I was personally interested in copyright law, and in particular the policy considerations  driving copyright reform, thus I was very lucky to be welcomed by the copyright team of Industry Canada. I am the second IP intensive student to join Industry Canada, the first intern reported on her experience .

Industry Canada is the federal government department which seeks to foster a knowledge-based economy by enhancing the productivity and competitiveness of Canadian industries for the overall economic and social well-being of Canadians. In pursuit of this goal, Industry Canada is tasked with the development and implementation of IP policy, while copyright is a shared responsibility with the Copyright Policy Branch of the department of Canadian Heritage.

The Strategic Policy Sector provides all economic and policy advice to the department, and includes the specialized Copyright and Trade-Mark Policy Directorate, which took me into their fold. Our copyright responsibilities included working with other governmental departments to bring Bill C-11 into force, engaging stakeholders and providing advice to the Minister on regulatory proposals, monitoring legal and business developments, and research and analysis of various international copyright law and issues.

The main goal I had set for myself prior to joining Industry Canada was to learn how copyright policy develops into law. I had been interested in this process since my first year in law school when I studied Bill C-32 while it was still on the Parliamentary docket. At that time, debate over copyright reform had reached a climax and it seemed an impossible challenge for government to draft effective law in light of the number of stakeholders, and the often diametrically-opposed positions they took.

On that note, one thing I learned was that despite the coming into force of Bill C-11, copyright policy did not cease developing - it is an ongoing process. I attended two proposed tariff hearings of the Copyright Board concerning webcasting and the private copying levy, and drafted opinions on possible stakeholder implications. I monitored the aftershock of the recent Supreme Court of Canada (SCC) pentalogy decisions on Canadian businesses and industry, educational institutions, and collective societies. I also provided research into current copyright developments and trends in foreign jurisdictions. In other words, the coming into force of Bill C-11 did not signal the end of copyright policy development. Rather, it was a (very important) step forward in an evolving and adapting process that involves continuous stakeholder engagement.

The greatest challenge I experienced was learning how to balance these diverse interests. I agree with last year’s intern that learning “how to think like a policy maker” is a major lesson imparted by the experience with Industry Canada.

In law school and private practice, students such as me are taught to advocate on behalf of a client. Policymakers, however, consult a broad range of stakeholders on all sides of an issue, analyze their respective positions, and determine policy that best suits departmental goals. In other words, they be categorized as advocating for the public interest.

Perhaps, this is especially true of copyright. In , the SCC stated that the purpose of copyright law is to balance the public interest in the encouragement and dissemination of works, and just rewards for creators.

This idea seems to reflect the task of policymakers at Industry Canada – consulting and engaging with rights-holders and users groups, non-governmental organizations and government bodies, business interests and individual citizens; all with the aspiration of developing policies and laws which balance the often conflicting perspectives and interests that characteristically dominate copyright debate. Shifting my analytical approach from advocacy to the broader public interest was the most important lesson learnt during my time at Industry Canada, because this is ultimately how copyright policy is developed into law.

Ken Anderson is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s .  As part of the program requirements, students were asked to write a reflective blog on their internship experience.

The post Seeking the Balance – A Law Student’s Experience with Industry Canada: A Semester in Osgoode’s IP Intensive Program appeared first on IPOsgoode.

Adding fuel to the fire, another webcaster, , recently , and has subscribers. However, beyond the important business implications, the Board must revisit the legal question at the heart of the Re:Sound proposals - the extent to which copyright royalty standards of the United States (US) ought to influence Canadian royalty rates.

Tariff 8.A covers both simulcasting and non-interactive webcasting. Simulcasting is the communication of a traditional radio signal over the Internet, and is used by many Canadian broadcasters. Non-interactive webcasting is generally understood as the streaming of original Internet broadcasts, or web-radio. Canadian examples include and . Semi-interactive webcasting, covered by Tariff 8.B, involves the streaming of content which is influenced by user-inputted preferences such as genre and artist. This is the service provided by Pandora.

