Emily Xiang is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Huge changes have come to the Canadian Copyright Act. In late November of 2022, an was signed to fix December 30, 2022 as the date on which Division 16 of Part 5 of the Copyright Act came into force. The amendments come by way of legislation passed back in June 2022 Ìęto increase the term of copyright protection from 50 years to 70 years following the end of the calendar year of the author’s death.

The new changes are in line with Canada’s treaty obligations under the , which came into force on July 1st, 2020. Under CUSMA, the country made a commitment to extend its general term of copyright protection from 50 years to 70 years following the life of the author, with a transition period lasting until the end of 2022 to implement the changes. The extension brings Canada , including with many of its major trading partners, such as the United States, the United Kingdom, and the European Union. This extension will hopefully generate new opportunities for investment and commerce for Canada’s creative industries.

Following CUSMA, the Government of Canada commenced in early 2021 on the implications of the proposed copyright term extension. The consultations were met with mixed reactions. Many believed that the extended term of protection would provide rights holders with , thereby incentivizing creative production. On the other hand, the proposed amendments also garnered significant pushback, particularly from user-oriented groups, as the extended term would mean further restriction on public access. An overview of the differing views from the perspective of the educational publishing industry in particular can be found in .Ìę

Following the public consultations, Prime Minister Justin Trudeau also addressed mandate letters to the Ministers of and of , requesting that the departments work together to amend the Copyright Act in order to further protect artists, creators, and copyright holders. A commitment to making the legislative changes was also included in the .

With the changes to the Copyright Act coming into effect, there is more clarity as to what works might be encompassed by the new amendments. According to , the extended term of protection will not apply to works that already entered the public domain before the amendments come into force. Works with copyright set to expire on or before December 30, 2022 will not be privy to the extended protection term. In other words, the extension will not operate retroactively. On the other hand, copyright in a work that is set to expire on or after December 31, 2022 should benefit from an additional 20 years of protection.Ìę

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Raenelle Manning is an IPilogue Writer and 2L JD Candidate at Osgoode Hall Law School.

On April 5^th 2022, the Federal Court released its decision for ,a copyright infringement action concerning images of singer-actress, Jennifer Lopez. Prior to trial, this case commenced as a simplified action procedure, whereby evidence is adduced through affidavit.

The Plaintiff, August Image LLC (“August”) is a photographic syndication agency based in New 91ŃÇÉ«, USA. Generally, holds contractual agreements with various photographers to sell and license their photos for commercial and/or editorial use. ÌęFor example, the allows users to purchase photos from categories like “beauty look book” or select photos from a specific photographer. In this case, August held a syndication agreement with the photographer of the Lopez portraits, Joe Pugliese, which granted them the exclusive and global right to sell, licence and promote his photographic portraits.

August asserts that the Defendant, AirG Inc, a Canadian social media brand, committed copyright infringement by reproducing six of Pugliese’s Jennifer Lopez photos on their without permission. They sought $22,412.45 in damages, which is the total license fee for the photos.

Why August image LLC’s Case Failed

The Court was satisfied that the photos were reproduced on the AirG website without permission. However, the Court ultimately dismissed August’s case because they failed to prove all the necessary elements of copyright infringement.

One of the central issues in this case was whether Joe Pugliese owned the copyright to the photographs.

According to the , the following conditions must be met for a copyright to be conferred to an author of an artistic work:(1) the work must be original; (2) the person must be the author of the work; and (3) they must, at the date of its creation, be either a Canadian citizen or a citizen of a signatory country on the Berne Convention (para 26). The provides that works created in one of the signatory countries must be given the same copyright protection in each of the other signatory countries as the latter grants to its own citizens. The United States is a signatory country. Although August was able to satisfy the first two criteria, they were unable to prove that Pugliese was a US citizen at the time that the photographs were taken. Therefore, he could not be recognized as a copyright owner, nor receive copyright protection under the Canadian Copyright Act. This factor was detrimental to their case.

Inadmissible Evidence

August did attempt to establish that Pugliese was a citizen of the United States. They supported this claim with the following evidence: the statement in Pugliese’s affidavit where he identifies himself as being “of Los Angeles, California”; a copy of the Copyright Registration Certificate (issued in the United States) which bears a California address and identifies him as a citizen; and the contract between August and Pugliese that also includes the same address.

The Court was not satisfied that any of this evidence confirmed that Pugliese was a US citizen in April 2015, when photos were created. ÌęThe Court indicated that the standard affidavit formula requires a person to insert their name followed by an address. This was not admissible proof of a US citizenship. The same was true regarding the address listed on the 2012 syndication agreement between Pugliese and August.

The Court spent more time analysing the admissibility of the Copyright Certificate of Registration as evidence of Pugliese’s citizenship. In the affidavit, Pugliese indicated that he had registered the Jennifer Lopez photographs with the United States Copyright Office, as he typically does with his works.Ìę August asserted that this would establish Pugliese as the copyright owner and entitle him to copyright protection (para 46). Unfortunately, section 53(2) of the Copyright Act provides that only works registered with the Canadian Copyright Office will constitute as evidence that the copyright subsists and is owned by the registrant Ìę). Further, the Court stated that the statements regarding Pugliese’s citizenship and residence, in the certificate of registration, fell under the definition of hearsay (they were written by a person not involved with the case). The statements were also not accompanied by a declaration from Pugliese verifying the validity of the statements. Thus, the certificate was also inadmissible as to establish Pugliese as a US citizen and August was unable to prove that a copyright subsisted in the photographs.

Another Escape by AirG

In 2020, AirG was involved in a similar copyright infringement action, . ÌęThere, Lickerish, a UK company that provides beauty, celebrity, fashion and model medial argued the AirG reproduced images of Meghan Markle on their website without authorization. The Federal Court also dismissed this case. The Court failed to establish Ìęcopyright ownership — they were unable to prove that an exclusive licence existed between them and the photographer — and thus lacked standing to assert copyright infringement in relation to the photographs. ÌęUltimately, it seems that AirG has yet again managed to escape an infringement sanction.

