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

On June 23^rd, 2022, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical and artistic works from life of author plus 50 years to 70 years. The extension may seem like an additional incentive for creativity, but many have consistently voiced that it won’t be as beneficial as anticipated.

The change results from Canada’s commitment in the (CUSMA) to extend the general term of copyright protection. The clarifies the extension’s benefits, stating that “[a] longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works.” The exact date of the change, and therefore the specific list of affected works, remains unknown.��

Meanwhile, IP experts, organizations, and institutions continue to express concerns about the negative consequences of copyright term extension.�� expressed how the 20-year extension could “hamper creativity” by inhibiting them “to build upon and rework creative content”. The extension, they argue, would hinder creativity and stray from a balanced copyright system – one where “the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge.” have also pointed to studies conducted in other countries that show the negative effects of copyright term extension. According to an interesting study on “,” a book entering the public domain generates 26.5 additional editions on average after it enters the public domain. ��Moreover, the availability of audiobooks for public domain bestsellers significantly increased from 1913-1922 compared with copyrighted bestsellers from 1923-1932.

Critics are also concerned about the extension’s impact on “orphan works” or “out-of-commerce works”, which was addressed in last year’s on how to implement an extended general term of copyright protection in Canada. "Orphan works" are works that are still protected by copyright but whose owners are unknown or unlocated. “Out-of-commerce works” are works still under copyright protection but no longer available to the public through normal commerce channels. The main concern is that the 20-year extension will result in more orphaned or out-of-commerce works, posing more barriers to the further spread of ideas.

To address these issues, the recommended implementing a system where copyright holders who want the extra year can register for it, while the other works will enter public domain. The Committee argues that this would contribute to a balanced system by protecting works with ongoing value while allowing works that don’t to enter the public domain. However, along with concerns about higher administrative costs, some are also concerned that the registration requirement could create a “” – one for owners who are knowledgeable and can afford the registration fees, and another for those owners who are unaware of the option to extend protection. Moreover, due to the varying times the works would enter the public domain, the two-tiered system could also hinder creativity.��

The concerns are loud and clear. Despite being proposed to encourage creation, the extension seems likely to obstruct the very thing it was intended to promote.

The post Canada Extends Copyright Term to Life of Author Plus 70 Years, Leaving Many Concerned appeared first on IPOsgoode.

Less than a month after announcing its foray into , Google’s YouTube has made another significant announcement by offering users the ability to license their work using . Google is as a way to foster creativity and sharing among its users and is already working with notable organizations such as , , and to create a substantial Creative Commons library for users to experiment with.

is a non-profit organization which operates under the premise of promoting universal access to information through the internet. The organization was founded in 2001 and has spent the past decade working with copyright experts from around the world in order to develop to facilitate this vision. The customizable design of Creative Commons licences enables users to choose the amount of rights they wish to retain instead of operating under the default “all rights reserved” setting traditionally imposed through copyright law. This “some rights reserved” approach is seen by the organization as a way to bridge the gap between the reality of the internet and traditional copyright laws.

Another unique element of the Creative Commons licence is that each licence to increase its effectiveness. First, there is the traditional “Legal Code” layer, followed by a “Human Readable” and a “Machine Readable” layer. These additional “layers” allow lay people to understand the important components of a licence while also providing software and search engines with the ability to recognize the licence. By providing simplicity and ease of use, the licences are an effective way to give the average user more control over their content.

Under the new system, YouTube users will now be to license their work under the when using the . With this licence, other users will be able to remix and share the work, as well as make commercial use of the work, so long as attribution is given to the owner. While Creative Commons typically allows for licensors to choose from a variety of license options, YouTube currently only offers one choice.

The CC-BY licence is one of the most accommodating versions available and is as a way for YouTube to ease the incessant regarding copyright violations on its site. With now uploaded to the site every minute and the majority being user generated, YouTube is somewhat of a cesspool for copyright violation. The sheer volume of users and content has made copyright enforcement difficult.�� While YouTube has taken steps to and these rights, an effective solution remains elusive. The integration of Creative Commons licensing should help encourage users to respect copyright by raising awareness and providing viable alternatives to the internet cultural norm of misappropriating content.

Only time will tell if YouTube’s adoption of the Creative Commons framework will be embraced by enough users to alter perceptions regarding the ownership and sharing of content on the internet or if it will simply amount to another drop in the bucket of copyright law.

The post YouTube Introduces Creative Commons Licence appeared first on IPOsgoode.

Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Utter the words “online copyright infringement” and most people probably think of the mass distribution of popular music on peer-to-peer networks or Hollywood movies being downloaded through bittorrent. A recent brouhaha over uploaded to (a photograph storage and distribution website popular amongst both amateurs and professionals) in a Toyota advertising campaign serves as a good reminder that the challenges posed by emerging technologies doesn't threaten only the rights of large content-owning corporations. As user-generated content (one of the hallmarks of the so-called ) increases in importance – both demanded by users and courted by companies – these sorts of disputes will likely become more and more common.

