is the President and CEO of , a non-profit trade organization which works on behalf of its membership of Canadian music labels, and their partners, the artists themselves. Before joining Music Canada in 2004, Henderson was a Senior VP at Universal Music Canada, having previously worked as an Entertainment Lawyer.

, a veteran of the Canadian music industry, is a performer, record-label owner, and an advocate for artists’ rights. Beyond managing Roaring Girl Records, Miranda is the founder of the Muskoka Music Festival, and currently sits on the Board of Governors of Massey Hall/Roy Thomson Hall.

The session stood as a touch-base on the current state of an ever-changing creative marketplace, in light of a number of recent reports and recommendations released in 2019. It’s an interesting time for the music industry in Canada, especially considering .

Henderson described how 2019 saw the release of two documents important to the creative industry in Canada, and those interested in the modernization of Canadian copyright law. on June 3, 2019, the (otherwise known as the INDU) completed and released their widely anticipated . In the works since December of 2017, the INDU consulted with various industry stakeholders, hearing 263 witnesses over 52 meetings, eventually providing intended to help set the stage for copyright reform in Canada. Released just prior by the Standing Committee on Canadian Heritage (CHPC) was their entitled focused on remuneration models for artists and creative industries. While the INDU’s review did not officially consider the CHPC report, the two documents provide meaningful insights when considered together, overlapping in some areas while remaining inconsistent in others, providing the government with much to work with as they begin any potential policy updates.

Henderson described Music Canada’s own report, , released in late June of this year, subsequent to the INDU’s review and the report by the CHPC. Music Canada’s 2019 report reiterates the organization’s 2017 release called , which first detailed what they describe as the gap existing between artists and their revenues. In directing us to the 2019 report, Henderson and Mulholland described the way in which content creators continue to struggle in a digital marketplace, protected by copyright laws they see as holdovers from the analog era, even after the 2012 Canadian reforms.

Critics on the music industry side, including artists and other rights-holders, have pointed to weaknesses within the INDU’s review, finding that the recommendations do not go far enough to protect and ensure adequate remuneration for those creating the content we enjoy, or to provide an effective base for modernizing the . Henderson and Mulholland described for the audience how, in their view, the current lack of legislative safeguards for artists creates a form of subsidization for the tech sector that thrives on streaming digital content. Based on the recommendations in the INDU report, it appears that the government remains alive to the way in which copyright law acts as both a protective and a restrictive force which it aims to keep in equilibrium. While the legislature learns to keep up with the break-neck pace of digital and creative industry, growing pains will likely continue to be felt. Moving forward, it’s clear that there are various interests which must be balanced in modernizing the Copyright Act, whatever the eventual legislative outcome. As 2019 comes to a close, we look forward to seeing what’s on the horizon for Canadian copyright reform.

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

The post Modernizing the Copyright Act – A Look Back on 2019 appeared first on IPOsgoode.

A group of thirty-seven professors and leading scholars of intellectual property, information law and digital economy, including IP Osgoode's own , signed a response regarding Article 11 of the Proposal for a Directive on Copyright in the Digital Single Market, entitled 'Protection of press publications concerning digital users'.  To read the full response click .

The post Professors and Leading Scholars Respond to the IPO's Request for Views on Modernising the European Copyright Framework appeared first on IPOsgoode.

Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the  has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law, considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a copyright infringement ruling against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.  Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist Richard Prince copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s identical reproductions of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,  saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist  were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is ’s appropriation of ’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of . She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of  from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Looks Are Not Everything; Professor Amy Adler's Future of Art appeared first on IPOsgoode.

On November 4th and 5th 2015 the Italian Judge Permanent Training Program for the Court of Milan (Hon. Francesca Fiecconi), with the collaboration of AIPPI Italian Group (Ms Renata Righetti, Avv.ti Giorgio Mondini, Simona Lavagnini, Fabrizio Sanna) and Franzosi Law Firm (with a team composed by Prof. Avv. Mario Franzosi, Avv.ti Gianluca Campus and Anna Maria Stein), organized in the Aula Magna of the Court of Milan a Congress for practitioners and academics from all over Europe aimed at discussing the most recent evolutions in the copyright law, taking into consideration the reform proposals indicated by the Europen Commission in the .

The introduction of communications via Internet and the wide use of digital contents have dramatically demonstrated that most of the national copyright laws need to be re-evaluated and that the borders between communication, distribution and reproduction rights should be reviewed taking into consideration needs and structure of digital economy. The Digital Single Market Strategy for Europe highlights that the reform of copyright law plays an important role in achieving the goals indicated by President Jean-Claude Juncker.

