This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,�� where�� it ��is�� seen�� as�� a ��mechanism�� for�� blocking ��out�� competition�� and ��censoring��criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

Tina Mirzaei��is a JD Candidate at Osgoode Hall Law School and was 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.

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

��5����Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September ��11, ��2017), ��online:���� ��<https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

��9����Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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Melania Trump’s apparent plagiarism of a Michelle Obama speech is by no means a rarity in politics. Politicians, like so many other prominent and , have a of copying without attribution, from student papers (which, as so many students are repeatedly warned, is grounds for expulsion) to public speeches. Though widely-publicized, did this plagiarism amount to actual copyright infringement? Political fallout aside, can this type of copying be seen in the same light as, for instance, ?

The relevant textual comparison can be found in the New 91��ɫ Times article .

While the speeches undoubtedly bear a fairly striking resemblance, it is not unheard of for politicians of all stripes to use . Much as some argue there are only to the stories we tell, there are certain themes most, if not all, politicians employ in their speeches. Indeed, it becomes very difficult to determine what is merely inspired by or what makes use of common elements, as can be seen in the complicated cases of , and what is actual copying. It is useful, then, to examine the issue from a legal perspective, rather than a purely sensational or popular one. It is also worth considering what the absence of moral rights in the U.S. means in this situation.

Blatant Plagiarism?

Not necessarily. Cases like this one are more likely to be tried in the than in a court of law. The standard for copyright infringement is considerably than mere similarities easily picked up on by observers and media. The original speech itself undoubtedly has copyright (as an original literary and dramatic work). Where political speeches especially can complicate the analysis is in the and in elements.

Political narratives tend to hit on several major themes over and over again. For example, the story of the self-made man who rose up to run for President has endured from the times of Presidents born in to recent recounting of politicians’ “” . Therefore, in a copyright context, these themes and stories would not be protected – they are the common stock of political narrative. Returning to Ms. Trump and Ms. Obama’s speeches, the ideas of hard work, respect, and following your dreams are arguably unprotectable as stock elements for many political figures.

Nevertheless, the expression of those ideas remains copyright-. Had Ms. Trump, then, merely borrowed these run-of-the-mill ideas for her speech, it seems unlikely anyone would even have noticed. It is in her expressive copying, however, that there is evidence of plagiarism. Like a song that copies lyrics in addition to a common pop melody, the likelihood of infringement increases when literal and expressive copying intermingle. Indeed, the question becomes not whether there was copying, but whether what was copied was a of the original work.

Since the copying was more or less (i.e. literal copying), we must consider how much was taken and how important it was. Here is where we can see why this case has become such a . Ms. Trump did not just crib political talking points from Ms. Obama. She appeared to appropriate parts of her life story. And while facts and history are not protectable, even for , passing off a person’s history as your own is seen as much more than borrowing their ideas. At the very least, it is easy to see how this story was a substantial part of the original speech. That the copying barely disguised the original language only makes the infringement more obvious.

Moral Rights: What If?

Because Canadian copyright includes moral rights, we might ask what role they could play in such an instance. It is easy to imagine that, given their political differences, Ms. Obama would be especially displeased with Ms. Trump’s copying of her personal story. The Copyright Act gives authors of integrity, attribution, and association in their work. There is no comparable provision in the U.S. If there were, musical artists there might frequently claim moral rights infringement where their work is used to the “” by its association with a cause (Copyright Act, s. 28.2(1)(b)) such as a politician with whom they disagree.

In Canada, Ms. Obama could both demand attribution for the use of her work in Ms. Trump’s speech and assert that her moral rights were infringed via the use of her work in association with a political movement with which she must certainly disagree. Of course, the concern about prejudice to her honour and reputation must be in the circumstance, though given the divisive nature of U.S. politics today, that belief would certainly seem reasonable.

Borrow Responsibly

There are undoubtedly many political lessons to be learned from Ms. Trump’s speech. Beyond the public fallout though, an examination of the issue from the perspective of copyright law is informative. It is clear that politicians are unlikely to infringe when they trot out reusable themes and archetypes – the stuff of politics for centuries. Where they will run into trouble is when they borrow from personal narratives, and more obviously, when they copy the actual expression – almost word-for-word – of those stories. Further, it becomes evident that the absence of moral rights in U.S. copyright law make it difficult for authors of many types to prevent the association of their works with causes they do not themselves support. This plagiarism scandal will likely remain in the political realm, but it is worth noting that that arena is no less immune from copyright protections than any other.

