcome.

It is both exciting and daunting to step into the shoes of IP Osgoode’s Founder and outgoing Director, my colleague and friend Prof. Pina D’Agostino, whose creative energy and vision have been the driving force behind IP Osgoode since 2008. Under her leadership, IP Osgoode has become a key voice on intellectual property law and technology issues, forging fruitful relationships with academics, legal professionals, policymakers, and industry actors, while offering wonderfully rich learning opportunities to our students and graduate researchers.

With Prof. D’Agostino now at the helm of �첥��Ƶ’s newly launched Centre for AI and Society (CAIS), we are looking forward to collaborating on interdisciplinary initiatives at the intersection of AI and IP in our new respective roles!

While I am indeed new to the Director role at IP Osgoode, I was a founding member at its inception and have participated in many of its events and initiatives over the years. I have been teaching and researching in intellectual property law at Osgoode since joining the faculty in 2002 and have served as Academic Director of Osgoode’s Professional LLM in IP law since 2009. In other words, I am very well acquainted with all things Osgoode and IP!

Looking ahead, I am keen to bring my experience and passions to this new position. I take special delight in guiding our excellent students to grow as researchers, editors, and emerging thought-leaders—a role I have relished as Editor-in-Chief of the and will now embrace as Editor-in-Chief of the . I am a big believer in the creative potential of collaboration and the discursive exchange of ideas, and so I look forward to hosting the IP Osgoode Speaks Series, workshops, and conferences on pressing issues in IP and technology policy. As a former Associate Dean of Research & Institutional Relations, I am committed to strengthening our institution’s research focus and scholarly networks, and so I am keen to foster IP Osgoode’s existing connections and to forge new ones. And as a proponent of consultative, evidence-based policymaking, I am excited to continue supervising Osgoode student teams for the Federal Government’s Copyright Policy Moot, as well as helping to craft and coordinate joint statements from Canadian IP Scholars. Above all, though, I am passionate about nurturing new viewpoints and diverse voices in these critical conversations. This is an aspiration that has been, and will remain, central to IP Osgoode’s mission.

Over these past twenty years, IP and technology law has emerged as a hugely important area of law which requires an ever-growing need for expertise and thoughtful advice. In today’s dynamic digital environment, new challenges arise every day, throwing established systems and rules into flux. With a plethora of policy issues to be tackled—from generative AI to intermediary liability, copyright term extension to unused trademark registrations, and controversial new bills in Canada on online news and broadcasting—the field shows no sign of slowing down. ��

At Osgoode, our IP offerings have grown over time to meet this challenge. When I was hired, I was the lone faculty member in the field, stepping into the shoes of my venerable colleague Professor . Prof. Vaver has since returned to the Osgoode fold, of course—an IP & Technology Law faculty that now boasts Professors , , , , and our most recent technology law recruit, Canada Research Chair in Innovation Law & Society, . With these inspiring colleagues, our dedicated , our fearless Assistant Director , and an incredible network of , supporters, and collaborators, I’m excited to see what’s in store for the IP Osgoode team—and thrilled play this part in making it happen!

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Suryast painting generated by the AI tool RAGHAV. Photo by Sukanya Sarkar (ManagingIP.com)

Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

��In September 2021, the IPilogue that India’s copyright office recognized the RAGHAV Painting App (“RAGHAV”), an artificial intelligence (“AI”) tool, as an author of the copyright-protected artistic work, Suryast. The work (reproduced above) was “created” using a base dataset of Vincent van Gogh’s Starry Night painting and a photograph taken by Ankit Sahni, the IP lawyer who created RAGHAV and the work’s listed co-author. Like a natural person, AI might use a painting or photograph as inspiration for their work; unlike a natural person, however, AI can “create” work at an exponentially fast pace. AI’s capability to outperform natural persons is just one of the reasons why its authenticity as an author, sole or joint, is controversial. Labelling the work as a “creation”, as opposed to an “output” or “generation”, has been .

Following registration in India, Mr. Sahni also achieved success in registering RAGHAV as his co-author for Suryast with the (“CIPO”) in December 2021 (CIPO, registration number 1188619). This registration marks the first time Canada has attributed copyright authorship to a non-human, signaling a victory for stakeholders who firmly support an amendment of Canada’s Copyright Act (“t��� Act”) to support the changing needs of innovators and consumers in a high-tech world. Recognizing AI as an author may spark further in the Canadian AI sector.

