Tanzim Rashid is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

Taylor Swift’s dispute with Big Machine Records shines a spotlight on the legal and business considerations artists should keep in mind when making decisions about how to manage their catalogue.��

Sparks Fly

In , Ithaca Holdings acquired Big Machine Records for an estimated $300 million, including the master recordings for one of the most popular and successful musicians in the world:��Taylor Swift. Swift, in being denied an opportunity to bid for her masters, in late 2020 that she would re-record her entire pre-2019 catalogue in order to regain control of her music and limit the profitability of Ithaca’s asset. Over the next year, Swift released re-recorded versions of both her Fearless (2008) and Red (2012) albums, receiving widespread commercial and critical success.

Look What You Made Me Do

At the heart of Taylor’s decision was an often overlooked but significant legal distinction in the copyright law governing the music industry. All music can be subdivided into categories of copyright: lyrical, compositional, and sound.��The former (‘recording rights’) are generally retained by an artist, while the (‘master rights’) – as part of a record contract signed by musicians in the formative stages of their career – is owned by the record company (including prohibitions on re-recordings for a set number of years) with certain vetoes the artist can assert with respect to how they are licensed.��Swift, in deciding to re-record her albums, ensured that her new (Taylor’s) versions gave her all three types of intellectual property right over her catalogue, guaranteeing full ownership.

While many artists both past and present have record contracts that follow this same structure (and provide for a legal avenue by which to circumvent the record company’s ownership of the master recordings), it was Swift, at the height of her popularity, who decided to invest the time, energy, and cash in order to take advantage of this technicality. These circumstances are noteworthy: artists in similar positions to Swift often either lack the time, the financial resources, or the industry power to pull off a move like this. It is in Swift’s confidence in her fans adopting the newer versions of her recordings, and thus giving effect to the technicality she is leveraging, that her decision was made and her temporal and financial investment was put forward.

Everything Has Changed

Shamrock Investments, who acquired Swift’s master recordings from Ithaca in 2020, are in an increasingly tenuous position: Swift has them from licensing to ad agencies, films, and tv shows, and where they do license, Swift receives royalties in those cases. On top of all that, their investment in the original recordings depreciates in value every time Swift releases another one of her re-recordings or a company licenses them instead of the originals.

Major players in the music industry (including Swift’s own Universal Music Group) have responded in light of Taylor’s shrewd business moves, doubling or tripling the length of re-recording prohibitions in their most recently signed record .��Artists are now for up to ten years after commercial release before re-recording their music, which also happens to be the period when their works are at their highest monetization potential. The music industry is now acutely aware of how digital streaming platforms provide artists with a never-before-seen ability to sidestep large traditional record companies when attempting to publish their re-recordings, creating a much-heightened potential for Swift’s precedent setting move to be seized upon by other successful artists looking to take back control of their creative output. From a legal perspective, Swift’s ability to resolve this dispute without reliance on costly, time intensive litigation or a protracted negotiations process has also put the music industry on notice, including their in-house counsel, who will be much more meticulous in drafting new agreements to best protect their company’s investment.

End Game

Looking to the future, it appears that beyond her personal dispute with the owners of her original masters, Swift is looking to inaugurate a major shift in the music industry at large, relocating bargaining power to artists from record companies. However, in capitalizing on the legal technicality available hitherto her dispute, with the unique power she wields in the industry, it may be the case that Swift’s maneuver may end up disempowering less powerful artists, who will now face stricter terms on their freshman record deals and an army of legal counsel prepared to respond to strategies similar to those deployed by Swift. As record companies fortify their defences, most upcoming artists may not be in a position to fight back against The Man.

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

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Pankhuri Malik is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School

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On February 24, 2022, the Supreme Court of the United States (“SCOTUS”) decided . They held that an inadvertent mistake of law in a copyright registration application does not automatically nullify the application.��

Unicolors, Inc., a fabric and design company in Los Angeles, owns copyrights in various fabric designs. It sued H&M for copyright infringement, claiming that H&M used their copyright-protected designs in its clothes. As a defense, H&M argued that Unicolors’ application did not satisfy the “” requirement, which provides that a single application cannot cover multiple works that were not first made publicly available as a singular, bundled collection. Despite this mistake, the District Court ruled that Unicolors’ copyright registrations remain valid because Unicolor was unaware of the requirement when it submitted its application. Consequently, Unicolors’ copyright registrations are protected by the safe harbour provision of the Registration and Civil Infringement Actions, which states that inaccuracies are permitted so long as they were unknown. On appeal, the overturned the decision. It ruled that the safe harbour provision did not apply in this case because it only protects good-faith mistakes of fact, not law.