Sebastian Beck-Watt is the IPilogue’s Content Editor and a JD Candidate at Osgoode Hall Law School.

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Ann Phibian��v The Canadian Frog Association

The hypothetical scenario devised by the moot’s sponsor, , raised several novel copyright issues. The plaintiff, Phibian, licensed 50 Shades of Green��to the defendant, the Canadian Frog Association (“CFA”) for promotional use. Phibian revoked her licence upon her discovery that one of CFA’s conservation programs, aptly titled "Switch and Bait", resulted in the death of frogs belonging to an over-populated species.

After complying with Phibian’s request to nullify the licence, the CFA contracted Greenback to replace Phibian's work. Using a Photoshop-like editing program,��and One Giant Leap as a mutual source, Greenback generated a suspiciously similar logo for the CFA. Outraged by the��similarity between her work and Greenbacks, Phibian sued for copyright and moral right infringement.

Among many novel copyright questions raised, the primary issues concerned: [1] the correct current approach to substantial similarity analyses of two works which borrow heavily from the public domain; [2] the admissibility of expert testimony and the role it should play in comparing two works; [3] the correct current approach to prove a work was copied; and, regarding moral rights, [4] the appropriate test for evaluating the potential prejudice to an author’s honour or reputation and how to apply that test.

The problem was drafted craftily and left certain key facts ambiguous (for example, there is no image of either leaping frog design found in the problem), so counsel for either side had ample wiggle room to devise and frame unique and creative arguments.

The Competition

After nearly five months’ of preparation, the Osgoode Hall Law School team attended the Moot on Friday February 19 and 20 at the Federal Court of Canada, along with eight other teams from law schools across Canada. The team was comprised of Alicja Puchta, Keton Motta-Freeman (Appellants), Jordan Fine, Ran He (Respondents), and Asad Akhtar (Researcher, both sides).

The competition opened midday Friday with a keynote speech delivered over lunch by��the Honourable Mr.��, former Justice of the Supreme Court of Canada (and current Distinguished Visiting Professor at Osgoode). His lecture, titled “The Value of Copyright: Applying the Principles of Technological Neutrality and Balance”, focused on the recent Supreme Court decision [SODRAC], Justice Rothstein’s final written decision before his retirement.

The SODRAC decision is contentious. The majority’s endorsement of technological neutrality in copyright has been argued as outdated and anti-technology. It was recently the subject of a recent , organized by Osgoode and the University of Toronto, where three panels dissected and debated the decision's potential impact on the , , , and all other��industries, institutions and organizations who create, use, license, and manage copyright works.

Justice Rothstein discussed the reasons behind his majority opinion and the dissenting opinions by Justice Abella and Justice Karakatsanis. In particular, he focused on legislative language, statutory interpretation and the intentions of Parliament (or lack thereof) which supported his decision that the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology. The team discussed the lecture and SODRAC during our breaks, and while some of us were unsatisfied by the result of the decision, we were all persuaded by Justice Rothstein’s sound reasoning. His presence on the bench and contributions to matters of Canadian IP law will be missed, but we are proud and thrilled to have him join the Osgoode community.

Qualifying Rounds

The preliminary rounds shortly followed the luncheon at the Federal Court building in downtown Toronto.��Each team was required to participate in three rounds. At this stage, the panels were composed of three members drawn from the judiciary and IP bar.

The Appellants kicked off the competition for Team Osgoode with submissions to Justice Victoria Chiappetta (Ontario Superior Court of Justice), Mark Biernacki (Smart & Biggar LLP) and Mario Bouchard (Former General Counsel of the Copyright Board of Canada). Despite a persistent barrage of hard hitting questions, the Appellants stood strong.��Their second submission on Friday was argued in front of the panel consisting of Justice Allan Diner (Federal Court), Allyson Nowak (Norton Rose Fulbright LLP), and Trent Horne (Bennett Jones LLP). The final submissions for the Appellant Team were made on Saturday morning to Mario Bouchard, Alexandra Peterson (Torys LLP), and Michael Charles (Bereskin & Parr LLP). Having received strong praises from the Moot Bench, Keton and Alicja’s strong performances in all three rounds placed them first among Appellant teams at the close of the preliminary rounds.

