Throughout her doctoral studies, Amanda Turnbull has grappled with the legal consequences of “machines doing things with words.” Her timely dissertation, Law, Language, and Authority: The Algorithmic Turn, completed in August 2024, offers a measured yet unflinching reflection on how artificial intelligence is transforming society and the law. Speaking over Zoom from her home in New Zealand, where she is now a at the University of Waikato’s Te Piringa Faculty of Law  Turnbull shared some insights from her research.

"With AI, there’s an algorithm at the end of the hammer.”

At the heart of Turnbull’s thesis is her contention that AI is “more than just a tool.” When we think of a tool, Turnbull suggests, we usually think of something like a hammer. There’s always a person at the end of the hammer, and they’re responsible for what the hammer does. In the context of algorithmic systems, commentators have proposed different alternatives for who that responsible party might be, including the programmer, the end user, and the company that owns the technology. But these approaches obscure the true novelty—and danger—of AI. With AI, Turnbull explained, “there’s an algorithm at the end of the hammer.”

Turnbull’s focus on algorithmically generated language reflects her thesis’s remarkable origins at the University of Ottawa’s Department of English. Although her original supervisor, the late Professor (Canada Research Chair in Ethics, Law & Technology), soon recognized that it belonged in a faculty of law, Turnbull’s dissertation maintains its indebtedness to mid-century philosopher of language, JL Austin—who, Turnbull was surprised to learn, was a close friend of the legal theorist . emphasized what words do in addition to what they mean. Adapting this framework to contemporary technology, Turnbull is less interested in what a generative AI like ChatGPT says than the difference it makes that a non-human actor says it.

The first of three “pillars” of Turnbull’s dissertation thus explores the consequences of AI’s participation in writing literary works. To be clear, “” according to Turnbull—but that doesn’t mean AI should have no legally cognizable role at all. Drawing on her early career as a classical flautist, Turnbull recognized that generative AI’s imitative reproduction of human-authored texts in its training data isn’t so different from the work of human artists. In her words, “there’s an amount of imitation that necessarily occurs when you’re being creative.”

Unexpectedly, Turnbull found inspiration in the “spectrum of authoring” developed by in the 13th century, long before the modern notion of authorship was developed. Generative AI, she asserts, resembles Bonaventure’s “commentator,” a mid-point between an author and a mere scribe, who clarifies and expands on pre-existing texts. By referring to generative AI as a commentator or “expositor,” lawmakers can reserve copyright for human authors without turning a blind eye to the authority embodied in algorithmically generated language.

That authority is at the centre of the second and third “pillars” of Turnbull’s research, which examine the legal implications of algorithmic contracting. As coined by , an algorithmic contract is a contract in which the main terms and conditions are drafted not by human actors, but by computer systems.

Key for Turnbull is how the systems behind algorithmic contracts exercise “derivative” authority without legal intent. For this reason, algorithmic contracting is “in no way” similar to earlier technologies such as click-wrap agreements, standard form contracts, or the archetypal pen and paper. In other words, there is no “functional equivalence” between algorithmic contracting and other platforms. Courts should therefore reconsider both the notion of technological neutrality and the application of intent-based contract doctrines, including the doctrine of unconscionability recently revived by the Supreme Court of Canada in .

In the third “pillar” of her thesis, Turnbull discusses how unconstrained algorithmic contracting creates the conditions for technology-facilitated sexual violence. She focused on Uber and the instances of sexual violence involving drivers and passengers documented in its 2019 safety report. Sadly, Turnbull described this chapter as “the easiest to write,” since it quickly “became obvious that this is a new way of exerting harm.” Yet the solutions to these problems are far from straightforward. In Uber’s case, the issue permeates the firm’s corporate culture and overall attitude toward innovation, she contends, which has failed to truly consider “the whole web of entanglements” impacting algorithmic language.

Ultimately, dealing fairly with AI will require “extraordinary ways of thinking” on the part of courts and regulators. But Turnbull is confident the law can adapt. The entire law of contracts and copyright, for example, can be seen as areas that have constantly adapted to new technologies. By approaching the algorithmic turn with both bravery and nuance, courts can learn to recognize AI as something that’s more than a tool, but no substitute for genuine human authority and intent.

