Prof. Giuseppina D'Agostino is the Founder & Director of IP Osgoode and the IP Innovation Clinic, an Associate Professor at Osgoode Hall Law School, and the Editor-in-Chief of the IPilogue and the Intellectual Property Journal.

IP Osgoode and the IP Innovation Clinic are thrilled to welcome you back on campus for the new school year! After almost 2 full years of completely virtual operations, we look forward to finally seeing our students and colleagues live in person! Here’s a preview of some of the activities you can get involved in over the next 8 months:

“IP Osgoode Speaks Series” is back in person!

Since 2008, we’ve hosted regular IP Osgoode Speaks lectures with guests from industry, academia, and the judiciary (including the Supreme Court of Canada) from Canada and around the world. After over 2 years in lockdown, we are proud to share that the IP Osgoode Speaks Series returned on 31 August 2022, welcoming Dan Bereskin to speak on “Balancing Freedom of Expression with Copyright and Trademark Rights: Art or Science?”

We look forward to hosting Dr. Lior Zemer, Dean of the Harry Radzyner Law School at Reichman University in Israel, in November to discuss “Art and Authorship in Extreme Circumstance: The Case for Nazi Ghettos.” ��

Please stay tuned for more details about ��on our website and by subscribing to our weekly e-Newsletter, the��.��You can also find recordings of our on our website.

IPilogue

���ܰ�����is one of Canada’s leading IP Blogs with an enthusiastic international following. To date,��we have published almost 3000 original posts and over 1400 comments.

The number of visitors to our website and our weekly newsletter () readership continue to grow and span the globe. Our diverse����continued to blog throughout the summer and constitute an important part of IP Osgoode’s team and vision to foster diverse views on intellectual property and technology matters. In order to keep abreast of the latest issues in IP and technology in Canada and around the world, and to learn more about IP Osgoode’s events and activities, please to the IPIGRAM��and follow us on��,��, ���Ի���.

We are����for this academic year. If you are interested in joining the IPilogue Team, please send your cover letter, CV, law school transcripts, and a writing sample to iposgoode@osgoode.yorku.ca��������Friday 9 September 2022.

We will also continue to accept submissions on a guest basis.��For more information about submitting articles to the IPilogue, click��.

IP Innovation Clinic

Now in its twelfth year of operation, the IP Innovation Clinic continues to complement Osgoode’s rich history of clinical offerings by providing students with an opportunity to gain hands-on, practical experience while learning about some common early-stage IP and business-related issues facing under-resourced inventors, entrepreneurs, and start-up companies.

To this end, we����our AI-powered��, a free online service offering IP law information to users and further empowering creators with the tools to protect their IP. We look forward to continue to develop the IP Innovation ChatBot by expanding its knowledge base and making it more accessible, particularly to members of communities traditionally underrepresented in the IP innovation ecosystem. In the meantime,��we encourage you to ask our����as many questions as possible. The more questions it receives, the better it becomes at answering them. You can learn more about it by watching the recording of our launch event��.

�ճ������continues to expand our client base and provide our students with a valuable and unique experiential learning opportunity.��We are currently��for the 2022-2023 academic term. If you are interested, please send your completed application to ipinnovationclinic@osgoode.yorku.ca ������Wednesday 7 September 2022.

To stay up to date with Clinic activities, please follow us on , and .

Oxford International Intellectual Property Law Moot & USPTO National Patent Application Drafting Competition

Following from the momentum of our��third-place finish at last year’s Patent Application Drafting Competition, we will soon host tryouts for this year’s competition, as well as the Oxford International Intellectual Property Law Moot. Look out for our emails and social media posts to learn about how you can get involved in either competition.

Our Writing Competitions

Gowling WLG Best Blog in IP Law & Technology Prize

Each year, through the sponsorship of Gowling WLG, four prizes are awarded to full-time Osgoode students. The recipients for the 2021-2022 academic year were����on the IP Osgoode website.��Eligibility for the����is officially open. All submissions by Osgoode JD students between now and the end of the Winter term will be considered for the prize.

Canada’s IP Writing Challenge

IP Osgoode, together with the Intellectual Property Institute of Canada (IPIC), runs����to further enhance intellectual property public policy research and discussion. This competition is open to three categories of entrants: JD students, LLM and PhD students, and practitioners.

The submission deadline is July 1 every year. This year, we received a wide range of entries from a broad spectrum of backgrounds and institutions across Canada. We thank all those who participated in the Writing Challenge. We are grateful to Dan Bereskin, Professor Ikechi Mgbeoji and Justice Roger Hughes for agreeing to judge the articles again this year. Stay tuned, as��we will announce the Challenge winners in late October�����Ի���open our next competition early next year, among various other initiatives.

