The development of copyright law in Canada has never been quick to move but rather advances like a river carving its course, slow, persistent, and shaped by centuries of cultural and legal history. From the imperial statutes imported in the nineteenth century to the quiet but profound pronouncements of today’s Supreme Court, its progress has been less a leap than a measured accumulation of meaning across generations. Each judgment is a stone laid carefully in the stream, sometimes uneven, sometimes contested, yet together forming a path that reflects Canada’s patient effort to balance the rights of creators with the needs of users, tradition with innovation, and private reward with the public’s access to knowledge.

In March 2004, the Supreme Court of Canada released CCH Canadian Ltd. v. Law Society of Upper Canada, (“CCH”), a case that began as a dispute over library photocopying but grew into one of the most influential copyright rulings in Canadian history. In a single unanimous judgment, the Court redefined the purpose of copyright, reshaped its doctrinal foundations, and projected Canada’s legal voice onto the international stage. Twenty-one years later, on a bright, sunny weekend in , scholars, practitioners, professionals, and observers gathered at the Centre to reflect on the enduring legacy of CCH at home and abroad, asking: what did this ruling truly accomplish, and what did it set in motion?

The CCH ruling addressed four critical questions. First, the Court adopted the “” test for originality, rejecting the idea that mere industrious effort, what had been called the “sweat of the brow”, was enough to qualify for copyright protection. Originality required more: an intellectual contribution that reflected thought and decision.

Second, the Court narrowed intermediary liability. Simply providing the means for infringement, such as photocopiers in a library, would not make an institution liable unless it the infringing use.

Third, it clarified “,” a concept increasingly relevant in the digital age, limiting how far publishers could stretch their rights against libraries sharing works with their patrons.

And fourth, and most famously, the Court recognized fair dealing and other exceptions as “.” With this declaration, the Court placed access and fairness at the heart of copyright law, ensuring that copyright was not simply a monopoly for rightsholders but a balanced framework serving creators, users, and the public interest.

As with any turning point in law, CCH’s legacy is complex. Supporters celebrate it as the moment Canada broke from overly restrictive copyright models and embraced a fairer balance between access and control. Critics, however, argue that the decision distorted the legislation and accelerated the decline of Canadian educational publishing. While Quebec largely charted its own cultural path, much of English Canada embraced the Court’s expansive vision of user rights, leaving local publishers crying foul as they struggled to adapt and compete in the digital era.

Even within institutions, the embrace of user rights has been uneven. While fair dealing has flourished through subsequent cases in the Supreme Court’s “” and amendments to of the Copyright Act, other exceptions, such as disability rights under , remain under-utilized. Libraries and universities, wary of litigation, often adopt risk-averse policies that fail to reflect the spirit of CCH. It is a reminder that judicial doctrine alone cannot change practice; institutions (and the people who work for them) must also to carry the torch.

Though born of a Canadian library, the CCH decision quickly echoed abroad. In India, the Supreme Court adopted Canada’s “skill and judgment” test in (2008), and today Indian courts continue to revisit CCH as they grapple with generative AI disputes and the role of user rights in text and data mining. In South Africa, reform efforts to decolonize and modernize copyright law have built upon CCH, with the proposed seeking to expand exceptions and incorporate fair use principles that mirror Canada’s emphasis on balance. Across Africa’s music economy, the narrowing of intermediary liability established in CCH resonates strongly: while limiting liability can promote innovation, in regions with weak enforcement institutions, it risks enabling exploitation—highlighting the danger of transplanting doctrines from well-resourced systems into fragile infrastructures. Meanwhile, in Europe and Latin America, Canada’s approach has sparked reflection of another kind. European scholars contrast Canada’s robust recognition of user rights with the EU’s narrower framework, while in Brazil, cultural policy debates under Gilberto Gil in the early 2000s similarly sought to reframe copyright as more than just a market commodity. In each of these contexts, CCH has functioned as both compass and caution—proof that a single Canadian decision can shape global debates, but also a reminder that law must always be adapted to the realities of place and culture.