EU legislative proposals for a reform of the copyright regime are expected at the end of 2015 and early 2016. This made the Congress a strategic occasion for information and discussion, a thinking arena, with the purpose of comparing national approaches on copyright issues, looking to a European view.

The Congress has been organized in three sessions, dedicated respectively to: (1) Distribution of digital contents on the internet; (2) Copyright infringements on the internet and the enforcement of rights; (3) Collective rights management in the digital era. Each session has been followed by a Panel Discussion dedicated to academics, judges, lawyers, technicians, collective rights managers and in-house lawyers.

Have joined the Congress, among others, Judges specialized in IP matters (Hon. Marina Tavassi, Amedeo Santosuosso, Francesca Fiecconi, Francesco Cajani, Giovanni Canzio and Roberto Bichi) the European Commission, the World Intellectual Property Organization, the Max Planck Institute (Munich), the Institute for Information Law (IviR) of the University of Amsterdam, the Italian Authorities for Communications (AGCOM) and for Competition (AGCM), the Universities Milan Bicocca, Milan Bocconi, Ferrara, Washington, the collecting societies SIAE, Nuova Imaie, SCF, IFPI and Google, Sky Italia, Mediaset, V-Nova, Italiaonline, Sinapsi. The Congress Proceedings will be in English and in Italian and will published in 2016 both in electronic form and in paper form with Aracne Editrice in the book collection “”, directed by Prof. Oreste Pollicino.

Speeches and Panel discussion focused on the evolution of the market of digital contents that requires copyright rules fitting the purpose of enabling better cross-border transactions, at least at European level and possibly at a worldwide level. In detail the Speakers analyzed the core actions indicated in Digital Single Market Strategy. Mr Marco Giorello (Deputy Director of the Copyright Unit of the DG Connect – European Commission) has introduced the legal framework and the roadmap for the implementation of the Digital Single Market Strategy for Europe (“DSMS”). The DSMS could have a huge impact on the reform of copyright law at a European level. It is anyway still matter of discussion which direction should take this reform.

For Prof. Mario Franzosi (University of Washington) the entire regime of copyright should change in order to face the challenges of the digital era. If the regime does not change, it could perish. Prof. Vincenzo Franceschelli (University of Milan Bicocca) has highlighted that is of the utmost importance to balance the right to economic exploitation of copyrighted materials with the right to private use of the same materials. Without such balance also the review of the Infosoc Directive (included in the DSMS) could lead to a “payable information society”. Also Hon. Vittorio Ragonesi (Italian Supreme Court – Legal Advisor Italian Foreign Office) suggested that the selection of conducts that constitute copyright infringement plays an important role. A possible balance could be found at the level of the exceptions to exclusive rights on copyrighted materials.

Other Speakers from European countries suggested possible ways for modernizing copyright law. For Prof. Bernt Hugenholtz (Institute for Information Law, Universiteit van Amsterdam) despite 25 years of copyright harmonization at a EU level, territoriality of copyright is left mostly intact and copyright protection is limited to national borders. An effective response to territoriality could be the review of the Sat/Cab Directive and the extension of the satellite broadcasting rules to Internet. On the other hand Prof. Dr. Michael Lehmann (Max Planck Institut Munich) analyzed the definition of Digital Contents in the Consumer Rights Directive and the recent ECJ case law on used software (Usedsoft case) and realized that the ECJ-decision is valid only for software: interprets the Software Directive. But at the time of the Software Directive every on-line activity was classified as a service. In the digital era we must treat on-line and off-line delivery of all types of “digital contents” as equal.

With reference to the topic of copyright infringements on the internet and the enforcement of rights, Hon. Francesco Cajani (Public Prosecutor – Pool for Cybercrime of the Court of Milan) has gone through the Google-Vividown case law in Italy in 2010, highlighting that the interpretation of the Public Prosecutor’s Office of Milan with reference to the liability of the ISP for managing personal data has been essentially confirmed in recent years by the case law of the European Court of Justice (C-131/12 Mario Costeja Gonzalese e AEPD Vs Google Spain e Google Inc.). Mr Giorgio Greppi (Italian Communication Authority – AGCOM) has reconstructed the legal basis for AGCOM power of control on on-line copyright infringements in the Italian legal system. Since 31st March 2014 the Regulation is in force in Italy and AGCOM has already managed 380 claims raised by copyright holders. But Mr Thomas Dillon (Counsellor, BRIP Division, WIPO) has remebered the different interpretations raised by national courts on the extent of liability of ISPs. National courts implement the copyright laws in divergent ways, in particular with regard to injunctions against intermediaries.  Such orders (and their refusal) may certainly have cross-border consequences. The Digital Single Market Strategy for Europe should face the challenge of overcoming such fragmentation among national approaches.