The Respondent Team began their rounds on Friday with submissions to Justice Paul Perell (Ontario Superior Court of Justice), David Aitken (Aitken Klee LLP), and Sana Halwani (Gilbert’s LLP). The Respondents argued two rounds on Saturday Morning: the first was argued to a panel consisting of Justice James O’Reilly (Federal Court), Heather Watts (Deeth Williams Wall LLP), and Brian Gray (Norton Rose Fulbright LLP); the latter to Jek-Hui Sim (Chairperson, Patent Appeal Board), Stephen Selznick (Cassels Brock LLP), and Essien Udokang (Baker & McKenzie LLP). Despite their vigorous delivery of oral arguments, Jordan and Ran finished in a tight fourth place among the fierce competition of Respondent teams, and just shy of making the playoff rounds.

Semi-Final Round

The Osgoode Appellants moved on to the semi-finals, where they faced the University of Ottawa (last year’s defending champions). Their��panel consisted of three judges: and Sharpe from the Ontario Court of Appeal, and Justice Gauthier from the Federal Court of Appeal. The round began with early rapid-fire questions from the judges, who peppered all four mooters throughout their submissions. With regards to the copyright issues, the judges were particularly interested in specific points of law, and whether, on the facts of the case, copyright infringement had truly been made out. The moral rights discussion was far more policy-infused: the judges asked questions at length about the appropriate test for demonstrating prejudice to an artist’s reputation. Everyone held their ground admirably, with both teams offering each other their heartfelt congratulations. The Osgoode team was ecstatic to see Justice Gauthier attend the final round to show her support (and even help offer a few last minute tips!) The team was also lucky enough to speak at length with Justice Brown later that evening at dinner, which was certainly one of the day’s highlights.

The Finals

The Osgoode Appellants made the finals and faced respondents from the University of Toronto. The two teams argued in front of a panel of five judges: Justice��Suzanne Côté��and��Justice��Rothstein��of the Supreme Court of Canada, Justice��David Stratas��of the Federal Court of Appeal, Justice��Kathryn Feldman��of the Ontario Court of Appeal, and Justice��Roger Hughes��of the Federal Court.��The judges asked tough questions, forced counsel to jump back and forth quickly between their submissions, and had them recall specific details from case law and decisions of the��fictional��lower courts. Neither of the teams crumbled under the pressure and the competition appeared close when the round closed.

The Gala

At the gala that evening, during a three-course meal at the stately University Club, the winners were announced. The respondents from the University of Toronto (Stefan Case��and��Victoria Hale)��took home first place and best respondent's factum award, and the appellants from Osgoode (Alicja Puchta��and��Keton Motta Freeman) took home second place and best appellant's factum award.��Stefan Case from the University of Toronto won best oral advocate and best mooter in a non-graduating year. Members of the awards committee described at length how impressed they were by����������mooters that day.

The Fox Moot was an incredible experience. A lot of work went into our written and oral arguments, and we would all agree that in addition to improving our legal skills and understanding of IP legal principles, we had a lot of fun along the way. A special thanks is owed to our coaches from Cassels Brock & Blackwell LLP: Steven Kennedy, Eric Mayzel and Peter Henein. Our success is a result of their tutelage and patient willingness to endure frog puns.

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The filed by the artists alleges, among other things, that the honour and reputation of the artists will be damaged if 5Pointz is destroyed or modified. To those who are familiar with copyright actions, this is a fairly classic moral rights argument. However, unlike countries such as Canada, France and Germany, the US does not provide authors of all copyright protected works with moral rights: only limited moral rights protection to creators of works of visual art under the .

VARA gives the author of a work of visual art two separate rights, although the two rights are somewhat conflated in the statement of claim.

The author of a work of visual art has the right

(A)��to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B)��to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The first right allows the artists to prevent the distortion or mutilation of works that will be detrimental to the artists’ reputations. The initial debate is therefore likely to turn on whether the destruction of the buildings, or even a portion thereof, containing the aerosol artists’ work will be prejudicial to each artist’s honour or reputation. Early decisions in Canada were reluctant to hold that the destruction of a work qualifies as “distortion, mutilation or other modification” or even that it is prejudicial to an artist’s reputation:^[1] once a work is out of sight, it is generally out of mind.^[2] But subsequent reforms to the deem if the work being distorted, mutilated or otherwise modified is a painting. Unlike the Copyright Act, VARA contains no similar deeming provision for paintings. The artists must therefore prove prejudice to their reputations.

