Innovation and technology conversations are almost always oriented toward what comes next, what lies ahead, what will disrupt, or what will transform. Intellectual property law sits at the centre of these forward-looking debates, shaping how innovation is protected, disrupted, and governed. Yet the conversation at the launch of , hosted recently by IP Osgoode, suggested a more compelling perspective: looking towards IP futures does more than help us anticipate change; it helps us see the present more clearly. ÌęArtificial intelligence, digital globalization, and shifting economic models are not only reshaping innovation—they are also illuminating the blind spots embedded within todays IP structures. These blind spots surface in unresolved questions about originality and human authorship, the erosion of local normative priorities within global trade flows, and the largely invisible human labour underlying IP and information technologies.

, co-editor of the volume, opened the event by emphasizing the importance of emerging scholars in shaping the vitality of IP research. Reynolds, alongside co-editors and , has brought together an impressive collection of 18 chapters by 23 authors who participated in the 2023 workshop hosted at UBC's Allard School of Law. The resulting volume spans five thematic areas: the future of international IP treaties; evolving questions in Canadian law and artificial intelligence (AI); the relationship between Indigenous legal traditions and colonial IP frameworks; the future of IP in a digital and global environment; and the ways in which IP law can both reinforce and mitigate inequality. Together, these themes underscore that IP law is not merely a technical regulatory tool, it is a place where economic priorities, social justice concerns, and cultural values converge. Viewed through a future-oriented lens, each of these domains reveals pressures already reshaping the doctrinal foundations of IP.

Originality, Human Authorship, and the Limits of Existing Doctrine

Innovation debates are oriented toward what comes next, and questions of authorship reveal how unprepared existing doctrines may be. The rapid rise of AI-generated content forces copyright law to confront assumptions long taken for granted: that creativity is human, that authorship is identifiable, and that originality reflects individual intellectual effort. In his presentation, “Protection of AI-Generated Images in Canadian Copyright Law,” examined whether such works can satisfy the originality requirement, suggesting that protection may arise only where users provide sufficiently detailed inputs and where AI systems faithfully execute those executions -conditions that are rarely satisfied in practice. Most users do not invest the level of skill and judgment required to craft detailed prompts, and the outputs of AI black box systems often deviate from what the user intended. Dr. Rei-Anderson illustrated this point by referencing models’ tendency to hallucinate when asked to produce precise outputs or maintain specific spatial relationships.

[*The image below is Chat-GPT's output when asked, “What would it look like if I looked outside an acoustic guitar?” The fingerboard, strings, bridge, and saddle are all incorrectly positioned.]

Recognizing the gaps between expressive intention and AI-generated outputs highlights a deeper theme: the originality doctrine may have to adapt as technologies evolve if copyright law is to preserve a normative commitment human intellectual effort.

Viewed through a future-oriented lens, this is not simply a novel doctrinal puzzle. It exposes a present blind spot. When outputs emerge from opaque systems blending prompts, training data, and algorithmic processes, authorship becomes diffuse and originality difficult to anchor. The debate over AI-generated works therefore reveals an existing tension: doctrines built around individual human creativity struggle to accommodate collaborative, machine-mediated forms of production. The future of authorship, in this sense, illuminates the fragility of its present foundations.  

Globalization and the Disappearance of Local Normative Priorities

’s presentation shifted the discussion to the tension between the territorial nature of IP law and private international law (PIL), a dynamic that reveals another blind spot within IP law: the erosion of local normative priorities. Territoriality in IP law, she noted, is not merely technical, rather, it represents a manifestation of a state’s sovereign authority to protect fundamental national policies, including freedom of expression, education, and access to knowledge. These policies reflect deeply embedded social and economic values, and IP law often serves as a vehicle for their expression.

However, territoriality increasingly conflicts with the goals of PIL, which seeks to reduce multi-jurisdictional litigation and improve efficiency across borders. Daniel introduced the concept of “ICE Bias” (Initiative, Choice, and Enforcement) to describe the systemic imbalance between right holders and users in cross-border disputes. Right holders typically initiate proceedings, select favorable forums, and possess stronger incentives to enforce judgments, while users are often limited to seeking declaratory relief.

This imbalance encourages strategic litigation, where rights holders obtain judgments in restrictive jurisdictions and attempt to enforce them globally. Through cases such as and ., Daniel illustrated how global injunctions risk undermining domestic policy decisions. Her concern reflects a broader question about the future of IP in a globalized environment: how can law remain responsive to local values while operating within transnational networks?

In this manner, globalization does not merely generate efficiency, it risks flattening normative diversity. When enforcement mechanisms privilege scalability and uniformity, local concerns can be overshadowed by global market interests. Daniel proposed the development of specialized IP forums to complement general PIL venues, thereby preserving territorial policy choices while managing cross-border disputes.