Re:Sound proposed that commercial semi-interactive webcasters pay a royalty rate calculated as the greater of:

��)���������� 25 to 30 per cent of the gross revenues; and

��)���������� 0.0023 to 0.004 per-play, with a minimum fee of $500 per channel up to maximum of $50,000 annually.

The issue of public consciousness is the argument of Pandora against per-play royalty rates, which it stating, “[t]here is such a disconnect, as has been demonstrated by the U.S. ... between the per-play rate and the fundamental economics of the business.” However, as recognized by , this sort of opposition is business-oriented rather than legal. The parties’ Statements of Case (available to the public by request) present a variety of important, even novel, questions, such as whether Re:Sound has the legal authority to compel webcasters to implement technological protection measures to prevent stream-ripping. However, the most significant legal issue relates to Re:Sound’s foundation for the proposed rates.

Re:Sound justified its proposal by arguing that the online music industry has outpaced the statutory licence regime in Canada, and thus the Board ought to take into account the global licensing market, and in particular that of the US “in order to encourage the entry of international services and foster the development of its online music market.” By the same token, Re:Sound advocated that the Board adopt the statutorily mandated royalty standard of of the US Copyright Act – “rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” As found by the Copyright Royalty Arbitration Panel (CARP) in , this hypothetical marketplace is proved by furnishing evidence of actual voluntarily negotiated agreements. Hence, Re:Sound confidentially submitted several contracts between Canadian rights-holders and webcasters for communication rights, which presumably include royalty rates roughly similar to those in the US.

Pandora and the Canadian Association of Broadcasters (CAB) both argued against any consideration of US rates for a variety of reasons. Most importantly, that US legislation grants full copyright in sound recordings in certain circumstances, rather than the right to equitable remuneration in s. 19 of the Canadian . The US found this distinction to be sufficient grounds to reject comparisons in its royalty decision. Similarly, for a variety of reasons the Board in Canada has expressed scepticism in the usefulness of American standards, most resolutely in the 2005 decision.

The Board, however, has not categorically rejected the application of the willing buyer/seller standard. For example, in the 2002 the Board acknowledged its usefulness as a starting point, but “only when it offers some basis for comparison with the industry under examination.” Furthermore, the Board has that executed agreements are “prima facie relevant to the task of setting a performing rights tariff…” As such, even if the Board rejects the US royalty rates on the basis of the inapplicability of US standards to determinations of Canadian royalty rates per se, Re:Sound may successfully advocate for the adoption of US-styled royalty rates as contained within the voluntarily negotiated contracts submitted as evidence.

Pandora and CAB countered Re:Sound by pointing out that the certified , which includes webcasters, sets out a markedly different royalty scheme for communications of musical works. The Board that the equitable remuneration to be paid for the use of sound recordings to Re:Sound is to be determined by first identifying the applicable SOCAN tariff over the same use, and then setting a 1:1 ratio, is long-standing.

The core of Re:Sound’s proposal was that the Board ought to adopt the US-approach to royalty determination, by estimating hypothetical market prices. However, as recognized, the Board has historically asserted “not only that a market price is only one of several possible rational bases for a tariff, but that in certain circumstances, public policy would lead it to ignore market considerations altogether.” Whether Re:Sound argued with sufficient persuasion that webcasting ought to fall within the cases decided by the market, rather than public policy or other factors, will be the most important determination of the Board.

Ken Anderson is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

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The (ESAC) is a coalition of video game producers and distributors. The (SOCAN) is a collective society which administers various rights of composers, authors and publishers of musical works. With advances in video game technology it has become common for video games to include soundtracks with copyright-protected  musical works. Ordinarily, video game producers privately contract with rights holders for a licence, setting out compensation. This compensation was paid pursuant to the copyright owner’s sole right to reproduce the musical work (the “reproduction right”). In 2007, SOCAN brought a broad application to the Copyright Board seeking new tariffs pursuant to s. 3(1)(f), which provides copyright owners with the exclusive right to communicate works to the public through telecommunication (the “telecommunication right”).

