Ivana Peloza is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

The Globe and Mail is Canada’s foremost news media company, a nationally-distributed newspaper with one of the largest circulations in Canada. The newspaper’s print and digital formats reach over 6 million readers every week, with Report on Business magazine reaching over 2.5 million readers every issue in print and digital. When I was placed with The Globe and Mail as part of Osgoode’s IP Intensive program, however, I certainly did not expect the extent to which I would be intertwined in the world of tech. Publishing is, of course, one of the core copyright industries – if not the core industry historically associated with copyright. IP law in publishing, especially at The Globe –�� who is known for being an early provider of digital media and device-agnostic content delivery – goes far beyond copyright infringement and litigation. There are significant overlaps and considerations to think of with the roll-out of a privacy policy, consumer protection laws, and a range of different agreements including those related to advertising, purchase and sale, events, and content production freelancer rights.

Over the course of my time at The Globe, I gained vast and multidisciplinary experience, but three major themes emerged within my practical and research work: privacy, contracts, and data protection. On my very first day, my supervisor (thankfully) lent me a copy of The Tech Contracts Handbook: Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople by David Tollen to start familiarizing myself with these themes. Complying with privacy regulations, especially in IT contracts, is as important as it can be misunderstood. Especially in an era of rapidly developing regulation and technology surrounding privacy, corporate organizations have a strict duty to continually follow the developments in Canadian privacy and data protection law as it relates to different jurisdictions.

My internship also allowed me to reflect on and speak with my supervisor about the differences – between working in-house versus private practice. For instance, private practice may have an entire staff dedicated to accomplishing just one specific aspect of a privacy or contracts matter whereas in-house lawyers might deal collaboratively with the whole breadth of a legal process. In-house has the potential to, therefore, offer a much greater variety and scope of practice and expertise. If my experience at the Globe has taught me anything, it's that this type of legal work makes the days more interesting, in my opinion!

An in-house legal department is also intimately intertwined with the organization’s commercial decision-making. Learning how to navigate the specific challenges of interdisciplinary brainstorming, drafting, and decision-making was a significant takeaway as well. Often, legal professionals or a corporation’s legal team will be coming late compared to the business process and left out of major contractual decisions. Sometimes, however, as was the case with the incredibly accomplished lawyers who I was lucky enough to learn from at The Globe, just by virtue of experience, the legal professionals have beneficial insight into the commercial deal process. Sometimes this is helpful, sometimes it leads to “spinning of wheels” but the point is there is deal structure expertise that isn’t always brought until after the deal is “set.” One of the jobs is to try to get further upstream – even if you’re not necessarily trying to be involved in the day-to-day happenings – but you need to find a way to have some perspective and plan more effectively.

To this point, I often reflected on a piece of advice I was given on the very first day of the IP Intensive Seminars. When I asked the alumni speakers their advice for someone who has never had a summer legal placement before, Denver Bandstra, Associate at Bereskin & Parr LLP, reminded me that I would get used to it “just like any other job.” Like any job, there will always be work-place procedure and workflow that requires orientation and practice. Learning the workflow of a contract renewal and negotiations, or the day-to-day contrast for an in-house lawyer compared to a private practice lawyer, only comes from experience. The experience given in the IP Intensive program, for that reason, is the most worthwhile part of my legal education so far. And particularly, as all things in IP and technology law are proving to be, developing knowledge and familiarity with data and privacy, the Internet and disruptive technology is worthwhile – not just for a career in IP law, but also for any person using social media in the digital age.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

Beyoncé's new album released on July 29, 2022, Renaissance, was the subject of a lot of backlash this month.��Her song “Heated” was “ableist” and “offensive” from listeners for using the word “spazz,” and many more were heated about “Energy,” interpolated Kelis’ 2003 R&B favourite, “Milkshake.”

On August 8, 2022, Kelis was how she felt about Beyoncé’s use of her song, stating that she was neither notified nor asked for permission before the sample was used in “Energy.”��Beyoncé fans Kelis for vocalizing this issue, saying that the singer should have just “been happy to be on the album,” but Kelis continued to voice the disrespect she felt by this act. In a viral Instagram story, she exclaimed, “from one artist to another, you should have the decency … to call reach out … a manager, an agent, anybody … even if you’re going to do it anyway.”