The situation with the Toyota ads is fairly straightforward. Toyota (or, more specifically, Saatchi & Saatchi Los Angeles, their advertising firm) set up a website promoting their 4Runner SUV. The website used various pictures that had been uploaded to Flickr by several photographers, at least some of which were duly marked “All Rights Reserved”.�� No permission was sought or obtained for the use of these photographs. Flickr users ; some got in contact directly with Saatchi & Saatchi. Ultimately, Toyota posted the following message in the discussion thread:

Toyota apologizes for pulling images from Flickr without photographer permission. Images from a handful of photographers appeared on a Toyota site for five days. We’re working quickly to reach out to the individual photographers involved. Until then, the images have been removed, and corrections have been made to the process of pulling images from Flickr.

The affected Flickr photographers reported differing levels of promptness in their dealings with Toyota and Saatch & Saatchi, but currently the links back only to Flickr photos which note that the photos are now being used with permission.

Although this story seems to have been settled amicably enough, it does raise some questions. For example, although Toyota has apologized, they never explained how this happened in the first place. Presumably, a large and experienced advertising firm like Saatchi & Saatchi (who themselves are no strangers to IP controversy – they after using unauthorized images of Kurt Cobain, amongst others) should know better than to just grab photographs marked “All Rights Reserved” and use them in advertisements. No explanation has been offered, leaving many Flickr users with a bad taste in their mouths and feeding a perception that, regardless of what copyright law demands, powerful organizations have a feeling of entitlement and privilege that leaves individuals severely disadvantaged. In response to Toyota's apology, User “” wondered if a car thief could respond with,

We apologize for aquiring [sic] vehicles from Toyota without permission. A handful of vehicles disappeared from Toyota dealers for five days. We’re working quickly to reach out to the individual dealers involved. Until then, the vehicles have been returned, and corrections have been made to the process of aquiring [sic] said vehicles from Toyota. ��

If intellectual property is truly property like any other, and infringement does equal theft, idog~'s dissatisfaction with Toyota's response is understandable. Flickr user “” expresses a typical frustration with the perception of unequal positions with the comment that,

Major corporations have NO ethics.. it is always about their bottom line or just $$$$.. If they can use someone else's work, rather than pay anyone, they feel entitled.. It is agains [sic] the law and most Corporations have deep pockets and NO fear of individuals.... Steamed up now..

Snorri Gunnarsson, one of the affected photographers, noted the hypocrisy on with, "when big corporations and well known ad agencies that of course have their own work copyrighted to the teeth, start behaving like kids on Pirate-bay, then that is just too much."

These sorts of conflicts will likely only increase as corporations seek to attract customer loyalty through incorporating user generated content in advertising campaigns. Toyota itself recently launched its “” campaign, which seeks to attract user submissions.

Ironically enough, there are also examples of how even the most zealous advocates for strict copyright laws can run afoul of the law. American Senator Orrin Hatch, for example, infamously called for the creation of technology that could remotely destroy an accused copyright infringer's computer. It was quickly discovered that . The party of French President Nicolas Sarkozy, advocate of France's “3 strikes” graduated response law, has itself been copyrights . Even the MPAA, a great advocate of stricter infringement laws, has had problems, most notably when they were for distributing GPL software in violation of the licence.

At the forefront of these sorts of issues are licensing concerns and ignorance. Flickr's popularity with professional photographers is largely a result of its relatively hands-off approach to its user's copyrights. Various user-defined licences to third parties, , are recognized by its Releasing something under a “” license, however, is no guarantee that it will be respected. Bradley M. Kuhn of the , for example, of the per day. Even more troubling, however, is how poorly these licences are understood by many users. A quick , for example, reveals many fundamental misunderstandings about the nature of not only a Creative Commons licence but copyright licensing in general.

Speaking of GPL violations, the Software Freedom Law Centre notes that , and can usually be resolved in a friendly manner. This highlights the importance of copyright education, for both individual users and employees of organizations. Copyright law has had something of a reputation for being both Byzantine and highly specialized. The days of the printing press as the chief source of infringements are long gone, however. As networking technologies blur the distinction between content producers and consumers it seems clear that increased awareness of both rights and obligations is necessary.

The post Pirates, Pirates Everywhere appeared first on IPOsgoode.

Where do we draw the line between commercial and non-commercial uses? Is this view the same across content creators and users?

A quick background

Creative commons licences are designed to help content creators (who own the copyright) communicate to their users which rights they have reserved, and which rights they provide to the users. (You can create your own licence ). These licences provide users with a ‘core right’ to redistribute works for non-commercial purposes without modification.

Given the costs of obtaining and granting permissions is beyond reach for the general public, creative commons has created a set of 6 licences that provide various rights and restrictions in standardized legalese. To date, CC estimates that these licences are attached to over 250 million web pages and creative works.

It’s a tempting compromise simplifying the struggle between the desire to adhere to arcane copyright laws and the desire to share. As such, these licences have become wildly popular in the online community - but they also raise several sticky questions:

(1) What exactly constitutes a ‘commercial’ usage?

(2) Is it enough to simply state that a ‘commercial usage’ is defined as anywhere profits are made?

