Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Abigail Barlow and Emily Bear combined their talent with their love for the Netflix Original, Bridgerton, to create the 15-song “Unofficial Bridgerton Musical” album. Barlow and Bear went on to become viral sensations on social media and (2022 Best Musical Theatre Album) for their production.

On July 29^th 2022, Netflix the TikTok stars Barlow and Bear in the U.S. District Court in D.C. alleging in violation of 17 and . Netflix Barlow and Bear have benefited from their album’s false association with the Bridgerton brand. Netflix also the position that Barlow and Bear “” the elements of expression, dialogue, characters, and key plot points from Bridgerton.

Allegedly, in March 2021, when Barlow and Bear’s team asked Netflix for permission to record their album, Netflix the activity but said they wouldn’t “”. Per their , Netflix told Barlow and Bear that they would not authorize any live performances of the songs. Despite Netflix’s statements, in July 2022, Barlow and Bear held a sold-out show in New 91��ɫ with ticket prices ranging from $29-$149+. When hearing of the future live shows Barlow and Bear had planned, Netflix that would permit their shows, continued distribution of the album, and any further performances of the Bridgerton-inspired songs; but Barlow and Bear refused the licensing option.

Perhaps more important for Netflix is the promotion and success of their event “Queen’s Ball,” a Bridgerton held across multiple cities. Barlow and Bear’s live show would likely compete with the profits of the “Queen’s Ball.”

Barlow and Bear hold the position that their work is not liable for IP infringement because it is inherently “fan fiction.” Netflix has that “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” Jane Quinn, author of the books of which Bridgerton is based has a difference between flattery through composing songs on TikTok and performing an album for commercial gain.

Barlow and Bear may use the “fan fiction” defence to claim their work is not an infringement based on fair use by proving the elements of fair use: the art is to the original show. Additionally, fan fiction must be for the creator. considered for establishing fair use are the purpose of the work created, nature of the work copied, measure of the material copied, and the impact on the market.

Ironically enough, if this case was filed in Bridgerton home territory, the UK, Barlow and Bear may attempt to use the defence of parody and pastiche. Netflix would likely win their case had it went to court based on ��a very similar case earlier this . ��In the of v. Only Fools The Dining Experience, the court ruled in favour of the creators of the original show because the nature of the “dining experience” was not so removed from the original show “” with it. Similar to Netflix, Shazam had their own musical for which sales could have been diverted by their audience choosing the dining experience instead. The court also found that that the defences of parody and/or pastiche did not apply.

TikTok has proven since the pandemic its unique power to make music, books, and tv/film over-night sensations. The Netflix v. Barlow and Bear case illustrates that companies may have to navigate between having its work become a positive viral sensation ��while still protecting their business interests and the content that its ��team has worked so hard to create.

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

Web resources survive only if a third party preserves them, and not all third parties initiate the preservation of web-based content. A website owner may abandon one hosting platform for another, or an author might remove content on their own accord. As content changes or is removed, hypertext links that direct a user to a resource are disrupted. In each case, hypertext vulnerability threatens the integrity of resulting scholarship, as footnotes may no longer support the claims they purport to.

This phenomenon is known as link rot or reference rot. Link rot occurs when URL hypertext fails to direct an individual to a targeted file, webpage, or server, due to that resource being relocated or unavailable. Colloquially, these links are broken or dead. occurs when a hypertext link remains active, but the information referenced by the citation is no longer present or has been modified. There are limited surveys on the nature of link rot in Canada. However, of Electronic Thesis Dissertations deposited between 2011-2015 at Concordia University, determined that nearly a quarter of hypertext links cited exhibited linkrot.

, developed by the , is the largest caching solution to link rot used by authors and journal editors to integrate the preservation of cited material with the act of citation. Although used primarily by American institutions, the tool has also been adopted by some Canadian universities. When a user creates a Perma.cc link, Perma.cc archives the referenced content and generates a link to an archived record of the page. Notwithstanding changes to an original source, the archived record is always available through the Perma.cc link.

However, Canadian institutions might be wary of the adoption of Perma.cc for two reasons. First, Canadian “data sovereignty” — Canada’s right to control the access and disclosure of its digital information subject only to Canadian laws — is at increased risk if the preservation of our academic output is subject uniformly to American intellectual property law. Similarly, Canadian citations and reference information could be shared with foreign governments, potentially without fair notice.

Second, federal, and provincial governments have gone to lengths to promote Canadian “.” Data residency aims to ensure that valuable information is stored within and accessed from inside of Canada. This protects information by making reasonable and localized security arrangements to prevent unauthorized access, collection, use, disclosure, or disposal. Additionally, it also better allows for data to be kept under the laws and policies of any province or territory.

It must be acknowledged that several attempts have been made to address link rot in Canada. For example, programs like provided an on-demand archive site, designed to digitally preserve scientific and educationally important materials. However, such endeavors , institutional backing, and effective monetary resources to sustain themselves long-term. For Canadians to better preserve academic output, the creation of a Perma.ca may be our best bet.

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Raenelle Manning is an IPilogue Writer and 2L JD Candidate at Osgoode Hall Law School.

