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

The reported on August 7, 2022 that Innovation Minister Francois-Philippe Champagne and Heritage Minister Pablo Rodriguez are working on reforming the to include an artist resale right (ARR) within the scope of the act’s protections. First enacted in France in 1920, ARRs have now been adopted by in the world, including India, the United Kingdom, the Philippines and Australia. To understand why ARRs may come into force, it is important to assess the various arguments in support of and against this legislation.

ARRs formed part of the Liberal Party’s in 2021, but have been central to artist rights advocacy for according to – the Canadian Artists Representation / Le Front des artistes canadiens – a non-profit organization of professional visual artists. Under current Canadian law, artists such as sculptors and painters receive no profits from their works’ resale. One commonly cited example is the late Inuit artist Kenojuak Ashevak’s print titled . Hailing from Kinnigait (formerly Cape Dorset), Nunavut, Ashevak originally sold her print for in 1960. In November of 2018, a limited-edition Enchanted Owl print sold for $216,000 at Waddington's Auctioneers and Appraisals Toronto: nine thousand times the original price and breaking the record for the most expensive Canadian artist print ever sold via auction.

If ARRs existed in Canada, Ashevak’s estate would have received $10,800 for the sale of Enchanted Owl. CARFAC has been advocating for to be granted to the original artist or their estate, pointing to the fact that half of Canada’s visual artists earn less than $18,000 per year. In its , CARFAC also highlighted the reality that many artists living in isolated northern communities live in impoverished conditions, while their work dramatically appreciates in value. In , Rankin Inlet-based artist Theresie Tungilik noted that “[the] artist's resale right will have a positive financial impact as 10% of Canada’s export is Inuit art.”

The rise of NFTs and blockchain technology – despite providing an – has also provided opportunities for artists to be compensated for the appreciation of their works. The embedding of “smart contracts” in NFT sales allows for the Exercising control of downstream purchaser actions for traditional or non-digital artistic mediums is more complicated. Outside of , which protect the original artist’s right to be associated with the work without modification or destruction, agreements of purchase and sale generally enable the purchaser to do whatever they see fit with the work.

While organizations like CARFAC, (Society for Composers, Authors and Music Publishers of Canada) and (Regroupement des artistes en arts visuels du Québec) are staunch supporters of the artist resale right in Canada, other groups remain hesitant. Both the Contemporary Art Galleries Association (AGAC) and Art Dealers Association of Canada (ADAC) are , arguing that ARR collections would be a bureaucratic burden for small galleries, as well as raise the price of art and reduce sales. Interestingly, a study done in the UK by WIPO entitled “” demonstrated that the resale right had no negative impact of the price of artworks or the competitiveness of markets. The study also found that the market continued to grow after the implementation of the resale right in 2006.

Not all Canadian galleries oppose ARRs. Jay Isaac, an artist himself who runs the Peter Estey Fine Art auction house in New Brunswick, has to . Isaac told Canadian Art that “as a small, artist-run business I have to say the idea of a policy is great, and the idea of a resale right becoming law is great—but sometimes I think that [lack of law] is used as an excuse not to move forward. People with money and power should really be doing this anyway.” Although no specific amendments have been presented yet, it will be interesting to see how the conversation regarding ARRs continues to develop in Canada. Most importantly, ARR discussions provide an opportunity to consider how to best support our diverse artists and creatives.

Further Reading:

Michelle Mao’s IPilogue on ARRs and NFT loopholes

�����䴡��’s to the Standing Committee on Industry, Science and Technology as part of the statutory review of the Copyright Act

WIPO Magazine, “” by Catherine Jewell

Inuit Art Foundation’s

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Image by Tim Mossholder ()

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

From the limited scope of my research as a 1L student, as well as my personal interest, I have noticed a lack of creative voices within the legal realms that apply to them. On the one hand, social media has enabled global sharing of news and creative media. However, it also brings new dimensions to copyright and trademark issues. This observation, coupled with seeing multiple artists be exploited by Instagram users and large companies, motivated me to reach out to several creatives online and bring their voices to the IPilogue.

This article features three artists I met over the course of my research:

• Kaitlin Chan (they/she), an autobiographical cartoonist from Hong Kong;
• Tabathia Smith (she/her), a laser-cutting small business owner; and
• Michelle Rial (she/her), a Venezuelan-Spanish-American author and illustrator.

Their extended biographies are included at the end of this article. I am extremely grateful for their time and energy in sharing their experiences.

This article was prompted in part by Tabathia, also known as The Adorned Fox (“TAF”), whose spurred me to reach out and learn more about her experience. This interview has been edited for brevity and clarity; all emphases are mine.

Emily (E): What prompted you to protect TAF and trademark your brand?

