Dan Bereskin presenting. Photo by Prof. Pina D'Agostino

Pankhuri Malik is an IPilogue Writer, IP Innovation Clinic Fellow, and an LLM Candidate at Osgoode Hall Law School.

On August 31, 2022, IP Osgoode held its first in-person event in over 2 years and the first instalment of the IP Osgoode Speaks series since 2020. At the event, , the founding partner of the highly regarded IP Boutique firm , gave a lecture on balancing rights to freedom of expression with the rights of IP owners and users.

Being the first in-person event since the beginning of the pandemic, the lecture brought us back to an energised and inquisitive group addressed by Mr. Bereskin’s ease and sense of humour. Dr. Pina D’Agostino began with opening remarks, recognized the novelty of an in-person lecture in 2022 and acknowledged all the work that went into bringing it together.

Mr. Bereskin began his lecture by acknowledging the multitude of perspectives held by different IP enthusiasts, such as academics, IP owners and private practitioners. He recognized that the views he presents maybe termed as him “going over to the dark side.”

He proposed that in IP infringement cases where freedom of expression is a concern, an injunction should not be granted without proof of actual substantial harm or proof of likely actual substantial harm. This harm primarily consists of economic loss and reputational loss. It is noteworthy that, in the absence of proof of economic loss, Mr. Bereskin does not include mere rhetoric of reputational harm, without solid evidence, within the ambit of actual substantial harm.

To make his point, Mr. Bereskin used some interesting examples of how courts have treated parodies of IP rights around the globe. He discussed examples of corporate overreach by IP owners, such as Louis Vuitton and United Airlines.

Upholding Freedom of Expression

Most notably, Mr. Bereskin discussed two unsuccessful actions by Louis Vuitton (“LV”). The first was LV’s suit against artists Nadia Plesner. Plesner had used a sketch of an LV bag in her painting to showcase the commercialising of Darfur genocide victims to appease first world audiences. This painting was later reproduced on t-shirts which were sold to raise money for the genocide victims. LV sued Plesner alleging trademark infringement. Ultimately, Plesner won the case against LV and her rendition of the bag with the court upholding her right to freedom of expression over LV’s . Mr. Bereskin astutely noted that Plesner’s artwork would have been less popular if LV had abstained from legal action.

(Photo credits: )

Mr. Bereskin also discussed LV’s case against Haute Diggity Dog, a company that makes plush toys for pets to chew through parody of famous trademarks of luxury products. One such example is Haute’s “Chewy Vuiton” plush toys. LV sued Haute for trademark infringement and trademark dilution. The US Court of Appeals (4^th circuit), however, that Haute’s products are successful parodies of LV’s handbags, do not raise any likelihood of confusion and are therefore, not infringing.

Priortizing IP Rights over Freedom of Expression

On the flip side, we have the case of United Airlines and Mr. Jeremy Cooperstalk, a Canadian professor who catalogued complaints against United Airlines on the parody website “Untied.���dz�”. United Airlines filed a lawsuit in 2012 alleging IP infringement and confusion through the website which led people to believe that they are registering complaints with United Airlines themselves. This reasoning was dubious at best, since “���Գپ����’s” website denied any allegiance with United Airlines. The Federal Court however disagreed with Mr. Cooperstalk and held his website violative of United’s IP rights. Interestingly, Jimmy Kimmel’s amended slogan (“F**k You”) and accompanying ad for the airline in the US continue to be available due to the US’s stronger protection of freedom of expression.

Takeaways

Through these, and many more examples, Mr. Bereskin made a compelling case for not only recognizing creators’ IP rights, but also the limitations of those rights, especially when they conflict with the right to freedom of expression. Overexpansion of IP owners’ rights poses risks to freedom of expression and should be curbed before these rights go rogue.

For a student who did not get an opportunity to experience Osgoode and IP Osgoode pre-pandemic, the energy and fervour of the lecture hall, the brilliant insights by Mr. Bereskin and the surrounding conversations around his lecture, this lecture served as a unique insight into the power of hallway chatter. Surrounded by snacks and coffee, the lecture was a unique opportunity to learn from an IP legend. It also marked the first step in IP Osgoode’s next chapter where a hybrid system can bring together IP enthusiasts in a most enriching way.