(3) Can different usages be ‘more’ or ‘less’ commercial than others?

The report

A was commissioned by Creative Commons to answer this question from the perspectives of both online content creators and users. The study consisted of a questionnaire with a two pronged approach:

• An empirical study of the U.S. population
• A less rigorous study of the broader international online population

The report's significance is that these findings will contribute to the next revision cycle for the six main creative common licences.

The questionnaire itself asked respondents a set of situational questions and asked them to rate on a scale of 1 to 100 – where 1 was not commercial at all, and 100 was totally commercial.

Key findings

There is a general agreement among creators and users regarding the overall definition of commercial, stated in the questionnaire as “…primarily intended or directed toward commercial advantage or private monetary compensation”. ��I believe this definition is simply a broad restatement the most obvious tenets of the definition, so there isn’t much of a surprise that there is relative consensus among all parties.

However, there are interesting findings that came up on the more specific use cases where context played a role. Where the uses were for cost recovery or non-profits, a variance occurred between content creators and users. What I found noteworthy was that in many of these situations, content users had a stronger belief than content creators that these uses were in fact more commercial. Is this an indication that the growing awareness of the legal issues is coming to a point where, in some cases, users are more worried about infringement than they ought to be?

For the cases cited above, it is also important to note that these tended to push responses towards the 40-60 range – which essentially is the non-commercial / commercial gray zone. To me, it seems that from a preliminary perspective, the existing creative commons licences are not providing enough clarity in these areas. But a case for the primary objective of creative commons needs to be made here as well – how many situations should the creative commons licence account for before it itself becomes too narrow and thus confusing for the user?

I’m a huge proponent for the creative commons team – they’ve done a fantastic job in helping maintain that cybercitizens have good, legal sharing options available to them. In my opinion, the best approach to helping solve this quandary would be to keep the existing main licences – and add a secondary layer for content creators. The initial secondary layers should be focused on the areas cited in the report as being most ambiguous.��That way the creators would have a means to communicate how they wish to deal with special circumstances, rather than leaving it open to interpretation (and potentially misinterpretation) by all parties.

Please feel free to provide your comments and thoughts on this - I'm sure there will be plenty more room for debate as new revenue and distribution models arise in the coming years.

The post Copyright for the masses? It’s not quite as black and white appeared first on IPOsgoode.

(i) CC License Types

Traditionally, copyright adheres automatically on .�� Once a work is copyrighted, it is fully protected by the legal system and the author holds all its rights.�� Effectively, this means that everyone is prohibited from copying, adapting or publicly performing the work except the author.�� However, authors that elect to license works using CC licenses only reserve very limited rights for themselves.

All CC licenses are written from combinations of the following : (1) attribution - the author permits others to copy, distribute, display and perform the copyrighted work, as well as derivative works based upon it, but only if they give credit to the author; (2) share alike - the author allows others to distribute derivative works only under a license identical to the license that governs the original work; (3) non-commercial - the author does not permit the work to be used for commercial purposes; and (4) no derivative works - the author permits others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it.�� From these four conditions, there are : (1) ; (2) ; (3) ; (4) ; (5) ; and (6) .

(ii)��Enforceability of CC Licenses

While there have not been many cases involving CC licenses, : "[w]hen you violate the condition, the license disappears, meaning that you're simply a copyright infringer.�� This is the theory of the GPL and all CC licenses.�� Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license."

In congruence with Lessig's view, in , decided on August 13, 2008, the United States Court of Appeals for the Federal Circuit upheld a free copyright license, and explicitly pointed to the work of CC.�� The Court held that free licenses such as CC licenses set conditions on the use of copyrighted work.�� As a result, licensors using public licenses can seek injunctive relief for alleged copyright infringement, instead of being limited to contract remedies.

In addition, CC licenses have been upheld outside the United States.�� . ��In the suit, the District Court of Amsterdam found that when the magazine published photos taken from Curry's flickr account without asking for permission, it violated the non-commercial condition of the attribution, non-commercial and share alike CC license that governed the use of Curry's pictures.

(iii) Potential Problems with CC Licenses

While CC licenses may effectively generate publicity for creative works, that the licenses can create problems for professional authors.�� Specifically, she highlights the following considerations that authors should be aware of: (1) CC licenses do not require the author to be directly compensated for the uses made of a work; (2) CC licenses are non-exclusive - as a result, while an author can directly exploit, or authorize others to exploit, an original work, the author can no longer grant exclusive rights to engage in the exploitations; (3) works licensed under a CC license are unlikely to draw commercial interest due to the author's inability to offer any exclusive rights; and (4) once publicly licensed copies of a work are available, more licensed copies will be generated, and it will be too late to reverse course for any particular work.

Thus, while the six CC licenses have been carefully crafted to increase sharing and are likely enforceable consistent with copyright law, they may be better suited, as Professor Ginsburg has argued, to creators with well-remunerated day jobs, as opposed to professional authors.

The post Creative Commons Licensing: Types, Enforceability and Potential Problems appeared first on IPOsgoode.