Tabathia (T): "A company private messaged me, pretty much accusing me of trademark infringement. After doing my research on their company and trademark, it was very clear this business was trying to intimidate me into changing my business name in hopes I would just do what they say. It was a scary moment for me as a small business, as I couldn’t imagine trying to rebrand. That’s when I knew I had to protect TAF."

E: What were you looking for in your trademark lawyer? Do you have any comments on accessing legal services for yourself?

T: "I was very fortunate in having a father-in-law who knows a lot of lawyers. He reached out to several and they got me in contact with my trademark lawyer."

This was interesting to me as accessing legal services appears grounded in the power dynamic between independent artists and larger companies. According to the World Justice Project, in the past two years. Of those, were able to access help. These folks . This suggests that having a network of legally literate connections (or those who are connected to lawyers) is a significant asset in accessing justice on par with the utility of a lawyer itself. Tabathia also touched upon the issue of disproportionate access to justice for small businesses.

Based on these insights, I was curious about what artists who have gone through some form of legal process would say to their peers.

E: What advice would you give to fellow artists and makers on social media on sharing their work? Is there anything you would have liked to know before or during the legal process that you know now?

T: "If I knew [a trademark dispute] would have ever been a possibility, I would have trademarked my business name immediately all these years ago when I started. I would tell other small businesses that if you are serious about your brand and business, definitely look into protecting what’s yours. Also, it’s important to have [a] LLC [limited liability company] to start the process of a trademark. I didn’t realize that either until after talking with my lawyer."

Kaitlin (K): "My advice would be to not undervalue your work, no matter its scale or the size of your platform. It's easy as an emerging artist on social media to feel like you have to allow any kind of commenting, sharing, and reposting because you are a beginner; but you always have room to say no to having your work used or shared in ways that don't align with you. Your instincts are usually right about this."

Michelle (M): "There are ways to get your [infringed] work taken down by filling out a copyright report. No one is allowed to use or repost what you make without your permission. If something feels exploitative, it probably is and it’s within your right to get it taken down. Accounts often take a long time to respond if you ask them by sending a message. They will often be upset as well. It’s helpful to remember that they didn’t take the time to make anything, and they are taking your time, work, and energy, and reaping the benefit. They have no right to be upset."

Each artist emphasized the importance of individual instincts and understanding your rights. Although these artists were not subject to the Canadian legal system, the nature of the internet surpasses national borders, as do the practices and cultures embedded within them.

E: What would you like to see happen in terms of the culture of social media artists and their followers? What is your stance on people or large companies reposting your work on their accounts or other social media platforms?

T: "Honestly, my account came up in a time when artists and small businesses loved having features on social media platforms. It definitely got my accounts where they are today. Most were very nice to work with and always gave credit where it was due, which in turn boosted your pages. Social media now has changed so much; it’s mainly up to you to create good content or relatable content for it to “go viral”. It is a much different “concoction” than several years ago."

K: "What I would like to see is institutions and companies actively reaching out to people to clarify consent before reposting artists’ work[s] in their feed, especially seeing as corporate representatives may not even know if the artist wants to be associated with their��brand or company. There is an assumption that […] any attention is good attention, and I do not think this is always true. Sometimes, exposing a vulnerable creator to an audience who is not familiar with their broader portfolio and life context can be triggering and frustrating, especially if their work is about their experiences. Not asking someone if you can share their comic about depression before reposting it to your tens or hundreds of thousands of followers is irresponsible and can read as disrespectful of the time the illustrator put into the original artwork."

E: What has your experience been like collaborating with other makers? What about with larger brands (i.e., did you feel properly equipped to negotiate terms or conduct business)? What were some positive or negative experiences you’ve had?

K: "I have had difficulty understanding longer contracts, especially when I was first starting out. It was advice from other artists that lifted me up and taught me to look out for usage clauses—the ways in which my work could potentially be changed or used in the future. With basic negotiating skills and an awareness of how my work would be presented and utilized, I felt more empowered to ask for my true worth instead of just anxiously accepting whatever terms or fees I am initially presented with."

M: "It's often a negative experience because they never ask, and the culture is to use whatever you want. If it's an obvious��thing where they're "crediting" you but hiding your name behind their own promo, I go straight to copyright removal because I don't owe them anything; they’ve already used my work for free and benefitted. It can be beneficial to both parties if they are a large account that’s actually making an effort to showcase you as well as your work, but I rarely see that. Social media "gurus" will teach people how to exploit other people's work for account growth so everyone just assumes they can use anything. I often do not feel equipped to negotiate because brands are used to using anything they find for free."

It was especially impactful when Michelle noted that she is, “super negative on this at the moment, just because [she has] spent so much time trying to advocate for [her]self and it takes away the time [she] could be making things.”