Labor Exploitation in AI Training Processes

While AI is often framed as an autonomous technological force, Professor Teshager Dagne redirected attention to the human labor embedded within AI systems, emphasizing that data labeling, preprocessing, and model training depend on workers in economically vulnerable regions whose contributions remail largely invisible within IP frameworks.

Drawing on research conducted in Uganda and Ethiopia, Dagne described environments resembling digital “sweatshops,” where workers labeled data behind laptops rather than operating sewing machines. Although copyright doctrine recognizes human skill and contribution, data-labeling labor often falls outside traditional authorship frameworks. Dagne suggested joint ownership as a potential remedy, but acknowledged doctrinal and practical barriers, particularly where workers have signed away rights. This gap reflects a broader policy deficiency and highlights the need for statutory reform.

Dagne’s intervention emphasizes the socio-economic values embedded within legal systems: IP law does not merely regulate innovation; it shapes the distribution of benefits and burdens. A future-oriented IP perspective highlights that fairness in IP cannot be assessed only at the level of ownership or protection, it must account for the full technological pipeline and the conditions under which knowledge and data are produced.

Seeing the Present Through IP Futures

The launch of Intellectual Property Futures: Exploring the Global Landscape of IP Law and Policy does more than anticipate technological change; it provides an opportunity to identify and critically examine the blind spots embedded within the contemporary IP legal landscape. Looking ahead, in other words, becomes a way of more clearly seeing the problems with the present – and this wide-ranging, open-access collection provides us with an excellent vantage point to do just that. Ìę

Xiang Zhang is a doctoral student at Osgoode Hall Law School and a Senior IP Osgoode Research Fellow, with a strong interest in advancing open-source and open access to knowledge.

Dominic Rochon is a 2L J.D. student at Osgoode Hall Law School and an IP Osgoode Research Fellow, with an interest in music, copyright, and user-generated content.

16 April 2026

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Artificial intelligence systems often “give the vibe” of complete automated processing without human involvement. However, as reminds us, upon a closer “vibe check” there are layers of unseen and under-appreciated human inputs, efforts, and labour involved. The efforts of those unseen human hands are, in fact, the engine of AI innovation.

Dr. Dagne is the Ontario Research Chair in Governing Artificial Intelligence and an Associate Professor at 91ŃÇɫ’s new Markham campus in the School of Public Policy & Administration. He also teaches Property Law at Osgoode Hall Law School, where he is an Affiliated Researcher with IP Osgoode. His current project, which he recently presented at the at the University of Cape Town, highlights how copyright enables the proactive exploitation of digital workers’ contributions as inputs to AI training or, in some cases, AI-assisted outputs.

By bringing to the fore the roles of digital workers, Dagne hopes to unearth the collaborative creation that goes into the AI production chain and feeds into the AI output. His paper, “Unseen Hands, Invisible Rights: Unmasking Digital Workers in the Shadows of AI Innovation and Implications for the Future of Copyright Law”, is soon to be published in a forthcoming volume on IP’s Futures: Exploring the Global Landscape of Intellectual Property Law and Policy (Ottawa UP, 2025), which Dagne is co-editing with and . His chapter probes the future of copyright law, attempting to turn the focus of copyright to collaborative authorship. This move, Dagne argues, could respond to demands for the fair allocation of rights between digital workers, as authors or joint authors in some cases, and AI designers as exploiters of digital works. 

Digital Workers are the Lifeblood of AI Development

As , “[AI] doesn’t run on magic pixie dust
 [AI training] is a job that actually takes quite a bit of creativity, insight, and judgment.” Such ingenuity involves the preparation of data works for the datasets used to train and build AI technologies, which consists of a number of decisions as to the kind of data to collect, curate, clean, label, abstract, index, etc. The process of dataset development starts with formulating the problem, which is the conceptualization of the machine learning task by making the problems “into questions that data science can answer”. The task conceptualization is typically the responsibility of the AI designer, which may be an AI company like Open AI or Anthropic AI, for example, or platform company like Microsoft, Meta, or Amazon. After the conceptualization process comes the data collection, refining, and measuring stage. Dagne’s focus is on the “digital workers” who enter the picture at this stage in the AI production process.

According to these digital workers contribute to the training process of AI systems in three steps: generating and annotating data (AI preparation), verifying model output (AI verification), and directly mimicking model behaviour to produce a service (AI impersonation).  They range “from higher-skilled, ‘macro-task’ [
] workers [who] offer their services as graphic designers, computer programmers, statisticians, translators, and other professional services, to [those engaged in] ‘micro-task’ [work] which typically involve clerical tasks that can be completed quickly and require less specialized skills.” () As described by , “complex projects are broken down into smaller, easily accomplished tasks, which can then be distributed to a large number of workers.” Micro-task activities mainly involve the AI preparation aspect of AI training processes but can also include the AI verification and AI impersonation steps in AI training.