CCH Canadian Ltd. v. Law Society of Upper Canada stands as a milestone not just in Canadian copyright, but in the global story of how law adapts to new technologies and shifting cultural priorities. Its vision of user rights has shaped debates from Ottawa to Delhi, Cape Town to São Paulo.

Looking back, CCH reminds us of the slow dance of law in Canada. It did not arrive with fanfare but unfolded through a quiet dispute about photocopiers and fax machines, carried by careful words and judicial reflection. Yet over time, its influence spread like ripples on water—shaping institutions, and practices, inspiring courts and policymakers abroad, and offering copyright law a compass for navigating entirely new technological challenges.

Law evolves slowly, but its slowness is part of its strength. In a world of disruption, it anchors us to principles that endure: fairness, balance, and the recognition that the rights of users and the public are not afterthoughts but part of the very purpose of copyright. As Canada reflects on the case twenty-one years later, it is worth remembering the lesson woven through its legacy: law does not race to keep up with every innovation, but moves like water in a stream, guided by the memory of where we have been and the hope of where we might yet go.

Links to the recorded panel presentations, speakers' bios and paper abstracts are now available .

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

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International Conference: The Legacy of CCH Canadian Ltd. v. LSUC and the Future of Copyright Law

Co-hosted by IP Osgoode and the Centre on September 19-20, 2025, this collaborative international conference was co-organized by Professors (IP Osgoode's Director and Academic Director of the ); (Associate Professor and Chair in Law, Intellectual Property, and the Digital Marketplace, and Director of the ); (Distinguished University Professor Emerita at the University of Windsor Faculty of Law); and (Associate Professor at the University of Toronto Faculty of Law).

The full agenda for this packed two-day conference is available , complete with links to speaker bios, paper abstracts, and video recordings of the panel presentations.

The IP Osgoode Speaks series invites leading scholars and professionals working in the field of IP law and technology to present their current projects, works-in-progress, and recent publications to the IP Osgoode community, in person and online.

Book Launch: Intellectual Property Futures: Exploring the Global Landscape of IP Law and Policy (Ottawa UP)

On February 5, 2026, IP Osgoode was proud to host the book launch for this important new collection on , featuring discussion with the editors (, , and ) and presentations from chapter authors ( and ). Stay tuned for a forthcoming write-up of the event in the IPilogue! 

Copyright, Openness, and Inequities: Licensing African Datasets

3 October 2024

Speaker: , founder of the and Assistant Professor at the University of Pretoria, South Africa. She is an Africa correspondent at , associate editor of South African Intellectual Property Law Journal, and the author of several articles on intellectual property and information justice issues in Africa.

Professor Okorie's presentation identified inequities in existing open licenses for African datasets and proposed guiding principles for an alternative approach.

Additional comments were offered by 91��ɫ’s Professor , an IP Osgoode Affiliated Researcher and Ontario Research Chair in Governing AI.

A Zoom video of this hybrid event is available .

The Dabus Story: Can an AI be an Inventor?

22 Nov 2023

Speakers: Professor Ryan Abbott, University of Surrey School of Law, is leading the international litigation to establish whether DABUS, an AI, can be designated as an inventor under IP law.

Professor Abbott was joined in this panel discussion by Professor and IP Osgoode Director , and leading Canadian lawyers and (Bereskinn & Parr LLP).

Discussants: Osgoode graduate students (who was also the organizer of the event), Luna Xiaolu Li and Shadi Nasseri.

A Zoom video of this hybrid event is available .

Finding the Right Balance between Control and Access in a Developing Country Context—IP Law and Policy Making in Africa

12 Oct 2024

Speaker: is the Director of the IP Unit and the iNtaka Centre for Law & Technology at the University of Cape Town, South Africa. He serves on the Open Science Advisory Board for South Africa’s Department of Science and Innovation and has led numerous development and innovation oriented research and capacity building projects, most notably the Open African Innovation Research network ().

This presentation highlighted some of the key considerations for IP law and policymakers in Africa as they seek to modernize and contextualize colonial-era IP laws in the quest to promote innovation and development.