On the contrary, some scholars, including Osgoode Hall Professor Carys Craig, expressed disdain over CIPO registering AI as an author before the government released the conclusions of their (IoT). Concerned stakeholders had from to submit evidence on whether and how amendments to the Act should be made to achieve its underlying policy objectives while ensuring that Canada’s economy “” The discussed three possible approaches for recognizing AI authorship in the Act:

1. Attribute authorship of AI-generated works to the person who arranged for the work to be created;
2. Clarify that copyright and authorship applies only to works generated by humans (i.e., requiring some human participation for AI-generated works to receive authorship); and
3. Create a new set and unique set of rights for AI-generated works.

It seems that CIPO’s registration of Suryast signals the Canadian government’s enthusiasm for the second proposed framework, since RAGHAV is a listed co-author along with its human counterpart Mr. Sahni. However, since the submissions have yet to be publicly shared, some find that this registration amounted to CIPO “jumping the gun” and undermines the purpose of running a public consultation.

While recognizing AI as an author can lead to further innovation in AI-generated works, many drawbacks exist. Some of the most notable arguments are included in a on the public consultation by 14 Canadian IP scholars. They recommended against recognizing AI as an author and argued that AI-generated works should remain in the public domain. There are technical arguments that the language of the Act implies human authorship and that AI-generated works cannot meet the threshold of “originality” required for copyright subsistence. Further, scholars emphasize that “giving copyright to AI-generated outputs serves none of the [public interest] purposes of copyright protection.” As the Supreme Court of Canada noted in , copyright is usually presented as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellectual and obtaining a just reward for the creator” (at paras 11-12). Where a work lacks significant human involvement (i.e., is truly AI-generated), the scholars argue that no author is denied their “just reward”, as an act of authorship is missing. Similarly, they argue that there is no reason to assume that AI-generated works will be under-produced in the absence of copyright protection, and so the incentive copyright is meant to provide is absent.��

It is important to remember that once an applicant files their registration with CIPO, the office conducts a formal check of the details submitted in the application. Neither this oversight process nor the certificate of copyright registration amounts to a guarantee of the legitimacy of ownership or that the originality of the work will remain unchallenged. The lack of critical examination throughout the process is significant and may not be the victory for AI that many proclaim it to be. Theoretically, granting registration imparts onto the AI “author” the same rights and remedies that a human author would receive under the Act. An AI could enforce its copyright if a user is infringing. However, a user could challenge an AI’s copyright-protected work on the grounds that it lacks originality and, therefore, lacks copyright altogether. While this is a hypothetical situation, given the amount of controversy this registration has generated, it would be unsurprising if legal action followed.

Although the reach of this registration is limited, it does showcase the growing uncertainty around how AI interacts with copyright laws. Only time will tell where Canada stands on AI authorship as we await the results of the public consultation. Regardless of the position taken, the government must act urgently to address AI and copyright. These questions only become more complex as technology evolves.

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Photo by fauxels ()

Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Background

In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the , the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.��

In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.

Balancing the Public Interest

The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while through Federal statute (the Copyright Act). In so doing, they relied on , where the court described copyright laws as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. The group also stressed the importance of technological neutrality and referenced . In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.

Text and Data Mining��

The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.

The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from . The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.

The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.

Authorship and Ownership of Works Generated by AI

One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI , , here, and ). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.

Final Recommendations

In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.

Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.

Public consultations are touted as one of the . Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.

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This Special Issue seeks articles that focus on any doctrinal, policy, regulatory or theoretical aspect of Intellectual Property in the New Technological Age. Authors are invited to reflect upon the evolving relationship between IP law and new technologies in light of established and emerging stakeholder interests—and the public interest in general. Possible topics include, but are not limited to: the changing role of IP in our culture/society/marketplace; the pursuit of ‘technological neutrality’ in IP law; sites of tension between copyright norms and new digital services; patentability and gene or bio-technologies; trademarks, territoriality and the online marketplace; end-user and intermediary liabilities and remedies; emerging IP management and enforcement strategies; the expansion/contraction of user rights and defences in respect of new technological tools.