ESAC made multiple arguments against the imposition of the new tariffs to both the and the , including:

• Double compensation would result by the imposition of an additional tariff based on the “telecommunication right” because video game publishers already enter into contractual compensatory agreements with rights holders; and
• A distinction should not be made between video games which are downloaded and those that are purchased in physical stores.

Both the Board and the Court of Appeal rejected all its submissions and upheld the new tariffs. At issue at the SCC was the interpretation of the word “communicate” in s. 3(1)(f):

In the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

More specifically, is the “telecommunication right” intended to apply to the downloading of video games (or other subject matter) solely by virtue of it having been “communicated” over the Internet, or is it solely a reproduction subject to the  “reproduction right”?

The majority decision written by Abella and Moldaver JJ (joined by McLachlin CJ, Deschamps and Karakatsanis JJ) found the “telecommunication right” inapplicable to permanent downloads of any sort. The minority decision of Rothstein J (Lebel, Fish, Cromwell JJ) came to the opposite conclusion. The distinction between the majority and the dissent can be demonstrated by reference to the opening paragraphs of their respective decisions. The majority introduced its decision as follows:

"In the video game publishing industry, the royalties for the reproduction of any musical works which are incorporated into the games are currently negotiated before the games are packaged for public sale.  Once these rights have been negotiated, the owner of the copyright in the musical work has no further rights when the game is sold.  The question in this appeal is whether the rights are nonetheless revived when the work is sold over the Internet instead of in a store.  In our view, it makes little sense to distinguish between the two methods of selling the same work."

While the minority provided following passage in the third paragraph of its decision:

"My colleagues Abella and Moldaver JJ. part company with me on some fundamental principles of copyright law.  In my view, precedents of this Court have established the principles that must govern the analysis in this appeal.  Copyright is a creature of statute.  Copyright is comprised of a bundle of independent statutory rights. Courts must give effect to these independent rights as provided by Parliament.  While courts must bear in mind that the Copyright Act “is ... a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” which balance requires “not only ... recognizing the creator’s rights but in giving due weight to their limited nature,” courts must still respect the language chosen by Parliament — not override it."

The majority guided its interpretation of the Act by reference to the policy considerations at issue. By contrast, while Rothstein J acknowledged a role for general policy considerations in the interpretive process, he reiterated the supremacy of clear and unambiguous statutory language, and tacitly suggested that the majority’s decision was at least partially an overextension of its jurisdiction.

The majority decision is grounded in policy arguments in support of the concept of technological neutrality. Namely, that the imposition of a separate tariff for the “telecommunication right” would create an additional cost on the distribution of products by way of downloading over the Internet, when compared to distribution in physical stores, and thus violate technological neutrality. The majority conceived of the Internet as merely an efficient delivery method for products that one could alternatively purchase in a store, or “a technological taxi that delivers a durable copy of the same work to the end user.” According to the Court, to hold otherwise would run contrary to and frustrate its set out purpose of copyright law - to balance the public interest in the encouragement and dissemination of works, with a just reward for creators.

The majority also drew some support for its analysis from the legislative history of the Act - finding that the “telecommunication right” has a historic relationship with performances of an impermanent nature, and as such it would be inconsistent to now include permanent downloads.

On the other side of the bench was the interpretive analysis of the dissent written by Justice Rothstein. The heart of the dissent’s judgment  was a detailed analysis of the statutory language of the Act. The dissent found that when the term “communicate” is read in its ordinary grammatical sense, and compared with dictionary definitions, no ambiguity can be alleged – rather 3(1)(f) clearly applies to all internet transmissions and there is no exception for downloads. This basic interpretation of “communication” was also consistent with both the SCC decision in , and the Federal Court of Appeal decision in . On those grounds, even if the Internet is a “technological taxi,” downloading of video games or other permanent matter still falls within the right described in s. 3(1)(f).