A community is only as vibrant as its contributors. As we work and live amidst concerns about COVID-19, even while emerging from the lockdowns, we continue to confront complex and challenging debates in intellectual property and related areas of technology.��Please share with us your ideas to enrich our program and to do our part to make a difference during these unprecedented times. Let us know if you would like to get more involved or if you would like to announce any IP & tech-related research projects or activities.

A community is only as strong and vibrant as its members, I welcome your ideas, projects and anything else you would like to see us do at IP Osgoode for more IP and tech fun!

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The post IP Osgoode Speaks Series Video: Prof. Frank Pasquale on "A Rule of Persons, Not Machines" appeared first on IPOsgoode.

These questions are at the forefront of ����research and were the topic of discussion at his recent talk as part of the IP Osgoode Speaks Series.�� Prof. Pasquale brought with him a simple message to his talk: the law ought to be “A Rule of Persons, Not Machines.”

Correcting Bias with Bias

To begin, take the pinnacle actor of our legal system: the judge. Judges are human, after all, and they bring human biases with them to the court room. Studies demonstrate that judicial outcomes can depend on variables such as the performance of the ��or whether the decision was made before or after the . In contrast, computer algorithms can produce more consistent legal outcomes across a given set of cases. Humans are biased, after all, so why not replace them?

Algorithms have biases too, answers Prof. Pasquale. Their outcomes depend on the humans that develop their code. Which factors should be given heavier weight in a computer’s decision? How much room should be carved for the protection of constitutional rights? What if the software contains undiscovered errors? How should the system import contemporary societal values into its decision? In considering these questions, Prof. Pasquale shows that greater consistency does not equate to fewer biases.

In addition to these coding difficulties, computer algorithms are much better at evaluating backward-looking inputs than solving forward-looking problems. They may therefore be unable to effectively replace the law-making role of the judiciary. Take, for example, a situation where a computer must decide if constitutional rights should be extended to novel situations. Analysing historical data to determine the likelihood of a human judge allowing such an extension is not difficult, but fully predicting the extension’s effects on society is. It’s almost near-impossible: there are simply too many variables to consider, many of which, such as personal values, cannot be reduced to simple metrics.

Finally, Prof. Pasquale contends that algorithms lack transparency. Human-made judgments reduce legal logic into an intelligible, written form. This writing may be applied, built upon, or criticized by subsequent thinkers in the legal system. Algorithmic judgments do no such thing. Perhaps the coding and mathematics used to process inputs are intelligible, but they provide no guidance as to how the law is, was or ought to be applied.

Blockchain and Property Law: A Legal “Wild West”

Prof. Pasquale turns to ��concerns with emerging blockchain technologies like ��to demonstrate the real-world legal problems that arise when cold, efficient machines replace human judgement.

Institutions operated by human beings have traditionally been responsible for tracking and facilitating the exchange of goods and services for currency, at least for big-ticket items. If X purchased a car from Y, the bank would ensure a precise number of dollars transfer from X’s account to Y’s account, and the vehicle would be registered with the state in X’s name. Money is traded for ownership, and each step is traceable.

This is not the case with blockchain.

Instead of relying on trusted, human-run institutions to maintain the records, blockchain technology relies on its users – the public at large – to track one-another’s balances on their computers. A transfer’s legitimacy is verifiable because each user holds a secret digital key that they use to authorize the movement of their funds or property. This key is nothing more than a sequence of numbers – it has no name attached to it, and the only requirement to use it is knowledge of its sequence.

Although blockchain is revolutionizing transactions by cutting out the “middle man” and making them instantaneous and secure, they cause some serious legal headache. First, losing your authentication key means that you lose access to its value stored on the blockchain. If your car title is recorded on the blockchain in association with your digital key, losing your key means you’ve lost the only proof you have that you own the car. Compare this to losing your paper title to the car: you’d simply need to stop by your local registry with identification and pick up a new one.

Second, imagine your digital key gets stolen by a hacker who hops in your car and drives off into the sunset. Not only do you lack proof that he stole it, but, for all intents and purposes, the blockchain now considers him the true owner. The law cannot help you.

Finally, consider the law’s benefits and protections conferred on you by virtue of you owning your car. If the car is defective, you can return it to the seller. If your friend doesn’t return the car after you lend it to them, the law can force them to give it back. Consumer protections like these and many others are simply unavailable to you if the law does not recognize your ownership.

Prof. Pasquale makes it clear that although blockchain may become useful for certain applications, it illustrates the danger of replacing human-run systems with purely algorithmic ones. Blockchain is not going to make property law go away.

