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

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The colourful Pride flag is a widely recognized LGBTQ+ symbol. The rainbow flag was designed by the late , an American artist and activist (1951-2017). The design was inspired by the American flag and the history of the nation. According to Baker, The political activism of Baker’s close friend, , further inspired him to develop a visible proclamation of pride.

Today, the rainbow flag is an symbol—so much so that it is recognized by a prominent art institution, In 2015, the flag joined MoMA’s permanent design collection as a Despite the worldwide acclaim, Baker with the flag. He deliberately wanted it to be a free symbol for all, with unlimited use.

Before the Pride flag’s creation, The triangle was created in Nazi Germany to identify and stigmatize homosexuals who were seen as a during World War II. Though reclaimed by the LGBTQ+ community, the symbol was effectively an oppressive device carrying an incredibly negative and traumatic history. something to celebrate love.

in 1974. Milk was an American politician, remembered for his activism and for being . Before his in 1978, Milk led a positive civil rights-focused campaign, and challenged Baker to create a positive pride symbol of hope. Baker was by his friend . to design a symbol for

The 1970s were a markedly rebellious and productive time for gay rights activism. The of 1969 were a series of riots in response to police raids that specifically targeted gay communities. Stonewall is widely regarded as the first ever Pride event. The riots sparked a decades-long that accomplished a wide array of legal rights and acceptance for LGBTQ+ individuals worldwide.

The first Pride flags were at the in San Francisco (SF). Baker, then 27, along with about thirty volunteers fundraised and gathered thousands of . The collaborative flag-making was important to Baker, as it demonstrated a genuine connection to each other and the community. These first flags were raised in the After Milk’s death later that year, , led by . This spurred increased demand for the rainbow symbol and the start of something new.

In one of his last , Baker stated, “we needed something to express our joy, our beauty, our power. And the rainbow did that.” Initially, the flag was made up of . The colours were cut down to seven, to meet demand, and then down to six, for greater visibility from afar. For Baker, a rainbow was a of hope and each colour represented an aspect of pride.

Hot Pink = Sex, Red = Life, Orange = Healing, Yellow = Sunlight, Green = Nature, Turquoise = Magic/Art, Indigo = Serenity, Violet = Spirit

“Original 8 color Flag: 1978” available at .

Up until his death, Baker continued his activism and utilized the flag for such purposes. In 1994, for the 25^th anniversary of the Stonewall riots, he prepared a . When he passed in 2017, he was to commemorate Stonewall’s 50th anniversary. His life’s work solidified him as an important LGBTQ+ figure.

Through the years, the Pride flag has gone through several redesigns by various individuals. Notably, in 2018, designer Daniel Quasar updated the flag in the name of diversity and inclusion to create the . Quasar added five more colours to represent racialized and transgender communities, as well as lives lost to AIDS. Redesigns like these are legally possible due to the public use nature of the Pride flag. However, unlike Baker, Quasar released their flag under a , keeping some control over their redesign. They received for this decision, as many share Baker’s sentiment that a Pride flag should be owned by all.

“Progress” Pride Flag by����is licensed under a��.

What people may not know of Baker’s famous Pride symbol is that the original flag came close to being from public use. In 1978, Baker visited LGBTQ+ focused civil rights attorney seeking trademark assistance regarding the flag. An advocacy organization tried to register the copyright of the flag as their own. The group alleged that since the flags were created at the centre, it belonged to them. Baker this with the help of Coles. He didn’t want the flag for himself, nor did he want compensation. Throughout his life, he chose never to enforce his ownership under the U.S. Baker maintained that the flag should be for public use and owned by everyone.

The rainbow Pride flag lives on as a world-famous symbol thanks to Baker’s critical IP decisions. The undeniable hues can be seen almost everywhere this June. It is difficult for me to imagine what the status of the rainbow flag as a Pride symbol would be had it been successfully restricted under U.S. law.

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The public domain as the “storehouse of the raw materials of creative expression, freely available to all.” Integral to��the copyright system, access to the public domain facilitates��the spread of knowledge as well as innovation, artistic freedom and more. Furthermore, access to the public domain should ideally allow for dialogue and the debate��of various ideas. Some believe in “a public domain that reflects and protects the dialogic processes of culture on the face of increasingly restrictive intellectual property structures.” ��compare it to freedom of speech, claiming that “both the public domain and the principle of free speech construct, or aim at constructing, a communicative sphere, where people can interact with each other in various circles, whether it is an interpersonal circle, a communitarian one or a wider political circle.” No matter what concept you ascribe to, however,��dissuading��editors from publishing newly edited versions of Mein Kampf runs counter to the��spirit of a robust��public domain. What is important here is not the unrestricted availability of the manifesto as a symbol of humanism-contradicting��ideologies, but rather the unrestricted access��to��a pedagogical tool that can spark��dialogue through commentaries and annotations, and the contradictions or lies these notes can highlight.

Mein Kampf’s history after Hitler’s death also justifies a reedited version of the manifesto. Having inherited the rights over the book from the Nazi leader’s estate, the State of Bavaria was able to the copying and printing of new editions in all of Germany. Considering the historical and legal context, that decision was understandable, but ultimately incompatible with the copyright system.�� The public domain plays a crucial role in the of intellectual property, a system defined by monopolies and exclusive rights. By preventing further publications, the State of Bavaria used this very system as a tool for censorship, when the systems'��primary goal is actually to . If the public domain is indeed to act as a balancing sphere, then its respect calls for the existence of an annotated, explanatory version of Mein Kampf as opposed to yet another form of censorship.

