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

The Australian government recently raised the alarm after noticing an , particularly driven by traffic to websites offering Japanese manga. The issue of most notably made headlines back in 2021 — manga piracy had surged by over 26 times, resulting in a in the same year. In Australia, unlicensed television shows, films, and music have seen a general decline since 2017, causing some to wonder why manga could be an exception. According to intellectual property experts, consumer convenience is likely driving these trends.

The recent explosion of streaming services has enabled widespread access to shows, films and music, whereas there appears to be an ongoing lack of legal access to manga. Even though streaming services come with a cost, many offer a wide range of plans at reasonable rates, and some even offer free trials. Moreover, more individuals appear to be willing to pay the fee rather than potentially expose their devices to malware — consumers who engage in private downloads were found to be 28 times more with malware. Blocked piracy sites were also found to be an effective deterrent to some of the less persistent individuals trying to access unlicensed content. The Australian government is currently in response to the need for an effective copyright system that takes into account shifting technological landscapes.

However, declining piracy trends in Australia may be unique. According to , a data company that measures global piracy to drive content protection, . With 17.4 billion visits, the United States had the most visits to pirate sites per country, followed by Russia and India. While Canada was not listed in the top ten, it may be too soon to breathe a sigh of relief, as developments in the streaming market may create conditions that will predictably lead to an uptick in demand for unlicensed content. Streaming services implementing new , increasing costs, or tightening the grip on may seem like a huge inconvenience to many, which can result in some consumers feeling like the legal avenues for accessing content are no longer worth it.

Moreover, the fragmentation of streaming services has been frustrating consumers. With over 50 video streaming services in North America alone, consumers find themselves subscribing to multiples services in order to watch their desired content. , the average streamer uses approximately 4 subscription services and desire “managed and consolidated services” to streamline their streaming experiences.

Overall, it is beneficial to investigate piracy trends, especially as we see significant changes in how we consume content. The rising demand for unlicensed manga suggests that there is a need to assess consumer access to legal content in order to prevent a slew of other piracy issues in the future.

The post Increase in Manga Piracy - Considering Lawful Avenues for Content Access appeared first on IPOsgoode.

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

Museums have long been a source of education and inspiration, but technological advancements have allowed for exhibitions that display a unique intersection of modern technology and history. Exhibitions incorporating the use of AR and VR technologies enable visitors to and absorb educational content through interactive games. Museums have become some of the world's most innovative content creators, capturing the attention of individuals of all ages.

Engaging, accessible and a springboard for creative projects

What exactly does it look like when a museum embraces technology? In 2021, Athena Art Foundation, Colnaghi Foundation, National Portrait Gallery and Megaverse collaborated to launch the “” series. The series features digital, interactive versions of the gallery’s portraits in place of their traditional, static counterparts. Brought to “life,” the portraits tell their stories in an engaging and authentic style. The first portrait in the series featured Jem Belcher, a 19th-century bare-knuckle boxer and butcher who speaks of his accomplishments as one of the best boxers of his time. Additionally, these digital portraits are more accessible to a wider audience, including those with visual impairments.

Augmented reality (AR) has also been utilized to explore various perspectives. Last year, LACMA collaborated with Snapchat in the Monumental Perspectives Collection to explore LA community histories through AR. As a part of the collection, Sandra de la Loza’s “” is an AR animation to portray what has been lost and “a vision of new ecologies in the future.” The piece revives native plants in South Los Angeles and illustrates how the land is linked to time and history with the transition of seasons.

(Caption: Sandra de la Loza, What the Willow Whispers, 2022, in collaboration with LACMA × Snapchat: Monumental Perspectives, © Sandra de la Loza, image courtesy of Snap Inc)

A new box of legal issues

Museums will need to consider new issues as they explore new technological media. For example, they will need to weigh the potential benefits and drawbacks of allowing visitors to use various AR apps and tools to customize works. While some argue that such acts would be a defilement of fine art and would prefer that works are preserved in more controlled environments, others see that these technologies offer opportunities to study works in greater depth. Loic Tallon, Digital Chief of the Metropolitan Museum of Art, : “[t]he museum’s mission is to collect, preserve, and study works of art … if someone is making an AR experience out of the collection, I see it as pure mission fulfillment.”

Furthermore, remains a key issue that can easily be complicated when it comes to these technologies. For AR works that may be the product of multiple copyright holders, the museum must make sure that proper steps are taken to locate and obtain all permissions or licenses for the use of the work. In this process, it will be important to discuss with artists the extent to which their work is original and what is sourced from third parties.

Annually held conferences such as the “” by MuseumNext, bring together members of the world’s leading institutions, to continue exploring the ways technology can be integrated in exhibitions in the future. If you love both history and technology, chances are your local museum has something for you.

The post When Modern Technology Meets History - How Museums Are Creating Interactive Experiences appeared first on IPOsgoode.

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

On January 10, 2023, Justice Pratter of the United States District Court for the Eastern District of Pennsylvania that storing melted rink ice from championship hockey matches in a piece of memorabilia is not copyrightable. Justice Pratter confirmed that the scope of copyright law extends only to the expression of ideas, but not the ideas itself.