I can attest to this. Following Michelle on LinkedIn, I see how often LinkedIn users repost her graphics to boost their own posts or announcements. I can only imagine the time it takes to catch these and comment to claim ownership and promote the book in which these graphics are published.

Through this limited sample of artists, I hope to encourage and remind legal professionals, marketers, and the broader public to consider their practices and use these reflections to inform decisions. Given the privileged position these professions hold, I believe more can be done to make the process of sharing art more equitable and mutually beneficial.

One form this could take is obtaining consent and structuring captions in a way that the artist prefers. For instance, should the first words in the caption state the authors name and account? How can businesses utilize the comments section and ability to pin individual comments to amplify the original creators?

Centering these experiences in one’s practice, no matter what jurisdiction or field, will be a positive step towards supporting all forms of creative development and the livelihoods of makers.

If you are an artist or small business owner interested in learning more about your intellectual property rights, the can help you obtain the information you need to get started. Learn more about engaging the Clinic’s services .

About the Artists:

(they/she) is an autobiographical cartoonist and gallery worker from Hong Kong. Over 17.3k followers on Instagram engage with their stories, which have appeared in The New 91��ɫer online (where I originally saw their work!), The Margins, Popula, ArtAsiaPacific, The Offing, AWRY, and the Hong Kong Visual Arts Yearbook. In 2018, they co-founded Queer Reads Library, a mobile library that centres queer Asian perspectives by curating publications, organizing reading corners, and hosting public programs. They are also an avid zine contributor, telling stories about quiet moments, friendship, and reflections about their life: everything from leaving religion and finding emo music, to friend breakups, and the banal beauty of city life.

is the maker behind , a hand-lettering Instagram account turned laser-cut, engraving, and painting business with over 66.5k followers. I originally followed her when she was still primarily a hand-lettering account, back in the days of one of my own (failed) attempts to participate in the “artstagram” community. Tabathia is a dynamic artist who strives to learn and grow in new ways, and is always looking to improve her craft as a small business owner.

is the author and illustrator of (2019) and its recent successor, (2021). She’s a Venezuelan-Spanish-American who calls the Bay Area home. She has amassed over 99.2k followers on Instagram with her candid graphics and charts of whimsical, everyday dilemmas of adulthood, including living with chronic illness.

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Everything breaks eventually.

It sounds bleak. But when it comes to the devices, machines, and tools we use every single day, it’s true. You’ll push down the lever on your toaster, but your bread won’t magically change into toast. Parts inside your car will wear out, even if you only do things the average driver does. The device you’re using to read this blog post likely has a battery or drive that will fail.

We’ve all encountered objects that stop functioning. When they do, we act, whether it’s getting the object serviced, fixing it ourselves, or even replacing the whole thing. But some manufacturers intentionally limit what people can do to get their stuff working again, even if you technically have the ability to try and repair your own things. Some manufacturers include . They might hoard proprietary parts and threaten third party part manufacturers. Some companies . Manufacturers can also make their devices without breaking them further. A right to repair can alleviate consumers of some of these restrictive practices and give them more options.

Manufacturers likely find it valuable to monopolize repairs. It’s questionable whether they are obligated to help anyone break into their products for repairs, considering that it might lead to piracy. Companies may arguably make higher-quality repairs on their own products, and worth the price. The device manufacturer should know how to diagnose and fix your device better than anyone. If a device cannot be fixed, manufacturers can even replace them.

However, it doesn’t make sense to restrict competition in the repair market just because a manufacturer can make quality repairs, or for fears of piracy. Even if we accept that third parties can’t meet the manufacturer standard, this fact will likely be reflected in the prices consumers pay third party repair choices. A lack of a right to repair isn’t preventing anyone from pirating either. Consumers should at least have the option to choose, and a right of repair could help them do so.

The US is taking steps towards giving consumers these options to anti circumvention exceptions in section 1201 of the Digital Millennium Copyright Act. Consumers in the US have been given extended to “break in” to consumer software-enabled devices for diagnostics, repair, and maintenance. Consumers will be able to use software tools or enable third parties to use tools to repair devices, where previously this access may have been. There are still limits, in that these , among others. The changes also cannot stop a company from sealing their device in such a way that makes it difficult to access for repair. But it does expand and get in. It’s a nice addition to a consumer’s right to repair their own things.

Canada should follow suit, potentially by adding “repairs” as a category to the Fair Dealing exceptions to copyright. Using software tools to repair a device might , which is prohibited in , likely due to piracy concerns. But, repair exemptions could benefit Canadians, and seems to already have . Additionally, codifying existing common law rights to repair one’s property sends a clear message that Canada is dedicated to protecting the rights of consumers.

