CIPO is a hotbed of intellectual property action and is able to cater to the most eclectic of tastes. Have a thing for patents? CIPO has you covered. Trade-mark examination more your cup of tea? CIPO’s got that too. CIPO’s examiners in its various departments are the individuals responsible for dealing with applications for protection; connecting with direct filers or the agent community in order to grant rights. Hearing officers in the Trade-mark Opposition Board (TMOB) are tasked with sorting out disputes that arise from oppositions or non-use proceedings while those from the Patent Appeal Board (PAB) conduct ex partes administrative functions to determine whether or not an application should be granted patent rights. The Policy, Planning, International and Research Office (PIRO) conducts research into IP policy and best practices in other jurisdictions. But as the point of contact between the public and Canada’s IP regime, CIPO also acts as a centre of information and assistance. In this capacity, they take calls from inquisitive parties, work on improving their social media outlets, and conduct outreach with those that they feel could benefit from an introduction to what the office does. CIPO really does it all and it’s quite amazing to have been able to experience it through the IP Intensive program.

Darlene Carreau, the Chair of the Trade-marks Opposition Board, was my main point of contact at the Office and was an absolute pleasure to work with. Not only was she a great resource when I had a question to ask, but she was also the one responsible for planning my whirlwind tour through the other departments in the office. And what a tour it was! Due to the differences between each department, the work assigned to me each week was varied and always kept me on my toes. I wrote draft s. 45 decisions for the TMOB, created a policy report for PIRO on interfirm research and development collaborations, looked at trade-mark “use” in other jurisdictions and drafted trade-mark refusals for the Trade-mark Branch (TMB), tried to define “the Register of Industrial Designs” for the Copyright and Industrial Design Branch (CID), participated in a shortened version of patent examiner training and looked at “utility model” protection around the world for the Patent Branch, and finally spent some time doing case briefs for the Patent Appeal Board.

While the work was definitely interesting, I think the real meat of my experience at CIPO lay in my ability to see the inner workings of the office, pick the brains of those��who have been working on the ground floor of IP for years, and attending a variety of the meetings held in the Office. Seeing the way that an examiner approaches a file was an eye-opening experience, and being able to ask the examiners about their thought process and cases they worked on will be a perspective that most lawyers will never gain during their careers.

During my time in Ottawa I was also fortunate enough to attend a meeting for the Standing Committee on Industry, Science and Technology (INDU) where witnesses from a number of interested groups provided testimony and answered questions regarding Bill C-8, the . I was also able to attend a hearing at the Supreme Court of Canada – another event that not all lawyers have the opportunity to experience.

If you are an Osgoode student interested in intellectual property, I cannot stress enough the value of the work experience and personal contacts that I have gained through spending a work term at the Canadian Intellectual Property Office. My time at the office will no doubt be a boon to me as I enter my legal career and has given me a taste for what it means to work in the intellectual property field. And who knows? Maybe one day I’ll return to that mystical place.

Adam Del Gobbo 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 reflective blog on their internship experience.

The post IP Intensive Program: Taking a Look Behind the Wizard’s Curtain – A Semester at the Canadian Intellectual Property Office appeared first on IPOsgoode.

The afternoon event was structured into three panel discussions -- titled "Copyright Scope and Management," "Fair Dealing," and "Technological and Copyright Neutrality" -- in which authors featured in the new book provided short presentations summarizing their findings and analysis on some aspect of the����- the series of five copyright decisions released in the summer of 2012 by the Supreme Court of Canada. The panels then proceeded to take questions from the audience.

While all three panels were informative and interesting, with��, fair dealing has resurged as a hot topic in Canada. The "Fair Dealing" panel, led by Michael Geist with �����Ի���, provided insight into how courts will likely treat fair dealing in future and how educational institutions may react to the decision. Before I discuss the panel’s treatment, a background overview of fair dealing in Canadian copyright law may be useful.

A Short History of Nearly Everything About Canadian Fair Dealing

The law of fair dealing () was clarified by the SCC in��. There the Supreme Court described fair dealing as a user right - "more properly understood as an integral part of the��Copyright Act��than simply a defence" (2004 SCC 13, para 48). The Court also laid down a non-exhaustive list of six factors that need to be evaluated to determine if a dealing was fair. This evaluation of fairness is part of a two-part test, the first being whether the dealing is for one of the allowable purposes listed in the��Act��(more on this later).

Questions relating to fair dealing appeared twice at the SCC in the 2012 Pentalogy, in �����Ի��� IPilogue coverage can be found�������Ի���.

In Access Copyright, the Court found in favour of the Alberta Education Board, saying that classroom copies made by teachers of excerpts from copyright protected material could be considered fair dealing for the allowable purposes of "research or private study", broadly construed. ��The court also determined that a teacher's purpose for copying could not be separated meaningfully from the purposes of the teacher's students. The teacher and her employer could therefore benefit as facilitating the fair dealing purpose of the students since it is the end user’s purpose that is relevant on the question of fairness.

������Bell, the SCC determined that providing 30- to 90-second previews of songs for customers via streaming was not an infringement of copyright and so not subject to a SOCAN royalty tariff. The Court stated that these previews could be considered as "research" on whether or not to purchase the whole song and, being fair in relation to that purpose, passed the second part of the��CCH Canada��test.

Both decisions have caused a number of IP lawyers to modify their previous conception of fair dealing in Canadian law.

Fair Use 2.0: The Rebirth of Fair Dealing in Canada: Ariel Katz’s Presentation

Has the shift in fair dealing as a result of the SCC's decisions in the Copyright Pentalogy��been a move into uncharted territory, or are we merely back on the course we were always meant to be on? Katz reiterated this point throughout his presentation. While����- the closely related cousin of fair dealing in Canada - provides an illustrative list of purposes by using the words "such as" before them in the U.S. legislation, section 29 of the��Canadian Act��lacks this wording. Most lawyers therefore believe that the list of activities in Canada is exhaustive rather than illustrative, on the expressio unius est exclusio alterius principle ("the express mention of one thing excludes all others").

Katz posits that such a reading insufficiently considers the legislative history of fair dealing, once a judge-made principle of equity in UK common law that was later enacted into the Copyright Act 1911 (UK) and carried forward into the Copyright Act 1924 (Can.). Lawyers involved in the drafting process at the time had strangely little to say about whether the enactment was intended to limit the scope of fair dealing in practice as previously understood. ��From a policy perspective, did or does it make sense to exclude certain areas of use categorically from this user right? Yet with the addition of the categories of parody and satire by the 2012, ��Canadian law will likely continue its restrictive approach, at apparent odds with the original intent of the 1911 and 1924 legislation.

Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use - Michael Geist’s Presentation

Michael Geists’s presentation following Katz's was aimed at showing that the restrictive approach to fair dealing would not apply in practice in the future since, after the Pentalogy, Canadians are living in a U.S.-style “fair use” world in all but name.

The Supreme Court’s approach of giving a large and liberal interpretations to the categories enumerated in the fair dealing sections of the��Canadian Act��means that the first part of the fair dealing test - whether the dealing is within the scope of the legislation or not - presents a very low legal hurdle to overcome. Most of the legwork will take place in the second part of the��CCH Canada��test through a consideration of the six “fairness” factors. The shift has occurred because: (1) the list of enumerated fair dealing purposes has grown with the 2012 amendments to the��Copyright Act��in 2012, and most activity should fit into one of the categories, broadly defined; (2) the Court in��Bell��confirmed CCH’s�� generous interpretation of the fair dealing purposes, so that most of the "analytical heavy-hitting" should occur when determining whether or not the dealing was fair; and (3) the Court has focused on the end user’s purpose, making it increasingly easier for the Courts to find that third party activities directed to that purpose equally qualified as fair dealings.

On this view, the concept of user rights has clearly expanded and the question arises how creators view this recalibration of the copyright balance.

Fair Dealing Practices in the Post-Secondary Eduction Sector after the Pentalogy - Samuel E. Trosow’s Presentation

Trosow's presentation was direct and to the point: now that the Courts have confirmed fair dealing rights, universities need to stop contracting out of the rights the legal system has granted them. According to Trosow, in 2010 (6 years after��the decision in��CCH), post-secondary schools were still not factoring fair dealing into their copyright licensing strategies. In 2013, after the Pentalogy, there seem to be few reasons for these institutions to hesitate. Trosow argued that licence agreements with Access Copyright should be terminated at the first available opportunity and that institutions should further develop their copyright practice guidelines to take advantage of their fair dealing rights.

Even with the SCC’s recent reinforcement of user rights in��Access Copyright�����Ի���Bell, post-secondary institutions seem wary of cancelling their licensing agreements with Access Copyright. Trosow stated that the main reasons for this behavior were: (1) institutional risk aversion, (2) overreaching by copyright owners and copyright collectives, and (3) general copyright literacy. Institutions need to make an effort to educate themselves and their staff on how to use materials appropriately to stay within their fair dealing rights . Practices should be developed in an open manner and should act as flexible and useful guidelines rather than rigid workplace rules. For Access Copyright licensing to continue, the collective will need to provide greater value to the institutions beyond what fair dealing provides them.

Reflections

Although perhaps difficult to implement at a book launch, there seemed little discussion on the possible ramifications of the aggressive expansion of fair dealing as a user right. Even in the question periods that followed each panel, only a few individuals raised arguments on the side of collectives and creators.

The Access Copyright��case undoubtedly represented a massive defeat for copyright collectives - organizations that exist to ensure that creators are paid fairly for the use of their works. If courts continue to interpret fair dealing as broadly as they have in recent years, creators may continue to see their piece of the pie shrink ever further. Whether this is or is not a good result, it is necessary for all angles of the problem to be considered if the proper balance in copyright law as described by the Court in�� is to be maintained.

Copyright collectives meanwhile have cause to be worried with what these Supreme Court decisions mean for their future and the creators they represent.�� The foundations of copyright law were not the only thing shaken after the Pentalogy decisions were released in 2012.

Adam Del Gobbo is the Content/Publication Editor of the IPilogue and a JD Candidate at Osgoode Hall Law School.

The post The Copyright Pentalogy: How the Supreme Court of Canada Shook Up Fair Dealing appeared first on IPOsgoode.

Graham Henderson, the President of Music Canada for the past eight years, has led an illustrious career over his lifetime.�� Before serving as an advocate of the music industry in��his current��position, Graham Henderson��was a��lawyer at McCarthy Tétrault LLP, founded his own entertainment law boutique, and served as Senior Vice-President of Business Affairs and eCommerce at Universal Music Canada. On Friday, March 1^st, 2013, only a few weeks before his imminent induction into the ,��Mr. Henderson spoke to an attentive audience about the importance of the��music industry in Canada and the��five main areas in which Canada’s music scene can be supported, and in turn boost Canada’s economy and improve how the world views our country and culture.

The talk began with an overview of the importance of the music industry to the Canadian economy. Quoting commissioned by Music Canada, it was shown that the broader Canadian recording industry generated $400 million in spending nationwide and contributed $250 million to Canada’s gross domestic product.�� In by the Ontario Chamber of Commerce, the music industry was referred to as one of the province’s “competitive advantages” and ranks alongside the other “M” industries of the province – manufacturing and mining.

On a global scale, our musicians make up a large contribution to how the world views Canadian culture and society.�� Canada��being only the 35^th largest population in the world��has the��7^th largest music market, which demonstrates that “Canada consistently punches above its musical weight”. This is a point of pride that Mr. Henderson��says should be held on to and built upon.

The effects that have been felt across the music industry as a result of digitization were also highlighted. What was once a $38 billion market has now shrunk to $16 billion. However, the in industry growth (the first in 13 years) has given the President of Music Canada reason to celebrate.

Mr. Henderson’s speech focused on information gathered as a result of efforts by Music Canada�� that is slated to be released on March 21^st, 2013 as a part of . While this report��may not hold all of the answers, Mr. Henderson hopes that it would be key in getting the discussion going.�� The following is an outline of the five key areas for exploration and investment that were discussed.

Music Education

Music education��can��“raise the bar” of Canada’s music industry. ��The (ICTC) has been leading the charge in this area by��making connections between music education and a skilled, tech-savvy workforce. Their research shows that by emphasizing the importance of this workforce, it will be easier to draw high-tech employers and employees to our country.

Better music education is an integral structure to making Canada an attractive place for investment. Improved music education would not only benefit young Canadians attempting to pursue careers in music, but will also provide benefits in a number of other areas such as collaborative skills and mathematics. However, as it stands, our school systems do not support music education in a very meaningful way. Research by found that the main deficiency in the system is lack of funding and low prioritization of music programs, resulting in “music rooms losing out to janitorial closets”.

On the bright side, the private sector has been stepping up in these areas, providing money for programs and instruments. Regardless of this, there is still a role for the government to play. Giving the example of – the successful nation-wide fitness initiative that receives much of its funding from the federal government – Mr. Henderson asked, “If physical fitness is important, why not music education?”