The , William Grondin, sued sports merchandise company Fanatics Inc. (“Fanatics”) for copyright infringement. Mr. Grondin alleged that he owns copyright for “Slice of the Ice”, a Stanley Cup-shaped piece of hockey memorabilia incorporating melted ice from championship hockey games. He also alleged that Fanatics unlawfully copied his work in its own ice-filled hockey puck-shaped memorabilia. To establish copyright infringement, the following criteria must be met:

1. Grondin owns valid copyright in “Slice of the Ice”; and
2. Fanatics unlawfully copied the original, protectable elements of Mr. Grondin’s work.

While the court found evidence that Mr. Grondin owned valid copyright in “Slice of the Ice”, Fanatics succeeded in its motion to dismiss on the basis that the elements allegedly copied from Mr. Grondin’s work were not copyrightable.

Justice Pratter relied on the longstanding notion in copyright law (as early as ) that copyright does not protect ideas, only the expression of ideas. The sole element which Mr. Grondin alleged Fanatics copied was the “hockey puck-shaped piece with a hollow cavity into which melted rink ice is placed.” The idea of storing melted rink ice in hockey memorabilia is not protected by copyright. The question became whether Mr. Grondin’s specific expression of this idea in “Slice of the Ice” is copyrightable and if Fanatics substantially copied this expression.

The court Fanatics’ argument that the use of a hockey puck to express the idea of storing melted ice in memorabilia is inevitable and simply inherent in the underlying idea. This argument was supported by the fact that Fanatics also stored melted ice in Stanley Cup- and snow globe-shaped memorabilia. However, Justice Pratter that hockey pucks are inseparable and indispensable from the sport of hockey. Allowing Mr. Grondin to establish substantial similarity merely on the shared use of this element would effectively provide him a monopoly on the underlying idea of hockey memorabilia. The court also held that the elements of the hockey pucks in both works, notably its clarity and hollow cavity to hold melted ice, are merely utilitarian features which permit the idea of a water-filled puck. These utilitarian features are not protected by copyright. Since the sole element by which Mr. Grondin alleged copying by Fanatics is an idea not within the scope of copyright protection, the court held that there was no basis for a copyright infringement claim.

Interestingly, the court granted the without prejudice. This ruling leaves open the possibility that the action could be amended. Alternatively, Mr. Grondin could allege copying of other aesthetic or non-utilitarian features from which substantial similarity might be established against Fanatics or other sports companies.

(Alt Text: Comparison of Mr. Grondon’s work with the allegedly infringing hockey memorabilia; Source: )

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Govind Kumar Chaturvedi��is an IPilogue Writer and an LLM graduate from Osgoode Hall Law School.

On 30 September 2022, the much-awaited for Alexander v Take Two Interactive Software Inc. & Ors. was released. In the the jury stated that Defendants had not proven fair use, the Plaintiff (Alexander) should receive $3,750 USD for actual losses from the Defendant’s use of the tattoo designs, and did not answer as to profits can be attributed to the Plaintiff for use of the tattoos.

Alexander inked WWE professional wrestler Randy Orton with a total of including tribal tattoos designed by another tattoo artist which Alexander extended per Randy Orton’s request. Take-Two created the WWE 2k video game series, which use to realistically reproduce the featured wrestlers from a photograph. Take-Two Randy Orton’s likeness from WWE. WWE had a right to reject Take-Two’s game if it did not find it authentic. So, Take-Two reproduced Orton’s tattoos in the game to keep the depiction of Randy Orton authentic.

Arguments

Alexander filed a before the District Court of Southern District Of Illinois for copyright infringement under in and moved for partial summary judgement on the grounds that she never authorized WWE to recreate her tattoo. The Defendants also filed a motion for partial summary judgement on the basis of three : 1) de minimus, 2) fair use doctrine and 3) implied license.

The Court's Conclusions

The Court, by dated , rejected the Defendants’ motion and allowed the Plaintiff’s motion for Partial summary judgement. The court found that protection of a work required a minimal degree of creativity, or intellectual production. In this context, a work is protectable once it is affixed to a tangible medium, and the tattoo fulfilled this affixation. The court opined that the dispute to copying does not arise as the defendants had admitted to copying the tattoo. Citing it stated that the burden is on the Defendant to prove the copying was authorised. Since Alexander had proven her copyright in the tattoo designs and that it had been copied, she met her onus and now the Defendants needed to prove authorisation for their reproduction.

Rejecting the defendant’s arguments, the Court stated that an implied license does not apply to this case. An only authorises the licensee to use the work, not further license it out.,�� Alexander impliedly licensed Orton to disseminate and display the tattoos as part of his likeness, but due to the vague licensing terms between parties, the issue was triable and could not be allowed in partial summary judgement.

On fair use, the Court ��stated that it needed to consider in determining whether the doctrine applies: (1) the purpose and character of the use, including whether����such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The Court found in favour of the Plaintiff in second and third issue and stated that the first and fourth issue were triable.