Further Reading

August Image LLC v AirG Inc. 2022 FC 470:Ìę

Federal Court Dismisses Copyright Claim Due to Plaintiff’s Failure to Establish Ownership:

The post Copyright Infringement Case Concerning Photos of Jennifer Lopez Gets Dismissed: An Overview of the August Image LLC v AirG Inc Decision appeared first on IPOsgoode.

Photo by Felix Mooneeram ()

Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

Ìę

Imagine you are very interested in a three-hour movie that you do not have the time or patience to finish or a horror movie that you are too scared to watch. If a video condenses the film into short clips summarizing the plot, would you choose to watch the video instead? These movie recap videos have become extremely popular in China. While useful, they raise concerns of potential copyright infringement.

AmoGood, one of China’s most famous and influential movie recap bloggers, is well-known for his video series “Watching a Movie within X Minutes.” His on Bilibili, a popular Chinese video website, has over 2.42 million subscribers and 1400 videos. He has Ìęmillions of likes on Facebook and YouTube. In 2017, AmoGood was involved in the first Chinese legal action against movie recap producers.

Five companies, including Walt Disney Company, Deltamac Co., Autoai Design Co., KKTV Co., and Garage Play, brought against AmoGood. They claimed that his videos infringed by using their movie clips without permission. , AmoGood argued that he used the materials for commentary, criticism, parody, news reporting, research, and scholarship, which do not require permission from rights holders. He also argued that his videos should not qualify as infringement as they are non-commercial (free to watch). After a two-year negotiation, AmoGood eventually reached an agreement with the plaintiffs. He released an official apology Ìęon his page in 2020 and compensated the claimed economic loss his videos caused.

Nevertheless, the lawsuit did not seem to deter AmoGood or other video bloggers of the same nature. AmoGood continues to make and post videos regularly. The market for this content has continued to grow, with an increasing number of creators uploading videos to YouTube and various video platforms. A Korean Youtuber began producing movie recaps in 2017 and has 1.84 million subscribers. His most popular video, explaining Gerald’s Game, has over 33 million views. The low cost and huge potential benefit of movie recaps are enticing.

Though national governments are attempting to address copyright risks, the internet goes beyond borders. The Chinese National Radio and Television Administration introduced a in 2018 to prevent illegal capture, cut, stitching, and adapting audio-visual programs. Japanese police three people for posting a 10-minute move recap on June 23, 2021. However, YouTube, the most popular video website worldwide, adopts a “” copyright policy that allows the reuse of copyright-protected material under certain circumstances without permission from the copyright owner. This Ìępolicy generates difficulties when interfering with domestic intellectual property laws in different regions. It must also be applied on a case-by-case basis, making it impossible for YouTube to identify and eliminate each and every suspicious video.

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Suryast painting generated by the AI tool RAGHAV. Photo by Sukanya Sarkar (ManagingIP.com)

Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

ÌęIn September 2021, the IPilogue that India’s copyright office recognized the RAGHAV Painting App (“RAGHAV”), an artificial intelligence (“AI”) tool, as an author of the copyright-protected artistic work, Suryast. The work (reproduced above) was “created” using a base dataset of Vincent van Gogh’s Starry Night painting and a photograph taken by Ankit Sahni, the IP lawyer who created RAGHAV and the work’s listed co-author. Like a natural person, AI might use a painting or photograph as inspiration for their work; unlike a natural person, however, AI can “create” work at an exponentially fast pace. AI’s capability to outperform natural persons is just one of the reasons why its authenticity as an author, sole or joint, is controversial. Labelling the work as a “creation”, as opposed to an “output” or “generation”, has been .

Following registration in India, Mr. Sahni also achieved success in registering RAGHAV as his co-author for Suryast with the (“CIPO”) in December 2021 (CIPO, registration number 1188619). This registration marks the first time Canada has attributed copyright authorship to a non-human, signaling a victory for stakeholders who firmly support an amendment of Canada’s Copyright Act (“tłó±đ Act”) to support the changing needs of innovators and consumers in a high-tech world. Recognizing AI as an author may spark further in the Canadian AI sector.

On the contrary, some scholars, including Osgoode Hall Professor Carys Craig, expressed disdain over CIPO registering AI as an author before the government released the conclusions of their (IoT). Concerned stakeholders had from to submit evidence on whether and how amendments to the Act should be made to achieve its underlying policy objectives while ensuring that Canada’s economy “” The discussed three possible approaches for recognizing AI authorship in the Act:

1. Attribute authorship of AI-generated works to the person who arranged for the work to be created;
2. Clarify that copyright and authorship applies only to works generated by humans (i.e., requiring some human participation for AI-generated works to receive authorship); and
3. Create a new set and unique set of rights for AI-generated works.

It seems that CIPO’s registration of Suryast signals the Canadian government’s enthusiasm for the second proposed framework, since RAGHAV is a listed co-author along with its human counterpart Mr. Sahni. However, since the submissions have yet to be publicly shared, some find that this registration amounted to CIPO “jumping the gun” and undermines the purpose of running a public consultation.

While recognizing AI as an author can lead to further innovation in AI-generated works, many drawbacks exist. Some of the most notable arguments are included in a on the public consultation by 14 Canadian IP scholars. They recommended against recognizing AI as an author and argued that AI-generated works should remain in the public domain. There are technical arguments that the language of the Act implies human authorship and that AI-generated works cannot meet the threshold of “originality” required for copyright subsistence. Further, scholars emphasize that “giving copyright to AI-generated outputs serves none of the [public interest] purposes of copyright protection.” As the Supreme Court of Canada noted in , copyright is usually presented as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellectual and obtaining a just reward for the creator” (at paras 11-12). Where a work lacks significant human involvement (i.e., is truly AI-generated), the scholars argue that no author is denied their “just reward”, as an act of authorship is missing. Similarly, they argue that there is no reason to assume that AI-generated works will be under-produced in the absence of copyright protection, and so the incentive copyright is meant to provide is absent.Ìę

It is important to remember that once an applicant files their registration with CIPO, the office conducts a formal check of the details submitted in the application. Neither this oversight process nor the certificate of copyright registration amounts to a guarantee of the legitimacy of ownership or that the originality of the work will remain unchallenged. The lack of critical examination throughout the process is significant and may not be the victory for AI that many proclaim it to be. Theoretically, granting registration imparts onto the AI “author” the same rights and remedies that a human author would receive under the Act. An AI could enforce its copyright if a user is infringing. However, a user could challenge an AI’s copyright-protected work on the grounds that it lacks originality and, therefore, lacks copyright altogether. While this is a hypothetical situation, given the amount of controversy this registration has generated, it would be unsurprising if legal action followed.