Submission

Manuscripts should be submitted online at by and . Once you are registered, . Manuscripts can be submitted until the deadline. Papers will be published continuously (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are refereed through a peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the page. is an international peer-reviewed Open Access quarterly journal published by .

Please visit the page before submitting a manuscript. The for publication in this journal is 300 CHF (Swiss Francs). English correction and/or formatting fees of 250 CHF (Swiss Francs) will be charged in certain cases for those articles accepted for publication that require extensive additional formatting and/or English corrections.

Carys J. Craig is the Associate Dean, Research & Institutional Relations and an Associate Professor at Osgoode Hall Law School.�� She is the guest editor for this LAWS special issue.

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Let’s begin with the chapter, which appears in the new Irwin Law book , edited by by the wonderful Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, and available online under Creative Commons license. Although, of course, we recommend reading the full article (a portion of which was recently featured on as the Thursday Thinkpiece), a summary of key ideas should be helpful here. Broadly, we take issue with the way that music is treated in copyright infringement actions, adopting the view that music’s features and compositional processes are sufficiently different from most other categories of copyrighted works so as to warrant somewhat different treatment in evaluating claims of infringement. We argue that musical culture depends on the borrowing and reworking of previous musical ideas in referential ways, such that a strict application of copyright’s substantial similarity test may well chill musical creativity, undermining copyright’s objective of encouraging the creation and dissemination of such works. We argue that the “reasonable listener” test, which uses a musical layperson’s ears as the determiner of substantial copying, is an odd way of going about determining whether a substantial portion of a musical work has been copied. Following , we point out that this little-known sibling of tort law’s “reasonable person” presents more problems for adjudication of copyright infringement than he or she solves. We argue, with the use of a , that the ear alone can be misled, and, by a showcase composition replete with instances of potential but imperceptible infringement, we challenge the assumption that effective infringement analysis best relies on the aural experience of music. On the whole, we (gently) accuse most courts of being insufficiently aware of the ways musical works differ from cookbooks and computer programs, and of approaching the analysis of infringement in music in both legally and musically unsatisfactory ways.

Amongst our proposed solutions, we recommend a greater use of musicological experts to assist the court in moving beyond the average person’s musical perception and understanding. Musicologists applying the principles of music theory―the study of the structure of music―can provide useful insights into the world of music, helping courts to separate common musical devices and standard compositional techniques from more original patterns that may merit protection.�� We demonstrate how a music theoretical approach can thus assist the court in rendering a more musically just decision. In particular, such an approach can help courts to resist the mistaken assumption that every similarity recognizable to the layperson is probative of unlawful copying.

So let us now look more closely at the Court’s judgment in Robinson. After affirming (as expected) that the “perspective of a lay person in the intended audience for the works at issue is a useful one” (para 51) in determining whether a substantial part of a plaintiff’s work has been copied, the Supreme Court then nuances this view by that adding that, “[i]n some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert” (ibid.). To illustrate such a scenario, the court chose this specific example:

[52] To take an example, two pieces of classical music may, to the untrained ear, sound different, perhaps because they are played on different instruments, or at different tempos. An expert musician, however, might see similarities suggesting a substantial part has been copied ― the same key signature, the same arrangement of the notes in recurring passages, or a recurrent and unusual harmonic chord. It will be for the judge to determine whether the similarities establish copying of a substantial part, to be sure. But in making that determination, the judge may need to consider not only how the work sounds to the lay person in the intended audience, but also structural similarities that only an expert can detect.

We were thrilled to see the Court endorse a strong music-theoretical approach to deciphering the language of music. The Court supposes here that analyzing harmonies advances a clearer picture of musical composition, and that most people are unable to satisfactorily pursue such analyses. While the Court’s example, like our own, speaks to the possibility of substantial similarities going unheeded by the layperson, it is at least equally true that a layperson may perceive similarities that a court, with the assistance of a musical expert, should dismiss as insubstantial or irrelevant. In short, the Court recognizes the limits of untrained ears as reasonable arbiters of substantial copying, and hints toward endorsing many of our article’s central claims about why music is special and how music theory offers useful tools to assist in the adjudication of music infringement cases. Moreover, the Court’s acknowledgement of a role for expertise in the determination of substantial similarity may reduce the risk of potential overreaching by copyright owners calling for a “holistic assessment” of similarities between works in the wake of Robinson.