In this case, 5Pointz is world famous and extensively photographed, and so the aerosol artists’ reputation may not suffer from the destruction. If anything, the destruction of the property may actually drive up the value of the artist’s reputation by limiting the number of people who have ever had a work on the site. After all, art loves scarcity.

The second right provides the artists with the ability to prevent the complete destruction of their works if it can be demonstrated that the works are of a recognized stature. However, recognized stature is not defined in the statute. Given the fame of 5Pointz the artists may be able to show that their works are well recognized and have legitimate stature in the art world. The multi-million dollar successes of street artists such as and demonstrate how large a space graffiti have firmly established in mainstream art culture. If the owners of a museum were intending to destroy a one-of-a-kind painting, similar arguments could be raised. Why should works painted on brick by aerosol be given any less legal protection than works painted on canvas by brush?

In the leading US case^[4] on the application of VARA to graffiti the court held that public policy reasons should prevent graffiti artists from asserting moral rights over works added to another’s property illegally or without consent. But what makes this case unusual is that all of the graffiti at 5Pointz were apparently done legally with the knowledge and consent of the buildings’ owner. Moral rights to graffiti works done with consent appear to be untested in US courts.

For artists and legal professionals, the lesson here is that moral rights can turn up in unlikely places and it is unwise to ignore them. In Canada, the grants authors, including visual artists, . However, the limits of these rights are largely untested, particularly as they relate to aerosol artists. The outcome of the 5Pointz action may therefore assist the development of Canadian law in this area.

For the time being, the 5Pointz lawyers have that the plaintiffs have been granted a temporary restraining order and are waiting to learn if they will be granted a hearing for a preliminary injunction. IP Osgoode will maintain a watching brief on developments.

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The ��emphasizes the importance of developing a��“cultural��policy��instrument��that,��through�������𲹰�,�������徱���ٲ������������Ի����ڲ�������rules,��supports creativity and innovation.” ��To help lawyers and judges keep in line with the goals of balance in copyright, and to achieve clear and comprehensive laws, it is important that we examine two vital questions concerning the UGC provisions.

1.��What exactly��is��a “commercial purpose”?

One of the factors that places a limit on UGC is the condition that the new work is done solely for non-commercial purposes (an undefined concept in the Copyright Act).��To limit the uncertainties created by s.29.21(1)(a), it is therefore crucial to look beyond the words (or lack thereof) of the provision itself, and instead look toward a purposive and holistic approach to the UGC exception.

, an Associate Professor at the University of Western Ontario, argues that in order to help overcome ambiguity, the UGC provision should be interpreted in the same context as the fair dealing provision.

What we can learn from incorporating a fair dealing analysis to the UGC exceptions is that we are to define commercial purposes on a continuum (recall that in ��the court endorsed a non-restrictive test to assess the user's purpose). Moreover, the facts of the CCH decision involved some “commercial” element since the materials were distributed to lawyers in the course of their professional employment.

Viewing s.29.21(1)(a) and s.29.21(d) together, we should therefore understand commercial purpose as a matter of degree. In doing so, we leave open the possibility for new-works to have at least some commercial element, so long as this element is not substantial.��

2. How can we define a “substantial adverse effect” on an existing or potential market?��

s.29.21(d) requires that the new-work shall not have a substantial adverse effect, financial or otherwise, on an existing work.��This condition raises several difficult questions. First of all, do the words “or otherwise” extend to include an author's moral rights? If so, wouldn't including moral rights in user exceptions to infringement be legislatively redundant? (Moral rights run parallel to economic rights, and can be exercised regardless of copyright exceptions.)

It is also unclear what a substantial adverse effect on a (potential) market means.�� s29.21(1) describes UGC as a “new work” or other subject matter in which copyright subsists. This may indicate that the courts consider UGC to be an original work, possibly attracting its own copyright protection.

When interpreting s29.21(1)(d), it may be useful to look to the American decision of ��to understand that the market of a new work is necessarily distinct from the market of the original.��For example, music covers disseminated on YouTube can be understood as a separate market from existing works. Rather than competing with an existing work, it is possible to argue that by transforming an existing work into a new work, a different market and/or audience is thereby created.

We must nonetheless recognize that the author of the new work may invariably compete with the market of the existing author. Take for example Justin Bieber’s early YouTube cover of Chris Brown’s song “With You.” It can safely be said that these two authors are now competitors in the same pop-music market.