Also the collective rights management is a core topic for the digital era. Hon. Gabriella Muscolo (Italian Competion Authority – AGCM) considers that antitrust rules and an harmonized legislative framework are complementary means for implementing an effective digital single market of collective rights. The current scenario underlines a contrast between: (i) the request by the users of access to digital contents anytime and anywhere; (ii) the principle of territoriality of copyright and the complexity in copyright clearance. In the light of the above, an efficient and transparent system of collective rights management at a European level could represent a solution for implementing cross-border licensing and for reducing transaction costs.

Ms Stefania Ercolani (SIAE – Director of Multimediality Department) has indicated that also historical factors impacted the area of collective rights management. In Italy there is a dichotomy between the collective management of copyright and the collective management of neighbouring rights (only for the latter the Italian legislature has introduced a certain level of competition). It will be interesting to verify how the implementation of the Collective Rights Management Directive could impact both sectors.

P.S. a long form of this Conference Report will be published in the Journal of European Consumer and Market Law (December 2015)

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In a timely manner, only three days after the of the conclusion of negotiations on the Trans-Pacific Partnership Agreement (TPP), Prof. Matthew Rimmer accepted our invitation and shared few of the hidden secrets behind the agreement as part of IP Osgoode speaks series.

This ‘blockbuster agreement’—supposedly a jovial landmark in the sphere of diplomatic international relations—was diluted with a mixture of uncertainty and secrecy. According to Prof. Rimmer, the TPP is a controversial agreement for several reasons. First, many concerns were raised regarding the involvement of major companies, via special advisory groups and executives, in drafting parts of the agreement. Consequently, the companies allegedly had more influence over the TPP than the legislators since the latter could not review the agreement that was protected (and still is) under the blinds of confidentiality. Second, a few notable countries are not signatories of the TPP (China and Russia for example). The reasons underlying China and Russia’s exclusions raise questions regarding the TPP’s true nature—is it really a trade agreement or simply, as Prof. Rimmer implied, ‘the coalition of the willing’ that was established as part of a U.S. global trade strategy.

Much of what we know to date about the TPP was retrieved from . Jamie Love, the director of (KEI), who recently shared a into the TPP deliberations, alerted that "[i]n many sections … the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods."

IP Principles and Objectives

The TPP’s IP chapter covers a wide scope of topics and is positioned to change the normative boundaries of IP and, more specifically, of copyright. The traditional approach, as shaped in the U.S. and the U.K., is rooted in the perception of copyright as a means to inspire creation and proliferate knowledge. However, as Prof. Rimmer explains, it appears that the current vision of the TPP, under the influence of the music and movie industries, seeks to transform the normative balance of IP in order to strengthen the owners’ well-fortified rights. It is not hyperbole to define the TPP as a game changer that could have grave implications to the public domain.

A ‘Mickey Mouse’ Copyright Term Extension

According to Prof. Rimmer, the movie and the music industries have strategically argued for a prolonged extension of copyright terms. The TPP seems to answer their call, as it extends the term of protection to 70 years after the life of the author. This extension will likely have a profound affect in various fields, including Canadian cultural heritage, competition, innovation and the public domain. However, it is unclear if the TPP will include a demand for the revival of copyright works that were previously in the public domain. Prof. Rimmer also indicated that the TPP seeks to for orphan works.

Fair Use/Dealing and Disability Rights

There has been much academic discourse concerning whether the TPP language, in regards to the definition of fair use/dealing, is far too narrow or too broad compared to previous agreements, particularly the , in defining copyright exceptions. The TPP definition will most likely affect the course of this discussion. If the TPP adopts a narrow definition for fair use/dealing, it could set back recent developments in Canada related to the Supreme Court landmark decision in .

Copyright and disability rights stand in the center of recent international progress in copyright law. The —the most prevalent—aims to expand the recognition of the rights and interests of disabled people to access copyright protected materials, ending what was known as the ‘Book Famine’. According to Prof. Rimmer, the TPP makes an effort to recognize the Marrakesh Treaty. However, the Marrakesh Treaty is narrowly limited in scope to the visually impaired. Prof. Rimmer argues for a broader scope that will include other disabilities as well.

