Of the five cases, two do not seem particularly controversial. In the first case, Re:Sound v Motion Picture Theatre Association of Canada,[3] which involved the 1961 Rome Convention,[4] a unanimous Court agreed with the Copyright Board that sound recordings embedded in movie soundtracks were not (or were no longer) to be treated as sound recordings under the Copyright Act,[5] thus rejecting the application in Canada of an Australian precedent based on a similar fact pattern but on very different statutory language. Given the wording of section 2 of the Act, the outcome seems reasonable. While the Rome Convention might have led the Court to take a longer look at the appellants’ arguments that a pre-existing sound recording reproduced in a soundtrack is still a sound recording and/or that a new sound recording is created by ripping the soundtrack—based on the principle that statutes should be interpreted in accordance with treaties ratified or adhered to by Canada[6]—the statute seems rather unambiguous in defining a soundtrack as something other than a phonogram because it is not exclusively “aural”.[7] The idea that an existing sound recording ceases to exist under Canadian copyright law when (while) it is embedded in a soundtrack and re-emerges when ripped would deserve a longer comment, but the point is not one I wish to belabour here.

In the second case, Rogers v SOCAN,[8] the Court decided (unanimously on this point[9]) that a series of point-to-point on-demand transmissions of works constituted a form of communication to the public (covered by an exclusive right) even if each individual transmission was not, at least colloquially, public. The Court referred to the WIPO Copyright Treaty[10] and the making available right in that context. That case was, I believe, rightly decided if the normative basis for the definition of “public” that has applied to signals sent to groups of private homes, hotel rooms, etc. (which, together, constitute a “public”) is to be followed.

Two of the three other cases in the pentalogy were 5-4 splits. Not surprisingly, they are controversial. I return to those two cases below. I will also mention the fifth (and last case) of the pentalogy, namely SOCAN v Bell, later on. It is not particularly controversial but it needs to be contextualized. However, before embarking on our review of the cases, I wish to take the reader for a quick a tour of ancient China and Greece...

Featured here is the first part of a book chapter written by Daniel Gervais, Professor of Law and Director of the Intellectual Property Program at Vanderbilt University. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy appeared first on IPOsgoode.

The theme of the conference Law Culture Critique was organized into an array of extremely interesting panels that were categorized into various sub-themes including music, culture, gender, art and commerce. The call for papers explicitly encouraged the participation of graduate students, artists and community activists and attracted participants from both international and national institutions.

Distinguished Keynote Speakers included , Professor at the University of British Columbia, author and filmmaker, and Professor , international legal scholar and Chairperson of the Centre for International Legal Studies at Jawaharlal Nehru University in New Delhi, who attracted wide audiences and captivated them with their respective talks. presented a particularly inspiring and timely paper on the myth of corporate social responsibility, “Good Corp, Bad Corp: Corporate Social Responsibility and the Breaking of Society.” He argued that corporations are inherently created for the purpose of economic gain and therefore our reliance on them to fulfill selfless acts through their branding strategies of social responsibility is naïve. His presentation was extremely relevant in light of the devastation that claimed the life of over one thousand Bangladeshi people working in substandard conditions, producing clothing for Loblaw’s Joe Fresh line.

***

Fittingly, based on the theme of the conference, there were several papers concerning intellectual property law including that of panelist , a SSHRC Postdoctoral Fellow at McGill University, Department of Art History and Communications Studies who presented an intriguing paper on the use of copyright policy in the first panel, entitled Law, Symbols and Visual Cultures. Her presentation “Framing the Open: Photography and the Digital Circulation of Israeli Memory” commented on the practices of Israel’s due to the changes made to its licensing policy to create ‘open access’ for the digital images displayed on its website. These policies have the effect of allowing the free access to these digital images while simultaneously resulting in their control and prevention for political uses. The licensing policy was therefore not solely to ensure protection of the creator’s rights or for the purpose of monetization, but rather a tool to prevent political use. Although the content of the images were not at issue, it was the context in which the content would be used that was problematic. The :

“Altering the photograph or using it in any way that harms the name or the reputation of the State, the Government Press Office or the photographer.

Using the photograph for commercial advertising or political activity.”

***

Later that afternoon, , IP Osgoode member and Professor of Law at Osgoode Hall Law School, , Banting Post-Doctoral Fellow in Law and Culture at 91��ɫ, and Hip Hop artist and McGill Law School DCL Candidate, were featured in a thought-provoking roundtable discussion on Music, Law and Theory. Moderator Ali Hammoudi, PhD Candidate at Osgoode Hall Law School and Co-Chair of the GSLA, directed the debate towards hip-hop’s sampling culture.