Panellists, Professor Trosow and legal practitioner Marian Hebb, alluded to the possibility of a remuneration scheme whereby revenues of commercially successful UGC is allocated between authors, users, and disseminators. This��arrangement of revenue allocation through collective societies may be a useful option to consider. Of course, fairly compensating artists is an essential objective, but we must also consider that this may inhibit users from creating UGC due to fears of taxation.

Conclusion

Before users begin to fully enjoy the benefits of this new UGC provision, it is my opinion that a number of clarifications related to definitions must be sorted out. First, I think the scope of “commercial purpose”��should be limited to works which have a substantial commercial element. Purposes should be viewed on a continuum, giving flexibility to UGC provisions by permitting some nominal commercial success.

In situations where a UGC competes substantially with an existing work, I think we should consider setting up an allocation model whereby authors of existing works are remunerated by intermediaries and authors of new-works. Borrowing from the analysis in Campbell, we should be careful not to interpret s.29.21(1)(d) too broadly since the market of UGC works and existing works can be understood as distinct from one another.

While this provision is certainly a step toward a more progressive, user-friendly model, I think we have some work to do before the benefits of the UGC exceptions come to fruition.

��

Mona Zarifian is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The panel addressed the international aspects of UGC in two different ways: both through public international law obligations imposed on Canada as a result of international treaties, and through addressing private international law issues concerning liability and potential defences to infringement in different jurisdictions.

Sookman: Is the UGC Exception in Conformity with International Treaty Standards?

Barry Sookman's talk focused on whether or not the UGC exception complies with international obligations, in particular the ��(and the provisions of Berne incorporated into the WTO's ).

Sookman has previously mentioned that the Copyright Modernization Act could run afoul of Canada's international obligations by creating “” of new exceptions. His presentation during Thursday's panel elaborated upon how the UGC exception could fail to satisfy the “three step test” for permissible exceptions to copyright protection provided for in: where the exception applies only in “certain special cases”, does “not conflict with normal exploitation of the work”, and does not “unreasonably prejudice the legitimate interests of the author”.

Sookman argued that the UGC exception, which applies to all works and subject matter so long as it is used in a non-commercial context does not qualify as a “special case”, nor is it “certain” when it would apply. Moreover, the provision that addresses economic impact (at ) uses the terminology “does not have a substantial adverse effect”, rather than “does not conflict with the normal exploitation of the work” - which raises questions about whether the provision creates a higher burden for rights holders than expressed under the Berne Convention.

Finally, Sookman took issue with the fact that s 29.21(1)(d) seems to allow users to unreasonably prejudice the interests of the author, as the provision does not clearly allow authors to exercise their moral rights in the context of UGC. In comments which echoed the concerns of Marian Hebb, a panelist from earlier in the day, Sookman pointed out that the exception may not allow an author to prevent certain uses of her works for non-financial reasons – including prejudice to her honour or reputation.

Blom: Private International Law and the UGC Exception

Prof. Joost Blom of the UBC Faculty of Law rounded out the panel by talking about the UGC exception in the context of the Conflict of Law rules. Prof. Blom's discussion of IP liability and jurisdiction seems particularly important given the global operation of the market for copyright-protected subject matter and a by the European Court of Justice (to see the IPilogue's coverage of this decision, click ).

Blom began his presentation by outlining the three fundamental questions posed by private international law:

1. Jurisdiction (Where can a proceeding can be initiated?)
2. Choice of Law (Under what rules is a proceeding decided?)
3. Foreign Judgments (Will a judgment in a proceeding be enforced in another jurisdiction?)

Blom indicated that although IP rights are territorially defined, much infringing activity takes place either abroad or on the Internet (the nature of which can make the question of where an infringement has occurred very difficult to determine). In previous infringement proceedings involving the Internet, the Supreme Court has held that a plaintiff must establish a “” between the actionable wrong and Canada before a Canadian court may assume jurisdiction over a proceeding. However, as mentioned by Prof. Blom, this terminology is not specific enough to allow Canadian users to adequately assess their risks before reproducing or communicating their personal UGC.

Prof. Blom provided a powerful example of the potential international liability of creators of UGC, even given the recent amendments to the Copyright Act. Imagine a group of UBC students use five popular songs in a “flash mob” demonstration on campus. The flash mob is recorded, and the subsequent recording is uploaded on YouTube.