The Copyright Question

Much of the debate around copyright and AI has focused on whether using the underlying work of which inputs are constituted (the images, texts, musical works and other subject matter) for unauthorized learning constitutes copyright infringement. However, Dagne’s focus is on the copyright that can subsist over collected data, as we see in some and cases, and whether digital workers’ activities in the preparation of training data sets in the AI pipeline could itself give rise to a copyright interest. This question can be answered by examining the nature of digital workers’ contributions to the tasks assigned to them and the ownership of copyright under the contractual agreements that digital workers sign with platforms.

Digital workers in the AI production value chain collect raw data and help add extra meaning by associating each piece of data with relevant attributive tags. Although have argued that this attributive task is a mundane exercise that could ultimately be automated, others like have contended that tasks such as attribution will always be assigned to humans because of their capacity to recognize and classify data. Indeed, human intervention is now in demand to recognize the nuances and sophisticated details of specific data. As noted by , an example of such demand is in the medical field, where an understanding of scientific vocabulary is required.

From a doctrinal perspective, the copyright question is whether the contribution of digital workers described above meets the threshold of originality—which is defined, in Canadian law, by the Supreme Court of Canada’s ruling in , and requires more than trivial skill and judgment in the selection or arrangement of data. If so, we might ask whether recognizing the copyright status of such contributions could address these workers' invisibility. Even if, on account of originality, the tasks executed by digital workers amount to authorship, of course such authorship does not automatically translate into ownership. The ownership of the creative tasks conducted by digital workers as part of the collaborative venture is determined either by the workers’ status as employees or otherwise by contract—which means that it is determined in the context of significant power asymmetries and the routine exploitation of digital workers.

If copyright entrenches the inequities of an asymmetrical situation—by ensuring that the collective effort of digital workers in compiling essential datasets for AI training and AI development remains unseen and undervalued—Dagne thinks the time has come to confront its complicity. He suggests that, spurred by the arrival of AI, the copyright system needs to restructure the relationship between authors-as-(data)workers and corporate proprietors in pursuit of greater fairness.

‘Damola Adediji is a Visiting Researcher with IP Osgoode and Doctoral Candidate with the Centre for Law, Technology & Society at the University of Ottawa.

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John Lemieux is a Partner in the Corporate and Commercial Group at Dentons Canada LLP. This article was written as a requirement for Prof. Pina D'Agostine & Dr. Aviv Gaon's "Selected Topics in Privacy and Cybersecurity Law" course with Osgoode Professional Development.

Access to justice in Canada is an acute issue requiring urgent action not only from governments but from the legal practitioners in this country charged with an obligation to “improve justice and to continuously create the good.”[1] There are a multitude of avenues for reforming the Canadian justice system in order to improve access to justice, and among these is the integration of artificial intelligence (AI) into our dispute resolution processes in order to decide legal disputes in an efficient, cost effective and expeditious manner.

It is not proposed that AI would be used in every instance to resolve a legal dispute. Rather, AI could be utilized to assist the significant number of Canadians who are unclear as to their legal rights and of the view that seeking redress through the formal justice system will be too costly and time consuming.[2] More specifically, AI can be deployed to help the growing number of self-represented litigants navigate the justice system, and also assist low-income households explore avenues of recourse they may not have pursued without this type of technological assistance.[3]

Darin Thompson proposes the adoption of a basic AI technology, with the simple goal of helping individuals he refers to as “non-expert users” to manage disputes and the justice system in general more effectively.[4] Thompson conceptually describes what he refers to as a Justice Pathway Expert System (JPES), which he imagines as an AI touchpoint for non-expert users needing to engage with the justice system.[5] The design of the JPES is that of an ‘intelligent questionnaire’ interface.[6] The AI system will prompt the non-expert user with a series of questions corresponding to a battery of prepared answers. As the non-expert user works through the questions, the JPES begins doling out information and recommendations that can be acted upon. Thompson’s description of the process is that of (1) an initial problem diagnosis, (2) the delivery of specific information germane to the diagnosed problem, (3) the provision of recommendations for tools or resources that the non-expert user can access and utilize to help consider methodologies to best resolve the problem, and finally (4) a ‘streaming and triage’ functionality that can help guide the non-expert user towards the perceived best resolution process to pursue, whether that be as simple as a mediated settlement discussion between disputing parties or the commencement of a court action.[7]

As noted above, the JPES is not conceptualized as an AI that could be utilized to assist with complex matters. Indeed, it is generally accepted that for the time being AI is unlikely to replace human adjudicators in anything but simple legal matters.[8] The value of the JPES concept is that it could be a meaningful resource for individuals without the necessary expertise or financial resources required to retain and instruct legal counsel to consider and map out a dispute resolution pathway ultimately promoting and enhancing access to justice in Canada.