Digital Innovation

In order to be successful in this new digital age, the music community must adapt and evolve alongside society.�� In this regard, research has shown three��areas of opportunity:�� innovation as a centerpiece of existing funding models, leveraging industry partnerships, and the creation of��new models for monetization.

In the area of monetization in particular, the industry faces the challenge to “generate dollars from this business of pennies.” With the transition to digital consumption, there are often horror stories such as��one physical CD sale being worth more to an artist than several hundred thousand streams of their music. The Canadian music industry also faces some market-specific issues – in a market where almost all digital retailers are foreign-owned, how can we ensure that Canadian content is given shelf space? In order to ensure this occurs, we need to get more retailers to prioritize our market, launch their services here, market here, hire Canadians, and build relationships with Canadian artists.

Music Tourism

Mr. Henderson identified tourism as an enormous latent potential that has largely remained untapped. The identified this area as one of the preventing Canada from competing on a global scale; an area that could be improved through music.

Music Canada’s economic impact studies have shown that the musical diversity in Ontario and across Canada is one of the country’s global advantages. From a by the , we know that 9.5 million overnight tourists to Ontario (almost 25%) participated in arts and culture activities during their trips (of which music is a driving force). From the same study, it was found that these “arts and culture” tourists spend almost twice as much while visiting.����Increasing the number of these types of visitors would provide a huge boost to our country’s economy.

Mr. Henderson then compared and contrasted the qualities of Toronto and Austin, Texas – the focus of a commissioned by Music Canada. While Austin’s population is only a fraction of Toronto’s, the plan that they have put in place has given them a reputation as a hub for live music and in turn, has provided increased local revenue and created new jobs.�� Toronto’s to broadening the funding of the arts is a step in the right direction.

Export/Expansion Development

Canadian musicians and artists often act as ambassadors of Canada to the outside world – if one were to ask the resident of a foreign country of their first thought of Canada, it is likely that they would respond with a figure of our creative community. Musicians that “make it” on a global scale point to the existence of a culturally diverse landscape and make our country attractive for those looking to invest in new ventures. As a result, both tangible and intangible results will be obtained if we support artists and musicians from our country.

To this end, the forthcoming report will recommend a more elaborate private-public partnership that will require the creation of an export office that provides assistance to all that are interested. The goal of this office will be to promote Canadian content abroad, and help our musicians succeed on a global scale.�� Mr. Henderson emphasized the importance of not only creating great music but also supporting it downstream. Building international fan-bases can be achieved through social media, international marketing support and technological innovation.

Interconnected Tax Credits

It is well-known that creative industries are highly susceptible to demand uncertainty – companies must make fairly extensive investments without knowing what the return for that investment will be. To alleviate some of this pressure, federal and provincial tax credits should be afforded to artists and investors.

Mr. Henderson intimated that he thinks the tax credit system for music should mirror that of the film industry in that the credits should be extended to foreign investment companies. The study shows that this would generate a further $60 million in spending and create 1,300 direct and indirect jobs.

Comments and Points of Discussion

While it was an interesting and thought-provoking speech, I was somewhat surprised that Mr. Henderson did not mention the fact that increasing music education might affect the public’s perception of the worth of creative works. Some of the discourse in the debate between creator and user rights revolves around the concept that some portion of the public sees less value in a creative work because of the existence of a “free” copy that can be downloaded on the internet. As a result, those users will be less likely to pay for a legitimate copy of the work (or will only be willing to pay when the price falls below a perceived threshold of value), thereby causing the market to change its pricing structure or suffer a loss of sales.

By educating a larger percentage of the population of our country – even if those that are educated do not choose a career in music – it may be possible to change future generations’ notions of “value” in creative works. If young Canadians can understand the work and effort required to create a musical/creative work, even the existence of a “free” copy might not tarnish the value of the work in the eyes of consumers.

My second thought while listening to Mr. Henderson’s��speech was the place that crowd-funding has in the music industry’s future. Some of the problem that the industry seems to currently have is the question of whether a publisher’s return on investment with a certain artist will be profitable. Crowd-funding (seen on such websites as ) takes some of the guesswork out of the equation but it may be that indie artists are better suited to this type of approach to monetization. However, I feel that some altered form of crowd-funding may be��usable by larger-scale publishing companies.

Thanks

A special thanks to McCarthy Tétrault LLP for sponsoring a table for IP Osgoode at the luncheon event hosted by the Canadian Club of Toronto on March 1^st, 2013, and for��providing��students from Osgoode Hall Law School��a special opportunity to hear the words of the upcoming inductee to the Music Industry Hall of Fame.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School

The post Graham Henderson's 5 Easy Steps to Fixing Canada's Music Industry appeared first on IPOsgoode.

For an in depth discussion of the copyright pentalogy,��see��.

Mr. Bouchard set the tone for his presentation by a tongue in cheek reference to the copyright pentalogy��as the “copyright quintet” – a prelude to his discussion on the impact the pentalogy cases has had on recent decisions of the Board concerning musical works.���� Discussions on the impact of Bill C-11 and the Copyright Modernization Act were also on Mr. Bouchard’s playlist for the noon hour. (A list of the files that are still undergoing review, notices and interim decisions of the Board can be found��.)

Online Music and the “Making Available” Right

One of the most discussed issues during Mr. Bouchard’s presentation was that the communication right in the�� would not apply to permanent downloads as a result of the����released on July 7^th, 2012.

There was some discussion by Mr. Bouchard of the concept of joint product pricing in economics. ��In the context of music downloads and streaming, he theorized that if the market for music downloads were eliminated by removing the public communication tariff, the price for streaming would typically increase as a “joint product” (all other things being held equal). Whether this is the direction that should be taken is an important decision that the Board will have to make in the near future.

There is also uncertainty in the digital medium because of the addition of section 18 (1.1) to the��Copyright Act as part of the implementation of the��Copyright Modernization Act. This section has been referred to as the “making available” right and in these proceedings, the parties involved were curious as to what protections the right granted and how it would interact with the����decision. While the Board chose not to consider this issue separately from its analysis of tariffs on online music, it sent an invitation to the parties it had dealt with in the last several years to make submissions in regard to this issue.

The hearing for this file is scheduled to begin November 19^th, 2013 – as such, it seems that we will have to wait a while before we will be able to fully grasp the impact of the recent court decisions and legislative changes on online music tariffs.