In assessing damages, the jury considered the value of the tattoo to the video game, what role it played in the Defendant’s profits from WWE 2K series, and the lost license fees for Alexander. The jury’s $3,750 USD award only accounted for the lost license fees, as the importance of the tattoos for the profit from the video game could not yet be inferred.

Would Alexander Have Won this Case in Canada?

In the US, the author only needs to show that that their work was original and was copied, and the defendant must prove consent. In Canada, the Plaintiff has the onus to prove consent. of the Canadian Copyright Act clearly requires the copyright owner to prove that (1) the defendant did something the owner alone had the right to do, and (2) the defendant did it without the copyright owner’s consent. However, the US law does not contain the word consent. Consent’s importance was recently affirmed in , where the Canadian Court upheld the Plaintiff’s onus to prove consent was not given.

Applying this consent principle to the present case, the stated that Catherine Alexander never consented as she ��refused and advised WWE that she did not give them permission to copy, duplicate or reproduce her design. So, Catherine Alexander might have also successfully proven absence of consent and would likely have had a similar outcome under Canadian copyright law..��

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Alice Xie is an IPilogue Writer and a 1L JD Candidate at Western University’s Faculty of Law.

Do you remember contemplating whether you liked a trending pop song enough to spend $4.99? With the rise of online streaming services like Spotify and YouTube over the last two decades, listening to music has arguably changed for the better. However, with the convenience of streaming music through these digital platforms, the music industry has also had to deal with a wide range of copyright issues, including online copyright infringement. A look at streaming giant Spotify’s recent significant copyright battles provides some insight into the issue of on online streaming platforms.

Spotify’s Recent Significant Battles

Spotify has encountered its fair share of copyright infringement lawsuits filed by music artists, record labels, and publishers. In 2015, guitarist David Bowery filed a lawsuit against Spotify USA, a Spotify subsidiary, for streaming songs without first , which are the standard payment for reproducing or distributing a song. Spotify settled the lawsuit with . In 2017, music publishing company Wixen also filed a against Spotify USA, seeking $1.6 billion. Wixen claimed that Spotify from its represented artists, which resulted in the artists and publishers not receiving royalties when customers streamed their work. Spotify and Wixen mutually agreed to in 2018. In 2020, two entertainment companies filed against Spotify and other streaming services for not receiving royalties for their streams. The issue of inadequate artist compensation is not unique to Spotify, but applies to all streaming services.

New Copyright Law: A Solution for Spotify

The relevant US copyright law is , which states that a person or entity seeking to distribute a musical work must first obtain a compulsory license. One can obtain a compulsory license by filing a notice of intention (“NOI”).�� In 2018, the US Congress passed a law called the (“MMA”), which seeks to alter the licensing system for the better and take charge of the compensation process. Title 1 of the MMA is especially relevant, as it establishes a for digital music providers. The blanket licensing system covers all musical works available for compulsory licensing, which means that streaming services will no longer need to file an NOI for each song or work. The MMA also established the Mechanical Licensing Collective (“MLC”), which administers the blanket licenses and more notably, maintains a containing information on the musical works and their copyright owners, if known. The law was set to .

Inadequate artist compensation may be partly explained by the difficulty of accurately identifying the rightsholders of each work, given the volume of music works. Digital service providers cannot locate the recipients of royalties. Lesser-known music artists are even more vulnerable to copyright infringements in this way. The MMA ideally solves this difficulty through the public database, which centralizes all information relating to musical works into one place. This provides parties like streaming services seeking compulsory licenses with a recognized source of rightsholders from which to draw. Additionally, the database validates artists’ possession over their works that will not be easily taken. If correctly implemented, the MMA can advance the collective goal of creating a digital music ecosystem where streaming services grow their platforms by legally acquiring distribution rights and artists, publishers, and record labels are rightfully compensated for their work. We may look to future copyright infringement cases to inform the �ѲѴ�’s effectiveness.

The post Could this music law help Spotify dodge future copyright infringement battles? appeared first on IPOsgoode.

Prof. David Vaver is a member of IP Osgoode's Advisory Board, an Intellectual Property Law Professor at Osgoode Hall Law School and an Emeritus Professor of IP & IT Law at the University of Oxford.

A version of this paper is scheduled to be published in the Intellectual Property Journal. Thanks to Ronald M. Lieberman, Christopher G. Moore, and Maxine Vaver for helpful comments on an earlier draft. They of course share no responsibility for what appears here.

Is there such a thing as “inducing” copyright infringement? There isn’t in the United Kingdom, but the Federal Court in Bell Canada v L3D Distributing Inc (INL3D) 2021 FC 832 (“L3D Distributing”) thought there was in Canada and the defendants had done it. Indeed, the court thought that inducing infringement, which to date had been considered wrong only in respect of patents, applied to all forms of intellectual property (“IP”).