Meta platforms (“Meta”), formally known as Facebook, is the leading developer of the Metaverse. The Metaverse is described as a of the internet where users can participate in a variety of activities, some of which include attending concerts, playing games, buying digital clothing, and working. People can enter the Metaverse through virtual reality (VR) headsets, augmented reality glasses, smartphone apps, and other devices. While inside, users are represented by a Through the avatar’s point of view, one experiences the avatar’s virtual reality. Essentially, the Metaverse is a virtual simulation of the physical world. ��However, a recent report from , a non-profit advocacy organization and online community that campaigns to hold corporations accountable, suggests that the darkest aspects of the physical world have manifested in the Metaverse.

Sexual Assault in the Metaverse

A �� researcher��wanting to study users’ behaviour on Meta’s social networking platform, , reported that her avatar was sexually assaulted only an hour after she entered the virtual space. Her avatar was led into a private party room where a male user sexually assaulted her while also making lewd comments. Meanwhile, other users outside the room watched and passed around what appeared to be a digital vodka bottle. The researcher expressed that although she was not physically harmed, the experience left her feeling disoriented and confused.

This is not the first time that VR users have reported abuse in the Metaverse. In December 2021, a woman published an article on describing her nightmare of an experience in the Metaverse. She explained that she had been harassed and sexually assaulted by a group of male users only one minute after entering Horizon Worlds. She also admitted to feeling helpless and being unable to access the safety features during the encounter.

What Makes the Experience Feel So Real?

The Metaverse is designed to give users an immersive experience; they are meant to psychologically feel like they are in the environment. This is achieved through immersive like��acoustic input for the ears, haptic simulation for touch and high-resolution imagery. For example, ��if you have either played or seen videos of people playing , the experience feels eerily realistic; you feel like you are actually the target of a zombie attack. The can make it difficult for the mind and body to differentiate between the physical and virtual world. This lack of discernment between reality and VR demonstrates the severity of this situation, and��how traumatic it must feel to experience sexual violence in the Metaverse. Although the user’s body is not being physically violated, the experience may render significant psychological impacts.��

What is Meta Doing About This?

The Metaverse has default safety features like “”, which prevent users from coming within a four feet distance from each other. They recommend not turning this feature off when interacting with strangers. Another safety feature called, “”, allows users to immediately transport to an isolated area. These features still seem to put the onus on the users to protect themselves against cyber assault. Nick Clegg, Meta’s president of Global Affairs, stated in a recently published “ In the physical world, as well as the internet, people shout and swear and do all kinds of unpleasant things that aren’t prohibited by law, and they harass and attack people in ways that are. The metaverse will be no different. People who want to misuse technologies will always find ways to do it.”��While this statement may be true, the current minimally-moderated nature of the will inevitably allow abusive and harmful behaviour to thrive.

Conclusion

There are calls for increased user regulation in the Metaverse. However, the prevailing response is that moderating user’s behaviour will be practically impossible because these in real time and are thus difficult to track. We have seen first-hand, on networks like Twitter and Facebook, that as online communities expand, it becomes difficult to monitor harmful behaviour and content. The immersive nature of virtual reality arguably warrants serious consideration about what more can be done to protect users from virtual violence. The Metaverse is still in early stages of development and it is anticipated to significantly transform the future of human interaction. Meta and other companies involved in the Metaverse’s development should work to minimize the potential harms associated with their products to ensure users’ safety, as a company would in our non-virtual lives.

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Somewhere out there, there is an old photograph of a very young child standing completely naked, showing the marked signs of a most unusual medical condition.

I met that child when she was well into her old age, one winter afternoon over a decade ago.

Mariana (not her real name) had just returned from the cemetery where her husband is buried. Dressed all in black, her hands clutching a small-change purse wrapped in a clear plastic bag, she regarded me warily when she saw me waiting by her front door.

‘I am not Mariana’, she protested when I greeted her by name. ‘I am her sister. What do you want from her?’

But I knew she was Mariana. There were dark circles under her droopy eyes, just as in the photo that had accompanied the news of her medical case several decades earlier. Her hands trembled as she tried to unlock the door to her crumbling plastic-roofed shack.

I explained that I had just finished reading a recent book about ‘her sister’ and that I only wished to speak to her about conflicting information contained in that publication, as I was conducting research about her medical condition.

Mariana listened in perfect silence, eyeing me suspiciously. Upon hearing the name of the author of the book, her nervousness turned to fury.

‘God knows whether that man is even a doctor! Are you a friend of his? Did he send you here? Why on earth should I give a damn about your research?’ she shouted, veins throbbing at her temples. ‘I am��not��a guinea pig!’

Mariana’s reaction startled me.��Unknowingly, I had opened old wounds, and I felt profound guilt for making them fresh again. My unexpected visit, as it turned out, was just another one of those harassing knocks at the door that she had endured throughout her life.

‘I recognize you!’ she snapped, jabbing a finger at my face. ‘You have been following me’.

I tried reassuring her that this was not the case, but Mariana struggled to take my word for it.��Her privacy has been repeatedly invaded by complete strangers since childhood. Treating her as an object of their curiosity, her emotional wellbeing has been collateral damage. She now finds it difficult to trust anyone.

‘Please forget me,’ she then said, her voice cracking. ‘I just want to be left alone’.

LOOKING FOR ANSWERS

Mariana’s photograph was originally taken without her consent in the course of a medical examination, years before the internet existed. Soon after, it was published in a French medical journal, along with her full name and medical details. Her story then appeared in newspapers and magazines around the world. Decades later, when it was posted online, the photograph quickly went viral, taking on a life of its own. It has now been viewed millions of times, making it impossible for her to be left in peace.

