Rosie Giannone is a 1L JD Candidate at Osgoode Hall Law School.

Image from the

EUTM 17981629 in the name of Pest Control Office Limited

The European Union Intellectual Property Office’s (EUIPO) Board of Appeal has a EUIPO decision from May 2021, rendering invalid a trademark registration for Laugh Now, better known as the monkey sign image, by anonymous U.K. street artist Banksy.

Background

Banksy’s graffiti artwork Laugh Now first appeared in Brighton, England, in 2002. The work depicts an image of a monkey wearing a sandwich board around its neck, reading, “Laugh now, but one day we’ll be in charge.” , a U.K. company specializing in greeting cards depicting street art, subsequently used this image in their products.

On November 7, 2018, Pest Control, Banksy’s authentication body, filed an EU trademark claim on behalf of the artist for Laugh Now. Typically, artists protect their artwork using only copyright law. However, artists are required to when claiming copyright infringement. Trademark law allows Banksy to remain anonymous and maintain his mysterious artistic persona.

On November 28, 2019, Full Black Colour applied to cancel Banksy’s trademark under the European Union Trademark Regulation (). Full Black Colour claimed that the work was More specifically, Aaron Wood, a trademark lawyer, argued on behalf of Full Colour Black that . A trademark holder must make of a registration by using it to acquire market share in relation to distinguishable goods or services. that Banksy only registered the trademark to prevent others from using his image and to avoid revealing his identity under copyright infringement claims.

On May 18, 2021, the EUIPO Cancellation Division ruled in favour of Full Colour Black. The decision repeatedly referenced a by Full Colour Black in 2019, which challenged the registration of a trademark for Banksy’s work, The Flower Thrower. The EUIPO found that since the art is a work of graffiti originally spray-painted in a public place, Furthermore, the Board accepted Banksy’s 2007 book Wall and Piece as damning evidence that this trademark was registered in bad faith. In the book, Banksy famously claimed that “copyright is for losers” and stated that

The EUIPO also accepted that Banksy knew that his works were widely photographed and reproduced by third parties between these parties and himself. The EUIPO noted that Banksy provided high-resolution versions of his work on his website and invited the public to download them. Essentially, the court found that and that the artist had done nothing to prevent this. Ultimately, the EUIPO declared the trademark registration of Laugh Now .

Appeal

On October 25, 2022, the EUIPO Board of Appeal reversed the Cancellation Division’s decision, ruling that Banksy’s trademark registration for Laugh Now was not made in bad faith.

The Board found that the wide-scale commercial use of Banksy’s artwork had not been proven. Although Banksy makes his artwork available online for free downloading, he these images from being used for commercial purposes.

Furthermore, that a work of art subject to copyright protection could also act as a trademark. Registering a trademark to prevent others from using one’s work does not amount to bad faith when the applicant is the legitimate owner.

Moreover, the Board notes that the trademark was cancelled only six months into Banksy’s . During this time, the rights-holder is not required to use their trademark. In this case, it was for the Cancellation Division to assume that Banksy never intended to use the trademark or allow legitimate third parties to use it as licensees.

Finally, the Board reasoned that accepting Banksy’s statement that “copyright is for losers” as supporting a finding of bad faith .

According to Lee Curtis, a trademark specialist, this case is a for Banksy and Pest Control, as it allows the artist to maintain his anonymity, contributing to his artistic success. Full Colour Black has brought invalidity proceedings against 7 of the 15 European Union Trademarks (EUTM) filed by Pest Control on behalf of Banksy. In 6 of these cases, the Cancellation Division invalidated the trademarks, finding that they had been filed in bad faith. To date, Laugh Now is the only case successfully appealed.

Full Colour Black has expressed with the outcome of the appeal, noting that it is out of line with the Board’s decisions thus far. However, the company has no plans to appeal the decision.

Ultimately, the Board of Appeal’s decision clarifies that a trademark should be presumed to have been registered in good faith unless proven otherwise, leaving Banksy the one laughing now.

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Pankhuri Malik is an Osgoode LLM Graduate, IPilogue Writer and IP Innovation Clinic Fellow.