A Zoom recording of the session is available .   

Reframing Copyright’s Key Exclusive Rights in the Age of Access: Lessons from SOCAN v. ESA (SCC 2022)

13 Sept 2023

Dr. Cheryl Foong was a Visiting Scholar at Osgoode Hall Law School in fall 2023. She is a Senior Lecturer in the Faculty of Business and Law at Curtin University in Australia, and an expert on copyright law and dissemination technologies. Her work was cited with approval by the Supreme Court of Canada in the ground-breaking case of 2022 SCC 30, which was the focus of her presentation.

Dr. Foong's parsed the reasoning of the Supreme Court of Canada, commending its efforts to avoid the overlap and duplication of copyright's exclusive rights while also querying the future role and relevance of the reproduction right.

A Zoom recording of this hybrid presentation is available .

Balancing Freedom of Expression, Copyright, and Trademark Rights: Art of Science?

31 August 2022

Speaker: Dan Bereskin is a founding partner of Bereskin & Parr LLP and serves as a mediator and arbitrator for a variety of intellectual property disputes.

The scope of copyright and trademark rights has expanded judicially for decades. A direct consequence is court decisions that arguably impact adversely on freedom of expression guaranteed by the Charter of Rights and Freedoms. In this lecture, Dan Bereskin discussed how a balance between these competing rights may be achieved, either judicially, by remedial legislation, or both.

Toronto IP Scholars' W-I-P Workshops

In 2023, IP Osgoode hosted the inaugural Toronto IP Scholars' Works-in-Progress Workshop.

This workshop series offers an opportunity for locally-based IP scholars, whether established or emerging, to present draft papers and workshop their work-in-progress with other colleagues and experts in the field.

If you have a current project you would like to workshop, please contact us at iposgoode@osgoode.yorku.ca.

The post Past Events Archive appeared first on IPOsgoode.

The conference started with a chance to network. There were then introductory remarks from co-chairs and . This was followed by a discussion with panelists (including Osgoode’s very own ) which touched on new developments for technology lawyers. More specifically, topics ranged from the impact of COVID-19, the “ancient” Personal Information Protection and Electronic Documents Act, and some aspirational goals for the profession.

The breakout session I chose to attend was titled, “Artificial Intelligence: Critical Updates on Contracting, IP and Ethical Issues.” My eyes were glued to the screen this session. In fashion with legal pedagogy, the session introduced a fact scenario for the speakers to analyze and this format is particularly familiar for ����law students everywhere. Personally, the ethical issues resonated with my interests, especially with respect to . The speakers offered a number of models, tools, and analytic frameworks to break down these issues. The nuanced discussion by each speaker was not only intellectually stimulating, but it also sparked various new interests in legal practice areas.

A further notable talk directly confronted the applicability of technology to COVID-19 (titled, “Utilizing Technology, AI, Machine Learning and Neural Networks in the Fight Against COVID-19: Managing the Legal Risks”). This talk highlighted the importance of collaboration in this area of law – the speakers included an entrepreneur, a practicing lawyer, and a legal academic. It is particularly relevant to emerging issues in . The diverse perspectives offered new ways of looking at legal risk and the varying roles of those practicing in this area. Again, the takeaway for me was how complicated these issues can be, how novel the solutions can be, and how interdisciplinary this area of practice can be.

Day two began in much the same fashion. However, the plenary talk discussed the role of international laws on technology law in Canada and beyond. The interaction between innovative technologies and legal frameworks that grapple with them has been on my mind ever since I came across . International law poses fascinating challenges for domestic technology law, particularly as it overlaps with the booming field of international economic law.

The conference rounded off its sessions with a more practical focus. I was particularly fascinated by a breakout session titled, “Financing Start Ups in the New Normal.” Often, structural economic changes and a “new normal” give rise to a wave of entrepreneurial initiatives. I am excited to see how shifts may affect those practicing in areas of private equity and venture capital. More generally, what sorts of changes are in store for ? The following sessions suggested interesting policy changes from WFH to cybersecurity.��

There were many more memorable moments that I neglected to mention. By and large, as a student, it was particularly meaningful to have the opportunity to network and chat with the leading titans practising in this area. Their warmth and collegiality are coupled with a genuine excitement and passion for this area of law.