Rothstein J openly undermined the significance of the policy reasons considered by the majority in its interpretation of the Act. He emphasized that rights found in s. 3 have long been recognized as separate and distinct – there is no legal reason to exempt downloads from the “telecommunication right” solely because the same act also covered by another right. Finally, while Rothstein J agreed that applying the concept of technological neutrality is generally favourable, he challenged the legitimacy of the majority’s emphasis on technological neutrality by stating that it is beyond the function of the Court to depart

“from the ordinary meaning of the words of the Act in order to achieve the level of protection for copyright holders that the court considers is adequate. Any concerns arising from the independent protected rights in the digital context are concerns of policy, which are properly within the domain of Parliament in defining the scope of copyright. …inferring limits into the communication right in the present case would be beyond the function of the courts” 

Both sides made convincing arguments as to the proper interpretive approach to provisions of the Act. On the one hand, it seems unlikely that Parliament would intend the Act to be interpreted to violate technological neutrality – this concept was cited as one of the policy goals of Bill C-11.  Yet, the majority stated that absent evidence of Parliamentary intent to the contrary, it would interpret the Act in a manner consistent with technological neutrality. This begs the question implied by Rothstein J – how much clearer must the statutory language be to demonstrate Parliamentary intent? The coming into force of Bill C-11 is likely to bring such questions to the forefront because a vast amount of new statutory language will require interpretation. Moreover, many new provisions, such as strict compliance with Technological Protection Measures, could demonstrate a Parliamentary intent to shift the balance of copyright away from technological neutrality. These provisions, and others, might be interpreted to run directly counter to the policy reasons embodied by and , which were so enthusiastically supported by the majority of the Supreme Court in interpreting the Act in this case. To what extent the policy considerations will affect the future interpretation of Bill C-11 remains to be seen.

Ken Anderson is a JD candidate at Osgoode Hall Law School.

The post ESAC v. SOCAN – Battle Lines Drawn in Copyright Pentalogy appeared first on IPOsgoode.

The existence of cancer stem cells was a relatively recent discovery. Previously, scientists believed that cancer was the product of cell mutation. However in the 1990s, , including , identified the presence of cancer producing stem cells in leukemia, and brain and breast cancers. Generally speaking, cancer stem cells operate similar to normal human stem cells with one crucial difference. While human stem cells replicate and “differentiate” into a variety of different cells, cancer stem cells do not differentiate but continuously self-replicate causing deadly tumour growth. Despite knowledge of the existence of cancer stem cells, scientists struggle with two major issues.

First, traditional cancer treatments are largely ineffective against cancer stem cells. After chemotherapy or radiation has eliminated cancerous cells, cancer stem cells linger in the body and resume production of the cancerous cells, resulting in recurrence. Second, chemotherapy and other cancer treatments can be described as somewhat blunt in their operation due to their toxic side effects. Not only do they target and eradicate cancerous cells, but normal human stem cells are also negatively impacted by the treatments. is a helpful animation of the issues.

The Canadian team of scientists led by , believed that chemical compounds existed which could selectively target cancer stem cells. More specifically, they were in search of compounds which would react to the cancer stem cells and induce differentiation, causing the cells to produce ordinary progenitor cells, and cease self-replication. With the assistance of a robotic testing system which screened hundreds of compounds, they discovered that the drug thioridazine, along with approximately 26 others, may accomplish this very feat. In laboratory testing of acute myeloid leukemia, they combined thioridazine with traditional drugs and found the combination to be more effective at “killing” the cancerous cells, without the harmful side effects associated with traditional treatments. Dr Terry Sachlos, co- investigator and lead author of the publication,  says:  "By targeting the rare population of cancer stem cells that initiate tumor growth we hope to kill the root of the tumor and prevent it from coming back."

In seeking to understand the effectiveness of thioridazine, the team may have made another important discovery. Thioridazine was developed in the 1960s and sold in Canada as . It was prescribed as an anti-psychotic drug and used to treat psychosis, schizophrenia and Parkinson’s disease. The drug operated by blocking dopamine receptors in the brain, which led Dr. Bhatia and his team to make another discovery – cancer stem cells, unlike normal human stem cells, have dopamine receptors. This finding is also potentially significant because the team believes that dopamine receptors may serve as a biomarker for cancer detection.