In keeping with our reports on the Unified Patent Court, it was announced on October 19, 2022, that the Administrative Committee of the Unified Patent Court (“UPC”) of 85 judges to the UPC. Further, in accordance with its statute, the Administrative Committee, also shared the composition of UPC’s Presidium.

Essentially, judges have been appointed to UPC’s Court of First Instance and Court of Appeal. Of the 85 Judges, 34 are legally qualified judges and 51 are judges with technical expertise in , including Biotechnology, Chemistry and Pharmaceuticals, Mechanical Engineering and Physics.

for a judgeship, the applicants were required to have experience in patent litigation, be a national of a contracting member state to the UPC, and have command over any one of the official languages of the European Patent Office.

The Court of Appeal will be presided over by Judge Klaus Grabinski, a German Federal Court Judge, and Paris Court of Appeal Judge Florence Butin who will be taking on the role of the President of the Court of First Instance. The Presidium is with five more judges from Netherlands, Sweden, France and Germany. Of these judges, three have been appointed to the Court of First Instance and the remaining two will preside over the Court of Appeal.

With the UPC consolidating patent proceedings for the entirety of the European Union, it is expected to host a multitude of legal proceedings. Since all the judges are working on a part time basis, it remains to be seen if the Court will be able to keep pace with the legal actions it is expected to adjudicate on. , at the local or regional division level, unless the parties agree otherwise, a bench of three legally qualified judges will hear each case. ��Technically qualified judges will only be included on the bench if a party or the panel requests it, or in cases involving a revocation or invalidity-based counterclaim. , a case in the Court of First Instance will be heard by a bench of three judges, two of which are legally qualified and one who is technically qualified.

The sunrise period of the UPC is expected to run from January 2023 to March 2023, giving patent holders the opportunity to opt-out of the jurisdiction of the UPC.

Evidently, the selected judges are from a wide range of legal, national and technical backgrounds. Many IP enthusiasts had previously raised concerns over the UPC’s composition, that the global pro-patent bias may trickle into the UPC’s decision making as well. While it is unclear as to whether the composition of judges balances both innovators’ and the public’s interests, the diverse backgrounds of the judges seem to reflect an effort towards attaining this equilibrium.

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Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

The proposed Artificial Intelligence and Data Act (AIDA) would introduce greater regulation of the use and development of artificial intelligence (AI) in Canada’s private sector. On June 15^th, 2022, the Minister of Innovation, Science and Industry, François-Phillippe Champagne introduced Bill C-27, or the . Bill C-27 reiterates much of , tabled in 2020, reintroducing a modified Consumer Privacy Protection Act (CPPA) and Personal Information and Data Protection Tribunal Act (PIDPTA). However, Bill C-27 also introduced newly proposed legislation like AIDA which, if enacted, would make long advocated-for changes to Canada’s AI regulatory landscape.

AIDA would create new assessment and risk-mitigation tools for the use and transparency of high-impact AI systems. It would establish persons responsible for monitoring AI systems, such as the Artificial Intelligence and Data Commissioner — their role is to assist the Minister in the administration and enforcement of AIDA. Monetary penalties for the AIDA contraventions are also set out to enforce trust and deter the reckless and fraudulent uses of AI. In this way, Bill C-27 and AIDA would direct Canada towards harmonization with international regulatory frameworks, like that of the .

With that being said, AIDA would be more limited in scope when compared to its EU counterpart. For example, unlike EU legislation, AIDA would not apply to both public and private sectors, and all federal government institutions would be exempt.^[1] Further, EU legislation sets out specific prohibited AI practices, alongside criteria for determining the degree of risk presented by any AI system. AIDA establishes no specific prohibited AI practices and distinguishes only between high-risk AI and all other systems; complex and salient matters are left to incoming regulation.

Beyond its limited scope, AIDA may be uncertain in its delineation of provincial and federal responsibilities. For example, AIDA’s consideration of “regulated activity,” would capture many elements of AI development and use, including “designing, developing or making available for use an artificial intelligence system or managing its operations.”^[2] This language indicates the legislation is pursuant to Parliament's trade and commerce power under section of the Constitution Act, 1867. However, the federal government may also intend provinces to legislate on intraprovincial uses of AI, notwithstanding the rarity of circumstances under which such AI systems would be developed.