Written by Dan Choi, a second year JD Candidate at Osgoode Hall Law School and an IPilogue Contributing Editor.

The post Reflections on Can-Tech Law Association’s 2020 Fall Conference appeared first on IPOsgoode.

Introduction

Every year, the (IPIC) hosts a national conference, welcoming IP lawyers from all over Canada to network and to learn from leaders in the field. This year, the leadership at IPIC worked hard to make sure that the annual conference was just as meaningful and successful as other years, despite the challenges they faced with the ongoing pandemic. I was fortunate enough to attend “” and I am excited to share some of the highlights of my experience.

Address by IPIC President, Stephanie Chong

The event began with an address from IPIC’s new President, , who emphasized that both COVID-19 and the social movements emerging internationally will have a major impact on the implementation of IPIC’s new three-year . Ms. Chong shared that IPIC is committed to working on tangible initiatives to increase equity, diversity and inclusion within the organization and in the IP profession at large.

Highlights

One of the highlights for me was the “Fireside Chat” with . He fielded questions regarding the impact of COVID-19 on the court system, whether courts should adopt an approach of technological neutrality or technological novelty, and whether Canada should have specialist judges for IP-related matters. He tackled these complex issues in stride and I really enjoyed listening to his perspective.

Another presentation that I particularly enjoyed was the Indigenous IP session. Professor of the University of Alberta shared a number of useful sources to learn more about Indigenous perspectives on IP. These include the and the project at Simon Fraser University. She also pointed to between Tsilhqot’in Nation and University of British Columbia, which, among other things, provides that Tsilhqot’in Nation will own any data that comes out of research done in collaboration with the University.

Following Professor Bell, reminded us that there is a lot of low-hanging fruit in IP law that could be fairly easily addressed by looking at other jurisdictions, similar to ours, which have regarding Indigenous rights in relation to IP.

CIPO

(CIPO) had a strong presence throughout the conference, providing practice updates for CIPO in general, but also for the patent and trademark branches, respectively. The CEO of CIPO, , emphasized that COVID-19 actually pushed the office to take measures that it had already been moving towards, such as the further digitalization of correspondence.

CIPO’s goal is to provide entirely digital correspondence in the future, and during this time, it has made strides towards that objective. Georgaras also pointed out that the Innovation, Science and Economic Development Canada (ISED) and CIPO was a great resource during this time, which of course made me appreciate the , aptly named Isaac Pewton, for its value as well.

Other presentations during the conference covered such topics as the top IP cases of 2020, file wrapper estoppel, updates to section 56 of the Patent Act, site blocking, patentable subject matter of computer implemented inventions and copyright issues surrounding machine-generated works.

There were too many fascinating topics discussed this year to cover in one short blog, so the surest way not to miss out on stimulating discussions with leaders in IP law is to register for next year’s conference. IPIC plans to hold its next annual conference in Newfoundland next October.

Acknowledgment

I want to thank IPIC for allowing me to attend the conference on behalf of the IPilogue. It was a wonderful experience, and I highly recommend that students who are able to become members of IPIC do so. There is a , and financial aid available for those who qualify. I have found it to be a welcoming and supportive community, and I hope that all who are interested in practicing IP law get a chance to experience it for themselves!

Written by Rachel Marcus. Rachel is a third year student at Osgoode Hall Law School and is currently enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. Rachel has been a member of IPIC since 2018 and is currently a part of the IPIC Mentorship Program.

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Bracing for Impact – The Artificial Intelligence Challenge (A Road Map for AI Governance in Canada)

Date: February 2, 2018

Location: Osgoode Hall, 130 Queen St. W., Toronto, Canada

Time: Conference (9:00 AM to 4:30 PM); Cocktail Reception (4:30 PM to 6:00 PM)

TO REGISTER CLICK

Registration rates are as follows:
Students: $25+HST
General Admission: $75+HST
Live WebCast: $10+HST

Speakers and Panel Chairs will be registered on a complimentary basis. Please do not register if you are a speaker or panel chair.