Going forward, Turnbull is keen to use her dissertation, which was supervised by IP Osgoode Director , as a basis for further explorations of technology-facilitated gender-based violence such as platform violence and “onlife” harm—a term to describe the intersection between experiences online and in ‘real life.’ At the same time, Turnbull is interested in how algorithms have played a positive role in certain legal contexts. Although, as she says, “we’re hot to jump on technology and focus on the negatives,” in a forthcoming article on the 1999 Canada-US Pacific Salmon Agreement, she and co-author Donald McRae will explore how, “in this case, the algorithm solved the dispute.” Turnbull also plans to publish her dissertation as a book and to return to another book she began writing even before beginning her PhD—a fictional novel that is, aptly, about Austin, Hart, and the father of computer science, Alan Turing…

John Nyman is a student at Osgoode Hall Law School (JD '26) and an IP Osgoode JD Research Fellow

The post Osgoode PhD Amanda Turnbull Investigates How Algorithms Do Things with Words appeared first on IPOsgoode.

It is common practice for jockeys to equip horses with blinders. The effect is to narrow a steed’s field of vision to prevent it from panicking or becoming distracted by peripheral objects. Members of the legal profession tend to adhere to a similar practice. Although creativity is tolerated, our industry highly values precision. Hence, articles on intellectual property sometimes lack character. Lawyers tend to employ legalese and a bland writing style when commenting on legal issues, prioritizing directness and efficiency over the human issues in a case. Perhaps this is what makes “” so refreshing.

Published by the New 91��ɫ Times on October 5^th, 2021, “Who is the Bad Art Friend?” details an ongoing legal dispute between two writers, Dawn Dorland and Sonya Larson. In 2015, Dorland decided to donate one of her kidneys to a stranger. Before the procedure, she created a private Facebook group so she could share her experience with others. The group included close friends and family members, as well as several writers from her local community. Little did Dorland know that one such member would eventually write a story in response to the preceding. Dorland shared many personal feelings with her Facebook group, including a heartfelt . A year after her surgery, she happened upon “”, a short story by Sonya Larson about a narcissistic white woman who donates a kidney to “save” a person of colour.

There is no copyright in facts and historical events; however, writers can claim copyright in their letters if they are sufficiently original. Like Dorland, the protagonist in Larson’s narrative writes a letter to her kidney’s beneficiary. While this alone is not sufficient to give rise to a claim for copyright infringement, Dorland and the protagonist do express similar sentiments. Dorland and her lawyer sent various cease and desist letters to Larson and her publishers, but it wasn’t until Dorland happened upon an audio recording of an earlier iteration of “The Kindest” that she decided to take action. In her original version of “The Kindest”, Larson included a near-verbatim replica of Dorland’s letter:

Dorland’s letter: “Personally, my childhood was marked by trauma and abuse; I didn’t have the opportunity to form secure attachments with my family of origin. A positive outcome of my early life is empathy, that it opened a well of possibility between me and strangers. While perhaps many more people would be motivated to donate an organ to a friend or family member in need, to me, the suffering of strangers is just as real.”

Larson’s audio version of the story: “My own childhood was marked by trauma and abuse; I wasn’t given an opportunity to form secure attachments with my family of origin. But in adulthood that experience provided a strong sense of empathy. While others might desire to give to a family member or friend, to me the suffering of strangers is just as real.”

Following further back-and-forth, Dorland decided to sue Larson for copyright infringement and intentional infliction of emotional distress in the United States District Court for the District of Massachusetts. Dorland had received backlash from several prominent writers and members of the pair’s community, many of whom believed the damage to Larson’s professional reputation was an egregious consequence of the situation.

“Who Is the Bad Art Friend” offers little in terms of legal nuance. , her copyright infringement claim is still pending. If the case proceeds to trial, its outcome will likely rest on whether the Court believes the letter in Larson’s story is transformative or derivative of Dorland’s letter. If transformative, Larson’s appropriation may amount to nothing more than plagiarism, which is not in itself actionable; if derivative, Larson’s actions may constitute copyright infringement unless she can successfully argue fair use. Nonetheless, Robert Kolker’s article is noteworthy because it draws attention to the fact that Dorland and Larson are real people.

“Who Is the Bad Art Friend” contains the expressed thoughts and feelings of its subjects, in contrast to articles in legal journals, which typically omit such information. Because it encompasses aspects of human interest, it enables readers to become personally invested in its outcome. As such, I personally believe more legal commentators should try to incorporate elements of human interest into their articles. The Intellectual Property Journal does not need to emulate the New 91��ɫ Times, but a publication bridging the gap between the two could definitely increase interest in, and accessibility to, our profession.