Lastly, attention is required of the breadth of persons AIDA considers “responsible” for an AI system in the course of trade.^[3] It holds designers, developers and managers of AI systems subject to AIDA’s administrative and operational requirements. If those parties are expected to monitor or conduct audits of consumer deployment of AI systems, assessments must be made of risk potentials and mitigation from both perspectives. Additional regulation may be required in the full consideration of such perspectives.����

AIDA remains proposed legislation and may be modified prior to implementation. However, it represents a much larger move by international legal bodies to regulate the development and use of AI. Businesses must be prepared for greater AI regulation in Canada. Thankfully, informative and responsive policy for the consideration of AI systems is also being developed, such as a by the Law Commission of Ontario. If correctly applied, AIDA should empower more Canadians to engage with trustworthy and transparent AI systems.

^[1] This may be extended to exclude provincial departments or agencies by regulation as set out in s.3 of AIDA.

^[2] See s.5(1) of AIDA.

^[3] Ibid at s.5(2).

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Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 2L JD Candidate at Osgoode Hall Law School. This blog was prepared as a requirement for the Directed Reading: IP Innovation Program course, taught by Prof. Pina D’Agostino.

Artificial Intelligence (AI) technologies prevail all around us. Lawmakers are playing catch up by addressing what non-human authorship means for intellectual property as we know it.

Current AI and machine learning uses range from the����to the����for people with disabilities. More controversial areas of AI include its use in�������Ի���.

Causing just as much controversy is whether AI can be an author. Can AI produce original works? If so, should those works be protected by copyright? And who would own that copyright?��

Response from Copyright-granting bodies

These are questions that the Canadian Intellectual Property Office (CIPO) has been grappling with along with its counterparts in other jurisdictions (as others have previously written on and ). CIPO has reached a conclusion after they����to a piece of art����(along with a human co-author).

By comparison, the US Copyright Office Review Board has����that obtaining copyright protection��, citing that copyright law only protects those works that “are founded in the creative powers of the mind.”

In the EU, a 2009����established a test that describes originality as requiring an “author’s own intellectual creation.” Though the EU Court of Justice has not yet had a test case to define authorship further, there is a strong indicator in����of the need for a physical person.��

The Growing Powers of AI

Despite the mixed reactions from the governing bodies that have the power to issue or deny copyright protection to AI-authored works, the fact is that AI tools that can generate original works have arrived.��AI tools that����(one has even��),�� works��(including news articles), and����already exist. Countless more AI creations may be underway.��

The Legal Conundrum

The legal debate of who or what gets to be an author () will continue. Copyright law has been around since the 18th century, and the evolution of technology has allowed humans to reach new heights of creativity for mass consumption.

Much of the debate centers on the notion that only works born from a human mind (where computers and software were used merely as tools) are worthy of copyright protection. Yet, proponents of AI authorship have drawn an analogy between the novelty of non-human authors and the once novel notion of corporate personhood. ��have suggested the introduction of an����to protect “authorless” AI-generated works.

Even if, eventually, AI-generated works are protected by copyright, uncertainty remains as to��. Traditionally, the first owner of a copyright is the author, and other entities may be secondary owners (i.e., an author’s employer or publisher). For now, at least in Canada, ownership will be assigned to the person who arranged to create the work and not the AI that created the work itself.

Implications for Businesses Leading the Way for AI-generated Creations

What does the current ambivalent landscape mean for those looking to protect works authored by AI? The debate is far from over, and we will undoubtedly continue to see jurisprudence about AI-generated works. Businesses that have developed AI tools capable of generating original works with a view to monetizing these creations are in legal limbo.

For now, it seems developers of AI tools have two options. The first and arguably safer route is to designate the person overseeing the AI technology as author or co-author of its creation. This could help more rapidly monetize AI-Generated works, as courts determine whether AI-generated work can be copyright-protected and how ownership will be assigned.��The second and riskier option is to continue innovating and help spearhead the evolution of the law or else hold closely their potentially copyrightable assets. Should AI creations be deemed eligible for copyright protection in the future, those who have already developed AI technologies may be positioned to exploit intellectual assets early on.��

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. On Monday, March 7, Russian Prime Minister, Mikhail Mishustin signed a motion stating that payment to patent holders from these counties will be 0%. This means that, in Russia, it is legal for individuals to make use of or reproduce intellectual property originating from any of their enemy states.