Recent developments in artificial intelligence, and especially machine learning technology, automated vehicles, and genetic enhancement pose a challenge to governments in Canada and abroad. At the current stage, government policy regarding the possible technological changes must be studied.

The conference will focus on the following panel topics:

Panel I – AI – IP & Commercialization Issues

Future developments in the field of AI pose a challenge to intellectual property. The current legal regime does not offer protection for AI creations. Thus, registering AI patents and allocate copyright protection for AI inventions and works is not yet possible. Subsequently, AI creations might fall under the public domain. We wish to address these concerns and to offer new insights and suggestions for the upcoming era.

Panel II – AI & Industry

The Path of Law, as Justice Holmes articulated in his seminal paper, is in constant development – like the development of a planet – each generation taking the necessary step forward. Advancements in AI promise to change our society in the years to come and will drastically affect every aspect of our legal norms. It is therefore crucial for us to confront the legal issues that these advancements will doubtless give rise to and to aspire to create guidelines to help us navigate the inevitable changes to our society. In this regard, we hope that Canada can provide a road map for the legal treatment of AI issues in several key areas.

Panel III – Cybersecurity in the AI Era

Cybersecurity is quickly emerging as a crucial component of every nation's security efforts. Recent events around the world have proven the importance of developing the tools needed to face this challenge. AI poses both a risk and opportunity. This Panel will explore the possible changes in modern cybersecurity warfare in the AI era. In doing so, it will bring to the table several experts in the field in an effort to shape a better government cybersecurity policy for the next generation.

Panel IV – AI For Social Good

keeps widening as inequality grows markedly. Artificial Intelligence holds great potential for helping us to lessen these inequalities. While AI is often viewed as a threat to social justice, the opposite may in fact be true. Machine learning in language translation technology can collapse the barriers between third world countries and the West. Algorithmic decision-making can lessen the bias effects toward minority groups. From transportation, healthcare, agriculture to sustainably and governance - the positive applications of AI are unlimited in scope.

The post Registration is Now Open for "Bracing for Impact: The #ArtificialIntelligence Challenge"! appeared first on IPOsgoode.

(of Gowling Lafleur Henderson LLP) moderated the final panel of the day entitled “Piracy & Digital Distribution”, in which panelists (of Basman Smith LLP), Steve Teixeira (of Universal Music Canada Inc.), and Osgoode Hall Adjunct Professor (of the Motion Picture Association - Canada) spoke about how piracy has affected their respective industries of sports, music, and film.

Kevin Fisher discussed the unique aspects of piracy in live broadcast sporting events. ��Since the value in a sporting event exists in the broadcast, the piracy in this industry includes satellite signal theft, grey market and free-to-air systems, and event channel streaming online. Individuals can legally purchase a broadcast, set up an event stream on a user generated site, and broadcast the stream to the world. This has also led to a new sub-industry of directory sites that guide users to the pirated streams.

Steve Teixeira began his discussion by asking whether anyone in the room has��ever pirated music, and most of those present raised their hands. However, when he asked how many people had stolen a physical CD, only one hand remained raised. Teixeira posited that this disconnect was the result of how the public values (or perhaps, devalues) the more abstract concept of digital music products as compared to physical products. He suggested that this social acceptance of piracy has serious implications for the industry and provided some insight on how the industry will move forward to work towards recapturing paying consumers.