Ringtones

On August 1^st, 2012, in relying on the����decision, a ringtone supplier to the Board to repeal the 2003-2005 and 2006-2013 tariffs for these files. The 2006-2013 tariff was of particular interest for two reasons: (1) it was a result of an agreement between suppliers and SOCAN, and (2) it was certified only two weeks before the��ESA��decision. The issues raised in the application were of “fascinating complexity,” according to Mr. Bouchard, for 3 main reasons:

(1)���� It questioned the finality of regulatory decisions.

(2)���� It raised issues regarding payments made under mistake of law

(3)���� It brought to the forefront the impact of changes on determination of law

When proceeding on the matter, the Board decided that the application to vary/repeal the 2003-2005 tariff and the 2006-2013 tariff up until the date of November 6^th, 2012 (the day before part of the��Copyright Modernization Act��came into force) would be denied. However, the Board concluded that it would examine the 2006-2013 tariff applying after the date of November 7^th, 2012 on the basis of the following three reasons (good things always do come in threes):

(1)���� The question concerning the ambit of powers of the tribunal exceeds the normal context of tariff proceedings.

(2)���� The power to vary does not include the power to rescind/repeal unless it is clearly stated (as is the case for some other tribunals).

(3)���� Even if the Board had the power to grant the application, it would not as it should be left to the ordinary courts of law and that this application was an attempt to bypass federal courts for review.

Mr. Bouchard pointed out that paragraph 41 of����references the fact that while��ESA v SOCAN�����Ի�����represent “the proposition that internet delivery of a permanent copy does not involve the communication right…. [that] neither decision provides directives that would allow us to determine what is a permanent copy and what is not.” This raises some interesting issues that Mr. Bouchard highlighted by asking the audience, “If I deliver a permanent copy that becomes unusable, is it a permanent copy?” It will be interesting to see how the Board and the judicial system will approach this question, as it is not an easy one to answer. New technologies and methods of content delivery in the future may also alter the perception of this question.

Photocopies

The SCC in����case remitted the case back to the Board for reconsideration. After the parties made their initial representations, the Board issued an order on September 19, 2012 stating that the SCC’s decision “left no room for interpretations” and that as a result, the rate must be reduced accordingly by removing Category 4 copies from the calculation. Highlighted by Mr. Bouchard (and by����when he visited Osgoode Hall last November) was the curious way in which the Board described how the SCC came to its decision, stating that it was “based on the record before the Board��and the finding of fact of the Supreme Court” (emphasis my own). Was this accidental slip of prose, or a purposeful jab at the SCC’s approach to judicial review? We may never know, and whether this will affect proceedings in any way remains to be seen.

On January 18, 2013 the Board that if a tariff authorizes an institution to copy a work, then the fair dealing exception would only apply to uses in a medium other than what the licence provided for. For example, if the licence was for photocopying, a teacher could not claim fair dealing if a test using the materials was administered by photocopy, but the exception could be claimed if the test was administered over the internet.

According to Mr. Bouchard’s knowledge, there are rumblings that many school boards plan to claim “fair dealing” for all, if not most, copies that they make. As a result, going forward, the developments in cases related to educational institutions and copying will be interesting. Depending on the extent to which the exception is claimed, Mr. Bouchard indicated that he would not be surprised if the Board hears from Access Copyright again soon.

Commercial Radio

On July 13^th, 2012, the Canadian Association of Broadcasters (CAB) requested that the Board issue an reducing the reproduction royalties paid by commercial radio by 90%, to declare that there is no longer a legal basis for any reproduction tariff in this area, and to rescind the����tariff as of that date. In order to support their claim that there should be no reproduction tariff, CAB argued that the interaction of provisions dealing with back-up copies and tech processes, the new treatment of ephemeral copies under the amended act (ss. 30.8 and 30.9), and that evaluation copies provided to directors of programming should be considered fair dealing for the purpose of research. The Board rejected the interim applications, stating that those that claim exceptions must show that they are entitled to do so. As the Board was aware that many radio stations operated differently, it refused the request, stating that this proposition was “illogical”. However, the Board recognized that the issue needed to be dealt with quickly and has set hearings to take place in the near future.

Musical Works on Television

The last case Mr. Bouchard discussed dealt with licensing by the Canadian Broadcasting Corporation (CBC) to use Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) repertoire. The January 16^th, 2013 of the Board relied on some of its reasoning in the Commercial Radio case, but due to its multiple broadcasts in various time zones across the country, CBC would likely be less able to rely on ephemeral recording legislation in the��Copyright Act.

The Board granted an interim licence that is, in many ways, the same as the old licence that existed. However, the Board ��decided on a lump-sum tariff and extended the lump-sum synchronization licence with a discount of 20%, effectively encouraging transactional licensing in this area.

Conclusion

Though it has already been��six months since the copyright pentalogy decisions were released, and two months since part of the��Copyright Modernization Act��came into effect, there is still a lot of uncertainty as to what the consequences of these changes will be to the operation of the Copyright Board of Canada and the Federal Court of Canada with respect to copyright law in Canada. Many lawyers will have to grapple with the reinvigorated (and sometimes new) concepts of permanency, technology neutrality, fair dealing, and . As a result, copyright advocacy in the foreseeable future will remain extremely divisive and adversarial. It may be that in the next few years we will see another set of important cases reaching the Supreme Court of Canada for judicial review of����Copyright Board decisions. Until that time, it will be interesting to see the path that our lawyers, administrative tribunal adjudicators, and judiciary will pave in the days ahead.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School

The post Mario Bouchard: Copyright Quintet opus 1. no.1, by McLachlin et al appeared first on IPOsgoode.

Adam Jacobs, one of our other IPilogue editors has written an extensive article on what could be considered the “sister case” to the Siegel estate’s legal battles . details the denial of termination rights (provided in ) to the heirs of Joe Shuster, the other co-creator of Superman. Many of the issues present in that case were discussed in Siegel, et al v Warner Bros Entertainment Inc, et al. The decisions of the trial judge and the 9^th Circuit Court of Appeal are found and , respectively.

While the decision was made with regards to US Copyright law, legislation that differs in a number of ways from the Canadian copyright regime, it is useful to look at the reasoning behind the inclusion of termination rights in different copyright regimes, and how the policies that drive Canadian and US copyright law in this area might be applied in future cases.