[1] Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51 Osgoode Hall L.J. 957 at 983.

[2] Ibid., at 965.Ìę

[3] John Zeleznikow, “Can Artificial Intelligence and Online Dispute Resolution Enhance Efficiency and Effectiveness in Courts” (2017) 8 International Journal for Court Administration 30 at 30.

[4] Darin Thompson, “Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution” (2015) 2 IJODR 4 at 5.

[5] Ibid., at 9.

[6] Ibid., at 16.

[7] Ibid.

[8] Rachel E. Stern et. al., “Automating Fairness? Artificial Intelligence in the Chinese Courts” (2021) 59 Colum. J. Transnat’l. L. 515 at 517.Ìę

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Photo by Charles Fair ()

Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

Ìę

Over the past few years, there has been a rise of copyright strikes purporting to moderate infringing content on YouTube. Although this may protect copyright holders such as musicians and artists, its potential for misuse can , as is the case here.

On the 29^th of June in 2021, James Burch in solidarity and support for the family of . Steven Taylor, a 33-year-old Black man, was at a Walmart in San Leandro. As Burch and other supporters of the campaign outside listened intently to the pre-trial hearing, officers approached and asked them to move a banner. Burch and a fellow supporter started recording the interaction,

The . At , the police officer quickly begins to play Taylor Swift’s Blank Space from his cellphone speakers. Beyond the irony of trying to escape accountability and fill space with copyrighted music, the officer deliberately chooses to obscure the recording in the hopes of getting the video copyright stricken by YouTube’s AI algorithm. At , the officer says: “[the protestors] can record all [they] want, [but] I just know it can’t be posted to YouTube.” Ìę

This incident has not been the of such behaviour by the police. However, these unsettling attempts at eschewing accountability point to larger issues regarding freedom of speech, Anti-Black racism, policing, and obscure algorithms in America and beyond.

The right to record the police in the US has been reaffirmed in and , where the courts determined that recording a public officer’s actions resonates with principles enshrined in the : The right to record was in Derek Chauvin’s trial for his murder of George Floyd.

While the US courts have evidently prioritized the public’s rights to film officers, video and live streaming services like YouTube, TikTok, and Instagram have been much more obscure regarding how their algorithms target and remove videos. A preliminary search into YouTube’s is unhelpful in determining how videos are assessed on a “case-to-case basis” and instead redirects you to . The is a non-profit organization whose mandate is to protect user privacy and defend digital civil liberties. They have published , which is more user-friendly. However, it is important to note that automated processes like Content ID are alleged to independent , ; different equity-seeking groups have filed lawsuits against YouTube, including a group of and . TikTok has come under fire for flagging “vulnerable” creators and preventing their videos from reaching audiences. This practice is dubbed “.” Moderators identified creators through short clips, and most singled out creators with tags in their bios like “#disabled” or with pride flags.

Burch posted the video on July 1^st, 2021. It has not yet been taken down. However, questions remain as to the apparent lack of oversight for large US corporations and what this means for activists and creators. Just as the internet has expanded opportunities for mass global viewership and collective action, so too have the dimensions of existing power structures and inequality.

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In last week, Berners-Lee was responding to recent revelations of state-based surveillance in the United States and elsewhere. The father of the web also contends that a ‘digital Magna Carta’ would need to address the often-conflicting rights of users and producers in online environments.

Calls for the calibration of competing rights are not new. At least since the early 2000s, legal scholars and social scientists such as , , and have articulated about reforming intellectual property (IP) laws for emerging realities. The proliferation of digital and networked technologies continues to facilitate social, economic, and political shifts. New transnational political economic arrangements are premised on the ability to employ information and communication technologies (ICTs) to coordinate global production chains. studying the impacts of the ICTs that decentralized, network technologies are transforming historic relations generated during industrial economic times. Advocates for the rights of creators point out how these changes are disrupting existing business models and threatening entire industries.

IP law regimes—most often in the forms of copyrights, patents, and trademarks—are used to incentivize creative endeavours and to protect the moral rights of creators. In doing so, these legal regimes help to convert knowledge—communicative and cultural resources that circulate within communities and contribute to their maintenance and growth—into marketable forms of rent-seeking information.

However, suggests that these systems have led to two contradictory outcomes: increasing returns for rights-holders and a “digital divide”, whereby there is increasing disparity between the ‘haves’ and ‘have-nots’ of contemporary capitalism. Scholars Tzen Wong, Graham Dutfield, and their contributors that IP law is regarded as playing various roles in the maintenance of this development disparity. From this perspective, the ‘digital divide’ is a symptom of the global political economy, within which growing inequality between and within states is exacerbated due to differing levels of access to and control over digital technologies and content.

