Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focused on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The Keynote Address at , delivered by Dean Lior Zemer of the Harry Radzyner Law School, Reichman University in Israel, introduced an important but challenging issue: the rights to works of Holocaust victims. The Keynote Commentary, delivered by Honourable Justice Marshall Rothstein, shed light on the question: “Why has it taken so long?”

Justice Rothstein opened with a story: his father was born in Poland, one of eleven children. The family-owned barrel factory and hotel were not enough to support eleven families, so the younger siblings, including Justice Rothstein’s father, immigrated to Canada before the first World War. While the younger siblings did not get the factory or hotel, they were lucky. Those who remained in Poland became part of the six million victims of the Holocaust.

Justice Rothstein was born in Winnipeg in 1940. While Justice Rothstein was a child, he does not recall any talk about the Holocaust. The prevailing view was that such a traumatizing subject should be kept from children to shield them. In those days, Justice Rothstein could not recall much known about the works of Holocaust victims beyond the Diary of Anne Frank. It is not surprising that it has taken decades before the discussion surrounding intellectual property and the Holocaust has grown to include the recovery and disposition of works of Holocaust victims. Justice Rothstein praised Dean Zemer’s initiative to consider these works and raise complicated, sensitive, and controversial issues.

In addition to why it has taken so long to raise this issue, Justice Rothstein shed light on why it is so important that the issue has been raised. Justice Rothstein quoted philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.” He recalled the antisemitism of the past which manifested in pogroms, expulsions, torture, and denial of rights to own land and to hold public office. Even in the 20^th century, zoning bylaws and gentleman’s agreements precluded Jews from certain communities, and many employers would not hire Jews as employees.

Although antisemitism significantly declined in the last half of the 20^th century, the concern of the Jewish community is that it will re-energize. Justice Rothstein explained that when times are tough, people look for someone to blame and conspiracy theories develop and multiply. Jews are always at the top of the list. He pointed to the as an example of the re-emergence of antisemitism, a shooting where the perpetrator was convinced the Jewish people were “committing genocide.” The lessons of the Holocaust are relevant today to understand antisemitism and, indeed, prejudice in any form. There is a danger in letting them be forgotten. Dean Zemer explained that Holocaust works have the potential to teach these lessons. There is a danger in letting them be unrestrictedly modified or transformed.   

Justice Rothstein offered a Canadian perspective on how our moral rights framework would line up with Dean Zemer’s approach. In , Justice Binnie explains that moral rights “adopt a more elevated and less dollars and cents view of the relationship between an artist and his or her work” and “treat the artist’s oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.” The Canadian provides that moral rights are infringed if the work is, to the prejudice of the honour or reputation of the creator, distorted, mutilated, or otherwise modified or used in association with a product, service, cause, or institution.

Justice Rothstein explained that the concerns raised by Dean Zemer would fit neatly into the Canadian understanding of moral rights. However, a problem arises in that moral rights are tied to economic rights and not perpetual. In 2022, we are beyond the term of protection for works produced during the Holocaust. A further problem arises: where ownership of property is unknown, title escheats to the Government where the physical work is located, and physical ownership is perpetual. Title to Holocaust works may, therefore, be owned by the governments where those works are located.

To statutorily amend the term of moral rights protection for Holocaust works, to make legislative changes across countries, and to potentially move works from their present location will not be easily accomplished. However, it is a worthwhile goal. Justice Rothstein concluded his remarks with the ending note of Dean Zemer’s : “We must protect and promote the potential of these artworks to teach their most important lesson to us all – never again.”

The post Honourable Justice Marshall Rothstein’s Keynote Commentary at Bracing for Impact Conference: “Why Has it Taken So Long?” appeared first on IPOsgoode.

Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative , , and of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas in the Israeli Conservatory: Dean Zemer’s “own little victory.”  

The post Bracing for Impact Keynote Address Tells a Copyright Story Never Told: Art and Copyright in Ghettos and Concentration Camps appeared first on IPOsgoode.