A right to repair could help make our society less wasteful. It will give consumers more options to fix their stuff instead of going to the manufacturer to fix things. It could stoke competition in the repair market, which may lower prices. It may also convince more consumers to try the do-it-yourself route, saving costs on simple repairs, and allowing people to learn more about the devices they use every day. With all the potential a right to repair regime might bring, it would be unwise to ignore what the US has done and act on our end.

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A modern IP regime is crucial not only for Canadian businesses, but is a significant consideration for the government as well. According to the , Canada ranks 17^th overall in their 2020 Global Innovation Index (GII). This overall ranking results from Canada being ranked 9^th for Innovation Inputs and 22^nd for Innovation Outputs. This wide margin is concerning. It means that Canada’s Innovation Inputs (i.e. investments in research, talent pools, market sophistications, etc.) are not efficiently translating into productive Innovation Outputs (i.e. knowledge creation, business and market growths, intangible assets, etc).

Canadians are not patenting in Canada. In the most recent , it was found that Canadians make up only 12% of patent filings in Canada; it is ranked 2^nd behind the US which accounts for 46%. Further, Canadians submitted 4,348 patent applications in Canada but then submitted 13,301 patent applications in the US. What makes this statistic particularly alarming, is the fact that Canada has a strong and healthy innovative environment, but Canadians are just in Canada. Their IP is getting , which means less money flowing back into Canada. Having said that, Canada’s IP strategy represents a concerted effort by the government to improve their IP regime systematically, starting with educating Canadians about the importance of IP.��

The strategy still falls short in helping Canadians acquire IP rights and protection. IP is expensive, especially when it comes to . Patent protection can get even more expensive when considering the possibility of having multiple patents protecting a single product and the cost of enforcing patent rights through litigation. One potential legislative response is to reduce patent fees by changing the definition of ‘small entity’. Currently under , a small entity has “50 employees or less or is a university”. Canadians who claim small entity status receive a . In the US, a also receives a 50% reduction but the definition of a small entity covers 500 employees or less. There is good reason to align the Canadian definition to that of the US.

Although helping Canadians acquire IP rights is important, businesses should also be encouraged to exploit those rights in Canada. One method is to implement tax incentives that encourage commercialization. In the past few years, have introduced patent boxes (also known as innovation or IP boxes). A patent box provides tax incentives to businesses where income derived from certain qualified IP assets is taxed at a lower rate. Variations of the patent box have been implemented provincially in , , and , but . In a journal article that evaluated the effectiveness of patent boxes, the stated, “If the objective is to generate more domestic R &D activity, ex ante expenditure-based incentives may be preferable to a patent box. If, on the other hand, the objective is to retain tax revenues associated with patent income, a patent box is more suitable.” Theoretically, patent boxes are quite appealing and warrants consideration as a policy tool.

Yet there are also reasons for concern. In 2016, Jason Furman, Chair of the US Council of Economic Advisers criticized patent boxes and characterized the resulting international economic competition as for tax cuts. Australia’s Department of Industry, Innovation and Science in their echoed Furman’s concern and added that patent boxes are “open to abuse” by corporations and may only produce a limited and temporary effect. Ultimately, Canada needs to approach the patent box idea cautiously and see whether its benefits outweigh the costs in achieving national objectives.

Written by Ryan Wong, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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After the spate of hand-wringing among panelists about the lack of a coherent moral centre in IP laws, I thought I would play the devil’s advocate to defend the existence of one — albeit the antithesis of what reformers in general seem in all likelihood to be targeting.

From “integrated code” to “moral-centred code”

In 2009, Prof. Vaver on the codification of all IP rights under one single instrument, what he called a way overdue project. The that protect different types of IP, Prof. Vaver adduced, may be doomed for want of harmonization. As a result, the unification of IP laws into an integrated code was complemplated as a solution that would likely prevent the independent statutes from falling prey to their own incoherencies with one another.

Almost a decade afar from that lecture, the scholarly panelists suggest that IP laws must progress in a more radical way. They claim that IP must (re)gain moral authority to sustain its credibility in light of current social values such as “democratized access”. In this context, and have arisen as the cornerstones of the IP moral centre.

What are fair IP laws?

Prof. , one of the scholarly panelists, proposed that fairness in IP involves, in essence, resisting property rights fundamentalism. Further, Prof. Amani explained, it involves steering away from an author-centric protective approach and focusing more on the . Fair IP laws, thus, imply striking the right balance in the amount of protection warranted to inventors, so as to ease the tension between consumers and individual creators.

The pursuit of such balance, the panelists asserted in unison, have been addressed by theorists and practitioners by employing the language of “,” “,” and “”. Justice Roger Hughes, formerly of the Federal Court of Canada, remarked that the adoption of these new paradigm expressions — which are nowhere in any IP statute in Canada except in the — indicate that reform is way overdue to better accommodate this new branch of rights in light of current social values.