Throughout her life, perfect strangers have invaded her privacy without regard for her emotional wellbeing

Unquestionably, the circulation of such sensitive material violates Mariana’s privacy, dignity and family-life interests as guaranteed by national laws and international human rights treaties. Less clear, though, is the practical question of how one goes about stopping the infringement of these rights. What can be done to stop the circulation of harmful (and non-consensual) content of this nature? Where does one even begin?

Haunted by Mariana’s lifetime of distress, and in search of answers, I landed at Osgoode Hall Law School in Toronto.

As journalist-in-residence there, I worked from 2017 to 2019 with a team of 20 law students and 18 law professors, alongside lawyers from several countries, on a project entitled ‘A Child’s Right to be Forgotten’. Our objective was to analyse Mariana’s case and find a potential solution to this extraordinary situation.

After a careful examination of multiple areas of law and a plethora of expert opinion – from legal academics, jurists, ethicists, medical professionals, trauma psychologists and scientists – we pursued several lines of approach.

COMPLICATED MATTERS

First, we considered copyright law to try to stop the circulation of the photograph. Given that it had been first published in France, UK legislation presented an opportunity to undertake corrective measures. Through the Berne Convention, the UK and France recognize each other’s copyright regimes. In France, the copyright was technically still valid – provided it could be established that the photograph was an intellectual creation under French law. If Mariana’s picture was being published online without the authorization of its owner, a request could be made to the rights holder, we reasoned, to revoke any use not bound by contract.

But we ran into difficulties locating the owner of the copyright as the image had no credit line. We tried contacting the medical journal in France, only to discover that it had since been acquired by another publisher, Elsevier Masson.

We reached out to Elsevier, but, surprisingly, they did not know whether or not they owned the copyright.

In a baffling email response, an employee from the company’s copyright unit wrote: ‘[W]e are unable to confirm that we are the legal copyright holders of the figure… and that we are entitled to deliver permissions to third parties. Therefore, although Elsevier Masson has no objection for you to use the aforementioned material subject to suitable acknowledgement to the source, it is important that you obtain, prior to use, written permission from the author(s) (or heirs) of the figure…’.

The only possibility of finding out who held copyright for the photograph was to ask the publisher if they had kept a copy of the contractual agreement with the photographer. But that turned out to be a dead end.

FURTHER INTO THE MAZE

Next on our list was image rights legislation. The island of Guernsey has legislation for the protection of a person’s image rights. This is a somewhat niche course, used mostly by celebrities, enabling them to register their image rights there and bring legal action against breaches. It sounded promising, but only Mariana, or someone acting on her behalf with her consent, could assert those rights. Seeing how Mariana avoided all contact with outsiders, and determined to prevent exacerbating her trauma by raking it all up again, we couldn’t pursue this route further.

We then looked into data protection and the right to be forgotten as a new line of inquiry. As it is in the EU, personal data is protected in Mariana’s country. Given that Mariana has not consented to the use of her personal information on the internet, a request can be made to those��processing��her information to remove it. This can be accomplished pursuant to her country’s Data Protection Act.

Better still, a request can be made directly to search engines (as opposed to individual websites) to remove search results containing infringing content. While this course of action normally would require Mariana’s direct intervention, there is a legal provision that makes it possible for a third party to lodge a formal complaint of infringement with the National Authority for the Protection of Data in that country. Mariana’s consent was not required for this action.

Encouraged by this new window of opportunity, we prepared to make our move. But soon other complexities arose. The complaint to the regulatory agency had to be filed in person, which we did – even though this required a long-distance trip. After securing the assistance of lawyers with relevant experience in Mariana’s country, we proceeded with a complaint against Google for infringing on her rights. But then, bureaucracy took on a Kafkaesque turn.

Our case was deemed inadmissible. Why? It turned out that Mariana’s consent was required after all for any action initiated to remove the very material that had been originally made public without her consent. But had Google obtained Mariana’s consent before making her personal data public online? Of course not. Could the regulatory agency make that inquiry? They failed to address this question. Two appeals later, our case was closed.

We then resorted to a non-legal approach. Bearing in mind that there is public interest in this matter, as well as a legal and moral obligation to put an end to decades of harm, we brought the case to the attention of five United Nations special rapporteurs seeking their intervention. Unfortunately, that avenue produced no fruitful outcome either.

A letter was then sent to Elsevier briefing them on the serious privacy impacts of the use of Mariana’s name and image in their publications. Would they consider removing them? Or at least blurring her face when using that image and anonymizing her details? It went unanswered.

No matter what we tried, we came up against hurdles.

THE BIGGER PICTURE

At the end of the day, this work is not just about Mariana. Her story is part of a much bigger picture.��It is the story of countless vulnerable people being harmed by the online circulation of intrusive content, while internet intermediaries profit from such material.

According to trauma psychologists, Mariana will likely never be able to develop trust in others. The consequences of her childhood trauma and public exposure are profound, dramatic and long-lasting. And that is to say nothing of the strangers interested in her story, whose curiosity makes her relive her trauma again and again.

Countless vulnerable people are being harmed by the online circulation of intrusive content, while internet intermediaries profit

The literature on image-based abuse suggests that the re-posting of such images is, in and of itself, a form of abuse. The online availability of the images causes great damage to survivors.