Many countries, including the United States and Canada are refusing to do business with Russia in attempt to discourage their invasion of Ukraine. Russia first responded to these sanctions by declaring that they would pay back their debts to these countries only in rubles, which are currently valued at 0.0072 US dollars. Now, Russia attempts to combat sanctions by promoting intellectual property theft. The protection of intellectual property is important because it provides inventors with a level of control over how their inventions will be used. Russia knows that these rights are important to inventors and thinks by removing them they can pressure these states into lifting sanctions.

Russia’s ongoing attack on Ukraine has caused millions of Ukrainians to leave their homes, in search of refuge. Russia’s president, Vladimir Putin, claims Ukraine is a threat to Russia’s peace and security, and claims that it is a country that promotes bullying, genocide and Nazification. Putin’s claims are unfounded. Ukraine is a democratic state led by a Jewish president. This points to a larger issue of dictatorships and total control being in the hands of one person. Putin sees Ukraine’s democratic nature as a threat to his authoritarian control. Putin has served three terms as president. Under his leadership, Russia has experienced suppression of free speech in the media, corrupt election processes and prison sentencing for contrarian politicians and leaders.

There is no lack of consensus among the general population that these atrocious acts by the Russian government are unethical. However, because all states are sovereign entities, there is no authority that can force Russia to evacuate Ukraine. The United States is a very strong political and financial power. With them and many other states refusing to engage in business with Russia, the consequences for Russia’s economy could be dire. And without money, Russia will not have money to fund their war. The best response to Russia’s invasion of Ukraine would be to follow the actions of these countries that are imposing sanctions against Russia, and bankrupt Russia. No money means no power, and then Russia’s efforts to combat these sanctions will be of no effect because the country will have no power.

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On April 23, 2022, the European Parliament and Council reached a provisional political����on the Digital Services Act (DSA). Based on the principle that what is illegal offline should be illegal online, the DSA imposes digital regulations with the goal of stopping the spread of illegal content and ensuring the protection of users’ rights.

The rules set out in the DSA primarily apply to online intermediaries and platforms providing services in the European Union (EU), including online marketplaces, social networks, content-sharing platforms, and app stores. The legislation will impose obligations on regulated entities that are proportionate to the nature of their services and size of their user-base. For example, very large online platforms (VLOPs) and very large online search engines (VLOSEs) with more than 45 million active monthly users will have more stringent responsibilities than micro and small enterprises.

The DSA is set to impose a series of new requirements that will have a significant impact on online business:

1. Online Marketplaces: The DSA will impose a duty of care on online marketplaces in relation to the sellers who list items or services for sale on the platforms. These marketplaces will also have to collect and display certain information in association with listings to better inform consumers.
2. Risk Management: VLOPs and VLOSEs will be obligated to carry out an annual risk reduction analysis aimed at reducing risks associated with (i) the dissemination of illegal content; (ii) adverse effect on fundamental rights; (iii) the manipulation of services that affect democratic processes or public security; and (iv) adverse effects on gender-based violence, minors, and users’ health.
3. Dark Patterns: The DSA will prohibit the use of confusing or deceptive user interfaces and practices that are aimed at misleading users.
4. Recommendation Systems: To improve transparency, the DSA will mandate that VLOPs and VLOSEs offer systems for recommending content to users that is not based on their profiling.��
5. Crisis Response Mechanism: Influenced by the conflict in Ukraine, the DSA allows the European Commission to analyze the impact of VLOPs and VLOSEs on a crisis that is affecting public health or security. Based on this analysis, the European Commission may put in place select measures for the respect of fundamental rights.
6. Minors: Platforms will have to implement protection measures to ensure the online safety of minors, including prohibitions against targeted advertisements based on minors’ personal data.

The provisional agreement is subject to approval by the European Council and Parliament. Once adopted, the DSA will apply 15 months or from January 1, 2024, whichever is later, after entry into force. For the VLOPs and VLOSEs, the DSA will apply four months after their designation.