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Professor David Vaver is a Member of IP Osgoode’s Advisory Board and a Professor of Intellectual Property Law at Osgoode Hall Law School.

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Professor Pina D’Agostino is the Founder and Director of IP Osgoode and a Professor of Intellectual Property Law at Osgoode Hall Law School.

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In the recent copyright infringement case of , the plaintiffs — the heirs of the late Thomas P. Kelley who authored The Black Donnellys (1954) and Vengeance of The Black Donnellys (1962) — sued as owners of the works’ copyrights because of a special provision in the . of the Act returns any copyrights that an author assigned during his lifetime to the author’s estate 25 years after his death. Justice McHaffie referred at para. 14 of his judgment to the plaintiffs’ having acquired their rights “by operation of [that section] known as the ‘Dickens’ provision.”

This is not the first time that section 14 has been referred to as “the Dickens provision.” Over 20 years ago, in , Justice Wilson wrote that “[t]his complex statutory framework of reversionary copyright was originally created in England to relieve against hardship suffered by the impoverished families of deceased authors; it is known colloquially as the ‘Dickens’ provision.” Some American and Canadian writings since then have also referred to section 14 that way. The story seems to be that the original reversionary provision in the Copyright Act 1911 (U.K.) (the “1911 Act”), which made its way into the copyright law of Canada and other British dominions and territories shortly afterwards, was enacted following public outrage that the publishers of Charles Dickens’ books were making money off them while the many members of the late author’s family remained destitute.

If true, this would be a good — indeed almost Dickensian — story. It however seems hard to see how the 1911 provision would have helped Dickens’ family. The 1911 Act extended the term of existing copyrights and applied reversion to existing assignments; but all of Dickens’ copyrights had expired by then and the Act did not revive them.

We are curious to know more about this origin story. For one thing, the UK parliamentary debates preceding the UK’s 1911 Act do not appear to mention it; nor do any of the British textbooks on copyright of the period; nor do members of the English copyright bar we have approached know anything about it. Admittedly, the UK repealed reversion in 1956 for future works, but it continued to apply it to then existing assignments, as those familiar with the Redwood litigation from the 1970s will be aware: see e.g., Chappell & Co Ltd v Redwood Music Ltd [1981] RPC 337 (HL) and the parallel proceedings in Redwood Music Ltd v Bourne Estate (1995) 63 CPR (3d) 380 (Ont SC), affd (1999) 84 CPR (3d) 414 (Ont CA).

Can any IPilogue reader shed light on whether section 14 truly deserves the name of “the Dickens provision”? Does the nomenclature rest on fact or folklore?

Please reply in the comment section below or directly to dvaver@osgoode.yorku.ca or gdagostino@osgoode.yorku.ca. Any insight gratefully received.

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J: So, could you tell me about The Archaeologists?

H: It’s a book I’ve been writing for about six years or so. It focuses on the fictional edge city of Wissisauga, Ontario, and the discovery of what may be human bones in a suburban backyard. So there’s a series of characters that we meet who all have ambitions around this discovery, and they try to shape it to benefit themselves, or to fit it into how they’d like to see the world. It’s a bit of a thriller, and a bit of a mystery, where a lot of the chapters ends with an “oh I can’t believe they did that.”

J: Does it have any thematic links to your previous works?

H: All my books in one way or another are about how we define ourselves, and how we come to terms with the story that we are trying to tell. We try and make that story actually reflect itself in the real world, which often doesn’t care about what we think of ourselves. So in terms of the big picture, all of my books are about identity and alienation in the so-called postmodern milieu.

J: So why did you decided to pursue online serialization, prior to traditional publishing? How does this impact the way you create content— and the way your content will be viewed?

H: There isn’t just one thing that led to my decision. Of course, the content of the book comes first, and I thought the material lends well to the format. You see the world through six different characters, with each chapter focusing on a new perspective. So I think it’s fun to read it as a serial once a week, and gradually see the connection between these characters. It makes sense for this kind of book, where the whole point is to create separate, but cohesive stories that would pull people in.

Then of course, there are some experimental reasons. As novelists, we are in a losing battle with the internet. You battle constantly trying to protect your copyrights, and to make sure people don’t illegally download your books. You’re battling against behemoths like Amazon, which make life very hard for more offbeat work— or anything that isn’t a mainstream bestseller.You’ve got a million clickbait links every day. You got every kind of entertainment, fighting for attention. The full length book doesn’t really have a great place on the internet, despite various people trying.