In a 6-3 decision, the U.S. Supreme Court agreed with the Ninth Circuit’s decision that Unicolor’s mistake in the registration was a mistake of law. However, applying the safe harbour provision depends on the applicant’s “actual, subjective awareness of both the facts and the law [page 6].” It can therefore excuse innocent mistakes of both facts and law.

SCOTUS considered the following factors while rendering its decision:

1. Intent to Defraud: The Ninth Circuit said that the applicant does not require intent to defraud as long as it knowingly made any inaccurate representations. On a textual reading of the provision, this appears to be correct. However, SCOTUS found that “knowledge” historically does not differentiate between law or fact. Nothing in § 411(b)(1)(A) indicates that constructive knowledge would be sufficient to invalidate the registration instead of actual knowledge of wrongdoing.
2. Holistic Reading of the Statute: To corroborate its above conclusions, the Court also relied on other provisions of the Act to state that the statute does not intend to forgive applicants without legal backgrounds for mistakes of fact, while continuing to penalise them for mistakes of law.
3. Legislative Intent: The Court also opined that § 411(b) was enacted to eliminate exploitative loopholes that prevented copyright holders from enforcing their otherwise valid rights merely due to procedural irregularities.

Looking ahead, the Supreme Court’s decision strongly protects copyright applicants and holders. It requires that alleged copyright infringers prove “willful blindness” on the part of the registration owner to nullify a registration based on inaccuracies. Such high standard was meant to protect copyright owners, especially those unrepresented by legal counsels, from the excessively formal and sometimes “esoteric”—in the Court’s words—U.S. copyright registration processes. The Ninth Circuit’s judgement appears to be the exact outcome that § 411(b) seeks to eliminate.

On the other hand, there are concerns about increasing s and misuse as a result of the stringent test for nullification. Invalidating all inaccurately registered copyrights can protect the public from entities which hold large numbers of copyright for the purpose of making frivolous infringement lawsuits. A that more than 50% of copyright cases filed in the states between 2014 to 2016 were against John Doe defendants. However, in this case, H&M’s arguments regarding the practice appeared to be an attempt to escape liability by using policy concerns.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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The Rise of Traditional Face Tattoos in Popular Culture��

In September 2021, Indigenous model and activist Quannah Chasinghorse wearing a gold cut-out gown by Peter Dundas and traditional Navajo turquoise jewelry. She was also recognized for her traditional Hän Gwich’in face tattoos, featured prominently on her chin and extending out from the corners of her eyes. Chasinghorse stated that the hand-poked lines, called Yidįįłtoo, . Her presence was a watershed moment for Indigenous representation at the Met Gala.

However, this moment was quickly met with disappointment after stepped out on the red carpet a month later for the world premiere of her new movie Eternals. In addition to her dress by Balmain, Jolie was adorned with a “” which has since caused some turmoil amongst Indigenous peoples. Amongst others, Inuk throat singer Tanya Tagaq was quick to note the similarities between Jolie’s chin cuff and (traditional Inuit tattoos), much like the one Chasinghorse is now known for. Tagaq noted, “”

These events point to two prevalent issues within the current legal framework: First, that current intellectual property laws do not properly acknowledge collective ownership over shared culture within Indigenous communities and second, whether tattoo designs have the potential to be protected through copyright laws.

Other Examples of Indigenous Cultural Appropriation in Canada

In 2009, the Hudson’s Bay Company (HBC) mass-produced sweaters as part of their official merchandise for the 2010 Vancouver Olympics. Much like the case of Jolie,, as the Cowichan Tribes of Vancouver Island alleged the sweater designs had been appropriated from one of their traditional designs. The Cowichan filed a lawsuit against the HBC, and that the handcrafted authentic sweaters would be sold exclusively in the downtown Vancouver First Nations Pavilion and the Bay's flagship store during the Olympics. In 2015, the Cowichan Tribes were faced with the issue yet again when Ralph Lauren launched their own line of Cowichan sweaters. Charles Seymour, Chief of Cowichan Tribes, stated that . They appear to have come to an undisclosed agreement with Ralph Lauren changing the name of their sweater to . The Cowichan could have had a stronger claim against Ralph Lauren, given that they had already turned their minds to protecting their intellectual property through trademark law. In 1995, the Cowichan Band Council with the Canadian Intellectual Property Office to register the word “Cowichan”. .