DMCA

The TPP seeks to export aspects of The Digital Millennium Copyright Act () and imbed Technological Protection Measures (known as ‘digital Locks’). Such anti-circumvention measures might endanger the fair use/dealing exceptions. The DMCA is a premature regime that was enacted almost two decades ago, in a pre-search engine and social media era, and is not well designed for current challenges. Stressing the absolute DMCA model as part of the TPP seems unreasonable. It should be noted that the DMCA model may have grave consequences to Canada, which in the past decade have defended its copyright laws against the DMCA successfully.

Protection and Enforcement

Protection and enforcement measures play an important role in the implementation of any international agreement. The TPP includes an arsenal of IP enforcement measures such as criminal offences and civil remedies. However, the TPP's rigid structure does not enable the members of the agreement much flexibility in adapting the TPP into their domestic laws. Prof. Rimmer criticized that the TPP ‘locks’ a specific model rigidly; it is uncompromising in regards to changes and modifications to the enforcement measures since it requires the approval of all members.

TPP’s Radical Vision

Prof. Rimmer concluded his lecture by stating that the TPP agreement ‘is radical’ not only in its objectives and purposes, but it also changes some of the fundamental doctrines in copyright such as term extension, fair use/dealing, liability issues etc., while diminishing the public domain in the process.

The TPP agreement is indeed a defining moment in the international effort to consolidate IP laws, however, the shroud of secrecy surrounding the TPP is not an encouraging sign. There is the general concern that the leaked terms of the TPP agreement will cause copyright laws to regress and destabilize the delicate balance between authors' and creators' rights to the public domain, thereby doing more harm than good.

The Sum of All Fears

On the eve of posting this blog, The Office of the U.S. Trade Representative (USTR) finally published the . Not surprisingly, we discovered that the TPP’s negotiation leaks were, in general terms, accurate. For example, the TPP includes a copyright term extension of ‘not less than the life of the author and 70 years after the author’s death’ (Article 18.63(a) to the TPP) as predicted. Obviously, we should read the TPP thoroughly, however—as it seems—it is indeed what we all feared it to be.

Aviv Gaon is a PhD candidate at Osgoode Hall Law School

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Politicians and members of the political press galleries each play fundamental roles in Canadian democracy. Politicians are elected or appointed to serve on behalf of the electorate and craft laws and policies  Meanwhile, as the stewards of the historic , the members of the press are entrusted to fulfill their to hold elected representatives and civil servants to account. Contestation often simmers beneath the surface if and when these respective mandates collide. However, each group is ostensibly supposed to serve the public good and the citizens of the state.

On 8 October, on the leak of an internal Cabinet document suggesting a . This document, reported to be a presentation from the Minister of Canadian Heritage and Official Languages Shelley Glover, sought Cabinet authority “to amend the Copyright Act to create an exception for the use of ‘news’ in political advertisements without the authorization of the rights holder” in order to provide “greater certainty for ‘political actors’ who want to use copyright content in their advertisements” (). This report caused a stir as opposition and Government MPs took their respective sides while members of the press used their positions to comment on the appropriateness of the proposed exception. �Ѳ������𲹲�’s Paul Wells nicely summarized the situation, asking .

During , the Hon. Ralph Goodale (MP, Wascana, Lib.) described the move as a “scheme authorizing the swiping of television news programs for use in political attack ads” (14:24) and “expropriation without compensation. [The proposal] degrades integrity and freedom of the press” (14:26). Minister Glover, meanwhile, responded by citing Canada’s fair dealing copyright exceptions and the “public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings. Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians” (14.26).

Minister Glover’s fair dealing assertion counters Mr. Goodale’s claims of “expropriation without compensation”. While the proposed exception would make it legal for “political actors” to use “news” footage or content without compensation or consent, these uses might already be protected under existing Canadian law. As I described in an earlier , the Supreme Court of Canada (SCC) has affirmed that fair dealing exceptions are (2004 SCC 13(3a) para.48). The measure of the phrase “integral part”, however, is not entirely clear.

Under the Copyright Act, Canada’s fair dealing exceptions are restricted to the purposes of (Copyright Act, R.S.C., 1985, c. C-42. Sec.29). The SCC has affirmed that these exceptions (2004 SCC 13(3a) para.51) and, it could be argued that the user generated content amendments and exceptions in the Copyright Modernization Act (S.C. 2012, c. 20) allow for the use of copyright materials for other purposes. To date, though, political uses of copyright-protected materials via fair dealing exceptions have not been fully tested. Importantly, the SCC finds that “fair dealing” should not appropriate content in order to compete with the material interests of the rights holder: “if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (3(vi) para.59). Though this “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”, the fact that the use of “news” materials in political advertisements is unlikely to compete with the work of the press in reporting and selling their content suggests that fair dealing exceptions would apply in such situations.