It is interesting to consider how this particular example may have come about, given the rather technical musical language it features. No doubt the well-reasoned intervenor submission of Music Canada (prepared by Osgoode adjunct professors , and )��played an important role. But it is also noteworthy that, unlike many other courts, the Supreme Court boasts uncommonly significant musical expertise on its bench. For example, prior to studying law, Justice Thomas Cromwell graduated from Queen’s University with a bachelor’s degree in music, and for many years thereafter took brief moments away from his legal career to organize summer church music seminars and organ performance competitions.^[1] is also an experienced musician, having received a diploma in classical piano performance from the Royal Conservatory of Music in her youth. Can we assume that paragraph 52 is the voice of musical experience speaking?

However it came about, we were pleased to see the Court address the specific challenges of determining substantial copying in relation to musical works. Copyright law may still be in need of some music lessons, but it looks like the Justices of Canada’s Supreme Court have already taken a few; insofar as this important statement by the Court in Robinson is concerned, we think they struck the right note.

Dr. Carys Craig is an Associate Professor at Osgoode Hall Law School. Guillaume Laroche received his LLM from Osgoode Hall Law School in October 2012.

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In what is now dubbed the Supreme Court’s “copyright pentalogy”—five copyright judgments released concurrently by the Court in July 2012[1]—the unprecedented importance accorded by the Court to the principle of technological neutrality is clear; what remains unclear is precisely what “technological neutrality” means, why it matters, and whether or how it can (or should) ever be attained.

This chapter aims to critically assess the significance of the principle and its potential to guide the future development of copyright law and policy in Canada. In Part 2, I set out the various shades of meaning that can be attached to technological neutrality, first as a principle of sound regulation, and then as a principle of statutory interpretation by the courts. I review, in Part 3, the reasons delivered by the Justices in three of the five cases to examine the various and divergent ways in which the principle of technological neutrality was defined and rationalized by members of the Court. I proceed to explore the application of the principle and its role in resolving the legal issues before the Court, drawing connections between conceptualizations of the principle and its interpretive impact, and focusing on its capacity to support the extension and/or circumscription of owners’ and users’ rights.

In Part 4, I consider whether the role accorded to technological neutrality as a guiding principle is justifiable or appropriate in the context of Canadian copyright policy. Arguing that its justification is found in, and flows from, the concept of balance at the heart of the copyright system, I proceed to offer some thoughts on its potential significance in the future of Canadian copyright law and in light of the recent amendments to the Copyright Act.[2] Part 5 concludes that the new emphasis placed by the Court on technological neutrality as a guiding principle is an important and positive development for Canada’s copyright system. The caveat, however, is that the principle cannot perform this role effectively if conceived (or rhetorically invoked) as a limited principle of formal non-discrimination that merely justifies the extension of copyright’s reach. Rather, I argue, it must be conceived in a functional sense, shaping copyright norms to produce a substantively equivalent effect across technologies, with a view to preserving the copyright balance in the digital realm.

Featured here is the first part of a book chapter written by Carys Craig, Associate Professor at Osgoode Hall Law School. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

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The theme of the conference Law Culture Critique was organized into an array of extremely interesting panels that were categorized into various sub-themes including music, culture, gender, art and commerce. The call for papers explicitly encouraged the participation of graduate students, artists and community activists and attracted participants from both international and national institutions.

Distinguished Keynote Speakers included , Professor at the University of British Columbia, author and filmmaker, and Professor , international legal scholar and Chairperson of the Centre for International Legal Studies at Jawaharlal Nehru University in New Delhi, who attracted wide audiences and captivated them with their respective talks. presented a particularly inspiring and timely paper on the myth of corporate social responsibility, “Good Corp, Bad Corp: Corporate Social Responsibility and the Breaking of Society.” He argued that corporations are inherently created for the purpose of economic gain and therefore our reliance on them to fulfill selfless acts through their branding strategies of social responsibility is naïve. His presentation was extremely relevant in light of the devastation that claimed the life of over one thousand Bangladeshi people working in substandard conditions, producing clothing for Loblaw’s Joe Fresh line.