Taking into account Mariana’s lack of agency, it is unreasonable to expect her, or someone in a similar situation, to stand up to tech giants and fight for her right to privacy. Given that online material can be shared globally, it is challenging to identify the jurisdiction in which infringements take place.

Even when there is agency, case law shows that filing a take-down request against search engines and social media platforms is onerous. While they boast about their global reach and presence, they can be quick to argue that they are based in the state of California and are not bound by laws outside that jurisdiction.

Mariana’s story is a cautionary tale of the consequences of failing to remove harmful content from search engines and the internet. Privacy matters. To protect it, regulation is essential. But legislation also needs strengthening to be sensitive to the trauma of those suffering from the unwanted online distribution of harmful personal data.

Remember that behind a photo there is a real person; it’s not just an image waiting for a click of your mouse.

The post A Child's Right to be Forgotten appeared first on IPOsgoode.

Aishwerya Kansal is an��IPilogue���°����ٱ�r, IP Innovation Clinic Fellow,��LL.M��Graduate (2020) at Osgoode��Professional Development, and IP Law Clerk at��Bereskin��& Parr LLP.��

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OVERVIEW OF CLOUD COMPUTING

Cloud Computing has become an important technology in promoting global businesses during the pandemic. The technology has helped facilitate remote work. One of its most significant benefits is lowering the costs to store, retrieve, and maintain the security of data. However, cloud storage and data services raise several legal issues for cloud computing providers and users. There are multiple Cloud Service Providers (CSP) such as Amazon, Google, Verizon, Sales Force, and Microsoft, giving customers several options to choose from. Distributed data, stored in multiple locations, have shown to be cost effective, reliable, scalable, and fault-tolerant. However, consumers may be unaware of the technology’s enormous potential and the need for it to be . In order to prevent complications, consumers should be widely aware of recent advancements in cloud technology’s potentials and the evolving regulatory landscape.

Could computing is a form of software technology which provides information services on a virtual platform without the need for extensive infrastructure and dedicated access points. Common forms of cloud computing include . SaaS is a software application over the internet which allows users access rather than allowing storage and local use. Any application that is run through the cloud service falls under this category. Dropbox is a form of SaaS, whereas Microsoft windows, a computing platform, is a form of PaaS used for running or developing applications.

Cloud computing’s rapid growth leaves limited time for identifying and implementing the regulatory frameworks necessary to protect users’ privacy and data security. Efforts to build a unified regulatory framework have already begun. Enthusiasm about building a unified framework has created common ground among nations about information privacy regulation.[1] For example, the rolled out a comprehensive proposal addressing general data protection regulations (Draft Data Protection Regulation).[2] Similarly, the United States Federal Trade Commission introduced its bill aimed at data privacy for consumers in addition to providing a detailed report in 2012 titled “Protecting Consumer Privacy in an Era of Rapid Change" ("FTC Report 2012"). Despite efforts to protect users’ cloud data, some legal issues remain unresolved.

LEGAL ISSUES IN CLOUD COMPUTING

Cloud computing involves collaborative efforts from different parties in providing services. Therefore, ��it is challenging to ensure compliance with a regulatory framework if one were to be put in place. A few of the underlying issues involve . In order to attempt to resolve these issues, the law needs to address the following items : (1) regarding storage and transfer of cloud data, (2) data ownership issues, and (3) control and access to cloud data.

From the user’s perspective, a major issue is the location of the data storage and the data transit which depends on factors like contractual obligations as well as the service and deployment model between the CSP and users. Under some circumstances, CSPs have chosen to confine the routing of information to certain locations. In cloud technology, data’s exact location cannot be easily established. The law is particularly ambiguous with respect to . Therefore, it is crucial that users take the issue of data storage locations and transit routes into account before moving their data to cloud. Though data should be owned by the user who uploads it to the cloud, the service level agreements (SLA) and CSP contract should explicitly state possession, custody, and control including the ownership and access to the information stored in the cloud. Users’ dependency on cloud computing services, along with an increased difficulty in controlling, accessing, and owning data, will grow in the absence of laws regulating cloud computing services. Service providers and other contracting parties should have bargaining power when deciphering standards of agreement clauses.

The federal government in has laid down on businesses when they engage in collecting, using, and disclosing personal information. Canadians mostly use cloud-based services provided by the United States and other countries. It is implied that private sector privacy legislation does not prohibit entities from using a foreign service provider. The Federal Commissioner has asked that any entity in should inform its customers of this practice and provide information about the foreign country’s laws on data privacy. In Canada, in a class action lawsuit against Facebook. Cloud computing services are not limited to external online storage used by social media and email services. Many other internet services involve cloud computing. The court in the class action against Facebook had to decide whether the social media company was reasonably notifying its users of principles governing their privacy policy and whether they were mentioned in advertisements on the platform.

CONCLUSION

Cloud has provided new options for storage and transmission of data. It has also introduced a whole new gamut of risks. Simplification of the laws is essential in promoting widespread adoption of cloud technology. The need for simplifications was concurred by the World Economic Forum. A standardized approach to the privacy and security of data with respect to cloud services would benefit the consumers and service providers in any disputes that may arise. Once adequate regulation for cloud computing is in place and rights and liabilities of users and service providers are well laid out, the industry could ��go on to Effective regulations would address rights and liabilities, while having flexibility to incorporate future developments in the field.

