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.

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In the context of theatre, the presentation emphasised the function of the script as a text that comes into being with the purpose of being performed. This assumes significance for any meaningful analysis of the reasonable scope of the author-playwright’s moral rights. Empirical research reveals the inherently collaborative nature of creative processes in the context of creating theatrical works, which are often centred around workshopping. The workshopping process involves various agents, i.e., actors, playwrights, and directors assuming each other’s roles interchangeably and often radically reimagining the script such that it can be said to be collectively authored by the end of the process. This collaborative process is conceptually mutilated to fit the individualistic ideal of authorship under copyright law, producing the legal certainty and convenience of dealing with a single rights holder. The creativity emerging out of the that the complex, messy, unpredictable, and organically negotiated workshopping process entails is inherently of the nature of a . This is often obscured by the law’s privileging of the whose superior genius merits protection for both his personhood interests tied to the work as well as the public’s interest in receiving the work as it was originally imagined by the author.

What stood out to me particularly during the presentation was the deliberate academic choice that Dr. McDonagh makes in his work to explore and reveal the lived experiences underlying the arbitrary categories and standards that copyright law creates—legal categories that and insulate the law from critique by mystifying it via neutral rules and evidentiary standards. Using this context, I analyse joint authorship through a feminist lens in this post.

The strongest justification for moral rights emerged out of the theory, which meant to protect the author’s deep connection with his or her work, which is regarded as an extension of his or her personality itself. However, when an actor’s speech patterns are used to write dialogues, he or she could potentially be said to acquire a personhood interest in the script. Similarly, when a woman is recognised as a muse and the work created is dedicated to her as a tribute, it is possible that she has a greater personhood interest in the work that statedly reflects her personality than the male writer who decided to fix his expression around it. Rendering women and their experiences knowable predominantly through a also incurs public interest costs arising out of a homogenous public sphere where the lack of diversity of voices cripples creativity.

The recent decision by the UK Court of Appeals in seems to be shaping the contours of the law on joint authorship in the UK towards “identifying the true nature of the interaction between the parties”. The situatedness of this identification within crucial context makes it valuable to feminist scholarship in exposing power differentials among parties. However, the case also quoted Ezra Pound’s contribution to , a poem regarded as solely authored by T.S. Eliot. The Court held that despite Pound’s significant contributions, which were more than sufficient to justify a claim for joint authorship based on their nature and extent, the work was not jointly authored because “neither” poet regarded it so. Building upon a very insightful question put forth by Dr. Carys Craig, it is important to consider whose intention is considered crucial for a claim of joint authorship to succeed and what are its implications.

According to the British Columbia Supreme Court in , Canadian law required evidence of the parties’ shared intent to be joint authors in addition to working towards a common design and making significant expressive contributions to become part of a unitary whole. The Canadian Federal Court (FC) disapproved of this decision in by holding that Neudorf was incorrect in requiring evidence of the parties’ shared intent to be joint authors. The decision in Neudorf emerged from a reliance on US standards for joint authorship, such as those used by the US Court of Appeals in which held that the of any person to the status of a joint author must not occur unless every collaborator intended that the other be a joint author of the work. The FC in Neugebauer held that the Canadian Copyright Act was similar to the UK Copyright Act of 1912 in this regard and did not require the joint intent of parties for joint authorship. However, the FC in Neugebauer also held that the Neudorf standard was met in the case based on the facts therein. Thus, while Canada awaits an authoritative determination that joint authorship can be found in the absence of shared intent, the shared intention of the parties to be joint authors continues to have strategic if not determinative value in Canadian caselaw.

As per an empirical study titled ‘’, women comprise on average 30% or less of the artistic directors, directors, and playwrights in theatres in Canada, Australia, the UK, and the US. The widest gender disparity is conspicuous in the playwright category: 63% of the productions were authored by men, 22% by women, and 15% by mixed gender partnerships. In Canada, women make up fewer than 30% of theatre’s creative leaders, despite constituting a majority of theatre audiences (49% women compared to 40% men), a majority of all of theatre school students at the National Theatre School of Canada (58%) and writing plays that are 18% more profitable than those written by men (ironically, the routine excuse for non-production of women’s plays is that they are riskier at the box-office). I call this phenomenon the ‘ of women’s creative labour in theatre, which can be revealed by feminist inquiries into the power struggles involved in the creation of works of theatre. Women’s intellectual and creative contributions are susceptible to being cited out of male bibliographies, and trivialised as emotional labour that they are socialised and expected to perform. Often this male gaze can be significantly internalised and women may find it difficult to challenge the personhood interests of external actors in their personality and work by doubting the significance of their own contributions.