***

Fittingly, based on the theme of the conference, there were several papers concerning intellectual property law including that of panelist , a SSHRC Postdoctoral Fellow at McGill University, Department of Art History and Communications Studies who presented an intriguing paper on the use of copyright policy in the first panel, entitled Law, Symbols and Visual Cultures. Her presentation “Framing the Open: Photography and the Digital Circulation of Israeli Memory” commented on the practices of Israel’s due to the changes made to its licensing policy to create ‘open access’ for the digital images displayed on its website. These policies have the effect of allowing the free access to these digital images while simultaneously resulting in their control and prevention for political uses. The licensing policy was therefore not solely to ensure protection of the creator’s rights or for the purpose of monetization, but rather a tool to prevent political use. Although the content of the images were not at issue, it was the context in which the content would be used that was problematic. The :

“Altering the photograph or using it in any way that harms the name or the reputation of the State, the Government Press Office or the photographer.

Using the photograph for commercial advertising or political activity.”

***

Later that afternoon, , IP Osgoode member and Professor of Law at Osgoode Hall Law School, , Banting Post-Doctoral Fellow in Law and Culture at �첥��Ƶ, and Hip Hop artist and McGill Law School DCL Candidate, were featured in a thought-provoking roundtable discussion on Music, Law and Theory. Moderator Ali Hammoudi, PhD Candidate at Osgoode Hall Law School and Co-Chair of the GSLA, directed the debate towards hip-hop’s sampling culture.

Sampling is a technique that has, in several American cases, been held to infringe the rights of copyright owners by the courts. The panel confronted the practical, legal, and cultural norms concerning creation, reproduction, originality and attribution. Professor Craig laid the solid doctrinal foundation of these concepts in discussions on substantial taking, fair dealing, and the balanced originality approach enunciated in , while Martin challenged important contentions concerning originality and creative labour, the blurred lines between re-use and copying, and self regulating social norms. Salman presented information about the norms that govern the hip-hop community: hip-hop artists do not sue each other over the use of each others' work largely because sampling is an accepted practice. Quite frankly, as Salman put it – ‘they don’t care’ because it is considered to be an honour to be sampled rather than the appropriation of their work. For this reason, hip-hop artists do not expect to be remunerated for the use of these samples. It seems that in the context of sampling, the hip-hop community relies on social norms that do not always reconcile with the legal norms that corporate owners rely on.

***

A IP topic several years ago, graffiti returns to the forefront due to the cancellation of yet another in an Ontario art gallery because of the uncertainty surrounding graffiti artists’ rights in Canada. Dr. Laura Petican, an Art Historian, and I explored the medium of graffiti art historically, culturally and legally. Laura began with a discussion of Jean-Michel Basquiat and Banksy, whose works have not only transcended the ‘label’ of illegality, but have also become revered as fine art. The context of their street art (graffiti) however, continues to be defined as ‘vandalism’. Graffiti receives intellectual property protection when legal (i.e. when authorized) whereas the question remains “open” when it is not. As argued by , Professor at the University of Ottawa Faculty of Law, in her blog article entitled :

“There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works . . . .”

Although the artist is vulnerable in the context of the illegal street art he or she produces, in the gallery (what is referred to as the ‘white cube’), their works are considered to be legal, artistic and protected. This issue has not yet been explicitly addressed in the Copyright Act.

Coincidentally on the day of our presentation, the that a mural created by Banksy in 2012, which was subsequently physically removed from the building earlier this year, will be put up for auction for a second time in June “alongside pieces by Damien Hirst [and] Andy Warhol . . . .” The piece entitled “Slave Labour” was a ‘gift’ to a community in London. When the piece was from the community and put up for auction in Miami in February 2013, it was expected to sell for up to $700,000 USD, but was pulled due to the public outcry. No legal action has been taken yet. Although the removal of the wall is a question of property rights (no reproduction was made), this example highlights the parameters that define legal and illegal art.

***

, LLM Candidate at Osgoode Hall Law School, Co-Chair of the GLSA, and panelist, presented a fascinating paper on the implementation of creator rights and the legal infrastructure of copyright in Trinidad and Tobago. In particular, she commented on the evolution of hybrid art forms and focused on works of mass. She interrogated the ways in a particular conception of Trinidadian culture could be ‘protected’ within the existing framework of international cultural protection. Rather than side with one particular approach, she stressed the need to further investigate the social issues that inform copyright law and practical implications that arise therefrom.