First, it will be useful to discuss what happened in the appeal to the 9^th Circuit court in the case at hand. On appeal, the court determined that regardless of the arguments made for and against the Siegel estate being able to put to use their termination right against WB and DC Comics (an issue discussed at length in the trial decision), a letter from the Siegel estate’s lawyer was enough to find that a valid contract existed between the two parties. The court stated that years of ongoing negotiations between the two parties that resulted with this letter on October 19, 2001 – a letter reflecting material terms that had been orally agreed to – was enough to bind the parties even if After the court determined this, it stated that such a decision would render all the other questions in the lawsuit moot and therefore, declined to address the other issues. As such, it seems like the reasoning given on trial (where the Siegel estate won its case) would stand to be precedent upon the issue (with admittedly low persuasive value).

The main reasoning that such termination rights were introduced in the Copyright Act of 1976 was to allow creators to renegotiate the terms of deals . Such a decision allowed for deals made before 1978 to “expire” after 35 years (upon the decision by the original copyright owner to do so). Policy-makers in US copyright law, in this respect, seem to put little faith in the ability for creators to contract their works out to others; but in the grander scheme, such protection, especially for those contracting when new media forms were in their infancy, might balance out the difficulties that seem to arise within the legal system when applying such a law.

Again, while such a decision and discussion of policy seems to have little to do with Canadian law, where no exact analogue to this “termination right” exists in the , many parallels can be drawn to our legislation. Section 14 of the Copyright Act could be seen as providing a very similar protection (and resulting rights) for creators and their families. Section 14(1) provides a reversionary interest in copyright to the estate of the author which vests 25 years after the death of the author. Through the operation of this statute, the families of deceased creators will be able to renegotiate the contracts for the assignment/licence of the work for the remaining term of copyright.

In the future, it will be especially curious how termination rights operate in US Copyright law. The American legislature seem to be slightly more keen on extending the terms of copyright in order to protect some of the foundational works of American culture (the last Extension Act in 1998 wasn't nicknamed the by accident). As a result of a new extension, we may also see another extension on the date as to which deals the termination rights could be afforded to. For now, by winning big in this lawsuit, WB and DC Comics must feel like a bullet just ricocheted off of their Kryptonian skin.

Adam is a JD Candidate at Osgoode Hall Law School

The post It’s a Bird, It’s a Plane, It’s a Lawsuit! – Termination Rights Denied to Siegel Estate for Superman appeared first on IPOsgoode.

Instagram, Twitter, Pinterest and Facebook. All 4 are some of the world’s largest social media services. These services, and others like them have been gaining more and more traction as the number of internet users increases worldwide. However, as Instagram users, users might be unwittingly allowing these services to use not only the information they post but the content they share using these services. In December, Instagram proposed changes to their Terms of Use policy that seemed to give Instagram the ability to use and sell users' posted content and information without additional compensation to the user in question.

Once this became widespread knowledge online, the was almost unanimous. In an attempt to mitigate the public relations backlash, Kevin Systrom – co-founder of Instagram – attempting to clarify what the new terms meant and stating that the particularly offending terms would be removed when the new Terms of Service and Privacy Policy document came into effect on January 19^th, 2013.

A news story such as this brings to the forefront a number of issues that have economic, legal, technological, and privacy-related implications. An in-depth discussion on these topics would provide enough material for a term paper (or two), so the following will be a brief outline on the major discussion points that law makers, service providers, and users should keep in mind as they move into the future.

The first consideration is that consumer contracts, such as the Terms of Service (also seen in forms such as the End User Licence Agreement), have been held as valid contracts by the US and Canadian courts in such cases as and . These cases dealt with shrink-wrap licensing – a practice used by a number of software manufacturers in the past in which a person opening the product packaging would be found to have agreed to the terms of use contained therein. While most social networking sites such as Instagram have users agreeing to terms by the use of click-wrap licensing (users agree to the terms by clicking “I Agree”), the same principles apply and courts have found these consumer contracts equally valid in most circumstances.

While consumer contracts like Terms of Use and End User Licence Agreements are ubiquitous in the digital age, how many people actually read and understand them before accepting is an interesting question. Typically, creation of a contract requires a “meeting of the minds”. In the context of these types of contracts, having the opportunity to understand the terms but failing to do so will still result in a valid, binding contract if the terms are agreed to. While this hardly seems to be the “meeting of the minds” that is normally required, taking this approach allows for efficient contracting between the public and corporations. Some could argue that the beneficial economic reasons for finding these agreements enforceable validates the approach and that individuals must take responsibility for the agreements to which they agree. However, the reality is that the majority of the public accepting these contracts would not understand the terms even if they took the time to read them (an action that is unlikely to happen in the first place). Many that click “I Agree” are crossing fingers with the other hand and hoping for the best.

In a way, this approach to contracting relates to the privacy issues that these types of social media services represent to the public. Many of these services are free and for many of them, the way they obtain revenue is through the information its users provide.�� Facebook has a page detailing – for example, the service can use your personal��information to determine age-appropriate or interest-directed advertising. While some may be ok with this kind of a use, there are many that worry of the implications it has on their personal information. What if it is sold to companies that abuse it? What if it is stored in an unsecured manner and accessed by hackers (as happened to a number of Sony Online Entertainment users )? More importantly, if users are given a click-wrap licence that sign away their rights to privacy without exceptional notice to what the information they provide can be used for, we can begin to see why some may not agree that the current system is workable.

If nothing else, stories like these should show the general populace that it is important to read and understand the terms that computer software programs and online services offer to you, and as the age-old saying goes: if it’s free, it’s probably too good to be true.

Adam is a JD Candidate at Osgoode Hall Law School.

The post Are Instagram Users Starting to See the Big Picture? appeared first on IPOsgoode.

The IPilogue has covered these 5 cases in depth and our analysis of each can be found .

The lecture began with introductory statements by the Founder ���Ի���Director of IP Osgoode, . IP Osgoode's followed with a short outline of Justice Rothstein’s legal career and past accomplishments. We learned that before becoming a judge, Justice Rothstein spent a number of years in private practice dealing primarily with administrative and transportation law issues.�� He��later became a member of the Canadian Human Rights Tribunal��and held��a host of other offices throughout his career. (More information on Justice Rothstein’s career can be found .) Upon his appointment to the Federal Court in 1992, Justice Rothstein developed an interest in intellectual property law, writing a number of influential decisions. He was eventually elevated to the Supreme Court of Canada (SCC) in 2006. Professor Vaver made special note that the date of Justice Rothstein’s official swearing-in ceremony – April 10^th, 2006 – was auspicious for sharing the anniversary of the commencement of the and potentially meant important things to come for the field of copyright law as a result.