Sampling is a technique that has, in several American cases, been held to infringe the rights of copyright owners by the courts. The panel confronted the practical, legal, and cultural norms concerning creation, reproduction, originality and attribution. Professor Craig laid the solid doctrinal foundation of these concepts in discussions on substantial taking, fair dealing, and the balanced originality approach enunciated in , while Martin challenged important contentions concerning originality and creative labour, the blurred lines between re-use and copying, and self regulating social norms. Salman presented information about the norms that govern the hip-hop community: hip-hop artists do not sue each other over the use of each others' work largely because sampling is an accepted practice. Quite frankly, as Salman put it – ‘they don’t care’ because it is considered to be an honour to be sampled rather than the appropriation of their work. For this reason, hip-hop artists do not expect to be remunerated for the use of these samples. It seems that in the context of sampling, the hip-hop community relies on social norms that do not always reconcile with the legal norms that corporate owners rely on.

***

A IP topic several years ago, graffiti returns to the forefront due to the cancellation of yet another in an Ontario art gallery because of the uncertainty surrounding graffiti artists’ rights in Canada. Dr. Laura Petican, an Art Historian, and I explored the medium of graffiti art historically, culturally and legally. Laura began with a discussion of Jean-Michel Basquiat and Banksy, whose works have not only transcended the ‘label’ of illegality, but have also become revered as fine art. The context of their street art (graffiti) however, continues to be defined as ‘vandalism’. Graffiti receives intellectual property protection when legal (i.e. when authorized) whereas the question remains “open” when it is not. As argued by , Professor at the University of Ottawa Faculty of Law, in her blog article entitled :

“There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works . . . .”

Although the artist is vulnerable in the context of the illegal street art he or she produces, in the gallery (what is referred to as the ‘white cube’), their works are considered to be legal, artistic and protected. This issue has not yet been explicitly addressed in the Copyright Act.

Coincidentally on the day of our presentation, the that a mural created by Banksy in 2012, which was subsequently physically removed from the building earlier this year, will be put up for auction for a second time in June “alongside pieces by Damien Hirst [and] Andy Warhol . . . .” The piece entitled “Slave Labour” was a ‘gift’ to a community in London. When the piece was from the community and put up for auction in Miami in February 2013, it was expected to sell for up to $700,000 USD, but was pulled due to the public outcry. No legal action has been taken yet. Although the removal of the wall is a question of property rights (no reproduction was made), this example highlights the parameters that define legal and illegal art.

***

, LLM Candidate at Osgoode Hall Law School, Co-Chair of the GLSA, and panelist, presented a fascinating paper on the implementation of creator rights and the legal infrastructure of copyright in Trinidad and Tobago. In particular, she commented on the evolution of hybrid art forms and focused on works of mass. She interrogated the ways in a particular conception of Trinidadian culture could be ‘protected’ within the existing framework of international cultural protection. Rather than side with one particular approach, she stressed the need to further investigate the social issues that inform copyright law and practical implications that arise therefrom.

***

On the same day, , Professor at the at the Université du Québec à Montréal, and I illustrated the way in which fashion designers attempt to define their work as either artistic, industrial design or both. We compared the perspective of fashion designers to the boundaries of subjectivity and objectivity used by the courts in order to determine the qualification of artistic work based on the intent of the artist in light of the recent United Kingdom Supreme Court case of . What is commonly followed in Canada is the objective standard in DRG v Datafile (1987), 18 C.P.R. (3d) 538. , Professor at the University of Ottawa, Faculty of Law and , Director of the Intellectual Property Program at Vanderbilt Law School, co-authors of (2d ed), suggest that

“[t]he objective test in DRG, which defines “artistic work” as a “generic description of the type of works … which find expression in a visual medium” is preferable to tests based on more subjective criteria such as the author’s intent, the audience’s perception of the “artistic-ness,” or evaluations by art experts or judges of aesthetic merit or value.” (Gervais & Judge, p 105)

In Professor Beaudoin’s experience, whether a fashion designer decides to create ‘artistic work’ rather than ‘industrial design’ is a difficult question that only he or she can determine.

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Unrelated to intellectual property law, some presenters used artistic mediums to investigate and interpret ‘law.’ In the panel entitled Theorizing Law and Art, , who recently completed his MFA in Documentary Media at Ryerson University presented a paper based on his entitled Defenders. Dan’s exhibition consists of interviewing and “paint[ing] a living ethnographic portrait of Canadian and American criminal defence lawyers in  . . . Detroit, New 91��ɫ, and Toronto.” He used images and videos in his presentation to portray the intricacies of the criminal justice system by allowing viewers to observe “criminal defense attorneys” from a different perspective. The Defenders exhibition remains at the until May 25, 2013.