A jurisdiction such as the US, that requires the joint intent of parties to create a jointly authored work, can end up privileging the intention of the white male author who intended his work to be solely authored and assumed his female partner’s contributions to be those of a “friend and critic”. In a jurisdiction that recognizes authors’ moral rights, the moral rights would then vest in the male author as the legally entitled sole author because there was no common intention to be joint authors regardless of a “common design to create” and ��notwithstanding the actual creative contribution of the woman to the work.

A cause and effect of this feminisation is the pedagogical use of works by at theatre schools, which impact graduates’ choices as artists and audiences regarding the plays that they produce and support. There is arguably a public interest involved in developing and using the law with the purpose of fostering the creation and production of works by female playwrights in order to challenge a system premised on the reification of at the cost of alternative non-conforming identities, values, and works.

However, even as I write this, I am cynical of the potential of any reimagined copyright system to meaningfully further the goals of distributive justice because of the gendered and often privileged nature of 1) the required to be creative 2) the ability and impetus to one’s ideas in a medium and 3) to one’s claims in a court of law. Nonetheless, this recognition of the limited potential of copyright as a system to lead to social justice is useful to interrogate the values orienting its justifications and shed light on the extent to which they fall short of the objectives they unabashedly claim to fulfill.

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Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig.

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As a member of a creative industry, music, I have spent my life around authors – the creators of original work – and I know a thing or two about originality. In , the court took a close look at the meaning of originality in copyright law. As a benefit to its members, the Law Society of Upper Canada (LSUC) operated a reproduction service wherein they would photocopy requested passages from legal materials and send these reproductions to the requesters. In this case, CCH accused the (LSUC) of violating their copyright��by reproducing protected materials. In defence, the LSUC counterclaimed, asking for a declaration that the single reproduction of a limited selection of text, made either by the LSUC staff or a library patron, for the purpose of research, did not infringe copyright. This counterclaim was dismissed at the as well as the . However, at the Supreme Court of Canada (SCC) it was held that the LSUC was not infringing copyright when a single copy was made in accordance with its access policy.

The most interesting thing about is that the SCC, in its ruling, spent considerable time examining what exactly is meant by "original" as used in the . McLachlin CJ, speaking for a unanimous court, defined originality in copyright law thusly:

For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

My reaction, that this definition was flawed, was in response to the court's ruling that for something to be original, it need not be creative. Immediately, I began to list examples from music which could meet the above definition, but which would not be described by any musician as being original. (While it is out of the scope of this post, consider briefly a series of arpeggios, the writing of which would demonstrate both skill and judgement as described above, but would certainly not be considered original).

Contrast this with copyright law��in places such as Japan, where there is no originality requirement. Instead, Japan's copyright law requires that copyrightable works be expressed in This is exactly what I felt had been missing in the SCC's definition of "original". Now, let me tell you why I was wrong.

Explicitly including creativity as part of originality in copyright law would significantly raise the threshold works must meet to be copyrightable. The end result being, fewer works would receive copyright protection, and more would enter the public domain. As a musician I am in the somewhat unique position of being both a user of copyrightable works (as we all are), but also an author. I understand the balancing of copyright – the need to protect authors and their work, while still having accessibility for users. Including a creativity requirement in the definition of orignality would tip the scales in this delicate balance, shifting copyright to favour users, at the
detriment of authors.��By not including creativity, per se, as part of their definition of originality, the SCC has allowed for a threshold of originality which produces the balance copyright law aims to achieve.

I will admit that part of my need for creativity stems from an artistic, but perhaps pompous, concern that without it, seemingly "unworthy" works would be granted copyright protection. Thankfully, I am not (yet!) a member of the Supreme Court of Canada.

Nadia Klein is a JD candidate at Osgoode Hall Law School and is currently��enrolled in the course "Law & Social Change: Creative Industries"��(Winter 2014).�� As part of the course requirements, students are asked to write a blog on a topic of their choice.

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Although the Gibson case dealt with a common law offense, copyright law and art are no strangers to one another either in terms of boundary clashes. Though most forms of art can comfortably fit into a Copyright Act’s definitions of terms like “musical work” and “artistic work,” there is some art that pushes at the boundaries. One case in the visual arts was Creation Records v News Group Newspapers, [1997] EMLR 445, where a British judge found that objects floating around in a swimming pool could not qualify for copyright under the legal definition of a “sculpture” ; there is indeed something to be said for the fact that objects floating around in a pool, subject to waves, wind, and who knows what else might not be fixed in the ways copyrighted works generally need to be. At the same time, completely aside from whether copyright applies or not, it is not too hard to imagine a scenario in which things floating around in a pool might conceivably be understood as artistic. To be clear, I make no judgement as to whether such a medium could produce good art, I’m just saying it’s far from impossible to imagine a pool filled with water as a modern blank canvas, given the many materials contemporary visual artists are known to work with. One senses that, if popular art in the year 2013 were to take a sharp turn towards pool installations, copyright as it exists today would probably be ill-equipped to deal with conflicts that might arise from this social choice.