The Government’s proposal to amend the Copyright Act for political advertising generated criticism from members of the press, as reported by . In his weekly for the CBC, Rick Mercer equated the move to “stealing” (0:59) and mistakenly said that “there are no exceptions” (1:15) for legally using copyright-protected content. Meanwhile, Don Martin, the host of CTV’s PowerPlay,  “any government which asserts unlimited access to the airwaves for propaganda purposes is more than into chronic copyright infringement. In some academic opinion, that could be seen as flirting with fascism”. Other media organizations were more measured in their responses. An points out that “media don’t like to see their footage and other copyright-protected content in partisan ads, especially the negative type, since viewers might be left with the impression that a media outlet is complicit with a political party”. The Globe’s concern is balanced by the recognition that “there will be people who see it as a boon for free expression. Why shouldn’t people make unfettered use of news images and clips of public figures in order to advance their points of view and denounce those of others? Isn’t the news a public good?”

In an , , Associate Professor of Law at McGill University and a founding member of the , welcomed the idea of an exception for political discourse on the grounds that it could help spur political debate. Professor Lametti, whose describes himself as an “Aspiring Liberal Candidate in LaSalle-Émard-Verdun”, stated that “political discourse is to be valued above all other kinds of discourse, and it's up to political parties to make their claims and they use whatever elements they can use legally. And if this helps to foster political debate in Canada, then that's good.”

While it may be aimed at protecting the “public good”, the  does seem needlessly restrictive. By prioritizing “political actors” over members of the general public, the proposed course of action deprives the public of a useful tool for engaging in political debates. During the , MP Alexandrine Latendresse (Louis-Saint-Laurent, NDP) argued that the exceptions under question appear to be “legislation that is only in [the Government’s] interest” (14:52). In response, Minister Glover cited a post from the to defend the Government’s position (14:53). A vocal and public commentator on Canadian copyright, Professor Geist applied the SCC’s reasoning to to argue that “copyright law should not be used to stifle legitimate speech …[and]… attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use”.  His reasoning goes further, however. In a – – Professor Geist echoes Ms. Latendresse’s concerns about the narrowness of the exception under consideration, arguing that “the creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds”.

Attempts to update the Copyright Act’s fair dealing exceptions should keep public interest concerns in mind. A narrowly framed exception applying to only official “political actors” does not serve the best interest of all Canadians. It would be more beneficial to include “political speech” as a separate category alongside research, private study, education, parody or satire in order to better clarify how all Canadians can use copyrighted content to express their feelings about elected officials.

Thankfully, this debate seems to have cooled for now. As Professor Geist , the proposed exception was not part of the latest . With a legislated review of copyright law scheduled for 2017, it will be important to reaffirm that Canada’s copyright law and its fair dealing exceptions are designed to serve all members of the Canadian public— and not just politicians and/or the press.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at 91��ɫ.

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The recent (Congress 2014) and the (CPSA 2014) highlighted some of the issues that will likely occupy the debates between interested stakeholders. As part of Congress 2014, three debates were held as part of the , which looked at how copyright law works in academic and social contexts. At the CPSA 2014, the (p. 66) analyzed the recent past and coming future of Canadian copyright law.

This panel included , , and , who presented different perspectives on the future of copyright generally, and specifically in Canada. Alternative and opposing responses to the historic and contemporary copyright environment were also presented. [Ed. Note: the author of this post served as the discussant on this panel]

In his paper, which draws upon research done for his book , Dr. Haggart used an historical institutionalist perspective to describe the processes and activism behind recent reforms to Canadian copyright law. His paper demonstrates how external shocks – emanating from technological changes that foreground processes of relational creativity and attendant public interest and advocacy – disrupted the pre-2000 status quo of Canadian copyright law. In particular, he argues that the and other actors affected the ideas and institutions of Canadian copyright and worked alongside the SCC’s (re)assertion of “user's rights” to make them a central component of Canadian copyright law. These ideas were eventually taken up by the Copyright Modernization Act.