***

The conference embodied an exceptional fusion of carefully curated panels, topics that were diverse yet intertwined and a wide representation of scholars and artists. The Osgoode Hall Law School GLSA organized a very professional, accessible and personable event. I look forward to attending next year!

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

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This follows the unwillingness or inability of the United States to modify its legislation that effectively banned Americans from gambling on foreign websites after under the . Antigua and Barbuda must now decide whether they will use the authority granted by the WTO and suspend some of the protection of intellectual property belonging to US rights holders.

It is not the first time that a WTO dispute-settlement panel has authorized what is known as the “cross-retaliation” involving intellectual property. Typically, when one WTO Member fails to implement the findings of a dispute-settlement panel, the other party to the dispute can be authorized to “retaliate” by imposing trade sanctions in the same area (as the dispute). However, in certain cases it is difficult, if not impossible, for certain WTO Members to retaliate in that same area. For example, when WTO panels found that its banana import quotas violated Ecuador’s rights under WTO Agreements, . This authority was never used, in part because Ecuador realized that if it did so, it would likely destroy the market for Ecuadorian music unable to compete with “free” European music.

Whether or not Antigua and Barbuda decide to retaliate as now authorized, the WTO decision is interesting on several different levels. First, it shows that, from the perspective of trade law, a dollar is a dollar. Copyright can be valued on the same common denominator as a banana or an online gambling site. For those of us who work in the area of intellectual property, this equipollency between very different types of activities and industries seems a bit contrived.

Second, the case shows that the WTO dispute-settlement system does not always work well when the “winning” party is a small country such as Ecuador or Antigua and Barbuda. A system of compensation, in which the “losing” party would actually pay the government of the “winning” party for losses incurred, exists in the WTO but it is mostly theoretical because it can only be used when the losing party agrees. This case shows that it may be time to reexamine the role of compensation in WTO dispute-settlement cases to avoid similar cases of hardly justifiable retaliation between unrelated industries.

Third, this is another case in which the United States is unwilling or unable to implement the findings of a WTO dispute-settlement panel that found it in violation of its WTO obligations. and has yet to implement the findings of that panel report, dealing with an exception preventing the licensing of music performed in most US bars, hotels, restaurants and supermarkets. This policy direction may eventually lead certain other WTO’s members to doubt the efficacy of the WTO dispute-settlement system.

In the particular case hard questions have surfaced as to the way in which the authorization given Antigua and Barbuda may be used. First, the authorization to retaliate is limited to the territory of Antigua and Barbuda. As a result, any use of that authority in the online environment will undoubtedly raise jurisdictional issues. In fact, if the authority to retaliate is used in the territory of Antigua and Barbuda in a way that affects copyright protection in other countries, including the United States, would that not constitute a violation by Antigua and Barbuda of its obligations under the TRIPS Agreement?

Second, how is Antigua and Barbuda supposed to evaluate how to leave $21 million of copyright value unprotected, given that this is the cap of the WTO authorization,  and what gain will Antigua and Barbuda make by selling copyrighted US goods? Will it affect Antiguan sellers of similar goods from non-US origins? Should one calculate the  “copyright value” (typically licensing) that is normally included in the price of such goods but will not be? What rate(s) should be used?

Third, as a matter of international law, some may question the WTO’s ability to suspend not just obligations under the TRIPS Agreement, but also under copyright treaties administered elsewhere, including the World Intellectual Property Organization (WIPO).  By somehow allowing Antigua and Barbuda not to comply with its obligations under, for example, the Berne Convention, to which both Antigua and Barbuda and the United States are party to, has the WTO Dispute-Settlement Body created a precedent that might be used in very different contexts?

Bottom line, this case demonstrates that while there are gains to be made by incorporating international legal rules in the WTO (in particular in the area of dispute-settlement), there are also potential risks in boiling all subject matter to a mere matter of dollars and cents. More importantly, a clear need has emerged for more work to be done on the interface between trade rules and rules that have their own history and normative underpinnings, such as copyright law.

Daniel Gervais is Professor of Law and Director of the Intellectual Property Program at Vanderbilt University. Before joining Vanderbilt Law School in 2008, he was Acting Dean of the Common Law Section at the University of Ottawa. His focus is on international intellectual property law. He is also Editor-in-Chief of the Journal of World Intellectual Property and editor of . In 2012, he became the first North American Law Professor elected to the Academy of Europe.

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