***

On the same day, , Professor at the at the Université du Québec à Montréal, and I illustrated the way in which fashion designers attempt to define their work as either artistic, industrial design or both. We compared the perspective of fashion designers to the boundaries of subjectivity and objectivity used by the courts in order to determine the qualification of artistic work based on the intent of the artist in light of the recent United Kingdom Supreme Court case of . What is commonly followed in Canada is the objective standard in DRG v Datafile (1987), 18 C.P.R. (3d) 538. , Professor at the University of Ottawa, Faculty of Law and , Director of the Intellectual Property Program at Vanderbilt Law School, co-authors of (2d ed), suggest that

“[t]he objective test in DRG, which defines “artistic work” as a “generic description of the type of works … which find expression in a visual medium” is preferable to tests based on more subjective criteria such as the author’s intent, the audience’s perception of the “artistic-ness,” or evaluations by art experts or judges of aesthetic merit or value.” (Gervais & Judge, p 105)

In Professor Beaudoin’s experience, whether a fashion designer decides to create ‘artistic work’ rather than ‘industrial design’ is a difficult question that only he or she can determine.

***

Unrelated to intellectual property law, some presenters used artistic mediums to investigate and interpret ‘law.’ In the panel entitled Theorizing Law and Art, , who recently completed his MFA in Documentary Media at Ryerson University presented a paper based on his entitled Defenders. Dan’s exhibition consists of interviewing and “paint[ing] a living ethnographic portrait of Canadian and American criminal defence lawyers in�� . . . Detroit, New York, and Toronto.” He used images and videos in his presentation to portray the intricacies of the criminal justice system by allowing viewers to observe “criminal defense attorneys” from a different perspective. The Defenders exhibition remains at the until May 25, 2013.

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The conference embodied an exceptional fusion of carefully curated panels, topics that were diverse yet intertwined and a wide representation of scholars and artists. The Osgoode Hall Law School GLSA organized a very professional, accessible and personable event. I look forward to attending next year!

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

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The Copyright Pentalogy rocked the foundations of Canada’s media industries, and will have wide reaching repercussions for Canadian copyright law. The book, entitled “” is the first comprehensive scholarly analysis of the pentalogy. The text covers a range of topics, including the standard of review in the courts, the implications and evolution of fair dealing, technological neutrality, the scope of copyright and copyright collective management.

The book is edited by Prof. Michael Geist of the University of Ottawa and includes contributions from many of Canada’s leading copyright scholars, including IP Osgoode’s very own Prof. Giuseppina D’Agostino and Prof. Carys Craig. It is sure to be a must have resource for anyone interested in Canadian copyright law in the future.

Print copies are available from the and an open access PDF version is available as a .

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Michael Geist’s edited collection of essays on copyright reform is being released on October 14th, and you are welcome to attend its . This exciting and timely publication, entitled ‘, contains twenty chapters written by copyright scholars from across Canada. It is to Geist’s credit that he was able to pull this book together on a tight timeline over the summer so that the views expressed therein can have a bearing on the reform process as it continues to unfold. Of course, the speed of this process also reflects a keen sense amongst Canadian copyright scholars that something important needs to be said (and heard) sooner rather than later.

I was honoured to be included as a contributor, and to have this opportunity to add my voice to the chorus of voices expressing concern about latest copyright reform bill, . My contribution, ‘Locking Out Lawful Users’, explores the proposed fair dealing and other user exceptions, both in their own right and in relation to the proposed anti-circumvention provisions.

Bill C-32 contains several new (or at least newly clarified) exceptions and defences for users dealing with protected works. There is, most notably, the welcome (and long overdue) addition of “education, parody or satire” to the list of purposes that can fall within the fair dealing defence. There is also an interesting new defence for “non-commercial user-generated content” (sometimes referred to as “the Youtube exception”). These exceptions would go some way towards advances the goals of copyright law by making space for transformative downstream uses of protected material.