From a legal standpoint, lawyers have been clear that Beyoncé’s team their legal obligations. Artists only require permission from original composers and the record labels if they wish to borrow work, and unfortunately for Kelis, she didn’t fall within this category due to a contract she signed when she was nearly 20 years younger and did not fully understand. Kelis also that, back then, she was falsely promised that she would receive an equal split for the song.

Shortly after being publicly called out, Beyoncé the problematic sample from the song on versions available on several streaming platforms. She also removed the credits for Pharrell Williams and Chad Hugo, the creator and producer of “Milkshake” - a move to “manage ‘potential fallout’ from the public.” Kelis has no legal ground to stand on but her quarrel with Beyoncé illuminates a prominent and recurring issue in the music industry. Young artists continue to be pressured into signing contracts that they don’t fully understand, signing off rights that lead to catastrophic results later in their careers. We saw this with when she re-recorded some of her most famous albums in an attempt to own her own work. She stated, "This is what happens when you sign a deal at 15 to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says, ‘Music has value,’ he means its value is beholden to men who had no part in creating it."

Moreover, contract with label and management company Love Renaissance was in the limelight late last year for its debilitating demands. The draft document harshly demanded that the singer “give up a chunk of all her non-musical earnings, even in areas like acting” and offered low advance payment and royalty rates in comparison to the standards then.

Often blinded by their ambition and pressured by the power imbalances with their labels, younger musicians need to ensure that they are securing their full rights at the time of music creation. This would require the artists to understand the individual actors that the musical composition would be split amongst, preferably a “split sheet,” where everybody’s contributions would be documented to avoid any confusion later down the road. Just a few minutes of extra due diligence in the recording room can spare an artist from losses decades into their career.

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Andrew Masson is an IPilogue Writer and 2L JD candidate��at Osgoode Hall Law School.��

One of the biggest names in golf that is not Tiger Woods, for breach of a $145 million deal for the exclusive use what is being Nicklaus, also known as The Golden Bear, is 82 years old and widely regarded as one of the greatest golfers of all time. During his career he won 117 professional tournaments and 18 major championships, which is 3 more than Tiger Woods. Retired Nicklaus now heads his golf course design and construction company, . Nicklaus is one of the most prominent names in golf, so this recent filing has garnered the attention of sports reporters.

On May 17, the reported court filings involving Nicklaus involved both IP use and NIL issues. In May 2007, before the concept of name, image, and likeness became ruling for college athletes, Nicklaus appears to have made a similar deal except it was for . This involved three parties: 1) Jack Nicklaus; 2) GBI Investors Inc.; and 3) Nicklaus Companies L.L.C. Nicklaus incorporated GBI Nicklaus in 1984 and he remained manager when the deal was made in 2007. This deal involved selling business and assets of GBI that related to Jack Nicklaus to Nicklaus Companies. The IP rights and activities related to both Nicklaus as a person and his golf course design and construction activities made the deal worth more than

Nicklaus Companies claims they have paid and continue to pay both Nicklaus and GBI who are not meeting their obligations. Niklaus Companies seems to have put forth for which they are seeking injunctions and damages: 1) Jack Nicklaus continues to make deals regarding his IP and excluding Nicklaus companies from them; 2) these actions are damaging to Nicklaus Companies; and 3) Jack Nicklaus has threatened to continue to do these activities by unilaterally reclaiming ownership of those rights he sold. At first, the deal appeared to transfer the numerous patents and trademarks from GBI to Nicklaus Companies, but in recent years Jack Nicklaus and GBI have not satisfied the deal. Jack Nicklaus has deals regarding his golf course designed in addition to entering a deal to profit of his NIL that excluded the company.

Notably, this story broke within days of Jack Nicklaus turning down to be the face of a new golf series. Though not directly related to this case, his decision may be relevant to broader branding issues associated with his name.

This interesting case will likely become a battle over the terms of the contract with strong arguments on both sides. From an equitable perspective, it appears Nicklaus entered an unfavourable deal in 2007 that meant in the long term he was . This term mirrors the contracts of most universities (like) where professors are not the exclusive IP owners for independent work completed during employment. These contracts can be contentious if they give off the impression that those with money can exploit resource-strapped inventors. On the other hand, the Jack Nicklaus company paid a substantial sum of money on the belief that they would retain the Jack Nicklaus IP into the future. Under the principle of of contract, the Nicklaus Company does not appear to have violated the terms of the agreement and they just want to receive what they have paid for and did not force Nicklaus and GBI to enter the contract. As this was just filed, it will likely be some time before a decision or settlement is reached. But if it gets to trial, there will likely be interesting arguments on the contracting of IP.