Collective Ownership Over Cultural Artwork

Canadian courts have not yet grappled with the issue of collective ownership of Indigenous artwork. The Federal Court of Australia explored this notion in . The applicant, Indigenous artist John Bulun Bulun, sought relief for copyright infringement of a bark painting, which R & T Textiles had used on t-shirts. The painting breathed life into a traditional story that the Bulun community has been passed down for generations. R & T Textiles admitted they infringed Bulun Bulun’s work but pleaded ignorance and pulled the shirts from their shelves. The court was tasked with determining whether the painting’s copyright belonged solely to John Bulun Bulun, or if the community collectively owned the copyright given that the ancestral teaching was shared amongst the community. The court was mostly silent on the issue of collective ownership, recognizing Bulun Bulun as the legal title holder. However, the court concluded the situation gave rise to unique fiduciary obligations that Bulun Bulun owed to his community.

The World Intellectual Property Organization also acknowledged collective ownership as a potential method to protect Indigenous knowledge. In a 1999 , a proposed solution was to identify a community Elder who recorded the knowledge to prove the source of ownership and then assign the intellectual property right in the name of the community. The paper noted that this solution would be particularly helpful in situations where oral history is the most identifiable source of ownership.

Current State of the Law on Tattoo Designs

It is likely that tattoos would fall under the under section 5(1), which delineates artistic works as expressions through visual medium. Tattoos are arguably expressions through visual medium. Of note, in., the Federal Court ruled that legal protection of works is not restricted based on the medium in which it is presented.

Canada has never ruled on an issue of copyright ownership over tattoos; however, Canadian courts may look internationally to assist them in determining how or if they should be protected. In 2009, the Belgian Court of Appeal was tasked with deciding whether a tattoo could be granted ownership under Belgian copyright law in . The court ruled that the tattoo artist did in fact own the copyright in his tattoo design; however, he was limited by the personality rights of the person he tattooed. Notably, Belgian copyright law includes a , which includes the right to control your image. The Canadian does not include such a provision (but Canada does have the common law tort of '). The United States has also ruled on the issue. In , Inc., a tattoo artist sued Take-Two, a video game producer, for copying tattoos the artist had inked on a World Wrestling Entertainment (WWE) wrestler. However, the wrestler had licensed their likeness to WWE, who in turn licensed it to Take-Two. The court held that the tattoo artist holds valid copyrights for the tattoos, and that there is no implied license from the tattoo artist to use their tattoos as part of the bearer’s likeness.

Going Forward

The concept of collective intellectual property rights as a means of protecting cultural artwork and stories is in its infancy, but should be explored. If traditional Inuit tattoos are ever used for commercial gain in Canada, a particular Inuit community could seek relief from the Federal Court. It is presently unclear if the court would recognize collective ownership over copyright.

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Tianchu��Gao is an��IPilogue��Writer and a 1L JD Candidate at��Osgoode��Hall Law School.��

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The decade-long dispute between Google and Oracle over computer code’s copyrightability finally came to an end on April 5, 2021. It started out in 2010 when Oracle sued Google for copying the ��of��Java, a programming language developed and licensed by Sun Microsystems��and��later��acquired by Oracle, in��Google’s��development of��the����operating system. The fight between the two tech giants, with��billions of��dollars at stake,��attracted��significant����and��.��Many��academics, businesses,��and computer professionals����for��Google before the case was heard at the��U.S.��Supreme Court��on��October 7, 2020.��The����bears great weight in shaping the development of the IT industry and��U.S.��copyright law. It is arguably, as Stanford law professor Mark Lemley coined it, “”����

The case��meandered��through��constant reversals of judicial judgements.��It is composed of two phases centering on two legal issues that were trialed separately—the��copyrightability of APIs��and��the��.��In the first phase, the�� that Oracle’s APIs functioned somewhat like a “system or method of operation” which could be implemented in various ways and, on the facts of the case, Google’s use of them was permitted under the��Copyright Act.��The����and claimed that��“the overall��structure of Oracle's API packages is creative, original, and��‘resembles a taxonomy’.”��It also��ordered��a second��trial��to determine��whether Google’s use of Java��API��was��acceptable under the fair use��doctrine. In��the��, the jury voted��in��favour��of��non-infringement��on the ground that��Google’s use��was��fair.��Oracle appealed successfully. The�� that Google’s use of Java API is a non-transformative use, with transformativeness being a requirement for finding fair use, and that it has profited commercially from Android. As expected, Google was unhappy with the outcome and appealed again. ��

Finally, with the support of��s from the Solicitor General of the United States and numerous other professionals,��the Supreme Court��made a�� that is more in tune with the context of programming and the IT industry. The majority opinion held that, although API is copyrightable, Google’s use of Java API is within the bounds of fair use. It highlighted the distinction between declaring code and implementing code—the former proposes a hypothetical function that serves a particular objective, and the latter is the actual realization of that hypothesis. According to the Supreme Court, Java API is essentially a set of declaring code that resolves general task division and organization. It enables programmers to “ The very creativity that contributes to technological breakthroughs lies in implementation rather than merely declaring code. It is in Google’s interest to use Java APIs, rather than developing its own, because programmers have already invested time and effort to learn them. Google wanted to attract as many programmers as possible to develop smartphone apps on Android, thereby furthering copyright’s creativity objectives. In addition, Breyer J. ruled that Google’s use is “minimal,” about 0.4 percent of the total Java source code, and it does not diminish Java’s marketability since Android is used in different platforms (i.e., smartphones).����

While��some��are����about the chilling effect��that��the decision��may have on programming innovations,��professionals have�� it. It accords with the�� that programmers rely on to pursue innovations. It also marks an important accommodation made in copyright law to face the new challenges posed by the booming IT industry.����

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The original Lynn Goldsmith photograph (left) and Andy Warhol's Prince portrait (right), as reproduced in court documents. Photo Credit:

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

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On March 26, 2021, the found that the famed artist Andy Warhol violated photographer Lynn Goldsmith’s copyright by using her photo of the singer Prince to create his “Prince Series.” The series was originally commissioned by Vanity Fair after it bought the license of the photo portrait from Goldsmith. until Tribute magazine featured the image, without crediting her, when Prince passed away in 2016.

The legal question at the center of the dispute is whether Warhol’s series is of Goldsmith’s original photograph. A permissible derivative creation, or fair use, requires transformative changes made to the original. The that Warhol’s works were fair because they transformed a “vulnerable, uncomfortable person” in Goldsmith’s original photograph into “an iconic, larger-than-life figure.” Judge Gerald Lynch overturned this analysis in the appellate court, claiming that Warhol’s changes—including shallower depth, brighter hues, and larger size—were mere visual flourishes. “It does not follow…that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative,” .

This is not the first time Andy Warhol was sued for IP infringement. In fact, nearly all creations by Andy Warhol are derivatives of existing images—celebrity photos, advertisements, magazine illustrations, etc.—to the extent where one could argue that the essence of Warhol’s art is . As a pioneer of , Warhol was one of the first artists to appropriate low-brow commercial imagery to challenge the notion of art as the products of geniuses’ inspirations. Following Warhol’s footsteps, artists in the pop art movement, as a form of cultural critique, deliberately mimicked machines and performed mechanic labor in their creations. In this sense, the originality of Andy Warhol’s art largely lies in the concept of appropriation, rather than any aesthetic quality. Yet, this conceptual innovation is not part of the legal test for the transformative nature of visual art.

The appellate court’s decision partly considered Goldsmith’s weakened ability to license and profit from her work used by the Warhol series. As one of the world’s most commercially successful artists, Andy Warhol had amassed tremendous fortune by making simple and repetitive changes to existing images created by other less-known artists. A great imbalance in power and wealth exists between the two parties in this case. On the other hand, Warhol’s great commercial success was the choice of the market. After all, Vanity Fair commissioned an Andy Warhol print, his signature silkscreen, instead of a creative portrait of Prince.

The Warhol Foundation plans to appeal the ruling, according to an The implication of the result will be far-reaching. If Goldsmith wins, the Warhol Foundation will probably face floods of litigations after years of diligent copying and printing by Warhol. The decision may even change the practice of many contemporary artists.��

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Tugce Kucukali is an IPilogue Writer and incoming LL.M. Candidate at University of British Columbia.

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On 19 April 2019, and adopted . June 7, 2021 was the deadline for the member states to enact their national laws in accordance with the Directive. On June 7th, through efforts by some member states, in particular Poland, an annulment action was commenced claiming that Article 17(4) of the Directive violated freedom of expression (). The Directive was also not received positively by the European Union.