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Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

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Updated 30 September 2021

Patents can help inventors gain protection and recognition for their innovations, but patent litigation can often subject patentees to high costs and lengthy court proceedings. Europe may be on the cusp of a more efficient adjudication process with its proposed Unified Patent Court (UPC). , the UPC is an agreement among 24 countries to create a single expert patent court to undertake patent adjudication with binding effect across all contracting European states. Currently, all European Union (EU) countries , and Croatia have signed on. This means that the UPC could enforce rulings affecting over 300 million people. that the UPC is a dream, due to several delays in its initiation. Yet Germany’s of the Agreement on a Unified Patent Court (UPCA) announced on August 18, 2021 may bring the UPC into reality.

Germany is one of the , alongside France and Italy. The UK was previously in the top three, but since . In fact, the , as the country is such a key player in the European patent arena. With Germany’s recent ratification, the UPC hopes to initiate its operations . Will a Unified Patent Court increase accessibility to the patent process or create new roadblocks?

If the UPC rules on a patent infringement matter, this ruling would be binding across 24 EU states. In theory, this increased patent protection should benefit patentees. But at the same time, it may also leave patentees open to facing patent invalidity suits within the UPC, which would invalidate the patent across all member states. To this end, the , where patentees can opt-out of the UPC’s jurisdiction, thereby preventing invalidity challenges within the UPC but also leaving the patentee in the position of having to litigate infringement on a country-to-country basis.

Another potential benefit of the UPC is more expedient legal proceedings. The UPC can , minimizing duplicate actions across countries and preventing the risk of contradictory judgements. Further, one court should amount to one cost. The UPC may help reduce patent litigation costs by centralizing litigation. With reduced costs and time, perhaps the UPC is the ideal model for adjudicating patent protection matters for the future.

Many steps are still many steps involved before the UPC’s grand opening in mid-2022. Some member states must sign on to ratify the UPC and there are protocols that . But if the UPC does become a reality next year, having a court with a binding effect on 24 countries can help patentees settle international patent disputes in one court. The UPC’s continentally binding effect could provide patent rulings that are faster and cheaper for European patent holders.

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Across the world, policy makers in national governments, private sector and civil society, increasingly recognize the importance of small and medium-sized enterprises (SMEs) in the private sector as engines of sustainable national economic growth, job creation and exports. As a result, creating a suitable enabling economic environment for the growth of SMEs has become a key policy focus in most countries. SMEs make significant contributions to productive investments, meaningful job creation, value-added exports and eventually to the overall socio-economic growth and development of countries. A lot still remains to be done to ensure that the SMEs are fully equipped to benefit from the new opportunities and to deal effectively with the challenges posed by the quickening pace of globalization and the digital revolution that is radically transforming the way industry and business are run. This new situation highlights the importance of knowledge management, management of the intangible digital content, comprising of information, data, knowledge or intellectual assets, as never before in the evolving history of industry and business worldwide.

In the European Union, SMEs represent 99% of enterprises, excluding the non-agricultural market sectors and they provide gainful employment to more than 100 million people, which constitutes two thirds of the private sector work force and generate almost two thirds of the total turnover of all non-agricultural market sectors.

In Asia and the Pacific region, SMEs account for 90% of enterprises and provide 32% to 40% of employment. SMEs also contribute from 60% to 80% of GDP in individual Asia/Pacific economies.

In the United States of America, employment in Fortune 500 companies continues to drop.

In Latin America, SMEs make up more than 98% of enterprises and employ more than 80% of the work force.

In Africa, it can be surmised that SMEs make up more than 90% of all business and employ a substantial number of people, especially in urban areas.

SMEs therefore, are at the heart of the economic well being of most nations and any action aimed at enhancing their competitiveness has the potential of not only securing existing jobs and creating new ones, but also of creating, owning and sharing the fruits of economic wealth by the majority of the population in every country and thereby improving the quality of the lives of the majority in every country. IPwe have developed a key free AI tool that could be used to achieve this goal the Paradigm Report, at the moment we are focused on EUSMEs however there is no reason why this AI cannot benefit any SME, anywhere in the world.