Sundeep Chauhan discussed the increasing trend of dressing up pirated DVDs to look like legitimate products��and selling them at a slightly lower price point, and the resultant displacement of the legitimate physical product market. He also discussed the impact piracy has had on the film ecosystem. Money taken out of the industry due to piracy has disrupted the ability of film makers to reinvest in the film industry. The trickle down effect of piracy has also resulted in job losses both within the industry and for those with jobs related to film production (such as makeup artists, chauffers, general contractors, etc.).��

All three panelists agreed that litigation against end user consumers is not the goal of rights holders.�� After initial attempts to enforce rights against individuals by the music industry resulted in a public relations backlash, content owners realized that it does not make sense to alienate their consumers. It stands to reason that aggressively pursuing consumers and then turning around and asking them to purchase your content was not a viable strategy. Now, the goal is to pursue those who make content available and make profits through subscription fees and advertising revenue. These sites, referred to as “wealth destroyers” (Pirate Bay was an oft-mentioned example), drew criticism as they capitalize on the investments of others while drawing away the profits to be gained from those ventures.

The panelists highlighted education as an important resource to combat piracy. Erasing the grey area and shaping cultural values about online theft through education will be a valuable tool for content owners moving forward. Intermediary companies will also require this education. These companies pay for advertising space or are involved with the authorization of purchases on sites hosting pirated content. The damage done by "wealth destroyers" can be reduced, and hopefully eliminated, ��if companies are made aware of the consequences of their participation in piracy.��

Although industries affected by piracy were initially resistant to new business models made possible by technological advances, entertainment industries are increasingly embracing emerging business models. The goal of these companies is not to resist innovation, but to ensure that the technology developers and entertainment industries collaborate to improve their products and services. For example, the key to the future use of technological protection measures (TPMs) is to reduce the restrictions placed on users while maximizing protection against would-be pirates. In the past, implementing TPMs often meant that individuals could not use their legally purchased content in legally protected ways��such as��format shifting. Now, TPMs facilitate new business models like iTunes, allowing rights holders to protect content and feel secure about releasing it online while providing their product to the consumer.��For example,��providing a time-limited movie rental at a lower price in addition to a purchase option.��The use of these services allow further opportunities to meet the needs of different consumers by allowing for such things as differentiated pricing options.

It is clear that the entertainment industries are working to embrace technological changes and the new methods in which they can provide content. Teixeira noted that as time goes on, music streaming may become the way of the future. Whether it is through subscription or advertising models, the hope is to eventually increase revenue streams��as these services build up a consumer base. Fisher suggested that with the right technology, live sport streaming can cut out the pirates as well as divert more revenue away from the middle men and directly back to content creators. Chauhan indicated that filmmakers want their content on as many platforms as possible and to work with consumers to provide options catered to their needs, making it just as easy to access legal content as it is to find pirated content.����Perhaps embracing the very technology that initially allowed bootlegging to run rampant will end up saving these industries from piracy.

��Allison McLean is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School. ��

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

��

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

The post User Generated Content: Generating More Questions than Answers appeared first on IPOsgoode.

��

Bell's Perspective – Adapting to UGC��

The first speaker, Tanya Woods, is the resident copyright specialist for BCE Inc. (Bell TV, Bell Mobility, Bell Canada, etc.). Because the company is a massive distributor, intermediary, content broadcaster and creator, of the Copyright Modernization Act (the “A����”) presents a unique challenge for a business that acts both as a copyright user and copyright owner.

Woods began her presentation with a discussion of what UGC means; referring to how users draw on new technologies to express themselves and that this category of works includes blogs, social media, and potentially the news. In examining section 29.21, Woods made an interesting observation - the provision does not specify that UGC has to be digital, which implies that analog forms of UGC may also be covered by the exception.

To appropriately navigate section 29.21, Woods advises to follow two objectives: (1) respect legal obligations and (2) engage your viewers.

As an example of respecting legal obligations and engaging viewers, Woods referred to Bell's developed for the 2012 Olympic games. The app allows users to record a short video which, when watched, plays back in slow motion with the theme to Chariots of Fire as the background music. This app engaged Bell's audience and encouraged the creation of UGC, while also respecting the legal obligation to properly licence the music and clear the rights to the Chariots of Fire theme.