The problem, however, is that they simply replicate the existing approach to copyright exceptions in Canada’s Copyright Act, adding more categories of potentially permitted uses that are restrictive, piecemeal, and “not easily capable of a remedial, flexible or evolutionary application.”[1] Educational, parodic and other transformative uses have long been recognized as potential fair uses in the United States. Indeed, the need to expressly include these specific exceptions in Canada speaks more to the shortcomings of the Canadian approach to fair dealing (in contrast to US fair use) than it does to the pursuit of a genuine balance between owners and users in the copyright reform process.

Bill C-32 also includes welcome user exceptions for private acts of format- and time-shifting, and making backup copies of lawfully acquired content, with the stated intention of “legitimizing Canadians everyday activities.”[2] While these exceptions are extremely sensible, and once again long overdue, they are also framed in restrictive language, and subject to several provisos, reinforcing the sense that “every tiny exception to the grasp of copyright monopoly has had to be…prized out of…unwilling hand[s].”[3] From a common sense user perspective, it seems obvious that such activities should have been regarded as fair uses in the first instance. Few people unfamiliar with copyright law would have imagined that they were breaking the law when they shot or shared a home video of their toddler dancing to a Beyoncé hit, or recorded a TV show to watch when the kids were in bed. The fact that such uses are currently unlawful again reveals the weakness of Canada’s approach to user exceptions, which Bill C-32 only perpetuates.

Furthermore, the existence of these multiple, technically drafted provisos should raise concerns about the accessibility of the new bill. In an age where copyright affects everyday users carrying out everyday activities, everyone should be able to know and understand the rules by which he or she is expected to abide. Broad, principled rules are far more conducive to general understanding and respect than are narrow, dense and overly legalistic ones.

The most significant shortcoming of Bill C-32 with respect to user rights, however, is the consistent prioritization of technical protection measure [TPM] protection over copyright exceptions. Put another way, this amounts to the prioritization of private ordering over public policy. New user exceptions in the bill are explicitly unavailable where the would-be beneficiary of an exception has circumvented a TPM in order to carry out a permitted act. The fair dealing and user-generated non-commercial content defences do not fare much better even in the absence of an explicit circumvention carve-out. Where TPMs prevent access to a work, would-be beneficiaries of these defences are effectively locked out; circumvention of a TPM in such cases will give rise to liability under the anti-circumvention provisions notwithstanding the user’s lawful intended purpose. Where a work is protected by a copy-control TPM, users may be unable to carry out fair dealings or use the work in the creation of a new one; without access to circumvention services or devices, they will be unable to benefit from the exceptions to which they are entitled.

The anti-circumvention rights established in Bill C-32 are unduly expansive, while the complexity and rigidity of the many narrowly framed exceptions again suggests nothing more than a grudging willingness to make minimal carve-outs from far-reaching prohibitions. Anti-circumvention rights create the potential for zones of exclusion far greater than traditional copyright affords. The bill does not tie circumvention liability to copyright infringement in any way, and it does not contain any general exception for circumventions carried out for the purpose of non-infringing acts, not to mention establishing a mechanism for ensuring that such acts are possible in practice. In this way, Bill C-32 fails to reflect the centrality of fair dealing and other exceptions in copyright law, treating them as marginal elements of the existing system that can be reduced or eliminated to better protect owner interests in the digital environment. In doing so, it threatens to significantly upset the copyright balance established in Canada and articulated by our Supreme Court.

The release of Bill C-32 was accompanied by claims that it is “a fair, balanced, and common-sense approach, respecting both the rights of creators and the interests of consumers in a modern marketplace.”[4] Unfortunately for consumers, users and the Canadian public in general, the pervasive reference to “balance” in this latest round of copyright reform looks a lot like empty rhetoric. With the volume, we will take a step away from this kind of ‘sloganeering’, and a step towards a less partisan and more informed analysis of Bill C-32 and the future of Canada’s copyright system.

[2] , <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01151.html>

[3] Justice Laddie, “Copyright: Over-Strength, Over-Regulated, Over-Rated”, (1996) 18(5) European Intellectual Property Review 253 at 259

[4] 2 June 2010, <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01149.html>

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The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment.

Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity in Canada's copyright balance. It offers some proposals for digital copyright reform that could meet the principled demands of prescriptive parallelism, limit the impact of digital locks on the cultural landscape, and save fair dealing from its impending fate.

Professor Craig's article "Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of 'Prescriptive Parallelism'"��is available at SSRN: .�� This article��is published in final form in the .��

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