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Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

There is no question that the virtual gaming and e-sports industry has seen exponential growth in the last decade or so. In 2021, global e-sports revenue is said to have reached a whopping USD, and is projected to increase to $1.6 billion USD by 2024. Moreover, there are currently about who are said to be following e-sports worldwide, with that number expecting to climb to 577 million in the next few years.

Part of what makes the question of intellectual property in e-sports so unique is the myriad of overlapping rights that exist, being held by a including game designers, sound engineers, programmers, user interface developers, the players themselves, broadcasters, event/league organizers, advertisers, sponsors, and even spectator fans. But among these actors, whose rights can really be enforced? E-sport tournaments are an amalgamation of various intellectual contributions from a variety of actors. This is in stark contrast to traditional sporting events—after all, it cannot be said that !

It is accepted that the copyright (or the to the source code, maps, sound effects, and characters of a game is . As a result of the considerable power held by video game publishers in the e-sports industry, the associated IP regime is often considered as having a , in which a few actors own all the IP. Game publishers can decide what teams/players may compete, who may host tournaments, and how tournaments are advertised and broadcasted.

However, much of this power is effectuated through end-user license agreements or applicable terms of service with individuals and tournament organizers. Moreover, these rights can then be further assigned to others through contractual means. For instance, in 2015, a Twitch streaming channel named , another video game streaming service. SpectateFaker had broadcasted games played by popular e-sports player Lee Sang-hyeok. Azubu, having contractually obtained the exclusive streaming rights for Sang-hyeok’s games, filed a complaint against Twitch alleging copyright infringement. Interestingly, Riot Games—the publisher who owned the copyright to the game—was not involved in the dispute at the time. The matter never ended up being litigated.

Other disputes have arisen involving video game copyrights, though none such matters have yet to meaningfully challenge the status quo of the “top-heavy” e-sports regime in the courtroom. For instance, in the late 2000s, , including from Korea e-Sports Association (KeSPA). After years of failed negotiations, Blizzard decided to license the exclusive right to broadcast its game StarCraft to another South Korean organization and brought lawsuits against KeSPA.

The matter was ultimately settled outside of court, but it calls into question whether any other actors in the e-sports industry can assert some kind of right to their content. For example, can players enforce some kind of copyright or performer’s right in their gameplay? Many argue that mere gameplay or one’s “style of playing” is comprised of , that it , or that it is to be protected by copyright. That being said, it may also be argued that skilled gamers employ the use of considerably nuanced , which ultimately dictate how the game will go.

The gaps and barriers between IP and e-sports certainly will stop at copyright protection. As the industry continues to grow, we can expect to see more IP-related disputes, including ones involving for things like game titles, gamer tags, team brands and merchandise, or even popular characters, as well as protecting gaming consoles, software programs, and user interfaces. Several gaming patents have already been filed, such as U.S. Patent No. 8,882,576, or , which denotes an algorithm that evaluates the proportionate dependence of an outcome on skill versus chance. And while traditional sports and entertainment industries have long been regulated by established rules and best practices, Canada in particular has (as stated by Erika Carrasco, partner and chair of Field Law’s Emerging Technologies Group). Having a robust IP strategy in place for such a rapidly developing industry with enormous economic prospects makes the most sense.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Anita Baker is a legendary soul and R&B singer-songwriter who rose to fame in the 1980s. The iconic singer has won and various notable awards for her popular and timeless ballads. Earlier this year during Grammy season, Baker requested that fans not . Through Twitter, she expressed that she had outlived all her recording contracts and that her master recordings should legally belong to her. On September 3, Baker in her masters fight and gave fans the go-ahead to listen to her music once more.