Sometimes you just get tired of fighting, and you just wanna try to find some way to make the internet work for you. So this is a cultural experiment in many ways: can I pull people into a story in such a way that wouldn’t be possible without the connective tissue that is the internet?

At any rate, the worst thing that can happen is some people read it online, and decide not to buy the book. But even then I have reached more people than I could have otherwise reached.

J: So much of your work has a strong emphasis on the impact of technology on pop culture. What sparked your interest in this?

H: Well, if you go way back, when I first started broken Broken Pencil, I was mostly focused on fiction, and my interest was in celebrating “weird writing”. But then I started analyzing what sort of material people were putting into the underground culture. That’s what got me thinking about how the technology of mass media was affecting what people thought about themselves, and how they injected themselves into the world.

J: Your last non-fiction book, Trees On Mars, deals with what you describe as a wave of unfounded optimism that is sweeping our world— a prevailing belief that the future will be better, and that technological innovation will solve our problems. You talk about the dangers of this ideology, and the need to overcome it. Are you optimistic this will happen?

H: No, I’m not optimistic at all. I’m what you might call a pessimistic optimist, in the sense that I don’t believe we are going to make many meaningful changes in our society. We use technology to increase the speed of our consumption. I don’t think any of that is going to change.

But I think there is optimism to be found in telling the story of how we became who we became. Not because we’re going to change, but because the really redeeming part of humanity is our capacity to tell stories. If there is any redemption, it’ll perhaps in some future society, probably of sentient cockroaches (laughter).

J: So would it be fair to describe the book as a critique of the Enlightenment worldview?

H: Yes, but also the post-industrial idea of mass consumption. The idea that giving people the trappings of a comfortable life will lead to a kind of happiness. That really hasn’t happened.

In all my work, there’s a connection to the story of how people live. The story is what is important to me. So while Trees on Mars is vitriolic, it does introduce you to these endearing, if occasionally misguided characters. Real people who are trying to take the messages that come through our mass media, who are trying to make themselves whole with them.

That’s what the characters are trying to do in The Archaeologists. Throughout all my work, there’s this sort of great melancholy longing— it’s the longing for a sense of wholeness, a sort of community that the postmodern person has lost in clawing their way towards a perfect suburban life.

J: Well, this is all quite grim.

H: (Laughter) Am I scaring you John?

J: (Laughter) A little. But you did mention storytelling as a bright point in the human condition. So going back to our theme of “Digital Creativity: Culture Reimagined”, would you say that technology has at least helped us tell better stories?

H: Hmm, I don’t think I would say that. I would say that culture and technology are… almost irrelevant to each other in many ways. Technology can be used to tell good stories or bad stories. They can be used to ramp up hatred, or to spread propaganda. For me, modern technology is a neutral entity in the sense that anything can go through it.

If we look at the history of the story, there was the oral tradition, mostly songs and poems. Then there was the handwritten tradition, in which laboriously copied texts were handed down. And then we move to the printing press in the 15th century, which was the first significant break. With the printing press, we shifted away from the local view of culture, the view that these stories are the lifeforce of society: what we tell each other to make sense of our society. We shifted to the view that stories are just part of entertainment, a commodity.

So if we look at what the culture is today, we see a culture that is being pushed out ever faster and in more frantic bursts. I don’t think we can say that this is a better story. We can certainly say that there is a lot more story… which is line with the consumptive imperative. This isn’t necessarily bad, but it requires a wholly different way of understanding culture.

J: So, I guess that bring us to the present. Intellectual property regulation has strengthened significantly over the last few years, but it’s becoming increasingly difficult to enforce. What role do you think the law has in promoting creativity in the 21st century?

H: I don’t think I can fully answer the question. But as an artist, as a creator, I regularly receive updates that my book is now up on some torrent website (laughter).

But nowadays, people have this penchant that if you can’t protect your work, then no one would buy it. But at the same time, that is only true when you look at it in the context of a consumptive society. The people who feel close to me, who feel like we’re part of one community, are going to buy the book regardless of whether they can get it for free. And the people who see me as a commodity, and my works as another consumptive object, are going to steal it regardless.

So from the writer’s perspective, we need to do everything we can to create that sense of community. If we can’t do that, then we’re just another faceless person who’s trying to scramble up the ladder. One of my main goals behind the online serialization of The Archaeologists prior to publication is to build a sense of community. To offer up something for free, and after serialization, ask the readers to decide if they want to support a member of their community who has offered this to them.

