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Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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The (“Winkler”) decision evokes the image at the beginning of a movie that states “Based on a true story….” Directors tend to state this at the beginning of a film to authenticate it. However, it is hard to imagine a director ever regretting this statement after the movie’s release. The late , one of Canada’s most famous true crime authors, perhaps would have felt some regret after the outcome of Winkler.

In Winkler, the Federal Court of Canada looked at the infamous of Lacun, Ontario. The eight-membered family is known for winning “.” Or did they win? Was it eight on eighteen? Did they ever actually fight? Justice McHaffie decided that none of the answers to those questions matter. The Court reaffirmed the almost century-old principle that copyright protection does not apply to facts (), but with a twist. Justice McHaffie stated: “an author who publishes what is said to be a nonfiction historical account cannot later claim the account is actually fictional to avoid the principle that there is no copyright in facts” [emphasis added].

In 2004, Nate Hendley and James Lorimer & Company Ltd, the defendants, released . The book recounted the history of the Donnelly family and the defendants admitted to having used Kelley’s books, and , as supporting sources. However, the plaintiffs, John Winkler and the estate of Theresia Winkler by her estate trustee, John Winkler, claimed that the books were very much fiction or mistaken. They believe then that the books are copyright-protected material. The plaintiffs' expert evidence states that The Black Donnellys is actually “” and mistaken.

The allows someone to protect works of nonfiction or fiction by way of copyright: “copyright protection does not extend to ‘facts or ideas’ but to the original ‘expression of ideas’” (; ; ). Nevertheless, the crucial point of Winkler is not the fact (pun not intended) that the books were fiction, but that Kelly classified his books as works of historical nonfiction. In other words, a person cannot claim what they are saying is factual and later retract their claim to reap the benefits of copyright.

This decision protects individuals from being misled by effective marketing. Nevertheless, Justice McHaffie also rooted his judgment in the longstanding public interest policy of the non-protection of facts. Canadian researcher and law professor, , turns to Justice Orde in to explain this notion. Scassa states that facts and information put forth as the truth should be available to the public to be “tested, challenged, verified, or disproved”. This notion is worth promoting, as society needs to test facts and information to progress and evolve.

While this may be new ground in Canada, the UK decision of concluded similarly to the Federal Court’s decision in Winkler and also reflected Scassa’s notion. In this case, the defendant’s fiction novel substantially copied the plaintiff’s work of historical non-fiction. In his decision, Brightman J stated:

“The author of a historical work must, I think, have attributed to him an intention that the information thereby imparted may be used by the reader, because knowledge would become sterile if it could not be applied. Therefore, it seems to me to be reasonable to suppose that the law of copyright will allow a wider use to be made of a historical work than a novel so that knowledge can be built upon knowledge” [emphasis added].

However, the judge ruled against the defendant, as the infringement was flagrant and exceptional. The defendant admitted to at least fifty instances of deliberately copying the language used and historical characters and significant events. .

The Winkler decision comes out at a time when society is dealing with what one would call “.” The Court made a critical decision to warn writers and artists alike that the law will not allow the industry to profit from false information passed off as facts. The decision comes at a time in history when anyone, including politicians and spokespeople can disseminate information on topics such as human rights, COVID-19, and other vital discussions. As of now, the plaintiffs have not indicated any plan to appeal the decision in Winkler. What is clear is that the courts will try to protect the public from the spread of fake news.

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Ali��Mesbahian��is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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Thanks to deepfakes, it is becoming increasingly difficult to tell whether a video is real or not. Deepfakes are machine learning processes that video and audio recordings using the images and sounds belonging to individuals not present in the original recordings in order to produce . As the technology behind deepfakes further develops, it becomes . What results is the widespread use of deepfakes for nefarious purposes, such as pornography ( of its use according to a 2019 inquiry), and influencing elections. The rapid development of deepfakes also threatens to influence our understanding of the world. What if we reach a point where it is impossible for a layperson to be certain of the veracity of a video in which someone is saying or doing something controversial? Politicians can then exploit the doubts that fill our perception to avoid accountability when real scandals arise. Danielle Citron and Bobby Chesney, law professors at the University of Virginia and the University of Texas respectively, call this the “liar’s dividend”. Because we are aware that deepfakes enable anyone to say or do anything in a video or audio recording, we lose trust in our eyes and ears, allowing accurate information to be veiled as “” in unprecedented ways.

Legal Responses to Deepfakes

Currently, that explicitly criminalizes abusing deepfakes. While remedies grounded in copyright infringement, defamation, and violations of privacy and impersonation in elections may cover deepfakes, we require a uniform and direct effort to combat their nefarious use. As Citron explains, a coordinated international response is necessary given how easily accessible falsified videos are from different parts of the world. We must also address this issue cautiously. As Chesney notes, granting the government regulatory authority to determine what is or isn’t true tends “”. In other words, the concern is that undue censorship may arise in the name of protecting the accuracy of information.

The recently proposed includes privacy provisions that may directly impact the regulation of deepfakes. Despite invoking the Charter, the Act “”. As Emily Laidlaw, law professor at the University of Calgary, explains, while the Act invokes human rights language, it is essentially framed as a , making corporations and tech platforms responsible for ensuring the privacy interest of their users and liable in case of a breach. Therefore, if the proposed framework is used to regulate deepfakes, we may return to the problem that I mentioned in my : outsourcing our fundamental rights to corporations and expanding corporate power as opposed to limiting it.

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