Mr. Ribaric’s paper on the challenges facing academic librarians in the current digital and copyright environment demonstrated some of the problems associated with relying on fair dealing exceptions as the primary means for accessing copyrighted materials for purposes that are designed to more explicitly benefit the public good. Mr. Ribaric describes a “chilling effect”, which occurs due to the uncertainty associated with the vagaries of copyright law and permissible uses as well as the fear of being the subject of costly litigation—. Mr. Ribaric’s paper also highlighted one of the less obvious trends occurring as technological, economic, legal, social, political, and cultural ideas as well as institutions change. During negotiations with university libraries, Mr. Ribaric discusses how requested that the institutions “monitor and determine (through electronic eavesdropping) if any copyright use transgressions were occurring ”. This represents an instance where the ‘responsibilities’ and needs of private and corporate actors are downloaded onto public institutions with limited resources—as well as mandates that are opposed to such actions.

The concerns and challenges faced by academic librarians echoes the sentiments and common values of the “non-commercial artistic digital communities” that Zeilinger describes in his paper—as well as in his edited volume , which he edited with Rosemary Coombe and Darren Wershler. Zeilinger advances a “moral economy” theoretical framework as a means of understanding the discourses and values of digital communities with respect to copyright debates. Zeilinger’s discussion of digital communities – as moral economies – recognizes the existence of pluralistic needs and interests of various groups, communities, and users. For example, digital artists often use existing materials for creative and non-commercial purposes. The so-called added by the Copyright Modernization Act can then be seen as an attempt to give legal protection to such actions.

However, relying on a “user rights” framework dependent on “fair dealing” exceptions helps perpetuate a dominant creator versus user discourse, which undermines public and private interactions that are not necessarily always opposed, and which copyright law has historically sought to calibrate. The citizens of Canada have pluralistic interests and values that transcend the mere access to and use of informational goods, which should be accounted for moving forward. This CPSA 2014 panel demonstrates that doing so will require sustained attention and debate in the coming years.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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Entitled "Can the Canadian UGC Exception Be Transplanted Abroad?", this article builds on the excellent  on the international law aspects of the Canadian UGC exception chaired by Prof. David Vaver. The panel also featured presentations by Barry Sookman, a partner of the law firm of McCarthy Tétrault, and Prof. Joost Blom of the Faculty of Law of the University of British Columbia.

Although the panel presenters examined the international law aspects of section 29.21, including its compliance with the Berne Convention and the WTO TRIPS Agreement, one issue that has not been covered much is whether this exception would serve as an ideal model for other jurisdictions that are now undertaking digital copyright reform. Using Hong Kong as an example, my forthcoming article will argue that the Canadian UGC exception, with appropriate modifications, can be—and should be—transplanted abroad.

This article begins by discussing the efforts by the Hong Kong government to transplant copyright laws from abroad as part of its digital copyright reform. It further examines the benefits and drawbacks of legal transplants. Using the US Digital Millennium Copyright Act of 1998 as a point of comparison, this article argues that the Canadian UGC exception provides a timely and attractive model for legal transplant.

The article then discusses specifically the UGC exception proposal I submitted to the Hong Kong government. Focusing on two major aspects of legal transplant—modelling and adaptation—it discusses the policy choices the submission considered. It also addresses the key objections raised by copyright holders and their industry groups, in particular their claim that the Canadian UGC exception may not comply with the TRIPS Agreement.

This article concludes by recounting the Hong Kong government’s recently-released  on the parody consultation, which sadly echoed the concerns raised by copyright holders and their industry groups. Although I strongly disagree with the government's preliminary analysis of the proposed UGC exception, this article takes the government's international compliance concerns seriously and offers additional modifications to further adapt the proposed transplant.

To begin with, the government could easily build the relevant WTO standards into the proposed UGC exception, similar to the existing provisions in the Hong Kong Copyright Ordinance and the laws of other jurisdictions. The government could also introduce a fair dealing exception for UGC. If it takes the position that fair dealing exceptions meet international standards, a fair dealing exception for UGC will clearly meet those standards.

In addition, the government could introduce a quid pro quo arrangement that allows authors and copyright owners to use the internet users’ derivative creations for predominantly non-commercial purposes. If significant commercial interests are involved, the government could also introduce a profit-sharing arrangement that requires internet users and intermediaries to provide equitable remuneration to copyright owners. Levy systems, for example, have been widely practiced in Canada, Europe, the United States and other parts of the world.

Even if the government remains reluctant to legalize the creation of UGC, in light of the ongoing, unsettled international copyright policy debate, the government could introduce laws to prevent internet users from being criminally prosecuted or sued in civil actions. The government could also institute a five-year sunset period for the proposed exception if it considers a permanent exception unsuitable for a rapidly changing licensing environment.

