Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Is technology’s rapid rise really a great equalizer for improving social welfare globally?��

Professor Ruth L. Okediji is the Jeremiah Smith Jr. Professor of Law at Harvard Law School, where she teaches contracts, international IP, patents, copyright, and courses on Biblical Law. She is also the Co-Director of Harvard University’s Berkman Klein Center for Internet & Society. Her research and scholarship focus on examining innovation policy, the digital economy, and global knowledge governance. On September 29th, students and staff at Osgoode Hall Law School were honoured to welcome Professor Okediji in person at Osgoode, where she delivered a lecture on ‘’.��

The paradox is outlined as followed: while the existence of intellectual property (IP) protection is often justified by its contributions to improving human welfare (such as incentivizing innovators to create public goods), the benefits of technological improvements protected by these same systems are, in reality, not, experienced equally. . ��Legal regimes, including the IP system, often work to facilitate and increase global inequality by accruing wealth for their holders in the global north. However, this system often decreases the value of labour and unilaterally defines protectable subject matter based on imperialist norms.

In the tech sector, “skill-biased” advancements increasingly reduce opportunities for low-skilled workers, while elevating the productivity and earnings of high-skilled workers. Increasing prices of technology have only served to further disparities in access and skill development. The evolution of artificial intelligence (AI) systems, along with the effects of the recent pandemic, have also played significant roles in displacing human labourers. In terms of overall welfare, IP injustice is almost exclusively felt from the bottom-up.

In her lecture, Professor Okediji briefly charted the history of technological imperialism, and highlighted the structural, demographic, geographic, and cultural inequalities that arise from the modern IP regime. IP protection may no longer be said to primarily generate rewards and incentives for creativity and innovation. Instead, the structure of the modern IP system lends itself to be used as a vehicle to accumulate wealth and investment for the already affluent. Individuals and companies commonly ��engage in the strategic purchasing of critical blocking patent portfolios. For example, the rise of patent trolls, who litigate cheaply-bought patents, use the IP system as a legal weapon. Moreover, damage demands in litigation cases involving IP are rising. In 2021, for patent infringement relating to chip-making technology – one of the highest ever patent damage awards in the US. As modern IP regimes continue to tend towards serving purely economic interests, one cannot help but concede to the significant role that the modern IP system plays in perpetuating economic inequality.��

The global IP system is also ill-suited for the needs of developing economies. Not only is it inherently embedded in colonial traditions, even modern agreements such as TRIPS that seek to tie IP protection with trade policy effectively coerce developing nations into accepting stronger IP standards that are ill-suited to their needs. . Formal IP protection requirements such as standards of fixation, originality/novelty, individual ownership, or limited terms of protection, are all deeply rooted in Western ideals and norms, and often preclude valuable conceptions of innovation and creativity from Black and Indigenous populations in particular.��

Emerging scholarship increasingly demonstrates how inequality is embedded in the very foundations of IP law. In considering proposals for doctrinal reform in order to address these inequalities, Professor Okediji emphasizes the need to thoroughly explore related institutional and technological trade-offs, and advocates for radical transformation. Exceptions to international IP standards, enforcing mandatory licensing provisions, or speaking about “access” as the primary measure of equality may no longer be enough. Instead, we should focus on engendering educational reform in law schools, boosting literacy, improving the quality of education in marginalized communities, or developing and ameliorating community healthcare systems. Just as the problem is deep-rooted, the solution must be as well.

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Photo by Thomas Kelley ()

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

What does it mean to be a rockstar? A metalhead? A good-for-nothing punk? A rebel without a cause? One can easily conjure up the image of a “rockstar” identity or lifestyle that appears inseparable from the genre itself. Just as coalesce around particular musicians, artists, or genres of music, so too do instruments, music labels, and brands. Add a little mystique or appeal, a , superstition, and a dedicated following, and you have a growing eager to participate in its own traditions and identity-formation.

Historical Context

Accompanying the advent of was a Familiar companies like Gibson, Fender, and Martin quickly grew to widespread acclaim. Models such as and Fender’s and emerged and remain to this day an essential part of most guitar players’ or collectors’ dream lineup.

Gibson and Fender’s signature craftsmanship and quality due to changing economic circumstances, decisions to cut material costs (while keeping a high price point), and new ownership. American-made guitars had largely dominated the market in the 50s and 60s. However, the mid-70s brought in a host of new, Japanese-made guitars that () surpassed the quality of their US competition. These instruments had the significant benefit of looking to the models that made Fender and Gibson household names—without the steep prices. Copycats collectively became known as “.”

In 1977, . in Philadelphia for , seeking to protect their signature headstock design. The case was never heard, as the two companies reached a . Ibanez ceased production of their lawsuit guitars outright, and instead focused on the 80s saw the rise of and increasing trends for features that would augment over the traditional Gibson/Fender designs. In catering to these niche preferences, Ibanez established itself as an original guitar manufacturer in its own right.

The Allure of a Lawsuit Guitar

What appears to be a literal manifestation of legal issues to some is precisely what makes lawsuit guitars by Ibanez—and other Japanese manufacturers like Bunny, Greco, Tokai, and Takamine—so special. Examples include a that looks suspiciously like the Gibson logo, the styling of , and even the . Most importantly, the economic benefit of purchasing a , high-quality guitar speaks for itself.

A fascinating circumstance where the copycat takes on a new life of its own, indeed.