In Compo Co Ltd v Blue Crest Music Inc [1980] 1 SCR 357, 372, the Supreme Court said that “[c]ourts in this technical field of copyright have found it prudent to make their judicial answers congruent with the legal issues raised in the pro­ceeding at hand leaving, so far as possible, analo­gies, examples and hypothetical questions to another day.” This caution applies particularly where the case is undefended, as L3D Distributing was, and the plaintiffs are asking the Court to make new law. Where a case would succeed on more familiar grounds, it is prudent simply to record the additional plea or treat it as raising a hypothetical question; for what may look rock solid when presented by one side often crumbles once the other side is put. As Justice Megarry said when repudiating a view he had expressed in his standard land law treatise, it is dangerous to reach a settled conclusion “without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case” (Cordell v Second Cranfield Properties Ltd [1969] Ch 9, 16, emphasis added). Audi alteram partem is, after all, prudence epitomised.

It thus seems best to treat the Federal Court’s views on inducement as an indication that the point was arguable, rather than necessarily sound, especially since such a holding was not strictly necessary. The defendants had been retailing pre-loaded set-top boxes that gave viewers unauthorized access to television broadcast and cable programming in which the plaintiffs owned or controlled the copyright. The Court unexceptionably found the defendants liable on three counts other than inducement: (a) making copyright-protected work available for telecommunication to the public; (b) authorizing such communication by telecommunication (both contrary to the Copyright Act RSC 1985, c C-42); and (c) selling equipment that decrypted cable transmissions (contrary to the Radiocommunication Act RSC 1985, c R-2) — none of which the plaintiffs authorized. Neither the inducement count nor the radio-communication count added anything material to counts (a) and (b): the Court thought the latter two counts themselves enough to sustain the grant of an injunction and a $30 million award of statutory and punitive damages and costs against the defendants.

So is the Court’s view, that inducing copyright or IP infringement is indeed a Thing, sound? I suggest not.

One must of course first start with the Copyright Act itself and deal with what the Supreme Court also said in Compo (above):

“Mr Hughes … put it very well when he said that copyright law is neither tort law nor property law in classifi­cation, but is statutory law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. … It does not assist the interpretive analysis to import tort concepts. The legislation speaks for itself…” ([1980] 1 SCR at 372-3).

So, if we take the Supreme Court literally, since the Act defines copyright infringement as doing “anything that by this Act only the copyright owner has the right to do” (s. 27(1)), and “inducement” is — unlike making available and authorization — not something only the copyright owner has the right to do, the inquiry should stop right there: inducement cannot be a Thing because the Act doesn’t say it is.

The trouble is that the Court’s statement in Compo, despite being parroted in countless copyright cases, cannot be taken literally; for in its very next paragraph, the Court approves decisions of the UK and US courts that hold authorization generally, and authorizing the making of sound recordings specifically, to be “separate torts” (the Court’s emphasis), if done without the copyright owner’s consent. So, according to the Court, the interpretation of the Copyright Act is not assisted by importing tort concepts into something the Court chooses to call a “tort.” The authority for this method of reasoning is presumably Justice Humpty Dumpty’s well-known dicta in Lewis Carroll’s Through the Looking Glass.

In fact, it is well settled that tort concepts of accessory liability — the civil law equivalent of aiding and abetting in criminal law — do apply to the Copyright Act, and indeed all IP Acts, even where the legislation is silent on the point. How else are corporations found vicariously liable for IP infringements committed by their employees? How else are directors held liable for any egregious conduct in connection with their company’s IP infringements? All legislation that creates a statutory tort or wrong is presumed to make accessories liable the way they are in tort, unless the legislation expressly or impliedly excludes such liability (Majrowski v Guy's & St Thomas' NHS Trust [2006] UKHL 34 at [16], [72], [74]). IP infringements are one such example of a statutory tort, as Compo and many other courts in Canada and elsewhere have long recognized. Accessories are considered themselves to infringe IP jointly and severally by participating in another’s infringement. They are thus subject to the full panoply of infringement remedies, subject to whatever is recovered from the primary infringer. The most common accessory is the joint tortfeasor or joint infringer, who is indeed specifically contemplated by the Copyright Act (see, e.g., sections 17(2) (right of remuneration), 38.1(1) (statutory damages), 44.07(4) (charges for border stoppage)).

Some academic writing argues for a wider tort principle of accessory liability: anyone who contributes knowingly and substantially to another’s infringement by helping, encouraging, or inducing them to infringe should be liable to the IP holder for the full panoply of monetary, injunctive, and other equitable remedies: see, e.g., Paul Davies, Accessory Liability (Oxford: Hart 2015), passim. US courts have gone this far (MGM Studios Inc v Grokster Ltd 545 US 913 (2005)) but the UK Supreme Court has not. Concerned to keep accessory liability within reasonable bounds, the Court has insisted on the additional requirement that the wrongdoing must be found to be joint before monetary remedies can be imposed on defendants. The combination of “active co-operation and commonality of intention” then helps avoid “constrict[ing others’] freedom to engage in activities which are otherwise lawful” (Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10 at [44], also [56] & [58]; similarly Google LLC v Defteros [2022] HCA 27 at [204], [212] (Aust HC) (defamation)). In other words, inducing copyright or other IP infringement is a Thing only if, additionally, a common design or intent between an inducer and inducee to do acts that amount to infringement is found to exist, so that they become joint infringers (CBS Songs Ltd v Amstrad Plc��[1988] RPC 567, 606-9 (HL)).