In sum, regardless of whether one agrees with the Hong Kong government's highly restrictive interpretation of the TRIPS Agreement, many ways still exist to address its international compliance concerns. From the standpoint of examining the expediency and viability of transplanting the Canadian UGC exception abroad, it is also important to separate drafting problems from modelling problems. A good model of legal transplant should not be abandoned when adaptations can be made to improve the transplanted law.

Peter K. Yu, an affiliated scholar of IP Osgoode, holds the Kern Family Chair in Intellectual Property Law at Drake University Law School in the United States. Born and raised in Hong Kong, he serves as the general editor of The WIPO Journal published by the World Intellectual Property Organization and chairs the Committee on International Intellectual Property of the American Branch of the International Law Association.

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I sat down in Starbucks just a few days ago, joe in hand, to get some work done. Soon after, my ears perked up as the song “Rum and Coca Cola” floated through the coffee shop. Curious as to who would be listed as the author, I whipped out my phone and hit the Shazam button. Sure enough, a glistening album photo of the Andrews Sisters popped up on my screen.

The song by the American trio shot to number one on the Billboard’s pop hits chart on May 16, 1945. Copyright was registered to Morey Amsterdam in the United States. However two Trinidadian composers, the prominent calypsonian Lord Invader and his associate Lionel Belasco, claimed original authorship of the song’s melody. They claimed that after composing the song in the early 1940s, it was popular among locals during which time Amsterdam visited the island. After a hard won legal battle the plaintiffs were compensated, but Amsterdam still retained copyright. This means that today, it is Amsterdam’s estate that benefits from Starbucks playing a Trinidadian song.

This is just one example of why copyright and original authorship disputes are often also intertwined with issues of political economy, collective authorship and cultural appropriation. My LLM research uses this kind of logic to think about new ways of imagining copyright protection of works of mas in Trinidad and Tobago. This is mainly because the issue of how to protect mas, short form for “masquerade” and exhibited by the folkloric pairing of costumes and sound, poses a challenge to artists and the legal community alike; it is essentially a collective work with no single author and it goes against the very grain of what authorship is supposed to be. In other words legal rationale for mas is harder to pin down than the “Rum and Coca Cola” example. It requires an ingenious way of thinking about the philosophical underpinnings of copyright law to create a plausible policy proposal.

The specificity of a work of mas poses a particular complication for normative copyright claims in Trinidad. This is because a work of mas is not tangible. It is a performance that brings together the costume designer, bandleader, sound recording, choreographer and performers to produce an original creation. A work of mas is a performance which, although featuring original artwork, has a low threshold for certain criteria (such as originality and fixation, “two of the core requirements for securing copyright”[2]). Sharon Le Gall’s exploration of the steel pan, “considered the most important acoustic instrument of the twentieth century, arising from an urban, black underclass,”[3] presents a parallel discussion. It contemplates how the philosophies underpinning global IP practices can be challenged; “the justificatory bases for the grant of patents, particularly utilitarian theories for the encouragement of inventive activity, do not jibe with the origins of the steel pan.”[4]

Carnival stakeholders are now grappling with how to create a copyright policy that understands the complexity of works of mas and which can duly reward its creators. What complicates the matter is that mas has already spread with the Trinidadian diaspora so that people can find mini versions of the Trinidad Carnival worldwide. In this sense, the carnival arts have already been exported from Trinidad. Trade policy analyst Keith Nurse proposed a strategy for the IP protection of the Trinidad Carnival that would expand its industrial and export development where it already has currency in a global market.[5] A recent report published by the Caribbean Development Bank attributed increased interest in IP to “the continued movement of countries to an information-based economy.”[6] However, it states, there is a lack of education in the Caribbean culture industries about the translation of IPRs into economic gains.

Similarly economist and WIPO consultant Vanus James considers the contribution of copyright and related rights in the protection of works of mas to industry.[7] He uses works of mas as a case study to consider how copyright infrastructure can support the unique demands of Trinidad. He proposes growth in labour and import productivity to make Trinidad more competitive in the copyright sector.[8]

So, then, would a copyright policy to protect mas travel from the Caribbean to Nottingham to Miami to Toronto? And what about mas that is only inspired by Trinidadian culture but is arguably not Trinidadian? In my research I take a regional approach to copyright policy that follows the trend of regional trade and economic partnership agreements. In part I was inspired by the works of Eric Williams, renowned Caribbean nationalist. I also echoed the works of Le Gall and Suzanne Burke who call for the integration of preservationist strategies into a copyright policy.[9]

There may be arguments that one need not create more law. For example David Lange calls for benign neglect in the case of folklore and traditional knowldge where an increase in policy could be seen as too intrusive or complicated.[10] In his words, “[w]e would be well advised to act by not acting. We should let sleeping dragons lie.”[11] There is some truth here; overcompensating for a dearth in policy could result in a complicated minefield of minutiae. However the question remains whose dragons are made to lie while other dragons get to play with their fire. It is in this spirit we can think about the copyright economy of any work based on folklore or traditional culture.