The panelists suggested that such a development may involve subjecting IP protection and enforcement to minimum . This, they claimed, would favour (a) proper , so that the benefits of an invention would be adequately shared between those who create and those who distribute; (b) between classes of ; (c) equal treatment to competitors in the market; (e) , and patent trolling; and, (f) deterrence of lobbyist and industry pressures from using innovation for political and oppressive purposes in the allocation of power and wealth.

A final recommendation from the panel was that collective values such as�� and be . That, it was submitted, is what will allow IP to stay in place. Hence, asking the right questions was proposed as an incremental step in the process of helping IP law (re)gain its moral centre.

A contrarian view

Shifting IP moral centre all at once may nevertheless be a daunting prospect. Such a shift may represent a disincentive for inventors and, to that extent, may with economic downfalls as a result of wealth and jobs cutbacks. So, when asking the right questions towards social goals, caution is needed not to impart an idea of “a whole day’s work for nix” that is prone to halt innovation.

All things considered, it seems in all fairness that IP laws do not lack a moral centre altogether. At the core of IP laws lays, at the very least, the encouragement of human abilities to create, innovate and foster significant advancements for the betterment of the society. The World Intellectual Property Organization (“WIPO”) ad nauseam how protection and enforcement of IP rights are vital to social development and economic growth across industries.

The mandate of minimal public interest requirements needs to be taken with a grain of salt in the face of the that strong IP systems have on a nation’s economy.

“Fuel for the Fire of Genius or Shelf Life of a Banana”?

The panelists suggested that a broad range of social values should steer a new statutory model for IP. Under this , , balance is necessary, and dissemination of distribution is the chief goal. Ultimately, a framework that is not prohibitive of fair dealing is needed. They claimed IP should fashionably mimic the social justice trend in the legal system to recognize the , to allow people to compete, , and to .

While modernization of IP laws is needed, stretching its moral boundaries to cause a radical breach of the traditional scheme conceived as may be off limits. The current shows that innovation and businesses travel swiftly across borders. As a result, it may be unwarranted to employ ill-defined, underdeveloped ��public interest requirements in the IP space if this may decelerate progress and make inventors’ creations tantamount to the shelf life of a banana.

Bruna D. Kalinoski is an IPilogue Editor. She has health science background from two years attending Dentistry School, holds an LL.M. degree from 91��ɫ (Osgoode's Canadian Common Law program), an LL.B. degree from the Federal University of the State of Santa Catarina, Brazil, and is a member of the Brazilian Bar Association.��

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In November 2008 and April 2012, Toronto Police Services executed a criminal search warrant at Dr. Flea’s Flea Market, leading to over $1 million of counterfeit merchandise being seized – some of which included Louis Vuitton products. Unfortunately, the flea market did not learn from its past mistakes. In November 2015, The Fashion Group Couture Group – a vendor operating out of Dr. Flea’s Flea Market – was once again caught selling counterfeit Louis Vuitton products. The well-known fashion brand is now seeking compensation from the landlord of the flea market for��negligence, vicarious liability, and (as will be focused on within this article) intellectual property infringement.

Unfortunately, lawsuits involving intellectual property infringement are certainly not unheard of in the fashion industry. From , to , intellectual property rights remain a significant issue for both corporations and individuals. However, what makes this lawsuit different from any other infringement within the industry?

It is common practice for brands to bring lawsuits against the��vendors of counterfeit products. However, bringing lawsuits against the landowners of retail space is a relatively new legal phenomenon in Canada. The ability to hold landlords accountable for their vendors’ activities has��already been established and legislated��under U.S. law. Canada, however,��has never��implemented regulations in this area, and is behind its southern neighbour.

One of the few guiding cases is In this case, the defendant was found by the Court to have infringed the rights of Chanel Inc., which holds the licence to use Chanel trademarks in Canada. Pursuant to����of the��, the Court granted: declaratory relief confirming the validity and ownership of the Chanel trademarks, injunctive relief precluding the subject defendants from continuing their infringing activities, and injunctive relief requiring the delivery up and destruction of any remaining infringing goods within twenty-one days of the original judgment. Ultimately, the federal judge ordered the landowner selling the knock-off goods to pay over $300,000��in compensation. However, without many cases in this area, the fate of Dr. Flea’s Flea Market is still subject to debate.

Landowners have argued that consumers are not necessarily cleared of responsibility either when it comes to purchasing counterfeit products. The gives tips on how to ensure that the product the consumer is buying is not counterfeit or pirated. Further, the website outlines the necessary steps if one suspects a bought product is illegitimate. For example, visiting the further warnings and information. Such caution signs include, but are not limited to, bargain prices, incorrect logos, and/or the lack of a certification label. Ultimately, landowners claim that it is extremely difficult to even tell the difference between authentic and counterfeit products. They argue that the consumers should be held accountable for purchasing the knock-off goods, and inadvertently funding organized crime.