Joint infringement is a flexible enough concept to encompass even the financing of infringing activities, as occurred in the Sea Shepherd case (above). But flexibility can create uncertainty and division and much will depend on the view a judge takes of the facts of a case (Rutman v Rabinowitz 2018 ONCA 80 at [31]-[5]). Thus in Sea Shepherd, while agreeing on the legal principles of joint liability, the UK Supreme Court divided on their application. All accepted the presence of a common design between Sea Shepherd UK and its overseas parent organisation, Sea Shepherd Conservation Society (“SSCS”), under which the UK company supported SSCS in its attempts to stop bluefin tuna fishing in the Mediterranean. A majority of the Court, however, held that the UK company’s local fundraising efforts for SSCS’s activities were too insignificant to have induced the trespass that SSCS committed in attacking the boats that were hauling tuna to the plaintiff’s fish farm off Malta.

Joint liability is largely about finding someone worth suing for another entity’s sometimes more substantial wrongdoing — someone with the wherewithal to pay compensation or hand over any wrongfully made gains. That was what the fish farm or its insurers in Sea Shepherd were ultimately after. Sea Shepherd UK’s assets might not be enough to cover the plaintiff’s claimed losses and anyway it had not carried out the attack. The UK company could, however, be used as a way to get the English courts to take jurisdiction over the better-funded foreign-based SSCS and then hold both companies jointly and severally liable. The tactic would have succeeded had the UK company influenced SSCS’s activities more. The UK company would then have been a participant in a tort partly committed in England, even though the major wrongdoing occurred abroad. As it turned out, however, the finding of no joint tortfeasance meant that the plaintiff could not proceed against either defendant and had to find some other way or place to recoup its losses.

Behaviour that is not serious enough to rise to the level of joint infringement can nevertheless have consequences. The person may not have to pay money but they may have to adjust their conduct. Courts everywhere have proved willing to deal with intermediaries such as online marketplaces and search engines that facilitate or enable IP infringement while not technically being infringers or accessories. Thus, a British Columbian court issued an injunction against Google ordering it to de-index websites worldwide that offered specified IP-infringing goods, and was upheld on appeal (Google Inc v Equustek Solutions Inc [2017] 1 SCR 824). Google was no infringer or accessory but it at least owed the IP holder a duty to take reasonable steps to prevent such infringements on its platform as were brought to its attention. It was liable to pay money only if the injunction was ignored. ��

Canadian case law has not adopted a generalized tort principle of accessory liability beyond joint infringement. The IP cases reflect this by refusing to label as infringer anyone who merely helps, facilitates, or contributes to another’s infringement (e.g., Copeland-Chatterson Co v Hatton (1906) 10 Ex CR 224, 241, aff’d without appealing this point (1906) 37 SCR 651 (patent); Nycomed Canada Inc v Teva Canada Ltd 2012 FCA 195 at [3], aff’ing 2011 FC 1441 (patent); Prest-O-Lite Co v People's Gas Supply Co (1917) 16 Ex CR 386, 389, aff’d (1917) 55 SCR 540 (trademark)). Such a person may, however, owe IP holders a duty to take steps, where feasible, to prevent infringements IP holders bring to its notice, although without any monetary liability to them except where any injunction is disobeyed.

Whether Canadian IP policy should change tack and hold that inducement or contribution, without more, creates monetary liability — as well as the remaining panoply of remedies — for infringement is thus a decision more suited to legislative amendment than to a first instance court in an undefended case. Parliamentary drafters know how to extend such liability where that is intended, and IP rights are, after all, “derived from statute and not from the Ten Commandments” (CBS Songs, above, at 608).

There is, admittedly, one exception to this position, and it is what the Federal Court in L3D Distributing relied on. The Court’s predecessor, the Exchequer Court of Canada, held over a century ago that knowingly inducing�� infringement of a patent, without more, itself infringes the patent and subjects the inducer to the full range of infringement remedies, where the inducement works (Copeland-Chatterson, above, at 92). A line of Federal Court and Court of Appeal decisions since then has consolidated this position for patents (see, e.g., Corlac Inc v Weatherford Canada Inc 2011 FCA 228 at [162]ff; Western Oilfield Equipment Rentals Ltd v M-I LLC 2021 FCA 24 at [48]-[70]), eclipsing (until recently) pleas of joint infringement by common design (see now Rovi Guides Inc v Videotron Ltd 2022 FC 981 at [46]-[7]). These decisions on inducement are probably now beyond question, even though the Supreme Court has never examined the issue. Yet a major weakness runs through them: the key English patent case on which Copeland-Chatterson (above) relied, Innes v Short (1898) 15 RPC 449 (QB), is not treated in England as holding that inducement is itself wrongful. Rather, in line with the general law of torts, Innes v Short has been authoritatively interpreted there as holding that the inducement must be in furtherance of a common design, so that the inducer and the inducee are joint infringers (see CBS Songs, ��above at 606-7; similarly Sea Shepherd, above at [23]). Without the presence of a common design, Innes is otherwise a case of “somewhat doubtful authority” (Adhesive Dry Mounting Co Ltd v Trapp & Co (1910) 27 RPC 341, 353 (Ch); see too Re L’Air Liquide SA’s Patent App’n (1930) 49 RPC 428, 430; Firth Industries Ltd v Polyglas Engineering Pty Ltd [1975] HCA 25 at [16] (Aust HC); CCOM Pty Ltd v Jiejing Pty Ltd (No 2)�� at [153], aff’d [1994] FCA 1168 (Aust Full Fed Ct)), even though the judge there decided to award only an injunction but no monetary remedy against the infringer.