As I mentioned earlier ninety-nine percent of all companies in the European Union are small or medium enterprises (SMEs). These SMEs provide two-thirds of private sector jobs and contribute more than half of the total added value created by all businesses in the EU. Despite many initiatives to increase the competitiveness of SMEs, enable better access to finance and increase commercial opportunities, EU SMEs are still failing to attract significant investment from the financial markets and missing out on commercial opportunities.

SMEs consistently highlight access to finance as one of the most pressing problems adversely affecting their business activity. Some progress has been made in improving the availability of financing and credit for SMEs through the provision of loans, guarantees and venture capital, but access to finance is still the greatest obstacle faced by individual SMEs. Enterprise-level companies searching for commercial partners have no way to quickly identify the most innovative SMEs within a particular industry based on verified information.

One of the biggest roadblocks that innovative SMEs face in gaining access to finance and commercial partners is the difficulty that commercial and financial partners have in identifying those exceptional and innovative SMEs.

Large enterprises face the flip side of that challenge: it’s hard to identify the most innovative SMEs that would present excellent opportunities for strategic commercial partnerships which could benefit both firms.

IPwe Paradigm is revolutionizing this by making it easy to identify highly innovative SMEs for potential commercial and financial partners.

There are several well-known facts that and have identified about SMEs and intellectual property (IP)1:

• SMEs are the backbone of the European economy
• SMEs with IP are significantly more likely to experience growth and even become high growth firms (HGFs)
• Patent filings perform best as HGF predictors in both high-tech and low-tech industries and trademark filings perform best in consumer durable industries
• SMEs that have bundles of IP (patents, trademarks and other IP assets) are even more likely to achieve high growth.

Using game-changing technologies such as artificial intelligence (AI) and blockchain, IPwe has created an IP profile for EU SMEs that is publicly accessible and free. Each profile highlights the IPwe Paradigm Score which is an algorithmic-based score of the competitive strength of the SME’s patent portfolio within its industry.

IPwe uses a proprietary method of assessing the quality of the SME’s verified patent assets held in the EU, along with other important factors such as the commercialization and monetization potential of those assets and recent technology trends in global markets.

Read the full article .

Alexander Weir is a Business Mentor for Prince's Trust in the UK. He has a BA Hons in Politics from the University of Hull and a Master of Laws from NYU in IP, Innovation and Information Technology.

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Certainly, (unlike some jurisdictions) the EU has been no shrinking violet when it comes to regulating the tech super-giants. The problem is that the debate around the Directive has, to a significant extent, been framed as a competition between publishers, media companies, artists, and record labels on the one side, with internet content sharers (like Google and Facebook) on the other. The point of copyright law, and IP law in general, often gets lost in the scrum between rights holders and users. But as emphasized by Professor , it is important to remember that, “the public is a third party to all [IP] litigation.”[1]��The focus on the public interest should be at least as significant when it comes to IP legislation.

In that spirit, while there are certainly arguments to be made on behalf of both content producers and content sharers, it is worth zeroing in on the views articulated by the Office of the United Nations High Commissioner for Human Rights. In a , Special Rapporteur David Kaye raised several concerns with respect to the proposed Directive. After outlining some of the international human rights law as pertains to the dissemination of intellectual property (which is certainly an interesting read to the unacquainted), Mr. Kaye raises three specific areas of concern, which I will proceed to briefly summarize.

Firstly, the Special Rapporteur aptly points out that the proposed Directive inappropriately incentivizes the ‘pre-publication’ censorship of content. That is to say, the language of Articles 13 and 19(3), “raise[s] pressure on content sharing providers to err on the side of caution,” and as such, “monitor and filter user-generated content at the point of upload.” This creates a restriction on freedom of expression without judicial review – indeed, to me it appears the EU has moved to deputize content sharers as judicial arbiters when it comes to deciding what content they can provide access to.

Secondly, this very concern about “extrajudicial mechanisms” is not allayed by the built-in dispute-resolution mechanism of Article 13(7). Mr. Kaye’s main concern here appears to be that due process rights may be infringed, especially given that the parties being asked to rule on the appropriateness of content are not impartial actors, but rather tend to be for-profit businesses with fiduciary responsibilities to their shareholders. Furthermore, these actors are themselves limited in the scope of remedy they can provide for human rights violations, which means that harms may not be adequately redressed, even if access to content is later re-established.