Left to Right: Prof. Pina D'Agostino, Dan Bereskin, & Rhoda Gryfe. Photo by Ashley Moniz

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Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School

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On June 8^th, the Federal Court of Australia ruled that AGL Energy, Australia’s largest electricity generator, , an international environmental activist organization.�� The decision was an impressive win for Greenpeace as the Federal Court found that all but 3 of Greenpeace’s uses of AGL’s logo failed to amount to trademark and copyright infringement. Therefore, no damages were awarded to AGL.

One of the key uses of AGL’s trademark and copyright was Greenpeace’s tagline, “Australia’s Greatest Liability”. From 2019 to 2020, AGL produced of carbon dioxide equivalent emissions and operated Australia’s top two power stations in terms of greenhouse gas emissions.

An interesting reason for the Court’s judgement was that it found such uses amounted to parody and thus did not fall afoul of copyright laws, as it also added,

This case alone represented intellectual property (“IP”) law’s interesting relationship with freedom of expression, with a surprising decision in favour of the “little guys”.

Parody in Canada

The idea of using one’s logo or name to create parody does not solely create legal implications. As seen in the Greenpeace case, it can intersect with one’s freedom of expression, namely, to criticize. The balance between protecting the interests of IP owners and its “users” is a century-old struggle. ,

“The protection of authors, whether of inventions, works of art, or of literary compositions, is the object to be attained by all patent and copyright laws … On the other hand, care must always be taken not to allow them to be made instruments of oppression and extortion.”

Despite no specific legislation addressing the use of IP rights in parodies, the court has addressed the issue in prior cases using existing legislation. In copyright law, the defence of fair dealing can . In fact, this is found in where it states:

“Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

In trademark law, a trademark owner can invoke s. 22(1) of the Trade-marks Act to argue that such parody will be , after having to establish that their trademark was pursuant to s.4 of the same Act.

The likely Canadian outcome?

The same decision in favour of Greenpeace’s use of AGL’s trademark may be supported by [“Michelin”], where the court ruled that to successfully establish a s. 22 claim, In Michelin, former employees

In terms of copyrights, some uncertainty still exists as to how courts will address Greenpeace’s use as the court in Michelin emphasized that parody is not included in the defence of fair dealing, or even within the scope of criticism due to the intention of the copyright use being to However, it should be emphasized that Greenpeace’s position differs in that it posed true criticism of AGL’s non-environmentally friendly actions, which is beyond mere mockery.

Overall, I believe this Australian step may not lead to drastic changes in Canadian legislation, but I can safely say it is an important precedent for protecting freedom of expression and parody.

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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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The Federal Court of Appeal unanimously Canada’s first extensive website-blocking order on May 26, 2021. While framed as a decision that protects Canadians from copyright piracy, the judgement raises serious concerns regarding the Charter’s s. 2(b) guarantee of freedom of expression.

In November 2019, the TekSavvy and other major Canadian Internet service providers (ISPs) to block access to GoldTV’s unauthorized streaming websites following a request from telecommunication giants Bell Media, Rogers Media, and Groupe TVA. The broadcasters claimed that GoldTV infringed their copyright and asked that ISPs be ordered to block it. Since the , the order effectively impedes access to GoldTV services. TekSavvy appealed the decision, citing institutional legitimacy, freedom of expression, and net neutrality concerns.

Justice George R. Locke, writing for the Federal Court of Appeal, dismissed TekSavvy’s appeal with costs. In spite of TekSavvy’s arguments, he found that the Federal Court maintains the power to grant a site-blocking order. He also found it “not necessary” to decide whether this interlocutory injunction engages the Charter.

As advocated by the British Columbia Civil Liberties Association, “” Specifically, the affirmed order potentially violates the s. 2(b) Charter rights of the ISPs required to block certain websites and their customers, the Canadian public, by unduly restricting their access to sites containing possibly legitimate content.

The Federal Court of Appeal ruled that ISPs do not receive protection under s. 2(b). Since ISPs act as common carriers, providing their customers with access to websites regardless of site content, they cannot be considered to engage in any expressive activities warranting Charter protection.

But while the Court acknowledged that the website-blocking order may impair TekSavvy’s customers’ expressive interests, it ultimately agreed with the lower court that an extensive Charter rights analysis was not warranted given the Supreme Court of Canada’s decision in Here, Google appealed an order requiring it to globally de-index the websites of a company which, in breach of several court orders, unlawfully sells the intellectual property of another company. The majority engaged in a brief discussion of freedom of expression, noting that “even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.”