Woods then offered practical advice for businesses entering the UGC space, with some general advice applicable to users as well:

• Businesses and users have to be aware that for UGC to fall into the exception, it has to be non-commercial;
• Users should also be mindful of the Terms and Conditions of UGC sites, because you may lose your intellectual property rights to your material depending on where you post it; and
• For businesses actively engaging with their audience on social media like Facebook and Twitter, it's important to realize that bad UGC is inevitable (such as a post on the TSN Facebook page criticizing the decision to hire Drake as the ambassador for the Toronto Raptors).

Respecting the copyright owners have in their works and responsibly engaging in the creation and encouragement of UGC were two of the key takeaways from this presentation, both of which allow for section 29.21 to be properly navigated and adapted to.������

SOCAN's Perspective – UGC and the (De)valuation of Music

Eric Baptiste, CEO of the (“SOCAN”), spoke about how section 29.21 affects the performing rights organization's business model.

SOCAN is assigned the performing rights to musical works by artists and publishers in Canada. Through reciprocal foreign agreements with international performing rights organizations, SOCAN essentially owns the performing rights in Canada for most of the music in the world.

How their business model works is simple: SOCAN provides a blanket licence to establishments like restaurants, bars, broadcasters, and shops (among other entities) to use all the music they want. It's essentially a one-stop shop for users. The difficulty of this system is in the valuation of music licences.

SOCAN is under the Act to file proposed tariffs with the Copyright Board. Different uses of music are licenced at different rates. And within those rates there can be further fluctuations based on the size of the venue and how many days the establishment operates. The Copyright Board publishes these proposed tariffs and then hears objections from third parties before certifying an appropriate royalty. Baptiste suggests that section 29.21 will prove problematic in determining an appropriate royalty for the use of music on online services such as YouTube.

Currently, SOCAN has an “experimental” agreement with YouTube where the online service pays the same royalties as a traditional broadcaster. This agreement only lasts until the end of 2013, and does not take into consideration section 29.21 – meaning that music used in non-commercial UGC, which does not require a licence, is licenced under this agreement. What will happen after the agreement expires remains to be seen, although YouTube may pursue a lower royalty because of the UGC exception.

Baptiste closed his presentation by saying that the UGC exception is unique and that it does not exist anywhere else in the world. He also thinks the UGC exception is an unnecessary addition to the Act and that it creates uncertainty and complexity, while posing a threat to appropriate compensation for professional musicians.

Legitmix's Perspective – The “Win-Win” Model?

Omid McDonald, the CEO and Co-Founder of , wants UGC creators and original artists to be properly compensated for their work. And he's come up with a creative solution to work within the law to make it happen.

After a friend's documentary was never released because he could not afford the fees to clear the music,�� McDonald realized that something was backwards about the copyright regime. Remixes and mash-ups have become mainstream, but it is a time-consuming and expensive process to get the proper licences from the publishers and composers of multiple works. While section 29.21 streamlines the process for non-commercial UGC and exempts creators from “clearing the rights” to their works, it is still not perfect. The non-commercial UGC creators still cannot get paid unless they clear the rights, and McDonald views that to be a gap in the legislation.

Legitmix's model works by separating a remix into its constituent parts: the remix file and the sampled works. Users who want to listen to their favourite remix have to buy the remix file and the Legitmix software scans their iTunes library to see if the user owns the sampled works. If the user does not own the sampled work, then they have to buy the individual tracks from iTunes or another legal music provider. Once all the sampled tracks are available, the remix file can then play the new work.

In this model, UGC creators can be compensated because they are not technically “using” existing works. They are selling their original work (the remix file), while the actual sampling of the existing works is done in the privacy of the user's home, once legal copies of the existing works exist on the user's computer.

McDonald said that record companies love the idea because UGC creators essentially become salespeople for record companies' back catalogues.����

Concluding Thoughts

The speakers for this session demonstrated wildly different perspectives of section 29.21, from determining the appropriate way to adapt within the requirements of the provision, to lamenting the new change and the uncertainty it creates, and finally to creatively working around the section to remedy perceived shortfalls.