According to EU law, “directives” provide more flexibility to the member states than “regulations” because member states base their own national laws on directives. The European Parliament and Council’s decision to adopt directives on copyright law, as opposed to regulations, is consistent with the dynamic character of copyright law. Although the legal text provides legislative freedom to the member states, the Directive has been heavily criticized.

Articles 3 and 4 of the Directive, introduce text and data mining as a new copyright law exception. Article 15 sets forth the rights of the press , and Articles 18-22 regulate the rights of content creators.

The Highly-Debated Article 17

Article 17 places more burdens on online content sharing service providers than the current EU copyright law does. The E-Commerce Directive is at the core of current debates. Although the given definitions restrict the Directive’s scope, its proposed content monitoring obligations are stricter than those currently in place.

Service providers should put their “best efforts” to not only license the content shared on their websites, but also prevent the reuploading of content banned by notice and takedown procedures. Even though national laws require due diligence obligations of diverse scopes, each nation’s laws and practice will ascertain the meaning of the “best efforts”.

Article 17’s copyright exceptions are also problematic. CJEU case law has designated criteria for several exceptions; however, the criteria have no clear and decided definitions. Indeed, the CJEU needs time to set forth requirements. Member States may interpret the Directive in accordance with CJEU case law to some extent while transposing it into their own national laws. Service providers must also monitor content on a case-by-case basis to determine whether it meets the exceptions criteria.

The major concern about the Directive is the overly strict banning of content service providers due to the strict obligations placed on them. When considering the scope of the service provided by intermediaries, unfortunately, such cautious approach will not be limited to the EU. One of the main goals of copyright law is to protect freedom of expression and promote creativity. The proposed means can hardly achieve these goals. Consequently, the European Commission has tried to eliminate certain ambiguities by publishing the .

What the Member States Have Done

While for further administrative implementations, the Netherlands and Hungary . Germany, Austria, and Finland each have their draft texts. France into the . However the debate around Article 17 continues. Most member states’ texts have been criticized for their word-for-word adhesion to the Directive.

On July 15, the Advocate General’s opinion will be published on the annulment action initiated by Poland. Following the Commission Guidance, the opinion will provide more certainty regarding Article 17 and instruct each member state as distinct from national draft laws. While the CJEU is coping with the work overload caused by copyright cases, the case initiated by Poland surely will not be the last case to discuss the Directive. More troublesome instances of the Directive’s implementation are likely ahead of us.

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The panel featured Professor Giuseppina D’Agostino as moderator, who is a Professor at Osgoode Hall Law School and founder and director of , the Intellectual Property Law and Technology Program at the school. From the(SOCAN), Janet Chong was the second speaker, representing Legal Counsel at Canada’s largest collective managing music rights. Jason J. Kee also spoke from the perspective of Government Affairs and Public Policy Counsel of Google Canada, and from Rogers Communications, Kristina Milbourn gave her legal views as the Director of Copyright & Broadband. Erin Finlay also shared some thoughts on the issues as a Partner with the firm Stohn Hay Cafazzo Dembroski Richmond LLP, specializing in the areas of entertainment law, copyright, privacy, and broadcast regulatory and cultural policy.

The discussion began with Professor D’Agostino summarizing the broad background of the balance principle that has defined the copyright legal landscape since its debut in 2002. Professor D’Agostino noted the concept as nothing new, spanning previous centuries of legal debate between stakeholders of the rights of authorship and reproduction of creative works internationally. After Theberge, the principle continued its influence throughout many more Supreme Court cases that Professor D’Agostino highlighted, including , , , all the way up to as recently as this year with . in 2019.

Ms. Chong followed with the perspective from SOCAN, a major Canadian music collective that cooperates with hundreds of thousands of music creators and businesses worldwide. She mentions the presence of SOCAN in Canada’s most influential IP cases within the past two decades, including three that were within the pentalogy of Supreme Court copyright cases of 2012. In terms of SOCAN’s position on the copyright balance in practice, Binnie’s principle is not much of an influence on her general work of advocating for fair rates and royalties for creators, and providing the end users with music services. But in terms of policy, the balance principle does shape the discourse in strengthening SOCAN’s lobbying efforts.