Although the reach of this registration is limited, it does showcase the growing uncertainty around how AI interacts with copyright laws. Only time will tell where Canada stands on AI authorship as we await the results of the public consultation. Regardless of the position taken, the government must act urgently to address AI and copyright. These questions only become more complex as technology evolves.

The post Canada's First AI-Authored Copyright Registration Paints a Picture of Uncertainty appeared first on IPOsgoode.

Photo by Engin Akyurt ()

Prof. Pina D’Agostino is the Founder and Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Founder and Editor-in-Chief of the IPilogue, the Deputy Editor of the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School. This article features contributions from Ryan Wong (IP Osgoode & IP Innovation Clinic Alumnus), Sabrina Macklai (IPilogue Senior Editor), Tianchu Gao (IPilogue Writer), and Ashley Moniz (IPilogue Managing Editor).

2021 was an exciting year for the IPilogue. Our hard-working students and community members published more than twice as many articles than in 2020 and the most articles in a calendar year since 2011. This sharp increase helped us stay up to date with some of the biggest topics shaking up intellectual property: from , to ; and from growing investments in and , to IP registrars around the world grappling with whether to acknowledge Ìęas an inventor or artist. This article summarizes the top developments reported on our blog and in patents, trademarks, and copyright law in 2021. For a review of Privacy legislation in Canada, check out .

Top 10 Most Read IPilogue Articles Published in 2021

1. by Sabrina Macklai & Emily Chow
2. by Prof. David Vaver
3. by Claire Wortsman
4. By Claire Wortsman
5. by Natalie Bravo
6. by Prof. Giuseppina D’Agostino
7. by Bonnie Hassanzadeh
8. By Meena Alnajar
9. by Prof. David Vaver
10. by Bonnie Hassanzadeh

Introducing the College of Patent Agents & Trademark Agents

On , the came into force. The Act established the (‘’), an independent public interest regulator of patent and trademark agents in Canada. The purpose of the College is “to enhance the public’s ability to secure the rights provided under the and the .” The College’s responsibilities include maintaining professional competencies and ethics, issuing licences, collecting fees, and administering certification exams. This development marks a key milestone for the profession and for Canada’s . Though still in its infancy, the College has been criticized for and its , which may impose an additional fee on lawyer agents. It remains to be seen how influential the College is on the profession as it is expected to be fully operational within the next two years.

Patents

Overbreadth as an Independent Ground of Invalidity

On July 28, 2021, the Federal Court of Appeal confirmed overbreadth as a standalone attack on patent validity: . In this case, the appellants argued that there is no statutory basis for overbreadth as a ground for invalidity. The Federal Court of Appeal disagreed and found that overbreadth can be supported by a combination of sections 27(3) and 27(4) of the Patent Act. Case law has often overlapped overbreadth with other grounds of invalidity such as obviousness, anticipation, and inutility.Ìę

First Time Interpreting Patent Agent Privilege

Similar to solicitor-client privilege, patent agent privilege was introduced by section 16.1 of the Patent Act on June 24, 2016. The first case on patent agent privilege was decided this year: In this decision, the Federal Court provided some helpful commentary and analysis on the application and limitations of patent agent privilege.Ìę

Patent Prosecution History Now Admissible as Evidence

In 2018, section 53.1 of the Patent Act was added to make patent prosecution history admissible as evidence in patent proceedings. This was a significant development as the Supreme Court of Canada had expressly rejected the idea and stated that admitting patent prosecution history “would undermine the public notice function of the claims, and increase uncertainty as well as fuelling the already overheated engines of patent litigation” (Free World Trust v Électro SantĂ© Inc., 2000 SCC 66 at para. 66). Three subsequent Federal Court of Appeal decisions developed this provision further: ; ; and .Ìę

Continued Debates over AI as an Inventor

Around the world, patent registrars grappled with patent applications that credit artificial intelligence software as the inventor. Dr. Stephen Thaler’s “DABUS” (Device for Autonomous Bootstrapping of Unified Sentience) applied for patents around the world for its interlocking food containers. DABUS was granted patents in Australia and South Africa, with . In line with the and the , the disagreed, stating that absent express intention from Congress, the term “individual” in their statutory definition of “inventor” . The Supreme Court of Canada last considered the definition of "inventor" in 2002, but has yet to consider whether it would include non-human entities.

Trademark Law

Parody in Trademarks is No Joke

In , the Federal Court reaffirmed that parody is not a defence against trademark violation. Unlike the 2020 decision ), where the Federal Court failed to find the marks confusing, Justice McHaffie held there was a likelihood of confusion and passing off. This was based partly on the similarity of the trademarks and the overlap of the goods (both offering baked goods). However, even if the nature of the parties’ trades differ, trademark owners may still find recourse against spoofed versions of their marks through claiming depreciation of goodwill under section 22 of the . Here, the Court found goodwill in Subway’s trademarks, which was damaged by the nature of Budway’s products, as contrary to Subway’s “healthy and active” lifestyle promotion. With damages amounting to $40,000, it is clear the courts are unamused by parody in trademarks.

The Road Less Travelled Cannot be Trademarked

Like most countries, Canada bars the registration of “clearly descriptive” trademarks to prevent applicants from monopolizing words that merely describe the goods or services at hand. For this reason, marks consisting of are typically unregistrable. In , the Federal Court clarified when such marks might be protected. Hidden Bench and Locust Lane are two wineries operating on the same little road, “Locust Lane”. Although the Federal Court agreed that Hidden Bench met the threshold for a valid common law trademark over “Locust Lane”, they ultimately held that the mark, as clearly describing the goods and services’ place of origin, lacked both inherent and acquired distinctiveness. Therefore, Hidden Bench could not establish the necessary goodwill for a passing off claim. Only descriptive marks that have acquired a “secondary meaning” through use may warrant protection.