The Federal Court in L3D Distributing went into none of this. It simply applied the syllogism that what held for Canadian patent law held for copyright and indeed all Canadian IP. Inducing infringement was therefore, without more, wrongful (L3D Distributing at [71]-[4]). This conclusion, however, rests on shaky ground. Since inducement liability is not found in the Copyright Act, the first question must be whether the Act includes it by implication. That in turn depends on the answers to two further questions: Is inducement a general principle of accessory liability in tort? If so, is its inclusion consistent with the Act?

The most likely answer to both these questions is, no. Since inducement is not a general tort law principle in Canadian law, it is a large leap to add it as such to copyright law, or indeed any non-patent IP. The patent law anomaly need not infect other IP. And even if inducement were such a general principle, its inclusion seems inconsistent with the Copyright Act. Section 27 sets out in some detail who infringes what copyright and when. No room seems left for another form of infringement, even more so because someone who induces infringement necessarily “sanctions, approves, and countenances” it and thus falls within the ������’s authorization right (SOCAN v Entertainment Software Ass’n 2022 SCC 30 at [104]). Authorization indeed elevates inducement to primary rather than accessory liability: authorization is complete whether or not any later infringement occurs (SOCAN, ibid at [104]-[5], [107]). The greater liability (authorization) must thus encompass the lesser (inducement).

The undefended nature of the case before the Federal Court highlights further concerns with its conclusions. First, on copyright: (i) inducement liability is found in no other Canadian copyright decision in the century since the Copyright Act was enacted; and (ii) the Court took no account of the unanimous contrary holding of the UK’s highest court on comparable copyright provisions, that inducement is only a form of joint infringement (CBS Songs, above, at 608-9, foll’d as a general tort principle in Southpaw Credit Opportunity Master Fund LP v Asian Coast Development (Canada) Ltd 2013 BCSC 187 at [200], [205]).

Second, on non-patent IP generally: (i) the Court’s comments here were clearly obiter; (ii) the Court did not consider the contrary views proffered in the leading UK decision, that inducement as a form of joint infringement applies to all IP (Sea Shepherd, above at [44], [56], [58]); (iii) the only non-copyright authority the Court cited (Hanson Int’l Inc v Whirley Industries Inc 2002 FCT 1045) was an industrial design case where a prothonotary’s refusal to strike an assertion of inducement before trial as being unarguable is clearly no authority that such an assertion would succeed; (iv) the Court’s statement that inducement is a “common law cause” that is “[i]n addition to the statutory causes of action” (L3D Distributing, above at [71]) is an odd comment for a court that lacks jurisdiction over any “common law cause;” (v) inducement is anyway not a “common law cause” (McCain Foods Ltd v J R Simplot Co 2021 FCA 4 at [62] (“not a distinct tort”)), but at best only a form of accessory liability.

Had joint copyright infringement been properly pleaded in L3D Distributing, the defendants would likely have been found to be joint infringers with their consumers. The necessary common design or intent between inducer and inducee need not be express. A tacit agreement, inferable from the circumstances of even an undefended case, suffices. Thus UK courts have found joint infringement based on a common design or intent where (i) the inducer was a peer-to-peer file-sharing operation or an app using BitTorrent or some other means of circumventing encrypted or password-protected content, and (ii) the targets were users or hosting websites that were induced or persuaded to stream, download or make infringing content available in furtherance of the common design (Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 at [82]-[3] (Ch) (Pirate Bay); Twentieth Century Fox Film Corp v Sky UK Ltd [2015] EWHC 1082 at [51]-[6] (Ch) (app using BitTorrent protocol); Young Turks Recordings Ltd v British Telecommunications Plc [2021] EWHC 410 at [68]-[71] (Ch) (“stream ripping” app). Since a finding of joint infringement is both “fact sensitive and policy-driven” (Barclay-Watt v Alpha Panareti Public Ltd [2022] EWCA Civ 1169 at [62]), it is no great leap in L3D Distributing to infer not only inducement but also a common design to infringe copyright between the sellers and buyers of the equipment. Everyone intended that it be used to access programming which all knew was lawfully available only through other services authorized by the copyright owners of the programming. All roads can lead to Rome, provided one avoids the ditches.