As a musician, I sometimes wonder what would happen if some rather unique musical works from the past few decades were put before a judge in a copyright case. For a time, it looked like Mike Batt and John Cage’s estate were going to indulge me with their dispute over a piece of , but in the end . So, instead, today I want to throw out a few examples of musical works from the 20th century that are interesting to think about not just as music, but also as copyrighted works, and see what kinds of copyright issues they raise. Note that these challenging works sometimes push at the edge of public conceptions of what music ‘ought’ be, so I feel a little obligated to remind readers that whether one thinks the art is good or bad is irrelevant in the case of copyright; or, as Judge Learned Hand once wrote:

“Certainly the qualifications of judges would have to be very different from what they are if they were to be constituted censors of the arts.” (Hein v Harris, 175 F 875 (CCSDNY 1910), aff'd 183 Fed 107 (2d Cir. 1923))

In other words, judge the art for whatever aesthetic value as you please, but divorce that judgement from that of whether a work deserves copyright protection or not. Whether the music is good or bad is no consequence to the law. So, in this spirit, let us consider works by three contemporary composers, and see what interesting copyright questions are raised by their art. To be clear, I intend to raise more questions than suggest answers in what follows, and I certainly don’t pretend to have all the answers to the questions I ask (I do have opinions, but sharing them isn’t the point of today’s exercise). Rather, the questions as a whole illustrate how at the creative edge of music, conventional paradigms of copyright cease to apply cleanly and bring about some uncertainty as to the correct application of the law.

Let’s begin with examples that straddle the line between visual arts and music. from American composer George Crumb’s first Makrokosmos (1972) for solo piano (through the magic of YouTube, you can listen to the entire set , , and ). Three scores are reproduced on the page: #4 Crucifixus, #8 Spiral Galaxy and #12 The Magic Circle of Infinity. What’s most striking about these scores is how they are visually organized on the page to correspond to reflect some aspect of the title; the musical notation, while present, is hardly conventional. There’s also something of a pleasing visual aesthetic in looking at the score (especially for the latter two), an asethetic that simply don’t reflect.

So the copyright question here is: are George Crumb’s above pieces musical or artistic works, as per the terms’ definitions in the Copyright Act? The categorization might actually matter; for example, in collective licensing, where tariffs are meticulously spelled out for each and every use, venue, work, etc., a work’s categorization may affect the rates a collective society can charge for its use in a given context. If I perform these works in a concert hall, should the royalty to Mr. Crumb be any higher or lower than the fee charged for exhibiting these scores in an art gallery? It’s a tricky question, for sure; the art’s categorization is at least partially in the eye of the beholder, according to the context in which the work is experienced.

Of course, Makrokosmos is just a warm-up exercise. Let’s move on to a more extreme example: Karlheinz Stockhausen’s (1928-2007) Helicopter String Quartet (or as it is known in the original German, Helikopter-Streichquartett), composed in 1993. You can consult the score if you want, but despite all of its nice colours, to really get a sense of what is going on, you’re much better off viewing an excerpt from a performance. for that when ready; but, be warned, it blows the minds of even seasoned musicians to think this actually happened!

As you can see, not content to have his string quartet performed in a concert hall (or even a more modest school gym, subway station or street corner), Stockhausen takes to the skies for the performance of his Helicopter String Quartet. I have no idea if the helicopters themselves are choreographed in some way or if Stockhausen allows them to fly whatever formation they wish. In any case, the performers and helicopter pilots go off and do their thing while the performance is radio-broadcast back to an audience on the ground through speakers. The audience is invited to view the performance from a distance, so to speak.