CIPO Addresses the Application Backlog

While filing trademarks is important for brand protection, the examination stage can take . In May, the Canadian Intellectual Property Office (CIPO) new measures to address the application backlog. Trademark owners may now file requests to expedite their examination where the registration of their mark is necessary for special circumstances such as if a Canadian court action involving the mark is expected or underway or if the goods or services are aimed at preventing, diagnosing, treating, or curing COVID-19. If accepted, the examination will take place within two weeks. The examination is also automatically expedited by approximately 6-10 months when the goods and services in the application are listed in CIPO’s . Though it is too early to assess the effect of these changes on mitigating the “”, the backlog of CIPO’s unexamined trademark applications appears to have as of December 13, 2021.

Push to Register Non-French Trademarks for Use in Quebec

Among the controversies associated with Quebec’s proposed Bill 96, , the bill stipulates new requirements for trademark owners operating in Quebec. Currently, under Quebec’s French-language laws, both registered and unregistered (i.e., common law) trademarks recognized under the may appear on public signs, posters, and commercial advertising in Quebec, in languages exclusively other than French. If enacted, Bill 96 would permit only registered non-French trademarks to appear on public signage, provided there is no corresponding registered French version of the mark. The Coalition Avenir Quebec government tabled Bill 96 on May 13, 2021, and Quebec’s National Assembly last examined it on December 10. Some iteration of the bill will likely become law by the end of this year. But even if it fails to pass, businesses relying on common law trademarks would be wise to try to register them, given the many that registration provides.Ìę

Copyright Law

In 2021, the Federal Court and Federal Court of Appeal heard 57 copyright infringement proceedings, approximately of all IP-related litigations at these levels.

Developments in Fair Dealing

The Copyright Act’s section 29 fair dealing provision, which allows for certain uses of copyright-protected materials, remained a central issue. affirmed that fair dealing for the purpose of news reporting (section 29.2 of the Act) must provide attribution, mentioning both the source and the name of the author. An indirect reference to the author accessible through “minimum research” is insufficient. As such, the Federal Court of Appeal rejected Trend Hunter’s argument that hyperlinking to the source article where Stross was credited was sufficient to meet the second requirement. The Court also declined to find fair dealing under s. 29 more broadly, considering that Trend Hunter’s dealing was commercial in nature, reproduced Stross’ work in its entirety, and that alternatives were available.

Fair dealing was once again at issue in , where the Federal Court held that the Conservative Party’s use of the CBC’s news footage of Liberal Party Leader and Prime Minister Justin Trudeau during their 2019 election campaign did not infringe CBC’s copyright. The court undertook a large and liberal interpretation of fair dealing, finding that the Conservative Party’s use of CBC footage was for the purpose of criticism under s. 29.1.

91ŃÇÉ« achieved a in the copyright tariff dispute with the Canadian Copyright Licensing Agency (“Access Copyright”) in In a unanimous decision, the Supreme Court ruled that the interim tariff approved by the Copyright Board is not mandatory. Users can choose whether to accept licences or pursue alternative methods to lawfully copy works. Notably, this marked Justice Rosalie Abella’s final decision before her retirement from the Supreme Court of Canada. Throughout her tenure, and her judgement here provided helpful obiter regarding fair dealing as integral to users’ rights.

Even Fake Facts are Not Copyrightable

involves the alleged copyright infringement of the famous true-crime story The Black Donnellys. The book had always been presented and accepted as “.” The Federal Court ruled that “an author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts.” Given today’s popularity of the phrase “based on a true story”, this ruling is a that there is no copyright in facts, even if they are later found to be untrue.

Copyright in Evolving Content Transmission

In , the Federal Court found the defendant liable for copyright infringement in its provision of pre-loaded set-top boxes and internet protocol television (IPTV) services and awarded the plaintiff nearly $30 million in damages. These services made copyrighted works owned by the plaintiff available to the public without the plaintiff’s permission. This decision marks the first time The court dealt with a similar issue in ). As IPTV is growing increasingly popular across the globe, its poses a challenge in Canada.

Availability of Reverse Class Actions for Copyright Infringement Claims

The first of its kind in Canada, the Federal Court of Appeal in affirmed that reverse class actions may be pursued in connection with copyright infringement claims. Though the matter was sent back to the Federal Court for further consideration, this judgement may encourage and enable mass copyright enforcement in the future, especially in our digital age where copyright infringement is more commonplace.

Public Consultations Ahead of 2022’s Copyright Reform

As part of the (CUSMA), which came into force on July 1, 2020, Canada has until the end of 2022 to implement numerous changes to their domestic copyright laws; most notably, extending the general term of copyright protection from . In light of the upcoming legislative amendments, the Government of Canada hosted three public copyright consultations in 2021:

• ;
• ; and

With the consultations now closed, it will be interesting to see how Canadian copyright laws will change in 2022 to accord not only with international obligations but our ever evolving digital world and public attitudes surrounding copyright laws.

The post 2021 IP Year in Review appeared first on IPOsgoode.

Everything breaks eventually.

It sounds bleak. But when it comes to the devices, machines, and tools we use every single day, it’s true. You’ll push down the lever on your toaster, but your bread won’t magically change into toast. Parts inside your car will wear out, even if you only do things the average driver does. The device you’re using to read this blog post likely has a battery or drive that will fail.

We’ve all encountered objects that stop functioning. When they do, we act, whether it’s getting the object serviced, fixing it ourselves, or even replacing the whole thing. But some manufacturers intentionally limit what people can do to get their stuff working again, even if you technically have the ability to try and repair your own things. Some manufacturers include . They might hoard proprietary parts and threaten third party part manufacturers. Some companies . Manufacturers can also make their devices without breaking them further. A right to repair can alleviate consumers of some of these restrictive practices and give them more options.

Manufacturers likely find it valuable to monopolize repairs. It’s questionable whether they are obligated to help anyone break into their products for repairs, considering that it might lead to piracy. Companies may arguably make higher-quality repairs on their own products, and worth the price. The device manufacturer should know how to diagnose and fix your device better than anyone. If a device cannot be fixed, manufacturers can even replace them.

However, it doesn’t make sense to restrict competition in the repair market just because a manufacturer can make quality repairs, or for fears of piracy. Even if we accept that third parties can’t meet the manufacturer standard, this fact will likely be reflected in the prices consumers pay third party repair choices. A lack of a right to repair isn’t preventing anyone from pirating either. Consumers should at least have the option to choose, and a right of repair could help them do so.