The post “Inducing” Copyright Infringement in Canada: Is it a Thing? appeared first on IPOsgoode.

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

On April 20, 2022, China released a first-of-its-kind on a dispute over the alleged infringement of a non-fungible token (“NFT”) published on a trading platform.

The dispute arises from a copyrighted image known as “,” a cartoon depiction of a tiger receiving a vaccination. A third party released the image as an NFT and published it on the defendant’s NFT trading platform. The NFT image even has the original author’s watermark in the lower right corner. The official licensee of the image the trading platform for failing to protect its right of dissemination under copyright principles. It argued that the defendant, as the operator of a professional NFT platform, should conduct a preliminary review on the copyright of the NFT works published on its platform. The defendant, on the other hand, argued that its obligation was only to review the notification and delete suspicious works accordingly.

Like most jurisdictions in the world, China has yet to publish laws that deal with the trading of NFTs. Moreover, the NFT market in China is unique because the government is firmly opposed to cryptocurrency and has issued a regulatory document () in September 2021 to restrict its circulation in China. As a result, NFTs in China are digital commodities traded in traditional fiat currency. Examples of Chinese NFT markets include NFT China, Huanhe, and Jingtan. E-commerce platforms in the past, according to the , are not liable for copyright infringement unless they know or should know that the linked items are infringing copyright.

The court found the trading platform in this case liable for infringing the licensee’s right of transmission over an information network. The court also ordered the defendant to delete the infringing NFT works and compensate the licensee 4,000 RMB (about USD$600). Although the fine is nominal, it is a significant decision that requires NFT trading platforms to shoulder a greater duty of care to protect the copyrights of published works.

With the case as an important step, the Chinese legal system for online trading platforms is developing with greater emphasis in favor of copyright holders. With the power Chinese courts wield over China-based defendants, the lower litigation costs in China, as well as the relative ease of obtaining certain injunctive relief, China may become for multinational companies to enforce their copyrights.

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Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

Known for its cheap and trendy clothes, Chinese fast-fashion retailer Shein has seen great success over the past several years. Its low prices are typically attributed to its frequent and large-scale productions, but another reason for such low pricess may be intellectual property theft. Recently, . Artist Magdalena Mollman, also known professionally as Maggie Stephenson, filed a lawsuit in the U.S. District Court, Central District of California, on June 15 suing Shein for over $100 million in damages for unauthorized reproductions of her artwork “One is good, more is better.”

Mollman versus Shein

In 2019, with the U.S. Copyright Office and included Copyright Management Information (CMI) on her artwork. To obtain intellectual property protection, is common, as it allows for one to bring a lawsuit for infringement of a U.S. work, while also allowing for one to have their copyright on the public record and a certificate of registration. However, by also including on her work, Mollman acquired further IP protection for her artwork, as CMI is information about a copyrighted work, such as the terms and conditions for use of the work, the owner’s name, and the name of the work.

With copyright protections in place for Mollman’s art, she was able to control who produced replicates and sold her work. This including , such as Sephora, Urban Outfitters, and Elle Magazine to sell prints of art at differing prices, with the lowest price being $19. However, Mollman had not authorized Shein to sell prints of her artwork. Despite the lack of authorization, from 2019 to 2021, for as low as $4 per print, and with intentional removal of Mollman’s CMI, including her name and signature. Additionally, Shein reportedly added false CMI by featuring their own brand and logo in their reproduction of Mollman’s artwork which implied that Shein is the rightful author and copyright owner. As a result, for copyright infringement, vicarious and/or contributory copyright infringement, removal of copyright management information, and false copyright management information.

Intellectual Property Theft is Common for Shein

This lawsuit is simply the latest that Shein has faced since rising to popularity. Shein has a long history of being sued for IP infringement — a source even claimed that Shein’s parent company, Zoetop Business Co., has been named a defendant in at least 50 federal lawsuits in the U.S. for IP infringement. to steal their designs, and in doing so, was able to keep product prices low by spending very little on designing their products. Additionally, these smaller businesses would be less likely to bring an action due to a lack of financial resources. when Tiina Menzel, a German-based artist, discovered that Shein had been selling products with her art, she was unable to bring a lawsuit due to costs.

Interestingly, Shein has also been known to steal IP from larger businesses too, such as Dr. Marten, Levi Strauss, and Ralph Lauren. , streetwear brand Stussy Inc. sued Shein for copyright infringement, claiming that Shein was selling products using Stussy’s logo without authorization.

Fast-Fashion Drives Intellectual Property Theft

Shein’s latest lawsuit highlights the ongoing issue of IP theft in the fashion industry. IP from smaller companies/artists is frequently exploited by large fast-fashion companies, allowing them to mass-produce trendy products at a low cost, without consequence, for smaller artists typically lack the resources to legally battle large fast-fashion companies. ��T . There must, then, be alternative legal solutions to protect small businesses from intellectual property theft, such as a sort of government-funded civil legal system. Without an adequate solution, Shein and other fast-fashion companies can continue to exploit small businesses with few consequences.