Not surprisingly, these potentially lifesaving discoveries have been widely reported both and within . remain cautiously optimistic because testing remains in its early (murine) stages. Furthermore, the drug thioridazine is not without . In the 2000s, evidence emerged that thioridazine may have dangerous side effects including causing irregular heart rhythm. In 2005, withdrew thioridazine from the market, and the American permits its use only in severe cases of schizophrenia as a last resort. However, Mr. Bhatia believes the drug will be safer for cancer patients because they would be administered the drug for short periods of about 30 days, rather than years. The team is expecting to receive to begin human clinical trials of leukemia patients who have not responded to traditional treatments in both Hamilton and another Ontario cancer centre within the year.

In the meantime, the SCC-RI are hoping their initial discoveries will serve as a platform for the identification of more drugs which share the same cancer “killing” properties as thioridazine, and investigating whether their initial positive results with leukemia can be reproduced in other forms of cancer.

Ken Anderson is a JD Candidate at Osgoode Hall Law School.

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The Anton Piller takes its name from a 1975 of the English Chancery Division. A plaintiff applies on an ex parte basis for an order to search the premises (and sometimes private homes) of a defendant with the purpose of preserving evidence that might otherwise be destroyed or concealed if notice was to be provided. It is especially useful (likely required) in modern disputes where incriminating computer data can be quickly erased. They are also important in the fight against counterfeit and .

At issue in Suh v Ryu was whether the PCC had jurisdiction to grant Anton Piller or Mareva (asset-freezing) injunctions. The PCC is a unique county court whose jurisdiction was divided between a “special jurisdiction” (patents and designs), and an “ordinary jurisdiction” (copyright and trademark). In 1994, Ralph-Gibson LJ of the reviewed the relevant , which disempowers county courts from issuing these injunctions, and concluded that the PCC’s jurisdiction to issue Marevas or Anton Pillers extended only to matters falling within its “special jurisdiction.”

Birss J declined to follow the precedent and ruled that the PCC could issue these injunctions in matters falling within both its “special” and “ordinary” jurisdictions. Effectively, he unilaterally expanded his own jurisdiction based on a well-reasoned reassessment of the legislation. However, one question begged to be answered - why did Parliament restrict the ability of some courts to issue Anton Pillers and Marevas in the first place?

Since its inception Anton Pillers were labelled “extraordinary remedies,” requiring the fulfillment of four stringent conditions: (1) the applicant must have an extremely strong prima facie case; (2) the potential or actual damage to the applicant must be very serious; (3) the material must be in the possession of the defendant; and (4) there is a real possibility that the defendant would destroy the material if an inter partes motion was made.

However, this judicial test has not prevented abuse in Canada or the UK. The highly intrusive nature of the Anton Piller coupled with the lack of notice to the defendant has led to it being called the “” and the “.” pointed out that plaintiffs often have no intention of using Anton Pillers for their supposed purpose of preserving evidence - matters involving Anton Pillers rarely proceed to trial. Courts have also grappled with in the execution of the orders, and by motions judges. Both of which have resulted in aggressive search methods and the wrongful appropriation of documents protected by solicitor-client privilege or even trade secrets.

It is these issues that prompted the UK Parliament to amend its concerning Anton Pillers. Presumably, this also explains why Parliament deliberately sought to reserve the power to order Anton Piller and Mareva injunctions to the more experienced judges of the higher courts.

This observation is pertinent to Canada where what was once described as an “extraordinary remedy” has become practice. This is particularly troublesome for three reasons. First, Anton Pillers are not subject to . This is so despite that the theoretical distinction between a police search and an Anton Piller is tenuous at best, and at least Canadian judge has called a spade a spade - no obvious reason exists to explain why basic rights are somehow weakened in civil, rather than criminal or administrative matters.