Freedom of expression cannot be used as a defense for facilitating unlawful conduct, such as allowing access to pirating websites. However, there is a fine line between restricting freedom of expression for lawful purposes only and enforcing disproportionate and potentially harmful measures like site-blocking orders that may inadvertently restrict access to legitimate content. While exceptional circumstances may warrant a site-blocking order, like those in 2009 as furthering the telecommunications policy objectives, internet and e-commerce law professor found site-blocking was not used here as a measure of last resort. Instead, he found that the decision leads to a “slippery-slope,” and that widespread .

Indeed, commentators from many international organizations are opposed to open-ended site-blocking orders. In 2011, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information released a claiming such orders are extreme measures, “analogous to banning a newspaper or broadcaster.” They found that they may only be justified in accordance with international standards. At the very least, safeguards should be in place to prevent misuse and over-blocking.

It is possible, though unlikely, that TekSavvy will . Given the high costs of appeal, appealing to the SCC may not be feasible for the Chatham, Ontario-based company. In the meantime, the Federal Court of Appeal decision sets a new precedent in Canada, arguably undermining the well-, in favour of protecting copyright holders from the possibility of copyright infringement over users’ expressive interests.

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

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As part of a recent effort to modernize the Canadian data and telecommunications legal landscape, the federal government proposed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (“Bill”). In a nutshell, the Act provides the (“CRTC”) new powers to regulate the internet. ”, the Bill proposes to expand the scope of “ to include online broadcasters such as (as part of new “online undertakings”), and impose regulations requiring these platforms to pay for Canadian content they air. Non-compliance will lead to large fines.

The Bill has legitimate objectives; Canadian creators (of music, movies, series, documentaries, etc.) ought to be adequately compensated for enabling streaming services to generate profits using their content; however, the surrounding the Bill signifies that its impact on civil liberties are just as important.

The Controversy

Essentially, the Bill seeks to “” by allowing the CRTC to subject online undertakings to similar regulations to traditional broadcasters. The glaring question for civil liberties advocates was whether user-generated content (i.e., media uploaded to Facebook, TikTok, YouTube, etc.) qualifies as an “online undertaking” under the Bill. If it did, this could imply the government has the power to oversee and regulate anything, from your online political expression to pictures of your cat.

In its initial form in November 2020, : “the Act does not apply in respect of programs uploaded by unaffiliated users to social media services for sharing with other users.” Yet by April 2021, the government unexpectedly revoked this exemption. ensued from the public, academics, The Canadian Civil Liberties Association (“CCLA”), and parties from across the political spectrum, compelling the government to once again change its position. In response, Canadian Heritage Minister Steven Guilbeault announced that upcoming amendments would make it that the Bill will not target user-generated content.

But according to Michael Geist, a Canadian law professor in Internet and e-commerce law, the proposed amendments will only make the Bill . While they limit the CRTC’s regulatory power, the amendments do not restore the original exemption. Moreover, the amendments add a new section specifically on the regulation of social media. The government therefore seems adamant to extend its regulatory reach to social media.

Implications for Freedom of Expression

The federal government’s refusal to restore the exemption may be understood in light of their broader effort to adapt to the realities and technological advancements of the information economy. Specifically, one of their goals is to combat . These extremely necessary and urgent objectives require a robust, evidence-based policy framework that systematically addresses numerous factors related to the technological infrastructure that gives rise to these problems. There are three main considerations.

First, as Geist points out, freedom of expression also entails the freedom “,” meaning that we ought to demand transparency from Big Tech with respect to the algorithms through which content travels to other users. As Yale law professor Amy Kapczynski highlights, a broader policy analysis in such cases would include paying attention to intellectual property and trade secrecy laws that from disclosing their algorithmic models.

Second, it is unclear what criteria will be used to judge what content is “Canadian”. Such absence entails regulatory discretion¾a slippery slope that may prove problematic. As warned by Cara Zwibel, director of the Fundamental Freedoms Program of the CCLA, the concern is less about what the government will currently do with these new powers and more about the ” this Bill opens in the future. With little guidance on regulatory criteria, “Canadian content” seems highly malleable. To implement regulations without explaining how to interpret them tends to grant the government sweeping powers that may detriment online expression.

Third, it is important to learn from the problems faced by other jurisdictions that implemented similar provisions, such as Germany and Australia. Their experience shows that corporations faced with regulatory requirements tend to by broadly taking down any content that may be construed to contravene applicable legislation, in order to avoid hefty fines. Especially with the new amendments in Bill C-10 providing specifically for the regulation of social media, we must stop and ponder if it is a good idea to outsource freedom of expression to Big Tech.��

If the controversy around Bill C-10 points to one thing, it is that complex social problems require solutions that empower civil society, not ones that grant the government blanket regulatory authority.