Although this lawsuit is just beginning, one thing is assured: if Louis Vuitton successfully sues the owners of the flea market,��Canadian brands will now have an extra tool in protecting themselves against infringements involving intellectual property. With more at stake for landowners, this increased responsibility��will hopefully encourage landowners to better regulate the products that their vendors are selling. The question remains, is this enough to end the fight against counterfeit products?

Giuseppina D’Agostino, founder and director of IP Osgoode, commented on this lawsuit in a recent stating that, “Should the case be successful, it would increase pressure on landlords to monitor their tenants… [however] those changes will be toothless without enforcement.��You can have whatever contract written down, whatever law, whatever lawsuit, if it’s not enforced, the problem proliferates. […] I think it may change some behaviour in terms of landlords being more judicious in who they lease their space to but long term I don’t think it will really address the bigger problem of infringing merchandise.”

The reality is, even with a successful precedent set by this case, the need to codify reform in this area of law remains pressing. If one thing is certain, however, it is that no one��can��“flea” from Louis Vuitton,��not even the local flea market down the road.

Alessia Monastero is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the����has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law,��considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a��copyright infringement ruling��against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the��Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a��separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.�� Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows��legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's��representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in��Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist��Richard Prince��copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s��identical reproductions��of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,����saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist����were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is��’s appropriation of��’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of��. She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of����from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful��artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the��art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Participants, who were divided into groups of approximately seven people, engaged in a step-by-step process of designing solutions to improve the Canadian patent system’s navigability for inventors. The first day started by interviewing users of the patent system about their experiences with it. Each group then synthesized a Design Brief identifying the users’ main need in the patent application process and the reason for the need’s existence. Almost every group identified lack of easily accessible, easy-to-understand information from a reliable source as the main challenge to users. In addition, inventors expressed frustration at the unavailability of tools that would enable them to use the system without incurring significant costs, such as an efficient prior art search engine or templates for drafting patent applications. Admittedly, these needs may not have been entirely reflective of inventors in general, as the majority of the inventors who attended the Hackathon were operators of start-up companies. However, since these users have particularly limited resources, the challenges they face are especially important to address.

After identifying user needs, the teams brainstormed solutions to these needs and created a first prototype of the preferred solution. These prototypes were tested on the second day of the Hackathon by having two to three inventors experience them and provide feedback to the teams. After the groups modified their designs based on the inventors’ recommendations, they received further design and system review of their prototypes from User Interface and User Experience Designers. These experts’ input was particularly helpful for creating easy-to-grasp information without compromising the quality of the content.

At the Hackathon’s conclusion, the groups presented the revised prototypes of their solution and described the steps to be taken to further their projects. The designs presented by the participants were diverse and creative. One group devised a wizard that would assist inventors in drafting a patent application. Another group envisioned an app that would allow users to track the progress of their patent application. If the idea was feasible, the group encouraged Osgoode students to take on this project and create a commercial product. A third group produced a short educational video on intellectual property, supplemented by a questionnaire to help inventors assess what intellectual property rights may apply to their invention. The last group (to which I was assigned) designed an easily navigable website where users could obtain basic information about their IP rights and the various resources to help them manage these rights, from commercialization to defending an infringement action.

The Hackathon was an unparalleled opportunity to address some of the shortcomings of the current patent system in Canada. Because of the active participation of the system’s users in every stage of the design process, their needs could be adequately assessed and addressed. Moreover, the event facilitated communication between different stakeholders, so that each contributed their perspective and experience. The participation of CIPO representatives was particularly encouraging, as it demonstrated CIPO’s willingness to work towards improving the system that it administers.

The focus on innovation and its interaction with the patent system was a prominent theme of the Hackathon, as the objective of the event was to improve the patent system to encourage inventors to seek its protection. Participants had an opportunity to learn more about entrepreneurship and inventorship by speaking to the inventors about their experiences and from the talk delivered by Bill Mantel, Assistant Deputy Minister of Research and Innovation Ontario. Moreover, the design principles applied at the Hackathon were very similar to the typical process of innovation, whereby inventors identify a customer need, create solutions to address the need and test it against the user to assess the demand for their idea and market viability.

Overall, the Hackathon fostered a spirit of collaboration and started a frank, user-centric conversation about improvements to our patent system. Hopefully IP Osgoode will continue this important dialogue by organizing similar events in the future.