Terrine Friday is an LLM graduate of Osgoode Hall Law School. She is currently an assistant for the human rights Partnership Development Project at Osgoode. Her recent research includes media policy in the Middle East and North Africa at the LSE and as a visiting student at the University of Oxford.

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To read the report’s section on Canada, click .

Results of the Report: A Commendation with Qualification

In the report, the USTR commends Canada for its recent legislative reform. The two initiatives cited in the report were Canada’s passage of the in June 2012 - legislation that represents Canada’s implementation of the WIPO Internet Treaties - and the introduction of the in March 2013 - which attempts to target commercial-scale trafficking of counterfeit products. Both of these initiatives were endorsed by the USTR,  who went on to suggest in the report a further expansion of this type of legislation in order to give more power to border officials to seize goods in-transit.

The report was not universally complimentary, however, with the USTR expressing serious concerns regarding Canada’s pharmaceutical industry. One concern that was mentioned was the absence of a right of appeal in the administrative process of Canadian regulatory pharmaceutical approval. In addition, the USTR expressed apprehension regarding the impact of the heightened utility requirements for Canadian pharmaceutical patents. This statement likely refers to the that has taken place over the last decade regarding what constitutes the “utility” required for pharmaceutical patents in Canada; originating from the landmark SCC case .

Reaction to the Report

The movement of Canada from the “Priority Watch List’” to the ‘”Watch List” has been met with some criticism; with some American entities publicly voicing their displeasure with Canada’s new position. The most scathing reaction to the report comes from the Pharmaceutical Research and Manufacturers of America (PhRMA), who stating that they were very “disappointed” with Canada’s changing designation. In the report, PhRMA claims that “Canadian policies and judicial opinions continue to harm international innovators to the benefit of domestic industries” and that the “heightened standard for patentable utility for pharmaceutical patents is inconsistent with Canada’s trade treaty obligations.” The PhRMA statement also contains a critique of India’s pharmaceutical IPR regime - a country that is notorious for their pharmaceutical IP protection. Including these statements side-by-side might reflect the view that the American biopharmaceutical industry has of Canada's pharmaceutical intellectual property laws and policy.

A Precarious Political Climate

Although there have been concerns raised about the legitimacy of the USTR “Special 301 Report” from both and , an evaluation of Canada’s IP regime by its is undoubtedly an important diplomatic and economic concern. Indeed, Canada’s actions over the last few years seem to indicate their intention to conform to the wishes of their American counterparts, with the recent legislative reform that is responsible for Canada’s improvement on the watch list seemingly being a direct response to .

What makes the most recent report particularly interesting is the fact that it has been released at a complex political time period for Canada. The pharmaceutical company Eli Lilly recently launched a , and the (CETA), a free trade agreement between the Canada and the European Union (EU), is bound to be completed in the next few months. The recent legislative changes made by Canada could be viewed as political posturing for the impending CETA, which purportedly has the EU calling for increased . This agreement also allegedly includes an increase in patent protection for innovative pharmaceuticals in Canada at the request of the EU, which for its potential to greatly increase drug costs. However, with drug and health care costs being a sensitive political topic and being significantly in Canada over the next few decades, that the strengthening of IP pharmaceutical protection may not ultimately make it into the final draft of the CETA despite the EU's wishes.

It could be the case that the recent Canadian legislative reform is an effort by Canada to please its biggest trading partners without making drastic changes to its domestic pharmaceutical industry. The issue of rising health care costs is undoubtedly an important domestic political issue, and perhaps the seemingly “Jekyll and Hyde” approach to pharmaceutical and non-pharmaceutical IPR  is a necessary compromise that Canada has to make in order to function diplomatically with its trading partners while maintaining what it views as a healthy domestic state. It would be hard to name many things that are more complex than trying to adequately fit domestic IP policies within international free trade agreements, but Canada must continue to strive to achieve that seemingly impossible balance. At the end of the day, like in most matters in life (and politics), you certainly can’t please everyone.

Adam Falconi is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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