Erin Finlay provided her interpretation of the balance principle that she claims has lost its vigour over recent years. She emphasized the public interest as a balance of three factors, rather than it being misinterpreted as polarized between creator and user. There is a public interest in three things, claims Finlay: encouraging creation and encouraging dissemination of creative works, and obtaining a just reward for creative works. In her business, the principles “fair dealing” and “substantial part”, historic in our copyright law, are almost never relied on when the industry is creating entertainment products. She claims, instead, that the majority of her work is about collective bargaining, negotiations on copyright ownership, and rates licensing, all of which seeks the balance between creator, producer, and end user.

Kristina Milbourn then discussed how a company like Rogers Communications thinks about the concept of balance in our copyright law through its many branches. She notes that a massive corporation like Rogers shouldn’t be considered as a monolith when considering balance principles of our copyright law. Rather, as a parent company to a series of businesses, sometimes the interests align, and sometimes they don’t. This would mean that considerations of �ճ����������’s principles would vary from the perspective of managing Television stations, to Internet services, to Broadcast Distribution Undertakings (BDUs), and depends on their interests at the time, which may or may not conflict.

Google Canada shared its views on the policy side through Jason Kee as counsel of government affairs. From a global perspective, Kee notes that Theberge is not dissimilar to international norms, and the interpretation of a polarized balance is also missing the mark, as Finlay has noted. He suggests that there are human rights issues at stake in terms of freedom and expression and right to remuneration, which may both align despite the discourse on the tensions that exists between them. What Kee emphasizes the most is not that balance should or should not be sought, as this is unanimously agreed upon by the national and international community. Instead, Kee stresses the difficulty of putting a defined quantum, or amount deserving for a certain party, in terms of payments to owners of copyrights who have their works circulating online.

Following each panelist’s presentation, questions were presented by Professor D’Agostino, and debate ensued, which revolved around the subjects previously covered, including how to properly remunerate creators, the notion of access and the balance principle, the international approach to solutions, and optimism for the future. As the discussion continued to spark debate amongst the distinguished panelists, it is certain that the topic will have a very prevalent place in our legal discourse on copyright law in Canada for years and decades ahead. It was certainly a successful inaugural seminar presentation by the Copyright Society, and I wish them the best on their continuing and much-needed presence in our legal community.

Written by Sebastian Romanutti, who is in his third year at Osgoode Hall Law School. This semester Sebastian was enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School and was a Legal Intern at SOCAN.

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In Solid Oak Sketches, the defendants (video game developer Take-Two Interactive Software and their subsidiary 2K Sports) reproduced life-like depictions of NBA players and their tattoos in three installments of their popular video game franchise “NBA 2K”. The plaintiff (Solid Oak Sketches), having obtained the exclusive licencing rights to five of the tattoos that appear on three of NBA 2K’s playable characters, filed a suit for copyright infringement. The defendants motioned for summary judgement, which was granted by the Court on the basis that the defendants’ infringement was de minimus and that it constituted fair use. Furthermore, the Court determined that an implied non-exclusive licence may be found “.” Based on an assessment of the facts, the Court held that even if Solid Oak were able to establish copyright infringement, their claim must fail because the three NBA players in question received implied licences to use their tattoos as elements of their likenesses when they obtained their tattoos: (i) the Players each requested the creation of the Tattoos, (ii) the tattooists created the Tattoos and delivered them to the players by inking the designs onto their skin, and (iii) the tattooists intended the Players to copy and distribute the Tattoos as elements of their likeness, each knowing that the Players were likely to appear in public, on television, in commercials, or in other forms of media.

Although merely persuasive in Canada, this decision follows years of national discussion with respect to the reproduction of tattoos in television, movies, and video games. Many have been quick to point out that the notion that copyright protection extends to tattoo artists and not their human canvases is consistent with the Canadian , however, with most high-profile cases occurring outside of Canadian jurisdiction, the jury is still out when it comes to binding jurisprudence. When it comes to tattoo ownership, questions remain with respect to and , however, and has even been in relation to tattoo authorship by Mark D. Penner and Olivia McKenzie.

Solid Oak is a noteworthy case that may impact the development of Canadian copyright law. It is wise for courts to consider whether an implied licence exists when assessing claims for copyright infringement concerning the reproduction of tattoos, but there is still work to be done when it comes to qualifying what constitutes a likelihood of reproduction. An implied licence can be easily ascertained when the recipient of a tattoo is a celebrity, but the Court’s decision in Solid Oak Sketches does not lend itself to circumstances where the recipient of a tattoo does not expect to reproduce their likeness but subsequently does so. Parity is an essential�� policy element that should not be taken into consideration when developing the common law. Therefore, it may ideally follow that an implied licence to reproduce a tattoo as an element of one’s likeness is presumed for all individuals who decide to “get inked”, not just celebrities.