The US is taking steps towards giving consumers these options to anti circumvention exceptions in section 1201 of the Digital Millennium Copyright Act. Consumers in the US have been given extended to “break in” to consumer software-enabled devices for diagnostics, repair, and maintenance. Consumers will be able to use software tools or enable third parties to use tools to repair devices, where previously this access may have been. There are still limits, in that these , among others. The changes also cannot stop a company from sealing their device in such a way that makes it difficult to access for repair. But it does expand and get in. It’s a nice addition to a consumer’s right to repair their own things.

Canada should follow suit, potentially by adding “repairs” as a category to the Fair Dealing exceptions to copyright. Using software tools to repair a device might , which is prohibited in , likely due to piracy concerns. But, repair exemptions could benefit Canadians, and seems to already have . Additionally, codifying existing common law rights to repair one’s property sends a clear message that Canada is dedicated to protecting the rights of consumers.

A right to repair could help make our society less wasteful. It will give consumers more options to fix their stuff instead of going to the manufacturer to fix things. It could stoke competition in the repair market, which may lower prices. It may also convince more consumers to try the do-it-yourself route, saving costs on simple repairs, and allowing people to learn more about the devices they use every day. With all the potential a right to repair regime might bring, it would be unwise to ignore what the US has done and act on our end.

The post Canada Should Not Be Left Behind as the US Moves Towards a Right to Repair appeared first on IPOsgoode.

Photo by Prof. Pina D'Agostino

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

Ìę

For fifty years, the Copyright Society of the USA (CSUSA) has invited numerous esteemed figures to present the annual . This past Monday, Osgoode’s very own Professor David Vaver delivered the 2021 Brace lecture on “User Rights: Fair Use and Beyond” as the series’ very first international speaker from outside the United States. Professor Vaver spoke on the origins of fair dealing in Canada and its differences and similarities in comparison to the American legal concept of “fair use”, its evolution throughout the history of Canadian common law jurisprudence, and its potentially far-reaching future beyond Canada and copyright law.Ìę

Professor Vaver opened his lecture by introducing Jack McClenaghan’s novel Moving Target[1], a man-on-the-run thriller set in New Zealand during World War II that follows an army deserter as he is hunted by the military. Similarly, the boundary between copyright and user rights can also be likened to a “moving target” – elusive, ever-evolving, and always open to debate. And like McClenaghan’s fictional account of militant pursuit, the history of tension between copyright and user rights has been a tale of survival on the part of both.Ìę

“Fair dealing” in Canada is a statutory exception to copyright infringement, and has been “as an integral part of the Copyright Act [and more] than simply a defence”. The Court refers to it more specifically as a “user’s right”. However, fair dealing’s designation as an “exception” inherently produces a negative implication: that copyright law is the “natural order” of things. That anyone’s use of a copyright-protected work infringes the copyright owner’s property. That any deviation from that rule must be an “exception”.Ìę

However, the history of copyright law has always read quite differently. Up until the 20th century, , the public had relatively free reign and plenty of rights to use and to benefit from the circulation of works at the time. However, over the course of the 20th and 21st centuries, the island of copyright law that once stood amidst a sea of user rights began to expand, and as the sea around it shrank, the two eventually seemed to switch in character altogether.Ìę

It wasn’t until the late 1900s that courts in the UK began to recognize a problem with the tendency towards legal copyright. In , the Church of Scientology sued a former member for publishing a book criticizing Scientology that contained material copied from Scientology books and documents, as well as confidential information pertaining to Scientology courses. The Court of Appeal unanimously held that the scope and content of the fair dealing defence should include works of criticism. Along a similar vein in the US, Professor L. Ray Patterson and Judge Stanley F. Birch argued in their 1996 article that “the subject matter of copyright is information and learning, which implicates the right of citizens to know. This right is protected by both the First Amendment and the copyright clause”.Ìę

Over time, Canadian courts also began to increasingly recognize the need for a careful balancing act to weigh the rights of copyright owners against those of the public. In , the court noted that “[t]he Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator...In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.” Professor Vaver also credited Chief Justice McLachlin (as she then was) and Justice Abella for influencing this trajectory in Canadian copyright jurisprudence, as reflected by their rulings in more recent copyright law cases such as , in which the Court unanimously held that the Law Society’s practice of providing photocopy services to researchers fell within the ambit of fair dealing, and , in which the use of previews of musical works on online music services was also considered to be fair dealing.Ìę

In conclusion, Professor Vaver invited listeners to consider how the idea of user rights may extend beyond the concept of fair dealing as a legal defence, perhaps beyond copyright law, or even beyond Canadian borders. In quoting from his own 2013 article “[J]urisdictions that view copyright's primary purpose as - to quote Nimmer - ‘not to reward the author but rather to secure the general benefits derived by the public from the labors of authors’ may find user rights a concept worth considering for their copyright law. And, while one is at it, why not for all intellectual property laws?”

[1] Jack McClenaghan, Moving Target (Gollancz, 1966).

The post Donald C. Brace Memorial Lecture by Professor David Vaver – “User Rights: Fair Use and Beyond” appeared first on IPOsgoode.

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

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Photocopying classroom materials in a K-12 public school system may have seemed harmless and benign before the 2012 Supreme Court of Canada case, . The decision reframes traditional teaching pedagogies by considering the artist and owner rights under copyright law. In doing so, I saw an opportunity to compile a list of resources for educators to make informed decisions about how they use and distribute learning materials (located at the end of this article).

Countless teachers throughout my K-12 years printed and distributed excerpts from a short story or a news article outside of our textbooks that held the most evocative paragraphs for pre-reading and open discussion. Other times, we looked at diagrams from an older edition of a textbook that were “much better for the purposes of our class.” While working as a tutor, I often collected scans of creative math problems from various textbooks.

Despite its benefits, copying materials can present consequences for the content’s owners, artists, and publishers. As a copyright collective, made royalty agreements during the years of 1991-1997 with all Canadian provinces and territories, except Quebec (which has its own collective, ), permitting use of copyright-protected content in primary and secondary schools on a per-student basis. These agreements were slated for renewal in 2004, during which Access Copyright sought to restructure the royalty system to reflect the quantity and extent of photocopies made in schools. Four different categories of usage arose from an assessment of school photocopying habits. The one in this case, Category 4, comprised of photocopying instances where teachers would assign readings from materials outside the textbook.