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The journey to Justice Schabas’ 2020 decision begins back in 2003, when the plaintiff Tommy Wiseau released The Room, widely acknowledged as one of the . The film’s unwatchability (it has been described as a “” that is “”), along with the mystery surrounding its creator, helped the Room to develop a cult fan base. The film has , and has lent inspiration to James Franco’s 2017 Hollywood release, The Disaster Artist, as well as a lesser-known documentary about The Room created by the Defendants and titled Room Full of Spoons.

In 2011, the defendants began work on their documentary titled Room Full of Spoons, with the project initially welcomed by Wiseau. As his support for the film waned, the defendants, who were already in the production process, proceeded with their plans for filming. What followed for the defendants were years of legal threats and egregious behaviour by the plaintiffs, and an eventual wrongful injunction preventing the release of their film, all of which is outlined in Justice Schabas’ decision and in his discussion of freedom of expression in Canada.

For documentarians in Canada, Wiseau Studio, LLC v Harper has changed the game. Previously relying on interpretations of the and advice such as that contained in , Wiseau Studio, LLC v Harper provides Canadian filmmakers with an authoritative statement defining documentaries as an allowable purpose under . In his reasons, Justice Schabas tells us that ��“”.[1]

Further rounding out this proclamation is the statement that many practices standard to documentary filmmaking can in themselves satisfy the second part of the fair dealing test regarding fair use. In looking at the purpose and character of the dealing, Justice Schabas points out that documentaries are rarely produced with the expectation of commercial profit, and that it is a common technique of documentary filmmaking to provide narration over the copyrighted work that is used, finding the use of clips from a copyrighted work for the purpose of commentary to be an example of fair dealing.[2] Regarding alternatives to the dealing, Justice Schabas notes that in a case such as this, when the documentary is about the copyright-protected work itself, there is “”.[3]

Justice Schabas’ decision drives home the notion that a core purpose of Canadian copyright law is to balance the rights of users with those of owners, and affirms fair dealing as a user’s right as opposed to a defence to copyright infringement. Justice Schabas points out that Fair Dealing exists as an important part of copyright law as it works to ensure that creators of critical works of public interest won’t be silenced by copyright owners whose original work they wish to critique, stating that Fair Dealing “”.[4]

The decision provides other practical guidance for documentarians in Canada, confirming that providing credit in the end roll will satisfy the attribution requirement for fair dealing[5], and providing insight into substantial takings (any justified taking must be very insubstantial).[6] The decision also provides guidance on technological protection measures, otherwise known as digital locks (), providing that any claim brought regarding digital locks must have an evidentiary basis.[7]

Beyond its colourful and at times incredibly frustrating facts, Wiseau Studio, LLC v Harper provides members of the Canadian arts community, and documentarians in particular, with a wealth of practical and authoritative guidance on Fair Dealing as a user’s right. Schabas’ decision is a strong statement on the importance of works that report and criticize, and on freedom of expression in Canada.

Written by Meghan Carlin. Meghan is entering her second year of studies at Osgoode Hall Law School and is a summer law student with Taylor Oballa Murray Leyland LLP who acted as co-counsel for the defendants in this case. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association.

[1] Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504 at para 183.

[2] Ibid at para 186.

[3] Ibid at para 190.

[4] Ibid at para 177.

[5] Ibid at para 170.

[6] Ibid at para 164.

[7] Ibid at 167.

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While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that��plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement.��The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was ��pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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Recent legislative developments in Canada and the United Kingdom (UK) have raised concerns that expansions in copyright protection may negatively impact freedom of expression rights. In June 2010, the Canadian Government introduced , the latest attempt to reform the Canadian . Bill C-32, modeled in part on the American , proposed to expand the rights of copyright owners at the expense of freedom of expression concerns. The UK’s , which received Royal Assent in April 2010, has also been criticized for expanding copyright protection at the expense of freedom of expression concerns.