Baker’s tweets and subsequent support from fans come as no surprise. In recent years, popular artists have spoken out about compensation from and Ownership of masters within the music industry has become a contentious and popular matter, particularly after Taylor Swift’s legal battle resulted in This case is a bit different as it likely relies on a lesser-known section of U.S. copyright law. When Baker described outliving her contracts, she was referring to her , which lets her reclaim her copyright after 35 years. states that authors or their survivors are entitled to “terminate grants of copyright assignments and licenses that were made on or after January 1, 1978 when certain conditions have been met.” It is not clear what the conditions were in this case besides length of time, however Baker advocated for ownership effectively and succeeded.��

Baker was not only upset that she did not own her masters, but also that the current recordings available were of inferior quality. Baker that the songs currently available lacked the original instrumentation, the recordings were sped up, and the vinyl sold today are not from analog masters, but rather re-processed digital copies. She believes her fans deserve better. Fans encouraged her in a dedicated fashion, with some stating that they just so they could enjoy her music without having to stream it.

Between March and September, Baker frequently provided legal updates through short tweets. Notably, she shared that with Warner Music Group (formerly WEA Records) began in May 2021 and that she was making progress. Finally, on September 3, she published a photo of her catalog and announced that all . Her advocacy on Twitter garnered tremendous support from her fellow musicians. Fun fact: Taylor Swift and tweeted following Baker’s success.

In the words of Anita Baker, “.”

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Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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American actress Scarlett Johansson, known for playing the Black Widow in Disney & Marvel’s The Avengers franchise, took action against Disney on July 30, 2021 for an alleged breach of contract involving the recent Black Widow film’s distribution. According to , Johansson’s contract read that Black Widow would be guaranteed a ‘wide release’, meaning that “the film would be shown .” The caveat here in the streaming service age is the term ‘screens.’ Johansson’s legal team argues that ‘screens’ means movie theatre screens exclusively. This implies a theatrical release, where a . Disney countered the argument, stating that Black Widow received a theatrical release, but that this release does not imply an exclusive release to theatres only. As such, Disney was within their rights to simultaneously launch the film on their streaming service, Disney Plus.

Experts argue that this may be a case of ambiguity with the phrase ‘wide release.’ In contract law, ambiguity is addressed in several ways. Absent fraud or misrepresentation, the court may choose to examine —verbal agreements made between parties, usually in the negotiation stage. Johansson’s legal team stated that they between them and Marvel’s Chief Counsel, Dave Galluzzi. In the email, the studio attorney promised a release “like our other pictures” and that if plans should change, they would be “discussed with [Johansson’s legal team].” Further, even without the email, courts generally resolve ambiguity , which in this case is . Therefore, Johansson is likely to win in court.

On August 21, 2021 Disney responded to Johansson’s suit with a motion to move the suit to . Arbitration is a method of whereby parties choose a sole arbitrator and venue of arbitration to settle a dispute. The arbitrator’s ruling is . Hollywood dispute lawyer would make this move back in July. Moving this issue to arbitration helps and contract drafting out of the public eye and protects their public image from damage. But Disney’s representatives counter this view, stating that they simply wish that was agreed upon between both parties to the contract. Disney also argues that the company made good on its contract by displaying the movie on .

Additionally, instead of coming after Marvel, as the party involved in the contract, Johansson’s team is pushing for a public suit against the parent company Disney. Disney suggests that Johansson is participating in “gamesmanship” by making Johansson’s compensation Disney’s responsibility, rather than carrying out the dispute in arbitration with Marvel. is a dubious technique where lawyers create additional expense or agitate the other side to put them in a tough position where they must either settle or abandon the case. Since arbitration is often dispute resolution than a public lawsuit, Johansson’s team may indeed be partaking in gamesmanship with the constant push for a public lawsuit.

Whether the parties decide to settle the dispute confidentially or publicly, this contractual disagreement emphasizes the new contractual landscape for actors and production companies. With the rise in streaming services and decline of theatre capacity during the COVID-19 pandemic, movie production companies should work to be more explicit in their compensation plans and in their definition of ‘wide release.’ 30,000 movie theatre screens versus 30,000 users on Disney Plus can make millions of dollars of a difference.

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On March 15, 2021, the Ontario Court of Appeal (the Court), in��Family and Children’s Services of Lanark, Leeds and Grenville v Cooperators General Insurance Company,��, reversed the lower court’s decision that found that Co-operators General Insurance Company (Co-operators) had a duty to defend Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc. (Laridae) against two claims in relation to a cyber hack.