��

[1] Nancy J King & VT Raja, "What do They Really Know about Me in the Cloud: A Comparative Law Perspective on Protecting Privacy and Security of Sensitive Consumer Data" (2013) 50:2 Am Bus LJ 413

[2] Commission Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), at 1, COM (2012) 11 final (Jan. 25, 2012) [hereinafter Draft Data Protection Regulation], available at http://ec.europa.eu/justice/data-protection/ document/review2012/com_20121 len.pdf.

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The 5G network

The Next Generation Mobile Networks (NGMN) describes 5G as “an end-to-end ecosystem” that is expected to “enable a fully mobile and connected society”. The most prominent include fixed-wireless access, ultra-reliable low-latency (high volume of data messages with minimal delay) communications, enhanced mobile broadband and massive . The effective implementation of the 5G vision could translate into driverless cars, virtual or augmented reality experiences, , robotics and . However, the proposed 5G use cases rely on , pertaining notably to latency, throughput, reliability and transmission character.

To address all of these use cases, networks need to become more flexible. This is achieved through , a form of virtual network architecture built on common shared physical infrastructure. Each network slice consists of an independent set of logical (software-based) network functions that support the requirements of the specific use case. For instance, the driverless car will rely on vehicle-to-anything (V2X) communication, which requires low latency but not necessarily a high throughput, while a streaming service being watched while the car is in motion will require a high throughput and is susceptible to latency. are thus employed to optimise the use of the physical network. This can also enhance , by isolating attacks on the network slice, given that security poses the biggest challenge as these networks evolve, according to Ray Lahoud, Chief Operating Officer at Allstream.

Network slicing relies on and . SDN the data and control planes, which, along with the management plane, constitute the three basic components of a telecommunications . By removing the control plane from network hardware and implementing it in software, SDN enables programmatic access, making network administration much more flexible.��While SDN enables network slicing, the NFV architecture is employed to and its constituent resources, and orchestrating their allocation to realize the virtual network functions (VNFs) and network service.�� In a nutshell, NFV provides the ‘what’ (virtualization architecture) and SDN provides the ‘how’ (Application Programming Interfaces and control protocols) to .

SDNs can be deployed today leveraging existing Application Programming Interfaces ().�� APIs constitute a point of interaction between a number of systems. From the users’ point of view, APIs allow them to complete the action . APIs speed up the communication between apps and platforms, allowing service providers to deploy innovative high-quality services by bypassing one-on-one, costly and time-consuming proprietary integration. As Ibrahim Gedeon, Chief Technology Officer at Telus, described it, before embarking on any technological transformation journey we need to “speak the same language to talk about innovation”, which in turn translates to the need for a .

Network softwarization is paving the way towards X-as-a-Service (XaaS). XaaS refers to the concept that , including the functions that control a telecom network, notably Software as a Service (SaaS), Platform as a Service (PaaS) and Infrastructure as a Service (IaaS). With these resources made available by , telecom service providers maintain a major influence over the services they buy, while offloading the costs of Research and Development (R&D), security and optimization. XaaS extends , with Transportation-as-a-Service offered by Uber and Lyft, Grocery-as-a-Service by Safeway and Whole Foods, and Accommodation-as-a-Service by Airbnb.

New Business Models

According to the NGMN , 5G is expected to “empower value creation towards customers and partners, through existing and emerging use cases, delivered with consistent experience, and enabled by sustainable business models.” Essentially, this means that telcos will start shifting from their traditional Business-to-Customer (B2C) to a Business-to-Business (B2B) business model, by opening their networks to other stakeholders and allowing the latter to reuse their capabilities in order to deliver new services to customers.

Communication Service Providers (CSPs) can monetize new data-intensive Over-the-Top (OTT) services through partnerships with OTT providers or by charging them for access to their networks. In fact, operators have already started to leverage to deliver packaged services to end users. OTT players are expected to deliver more applications that require higher quality, lower latency, and other service enhancing capabilities, namely proximity, location, quality of service (QoS), authentication, on demand and in a highly flexible and programmable way.

In addition, as James Buchanan, Senior VP & General Manager of Ensemble ADVA Optical Networking, framed it, monetization of data is key to proving that it is worth investing in 5G. While telcos are now relying only on data to improve customer experience and QoS, with 5G network services combined with IoT and AI, new business models of monetization will arise, namely . New business opportunities will thus emerge for telcos not only through data monetization but also from the value delivered to enterprises via application and network intelligence layers.

IPR, RnD and Investment in 5G

The realization of the 5G vision, especially in terms of IoT-related applications, will require extensive R&D and investment. Robust intellectual property protection is an to this end. ��Based on the NGMN , the IP based business objective is to make 5G access affordable for all types of devices. The proposed NGMN recommendations include improving 5G Standard Essential Patent (SEP) Declarations, establishing Independent 5G SEPAssessments, and exploring and establishing Patent Pool licensing for 5G. All industry partners are expected to develop implementation plans for each of these recommendations.