So getting to the issue of the law, I think there is no real blueprint for this. We’re in uncharted territory. We need to recognize that there has to be a lot of flexibility in helping creators achieve their goals. So can lawyers also think this way? Can they help create a legal framework in which creators can operate as they’d like to operate? I think the whole legal system needs to be very careful in what they’re advocating for, because there is a very complicated relationship in all of this. It’s not just an issue of better laws in terms of protecting creators— it may be the case that the creators don’t want laws that prevent them from operating the way the way they want to operate, and creating what they want to create.

Hal Niedzviecki’s new novel, The Archaeologists, can be read .

John C.H. Wu is an IPilogue Editor and a JD Candidate at Osgoode hall Law School.

The post Storytelling in the 21st Century: An Interview with Hal Niedzviecki appeared first on IPOsgoode.

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

The post IP Osgoode Speaks Series featuring Dr. Abraham Drassinower: What's Wrong with Copying? appeared first on IPOsgoode.

The public domain as the “storehouse of the raw materials of creative expression, freely available to all.” Integral to��the copyright system, access to the public domain facilitates��the spread of knowledge as well as innovation, artistic freedom and more. Furthermore, access to the public domain should ideally allow for dialogue and the debate��of various ideas. Some believe in “a public domain that reflects and protects the dialogic processes of culture on the face of increasingly restrictive intellectual property structures.” ��compare it to freedom of speech, claiming that “both the public domain and the principle of free speech construct, or aim at constructing, a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle.” No matter what concept you ascribe to, however,��dissuading��editors from publishing newly edited versions of Mein Kampf runs counter to the��spirit of a robust��public domain. What is important here is not the unrestricted availability of the manifesto as a symbol of humanism-contradicting��ideologies, but rather the unrestricted access��to��a pedagogical tool that can spark��dialogue through commentaries and annotations, and the contradictions or lies these notes can highlight.

Mein Kampf’s history after Hitler’s death also justifies a reedited version of the manifesto. Having inherited the rights over the book from the Nazi leader’s estate, the State of Bavaria was able to the copying and printing of new editions in all of Germany. Considering the historical and legal context, that decision was understandable, but ultimately incompatible with the copyright system.�� The public domain plays a crucial role in the of intellectual property, a system defined by monopolies and exclusive rights. By preventing further publications, the State of Bavaria used this very system as a tool for censorship, when the systems'��primary goal is actually to . If the public domain is indeed to act as a balancing sphere, then its respect calls for the existence of an annotated, explanatory version of Mein Kampf as opposed to yet another form of censorship.

The reediting of Mein Kampf is even more relevant in today’s context than it ever was. Once it falls into the public domain it will be available to anyone and everyone via the Internet. The digitalization of our society is an to the access of the public domain, but it also makes ideas even easier to propagate. The State of Bavaria’s ��to limit the distribution of Mein Kampf in other countries have been mostly unsuccessful, as Hitler’s book has become quite popular in certain regions of the world, including��the . Mélenchon was right to say that , and concerns coming from the propagation of Nazi ideology��in an already fragile Europe are legitimate.��The counteracting existence of a pedagogical,��annotated version of the manifesto, however, will be more than necessary to fight the possible misuse of Mein Kampf and explain the pitfalls and horrible consequences that can arrive from such a point of view.

Allowing the publication of Mein Kampf may seem counter-intuitive, as no one can deny the dangers of the manifesto’s ideology. We cannot deny, however, that the book is part of our global history and��heritage. The public domain plays an essential role in��the ��by refusing to��edit��out��historical lows so that we can avoid repeating the��mistakes of��the past. Its purpose is to let us grow as a society, through access to��knowledge.��By not making a distinction between immoral and moral works, the public domain has decided to stand by the belief that “.”

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

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In essence, through its bi-lateral agreements with the , Google would acquire books from the library’s collections, which it would then digitally scan and translate into a machine-readable text. This machine-readable text would allow users to search for key words or terms and be provided with a list of all books in Google’s database in which those terms appear, as well as the number of times the word or term appears in each book.

According to , this index-like service instantaneously provided the public with vital information about books that “would otherwise not be obtainable in lifetimes of searching” without “providing the public with a substantial substitute for matter protected by the [Authors Guild’s] copyright interests in the original works or derivatives of them.” The Authors Guild took issue with this and contended that permitting users to read portions of the book, through Google’ “snippet function” service, was not a “transformative use” as articulated in

The Court reiterating the essence of , stated that “the more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”.