Many of the speakers noted that section 29.21 is the first exception of its kind in the world. It will be interesting to see if this provision delivers on its promise to clarify the legality of UGC and be adopted by other countries, or whether the restrictive requirements and the uncertainty the section allegedly creates will doom it to the margins.

Fraser Turnbull is is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.������Fraser is��interning at SOCAN as part of the IP��Intensive Program.����

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J.K Rowling certainly felt����when thousands of fans used the characters in Harry Potter to publish their own stories online. The late J.D Salinger, on the other hand, did not feel as enamored when Holden Caulfield, the teenage protagonist in his famous novel,��Catcher in the Rye,��was����as an elderly man fleeing from a nursing home.��Despite an author's preference to keep their characters frozen in time or kept alive through exploratory recreations, section 29.21(1) of the ��may be the saving grace for super fans engaging in fan-fiction works in Canada. However, it also raises serious concerns with respect to issues of misappropriation, fair compensation, and tensions between moral and economic rights.

Since the UGC provision is the first of its kind, its interpretation in the context of litigation has yet to be seen. It is therefore imperative to open up a dialogue between creators of copyright-protected works, users, and lawyers with respect to the scope and limitations of the UGC exceptions. The IP Osgoode symposium on User-Generated Content Under Canadian Copyright Law��provided a forum for panelists to do just that.

What Rights Should the Authors of an Existing Work Have? Toward a Private Model for UGC

What rights, if any, do authors of an existing work have in relation to a fan-fiction creation?��On the one hand, a fan-fiction creation can be understood as a derivative work, finding its origin only in relation to the existence of a previous work. However, it can also be argued that both works are distinct and original under Canadian Copyright law.

In her presentation on the legal aspects of fan-fiction, lawyer , suggested that the UGC provisions should strive to reflect the Act's pre-existing policy by limiting reproduction for private purposes to “only for the individual's private purpose” as seen in .��In her proposed private UGC framework, dissemination of a UGC work (such as fan-fiction) would only be possible if the copyright holder initially authorized the distribution of the new work and received fair remuneration from intermediaries.

The idea of creating a private model of the UGC exceptions is a worthwhile idea to consider, especially in light of the complications which arise under . Guarding the (potential) market of an existing work could be made possible by preventing fan-fiction creations (which compete against or deplete the commercial value of an existing work) from being distributed.

Moreover, this arrangement would encourage greater communication between authors and users at the outset of dissemination, thereby ensuring that creators of fan-fiction stay within the limitations of UGC and do not overstep the boundaries of the exception.

What About the Rights of Fan-Fiction Creators and Users?��

While granting authors the right to control the distribution of fan-fiction works may achieve the goals of fair compensation (particularly in situations where a fan-fiction author financially benefits from the labour and skill of another), the interests of the public are nonetheless at stake.

Browsing reveals that fan-fiction is not only an opportunity for fans to share new stories and recreations of their favourite characters, but it also serves as an imaginative platform for a diverse fan community.��The dissemination of knowledge and intellectual creations, flowing from both authors and users, is therefore essential to the world of fan-fiction. When considering a private model to UGC exceptions, we must ensure that the goals of the free and public knowledge are met and that fans will still be able to meaningfully contribute to the works of authors.

��

We should therefore be wary of giving the considerations of authors too great a role in interpreting UGC exceptions as this may run the risk of granting copyright holders an inappropriately broad gate-keeping role with respect to user access of the s.29.21(1) provisions. (This is better left to the Canadian .)

A move toward a private model of UGC, whereby an author has the initial right to preclude the dissemination of a fan-fiction work may tip the balance disproportionately in favour of author rights. We should perhaps consider by starting off with a scheme of remuneration whereby creators of fan-fiction and intermediaries that have received financial success must compensate authors of existing works.

This approach may help strike a fair balance between the rights of users to enjoy artistic creations and build upon them, and the rights of authors to be appropriately remunerated.��After all, while it may be flattering for authors, it is still tough work to have thousands of fans standing on their shoulders.

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

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

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

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

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

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

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

Blom: Private International Law and the UGC Exception

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

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

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

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

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

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

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

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

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