The reediting of Mein Kampf is even more relevant in today’s context than it ever was. Once it falls into the public domain it will be available to anyone and everyone via the Internet. The digitalization of our society is an to the access of the public domain, but it also makes ideas even easier to propagate. The State of Bavaria’s ��to limit the distribution of Mein Kampf in other countries have been mostly unsuccessful, as Hitler’s book has become quite popular in certain regions of the world, including��the . Mélenchon was right to say that , and concerns coming from the propagation of Nazi ideology��in an already fragile Europe are legitimate.��The counteracting existence of a pedagogical,��annotated version of the manifesto, however, will be more than necessary to fight the possible misuse of Mein Kampf and explain the pitfalls and horrible consequences that can arrive from such a point of view.

Allowing the publication of Mein Kampf may seem counter-intuitive, as no one can deny the dangers of the manifesto’s ideology. We cannot deny, however, that the book is part of our global history and��heritage. The public domain plays an essential role in��the ��by refusing to��edit��out��historical lows so that we can avoid repeating the��mistakes of��the past. Its purpose is to let us grow as a society, through access to��knowledge.��By not making a distinction between immoral and moral works, the public domain has decided to stand by the belief that “.”

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.

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The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse.[1] There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called “copyright wars,” of intense struggles—intellectual as much as practical, political as much as theoretical—between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. [2] This manifest��presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity.[3] The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily��rejects or dismisses rights-based accounts of copyright law—accounts rooted in a vision of the inherent dignity of authorship.

One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne,[4] the world’s first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory.

My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett [5] affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain.[6]

The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism.[7] At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts.

Following a sketch of the shared terrain on which the copyright wars take place (Part II), I make some observations about minimalism as a critical stance seeking to oppose a particular normative conception��of copyright law to the realities of copyright expansion (Part III). I then briefly describe the historical correlation between instrumentalism and copyright expansion (Part IV). I conclude with some remarks��about the absence in instrumentalist discourse of an account of the necessary role of the public domain in copyright law, and about the presence of such an account in rights-based discourse (Part V).

[1]��See William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL��AND POLITICAL THEORY OF PROPERTY 168, 169–73 (Stephen R. Munzer ed., 2001).

[2] ��See, e.g., WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 1–41 (2009).��For discussion of copyright maximalism and copyright minimalism, see Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 285–88 (1996).��For discussion of copyright politics, see JESSICA LITMAN, DIGITAL COPYRIGHT (2001).

[3]��For examples of such contestation, see ROBERTA ROSENTHAL KWALL, THE SOUL��OF CREATIVITY 23, 53 (2010); Abraham Drassinower, Authorship as Public Address: On the��Specificity of Copyrightv vis- `a-vis Patent and Trade-mark, 2008 MICH. ST. L. REV. 199;��Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the��Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1548 (1993); Justin Hughes, The��Philosophy of Intellectual Property, 77 GEO. L.J. 287, 303–04 (1988); and Alfred C. Yen,��Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 518��(1990). See also Maurizio Borghi & Stavroula Karapapa, Non-Display Uses of Copyrighted��Works: Google Books and Beyond, 1 QUEEN MARY J. INTELL. PROP. 21 (2011) (arguing for��protection of non-display uses of digital works through data protection law in order to��account for authorship rights more adequately than traditional copyright law); Kim��Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 CARDOZO��ARTS & ENT. L.J. 1059 (2008) (calling for a recognition of the tradition of authors’��rights extant in the Anglo-American copyright regime).

[4] 1710, 8 Ann., c. 19 (Eng.)

[5]��1774, 1 Eng. Rep. 837 (H.L.)

[6] For varying formulations of that unease, see Anne Barron, Copyright Infringement,��‘Free-Riding’ and the Lifeworld, in COPYRIGHT AND PIRACY 93 (Lionel Bently et al.��eds., 2010); Maurizio Borghi, Copyright and Truth, 12 THEORETICAL INQUIRIES L. no. 1,��art. 2 (2011), http://www.bepress.com/til/default/vol12/iss1/art2; Maurizio Borghi,��Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment, in 5 NEW��DIRECTONS IN COPYRIGHT LAW 197 (Fiona Macmillan ed., 2007); Abraham Drassinower,��From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law,��34 J. CORP. L. 991 (2009) [hereinafter Drassinower, From Distribution to Dialogue];��Abraham Drassinower, A Rights-Based View of the Idea/Expression Dichotomy in Copyright��Law, 16 CANADIAN J.L. & JURIS. 3 (2003) [hereinafter Drassinower, A Rights-Based��View]. See also Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in��Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350–51 (1970) (arguing��that instrumentalist account provides a weak general case for copyright protection);��Diane Leenheer Zimmerman, Copyright as Incentives: Did We Just Imagine That?,��12 THEORETICAL INQUIRIES L. no. 1, art. 3, at 29, 54–58 (2011), http://www.bepress.��com/til/default/vol12/iss1/art3 (juxtaposing instrumentalist account of copyright��law with issues concerning the nature of the creative process).

[7] ��See Hugh Breakey, Natural Intellectual Property Rights and the Public Domain, 73��MOD. L. REV. 208 (2010); Abraham Drassinower, Taking User Rights Seriously, in IN THE��PUBLIC INTEREST 462 (Michael Geist ed., 2005).

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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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