Govindan Parayil, while knowledge-based economic activities generate growth and wealth for the owners of proprietary information; this also results in inequity for those with restricted or no access to this information and the ability to use existing knowledge in productive ways. A of transnational corporations conducted by Sean Starrs, a PhD Candidate at 91ŃÇÉ«, highlights how the contemporary political economy is marked by the concentration of wealth in developed states, particularly the United States.

Bridging the digital divide between and within states is becoming a key focus of international and domestic policy initiatives. Civil-society organizations as well as governmental and international organizations and forums have proposed ‘information-communication technologies for development’ (ICT4D) as a means of enabling greater connectivity for disadvantaged persons in post-industrial as well as industrializing states. ICT4D proposes that the proliferation of ICTs will alleviate poverty and inequality by providing new groups with the technological tools necessary to engage in capitalist activities. However, as Jan Nederveen Pieterse , this approach often fails to recognize that the digital divide is not entirely digital; instead, the digital divide entails socioeconomic considerations, including the ability to use ICTs as well as digital content for various purposes.

Human rights-based claims are becoming prominent in struggles to address economic inequality and bridge the digital divide. For example, Access to Knowledge (A2K) movements related to international intellectual property debates challenge the privileging of economic and proprietary rights over the rights of users, citizens, and consumers.

, Professor of Information Studies at Syracuse University, A2K movements focused on a number of areas—including life saving medicine, educational materials, biodiversity and the prevention of famine as well as knowledge circulation in digital contexts—have “become a master frame linking many formerly disparate elements of communication and information politics, business, policy, and law. As an intellectual and political movement, A2K is based on a reappraisal of the nature of property rights over information and networks” (p. 12).

As Internet governance and informational policies are adapted to meet contemporary realities, addressing and balancing these sets of rights will be important for bridging the digital divide and economic inequality.

Note: This post is based upon a paper that the author will present at the in Toronto, Canada and reflects the on-going work of his dissertation.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91ŃÇÉ«, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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The internet is not a lawless wild west. Images on the internet are not automatically public property – copyright, personality rights and all other aspects of the law apply. This article will list out the most relevant areas of the law and then analyze the situations of international dating using Canadian headshots for dating or porn site advertisements according to the each legal point.

Relevant Canadian Law to Date – A Primer

Scraping in the Law

The issue of general material scraping arose in the 2011 Supreme Court of British Columbia case . The court struggled with defining scraping in order to apply the law to it.Ìę The judgment included the opinion of law Professor and copyright expert in explaining that scraping content was allowable if it was indexed and transformative. Indexing is a broad term for the interconnectedness of the internet through hyperlinks and meta data that web crawlers use for searching and organizing internet material. Because the judge found the scraping in the Century 21 case qualified as a form of indexing, the issue of whether scraping was transformative was not relevant to his decision. Professor Trosow’s comment directly quoted in paragraph 53 of the judgment remains helpful,

“The relevant question in my view is whether the materials are being utilized in a transformative manner in order to provide a usable and informative aid for the end-user searching for information about listings.”

The judgement includes a thorough legal summary of the concept of transformation – which I will summarize as any change that adds something new to the original expression, thus creating a new work. The concept is used primarily in American law, but was also referenced and described in the 2002 Supreme Court of CanadsaÌęcase, .

International Servers and the Law

The Supreme Court confirmed copyright liability for servers outside Canada. 2004’s stated, “A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country.” This is a digital extension of of the ,

27. (2) It is an infringement of copyright for any person to [
]Ìę(b) distribute to such an extent as to affect prejudicially the owner of the copyright. [
] a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. [emphasis mine]

Responsibility Regardless of Intent

The Small Claims Court of Yukon disregarded the “accident” defence in a 2012 digital website photo theft case that closely mirrors the Rehtaeh Parsons one at hand. A tour operator photo ended up on the website of its direct competitor. As stated by the Court in paragraph 12 of ,

“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website.Ìę However, it is not a defence to the present action that the copyright infringement was inadvertent.Ìę The plaintiff is still entitled to damages equal to the loss he suffered from the infringement."

Personality Rights and a Person’s Image

Identity exploitation is also a tort that is potentially relevant to photos on the internet. As I’ve outlined in a prior about a recent digital extension of personality rights,

The Ontario Court of Appeal’s 1997 decision outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise.

At the root of this issue is the principle from the 1977 Ontario Supreme Court Decision that stated

". . . it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded."

Photo Privacy in Quebec

is not within the digital sphere, but it is applicable as with regards to personality rights issues. Here in 1998, the Supreme Court confirmed, using the Quebec Civil Code and the Quebec Charter, that there is privacy infringement whenever an image is published without consent if the person is recognizable. It is unclear if such a ruling would hold Canada-wide, but it is a possibility.