Lastly, because Article 2(5) of the proposed Directive sets out an ambiguous set of criteria for determining what is expected of smaller and non-profit content sharers, rather than providing a clear exemption, there is a significant concern as to whether these types of organizations will be able to pursue the kinds of licence agreements that would be required under the Directive. This might ultimately have anti-competitive effects, stifling the ability of smaller content sharers to grow and challenge larger, more established players who can afford licensing.

The EU Copyright Directive is thus a prime example of the implications that IP law can have on personal and civil rights. With the spotlight that Brexit shines on long-held concerns about the political and democratic accountability of EU institutions, it is important, now more than ever, that the EU focus on clearly considering the public interest, not just the interests of lobbyists on either side. It is difficult to say whether the Directive, as passed, discharges this burden.

Peter Werhun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School

[1] David Vaver, Intellectual Property Law, 2nd ed (Toronto: Irwin Law, 2011) at 14.

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However, also in Spain, scores of people are fighting against the erasure of their country’s hideous past. They are seeking the right to “remember” the truths about the Franco-era crimes.��Stories about some of the victims of those crimes are featured in the award-winning documentary The Silence of Others, which was screened in Toronto at the 2018 Hot Docs International Documentary Film Festival.

The Silence of Others chronicles the story of the victims of Spain’s 40-year dictatorship under General Francisco Franco and their ongoing quest for justice. Filmed over seven years, their story is brought to life through magnificent cinematography and masterful storytelling. In the process, directors Almudena Carracedo and Robert Bahar amassed 450 hours of footage filled with voices of despair and hope.

“How unjust life is… Not life. We humans… we are unjust,” reflects an 80-something-year old woman by the name of as she sits by the roadside where her murdered mother’s nude body was ditched by Franco’s local militia eight decades ago. Ascención Mendieta, on the day of her 90^th birthday, flies from Madrid to Buenos Aires in her tireless mission to have her father’s remains unearthed from a mass grave. Also in Madrid, José María “Chato” Galante lives a stone’s throw away from his former torturer. What’s more, tens of thousands of women today are still searching for children stolen at birth, decades after Franco’s death.

The Silence of Others is not only a history lesson on the Franco era, it is also a lesson on the principle of universal jurisdiction in international law. Spanish courts have made use of universal jurisdiction to prosecute cases of crimes against humanity committed in Argentina, Chile, Guatemala and El Salvador. ��Eighty years on, however, Spain is reluctant to reckon with its fascist past. Franco died in 1975. Two years after his death, Spain passed an amnesty law, known as the “pact of forgetting,” that pardoned the crimes of the Franco regime. Today, victims and relatives of Franco’s crimes are seeking to annul the controversial amnesty law and to prosecute Franco’s surviving lackeys in Argentinian courts.

The Silence of Others won the Audience Award for Best Documentary at the Berlin International Film Festival. At the Hot Docs festival in Toronto, Carracedo and Bahar received standing ovations at their film’s screenings, where Osgoode Hall Law School's journalist in residence, caught up with them to ask a few questions.

How was The Silence of Others born?

Almudena Carracedo (AC): Firstly, on a personal level, this is a story that my generation in Spain had somehow left buried in the past. That bothered me a great deal and eventually I felt the time had come to confront it. Secondly, when the story of Spain’s “stolen children” began to come out in 2010, and it became clear that the story of those crimes had been occurring throughout the Franco era, we began to follow stories of mass arrests, torture, forced disappearances and extra-judicial killings.

Robert Bahar (RB): I’ll just add an international perspective. In the United States, we study a little about the Spanish Civil War. We learn about Guernica and Hemingway, but we really don’t know much about the dictatorship that took place forty years afterwards. And we certainly did not learn anything about the amnesty law and the decision to forget.