Justice Rothstein, taking to the podium,��made his sizable audience laugh at his forgetfulness to bring his “red Santa Claus robes” for the lecture and mentioned that his introduction would have been very different had his wife Sheila given it. This set the tone for the rest of the lecture – Justice Rothstein proceeded to give a very frank and honest discussion on the Copyright Pentalogy cases, eager to generate discussion on the cases and to answer questions the audience had on his experiences when deciding these cases.

Justice Rothstein began with a short discussion of 3 of the cases: ; ; and . To an extent, these could be considered the “less-controversial” decisions by the Supreme Court of Canada in the Pentalogy (as evidenced by the unanimous decisions in Re:Sound and SOCAN v Bell and the majority of 8 in Rogers v SOCAN). However, Justice Rothstein had some important points he wanted to share with respect to the latter two cases.

In SOCAN v Bell, the court had to determine if an online preview of a song could be considered “research” for the purpose of avoiding a claim of copyright infringement under a fair dealing exception. The SCC agreed with the decision of the Copyright Board – such a use was reasonable and was protected under fair dealing. Justice Rothstein referred to what he thought were 4 interesting aspects of this case:

1)���������� “Research” as described in the case is a very low hurdle to overcome and provides an expansive approach to the first part of the fair dealing test laid out in .

2)���������� In determining whether the specific dealing at issue was fair or not under��the second part of the fair dealing test,����the reviewing courts should��give deference to first instance courts that make a determination on this issue.

3)���������� Fair dealing is to be assessed from the point of view of the purchaser/user.

4) �� �� ��"Research" need not be associated with traditional intellectual pursuits.

In Rogers v SOCAN, the court determined the meaning of “to communicate the work to��the public” in s. 3(1)(f) of the Copyright Act in the context of streaming musical works. Justice Rothstein wrote the decision for the majority: streaming of a copyright work to a number of individuals is a public communication.�� The determination of this issue could be different depending on whose point of view (the sender or the receiver); in the end the desire for the court to remain technologically neutral led to it's decision.

The discussion of the last two cases in the Copyright Pentalogy ( and ) provided interesting insight into the thoughts and opinions of the Supreme Court Justice (it should be noted that Justice��Rothstein wrote dissenting opinions in each of the cases).

To begin his discussion of ESAC v SOCAN, Justice Rothstein told a story about a case he worked on in 1990 about railway companies and grain rates, representing four provinces in the case. Ian Binnie, who would also later become a Justice of the SCC presented a very compelling statutory interpretation argument to the court. After a sleepless night preparing a response, Justice Rothstein was able to convince the court that the railway company was attempting to get double compensation for its product (“d�dzܲ�����-�徱��辱�Բ�”). The purpose of the story was to illustrate that judges��do not like��double-dipping and will go to great��lengths to prevent any such unjust enrichment. The relevance of the anecdote became readily apparent as ESAC v SOCAN concerned copyright holders of musical works wanting to receive royalties for their music used in video games which had been downloaded over the internet. SOCAN attempted to construe the download as a communication (the artists only negotiate a right to reproduce the musical works), thereby entitling artists to a separate communication tariff.�� For Justice Rothstein, applying his caselaw experience as a practitioner, now on the other side, it wasn’t very difficult to see how some of the judges viewed SOCAN's approach as an attempt to “double-dip".

Justice Rothstein repeated the well-known concept that the purpose of the court is to give effect to legislation that has been created by governmental bodies and to interpret those laws in accordance with their purpose. However, Justice Rothstein disagreed with the approach that the majority took in this case – in determining that the list in s. 3(1) of the ��are not individual and distinct rights (as he and the minority believed) but rather enumerated examples of the sole rights to reproduce, perform and publish works that is outlined in the preamble to s. 3(1). He also disagreed with the majority’s decision to push technological neutrality (a desirable objective but not one enshrined in the Copyright Act) ahead of some of the statutory requirements that he felt were overlooked.�� Justice Rothstein then pointed out that SCC judges are not prescient or clairvoyant – the court does not usually know what will happen as a result of their decisions until they take place.

If technological neutrality becomes an overriding issue in copyright cases, Justice Rothstein is not sure if copyright laws will be read more narrowly now or what effect the Copyright Modernization Act will have on future cases that come to the federal courts.�� He��noted that some cases have already come forward as a result and that there will likely be many more.

Justice Rothstein finished his presentation with a discussion of the Access Copyright case – where photocopies made by teachers and distributed to their students as part of class instruction were determined to be fair dealing under s. 29 of the Copyright Act. These types of copies were considered “Category 4” photocopies – the other 3 categories were already considered fair dealing and were either copies made for the teacher’s use or at the request of a student. While the majority determined that these copies could be considered fair dealing (the end user was the student and considerations towards their research should weigh in their favour), the minority believed that since the teacher would be doing the copying, the teacher’s purpose should weigh in their favour.

After the decision by the SCC on the subject, the redetermination by the Copyright Board was, in the words of Justice Rothstein, “terse” (as most 1-sentence decisions tend to be). The SCC’s decision did not allow for much flexibility and went against one of the usual practices of appellate courts – to give deference to the Copyright Board in findings of fact (fairness in claims of fair dealings is one such finding of fact).�� Justice Rothstein noted that while the courts “don’t always practise what they preach”, one of the differences between the relationship between the Copyright Board and the courts as opposed to other tribunals is that the federal and provincial courts��have concurrent jurisdiction with the Copyright Board in interpreting rights. He finished his discussion of the case by stating that he agreed with a deferential review by appellate courts on factual questions but not on legal questions decided by any tribunal.

After a round of applause concluded his presentation, Justice Rothstein took a seat between Professors D’Agostino and Vaver and answered some of the questions that audience members had with respect to the Copyright Pentalogy and his thoughts on copyright issues. One such question was posed by IP Osgoode's concerning the role of the balancing principle as discussed in and its effect on statutory interpretation. Rothstein replied that this balancing is at the very heart of many of the decisions the court makes, not only in copyright cases but other intellectual property cases such as the . He also stated that while some may believe that the “balancing” done by the court is an after-the-fact justification of the court’s decisions, the concept of balance is always in the mind of the adjudicators.

Another thought-provoking question by an audience member was whether there is room for common law equity considerations in copyright law��(being a creature of statute). Justice Rothstein responded that even though the court is bound to the statute in a number of ways, equitable considerations can come into play.�� While he was unsure of the application of the equity��doctrine to Canadian copyright law, he mentioned��one possibility could be new factors being added to the six factor CCH fair dealing test.