Fair Dealing

The Canadian law provides for copyright violation in cases of fair dealing in .ÌęResearch, private study, education, parody or satire, criticism or review, and news reporting are all justifications for works use that do not infringe copyright. Some recent court interpretations of fair dealing law were recently released by the Supreme Court inÌę,Ìę andÌę. Taken as a whole, they confirm a generous interpretation of fair dealing that asserts the user right as a defence. This is particularly true of the enumerated education principle, which has now been broadly expanded to more closely match the US’ fair use exemptions for academic institutions.

User Waivers from 3^rd Party Photo Hosting

Some social media sites from which the photos are scraped require users to give up their personality or photo rights. There has yet to be a common law case in Canada or the US on the issue of personal social media site waivers. There are two closely related cases, decided divergently.

The 2012 US case , determined that website waivers are most valid when they require an affirmative acknowledgment of the contract. Conversely, in the 2011 Canadian case the Supreme Court of British Columbia determined that where there was an industry standard as such, proceeding into a website without express agreement could constitute a contract.

Application to Cases Like Parsons’

In my opinion, I don’t think dating or porn sites that use images of Canadian women have a strong legal case to defend themselves from potential legal action. Using the prior list of relevant legal issues, I will make a cohesive argument in favour of the Canadians whose images are used in these advertisings.

Scraping and the Law

The photos may be scraped off a prior website, but they are likely not indexed or hyperlinked to that prior website. The creators of these advertisements likely want there to be little link between the original source photo and the eventual advertisement featuring the photo. Thus, by the definition presented in Century 21, the photo reuse is a new type of non-indexed scraping.

Without indexing, the only remaining argument is transformative. The advertisement creators could argue that by adding in additional text – in the example of the Parsons case “"meet Canadian girls and women for friendship, dating or relationships” – that the addition is significantly transformative. I would argue that because the advertisement doesn’t change the photo, but just adds or overlays texts, the advertisement is arguably drawing attention to the original work rather than creating a new work.

International Servers and the Law

The Supreme Court statement fromÌę is helpful because it keeps open the possibility that Canadians whose photos are in circulation on any server around the world can potentially use the Canadian legal system to defend their rights. In the case of the Parsons dating site, which was based out of Vietnam, it means that Canadian courts could go after the Vietnamese infringers.

Responsibility Regardless of Intent

TheÌę case is an indicator of the direction courts might take in response to plaintiffs claiming ignorance. This is immensely important in regards to technology-based conflict. It’s important for court judges to demand parties in a conflict demonstrate a reasonable amount of understanding of and responsibility for their actions. In the case of dating site administrators, it’s my strongly held opinion that “I didn’t know it wasn’t okay to take photos of young women off the internet and put them in my Facebook ads” will not protect these parties as it is consistent with the general legal axiom that ignorance of the law is an unacceptable defence.

Personality Rights

Identity exploitation also presents a strong tort for Canadian victims of image scraping. To have one’s photo used in an advertisement without consent meets the Krouse and Gould threshold because the dating or porn site garners a commercial purpose. The advertisement facilitates traffic for new member signups on the porn or dating site. In the advertisement at hand, Parsons likeness is clearly captured; it is unmistakably her face.

Photo Privacy

Similarly there is a strong case when theÌę precedent is considered. That said, there is a chance it might not hold for victims outside Quebec, as indicated by the use of Quebec-specific law in the judgment.

Fair dealing

It’s my opinion that image scrapers would be hard-pressed to find any fair dealing justification for their activities in either the Copyright Act or even Supreme Court decisions expanding user rights via fair dealing.

I don’t believe companies trolling the internet for photos – with software or by hand – have the protection of a fair dealing defence. Writ large, I feel the culmination of all recent, major copyright cases in Canada makes clear this principle of application; whether the fair air dealing exception is applied broadly or narrowly based on the public good or commercial profits accrued. The more public good provided, the more broad the fair dealing exception. The more commercial profits provided, the more narrow the fair dealing exception. By this broad, over-arching principle, the use of Canadians' images by dating and porn sites provide us little public good but do provide the site administrators profits. Instinctively, the companies using these images would face a more narrow application of the fair dealing exceptions.

But this conceptual analysis is insufficient to discard fair dealing altogether. To dig into the heart of this legal matter, the companies engaging in this behaviour would have to prove that their dealing falls within one of the enumerated principles of fair dealing, and then would have to prove, by a contextual analysis of the facts, that their dealing is fair in accordance with the six factors as elicited in :

• the purpose of the dealing;
• the character of the dealing;
• the amount of the dealing;
• the alternatives to the dealing;
• the nature of the work; and
• the effect of the dealing on the work
  
  

It is my opinion that it is unlikely for the analysis to surpass the first stage of the fair dealing test, as the dealing does not fit into any of the (research, private study, education, parody, satire, criticism or review, and news reporting). However, if it were to pass this stage of the fair dealing analysis, it is my opinion that a contextual analysis of the facts would result in a finding that no fair dealing exists in this case. I would arrive at this conclusion by arguing that there are legitimate alternatives to the dealing (models could be hired and photoshoots done by the advertisers), that the amount of the dealing is unfair (pictures are being substantially reproduced), that the character of the dealing does not support fair use (pictures are being used for commercial gain), and that the effect on the work is prejudicial (the images and the reputation of those pictured are potentially harmed).