In this scenario, the student group has potentially infringed on three different exclusive rights: the right of reproduction, the right of performance and the right of communicating the work to the public. The first two acts occur in Canada, but the third could occur anywhere in the world – and although the UGC exception could exempt the student group from liability in Canada, it would be ineffective against a proceeding brought under any other jurisdiction (such as the USA).

Prof. Blom's presentation, therefore, served as a strong reminder that in the digital age, a domestic exception to copyright infringement only provides limited protection when the new work is provided on the Internet.

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

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A.���������� “Dude, Where Are We?” - A Quick Review of The European Court of Justice

The (Court of Justice) is the highest court in the European Union on matters involving European Union law (“Union law”). It is responsible for interpreting Union Law and ensuring that it is equally applied across all EU member states. While the Court of Justice is the supreme guardian of Union legality, many provisions of Treaties signed by Member States directly confer individual rights on nationals of Member States, which national courts are bound to uphold. Thus, national courts can be thought of as “the first guarantors” of Union law.

To ensure the effective and uniform application of Union legislation and to prevent divergent interpretations, national courts may turn to the Court of Justice and ask for clarification on a point concerning the interpretation of Union law. Those national courts that receive replies are bound by the interpretation given by the Court of Justice. Other national courts facing problems of the same nature are also bound by the decision. Although requests for references may only be raised by a national court, all the parties involved may take part in proceedings before the Court of Justice.

B.���������� Peter Pinckney’s Problem: Keeping his Fight in France

was a British rock band that enjoyed short-lived success in the 1970s. Peter Pinckney is the author, composer and performer of 12 songs recorded by that group. In the early 2000s, he discovered that his songs had been reproduced without his authority on CDs in Austria by Mediatech and marketed by the UK company Crusoe.

In 2006, Pinckney ��(para 10) for copyright infringement in the Toulouse Regional Court. Mediatech challenged the jurisdiction of the French courts on this matter. The Regional Court of Toulouse dismissed the Austrian jurisdictional challenge on the grounds that Mr. Pinckney had been able to purchase the infringing records from a website that was widely accessible to the French public. This, the Court ruled, was sufficient to establish the substantial connection between the facts and the alleged damage to grant jurisdiction to the French courts.

The Toulouse Court of Appeal ��(para 13), ruling that the French court had no jurisdiction since the defendant was domiciled in Austria and because there was no way damage to Pinckney could have occurred in France given that the CDs were marketed in the UK.

C.���������� Pinckney’s Appeal and the French Court’s Request for a Ruling on Article 5(3)

Pinckney brought ��(para 14) against the Toulouse judgment, relying on Article 5(3) of the which states that:

“A person domiciled in a Member State may, in another Member state, be sued:
(3) In matters relating to tort*, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.”

In light of Pinckney’s appeal, the French court of cassation decided to stay its proceedings and for a preliminary ruling on the correct interpretation of 5(3).

D.���������� Court of Justice’s Ruling: Reiterated Melzer, Applied eDate and Wintersteiger

The Court of Justice by restating the interpretation of Article 5(3) it outlined in (Melzer), (eDate) and (Wintersteiger).

In Melzer, the Court of Justice established that Article 5(3) should be interpreted to mean that a defendant may be sued in the place where the damage occurred (locus damni) and, if different, where the action or inaction leading to that damage occurred (locus delicti commissi).�� The Court of Justice conceded however that one limitation of Melzer was that it did not cover the possibility of suing an alleged perpetrator of the alleged damage before the court seised on the basis that it is the place of the event giving rise to the damage.

In this case, it was common ground that the allegedly infringing action did not take place within France. ��The question at hand was whether or not the court had jurisdiction, given that it was the location where the alleged damage occurred.��

In eDate and Wintersteiger, the Court of Justice developed three principles for the interpretation of Article 5(3) when applied to allegations of infringement committed via the internet.�� These were:

(1)���� That the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed (, paras 21 to 24);

(2)���� That the likelihood of the damage occurring in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State (��at para 25); and

(3)���� In order to attribute jurisdiction to a court to hear an allegation of infringement in matters of tort, the identification of the place where the alleged damage occurred also depends on which court is in the best position to determine whether the alleged infringement is well founded ( at para 48 and at para 27).

To identify the place where damage caused by actions on the internet occurred, the Court of Justice applied these principles. ��Consequently it distinguished between the infringement of personality rights and the infringement of intellectual and industrial property rights.