��

Anya Lavrov��is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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After Professor David Vaver’s light hearted introduction of Professor Dinwoodie’s long list of accomplishments and status as a “force of intellectual property internationally”, Professor Dinwoodie began his talk. He opened his lecture by indicating that his talk was part of a��working project on examining the dynamics of IP law in America, and��comparing whether the same dynamics existed in European IP law. Professor Dinwoodie proposed that a cardinal principle of IP law is that it is territorial, and it has always been that way even within the international systems since the late 19th century.�� However, global trade and social changes along with the creation of the online marketplace have called into question the practical relevance of this territoriality principle.�� There is a growing gap between the global reach of trade and the local nature of IP law, and what should be of interest to us is how we respond to this gap between the social reality and the legal principle of territoriality.

Professor Dinwoodie then put forth the question of whether we should reconfigure the legal principle of territoriality to comport with today’s commercial reality. He noted one approach worth paying attention to: the Community Trade Mark (“CTM”) created by the European Union (“EU”) about twenty years ago. The CTM allows European producers to try and adapt their trademark rights from a national basis to a regional basis, and has been mimicked, whether adopted or considered, around the world – for example, among the Russian commonwealth of independent states, by groupings of African countries - both French-speaking and English-speaking countries,�� a trans-Tasman mark for Australia and New Zealand , and a group of Portuguese speaking countries considering a��‘Lusófona’ mark. Professor Dinwoodie then said that this evolution in the approach to trademarks suggests that trademarks could be understood to have a connection to culture and language, and not necessarily solely territory as traditionally accepted by IP law. The room then pondered whether cross-country trademarks like the CTM would work here in North America – perhaps something like a “NAFTA” mark?

We were then presented with the three different dimensions to territoriality that would inform the rest of Professor Dinwoodie’s talk. Professor Dinwoodie suggested that territoriality could be understood as: (i) territorial laws (the applicable legal norms), (ii) territorial rights (the acquisition of trademarks and the scope of those rights), and (iii) territorial actions (such as issues regarding jurisdiction and relief). Consequently, Professor Dinwoodie noted that these three different aspects of territoriality each create unique problems for trademark law, with each requiring unique solutions.

To illustrate this argument Professor Dinwoodie began in the realm of American IP law, using cases like , and to demonstrate how the US has created two different conceptions of territoriality with respect to trademarks. Professor Dinwoodie suggested that there is both a political purpose (deriving from registration systems stemming from the territorial character of political institutions) and an intrinsic purpose (the defining of trademark rights by referencing the geographic reach of a mark’s goodwill) of American trademark law.

From there Professor Dinwoodie took us to Europe where we discussed the directive to harmonize legal norms and regulate through unitary rights as attempted by European trademark law. ��We explored in further detail the nature of the CTM and the importance of distinctiveness in trademark protection. I thought it was very interesting how in Europe a mark must be distinctive on all relevant grounds, in that a similar mark cannot exist anywhere else in Europe. This means that an application for an English mark could be defeated by the existence of a similar mark in Greece. Furthermore, marks in Europe cannot be descriptive – a secondary meaning must be shown in every country where there is a distinctiveness problem. In other words, if there is a problem with a mark in any part of the EU the applicant must be able to resolve the problem in each country where the issue lies (see ). Therefore, although the EU has tried with the CTM to create one trademark region, in reality the needs and challenges of twenty-eight separate territories must be satisfied in order for a trademark application to be successful. Trademark law in the EU is therefore not a total picture, but rather a puzzle – and if one piece is missing the image remains incomplete.

Professor Dinwoodie continued his talk with further discussions of the unitary character of the CTM in Europe, from dilution protection based upon reputation (as applied in ), to genuine use (see ). We then came to the issue of the scope of injunctive relief in regards to a CTM violation. As Professor Dinwoodie explained, if an infringement of a CTM is found an injunction for the infringing act is supposed to be put in place for the whole of the EU. However using French, English, and Dutch cases to demonstrate the different approaches to granting relief I found myself agreeing with Professor Dinwoodie’s proposition that the unitary market is a legal fiction in the EU that does not exist in fact. Professor Dinwoodie’s analysis demonstrated that the intrinsic territorial nature of a trademark’s reputation tends to restrict the political grant of EU-wide relief that is meant to occur.

Two main lessons were given to the room to think about in the final moments of the talk. Firstly, Professor Dinwoodie suggested that the value of remedial flexibility in preserving local markets might grow as political units enlarge. Secondly, he said that the dangers of a gap between the market and trademark law lie in reform that both forces change too quickly and reform that fails to keep up with changes in the market. As such, other approaches to territoriality and trademarks that are connected to the intrinsic territoriality of marks might closer align with our social and commercial reality. Professor Dinwoodie proposed that the EU should consider American systems such��as remedial flexibility and the use of disclaimers to avoid the issue of multiple trademark conflicts across the EU’s large regional area. Professor Dinwoodie then wrapped up his remarks by saying that while countries consider whether they should mimic the CTM in their own regions they must think about whether territoriality is best configured by a top-down political approach or if there are forces tied to the actual scope of goodwill that allows for a definition of territoriality that is not too far from the reality of the markets.