Overall, this panel’s speakers strongly agreed on the fact that the 5G endeavor cannot be taken exclusively on by the private sector. This was consequently addressed by the Honourable Navdeep Bains, PC, MP, Minister of Innovation, Science and Economic Development in his , during which he announced the launch of ,��, the Evolution of Networked Services through a Corridor in Québec and Ontario for Research and Innovation, which is a 3P between the governments of Ontario and Quebec and private sector partners. Minster Bains described ENCQOR as “a 5G test bed that will advance the development of 5G networking solutions and next-generation technologies and applications”. In addition, he proclaimed the launch of two consultations regarding 5G deployment, one of which pertains to the . Based on the aforementioned, the plan toward the 5G seems clearly drafted and in line with the telecom industry’s mantra of “flexibility, scalability and cost”, as epitomized by Mr. Lahoud.

Yonida Koukio is an IPilogue Editor and an LL.M. Candidate at Osgoode Hall Law School.��

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On April 6, 2018, a bus carrying the Humboldt Broncos junior hockey team with another vehicle en route to a playoff game. Fifteen people were killed, including seven members of the team. Residents and were deeply disturbed by the tragedy and expressed their overwhelming sadness at the loss of so many lives in such a horrific accident.

Responses to the tragedy have ranged from to tributes at and . One reaction, which became widely circulated soon after the incident, was a simple yet powerful by Halifax Chronicle Herald illustrator Bruce MacKinnon. The cartoon depicts the province of Saskatchewan, personified in green hockey gear, injured and being escorted off the ice by other provinces dressed in red. The illustration communicates the importance of mutual aid and empathy to our collective Canadian identity. However, soon after MacKinnon’s cartoon was printed, Redbubble.com, an Australia-based online store that manufactures consumer products based on user-submitted artwork, featuring the illustration without the artist’s permission.

Not only is MacKinnon livid his artwork is being used without his consent, the artist is also . Mackinnon did not submit his own art to the website: someone else did, and would have, therefore, wrongly received royalties from any sales of the T-shirt by Redbubble.

While Redbubble removed the shirts once the Chronicle Herald threatened a lawsuit for copyright infringement, dozens of memorial T-shirt designs . Moreover, while indicating that artists may set up their designs to benefit charities, there is no evidence this is the case with any of the Humboldt Broncos merchandise.

Redbubble.com is one of many platforms that produce specialized consumer products like T-shirts, throw pillows, and bed-sheets based on user-submitted designs. Others include Design By Humans, Society6, and Teepublic. For struggling artists and cost-conscious consumers alike, these websites offer a novel way to disseminate original creative ideas around the globe while providing compensation to artists for their hard work. However, the Humboldt Broncos cartoon controversy demonstrates the drawbacks such websites have for artists. Because websites like Redbubble are open platforms based on user-submitted content, these companies exert little control over what users upload unless the sites are informed that the submitted design(s) is infringing an existing copyright.

Such companies often put the onus on users to ensure that submitted content does not infringe copyright or other intellectual property (IP). For example, the

“Ultimately, you take full responsibility for the works you upload and display on Redbubble. This is reflected in the��. Use of the Redbubble website indicates continued acceptance of this Agreement. So please do us all a favour and if someone has created or owns the rights to a picture, painting, photograph, logo, story, poem or any other work, copyright, trademark or publicity right […] obtain consent before you use that work.”

As inspiring as many of the opportunities afforded by these sites may be, the potential remains for the work of artists—who do not wish to have some, or all of their creative productions commercially reproduced on a pack of coasters—to be misappropriated for the benefit of others.

There is nothing wrong with artistic adaptations, where, for example, another artist wishes to create a downstream interpretation of a previous artist’s work, transformative in nature, and then uploads that metamorphized piece to be printed on T-shirts and bedsheets. This is firmly within the boundaries of , if not in Canada. We live in a visual culture of appropriation and both explicit and implicit creative dialogue. The Supreme Court of Canada acknowledged this concept in , wherein Justice Ian Binnie stated, “The��Copyright Act is usually presented 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.”[1] From my angle, this may mean that, for better or for worse, artistic dialogue could involve being inspired by works manufactured in the spirit of a completely different creative objective than what the original artist might have intended.

The current form of web-based art marketplaces, like Redbubble, seems ill suited to prevent verbatim copying. As the uploading of MacKinnon’s cartoon indicates, certain people’s intentions may not be particularly honourable. It may be that the design in question was uploaded by a single person seeking to create a T-shirt for themselves—but this detracts little from the reality that these art platforms can be used by opportunistic individuals with morally questionable motives. Perhaps it is time for these websites to develop methods of concretely verifying a piece of art was created by the artist uploading it, rather than simply allowing people to sign up and upload as they please and dealing with copyright infringement issues only as they arise.

Elias Rabinovitch is an IPilogue editor and JD Candidate at Osgoode Hall Law School.

[1] Théberge v Galerie d'Art du Petit Champlain, Inc., 2002 SCC 34 at para 30, [2002] 2 SCR 336.

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is quality of data, arising from the technical aspect of AI algorithms. No matter how well-coded the AI algorithms are, the results still depend highly on the quality of data entered as inputs. Volunteer sampling may produce bad data that is not representative of the subject attributes or introduce unwanted bias. Duplicate, incorrect, incomplete, or improperly formatted data is bad data and can be removed by a data scrubbing tool in a more cost-efficient manner than fixing errors manually. Bad data is a big issue for employing AI and, as businesses increasingly embrace AI, the stakes will only get higher. For example, KenSci, a start-up company based in Seattle, is using an AI platform to make health care recommendations to doctors and insurance companies based on medical datasets collected, classified, and labelled. If there are errors in the medical records, or in the training sets used to create predictive models, the consequences could potentially be fatal, as real patients’ lives are at stake.