Laridae was retained by FCS to perform communication and marketing services, including working on FCS’ website. FCS subsequently discovered that its website had been hacked and that a report containing personal information of 285 clients and subjects of FCS’ investigations was disclosed on Facebook without authorization. Both companies were insured by Co-operators and claimed that Co-operators had a duty to defend against the following two claims that arose out of the event:

1. a $75 million class action brought against FCS alleging that FCS was negligent in securing its website; and
2. a third-party claim in that proceeding brought by FCS against Laridae for negligence and breach of contract.

Co-operators denied that it had a duty to defend because its policies excluded claims arising from the distribution of data by means of an internet website. All three parties brought applications to determine the rights that depend on the interpretation of the policies.

The Court disagreed with the lower court’s finding that the matter could not be addressed by way of application, stating that there were no material facts in dispute requiring a trial and that the policy provisions in issue were clear and unambiguous. Upon assessing the issue, the Court found that the substance and true nature of both claims arose from the wrongful appropriation and distribution of confidential personal information on the internet. The Court held that all claims asserted were covered by the clear and unambiguous language of the exclusion clauses, and therefore Co-operators had no duty to defend either claim.

The Court did not waver when faced with FCS and Laridae’s argument that applying the data exclusions would nullify meaningful coverage under the policy. The Court held that the policies clearly stated that Co-operators would not insure against all risks, and therefore, holding the parties to the terms of the agreement, aligned with the reasonable expectations of the parties.

Written by M. Imtiaz Karamat, Osgoode Alumnus and Student-at-Law at Deeth Williams Wall LLP.

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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

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Since 2002, at least one company, ,��has been offering physicians the opportunity to quiet the online voices of dissatisfied patients through a unique manipulation of copyright law. As this service has become more popular among physicians, closer scrutiny has become warranted. Unfortunately for the service’s providers and subscribers, such scrutiny does not bode well.

In the Internet age, patients disgruntled by (perceived) shoddy medical care are able to seek recourse against their physicians by chiding them online. Naturally, the benefit that such comments provide for prospective patients by way of warnings is at least equal to the level of damage that such reviews can do to the denigrated physicians’ practices. Unfortunately for American physicians, the US , Title V of the Telecommunications Act of 1996, prohibits websites’ liability for such defamation.

Enter , a North Carolina-based company with an ingenious, if dubious, solution that capitalizes on another development of the digital age, the aptly named U.S. (DMCA). Under the notice and takedown provisions of the Act, websites must remove material that infringes copyright if they wish to avoid legal repercussions. Yet s. 512 of the DMCA requires that takedown notices be sent by or on behalf of the copyright owner.

For the price of ,��Medical Justice provides physicians with a standard-form legal agreement for patients to sign and thereby transfer their intellectual property rights over their as-yet unwritten online comments to the physicians treating them. Thereafter, if a patient posts something that the physician objects to, then said physician can exercise his or her newfound copyright ownership to demand that internet service providers remove the offending comment.

Unsurprisingly, this service has raised some eyebrows. At an immediate level, many are rightly concerned by the service’s unabashed censorship of patients’ speech. “,” reflected one Canadian hospital patient.

From a legal perspective, many are further skeptical of the merits of the agreement itself. The first barrier would seem to be whether patients’ online evaluative comments even qualify as copyrightable material. This consideration is further complicated by the fact that, at the time of signing the agreement, patients have yet to even write anything. The agreement may thereby be inappropriately pre-emptive and unsupported by law. Even if these barriers are overcome, however, copyright and contract law generally require that written assignments of copyright be granted in exchange for some consideration, such as payment. wonder what the payment is in the case of this agreement. Is it the medical treatment itself? Are physicians required to dole out small tokens such as tongue depressors or toy stethoscopes? Barring even this concern, the agreement may be void for breach of public policy. One interpretation could be that the agreement places physicians’ financial interests ahead of patients’ right to adequate medical care.

It is yet unclear whether these concerns would stand up to judicial scrutiny. However, as services like Medical Justice gain popularity with physicians, popular outrage among the general public may also crest and lead to lawsuits. Until then, patients would be well-advised to watch both what they sign in doctors’ offices and post online afterwards – Big Brother may be watching you.

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