In the case at hand, the Court found the ability for users to search millions of books for a particular term of interest was transformative and that the information displayed by Google was intentionally limited to ensure that the search results did not provide for a substitute of the original work.

Not everyone is in complete agreement with the Court’s interpretation of “transformative use”, according to , “Google Books is not the digital equivalent of a library card catalogue or even a CliffsNotes summary of each text, but a full-text compendium of all the books Google scanned….Google has not transformed the text of the books in any way—indeed maintaining the full text exactly as published is necessary and essential for the service to function”.

The Author’s Guild shared similar sentiments and hinted at appealing the ruling and hoped that the Supreme Court would correct the Court’s “”.

Unfortunately I will have to part ways with Mr. Parness and the Authors Guild and argue that the Court came to the right decision - sufficiently balancing both the interests of the public and those of the authors. The search services provided by Google are tremendously useful to researchers, students, and to the public at large, and at law, the conduct falls squarely in the realm of non- infringing fair use.

Although I am persuaded by this argument, I am also sympathetic to the concerns raised by the Authors Guild, (which were dismissed by the Court); namely that, despite the , rights-holders would be placed at risk of hacking, which could lead to the widespread unauthorized publication of their works on the web, resulting in the devaluation of their copyright. The cybersecurity threat is very real, as we have learned over the , but unfortunately, the contained within the Copyright Act is not the optimal (or even recommended) tool to combat the risk of future online infringement. It will be interesting to see whether or not the Supreme Court of the United States considers this issue, if it decides to hear the case, and conducts its own fair use analysis.

Mahdi M. Hussein is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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Joseph Goebbels acted as the minister of propaganda to Adolf Hitler during the German Nazi regime. The biography outlines that his propaganda prowess��supported Hitler’s power, prolonged the Second World War, and fuelled hate and mistrust towards Jewish individuals. From , Goebbels��meticulously recorded his strategic plans for the Nazi regime in his diaries.��Random House initially agreed to pay a royalty fee for their use but later recanted, arguing it had to paying a war criminal’s estate.

Random House presents two arguments for its position, namely that (1) the claim is immoral because the estate wants to benefit financially from Goebbels's work, and that (2) the government ought to own the copyright to historically controversial works. The author of the��, Peter Longerich, extensively quotes from Goebbels’s diaries and infers about Goebbels's��personality traits from the their contents. Longerich states in the book that the diaries are “the basis of [the]��biography and one of the chief sources for histories of the Third Reich”. However, they are copyright protected until the end of 2015, and claim to be owned by��, daughter of Hitler’s former minister of economics.

Random House��explains��that the diaries should be exempt from copyright protection due to their lack of morality.��In most countries copyright is content neutral. This means that copyright protection persists irrespective of the work's quality or morality. For example, section 5 of the Canadian Copyright Act states that copyright subsists in [Emphasis added]. While��this supports freedom of expression, it also protects material that some may��regard as immoral. Certain��countries indeed��consider morality and public decency when determining whether a work is copyright protected. For example, until last year pornography was unprotected in Taiwan due to its indecent nature. Recently, their IP court����that some types of��offshore��pornographic videos may be copyright protected. Therefore, morality may��influence��whether a work is copyright protected in some countries.

Furthermore, Longerich expressed��that vital historical documents . The diaries are important because they describe the beginning, success and eventual demise of the Nazi regime. Goebbels recorded and drafted many of his propaganda ideas within these documents, which present an invaluable insider perspective. Counsel for Random House��also argues that Goebbels intended for the government to own the copyright, and challenges Schacht’s claim to the documents. Similarly, the copyright to Hitler’s ‘Mein Kampf’ . Dresen’s argument that the copyright should belong to the government has��merit because it is unclear if and how Goebbels transferred his rights to Schacht’s family before his death. No contracts or known records that could indicate this transfer survived the war. And, it may be more appropriate for governments to own copyrights to historically controversial��works, so that financial benefits can proceed to charitable causes.

Copyright law necessarily balances user rights with author rights. This bargain allows an author to share their ideas in exchange for economic rights. Subsequently, the author attains the right of ownership, and the right to exploit the work as an article of commerce. Therefore, although Random House maintains that it is immoral to financially benefit from this literature and that the government should own the copyright,��it is unclear whether its two arguments will succeed.