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The Guide’s primary author is Canadian . In the Guide’s acknowledgments, Pantalony recognized the instrumental help of fellow Canadian art IP expert . Art and law commenters the new guide, but that it fails to address what museums can do when faced with copyright law shortcomings born from the in counterfeit art facilitated by new technologies. The Guide openly states that it “does not argue for strong or weak IP protection” but rather focuses on how museums can manage IP while balancing their societal mandates to be centres of learning and intellectual curiosity.

Analysis: Guide Review

This 90-page document is a must read for anyone in the museum, art or cultural industries. It’s an accessible, straightforward read. Given the variability in copyright and intellectual property between countries, it acts to whet the appetite of anyone looking for a general guide to the issues of art and culture preservation within a legal context.

Moreover, the document flows brilliantly. The author takes the reader through introductory definition chapters; for example, how copyright and trade-marks are defined in a museum context. The author then goes into heavier issues such as best practices for a museum IP audit. It also covers digital rights management solutions and notes on social media and museums. It includes case studies of successful museum IP management models around the world. Finally, it lists out important commercial considerations such as distribution, licensing and co-branding with non-museum entities.

In regards to the Guide’s attempt to take a neutral position vis-à-vis the laws themselves, there is certainly no such thing as neutrality, especially when it comes to museum art and ownership. One need look no further than the or the to know that even where the law is clear, politics pervades. Additionally, WIPO in its entirety has for its western cultural and legal bias.

Another controversial issues is that assertive museum IP policies – aptly described in Canadian Heritage Information Network’s (CHIN’s) as the demise of the “” – can have a on museums as educative experiences for consumers.��Growing focus on IP laws by museums increases the tension between museums and the consumers of the content; copyright versus education is one of the most common debates in intellectual property law. One of the most obvious examples of this, one that touches all of us, is the way museums choose to restrict visitor photography. Some museums believe that photos violate intellectual property, while some and ��are advocating for more open photo policies.

Even with these tectonic issues underlying museum IP and WIPO, the Guide does do a fairly good job of being fair. It attempts to stand back from the fray and be as politically agnostic in its recommendations as possible. And it succeeds.

On a final personal note, it’s nice to see the Canadian authors and those that influenced the document comfortably promote our domestic museum management practices on the world stage. CHIN's Community Memories initiative for smaller Canadian museums and community centre archives is profiled. The Guide also outlines CHIN’s North America-wide studies of museum IP and management practices. And finally, the Guide profiles the Department of Heritage’s launch of the , an online museum of internet-based exhibitions.

So even amidst mild criticisms of the Guide’s neutrality in regards to the current IP laws, it’s hard not to be proud of this document, its authors, and the progressive work that Canada has done to support museums and their IP management.

Denise Brunsdon is an IPilogue Editor, JD/MBA Candidate at Western University, and researcher for GRAND (Graphics, Research and New Media) Centre.

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On October 27, 2011 the European Commission adopted a recommendation calling for the nations of the EU to pool their resources and renew their commitment to the digitisation of European cultural texts and artifacts. These cultural materials are stored in Europe’s digital library, .

As , Europeana represents Europe’s homegrown response to competition from Google Books. Started in 2008 with only 2 million items, Europeana’s collection has since grown to over 19 million objects. These objects include digitised books, photographs, paintings, manuscripts, maps, newspapers, archival documents, audio and film. As Google’s resource digitisation project gained traction in the United States in 2008 and 2009, the EU launched Europeana as a publicly funded alternative that allowed them to sidestep the perils they perceived to exist in Google’s project. The European Commission worried about reliance on a corporate actor for the preservation and reproduction of their culture and history.

As outlined in both the and by the European Commission announcing the adoption of Recommendation 2011/711/EU, EU member states have been challenged to grow the collection to 30 million items by 2015. In order to achieve this goal, the Commission suggests that states seek innovative solutions and adopt programs that engage the private sector. As outlined in the , the Commission is hoping “to get more in-copyright and out-of-commerce material online and to adapt national legislation and strategies to ensure the long term preservation of digital materials”.

Over the last few years, the Commission has been pushing Europeana as a one-stop shop for the digital preservation of Europe’s shared history and culture. This recommendation is simply another representation of the Commission’s commitment to coming up with a pan-European solution which allows the citizens of Europe greater access to culturally significant items from the comfort of their own homes. As stated by the Commission on previous occasions and affirmed in the press release accompanying Recommendation 2011/711/EU, the hope is that Europeana’s content will spur development of educational content, documentaries, and tourism related applications. The Commission states that the digitisation project “will give enormous economic opportunities to Europe’s creative industries, which currently account for 3.3% of the EU’s GDP and 3% of jobs in the EU.”

Europeana and the digitisation activities associated with it are one of the “digital service infrastructures” earmarked for funding under the and the project plays an integral role in the European Commission’s . Europeana has also just launched two innovative projects. The first, entitled “,” is a project that allows citizens to submit their own stories and memorabilia from World War I. So far, Europeana has collected and digitised more than 25,000 items as part of this project.

The second project Europeana recently undertook was the “”. As part of this project, 85 developers were given access to Europeana’s content in order to produce innovative prototype applications for mobile or gaming devices. With the adoption of this recommendation, Europe has once again affirmed its position that the digitisation of culturally significant objects and in-copyright and out-of-commerce represents an important undertaking that requires support from all of Europe’s Member States.

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