Written by Lamont Abramczyk, a second year JD Candidate at Osgoode Hall Law School. Lamont is also a Clinic Fellow at IP Osgoode Innovation Clinic.

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Eight Mile Style, the company copyright-holder of “Lose Yourself” an action on copyright infringement against the National Party for copying an original musical work protected by copyright. In response, the National Party agreed that “Eminem Esque” borrows certain chords from the composition “Lose Yourself”. The National Party admitted that such borrowing might have resulted in the similarities between the two musical compositions. However, according to the National Party, such borrowing is not tantamount to copyright infringement. The court that to resolve the dispute; one must first distinguish between “illegitimate copying and permissible borrowing”. Such distinction is crucial for upholding , which is to provide a just reward for the creator and to encourage creative process.

IP Osgoode's Prof. emphasizes that is an . Musicians often experiment with previously known chords and tunes to develop original compositions, a process that often results in the emergence of whole new genres of . For example, such genres as jazz and blues represent the result of cross-fertilization of Western European and African traditions. Expansive copyright protection may if it penalizes borrowing in the . In this case, any musician aspiring to create a composition will second-guess herself in fear of a potential lawsuit for copyright infringement. Limited copyright protection may not only strip the copyright holder of her reward but also result in the situation when the creators will borrow from already known compositions without adding any creative value. Such an outcome is problematic for creators, users, the and public at large. The reason is that over a period of time such borrowing can produce a creative desert when all songs in the music charts sound alike. Copyright law is thus charged with striking a between the competing interests of the stakeholders.

In the Eight Mile Style case, the court agreed that musicians could be inspired by previous musical compositions and even use similar chords and melodies as building blocks for their own works. However, the unique compilation of these blocks in the musical work provides for distinctiveness and originality of the composition. Accordingly, to establish copyright infringement, the claimant must show either that . The analysis is therefore as the court looks beyond how many elements (chord-by-chord) of the original composition were replicated. The court accordingly ruled that “Lose Yourself” and “Eminem Esque” are “” and the latter “” in a way that makes the tracks “”. Such an alteration of original musical work constitutes infringement when “”.

The court ruled that the National Party used (including copying and reproduction) the song “Lose Yourself” without any authorization in its advertising campaigns. These actions constitute infringement under the . The court assessed the damages according to the user principle i.e., “”. In assessing damages, the court examined a number of factors such as, for example, the conditions under which the licenses for “Lose Yourself” have been previously granted by the Eight Mile Style and the territorial coverage of the broadcasting for Eminem Esque. After examining these factors, the court concluded that the license fee award against the National Party constitutes NZ $ 600 000. The court also noted that the National Party included Eminem Esque in its political campaign after obtaining professional advice from the third parties. The second hearing will determine whether the third parties will carry on the ultimate liability. Now we can only speculate whether the third parties will pay damages and at what amount. Yet it is clear that in assessing the third parties’ liability for professional advice, the court has to analyse the nature of relationship between the third parties and the National Party, to what extent the National Party relied on the given professional advice.

Ksenia Polonskaya is an IPilogue Editor and a PhD Candidate at Queen's University, Faculty of Law.

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What is Open Science?

Scientific journals have been a convenient medium for accessing compilations of scientific findings for over 100 years. Normally, a scientific journal focusses on a defined range of scientific topics and offers access through paid subscriptions or the purchase of individual articles. The tradition of paywalls can prevent fellow scientists or aspiring academics from accessing, understanding, and potentially integrating relevant scientific findings into one’s own work.

In contrast, open science is a growing trend which makes research findings available to the public free of charge. The movement goes one-step farther by also binding subsequent users by the same conditions of free distribution to support a broader network of free-flowing information. In a field where data is of the utmost important in developing scientific procedures and experimentation, the movement towards an open dissemination of findings seems like the only way to organize research. However, free distribution may overwhelm prospective readers through the sheer volume of scientific literature that is produced or cause readers to misconstrue scientific findings without summaries by relevant authorities, which would often accompany traditional paid journal entries. Furthermore, the complicated and highly competitive nature of scientific research often obliges scientists to keep their findings to their research groups or parent institutions for fear of competitors reaping the benefits of many years of testing hypotheses. So, when a tired and weary research group finally has a “eureka” moment, what would motivate them to share a potential cash cow with the world at large?