Access Copyright argued that Category 4 circumstances were not covered under the fair dealing exceptions and thus subject to tariffs. The Copyright Board agreed, claiming that despite the permissible use of the photocopied materials for educational purposes, the use was not fair and so royalties needed to be paid. A series of appeals regarding the definition of fairness ultimately led the case to the Supreme Court.

What constitutes “fair” dealing? The landmark 2004 SCC case, [CCH] defined the tests for fair dealing. It is the potential copier’s responsibility to ensure that their use passes the tests. As Abella J. summarizes in , fairness is assessed considering the “purpose, character, and amount of dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.” According to the , copies made without a student’s request for access do not fall under the permissible “private study” purpose. Consequently, copies made by teachers for the purposes of in-class instruction, pre-readings, and supplementary materials may be considered infringements of copyright. Likewise, I probably also would need to pay royalties for my small collection of math problems and diagrams.

In a 5/4 split, the SCC ruled in favour of educational institutions. , Abella J. contended that a teacher’s goal of instruction—facilitating the education of their students—was necessarily “symbiotic” with students’ studying. She took issue with how the Copyright Board misapplied other factors of the CCH tests, which arbitrarily placed educator copying habits in competition with the textbook market. She also pointed out the possibility of schools being doubly charged by Access Copyright, first upon purchase of the original work, and again upon copying. Note, was a unanimous SCC decision that reaffirmed Justice Abella’s emphasis on end-user considerations in a post-secondary setting.

Where do these cases leave Canadian educators now? They may continue to teach using copyright-protected materials, and are not required to destroy any copies by shredding them en masse or, theatrically, igniting a large pyre.

Overall, Alberta (Education) v Access Copyright serves as a useful reminder in understanding the legal framework to use original works. Below are several accessible resources that may also inform one’s judgement of fairness and fair dealing, as well as some interesting “further reading”.

In particular, the is a fantastic Canadian resource that can guide educators’ decision-making and reflection processes for the materials in question. It also points out any citation requirements (e.g., author/artist/owner name, title) and/or digital safeguards necessary to limit access to the material.

Further Reading:

Dr. Meera Nair's interesting take on the importance of copyright education for educators in classrooms and the promotion of creative thought:

IPilogue’s Sabrina Macklai writes about the recent 2021 SCC decision regarding post-secondary fair dealing in 91ŃÇÉ« v Access Copyright:

Council of Ministers of Education Canada’s resources for teachers:

Fair Dealing Canada:

Access Copyright’s information and services tab for educators:

Canadian Association of Research Libraries’ Resource Library’s copyright open educational modules for university instructors and staff:

Osgoode Hall’s Professor Giuseppina D’Agostino’s comparative analysis of Canadian, UK, and American fair use/dealing:

The post Revisiting Alberta v Access Copyright: Resources for K-12 Educators in Canada appeared first on IPOsgoode.

Prof. David Vaver is the Acting Director of IP Osgoode and a Professor of Intellectual Property Law at Osgoode Hall Law School. The following is a preview of a paper to be published in the Intellectual Property Journal.

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Something has recently gone awry with the law of copyright ownership in a movie or other film — a “cinematographic work”, as s. 2 of the [Act] calls it. Ìę

Part I of the Act deals with the ownership of copyright in works. Section 13(1) provides that the author of a work is its first copyright owner. Section 13(2) provides one exception: where the work is done by an author-employee for their employer as part of their job and there is no contrary agreement. All this applies to cinematographic works, a species of dramatic work, as the Quebec courts recently confirmed: at [12], aff’ing at [51]-[2] [Choko]. A copyright owner may of course transfer the right as it wishes (s. 13(4)); but apart from another exception on Crown works (s. 12), these provisions in s. 13 are the only ones that deal with the ownership of copyright in works. Another section in Part II of the Act (s. 24) deals with first ownership of copyright in subject-matter other than works: performer’s performances, sound recordings, and communication signals.

Owning copyright is one thing; proving ownership is another. Section 34.1(1) of the Act helps plaintiffs out by giving them certain presumptions if they sue for infringement or take other civil proceedings. The section reads (emphasis added):

"In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,

(a)Ìęcopyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and

(b)Ìęthe author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright."

At first sight, the words in (a) — “work, performer’s performance, sound recording or communication signal” — appear to be paired with those in (b), in the same order, to mean “author [of a work], performer [of a performer’s performance], maker [of a sound recording], or broadcaster [of a communication signal]”. It would seem unnatural, for example, to read “maker” as referring to both a “sound recording” and a “work”. That however overlooks the fact that s. 2 of the Act defines “maker” as referring to both a work and a sound recording.

Does that definition apply here so as to disturb the apparent pattern of paras. (a) and (b)? Or do the words in context make s. 2 inapplicable? I suggest that they indeed do disapply s. 2 for cinematographic works and that, in context, “maker” in para. (b) means only the maker of the sound recording referred to in para. (a).

Not everyone thinks so — in particular, some judges of the Federal Court.

*

Section 34.1(1) is supposed to make a plaintiff’s life easier in starting and running a copyright claim in court. It neither creates presumptions outside civil proceedings nor creates, transfers, or changes anyone’s actual title, and any proceeds recovered from a defendant are held for the benefit of the true owner: see Hogg v Toye & Co [1935] Ch 497, 520 (CA) on the corresponding provision in the (UK) on which the Canadian section is based. If any presumption happens to be displaced by contrary evidence, the proceedings can be amended and other parties joined so that defendants are not put in double jeopardy.

The presumption was applied straightforwardly in Choko (above). The plaintiff claimed a declaration of copyright ownership in a documentary he had shot for the defendant, while the defendant counter-claimed that the copyright belonged to the defendant as the plaintiff’s employer. The court applied s. 34.1(1)(b) to presume ownership in the plaintiff, he being the “author” of the “work” (Choko, QCCS at [55]). The defendant lost at trial and on appeal because he failed to prove the contrary, i.e., that he employed the plaintiff under a contract of employment (Choko, QCCA at [13]).