After a resounding applause from the audience at the closing of the discussion and a short wait as the Supreme Court Justice answered the personal questions of some inquisitive Osgoode students, I was able to thank Justice Rothstein for speaking at our school and providing us his insights on these important copyright issues. It was an enlightening afternoon and I hope that he returns to speak to us again in the future. Perhaps we can get his wife Sheila to introduce him��next time? (You had to be there for his opening remarks, please do watch the webcast when it becomes available).

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post IP Osgoode Speaker Series: The Honourable Mr. Justice Marshall Rothstein – Reflections on the Supreme Court of Canada 2012 Copyright Decisions appeared first on IPOsgoode.

Walmart, Costco, Best Buy, Gap, Old Navy and Guess have against the Quebec government in response to fines issued by the (OQLF). The fines were issued pursuant to the (hereby referred to as the Charter) – a piece of Quebec legislation designed to promote the use of French in everyday life for its residents. The fines for contravening any provision in the Charter can range from $1500 to $20000 – a hefty sum that can be doubled for subsequent offences (Section 205 of the Charter) and can result in the revocation of a company’s “francization certificate” (a designation given by the OQLF entitling the company to certain provincial tax benefits and to enter into contracts with the Quebec government).

The OQLF stated that these companies were contravening Section 63 of the Charter which requires businesses operating in Quebec to have French names. Alternatively, companies could include a descriptive slogan or line in French in order to comply with this requirement. While a number of businesses operating in Quebec have complied with the Charter by renaming themselves completely (such as KFC – known as PFK in Quebec) or by adding French to their signage (Starbucks is known as Café Starbucks Coffee), the 6 retailers listed above have refused to do so and have instead taken the issue to the courts to decide.

The fines come following done by the OQLF earlier this year, in which that they would “initiate other steps against businesses that refuse to post their trade name in compliance with the Charter [of the French Language].” Previous to these recent fines, the OQLF rarely went after trade names and much of the case will likely turn on the interpretation of the Quebec Regulation Respecting the Language of Commerce and Business (the Regulation). Section 25(4) of the Regulation provides that “a recognized trade-mark within the meaning of the Trade-arks Act” can be shown on public signs, posters and commercial advertising exclusively in a language other than French, thereby being an exception from Section 63 of the Charter.

However, there has been some argument over whether a trade name – the name used by a business for commercial purposes – can be considered to be included in the reference to “trade-mark” in the Regulation. As quoted by the Quebec Superior Court in (Procureur général), author Harold Fox (in The Canadian Law of Trade Marks and Unfair Competition) describes the differences and interactions between the two concepts as:

"The distinction between trade names and trade marks lies mainly in the fact that a trade-mark is used in association with vendible commodities or services while a trade name is more properly used as applied to the goodwill of a business… But it must be remembered that trade names are often used in association with vendible commodities and services and that trade-marks, just as much as trade names, are a constituent part of the goodwill of a business."

As some of these countries operate on an international scale, it is easy to understand why they are so resistant to some of the provisions that are now being strictly enforced by the OQLF in Quebec. The trade name of these companies and their associated logos are very closely related to the products and services that they provide to customers, and therefore, the goodwill that those generate toward the company itself. While it may seem fairly innocuous for Walmart to alter their signs to say “Le Magasin Walmart” (a possible compliant alteration), the costs of such a change could, in actuality, be quite large. These corporations spend massive amounts of money to design logos to attract customers and such a change could interfere with the look and feel of the chosen branding. There is no evidence that foreign countries have forced big name retailers to alter their signage in order to fit with the culture; should the Quebec government be so demanding of these corporations to change for such a relatively small market?

On the other side of the coin is the cultural sustainability that the OQLF and the Charter are attempting to maintain. French culture has been a defining point for Canadian culture and history – a fact recognized and referred to in many Supreme Court decisions. Should this not have any bearing on how these large companies do business in Quebec as a francophone province, if at the very least out of respect for the cultural heritage of our nation?

As the issues at stake are important to the operation of business in Canada and related to our French-Canadian culture and heritage, it is likely that the trial decision will be appealed. Regardless of the outcome at the end of the proceedings, will the businesses be left wondering if the money spent litigating these issues would have been better spent on redesigning their corporate branding? Only time will tell.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post Quebec Has Some Branding Issues appeared first on IPOsgoode.

(To those unfamiliar with the Internet Corporation for Assigned Names and Numbers (ICANN), their meeting structure, and the goals of the organization, a fellow IPilogue writer has written a covering this.)

This article takes an inquisitive approach to the content of three important sessions that were held during the Toronto ICANN meeting. Below you will find a summary of the important points that were laid down during each of the presentations, the questions that were asked by members of the IP and tech community, and a discussion of the challenges that ICANN will have to resolve before the new gTLD (generic Top Level Domain) program is fully rolled out.

The Trade-mark Clearinghouse (TMCH) has been developed by ICANN as a that will be used for gLTD registrations. It has been envisioned as a “one-stop-shop” for trade-mark data and as such will have several important functions, specifically: to perform verification of trade-marks, to maintain a database of this information, and to support rights protection mechanisms of new gTLDs. On June 1^st, 2012, ICANN that they would be working with Deloitte and IBM (which in turn subcontracted IPClearingHouse) to provide the TMCH services in support of the new gTLDs.

A representative from Deloitte made a presentation concerning the implementation of the TMCH. The following is a quick break-down of the main topics discussed within the presentation:

• To be eligible for registration with the TMCH, one has to be an agent of a mark holder or be the mark holder themselves. However, only the holders of certain marks can register (for example, marks containing a “.” are ineligible to register). Submissions would have to include appropriate proof of use of the mark in order to be eligible.
• The domain name applied for must be identical to the textual elements of the trade-mark. With the exception of “@” and “&” that have been permitted to be spelled out in text, other special characters need to be omitted or replaced with a hyphen.
• In aiding the dispute resolution process, the TMCH will provide notices to registrants and mark holders when discrepancies in applications arise. There are 3 ways in which disputes can arise: 1. The applicant does not agree with the verification; 2. A 3^rd party does not agree with the verification; or 3. A 3^rd party has become aware of new info that will impact a valid trade-mark record.
• Lastly covered in the presentation was a demonstration of the working .

However, an important objective of ICANN is to generate community discussion and incorporate suggestions from the different groups involved in the process. The most important issues that came up during this period were: 1) What stops a fraudulent registration from occurring? 2) How can a trade-mark agent register on behalf of their clients and provide the mark holders access to while keeping information of other clients secret? and 3)��How would 3^rd parties even know about registration of certain marks in order to file a dispute?