Algorithmic Accountability

It is a grim future, argues Prof. Pasquale, where machines replace the role of human judgement in its entirety. What role, then, does he see computers filling in the legal world? Artificial intelligence should enrich professional judgement, he suggests, not replace it. What constitutes a “better way” to do law must be decided with a broad, social understanding of the systems that the law serves; not through applying technology for the sole sake of efficiency. There is massive room for computers to improve the way that we do law, but it must be approached through a critical lens.

Principles of algorithmic accountability must be interwoven into these systems. Models must be transparent, data must be unbiased and algorithms must be applied to appropriate tasks. Leading thinkers and the public alike must be able to critique these systems and lend their voices to the software’s development. Technology is strengthened when subjected to an open and free exchange of ideas and criticisms, so legal innovation must evolve with public accountability.

Prof. Pasquale left the room with a parting thought: the legal profession needs to carefully shape the algorithmic systems it deploys, or else those systems will shape the legal profession. Using the words of Douglas Rushkoff, Prof. Pasquale warns,

“Program or be programmed.”

Mike Noel is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Algorithmic Accountability: Prof. Frank Pasquale’s Thoughts on Artificial Intelligence in the Law appeared first on IPOsgoode.

Due to the international and extra-jurisdictional aspects of enforcing and administrating patent law in general, and similarities between Canadian and European patent regimes, the concerns and issues raised in her are relevant in Canada and could trigger similar discussions regarding the Canadian patent system.

Patent law and Language

Is there anything inherent in patent law that makes it more susceptible to ambiguities than other fields of law? Dr. Thambisetty posits that patent law works as an intermediary between law and other fields of knowledge, such as science and commerce, which have their own dialects and languages. One can think of patent law as an interdisciplinary field, whose dialect is the common denominator of many mutually exclusive technical languages. This interaction leads to the creation of non-standard terms in patent law. Further, due to this unique position of patent law, the scale of non-standard terms that are used in this field is considerably larger than any other field of law.

Guidelines on Writing Patent Applications and Expectations��

The are written by one branch of the (“EPO”) to aid the EPO in its examining role. Guidelines are often used and quoted in the EPO’s . But they are not considered to be law and therefore are not binding. The EPO follows the guidelines in its decisions, however, it can also refrain from following them, on the basis that guidelines do not constitute law.

While the guidelines are not legally binding, patent applicants are expected to follow them in drafting their applications, and as a consequence, there is an expectation imposed on the applicant by the EPO.�� How does the EPO justify this inspirational role of its non-binding guidelines? According to Dr. Thambisetty, the EPO's institutional power over the��administration of patent law enables them to evade justifying their decisions.

Purpose of Ambiguity: Illusion of Legitimacy

One important role that ambiguity plays is that it adds to the legitimacy of the institution. Dr. Thambisetty argues that ambiguity is like an "endowment" to the office to give it legitimacy. The EPO, by exercising their power over rhetoric and language of the legislation, has kept the provisions ambiguous to give the appearance that special knowledge and expertise is required when dealing with the legislation.�� According to Dr. Thambisetty, this appearance serves two important and intertwined purposes which when combined, gives the institution the illusion of legitimacy.

First, it gives the EPO authority to exercise a relatively unlimited power over applicants and agents. This provides a possible answer as to why the EPO can impose expectations and not abide by them itself.

Second, it solidifies the EPO's position amongst other governmental institutions.��No other governmental institution can compete with the EPO, as they lack sufficient expertise and knowledge when dealing with patent legislation.��Therefore the EPO faces no competition in the regulatory sphere.

Dr. Thambisetty concluded her talk by emphasizing that an institution, which navigates ambiguity, can exercise a great deal of power over those who come within its jurisdiction. As long as this power can be enforced and harnessed, that institution��has an incentive to continue its ways. In her opinion the change has to come from inside the institution.�� So the question is, how much ambiguity are we willing to accept?

Nazli Jelveh is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

The post Examining Ambiguities in Patent Examination Guidelines by Dr. Siva Thambisetty appeared first on IPOsgoode.

Intellectual property law is meant to provide incentives for creators to both engage in useful innovation and make their creative works available to others. In order to do this well, there ought to be an understanding of the kinds of incentives that encourage creativity. “IP law has to have a theory of why people create, how they interact with the things that they create, and how the markets for creativity and innovation are likely to work,”��Prof. Buccafusco tells us.

When dealing with this theory of IP law, most of the legal literature and scholarship derives its assumptions on the basis of Rational Choice Theory (RCT). RCT postulates that people weigh the costs and benefits of each decision, and they’ll make decisions that maximize their self-interest by giving them the greatest satisfaction. Prof. Buccafusco then poses the critical question: “are any of these assumptions that underlie the nature of intellectual property law in fact correct?”