The Federal Court of Canada has, however, in at least three decisions said that s. 34.1(1)(b) presumes that the film’s “maker” is the copyright owner of the “work” unless the contrary is proved: see at [24]-[6]; at [32]; at [47]. The ultimate result in these cases may be justifiable: agreement or employment may have given the plaintiff actual ownership in Interbox (see [24] & [26]-[8] of the decision); ownership was “uncontested” in CBC (see [36] of the decision); and certificates of registration would have shifted the presumption of ownership to the plaintiffs in Bell (see [53] of the decision).

Interbox nonetheless does appear to be a decision on the s. 34.1(1)(b) point and was treated as such in CBC at [32]. Ìę

The correct view however seems to be that, read in context, “maker” in s. 34.1(1)(b) refers only to the maker of a sound recording. Were it to include the maker of a cinematographic work, s. 34.1(1)(b) would be the only provision in the entire Act where "maker" alone bore this meaning. It would also make s. 34.1(1)(b) create two inconsistent presumptions on ownership of the same work, with no way to decide which should prevail. Suppose an “author” and “maker” of a film sue each other, each claiming to be the copyright owner: whose duelling presumption should prevail? To call the result a stalemate would stultify the point of having presumptions at all and would anyway probably be contrary to art. 15(1) of the [Berne], which requires the author to prevail if their name appears on the work in the usual manner.

The problem is that, although “author” and “maker” can mean much the same thing in ordinary parlance, they do not in copyright law. The Act does not define “author” but judicial decisions identify this person as the individual or individuals who give a work’s ideas their original form or expression ( (NBCA)) — a question of fact in each case. Authorship is established easily enough for the video shot on someone’s smartphone; less so for a complex production such as Star Wars, which could involve multiple authorship or the director as sole auteur, the individual responsible for translating the work’s vision into its final expression.

By contrast, “maker”Ìę—ÌęproducteurÌęin the French version —Ìęhas a definition in s. 2 of theÌęActÌęthat spans both cinematographic works and sound recordings. For a cinematographic work, the “maker” isÌę“the person by whom the arrangements necessary for the making of the work are undertaken”; for a sound recording the same formula applies to the first fixation of sounds.ÌęÌę

In cases likeÌęChokoÌę(above) which involved a single individual shooting and editing a film, the same person may coincidentally be both maker and author: the two roles are easily enough mistakenly conflated (see, e.g.,Ìę at [156]-[7], appeal dismissed 2021 ONCA 532 for non-compliance with order to post security). In many major commercial films, however, the maker and authorÌę—producteurÌęandÌęauteurÌę—Ìęwill be different persons, particularly because the maker may be a corporation whereas an author must be a natural person, i.e., a flesh-and-blood human being:Ìę,Ìę234 [Massie].Ìę

One might ask: if “maker” in s. 34.1(1)(b) really applies only to sound recordings, what is the point of having a definition of “maker” of a cinematographic work at all? The answer: to allow Canada to comply with Berne article 4 and ensure that films are protected in Canada even where none of the authors is a Berne national or resident, no matter who owns the work’s copyright. This s. 5(1)(b)(i) of the Act achieves (see Bell, above, at [47]) and also extends protection to other states as required by treaties such as the of 1994. The relevant part of s. 5 reads: Ìę

"5.(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

ÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌę 


(b) in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,

(i)Ìęif a corporation, had its headquarters in a treaty country, or

(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country [emphasis added]."

Section Ìę34.1(2)(c) reinforces this provision, as Berne art. 15(2) requires, by providing that “if, on a cinematographic work, a name purporting to be that of the maker of the cinematographic work appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematographic work” — note, not the “copyright owner”, an error made in Wiseau (above) ONSC at [156], although the court ultimately found the person who wrote, acted in, and produced the film to be its “author” and at least a co-owner (ibid at [157]).

Sections 5(1)(b)(i) and 34.1 (2)(c) are the only provisions to which the definition of “maker” of a cinematographic work applies. Had the drafters integrated the contents of s. 34.1(2)(c) into s. 5(1), as they could easily have done, the definition of “maker of a cinematographic work” could also have been shifted from s. 2 to s. 5(1). The mischief its location in s. 2 causes would have disappeared. Such are the potential effects of drafting decisions that are thought to be stylistic but which others misunderstand as having a substantive effect.

Let us examine more closely why s. 34.1(1)(b), in context, cannot include the maker of a cinematographic work. Admittedly, s. 2 could make it include that person — which raises the question: had the drafters intended to confine “maker” to sound recordings, why did they not just add the phrase “of a sound recording”? The answer is because, in the context of section 34.1 and the Act as a whole, the drafting in this respect is often elliptical, and the drafters here thought that meaning was already implied.

The drafters used a similar ellipsis in the next subsection, s. 31.1(2), where the word “maker” in the phrase “author, performer, maker or broadcaster” in the concluding portion of s. 31.1(2)(a), and in s. 31(2)(b)(i) and (ii), clearly means the “maker of the sound recording” specifically mentioned earlier in s. 31.1(2)(a)(iii).

They also used the same ellipsis elsewhere in the Act. Thus s. 29.21(1)(b) requires the creator of user-generated content to name their available source if they are to avoid infringement. The source is stated to be “the author, performer, maker or broadcaster” of the prior “work or other subject-matter.” “Other subject-matter” is the shorthand used throughout the Act for a performer’s performance, sound recording, or communication signal, and the preceding section (s. 29.2(b)(iii)) again makes it clear that the “maker” referred to is the “maker of a sound recording”.

The fact is that the words found in s. 34.1(1)(a) “work, performer’s performance, sound recording or communication signal” in either their singular or plural form appear as a set throughout the Act and are typically linked distributively to the set of persons the Act designates as their respective first owners: “author, performer, maker of a sound recording, or broadcaster” (see, e.g., s. 2, definition of “collective society”). Thus s. 13(1) designates the author as first owner of a work and sections 24(a), 24(b), and 24(c) respectively — and significantly, in the same order — designate the performer, maker of a sound recording, and broadcaster as first owner of their respective subject-matter.