The lecture finished off with questions from the room – from Professor Vaver’s questioning of Professor Dinwoodie’s seemingly “cut and dry” comparison between intrinsic territoriality and political territoriality, to a question about the major problems countries may face setting up a model similar to the CTM. The entire experience was both engaging and informative as someone who is not familiar with the international conversations regarding trademark law. Admittedly, I had never considered trademark issues outside the borders of one country but Professor Dinwoodie brought to light many of the issues a global marketplace has created for IP law. As our world continues to expand and connect it is true that the law cannot remain confined within the boundaries of territorial lines – these lines have become more fluid and the law must flow as well.

Jaimie Franks is an IPilogue editor and a JD Candidate at Osgoode Hall Law School.

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In order to��examine the role of��copyright in this emerging situation, , assistant professor��of political science��at Brock University, chaired a panel focused on (TD34). This panel was comprised of renowned and emerging scholars working on copyright and related issues.

, professor of political science and international affairs at the Elliot School of International Affairs (The George Washington University), began the panel by discussing what she describes as "the cat and mouse game" of global copyright politics. Professor Sell has had a distinguished career examining the . She describes the contemporary situation as the interplay between "cats" (intellectual property (IP) rights holders seeking to ration IP) and "mice" (stakeholders advocating for greater access to IP-related goods and services). In institutional and legal contexts, the cats and mice each work to assert their interests, concerns, and positions.

For example, the negotiations are described as an instance of "forum shifting" where IP rights holders (cats)��and their supportive governments seek to expand and entrench beneficial IP law internationally without public consultation or participation via trade negotiations operating outside of the multilateral (WTO) framework. In response, "mice" worked to derail the ratification of the treaty by motivating public opposition. This "recursive dynamic" leads to unintended consequences: while IP rights holders and beneficiaries seek to reinforce their privileged positions, their actions lead to reactionary movements that highlight the concerns��of stakeholders that are often unrepresented.

Professor Haggart further explored this situation by presenting a paper based off of work included in his new book, . The pervasiveness of digital technologies in daily life is contributing to a rising public interest in copyright issues and reform initiatives. The international protests over ACTA as well as the and reflect this rising concern that digital copyright – and IP reforms – are not attending to the interests of citizens and users. As Professor Haggart argues, it is becoming increasingly��more difficult��for digital IP reforms to be passed in domestic legislatures due to vocal opposition and processes that are becoming increasingly polarized.

, assistant professor of communications and multimedia at McMaster University, then shifted the discussion to the role of IP law in the economies of so-called rising states. In a co-authored with , professor of political science at the Université Libre de Bruxelles, Bannerman discusses how South Korea and Japan moved from having economies based on importing IP-intensive goods to "innovation exporters" that favour strong IP protection. Borrowing Sell’s metaphor, Bannerman and Morin ask, "what would happen if, in the course of this pursuit, one of the mice progressively transformed into a cat?" Their paper finds that prior to becoming IP-exporters, these countries relied upon relatively lax positions towards foreign IP as a means of benefitting from technology transfers. However, once IP based��domestic industries��were established, concern shifted towards stronger IP protection in order to benefit and maintain these domestic champions.

The final presenter, , a doctoral candidate in the Department of Political Science at The George Washington University, focused on how countries in the global South are turning towards traditional knowledge (TK) protections as a reaction to the international IP regime advanced by the WTO—in the —and the US via bilateral and plurilateral trade agreements. In an exhaustive mixed-methods survey, Mr. Michael finds that there are now more than 70 countries that are protecting TK through national legislation. He describes this as a form of "reactive diffusion" where countries enact TK legislation to increase their domestic advantage in certain sectors, as a counter balance to disadvantages imposed by international obligations to increase IP protection in other areas.

Having surveyed different, albeit overlapping, aspects of the current state of global copyright, IP, and��politics, the panel ended with comments from discussant , the Canada Research Chair in Law, Communication, and Culture at 91��ɫ. (Note: Professor Coombe is the Chair of the author’s dissertation committee) Professor Coombe has written extensively about the intersections of copyright and IP law, culture, political theory, and anthropology. Her comments helped tie the papers together and raised further questions regarding the future of copyright and IP law in a global context. In particular, she highlighted how attention must be given to local, community, and domestic circumstances in order to understand the rights, norms, and concerns that various "stakeholders" bring to these scenarios.

The future of global copyright and IP regimes is broad, in terms of the issues at stake, and far from certain. This panel highlighted some of the key issues at play and emphasized the need for continuing research in order to understand the current state and future make-up of IP law.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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