Second, the Federal Court’s invention of the “rolling Anton Piller” is more problematic. Here, the plaintiff is permitted to execute search and seizures on a class of John and Jane Does, and attach the individual defendants as they become identified. It is typically sought against those with transient business practices such as street vendors who deal in . Although no realistic alternative exists, the potential for misuse is higher when such orders are based on undue speculation, which Hughes J recently commented on in

Third, despite that the Federal Court is by far the largest issuer of Anton Pillers, the are substantively empty and no model order exists, which increases the likelihood of inadequate drafting by motions judges. In , the Supreme Court of Canada was forced to create its own best practices for Anton Pillers to fill this gap.

Returning to Birss J’s judgment - his statutory interpretation is persuasive and seems to properly reflect the role of today’s PCC. However, Anton Pillers are invasive remedies with a high potential for abuse, as experience has shown. Despite Birss J’s unquestioned , the reasons for Parliamentary restrictions on the jurisdiction of county courts to issue the controversial injunctions ought not to be forgotten.

Ken Anderson is a JD Candidate at Osgoode Hall Law School.

The post Stealth Bombers Back on the Radar – The Anton Piller Order appeared first on IPOsgoode.

In August 2010, to the respecting expert witnesses came into effect. The rule changes reflect an to accomplish three broad goals: (1) promote expert impartiality, (2) provide mechanisms to better enable courts to understand and identify scientific issues at stake, and (3) stream-line the litigation process.

Nowhere were the amendments expected to have a greater impact than in the scientifically complex world of patent litigation. Issues inextricably linked to expert witnesses routinely make or break patent claims, such as identifying the “person skilled in the art” or determining whether claims sufficiently demonstrate “promised utility” which, according to the , generally requires the assistance of experts. The amendments were strongly debated and met with a range of criticism. One year later, although some insight into the operation of the new rules has been provided, the debate remains largely unresolved because the more controversial measures have yet to be put to use.

A Code of Conduct for Expert Witnesses was added as a schedule to the Rules, informing experts of their general duty to assist courts independently and objectively. It also sets out guidelines on expert reports, instructing experts to identify their reasoning, scientific research, and assumptions underlying their opinions. Similar measures to encourage impartiality and forthrightness in experts were key recommendations of the high-profile 2008 . The Code was met with relatively little debate, likely because no enforcement mechanism was included.

The legal significance of the ��ǻ��’s impartiality obligations were at issue in The appellant argued that an employee of the respondent was ineligible to appear as an expert because it violated the ��ǻ��’s explicit mandate of independence. The Federal Court of Appeal rejected this submission, reaffirming the common law practice that independence affects the weight attributed to evidence, rather than admissibility. The impartiality obligations of the Code do not appear to contain any special legal connotation and are unlikely to have significant impact on patent litigation.

Another amendment requires counsel to raise “known objections” to the admissibility of a party’s expert at the pre-trial conference; the hope being that trial would proceed more efficiently if evidentiary arguments were already settled. The (IPIC) did not disagree in principle with this measure; rather, it recognized a timing issue. Admissibility is generally dependent on the content of an expert’s testimony, which is contained in the expert report. Yet under the Rules, reports must be issued to opposing counsel at least 60 days before trial, well after the pre-trial conference would have concluded.

The Supreme Court of Canada weighed in on the timeliness of objections to the admissibility of expert evidence in . Although much of the judgement is specific to trademark confusion, the Court’s message was clear enough: the admissibility of evidence is an issue to be determined early in trial or, ideally, during pre-trial case management. In other words, case conferencing judges and counsel ought to strive to cooperate with the new rule.

A more contentious rule change is the new discretionary power of courts to order experts to confer before trial, with or without the presence of counsel, and to provide a joint statement. Ideally, this is an early opportunity for experts to narrow the technical issues in question.  However, the most controversial amendment is an Australian import known as “hot-tubbing.” The court may order experts to form a panel during trial and experts may direct questions to other panel members with leave of the court. , including Binnie J., contend that hot-tubbing makes it easier for judges to identify subtle differences between expert opinions, and that experts are more likely to exercise greater responsibility and caution while in the presence of colleagues. However, many feel the new practice is counterproductive in that it rewards more vocal and aggressive experts. Further, the IPIC also strongly opposed hot-tubbing because it requires an unacceptable amount of judicial intervention, it decreases the effectiveness of cross-examination, and it risks experts acting as advocates.