User Waivers from 3^rd Party Photo Hosting

Dating and porn sites may have a strong argument if they only scrape Canadians’ images from third party websites or social media networks with sign-up contracts that ask users to waive rights to their likeness. This legal reality may be unpopular in the court of public opinion. concerns about the tension between consumer rights and lengthy digital contracts. A movement is burgeoning to demand more proactive and legible terms to be disclosed to consumers. Services to of these contracts and rumours of apps in development to provide layperson translations to contract legalese showcase the problems that these contracts pose.

I would tend to agree. In my opinion, these contracts are unreasonable because they are extremely lengthy and overly legalistic. The majority of users are not able to understand these agreements, which is a big problem. It also points to potential invalidity due to the unconscionability doctrine.

To start, there are many seminal “ticket cases” in the UK that call into question contracts where one party does not adequately appreciate the terms of the contract such as the 1970 case . ‹

Similarly, Canadian contracts can be set aside for inadequacy of consideration or unequal bargaining power ( and ). contains a lengthy list of factors to consider in order to properly assess bargaining power: a plaintiff’s ignorance of business, illiteracy, ignorance of language of the bargain, blindness, deafness, illness, developmental disabilities, and other similar challenges. is another foundational case in Canadian unconscionability law. A more holistic approach to bargaining inequality, recently emerged in , where the Supreme Court said there is no definitive list of factors; courts should be alive to conditions of the parties circumstances, unique pressures and situational vulnerabilities. Meanwhile, focused on the “distress of the weaker”, and Ìęused the word “disparity” in its analysis of unconscionability.

Whether the highest ranking or recent cases lay out a definition of unconscionability that would cover third party website waivers is uncertain. I do believe – for some more-vulnerable users – our growing reliance on the largest social media sites and their ubiquity in our day-to-day lives may meet the power imbalance threshold required for unconscionable bargaining. The more users depend on a service for the function of their day-to-day lives, the more the potential for imbalance and disparity in bargaining power. Dependancy creates bargaining weakness.

Two Systemic Criticisms: Statutory & Social Failure

In my opinion, lack of political action and social concern are failing young Canadians who don’t want to show up in an advertisement for an online dating or porn site.

I.ÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌę The Statutory Problem: Not Going After the Scrapers

There exist easy alternatives to image scraping. There are to access free images. Governments should take steps to protect individuals – both by demanding websites only accept advertising from companies who agree to ethical photo sourcing standards and by establishing a regime to police and crack down on scrapers. Scrapers operate with software and servers from countries around the world, so it would likely be necessary to create a global framework of international agreements to combat this activity. It would be onerous, but I believe it’s worth the work involved.

II.ÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęThe Social Problem: Blaming the Photo Posters

In observing the aftermath, the Rehtaeh Parson’s case has caused a rash of victim blaming mirrored by that seen in many cases of sexual violence. For instance, the of the Parsons image scandal ended with an inappropriate call-to-action for increased conservatism in photo posting. A media professor from Queen's University says the unfortunate use of Parsons' image in an ad could be a "teachable moment" for parents trying to instruct their children to be vigilant about uploading photos to the internet.

"We are in a new day where people think that if they find something on the web it's free to use, and that's not necessarily the case," she says. "In this case, we're seeing the hurt that that can cause."

In another instance, the included a similar warning from the Ontario Privacy Commissioner.

"Ann Cavoukian, Information & Privacy Commissioner of Ontario, described what happened with Parsons’s image as a 'strong reminder that we can rarely control the use of our pictures once we share them online.[']

'The unfortunate reality is that people give out far too much information about themselves, believing that their information is ‘private’ and they are safe behind their screen. You are not!' Cavoukian said in an email statement to the Star.

'We all need to take steps to protect ourselves online, especially on social networks,' she added. 'Young people must be especially careful to consider the potential risks, and make it a practice to only post photos that they want everyone to see, including strangers and prospective future employers.[']

'If not, don’t post it!'"

Given that Canada has not acted to regulate against scraping of its citizens’ photos, it’s disappointing to me that the go-to response to the Parsons photo misuse was to tell people to be more careful about what they post online rather than condemn and go after the wrong-doers. I believe it’s a particularly insensitive approach when you consider the root of the Parsons case. Rape culture tells young women to avoid walking alone, to watch what they wear, and to restrict their own liberties in order to avoid sexual violence. Rarely does it focus on .

Here, where we should have a vigorous call to go after those social media sites and scrapers who expropriate and commoditize photos of young women, we are instead turning to young women and telling them to restrict the images they put online.