With respect to the first��issue, the panelists stated that the process would not be completely automated and therefore some human element would be involved in fact-checking registrations. However, I would expect the potential number of trade-marks being registered would create a large quantity of work for TMCH verifiers should every case require this human element. The second��issue had been previously discussed and ICANN has been trying to implement a technical work-around to this problem. However, the panelists did not, in my opinion, have a good answer to the third��issue raised. In summary, they stated that individuals might stumble onto information which they know is incorrect and then file a dispute as a result. Given the number of trade-marks that will be involved in the system and the international nature of the TMCH, I don't think that this sequence of events would occur very often in practice.

In this session, much of the discussion centered on the ways in which the TMCH would be interacting with other groups during the sunrise and trade-mark claims processes.

In order to register during the sunrise period, ICANN has developed a model where public and private encryption keys are used to verify mark details. The TMCH (the asserter) will provide mark holders with a Signed Mark Data (SMD) file which has been digitally signed with a private key. The SMD is then forwarded to the applicable registry (the verifier) which has a public key. This public key will determine the validity of the digital signature but does not contain any important information (hence, being the “public” key). If the SMD is altered, modified, or signed by the incorrect private key, the public key will show that the info is unverified and action can be taken as necessary. One of the main benefits to this system is that verification of the initial trade-mark data need only be done by the TMCH once. As a result, the process is “decoupled” (there would be little to no reliance on the TMCH by the registries) which is one of the main goals for the process.

One of the attendees described the idea as “lightning in a bottle” and few clear issues with the process were brought up. However, it was suggested that if mark holders wanted to only use one SMD for all registries, those registries would have to determine the standard information needed to be included in the SMD file.

Concerning the trade-mark claims period, the spotlight was on the differences between a centralized and a decentralized model of the TMCH. The current ICANN model is a decentralized approach which has registries being provided with encrypted info, allowing greater decoupling of the entities but potentially putting the information at greater risk. The centralized model has the TMCH retaining all relevant info, making it slightly easier for them to control the flow of this information but increasing reliance of the registries on the TMCH as a result. While there is really no right or wrong answer to this question, different players in the process have different beliefs on how this should be approached. As an example, one panelist mentioned that as a representative of a registry, he would rather have a centralized model where less responsibility is placed on his shoulders. It is important to keep in mind that while mark data is public information as a part of its nature, the aggregate mark information could be viewed as very valuable, putting it at risk of potential data mining.

While it places a greater burden on the TMCH, I think the centralized model seems to be the direction ICANN needs to head towards. This model allows for greater flexibility in the future, providing better opportunities to expand and to alter their approach to registration and mark protection. As noted by one of the panelists at the conclusion of the session, it will be up to each business to decide whether or not to put their marks in the TMCH. By doing so, they will have to understand the risks involved as well as the benefits and evaluate if submitting to the TMCH is the correct decision for the business.

The last session that I will comment on concerned the URS process that ICANN has adopted to cheaply and efficiently resolve clear cut cases of registration abuse (such as cybersquatting). The National Arbitration FORUM, WIPO, and Brad Bertoglio (a legal process outsourcing expert) made presentations with respect to the URS process that was proposed to ICANN in the . While there was some disagreement between the presenters as to whether the pricing goals for this process could be met, all of them commented that there was still work needed to be done to flesh out the policy documents. It was also noted by WIPO and Mr. Bertoglio that we would have to automate the process as much as possible to arrive close to the suggested price point. WIPO presented a model () that would require supplemental fees in the case of contested disputes. This model could serve as an option to efficient and cheap resolution while still allowing for more complex matters to be determined appropriately.

Conclusion

ICANN has opened the floor to community discussion on many of these topics on their . It will be necessary for them to receive this feedback in order to consider all facets of implementation and the implications their actions will have on the players of the industry. Even though there has been a lot of progress with respect to the development of the Trade-mark Clearinghouse and the new gTLD system, ICANN and its partners still have a lot of work ahead of them if they want the launch of these initiatives to be as smooth as possible.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post The Sun Sets on ICANN 45 - Reviewing the gTLD Implementation Plan appeared first on IPOsgoode.

The said painting, called "The Ecce Homo" (or, “Behold the Man”), is a Spanish fresco depicting Christ that has been residing inside a church in the small town of Borja, Spain.�� Unfortunately, the Ecce Homo had been deteriorating progressively during the last few years due to the damp church air. Cecilia Gimenez, an 81 year-old resident of the town, decided to do something about it. As can be seen , her attempts at fixing the painting were not very successful. However, what at first was an unfortunate error on the part of Cecilia has turned into a for the town. Ecce Mono (“Behold the Monkey”), as the painting is now lovingly referred to, is now being featured on t-shirts, wine bottles, and has caused the church to begin charging admission for those who want to observe the interesting piece. The business the painting now represents for the town has locals asking themselves “Who has the copyright over the painting?” and “What do we do now?”.

Gimenez, who originally to restore the painting while simultaneously having over the negative attention she was receiving due to the painting, to help her claim copyright on the work she has done. She does claim that any money she potentially earns from this endeavor . At the same time, the town of over the image in all its forms; this does not yet consider the grandchildren of the original artist, Elias Garcia Martinez, and the group that owns the church which both may have claims to the original that lies beneath.

The most interesting aspect of this story is the intersection and intertwining of moral rights, economic rights, and the rights of the “restorer”, Ms. Gimenez. While Ecce Homo was beloved by the people of Borja before the alteration, its presence in the local church had not benefitted the town in any substantial economic way. The perceived value of the painting only increased due to Cecilia’s “work”, but did this alteration not infringe on the moral rights that the original painter and his living kin retain? While it seems that those that work on restoring works of art retain no copyright with relation to the pieces they work on, can Ms. Gimenez’ contribution be considered so different from the original that it stands as an expression on its own? Many questions need to be considered thoroughly before attempting to attribute the rights related to the painting.

The Sancti Spiritus foundation (the group that runs the church) also in relation to the ongoing developments concerning the painting. While some people believe it should be restored to its original state and some say it should be left as it is, there may be a solution that simultaneously keeps the Ecce Mono and returns the Ecce Homo so that it may be properly restored. Some experts say that it ; which seems like it would please almost everyone involved, especially the avid internet users who don’t want to lose their Ecce Mono memes anytime soon.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post Behold, the Monkey – When Painting Restoration Goes Viral appeared first on IPOsgoode.