The case of offers some insight into this debate. Effective pre-trial management and cooperative counsel successfully narrowed a technically complicated patent case down to a single issue for trial. There is no mention of whether the new power of the court to arrange pre-trial conferencing of experts was used in this case, thus the result suggests that efficient resolution of complex technical issues may not require pre-trial expert conferencing. On the other hand, if the procedure was used, it could reflect the value of the new procedure. Moreover, a considerable portion of this decision was dedicated to the court’s analysis of the evidence presented by five experts and their cross-examinations. This outcome may demonstrate that the traditional adversarial system is already effective at assisting judges in determining expert evidence. In other words, hot-tubbing may not provide any meaningful assistance for its stated purpose. That being said, the amendments’ full potential to impact patent litigation, especially hot-tubbing, remains inconclusive.

The post Changes To Expert Witness Rules In Patent Litigation: What Are The Effects On Current Litigation In Canada? appeared first on IPOsgoode.

As I watched the 53rd Annual Grammy Awards, I couldn't help but reflect on how the so-called “mash-up” provision in Bill C-32 might apply to some of the nominees.

Among the more contentious changes introduced in the Bill, the mash-up provision (s. 29.21) would allow users to creatively modify and fuse copyrighted musical works, provided it is not for commercial use. This year’s Grammys provided at least two insights into this controversial provision.

In particular, one of the performances nominated for Best Pop Performance by a Duo or Group caught my attention: the cast of Glee’s rendition of Journey’s “Don’t Stop Believing.” The show, premised on good-looking and talented high schoolers performing and mashing-up a range of popular music, is embedded with copyright issues which have been rightly called the “.” Glee has so far avoided being sued by carefully licensing all of the music in the show. However, not all musicians have been willing to license their music to Glee; and are just two artists who have refused to have their songs appear in the show.

and have argued on behalf of their artists that the mash-up provision has the potential to seriously impact moral rights. They claim that mash-ups by definition distort, mutilate and modify original musical works, which are the explicit grounds for moral right infringement (s. 28.2). The fact that artists will refuse to license their music for mash-ups even in the face of drives home the fact that moral rights are important to artists, and that they perceive mash-ups as violating those rights.

Much of the debate around the mash-up provision has focussed on the third parties who will stand to benefit from user-generated mash-up content. A large group of are united against online publishers (e.g. Youtube) earning advertising revenue from mash-ups posted by users. The provision also risks redundancy because mash-ups conceivably fall under either of the proposed fair dealing defences of parody or satire (s. 29). For example, define parody as a legitimate fair use defence only when a subsequent work criticizes the existing copyrighted work upon which it is based. However, satire on the other hand is not a fair use defence in America because the author uses a copyrighted work to provide general social commentary.  Since Bill C-32 includes both, if Canadian courts give them similar definitions then mash-ups are likely already protected, rendering the provision superfluous.

Despite criticisms, the Grammys illustrated that mash-ups are here to stay, and are becoming more mainstream than ever. Before the evening concluded, the international online community had already begun mashing up the performances from the night. and used user-generated content to express their outrage over perceived injustices, and they did so on websites like Youtube. The lesson from the night is that user-generated content, of which mash-ups are part, is not diminishing – it is proliferating. Millions of people are both and it.

For Bill C-32, this means avoiding obsolescence beyond merely the spectre of failing to craft technologically neutral legislation. The mash-up provision represents a unique recognition by Canadian legislators that creative mash-ups are common. Rather than encouraging the creation of new mash-ups, the provisions drafters have recognized that they are .

The potential for moral right infringement of the mash-up provision is a significant issue that warrants addressing, but government acknowledgement that mash-ups are both commonplace and unlikely (if not undesirably) to be prevented ought to be encouraged. Although this year’s Grammy experience was less creative than it was , it is a safe prediction that user-generated content will be back at next year’s show in spades.

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