So, this kind of situation immediately made us think of the Truth and Reconciliation Commission in South Africa and truth and reconciliation processes in other countries emerging from repressive regimes. So, we wondered: how could it be that Spain had had no Nuremberg Trials, no Truth and Reconciliation Commission; that there had been no consideration for justice and reparation for the victims; that no one had considered what should happen to perpetrators; and, above all, how do we guarantee that these things will not be repeated? And so, if you have that frame and the fact that there had been no attempt to deal with the situation in Spain and that there were victims whose stories were unfolding in the film, there was a very powerful desire to tell that story. So, we began filming the process of the “Argentine lawsuit.”

Spain was instrumental in enabling the prosecution of cases of crimes against humanity in Chile, Argentina and elsewhere. Demands for justice for the victims of Franco’s crimes are being denied on the basis that there is a statute of limitations on those crimes. This appears to be a contradiction. How has the Spanish public reacted to this contradiction, which is very clearly illustrated in your film?

AC: Unfortunately, there is a tendency to judge other countries for their crimes – particularly countries of the global south – and to overlook crimes committed within your own territory… In Spain, people were absolutely scandalized about the case involving Argentina’s 500 stolen children, but in Spain we are talking about, at a very minimum, 30,000 cases which were registered up until 1952. Now, just imagine the number of cases registered from 1952 up to the 1980s!

Therefore, one of our goals in making this film is to let Spanish society find out what happened in their own country… What do we do about all this now, in 2018? What do we do about the tens of thousands of people who don’t know who their parents are or that they had even been stolen? What do we do about the more than 100,000 people that were secretly buried in mass graves? What do we do about the people who were victims of torture? And what do we do about their torturers who freely walk the streets?�� We sincerely believe that people in Spain are democratically mature enough to face all this.

Many people argue it is time to turn the page and leave the past behind. So, why tell that story now?

AC: People who argue that it is time to turn the page and that one ought not reopen old wounds don’t suffer from those wounds to begin with. Let’s be clear, the surviving victims of Franco’s crimes are still suffering from those wounds as they were never afforded the chance to heal from them in the first place.

RB: In addition, the social movement that was growing and led to this movement -- which we were fortunate enough to document -- also reflects that this is the moment in which these questions can be addressed. Today, I think that young people in Spain are ready to reckon with its bloody, divided past… Many of them feel that they had been robbed of their own history.

There is also a sense of urgency. If you look at the ages of the victims and of perpetrators you realize that you probably have between five and twenty years to deal with this situation.

This is a story that will resonate in Spain and around the world… We have received requests to screen our film in Colombia, Algeria, Lebanon, the Balkans and Sri Lanka where there are transitional post-conflict kind of processes taking place. In many ways, the film tackles important questions about the search for truth, justice, reparation, non-repetition, and it offers a model of how a small group of victims can sit at a kitchen table – in this case, at the home of counsel Carlos Slepoy – to organize and use universal jurisdiction when their own government won’t pursue crimes committed in their own countries.

While the film’s protagonists appear to be fighting for the “right to remember,” there are many people in Spain who are currently fighting for the “right to be forgotten.” Indeed, the landmark “right to be forgotten” case originated in Spain. How does this story fit in with the so-called “right to be forgotten”? ��������������

José María “Chato” Galante: There is absolutely no connection. As far as the “right to be forgotten” is concerned, the Spanish lawyer with unpaid debts appeared before the courts and went through the legal channels where he eventually received his sentence, etc. In our case, we are seeking access to justice. We are asking that our cases for crimes against humanity be heard in a democratic court; that our perpetrators be brought to justice to be tried and legally prosecuted; and, if found guilty, that they be convicted for those crimes.

After forty years of being denied access to justice, we are essentially being asked, or rather forced, to forget and even to forgive those who tortured us and those who committed heinous crimes against us. We are asked to do so even though the perpetrators of those crimes have not been tried in court. What’s more, we are being forced to forgive even though they have never asked for forgiveness.

Without considering the merits of the case involving the Spanish lawyer, his is one of common criminality. Our case involves crimes against humanity, not common crimes, and therefore they must be tried in court under the laws of universal jurisdiction for crimes against humanity. These crimes cannot be forgotten. Crimes against humanity must be prosecuted, and they must be recorded in history.

Roxana Olivera is currently a Journalist in Residence at Osgoode Hall Law School.

The post The Right to Forget and not Forget in Spain appeared first on IPOsgoode.