His following�� seek answers to this question, and they look to do so by finding out which biases cause creators to deviate from the cold, calculated behaviour of RCT.

The Endowment Effect

The first bias Prof. Buccafusco’s examines is the endowment effect – that is, the hypothesis that people place more value in a good when their property right to that good has been established.

He beings by describing an in which coffee mugs were randomly distributed to half of an undergraduate law and economics class at Cornell University. The students assigned a mug each quoted the lowest price that they’d be willing to accept to sell the mug, while the students not assigned a mug gave the highest price that they’d be willing to pay to buy the mug. Under RCT, one would expect that these prices should be about equal. But they weren’t. By simply being endowed with the mug, the sellers’ prices were much higher than the buyers’ prices on average. As a consequence, the number of completed sale transactions was less than what RCT would predict.

So how might this bias play out in an intellectual property market? This is where Prof. Buccafusco’s experiment comes in.��They set up a contest in which ten student painters submitted their paintings to compete for a $100 prize. These “Painters” were told that they would be matched with a second group of “Buyers” who would make the painters a cash offer to purchase the right to the Painter’s prize if their painting won the contest. The Painters were asked to write down their lowest price they’d sell this right for and the Buyers the highest price they’d pay. If the prices met, then a transaction would occur; the Buyer’s cash for the Painter’s chances of winning.

In addition to these two groups, an “Owner” group was each randomly assigned ownership of one of the paintings and stood to win the $100 prize if their painting won. Similar to the Painters, they were asked to write down their lowest price for which they’d sell their chances of winning the prize to one of the Buyers. There being a 1 in 10 chance of winning $100, the rational prices of all three groups (ignoring the perceived quality of each painting) shouldn’t deviate much from $10.

The actual median prices were as follows:

Buyers: $17.88

Owners: $40.67

Painters: $74.53

What do these staggering differences tell us? Not only did the endowment effect create a gap in the valuations of the Owners and the Buyers, but the act of “creating” caused an even bigger gap between the Painters and the Owners. “Initial endowment may be really sticky” explains Prof. Buccafusco. His research tells us that the intellectual property market may not be as efficient as RCT might predict: fewer transactions occurred as the result of this bias than may be ideal.

Content Attribution

Prof. Buccafusco tells us the second experiment’s goal of determining “the extent to which people are willing to trade off real dollars for an opportunity to have their name attached to a work that they’ve created.”��How much do creators value receiving credit for their work?

In this experiment, photographers are told that a graphic designer is looking for a photograph to use as the background of an image that she is submitting to a contest for a $1000 prize. They’re told that she is going to see the photographer’s photo plus four others and will buy the rights to use one of them. The photographer would get cash in this transaction, but no prize money from the contest that the designer is entering. However, they’re also told that their photo will appear on a major website if the designer wins the contest.

The photographers are randomly split into two groups. Group 1 is given no default attribution – analogous to the system in the United States. That is, they’re told that they will not be given credit for their photograph’s appearance on the website. Group 2 is given default attribution – analogous to the system in Canada. Here, they’re told that they will be given credit for their photograph’s appearance on the website. Both groups are first asked how much money they’re willing to accept to sell the designer their rights to use their photos in this contest: the first group without credit, and the second group with credit.

After stating this price they’re each then told that they have the opportunity to switch the status of their attribution. Group 1 is asked how much money they’d be willing to accept to sell their photo if the designer chose to give them credit. One would expect that this second price would be lower than the first price if content creators value having their names attached to their work. Meanwhile, Group 2 is asked how much money they’d now be willing to accept to sell their photo if the designer decided to remove the photographer’s credit from the website. Because, again, of the value creators place in their names, one would expect that this second price would be higher than the first price.

In essence, Group 1 was now buying their right to attribution and Group 2 selling their right to attribution.

By looking at the average difference between the non-credited and credited prices for each group, it can be determined if the attribution rights were valued more in the no-default or default system. The results were as follows:

Group 1 (No-Default Attribution) Difference: $3.61

Group 2 (Default Attribution) Difference: $14.77

The results are significant. The data shows us that the act of being endowed with attribution caused Group 2 to value being credited for their work over four times as much as Group 1. Because of the endowment effect, people seem less willing to sell their credit than they do to buy it.

What does this tell us in practical terms? Again, “the default creates a kind of stickiness,”��says Buccafusco. Being given attribution rights by default might make the access to the works of creators especially sticky, he explains, and this makes the markets for them deeply inefficient. The American system appears to make more sense here: if we want more transactions for creative works to occur thereby increasing the number of works in use, then we may not want to��be starting creators off with the right to credited use by default. For efficiency's sake, perhaps we should��allow them to bargain for the right at a cheaper price through contracts.