The Court then reiterated that victims of personality right infringement (protected in all EU Member States) may bring his or her action in the court of the Member State where the harmful event occurred. ��Moreover, if the offending work has been placed online he or she may bring an action in the territory of any Member State where the action is accessible. However, those courts only have jurisdiction with respect to the damages caused in the territory of the court seised (��at��para 52).

The Court of Justice further specified that the allegation of an infringement of an intellectual and industrial property right (which is typically vests through registration) is limited to the territory of the Member State of registration and may only be brought before the court of that State. ��This is because the Court of Justice has deemed that these are the courts best placed to ascertain whether the right at issue has been infringed (Wintersteiger at paras 25 to 28).

Based on these principles, the Court of Justice ruled that,

In the event of alleged infringement of copyrights protected by the Member State of the court seised [in this case France], the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State [in this case Austria] and which has, in the latter State, reproduced that work on a material support [in this case by pressing CDs] which is subsequently sold by companies established in a third Member State [in this case the UK] through an internet site also accessible with the jurisdiction of the court seised [in this case France]. However that court has jurisdiction only to determine the damage caused in the Member State within which it is situated [in this case France].

In other words, the Court of Justice constructed a very narrow interpretation of article 5(3) to allow the Toulouse Court to hear Pinckney’s suit against Mediatech while restricting its assessment of damages to those damages that would have occurred in France.

E.������������ An Unresolved Matter: Did Mediatech Actually Violate Copyright?

Of course, the question left hanging by the Court of Justice is whether or not a company in another Member State making CDs for a second Member State is in fact a violation of French copyright law.�� This question will now be for the French courts to determine.

F. �� �� ����Significance��of this Decision?��

This particular ruling would appear to only be of use to a copyright holder who (1) is seeking jurisdiction in his or her home state that is (2) an EU Member state which has (3) copyright protection and (4) has had his/her copyrights violated in another EU Member state (5) wherein the alleged violation involved the reproduction of the work "on a material support" (6) and was then sold by parties in another EU Member state (7) through an internet site (8) wherein that site was accessible from the author's home state.

The extremely narrow interpretation provided by the Court of Justice is understandable, given that ��in Europe,��like most places in the world, copyright vests without the requirement of formal registration (). ��A broad interpretation of article 5(3) fling national court doors open��to artists clamoring for damages against actors in other states on the broad grounds of the violation of personality rights.��However, given��the European Court of Justice's����in the Union, the Court of Justice was likely mindful of creating too wide of a doorway when crafting this decision.

As a small technical point, one could argue that the European Court of Justice relied too heavily on a trademarks case (Wintersteiger) in crafting its decision with respect to copyright. ��In so doing, it could be argued that the Court of Justice misapplied a set of principles originally crafted for a formality-based regime to a formality-free question. ��However, in light of the broader policy concerns outlined above, it is not likely that this would compel any future proceeding before the Court of Justice.

This decision then is a somewhat uninteresting legal end to an otherwise exciting news story.��Still, for non-European practitioners, this decision provides some insight into copyright protection in the European Union.

Beatrice Sze is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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

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

***

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

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

Using the photograph for commercial advertising or political activity.”

***

Later that afternoon, , IP Osgoode member and Professor of Law at Osgoode Hall Law School, , Banting Post-Doctoral Fellow in Law and Culture at 91��ɫ, and Hip Hop artist and McGill Law School DCL Candidate, were featured in a thought-provoking roundtable discussion on Music, Law and Theory. Moderator Ali Hammoudi, PhD Candidate at Osgoode Hall Law School and Co-Chair of the GSLA, directed the debate towards hip-hop’s sampling culture.

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

***

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

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

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

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

***

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

***

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

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

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

***

Unrelated to intellectual property law, some presenters used artistic mediums to investigate and interpret ‘law.’ In the panel entitled Theorizing Law and Art, , who recently completed his MFA in Documentary Media at Ryerson University presented a paper based on his entitled Defenders. Dan’s exhibition consists of interviewing and “paint[ing] a living ethnographic portrait of Canadian and American criminal defence lawyers in�� . . . Detroit, New 91��ɫ, and Toronto.” He used images and videos in his presentation to portray the intricacies of the criminal justice system by allowing viewers to observe “criminal defense attorneys” from a different perspective. The Defenders exhibition remains at the until May 25, 2013.