Now, to the copyright question. Imagine this (fictitious) scenario: after a recorded Canadian performance of the Helicopter String Quartet, one of the helicopter pilots from the recording launches a suit claiming credit as a performer, and thus a share of the royalties from broadcasting rights and the like. Should this be allowed? The term “performer” is not defined in Canadian copyright law, so the term would need to be defined by the courts. There are arguments on both sides. On the one hand, a helicopter is not really an instrument, and its pilot is not ‘playing’ the helicopter as if it were an instrument, either. Second, there is meaningful gap in our understanding that while both piloting a helicopter and playing the cello require skill, those skills are of such a very different kind that we conceive of them as being unrelated, certainly much more unrelated than, say, playing the cello and playing the piano. We conventionally conceive of the job of a pilot as more of a mechanical technician than we do as a skilled artistic performer. That being said, on the other hand, in this instance the helicopter is providing an important part of the distinct sound of the piece, a percussive background of sorts, and this sound constitutes an integral part of the Helicopter String Quartet experience—after all, if you don’t have helicopters for the Helicopter String Quartet, you’re not doing it right, and helicopters are of little use without pilots to guide them through the air. Additionally, copyright laws ordinarily protect plenty of ‘technical skills’ that might not be properly “expressive” in the conventional sense of the word, skills like producing master sound recordings or writing computer code; along the same vein, is there any reason technical expertise in piloting a helicopter as part of a work’s performance ought not be protected, if it contributes to the performance/realization of the work?

In short: what/who is a performer, under copyright law? If this is fairly straightforward a question to answer in most instances of music and the arts more generally, Stockhausen’s Helicopter String Quartet certainly puts the question front and centre, with unclear answers.

One of the most mind-bending works I’ve encountered and tried to rationalize under copyright has to be Surface Tension (2009), conceived by Eve Egoyan and David Rokeby. Rokeby himself describes the piece in this way just beneath a showing excerpts from a performance:

“Pianist Eve Egoyan improvises on a grand piano and each note she plays is presented visually on a large projection screen rising out of the piano. [...] The software, written by interactive artist David Rokeby, is designed to pick up and represent a variety of performance features like dynamics, pitch, harmonic relationships, durations of notes and pedaling. The result is a entrancing work in which music and image are intertwined in an extraordinary way, with neither element dominating.”

Having attended a live performance of this work, I can attest that the video accurately reproduces what goes on live. Essentially, music is improvised from an idea (for example, long, slow, elongated tones in the second movement), and the sound signal that results from this is sent into a piece of specially-designed software which then transforms those sounds into something halfway between an image and a video, all in real time. The video is projected on a screen for the audience to consider as it listens to the pianist.

Categorizing this work is itself a challenging task: is it a musical or cinematographic work? Or, even, is it a literary work, given the prominent role computer software plays in mediating the whole work-process? This assessment is complicated by the fact that it is the music that directly generates the visuals, though in a somewhat random way; specific notes are not mapped onto specific events, just a general development of the visual idea already under way. The fact that the whole thing is improvised by the performer (as opposed to read from a score) further complicates identifying what the preexisting “work” is independent of its performance; in some sense, the work can only be experienced through performance, in ways that, say, a poem, need not be. It’s clear that there exists a work somewhere in there, it’s just difficult to cleanly isolate it among all the interdependent factors that contribute its performance.

Second: is Rokeby entitled to a ascend to the rank of “performer” here? He is, after all, the author of the software that is generating in a sometimes random and sometimes orderly way an odd ‘video’ that matches the music. But is writing highly specialized and innovative software enough to become a performer, too, when that software is applied in artistic contexts? Or is he merely one of the authors of the work, separate from its performance? After all, Eve Egoyan could improvise exactly the same music at the piano without a video screen, and that would be straightforward enough to decide that she alone is a performer. But once we add the other devices in, the question of who is “performing” the work is trickier.

In summary: there is clearly art, but how clear is the place of copyright in that art?

Now, if I were accused of copyright esoterica here, I would well confess to the crime. But one of the underlying ideas of this IPilogue entry is that new art can push at the boundaries of what we all thought were settled questions in copyright law. What would we do if one of the above underground currents suddenly turned mainstream? Historically, we’ve periodically revised some definitions of the Copyright Act to keep up with new artistic trends: some time after sound recordings became a thing, we protected sound recordings; in the late 1980s when the definition of a musical work as “any combination of melody and harmony, or either of them” became unworkable in Canadian copyright law (say, due to the emergence of rap, which is based around rhythmic more so than melodic/harmonic musical ideals), the 1988 Copyright Act changed the definition to the one that remains on the books today (“any work of music or musical composition”). Yet, there’s still some delay between when an artistic/legal conflict emerges and when copyright law adjusts to recognize the conflict one way or another. While it’s hard to imagine helicopter-based musical performances taking off as a major musical genre, the idea behind Surface Tension is much less farfetched as a mainstream concept, especially in a society that already glorifies music videos. Who knows in what ways new artists might expand that concept; and who knows if copyright would be apt to deal with conflicts arising from the composition and performance of such works, in case such claims came to court. Slowly but surely, as creativity pushes forward, copyright’s goal posts move further away. That, indeed, is the problem copyright faces at the edge of creativity.

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

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