Borrow or Innovate?

Third and finally, Prof. Buccafusco’s seeks to determine how people make decisions to create in markets characterized by sequential innovation. Innovation is built on innovation. Buccafusco illustrates this: we first had Dracula the book, and then we had Dracula the movie. Then came the Twilight novels, the Twilight movies, the Twilight Fan Fiction, and 50 Shades of Grey. Innovation almost never happens in isolation.

There are two choices for a creator in a market with existing works: borrow or innovate. To borrow is to pay for a license, and to innovate is to work around the existing IP. Both of these options have costs. Borrowing has licensing fees, and innovation has risks of uncertainty. As existing rights fill up the innovation space and there’s less room to innovate, we’d expect this innovation would decrease as it becomes harder to do.

The experiment focused on this borrow/innovate decision. In it, subjects are given Scrabble letters with which to earn points by forming words. They are given two options: they can borrow from a pre-existing solution that is first shown to them, or they can innovate and create a solution from scratch. Innovating gives them bonus points, while borrowing does not.

The subjects are split into three groups based on the quality of the pre-existing solution shown to them without being told this quality: 60% of the best solution, 80% of the best solution, and 100% of the best solution. If the subjects were to act rationally, one would hypothesize that the subjects presented with more complete solutions would be more likely to borrow from the solutions given to them (and less likely to innovate).

The results are unexpected:

60% Group: 46.8% innovators

80% Group: 40.9% innovators

100% Group: 85.7% innovators

We saw a drop in the innovators between 60% and 80%, but why did we see an increase in the number of innovators between 80% and 100%? Prof. Buccafusco thinks that the subjects were influenced by an “innovation heuristic.” Subjects didn’t look at the value of the solutions in terms of the points they were worth; they simply considered how easy it would be to come up with some new words that weren’t in the pre-existing solution. Since the 100% solution had quite difficult words, the subjects had little trouble coming up with alternative words of their own without regard for the fact that their low values make them terrible Scrabble words. And they lost a lot of points because of this.

So what does this mean for innovation? “We tend to think about innovation as always good,” Prof. Buccafusco continues. The bias revealed in this experiment shows that creators may be predisposed to spend energy coming up with solutions that already exist for license. “Innovation is often terrible,” Buccafusco concludes. It often leads to “producing stuff that we already have, but expending substantial amounts of resources to do so.”

Prof. Buccafucso's research shows us that creators' decision-making in IP markets appears to be significantly altered by these three biases. Perhaps the resulting market "stickiness" is even causing the decisions of these creators and their��welfare to diverge.��If we want our intellectual property law to be��effective when it��provides incentives for creators to engage in useful innovation and make their creative works available to others, then it's clear that we need to��take into consideration biases like��these and others.

Mike Noel��is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

[1] "Valuing Intellectual Property: An Experiment" is available at SSRN:

The post (Ir)Rational Choice Theory: Prof. Chris Buccafusco’s Search for the Biases of Creativity appeared first on IPOsgoode.

Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the����has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law,��considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a��copyright infringement ruling��against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the��Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a��separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.�� Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows��legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's��representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in��Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist��Richard Prince��copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s��identical reproductions��of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,����saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist����were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is��’s appropriation of��’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of��. She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of����from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful��artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the��art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Abraham Drassinower – A theory of copyright based on copyright law

Drassinower proposed��a theory of copyright to��challenge the dominant instrumentalist paradigm, in which copyright’s purpose is to catalyze the creation and dissemination of works of authorship. This theory views the work as an instance of value. Drassinower��criticized��this framework as an inadequate account of why copyright law operates as it does.�� He��was particularly concerned with how a law and economics approach marginalizes the public domain. Accordingly, he set out to construct his theory by examining core principles of copyright doctrine.

The Principle of Originality

A work must cross the originality threshold to merit��copyright protection, and to become what Drassinower termed a ‘copyright citizen’. Value cannot explain copyright's��need for originality. For example: a telephone directory��may hold��greater��value than��a��romantic poem, but it does not��merit��copyright protection. An examination of seminal case law revealed a delineation between the mechanical creation of value and acts of authorship. Drassinower argued such delineation��invites a theory grounded in authorship.