***

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

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

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(Sun) Salutations: Yoga from Which People, Again?

Though litigation around ��seems to have settled into Savasana (“corpse pose”) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram’s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the �� yoga community, fought under the Hindu American Foundation's (HAF) banner of “”. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to unilaterally that yoga “is a gift to all mankind, and thus beyond claims of ownership and copyright”. The and �� to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of , including , assisted by the territorial nature of intellectual property laws. The cases of , , and all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms “”, so to speak—hence the and �� to assist ��—this is far from a stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of and in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a citing (full disclosure: a professor at the University of Victoria), includes “folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.” What is critical, however, is “the integration of these features into a cultural system”. Appropriation is not just unauthorized taking, but taking in part through the , as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or “progress of science and useful arts”-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. speaking, provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The , for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that terminology for an oxymoronic initiative that sterilizes rather than preserves and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an , with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in : part of the problem may be the relegating of all traditional knowledge and related concepts to the category of “cultural” to begin with, making such claims “disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.” However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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Quoting musician Greg Gillis (a.k.a. “”), Lessig illuminates the concept as “[t]his appropriation time where any grade-school kid [who] has a copy of Photoshop [….] can download a picture of George Bush and manipulate his face how they [sic] want.”��This redefinition of authorship in the digital age is echoed in the Ecce Homo v. Ecce Mono controversy too, because it questions whether copyright should be used to protect something that “defaces” or reduces the value of the original work, even if it falls within the four traditional areas of copyrightable works.

In early October, Vladimir Umanets, co-founder of the so-called art movement “,” at the Tate Modern gallery in London. In his own eyes, this was not an act of vandalism, but a redefinition of a piece of art as not-art, and therefore, as a piece of Yellowism. Whether or not I actually understand the nuances of Umanets’ manifesto, I do wonder about the implications his actions might have on the perception of what remix culture constitutes. To me, this art-(and now, not-art)-is-in-the-eye-of-the-beholder perspective is being used as a justification for vandalism here. Of course, I might only be saying this because the underlying work in question is a famous painting in its own right, and the Yellowist’s (Umanets refuses the labels “artist” or “vandal”) contribution to it is detrimental to its innate value, at least for me. Umanets would disagree, believing that he has through its inclusion in the folds of Yellowism. His act asks whether the value of a derivative work is inherently linked to the effect of increasing or decreasing the original’s worth, or if it can have a separate and stand-alone value as a new work of art.

The parallel Ecce Homo v. Ecce Mono debate considers whether the value of a derivative work rests on public reaction, if its economic and artistic values are confused with each other, and if something can be “valuable vandalism.” For instance, , perhaps the most famous guerilla artist of our time, has often probed the murky philosophy behind the legal definition of “art,” by producing enduring stencilled works on state-owned property, which have had a lasting and positive effect on the public’s view of art, while creating .

What then, is the difference between Banksy, Cecilia Gimenez (the Ecce Mono creator) and Umanets? Is it the perceived value attached to the purpose that the work serves, perhaps making it worthy of being categorized as art? Or is it the real (monetary) value that the work is given, so that it is only considered art because it commands a price, which sends the (inaccurate) message that a work of art is only so if it is considered economically valuable? Or is it that the very act of vandalism is a blunt manifestation of the abstract concept of the “remix” in remix culture, where all derivative works are vandalised versions of the originals to some degree?

Copyright law does not take it upon itself to determine the quality of a literary, dramatic, musical or artistic work but only decides if it is copyrightable, . Derivative works , arguably falling into both categories at times (thanks to the oft-contradictory perceptions of the originality requirement in copyright). For cases of vandalism, it may well be that the process of defacement creates a new work that is itself worthy of protection, independent of its perceived quality. For Banksy, this may be the recognition of his works as distinctive expressions of thought, but for Gimenez, it may be the distinctiveness attributed to the Ecce Mono by its circumstances, resulting fame, and the money it generates for the Sancti Spiritus foundation.

Umanets’ act is arguably neither of the above, even as it incorporates elements of both. The defaced painting could well be copyrightable; the issue with it, as it is may be with all “vandal works,” is whether it is ethically worthy of copyright protection, even if legally found to be so. This contemplation may be debatable in the application of copyright law, but is, I believe, one of the fundamental questions that remix culture-at-work raises.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.�� As part of the program requirements, students are asked to write a blog on a topic of their choice.

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