Last month, the Munich Higher Regional Court ruled in favour of Schacht, stating the estate was owed royalties for the use of the diaries. However, Random House��is appealing��this decision because it strongly believes that nobody should benefit financially from the works of war criminals. It will be up to the German Supreme Court��to��decide whether morality has any influence on German copyright laws.

Gosia Piasecka is an IPilogue editor and a JD Candidate at Thompson Rivers University Faculty of Law.

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Procedural History

In May 2010, a collection of lawyers and law firms in Canada launched a class action suit against Thomson Reuters, alleging that the company’s Westlaw “Litigator” service directly infringed works in which the individual members owned copyright. The claim, led by representative plaintiff , alleged infringement in over 50,000 works available through the Litigator service, and sought general damages of $50 million, as well as $1 million in Punitive Damages (IPilogue’s coverage of the initial is available ).

In February 2012, for the proposed action under the , 1992, SO 1992, c C-6 (for IPilogue’s coverage of the certification, see ). In the decision granting certification, the Court noted certain public policy problems involved in granting copyright protection to the types of material included in Westlaw’s Litigator service. Citing IP Osgoode's , Judge Perell noted in paragraph 93 that recognition of copyright in such materials

would affect the ability of lawyers to serve other clients and would detract from the profession’s obligation to serve the public to the best of its ability, would promote needless variety when standardization and consistency in legal expression would be beneficial, and would monopolize legal services and suppress healthy competition.

However, as this was a certification proceeding, the Court declined to rule on the merits of the action and specifically made no finding on the existence or restriction of copyright protection in court documents.

The Proposed Settlement

Two years after certification, and four years after the action was commenced, the parties negotiated a settlement agreement. One major factor spurring settlement was , two of which (Society of Composers, Authors and Music Publishers of Canada v Bell Canada, and Alberta (Education) v Canadian Copyright Licensing Agency, ) dealt with the fair dealing��exception in a manner which had a direct impact on the litigation.

Counsel for the affected class saw these decisions as “substantially increase[ing] the litigation risk for the Class Members” [], as the decisions of the Supreme Court provided Thomson Reuters with a broader fair dealing defence, and clarified that the for-profit nature of its Litigator service was not an insurmountable barrier against pleading fair dealing under The negotiations which followed were, in the words of the Court, “adversarial, arm’s length, and intensive.” In the end, Thomson Reuters made no admission of liability, and continues to deny the validity of Waldman’s claim.

Nevertheless, the parties were able to come to a mutually agreeable conclusion. Thomson Reuters insisted on a licence as part of the settlement, to avoid any claims in the future. Counsel for the class members proposed that Thomson Reuters fund a cy-près trust in the amount of $350,000 in lieu of direct compensation for individual plaintiffs, as specific losses were impossible to calculate.

The settlement also included mandatory copyright notices to users of the Litigator service about potential third-party copyright claims affecting the material accessible through Westlaw’s database. Class Members were permitted to opt out of the settlement, and Counsel for the plaintiffs secured $825,000 in legal fees as part of the settlement.

Fair and Reasonable: Objection to the Settlement and its Rejection by the Court

This proposed settlement was objected to by seven class members, all of whom are individual lawyers whose works appear on the Litigator service. Of these seven, five explicitly mention the disproportion between the amount awarded to the Class ($350,000) and the amount awarded to Class Counsel ($850,000).

Of the remaining two lawyers, one strongly objected to the notion that he retained any copyright in his court documents after they were filed, and objected to the suit on principle. Another objector claimed that no licence should be given to Thomson Reuters, as the settlement would therefore confer a direct benefit on the defendant (a licence) but only an indirect benefit on the plaintiffs (a fund for public interest litigation).

The Court agreed with the objecting Class Members, and rejected the settlement on the grounds that it was not fair, reasonable, and in the best interest of Class Members. In particular, Judge Perell emphasized that the paramount concern in approving a proposed class action settlement is access to justice. Moreover, the decision contains a consideration of what the phrase “access to justice” means in the context of class action settlement. In addition to substantive and procedural fairness, the Court held that a consideration of fairness in the context requires a court to consider:

circumstantial fairness, i.e., the fairness of the settlement to the parties and the class members in their particular circumstances, institutional fairness, and the fairness of the settlement from the perspective of a robust notion of access to justice that includes an outcome that objectively should satisfy the class members’ entitlement to justice for their grievances.��[]

In particular, “institutional fairness” prevents a Court from “rubber stamping” settlements, to avoid setting an example through which fatigue, incompetence, opportunism, or the business model of Class Counsel or representative plaintiffs will result in a settlement which restricts the legal options of individual Class Members.