The Principle of Independent Creation

Drassinower examined how copyright law would treat a hypothetical infringement case in which two authors independently wrote identical poems. The author who first wrote the poem (author A) sued the second (author B) for infringement. Not only is B not liable, copyright law��deems her as an��author in her own right. The hypothetical��suggests that novelty is not a part of copyright theory, and led Drassinower��to three further observations:

1. A right is conditioned on the fact that it respects the rights of others.
2. An author does not hold the work as an object of property. If this were so, the defendant’s poem would be seen as an act of conversion. Rather, copyright sees two independent rights over the same work.
3. The fact that two identical works do not infringe each other is because they are independent acts of authorship. The rights protected by copyright are prerogative to support acts of speech; the translation of ideas into expression, not the idea itself.

These observations led��Drassinower to the central tenets of his theory: Works of authorship should be viewed as communicative acts instead of��instances of value. Authors are speakers.

Seen in this way, copyright infringement is the act of disposing of another’s speech in the absence of authorization; what Drassinower called ‘compelled speech’. Any rights over the communicative act must be consistent with the communicative rights of others. For example, copying for the purposes of commentary is lawful because the rights of the author must be consistent with the rights of others to respond. Fair dealing drops out of the author’s mouth as soon as she speaks. This also means that only communicative uses of the work are subject to copyright; hence why merely incidental, technical instances of copying are not infringement.

Commentary and Critiques

Professor Amani began by noting that Drassinower’s book only situated ‘speech’ within broader rights systems at the end of its reasoning, rather than as a foundational piece. She took issue with theory based on the 'work-as-expression’ that neglected to address why, for example, copyrighted speech should be seen as a privileged form of expression over constitutionally protected speech. Adopting Drassinower’s metaphor, she asked, “why is copyright a ‘dual-citizen’ while constitutionally protected speech is only a ‘single-citizen’?”

She also addressed Drassinower’s lack of attention to subject matter. As his book focused almost exclusively on literary expression, it did not explore questions concerning artistic works. She argued��that copyright is not only about rights, but also about the subject matter to which those rights attach; a distinction with��political implications. She gave the example of how works created by women were��historically regarded as ‘crafts’, rather than arts, and were��excluded from protection. She wondered how Drassinower’s theory would treat expressions such as folklore, oral traditions, or even non-human works.

According to Professor Craig, Drassinower’s theory failed to take seriously the idea of authorship as communication and created a fundamental contradiction. For her, the idea that an unauthorized copier ‘disposes’ oneself of another’s work actually reinforces the idea of a work as a stable alienable ‘thing’ that can be bought, sold or gifted.

She��critiqued��Drassinower on this point using his infringement hypothetical. She imagined two scenarios: one in which speaker B attributed speaker A, and one in which she did��not.��If no attribution was��given, there is no reason the public would��associate the words with A. Rather than compelled speech, this would be a case of forced silence. If there was��attribution, then B acknowledged A’s authorship. This��is giving, not denying��A the status of author. Even if��B had��spoken before A, Craig found it hard to see how B could be said to have��‘disposed’ of A’s speech. The outcomes in this scenario are either: the responding to, acknowledging of, or silencing of A by B – there is no outcome in which A was compelled to speak.

Craig ultimately conceded that while Drassinower’s theory made sense as a theory of law, it fell short as a theory of communication.

After the presentations, attendees participated��in a wide-ranging discussion that further engaged with the issues raised. While the three speakers may have diverged on some points, they all articulated theoretical visions grounded in the public interest. There is little doubt that such perspectives will play an increasingly important role in the way judges, academics and lawyers think about copyright�� in the future.

Luca Lucarini is an IPilogue Editor and a JD candidate at Osgoode Hall Law School

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After two exciting and lively debates on the principle of technological neutrality (see Sebastian Beck-Watt’s coverage ) and reproduction rights (see Paul Blizzard’s coverage ), IP Osgoode’s Unpack��SODRAC symposium turned to a new panel to ‘unpack’ the paragraphs of [SODRAC] concerning the mandatory (or not) nature of tariffs set by the Copyright Board.

The fresh panel was asked to tackle the issue of whether the majority decision of SODRAC dispelled the notion—coined by Ariel Katz as the “”—that once the Copyright Board approves a tariff, any unauthorized use of a work triggers legal obligations to pay the royalties specified in the tariff and comply with the terms and conditions. The majority judgment’s alleged ‘debunking’ is found in paragraphs [101]-[13]. At paragraph [107] Justice Rothstein (for the majority) wrote: “In the absence of clear authority that this is Parliament’s intent, the burdens of a license should not be imposed on a user who does not consent to be bound by its terms” and, at [112] he concluded “that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to [of the Copyright Act (the “Act”)] should have a mandatory binding effect against users [emphasis added].”