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

Wait until Lady Whistledown gets her hands on this juicy gossip! The Netflix Original series,��“Bridgerton” attained notable popularity after its release last year. Based on the romance novel series by Julia Quinn, the show centers around the Bridgerton family members’ search for true love. Fans expressed their love for the show various ways on social media. However, one musical duo exceeded the fan-generated content standards. In September 2021, songwriters and (or ) went viral on TikTok for their self-composed Bridgerton songs. They later released a 15-song album based on the show’s characters and storylines, entitled “The Unofficial Bridgerton Musical.” This year, their album won a Grammy for “Best Musical Theatre Album，” making it the first album to win the award for music created on TikTok. Netflix’s official TikTok account even praised the album , “Absolutely blown away by the Bridgerton musical playing out on TikTok [.] Standing ovation for @abigailbarlow…”.

Unfortunately, Netflix’s applause ended after the Grammy-award premiered the live performance of the Unofficial Bridgerton Musical at the Kennedy Centre in Washington D.C. Netflix is now suing Bear and Barlow for stealing “” to build their global brand. The song writing duo seemed to have crossed the line when they began profiting off the Bridgerton brand. Netflix argued that this is a direct violation of , which provides that only copyright holders have the exclusive right to monetize and create derivative works of their IP. Netflix claimed that the defendants declined their before the live performance and proceeded without authorization.

Netflix also took issue with the use of the “Bridgerton” name, as it risks consumers believing that the live performance is associated with the official brand. The concert particularly threatened the success of Netflix’s own live event “The ,” a multi-city event that transports fans into a regency-era ball, as depicted in the show. Since one of the event locations is in Washington D.C (where the defendants’ concert occurred), Netflix believes fans may choose one over the other.

It was obvious that Bear and Barlow invested time and resources into perfecting their work. ��Of course, it is disheartening to see a small business be victim to a legal action by a global company like Netflix. However, the defendants acted without considering Netflix’s intellectual property rights. The show’s executive producer, denounced Bear and Barlow’s financial exploitation of the brand in a recent public statement. Rhimes acknowledged the efforts of the countless individuals who contributed to Bridgeton’s production, including author Julia Quinn. While this case may seem like a “David vs Goliath” situation, intellectual property rights function to protect original creators. With the increased prevalence of content creation on social media , it is important for creators to be aware of these IP laws. As catchy and creative as Bear and Barlow’s album is， they will likely not be able to continue to benefit from Netflix’s creative work.

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

If you have ever incorporated music into your Instagram or Facebook videos, you may have committed copyright infringement. But don’t worry, you won’t need to get a lawyer! On July 20^th, 2022, Meta Platforms Inc. (“Meta”) was hit with a $142 million lawsuit. The suit was filed in California Northern District Court by Swedish music label and publishing company, . They claimed that Meta, on its social media platforms, has stolen hundreds of their content. In the , they argued that Meta violated the US for direct, induced, and contributory copyright infringement.

Who is Epidemic Sound?

Influencer culture and, by extension, content creation on social media, has become increasingly prevalent in recent years. In the past, content creators have had issues incorporating music into their posts due to . YouTube, especially, has been known to enforce copyright law by either muting or taking down infringing content. solves this problem by offering music licenses to creators who publish on platforms like Facebook, Instagram, Twitch, TikTok and YouTube. For a $15 USD per-month subscription, users receive a license to use material from a catalogue of 125,000 sounds and songs. Epidemic holds the copyright to the content in their catalogues and offers their licensees (subscribers) guaranteed protection from copyright infringement claims. However, they that only subscribers are authorized to use their content. This is where Meta is implicated.

The Infringement

This action is primarily about Instagram’s “Reel Remix” and “Original Audio” features, which Epidemic claimed encourages and enables users to commit copyright infringement. The allows users to incorporate their own videos into existing reels. It is similar to TikTok’s Duet feature which simultaneously plays user’s videos on a split screen. The ““ feature also allows users to extract the music from existing video posts and include it in their own content. However, users who upload with these features usually do not have license to use the music in the original video which they extracted the music from. Even if the original video creator acquired their music through their Epidemic subscription, unsubscribed third parties essentially use Epidemic’s content without authorization. Epidemic’s suit also argued that Meta, itself, engages in copyright infringement by storing, reproducing, and distributing their content on Instagram’s Music Library. When users select songs for their posts, Meta makes a copy and transfers it to the user in violation of Epidemic’s exclusive reproduction and distribution rights. ��Epidemic predicts that there are currently over 80,000 infringing videos circulating daily on Instagram and Facebook.

Epidemic also mentioned that they Meta about this issue, but Meta has refused to provide them with compensation or the to identify and protect their works. The claimed statutory damages for this action are quite significant, but under , parties are entitled to $150,000 per infringement. Since Epidemic owns the copyright to the sound recording and musical composition of the 950 songs it suspects are on Meta platforms, the price will be high. It is interesting that Meta has not taken precautions against such expensive litigation. Meta has not yet responded to the lawsuit, so we will have to wait to see how this case unfolds.

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