The maker of a cinematographic work would be the odd one out in s. 34.1(1)(b), for the provision otherwise designates the presumption only in favour of first owners. Nothing in the Act, other than employment, contradicts s. 13(1)’s grant of first ownership to the work’s author. The Act nowhere suggests that the maker of a film displaces the author as first owner. Nor does the Act bridge the gap between “maker” and “author” the way UK law does by deeming a film’s author to be its maker — or “producer,” as UK law has it—together with the principal director ( (UK), s. 9(2)(ab)). Although Canadian and UK ownership rules may differ, both are internationally compliant: Berne art. 14^bis(2)(a) allows member states to decide ownership rules for films for themselves since the states had widely disparate views on the matter and no agreed position could be struck at Berne.

It is equally noteworthy that the maker of a cinematographic work is omitted from the list of persons whose interests may be recorded on the Copyright Register — namely, “authors, performers, makers of sound recordings, broadcasters, owners of copyright, assignees of copyright, and persons to whom an interest in copyright has been granted by licence” (s. 54(1)(b)). All these categories are persons whom the Act designates as first or later owners of copyright or an interest in copyright. The omission of the maker of a cinematographic work as such — nowhere designated as a category of owner or holder of an interest — is striking were it is indeed presumed to be an owner for civil proceedings. Ìę

In general, it makes sense when civil proceedings are brought, to start with a presumption that the person the Act designates as the first owner of any copyright is still its owner unless someone proves the contrary. It generally makes no sense to start with a presumption that a person that the Act nowhere designates as such as first or any owner should currently be presumed the owner. The only exception is where material is anonymous or pseudonymous: for reasons of privacy, s. 34.1(2)(b) provides that the publisher whose name appears on a work is presumed to be its owner — even though the publisher is likely not the first owner and, as Berne article 15(3) states, is really only “deemed to represent the author” to vindicate the latter’ s rights.

None of this will come as any surprise to corporate broadcasters and film producers. They have known for decades that they cannot rely on the presumption in s. 34.1(1)(b) favouring a film’s “author” since in Canada, as noted earlier, the term “author” is reserved for flesh-and-blood human beings: Massie (above) at 234. They have also known for decades of the “intolerably heavy” burden and “serious handicap” the author/ownership presumption imposes on them or any other plaintiff who happens not to be the author: , 605. They also have known for decades of the cheap and effective way to overcome this burden and handicap, as endorsed by Circle Film, itself a case on cinematographic works: before filing infringement proceedings, just spend the $50 and the few minutes it takes to apply online to register the film’s copyright with the Canadian Intellectual Property Office, and get a certificate of registration stating one’s copyright ownership. Registration then provides all the contrary proof needed for the registrant to rebut the author/owner presumption (Act, s. 53(2); Circle Film, at 606-7). That is why no practical need has existed to amend the law to include a presumption of ownership in favour of the maker of a cinematographic work. Registrations can go where presumptions fail to tread.

It is therefore hard to understand why s. 34.1(1) has been pressed into doubtful service where clear and simple alternative means of initially establishing copyright subsistence and title for film “makers” so readily exist. The sooner the Federal Court clears the matter up, the better.

The post Copyright Ownership of Movies and Films in Canada: Who's on First? appeared first on IPOsgoode.

Photo by (Unsplash)

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

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Not only do songwriters and artists owe the viral video app for their songs taking off, but most artists also owe their fame to Black creators for creating phenomenal dances which helped those songs to go viral.

In June 2021, the hashtag started trending on multiple social media platforms and was viewed over 7.7 million times on TikTok alone. This trend started due to Black creators getting fed up with the cultural appropriation and credit given to their white counterparts. Black creators have finally spoken out about the recognition and financial gain white creators get from stealing their creations.

The strike centred initially around ’s song, “.” The Texan rapper's prior hit song, “,” alongside Cardi B, has inspired over (not views) made on the app. For the release of Megan Thee Stallion’s new song, Black creators decided to hold off on creating a new dance to show artists and white creators alike how much credit Black creators deserve for their success. Today, “Thot S**t” does not have a viral dance and include the song.

Many Other Controversies

White creators have controversially Ìęappeared in mainstream media for Black creator content many times. Nicki Minaj's song, “,” went viral again to celebrate Black beauty on TikTok. However, not long after the trend emerged, many white female creators started appearing on Tik Tok’s “” page. Discourse now fills the song's thread on TikTok over .

Another recent controversy surrounds ’s appearance on ’s in . The host asked the TikTok superstar to perform eight famous TikTok dances in a segment which has brought both Fallon and Rae . The show did not credit nor mention the IBPOC creators of the dances, adding more to the conversation of white creators’ success off of Black creators’ content.

Photo from

Both Fallon and Rae have now publicly addressed the backlash. Fallon apologized and admitted that the original creators deserved their spotlight. He then invited some of the creators onto the show to . In an interview with TMZ, spanning less than two minutes, Addison Rae said she loves and respects all the creators of the dances she performed. Additionally, she stated that it is “.”

What Can Black Creators Do Legally?

I recently wrote about . Although this ban from Black creators is similar, and the 6 make it more difficult for these creators to exercise their rights.

Creators would have better luck with claiming copyright protection if not for Tiktok’s app design. By default, once someone uploads a dance video online, it is protected under copyright. However, it is usually hard to figure out who created the dance first and what constitutes a dance. Unlike Facebook or Twitter, TikTok , which creates more difficulty in crediting creators. The app posts videos by popularity and not in chronological order. This ordering makes it extremely hard to figure out who posted the dance first.

The Copyright Act of 1976 has adapted to protect more pieces of works over the years. It was not until 8 that the Act allowed choreography to be copyright protected, Nevertheless, this amendment was for extended choreography, such as ballet routines and other dances performed in front of an audience. On the other hand, "social dances," defined as "," are not protected under the Act. This definition, unfortunately, includes short TikTok dances.

Conclusion

Overall, after researching the common law of copyright protection of TikTok dances, I have found that the law seems not to protect the work of these Black creators. As the strike continues, the best thing that allies and supporters of Black creators can do is to credit the original creators of these works. Recognition for the idea and creativity and the following they deserve will make up for the financial gain these creators have lost. This can be an appropriate solution until the law can adapt to ensure Black creators can get what they rightfully deserve.

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