This issue was posed to the panel—comprised of Katz ( Intellectual Property Professor), Mario Bouchard (former General Counsel, ), Adriane Porcin ( Copyright Professor), Bobby Glushko (Head of the at University of Toronto), and Howard Knopf (Copyright Lawyer and )—in the form of the following questions: what are the potential implications for collective management organizations (CMOs), copyright users, and the copyright board?; and, more specifically (a major point of contention) does the reasoning of paragraphs [112]-[113] extend to other tariffs approved by the Copyright Board, and if so, does this “debunk” the so-called “mandatory tariff” theory?

Ariel Katz – The spectre is dismissed

Katz promptly asserted that Copyright Board issued tariffs are not mandatory. He focused on the language of of the Act, stating that even though a literal reading of s 68.2(1) appears to grant CMOs a right to collect royalties, it does not grant such a right. The provision reads:

68.2 (1) Without prejudice to any other remedies available to it, a collective society may, for the period specified in its approved tariff, collect the royalties specified in the tariff and, in default of their payment, recover them in a court of competent jurisdiction.

Katz examined the key phrase “default of their payment”, and reasoned that a collective may only collect royalties if the user owes a payment. Logically, Katz argued, if the user does not owe any payment they cannot be in default. As a result, a CMO’s right to collect only extends to a licensee, and not a user who falls outside the definition of the type of users to which the tariff applies.

Katz then argued that the holding was applicable to of the Act, since it is indistinct from s 70.2. He focused on the plain meaning of the word “tariff” and stated that if parliament wanted it to be mandatory, they would have called it a “Levy”.

As a joint intervener in the case with the Centre for Intellectual Property Policy, more of Katz’ argument can be found in his .

Mario Bouchard – Copyright Board-issued tariffs are mandatory

Bouchard followed Katz and began with a criticism of the way the issue was framed for the panel. He was concerned by the classification of s 70.2 licenses as tariffs. Bouchard dispelled this notion by explaining that s 70.2 licenses are not tariffs, they are regulations.

Turning to SODRAC, Bouchard argued in favour of the mandatory tariff theory. He reasoned that the SODRAC decision misapplied, misapprehended, and ignored copyright principles, principles of statutory interpretation, judicial precedents, legislative history, and the way foreign copyright values approach the regulation of collective societies. Concerning copyright principles, Bouchard stated that—well established by the —where permission is required, it is for the user to ask permission from the copyright owners, not the other way around. Asking rhetorically “are we to embrace Google’s approach to copyright: use first, ask forgiveness later”, he conceded that it may be an appealing instrumentalist approach, but Berne still legally controls.

Adriane Porcin – Do users need CMOs in a transactional world?

Porcin followed Bouchard and took a different approach to the issue, seeking not to conclude what the majority decision means. Rather, she examined the context in which the decision was made and inquired into the purpose of the tariff regime, mandatory or not. After detailing the “one size fits all” approach tariffs impose on users, she opined on the purpose of s 70.2 and CMOs in a transactional world where organizations (like CBC) are free to negotiate licensing terms with or without the assistance of the Copyright Board as arbitrator.

She presented four points on this topic: [1] different copyright collectives have different types of relationships with their members, depending on the nature of the work and industry in which the tariff functions, and so the ability to maneuver around s 70.2 depends on the rights granted to each CMO; [2] because some CMOs’ license valuations have disconnected from the utility of those licenses to the users, intervention of the Copyright Board is essential to ensure that users are not subjected to the CMO’s own price setting; [3] the Copyright Board is in a better position than CMOs to assess the fair market price, but the timing of valuations is an issue in fulfilling their role as market surrogate; and [4] CMOs’ evolving governance structures may alleviate the issue. On the last point, Porcin used Access Copyright as an example of a CMO that evolved by shrinking their number of directors and recruiting them based on their industry knowledge and skills. She explained this may be an encouraging step toward reducing the disconnected valuations between CMOs and users).

Bobby Glushko – The lack of clarity about tariffs is not user-friendly

Glushko—Head of Scholarly Communications and Copyright at University of Toronto—brought a unique user’s viewpoint to the panel. Glushko, whose role is to help his institution identify, evaluate and mitigate risk, focused on the uncertainty of this area of copyright law. He explained that in his case, the uncertainty over whether tariffs are mandatory or not—combined with the uncertain potential outcome of valuations involved in those tariff hearings—made his job particularly difficult.

Glushko further explained how the Principle of Technological Neutrality, in light of the SODRAC decision, only exacerbates the uncertainty in his position. It remained unclear what activities constitute copying, whether they are compensable, and what the value of those copies may be.