In the current settlement, the Court found it was unable to approve the settlement both because the award to Class Counsel was larger than that to Class Members, and because the settlement effectively “expropriates the Class Members’ property rights in exchange for a charitable donation from Thomson” [].

Moving Forward – Class Actions and Copyright Infringement in Canada

The decision contains valuable insight into judicial approval of class action settlements involving copyright infringement in Canada. The idea of class certification in copyright infringement actions seems at first��glance to overcome some of the current barriers imposed on rights holders in asserting claims in the current legal climate – in particular the difficulty of proving individual damages, the restrictions on statutory damages imposed through recent legislative amendments, the limited means of some rights holders, and the relative power of organizations which distribute and communicate works to the public.

However, the decision in Waldman v Thomson Reuters shows that such actions have substantial public policy considerations involving access to justice. In particular, the decision shows that “access to justice” means something particular in the context of a settlement. The access to justice at issue is that afforded to members of the Class, not general projects – such as a fund for public interest litigation – which may provide access to justice for society writ large.

In addition to the concern about optics, the Court also addressed the ability of Class Members to “opt out” of the settlement agreement. ��Since classes are certified in part because individual members lack the resources to pursue claims individually, the Court saw the argument that the settlement was fair because individual members could opt out as “specious.” Class action infringement suits may offer Canadian rights holders a powerful option for protecting their intellectual property, but the Ontario Superior Court has made it clear that such options must be exercised with a real concern for the Class Members whose rights are being protected.

David Bowden is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School

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The McGarvie and Mosner paper takes advantage of new resources provided by��, a resource which allowed the authors to compile a systematic data set consisting of payments to authors for first edition print runs in the early part of the nineteenth century. The lion's share of data comes from Longman & Co, the London publisher of some of Sir Walter Scott's novels – one of the most popular authors in history.

Scott's career straddled a significant change to copyright law in Britain. The increased term limits to 28 years, or the rest of an author's life (if he or she were still living at the end of the term). One effect of this extension was that individual authors now had a more substantial right to sell to publishers. These authors could therefore demand higher rates of compensation in exchange for the exclusive licences often granted to publishers as a matter of course.

The results of this study are quite persuasive: following the increase in term limits, the average payment to authors nearly tripled. The authors note that some of this increase is driven by the inordinately large sums of money paid to Sir Walter Scott, as in the nineteenth century, famous authors received considerably more money for their work (a strong parallel with the situation today). Yet even excluding the payments to Scott, McGarvie and Mosner show that payments to the average author nearly doubled in the period following the 1814 increase.

Not everyone was able to benefit from the increase in copyright. As records on the British Fiction database suggest, Jane Austen was regularly disappointed in the terms offered for the sale of the copyright in her novels. In a , she notes with disappointment the deal offered by John Murray, her publisher for her novel Emma:

"Mr Murray's Letter is come; he is a Rogue of course, but a civil one. He offers £450 – but wants to have the copyright of MP [Mansfield Park] & S&S [Sense and Sensibility]. It will end in my publishing for myself, I dare say."

The authors urge caution, however, in using the study to make assumptions about current copyright term limits. The nineteenth century creative industry, after all, bears significant differences from our own:

It is important to keep in mind that the 1814 Act increased the length of copyright starting from a low base of pre-existing rights at 14 and 28 years. By comparison, modern changes increase the length of copyright starting from a high base of pre-existing rights, at 50 years or more beyond the death of authors. At extremely high levels of pre-existing rights, the incentive effects of an additional year are likely to be small. The costs of stronger copyrights in terms of limiting diffusion, however, may be substantial.

McGarvie and Mosner also emphasize that the study shows correlation and not causation. While the extension of copyright may be one factor that led to increased payments to authors, it is important to keep in mind the rapidly changing nature of industry and technology in early-nineteenth century England. The creation of modern finance allowed publishing houses to effectively borrow capital in order to increase their output; developments in paper-making technology probably helped reduce production costs; and the development of railways allowed all consumer goods to be sold in increasingly expansive geographical markets. Just like today, legal protections are meant to protect creative industries and incentivize production – but they do not provide a complete picture of the marketplace.

David Bowden is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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