MNI’s Reasoning Behind the Backing of Open Science

, the director of the MNI, that the benefits of the MNI opening the doors to its neurological findings greatly outweigh the costs. The nervous system, consisting of the brain, spinal cord, and peripheral nerves, is one of the most, if not the most, complex part of the human body. Accordingly, understanding its functionality and developing treatments for diseases affecting such a delicate and perplexing biological system is incredibly challenging. This has led to a relatively low output of effective treatments for diseases of the brain and nervous system despite increasing public pressure to identify the etiology of neurological and psychiatric diseases.

By becoming the first world-class institution to fully promote open science, MNI hopes that its researchers’ preliminary findings will receive increased exposure and be used in drug-development projects across various institutions. Having more eyes on the MNI’s data, findings, and experimental methods and waiving some will likely allow neurological innovations to move more quickly from inception to the patent stage. This would be in contrast to the more traditional course of scientific development, where scientists regularly encounter barriers to accessing data or experimental findings of similar institutions that would speed up the progress of their own research.

The Risks to MNI’s Approach

Of course, the drawbacks to offering open access include risking a possible loss of grants and patentable products for those who invest time and energy into critical preliminary stages of scientific development. In the public context, this may mean scientists are not recognized for their findings and the likelihood of receiving grants to support further innovative research is reduced. In the private context, research groups may have their findings taken advantage of by companies who develop a patentable product and introduce it into the market at a high cost to consumers.

Since scientific development also occurs in small, incremental steps, the findings of one research group may not initially seem substantial, but can turn out to be important in the eventual development of a patentable drug which revolutionizes neurological therapeutics. A research group may lose sources of revenue if they decide to waive traditional intellectual property rights to their findings and only later realize their work was a crucial step in developing many marketable technologies. Furthermore, despite the esteemed nature of scientific professions, acquiring funding can be incredibly difficult since the patentability and marketability of future products will often not be evident in an exploratory project. However, such exploratory projects still are a fundamental link in the chain from theoretical conception to industrially applicable therapeutics.

How does MNI Overcome these Concerns?

While patents can generate significant income for researchers, Dr. Rouleau explains that there are ethical obligations to promote scientific discovery. There is always some risk that, in publicly disseminating research data, the Holy Grail of science will be made available without any intellectual property rights afforded to its original finders. This can lead to competition among industrial leaders who may seek to ensure any marketable products that draw upon open science findings are patentable and protectable at law. However, sequestering such an important finding to one institution may belie the objectives of scientific institutions such as MNI. In conducting laboratory experimentation or clinical trials, neurologists and other scientists working on medical therapeutics are ultimately trying to solve contemporary health problems and allow those afflicted with debilitating diseases to live with dignity and freedom from everyday discomfort and pain.

Looking Forward as a Community

What makes the movement of the MNI interesting, is that the institution’s focus on early-state neurological research allows for a smoother transition from closed to open science. This is where Copyleft practices can help promote a more effective form of scientific development. By acting as a leader in open access and open intellectual property distribution, MNI’s historic move may inspire other institutions to openly share their results as well.

It’s unclear what the effect of MNI’s support of open science will be, but one hopes that it will lead to a more collaborative scientific community driven by an increasing sense of joint innovation and sustainable research funding. Integrating a more careful examination of whether one’s scientific discoveries are worth patenting and whether a patent would generate substantial returns throughout the scientific research process may promote more cautionary patenting and a greater understanding of what legal rights are necessary for sustainable research in an interdependent field. Furthermore, the development of open science can allow smaller research institutions to contribute in a more meaningful way to broader scientific discourse by not necessarily creating new research findings, but interpreting results and offering new perspectives.

Similarly, open science can inspire youth who are considering a career in science to engage with the state of the art and witness scientific discovery as it develops in the literature and market. However, the interests of third parties who have existing intellectual property rights would need to be balanced with those of academic institutions who want to make the patented techniques or methods available to the public, free of charge. This may lead to insurmountable hurdles to open access, but with good reason. The revenue generated by some patents may be necessary to a third-party’s business model and funding further scientific experimentation. Consequently, in moving forward as an interdisciplinary community, constructive negotiation and foresight to the marketability of scientific discoveries will be paramount in ensuring adequate access to information is maintained without infringing on the sustainability of institutions or third-parties.

Dominic Cerilli is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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