Howard Knopf – If you don’t like the bridge toll you can swim across

Knopf closed the panel and described why CMOs might see the SODRAC decision as bad for business: it expressed a clear message that, for users, tariffs are not mandatory. Knopf detailed the historical nature of a tariff, proffering an analogy to the old train tariffs from Toronto to Ottawa to regulate train companies, and suggesting that these were only mandatory it you took that particular train—you could ride a bus, plane, bike or hitchhike if they were cheaper, faster or better means to travel. His argument was that the SODRAC decision gives users leeway to choose “alternate means of transportation” by clearing rights for works they want to use through different mechanisms without running afoul of the Act. Bouchard spoke up in disagreement with this analogy, clarifying that users are free to use alternate repertoire (reinforcing the mandatory tariff theory).

Knopf conceded an earlier argument by Bouchard—that tariffs are in fact regulations—but tempered the concession by adding that parliament is capable of adding explicit provisions to make such tariffs mandatory. In the absence of such language, tariffs as regulations still need not be mandatory.

Conclusion

In light of the disagreement between the panelists on whether the mandatory tariff ‘Spectre’ had been debunked, the panel illuminated the difficulty presented by Glushko: ��If we cannot agree on the very nature of tariffs, it makes it difficult for both users and CMOs alike to predict the implications of �����ٸ鴡��’s decision. And, with CMOs acting as representation for authors (and owners), and users often being authors themselves, it is hard to find where the SODRAC majority decision falls with regard to the Act’s role as balancer of the public interest and obtaining a just reward for the creator. Does it tilt in favour of the public interest, giving more transactional freedom to users and authors, and accordingly encourage dissemination of new works? Or, does it inject more uncertainty and place greater barriers to the just reward of creators? One thing is certain: the issue made for a fascinating and passionate panel.

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Agar began by expanding on his default indifference stating it is a frequent response to the entitlement displayed by people who often call the show facetiously promising that they would be doing Agar a favour by coming onto his show when in fact it is they who want his help. Agar expressed how this entitlement mentality—which he mused was likely a generational-effect from oft-received consolation trophies— fails to consider the abundant competition for media time.

The rest of Agar’s talk illuminated how to leverage media to overcome intense competition for airtime. He used several examples to differentiate the successful stories from the unsuccessful, starting with the successful: star of Dragon’s Den Kevin O’Leary and his surprising run for Tory leadership, which was as being neck-and-neck with that of Peter MacKay.

According to Agar, the key was not found in this quote often attributed (though unverified) to Theodore Roosevelt: “[n]obody cares how much you know until they know how much you care”; rather, it was found in Agar’s adjustment to that quote: “most people don’t care until they find out what’s in it for them”. To cater to gatekeepers’ interests in order to get a message out, Agar emphasized that brief, efficiently told stories—stories than can be told in one sentence—are most appealing to those gatekeepers not just because it makes their job easy, but because the story will be easily communicable to their audiences.

Further, if a brief one-line summary of an issue provokes more questions, it will be more likely to incite callers, on-air debate, and will be less likely to result in dead-air. Agar’s first example of a powerful description was the lead line: “people living in high-rise buildings in a city have less chance of surviving a heart attack”. This line tells a story entirely but also provokes immediate more questions (such as why?), making it vastly superior to those one sentence stories which do not, like Agar’s example of a botanical fair’s announcement and description.

Agar had advice beyond perfecting the quality of a pitch, also focusing on the importance of the degree of research and knowledge on the proposed subject. He pointed out that getting a message out through the gatekeeper does not guarantee the benefits generally yielded by the broadcast of that message. To illustrate his point, he recounted two disastrous stories of broadcast subjects: one who could not answer questions about her chosen topic (a school trustee who did not know why hypothetical marijuana retailers should not be in close proximity to a school even though LCBOs can be); and, another who was uninformed on her chosen topic (a teacher asking the public to “walk a mile in her shoes” who did not know taxpayers subsidized her salary).

Finally, Agar honed in on some other important factors which could contribute to getting him (and his audience) to care about you, including: putting the listener first, being assertive, being creative, and, seeing opportunities and capitalizing on them.

Though the talk focused on radio broadcasting, Agar tied his message back to the law and how to apply storytelling in the legal profession by relating the concepts he discussed to client advocacy and professional self-branding. Doubtlessly, the media can play a profound role in the former context, whether soliciting the media’s help in telling the story the way you want to tell it, or whether the media comes to you first, leaving you no choice in the matter. Also, it is unquestionable that lawyers in today’s climate can leverage the media to get the word of their services out to the public. As a law student, storytelling is a major component of the non-stop application processes I began the day I applied to law school, and Agar’s advice will no doubt stick with me long into my legal practice.

Jordan Fine is the IPilogue Content/Publication Editor��and a JD Candidate at Osgoode Hall Law School.

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