My doctoral project, entitled “A ‘Charter Rights First’ Approach to the Intersection of Freedom of Expression and Copyright”, will examine the intersection of freedom of expression and copyright, an understudied area of both Canadian and UK human rights law. Copyright has been said to be both “the engine of free expression” and a restraint on free expression (). It has been said to be the engine of free expression due to the belief that the economic incentives provided by copyright laws spur individuals to create works that would not otherwise have been created. It has also been said to be a restraint on free expression, as copyright laws prevent individuals from legally engaging in certain speech acts or expressive acts using copyright-protected works.

Given the importance of freedom of expression and the potential for copyright laws to act as a restraint on free expression, one would anticipate that the intersection of freedom of expression and copyright would have received a great deal of judicial and scholarly attention. This has not been the case in Canada or the UK. Few Canadian and UK judicial decisions have addressed this intersection, and only a limited number of works have been written on this topic by Canadian and UK academics. By comparison, the intersection of freedom of expression and copyright has been addressed in many American judicial decisions, and by an impressive number of American academics.

The lack of attention by Canadian and UK courts and commentators to this issue is significant. Over the past century, copyright protection has dramatically expanded in the United States of America (US), in Canada, and in the UK (among other countries). Bill C-32 and the Digital Economy Act are simply the most recent Canadian and UK examples of this trend. As indicated above, expansions in copyright protection may pose threats to freedom of expression, as copyright owners have an increased ability to prevent individuals from expressing themselves using copyright-protected works.

My doctoral project will challenge the reluctance of Canadian and UK courts to use freedom of expression arguments to constrain the expansion of copyright law. Building on the ideas of American copyright and First Amendment scholars, I will argue that the Canadian Copyright Act and the UK’s copyright legislation should be rewritten based on freedom of expression principles.

Graham has received both a Trudeau Foundation Doctoral Scholarship ()��and a Social Sciences and Humanities Research Council Doctoral Fellowship to support his doctoral studies.�� See also his at the Faculty of Law at Dalhousie University.��Graham is also a member of Dalhousie Law School’s Law and Technology Institute and the Co-Editor-in-Chief of the Canadian Journal of Law and Technology.

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In Neil Netanel’s recent book titled, he advocates for a copyright system that puts freedom of expression at the forefront. He argues that copyright has been thought of as a property right despite the fact that it was originally conceived as a balance designed to encourage original expression. As a result, freedom of expression has come into direct conflict with copyright.

In , he considers the history of copyright law and comes to the conclusion that the conflict between freedom of expression and copyright has risen to the forefront by reason of changes in technology. Copying different forms of media has become easier than when copyright law was first conceived. Furthermore, with the expansion of the internet, the transmission and dissemination of works has become extremely convenient.

Based on copyright law’s original purpose, Netanel submits that the scope of rights given to authors should be determined based on its ability to serve as an “engine of free speech.” According to him, there are two reasons behind elevating free speech to such a level. Firstly, the enormous potential impact that copyright law has on free speech leads to the inescapable conclusion that free speech should serve to shape copyright. Secondly, free speech would likely be the only way to properly determine the scope of rights afforded to authors.

Netanel’s views of the US copyright system allow him to submit an argument where free speech and copyright inform one another. The fact that copyright is enshrined in the US Constitution supports to this result. However, in Canada, free speech, as enshrined in our Charter, would seem to indicate that it must dictate the limits of copyright as the Copyright Act must be consistent with the Charter’s rights and values. It is this prospect that I find troubling especially in the digital age.

In Netanel’s Introduction, he also discusses the ongoing lawsuits against YouTube and MySpace. I argue that despite the fact that all of the material on YouTube and MySpace can be considered some form of expression, there is a lot of material that is not original and simply a direct, impermissible, uncredited quote from the original author. One solution, currently in practice, has been blanket licenses by the likes of Universal Studios, but this licensing system really does nothing to promote original expression. Although the concept of originality does not jibe with the goal of free expression, I am somewhat unwilling to entirely give up on the concept. In my opinion, it cannot be denied that the copyright system does provide some incentive for original expression. A blanket license takes away whatever incentive, however small, for original expression that the copyright system could provide.

Furthermore, YouTube is not exactly known for preventing what are obvious infringements of copyright. One can frequently find full length music videos and television shows with very little added expression if any. In fact, one can even find users pirating other users; submitting material as if it were their own. Free expression does inform and should inform copyright, especially when it is clear there is meaning behind the expression. Unfortunately, in the context of YouTube, the possibility of abuse is far too high and any meaning is frequently hidden by blatant plagiarism. Freedom of expression, under these circumstances, should be limited to the extent that it can only inform copyright but should not override it.

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