However, some companies (unlike large and established ones like ) may not realize the importance of good data until they have already started their projects. It is critical to have a well-curated collection of data to train an AI system and companies might not be aware of the potential business risks rising from biases hidden within their AI training datasets. For example, back in 2015, . Thus, companies must be cautious about what data they use and how they use it to avoid public relations nightmares and reduce associated business risks.

The second risk arises from a legal perspective: consumers are becoming more concerned with whether their privacy is being infringed by service providers, for example, using the data for unpermitted purposes, benefitting from unauthorized transfer to 3^rd parties, or providing insufficient protection from potential hackers. Consumers do want to know how their personal data is used, where it is used, and what it is used for. Various known or unknown gaps regarding the legal risks and liabilities governing AI exist and the recent implementation of the European Union (GDPR) has started to fill those gaps. ��For example, some types of big data analytics such as profiling can have intrusive effects on individuals. According to , the GDPR does not prevent automated decision making or profiling, but it does give individuals a qualified right not to be subject to purely automated decision making.

The GDPR that the data controller should use “appropriate mathematical or statistical procedures for the profiling” and take measures to prevent discrimination on the basis of race, ethnic origin, political opinions, religion or beliefs, trade union membership, genetics, health condition, or sexual orientation. Previously, users did not have the leverage to negotiate with companies in terms of what data is collected or transmitted, by whom, what their personal data are being used for, and their consent to data sharing. Although such legal rights are explicitly regulated by the recent implementation of GDPR (i.e. Articles 15, 16, 17, 21), there is arguably a strong inequality of bargaining power between consumers and powerful companies which makes consumers vulnerable targets and unable to effectively defend their privacy rights. The Supreme Court of Canada decision for in 2017 is a good illustration.

Today, technology is changing so rapidly that new questions regarding AI risks are raised from time to time, posing legal challenges to lawyers, regulators, manufacturers, service providers and consumers. Even back in 2013, United Kingdom Information Commissioner’s Office issued a detailed with suggestions for companies, addressing the incoming GDPR reforms. Various have discussed the suggestions in an attempt to cope with the new challenges. Summarily, it is more cost-saving to start with “privacy by design” processes or systems in the beginning than being caught by new rules in later adaptation stage. With “privacy by design” in mind, companies need to determine what is the purpose of data analytics, what data is required and how to legally and effectively collect, transmit, store and use the data. Second, companies need to avoid over-collection of personal data when such data is not required for the legitimate purpose. Third, they should be transparent about their collection and transmission of personal data by providing privacy notices which are comprehensible to data subjects without accessibility barriers caused by legal jargon, hidden notifications or poor telecom infrastructure. Lastly, companies should ensure that data subjects can exercise their legal rights to give consent, withdraw consent, request for a copy and make changes to their data.

Artificial Intelligence is a double-sword. If used well, it will continue to benefit the general public. If not properly managed, it might be leveraged by those with ill intent to cause harms and companies should bear that in mind when leveraging AI-enabled technologies.

��Grace Wang is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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In today’s digital age, the “right to be forgotten” – essentially, the right to withdraw consent over the processing of one’s personal information – is being hotly debated around the world, and it is now gaining momentum in Canada.

The Spanish case

The test case for this ground-breaking ruling originated in Spanish jurisdiction after the Spanish lawyer in question failed in his attempts to get Google to remove links to two old local newspaper publications related to his prior bankruptcy.�� Published at the order of the Spanish Ministry of Labour and Social Affairs, the webpages in question referenced two notices announcing that a real estate property he owned was to be put up for sale at auction so that he could pay off his outstanding social security debts. Given that he had since paid off these debts, the Spanish lawyer wanted that information altered or cast into oblivion.

To accomplish his goal, he filed a complaint with the Spanish Data Protection Agency (AEPD) against the newspaper (namely, its website), Google Spain, and Google Inc. arguing that the information of the legal proceedings contained in the newspaper’s publications was no longer relevant. He contended that those items concerned matters that had already been fully resolved and that their ongoing online presence was infringing his right to privacy and harming his reputation. As it turned out, the AEPD dismissed his claim against the newspaper publication, reasoning that the original information therein had been lawfully published, but it granted the action against Google. Unhappy with the AEPD’s decision, Google Inc. and its subsidiary, Google Spain, filed two separate appeals before the National High Court in Spain to have it annulled.

The Spanish court, in turn, referred a specific set of applicability questions concerning this matter to the CJEU. And, as we now know, the top European court ultimately ruled in favor of the Spanish lawyer. Accordingly, the Luxembourg-based CJEU held that, under existing European data protection laws, Google had to remove links to webpages referring to his outdated and no longer relevant bankruptcy record. The newspaper, however, could leave information about the auction on its website (under European data protection law, news websites, considered as part of the media, enjoy various protections and exemptions). The court’s ruling also made it clear that Internet search engines such as Google function as “data controllers,” and, as such, they must take responsibility for the links they make accessible online.

In brief, the CJEU concluded that, as a rule, an EU citizen’s right to privacy outweighs Google’s economic interest as well as the “interest of internet users” to access old and irrelevant information.