I conclude this post with , Rehtaeh’s mother, written in response to uncovering the dating site photo. It makes the link between photos and human rights better than I can.

"It is disgusting that even in death, my daughter's image is still being exploited. When I see these violations, whether it be the singles ad stealing Rehtaeh's photos -- or the people who contact me and to say negative things such as she should not have been drinking, she was a troubled teen, she was in the wrong crowd -- I sit back and reflect on the reality of who Rehtaeh truly was. Then I think: So what if someone is a troubled teen or was drinking -- as if their behavior or emotional state somehow give permission for others to abuse them."

Denise BrunsdonÌęis an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine. She is also the social media volunteer at Sexual Assault Centre London.

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

Though litigation around Ìęseems 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 Ìę 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 Ìę 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 Ìę to assist Ìę—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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Our very own Osgoode professors and feminist scholars, and presented a thought-provoking keynote entitled,Ìę“Copyright and the Moral Arts of Appropriation: Feminist and Postcolonial Perspectives”, at the Conference hosted by the of the University of Toronto on November 11, 2011. Linking the overarching conference themes of how appropriation affects different feminisms to the intellectual property rights of postcolonial societies, the presentation provided an intriguing insight into the conflicted worlds of economic rights, technology, knowledge-sharing and cultural preservation.

Speaking on the ideas developed in their paper “” (co-authored with Joseph Turcotte), both Professors Coombe and Craig explored the concept of digital appropriation with respect to developing societies, especially highlighting the impacts of the economics-based property rights management model of the contemporary global intellectual property regime on local communities. The concept of the ‘cultural commons’ here, they argued, was being eroded by the narrow application of intellectual property rights, which confined ownership to one or a few, effectively reducing the scope of societal development by the exclusion of crucial perspectives, especially those of women.

While Craig proposed that the WWW and emerging technologies could be used to enable the public to contribute to the creation of more egalitarian intellectual property rights, Coombe suggested that the very idea of ‘public’ needed an overhaul to include diverse voices, as the term was historically entrenched in gender and social inequalities. Both authors concluded that that “a more inclusive notion of stewardship” is necessary, and that intellectual property rights will only work favorably in postcolonial societies if they work symbiotically, not parasitically, with the communities they wish to benefit from.

Professor Coombe’s approach further involved a critique of North American public domain policies as “too individualistic with their emphasis on public freedoms,” and cited the incompatibility of intellectual property rights derived from these ideas with postcolonial societies. Intellectual property, she said, was more of an enclosure to these societies, and because of this, the notion of the ‘public domain’ itself became “a modern bourgeois term,” that restricted cultural development instead of freeing cultures. According to Coombe, current intellectual property concepts only supported the continued dispossession of local communities, effectively becoming a tool for recolonization. Citing the role of women in farming communities in the developing world, Coombe emphasized the importance of vernacular property rights, including knowledge of land use and agriculture that was passed down orally, “through networks of women’s trust.”

She also argued that with moves such as the patenting of seeds, or preventing cross-breeding of seeds, intellectual property rights were doing more than just preventing innovation in agricultural development— they were denying communities the means to propagate their own intangible wealth of social history, effectively debilitating the already-damaged fabric of postcolonial societies. The answer, according to Coombe, is to broaden the existing perception of private goods and the public domain, and to ensure that intellectual property rights are not just involved in protecting tangible expression, but that a novel “postcolonial ethic of stewardship” can give the intangible contribution of distinctive groups their due.

Professor Craig also drew on a relational theory of copyright law and suggested that, in order to be legitimate, a system of copyright must provide access to various cultural landscapes and must be modified to create spaces where the process of authorship enables “ongoing social dialogue as part of cultural conversation, which then helps shape communities.” The current practice of using copyright law to put forward proprietary claims is a form of Lockean possessive individualism, argued Craig, and only propagates the marginalization of the same groups that have suffered due to exclusion historically. This effectively creates the same problems in intellectual property rights as faced by real property management regimes, because copyright law "wants to believe that expression is created in a vacuum," rather than being a complex interplay of various influences. The solution, according to Craig, lies in open-access initiatives like the (A2K) movement, which is built on collaborative knowledge sharing across cultures. Craig also pointed out that feminism and open-access complemented each other perfectly, since both were concerned with “prioritizing the marginalized and countering private appropriation,” and were “optimistic about technology’s capacity to destabilize the existing power structure.”

Tied into one of the conference’s main concerns of how appropriation could be used in a positive context, the keynote focused on advocating for a more nuanced approach that preserved the uniqueness of postcolonial societies and the “need to protect the ‘we’ with more humility.” It provided a worthy segue into the conference’s second and final day, where many of the questions raised by Professors Coombe and Craig were discussed and debated, and created the background for further dialogue on feminism and the politics of appropriation.

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