Parallel movement

In ironic parallel to the right to be forgotten movement, thousands of people, also in Spanish jurisdiction, are fighting to “remember” the truths of their country’s uncomfortable past. They are seeking to overturn an amnesty law that pardons crimes – including mass killings, disappearances, torture, and arbitrary detentions – committed during the 36-year dictatorship of General Francisco Franco. Stories about some of the victims of those crimes are featured in the award-winning documentary "The Silence of Others,"��which was screened at the 2018 Hot Docs International Documentary Film Festival.�� To read more about the documentary and an interview with the film's directors, click .

To offer some historical context: in 1977, Spain passed the controversial amnesty law, which formalized an unwritten “pacto del olvido” (“pact of forgetting”). This was reached by the nation's left and right parties following Franco's death, to ease transition into democracy. In line with that pact, Spain’s political leaders effectively agreed to leave memories of those crimes in the distant past.

It is not known whether Google has received takedown requests from anyone accused of having committed crimes in Spain during the Franco era. Google did not respond to several queries about this matter.

Traditionally in Europe, the protection of privacy has been emphasized over that of freedom of speech. In the United States, by contrast, regulators have strongly favored the protection of freedom of speech.

As for implications, the right-to-be-forgotten ruling has implications beyond Spain. Indeed, it has global reach.

Now in Canada

In Canada, the right to be forgotten has attracted similar attention and controversy. Unlike the US originalist constitutional framework, Section 1 of the Canadian Charter of Rights and Freedoms already anticipates that in certain circumstances it will be reasonably necessary to limit the rights and freedoms guaranteed by the Charter. Thus, the recognition of a new right, like the right to be forgotten, which may abridge the constitutionally guaranteed right to free expression, is not very far-fetched in Canada.

Indeed, in January 2018, the Office of the Privacy Commissioner of Canada (OPC) released its draft position paper on online reputation, suggesting that current federal privacy legislation already provides an avenue for the adoption of a similar law in Canada. The Personal Information Protection and Electronic Documents Act (PIPEDA), according to the OPC’s position paper, provides a right to de-index search results and a similar right to source takedown.

Privacy Commissioner Daniel Therrien voiced his support for his office’s position at a recent symposium on the right to be forgotten called, “” in Toronto.��The event was sponsored by Google and organized by the Canadian Journalism Foundation (CJF) and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC). An audio recording of the symposium can be accessed and .

(Photo of Daniel Therrien © Canadian Journalism Foundation)

Therrien's basis for this position is a belief that the Internet has fundamentally changed the ways in which we interact with and process information.�� In particular, information about others is easier to find, easily taken out of context and easily reproduced. At the same time, serious consequences emerge from privacy violations that pose a threat to a person’s reputation. Indeed, Therrien expressed concerns for the potentially detrimental consequences that reputational damage can have in terms of employment and housing, as well as personal and professional relationships.

Enter the elephant in the room

Peter Fleischer, Google’s global privacy lawyer, also speaking at the Toronto symposium, introduced the elephant in the room. Fleischer did not hide his disdain with the right to be forgotten decision.

Fleischer argued that the right to be forgotten is not only incompatible with the right to freedom of expression but is a total breach to this right. Freedom of expression is considered one of the cornerstone features of any modern democratic society. Indeed, freedom of expression is widely held as a means of furthering three core values: (1) acquiring the truth; (2) fostering individual autonomy and self-determination; and (3) strengthening democratic self-governance. It is on these fundamentals that Peter Fleischer rests his case against the recognition of the right to be forgotten.

Constitutional arguments aside, one of the most interesting pieces of information that came out of this symposium was finally getting a window into how the right to be forgotten is implemented, something�� the general public had limited information on up until this point. As the European mandate currently stands, it is search engine operators themselves who are tasked with creating a governance framework for the right to be forgotten. So, while many may have expected, or at least hoped, that it would be the courts or some other privacy-related administrative body that would be tasked with making decisions regarding what content would be de-indexed at the request of an individual, this is not the case.

Indeed, Fleischer explains the responsibility for overseeing the administration of the right falls exclusively on the shoulders of the search engines.

An individual seeking to exercise their right to be forgotten must complete an online web form, after which the form will go to a team at Google specifically established to deal with this matter. The team of legal professionals at Google are essentially tasked with weighing the competing interests implicated in each case. Fleischer explains this is no easy task as the nature of the balancing exercise makes automation highly unlikely. While some cases can be assigned an easy “yes” or “no”, others fall into a grey zone where the answer is not immediately apparent. For such ambiguous cases, Google has an internal process that allows for escalation to more senior professionals who will make the final decision.

(Photo of Olivia Mackenzie and Peter Fleischer © Canadian Journalism Foundation)

Food for thought

Over the next coming months, it is expected that, with the support of Daniel Therrien, we will see considerable movement towards a Canadian version of the right to be forgotten. At the same time, we should ask ourselves whether the search engines themselves are in the best position to oversee implementation. Besides the obvious self-interest concern, this task is also very resource intensive. According to Fleischer, there have been 650, 000 requests pertaining to 2.5 million URLs across the EU to date. So, by outsourcing oversight, do we risk putting smaller search engines with fewer resources out of business? This is one of many questions to consider during this time in limbo.

Roxana Olivera is a Journalist in Residence at Osgoode Hall Law School. Olivia Mackenzie is a JD Candidate at Osgoode Hall Law School.��The authors would like to thank Osgoode students��Natasha Jerome, Ankita Nayar and Carolyn Young for their assistance.

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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.

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