Top 10 Most Read Blogs of 2020

COPYRIGHT LAW

CUSMA Implementation

On July 1, 2020, the (CUSMA) officially came into force, replacing the North American Free Trade Agreement (NAFTA). Signed in 2018, the desired effect of CUSMA is to preserve existing trade relations between the three North American countries, and to introduce modernized provisions that address 21st-century trade issues. In particular, the builds upon the legal framework of standards in North America for the protection and enforcement of IP rights.��

Regarding copyright and related rights, Canada is increasing the duration of its term for general copyright protection from 50 to 70 years following the life of the author. Canada will have a two-and-a-half-year transition period to realize this new measure. Additionally, the term of protection for performances and sound recordings will also increase from 70 to 75 years plus life. CUSMA will also increase protection for Rights Management Information (RMI), also known as digital watermarks. While Canada already imposes criminal remedies for altering or removing Technological Protection Measures (TPMs, or digital locks), the Agreement creates new criminal remedies for circumventing RMI. Organizations will have to be mindful when implementing these new provisions to ensure that their practices align with CUSMA’s new obligations.

Canadian Copyright Case Law

91��ɫ v The Canadian Copyright Licensing Agency, 2020 FCA 77

On April 22, 2020, the regarding a dispute between 91��ɫ (“91��ɫ”) and The Canadian Copyright Licensing Agency (“Access Copyright”), holding that the tariffs set against 91��ɫ by the Copyright Board are not mandatory, but dismissed 91��ɫ’s counterclaim regarding the fair dealing guidelines. Access Copyright had sued 91��ɫ for non-payment of tariffs, arguing that they are mandatory and enforceable against anyone who infringes upon a copyright owner’s exclusive rights. Following this decision, both parties filed for leave to appeal the FCA decision to the Supreme Court of Canada.

Tariffs
The FCA held that the tariffs set by the Copyright Board are not mandatory. Because 91��ɫ opted out of the tariffs in 2010, they are not enforceable against 91��ɫ. On this issue, the FCA stated, “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee.”

Fair Dealing
91��ɫ argued that it was not accountable for any tariffs associated with the reproduction of materials because they met their “” and therefore constituted fair dealing pursuant to section 29 of . On this issue, the FCA found that the Federal Court made no palpable error in its analysis, concluding that even though copying followed the guidelines, this did not necessarily make it a fair dealing.

Continuing into 2021
On October 15, 2020, the Supreme Court of Canada granted leave to appeal. This eagerly anticipated decision will affect many of Canada’s educational institutions who opted out of paying tariffs and have also followed the Fair Dealing Guidelines discussed in this decision. Further, a Supreme Court decision in 91��ɫ’s favour will surely cause businesses who rely on similar tariffs to rethink their business model.

Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504

On April 23, 2020, Justice Paul Schabas’ released his decision in the case of . Filmmaker Tommy Wiseau brought a claim against the defendants, alleging that their documentary, Room Full of Spoons, about Wiseau’s film, The Room, breached his copyright. In his reasons, Justice Schabas provides artists in Canada with an authoritative statement defining documentaries an allowable purpose under the Copyright Act’s fair dealing provisions, “to the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting.”

The decision affirms fair dealing as a user’s right, as opposed to a defense to the copyright infringement alleged by the plaintiff, solidifying the balancing of rights and freedoms as a core purpose of the Canadian Copyright Act. In addressing the Copyright Act’s fair dealing provisions, the Court offers useful guidance to documentary filmmakers wishing to stay on-side with section 29 through an analysis of the factors outlined in . A more in-depth discussion can be found . As well, Justice Schabas’ reasons address the Copyright Act’s moral rights provisions, fundamentally finding that criticism or negative tones alone will not trigger a breach of an author’s right to the integrity of a work.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2020 FCA 100 & CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101

On June 5, 2020, the Federal Court of Appeal released two decisions (2020 FCA 100 and 2020 FCA 101) which ruled on the applicability of the “making available right” (“MAR”) under s. s.2.4(1.1) of the Copyright Act. The FCA found that songwriters are not entitled to royalties when music is first posted online, but only after it has been downloaded. This decision overturns a 2017 ruling from the Copyright Board, which found that composers and songwriters are entitled to two royalties: first when it is made available under a streaming platform such as Apple Music or Spotify, and second when the song is downloaded or streamed.

By way of background, The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed with the Copyright Board proposed tariffs for certain years for the communication to the public by telecommunication of works in its repertoire through online music services including Apple Music and Spotify. These tariffs are available when a musical work is “communicated.”

After SOCAN had filed its proposed tariffs, the Copyright Act was amended to include the MAR Provision, which reads as follows:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

This raised the question of whether the mere making available of a work on a server for the purpose of later streaming or download by the public was a “communication” for which a tariff was payable. In 2017, the Copyright Board concluded on the basis of expert witnesses that the double royalty scheme is available.

Stratas J, writing for the FCA, overturned this conclusion and stated that the Copyright Board "skewed its analysis in favour of one particular result" and relied on "leaps of reasoning" that are incompatible with the precedent set out in the Supreme Court of Canada’s (SCC) 2012 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada decision. In that decision, the SCC concluded that transmission over the Internet of a musical work that results in a download of that work is not a communication.

PATENT LAW��

The Impact of COVID-19 Legislation on the Patent Act and Patentee Rights

(“An Act respecting certain measures in response to COVID-19”) received Royal Assent on March 25, 2020.�� Included in this bill was the addition of section 19.4 to the which significantly changed the rights of patent owners this year. For instance, while section 19.4 allowed the to authorize the government’s use of previously patented inventions to respond to a public health emergency, the Commissioner’s new powers permitted authorization to be granted to other entities as well. In addition, there was no requirement for applicants (be they the government or otherwise) to inform the patentee in advance of applying for authorization to use its patent. This meant that patentees received no notice if an applicant applied to use its intellectual property. Instead, patentees only received notice if the Commissioner granted authorization to the applicant following their submission. Moreover, section 19.4 precluded patentees to an express right of appeal of the Commissioner’s authorization. Instead, patentees were left to rely on section 19.4(8) of the Act and had to apply to the Federal Court to prevent the government (or any applicant) from “making, constructing, using or selling the patented invention in a manner that [was] inconsistent with the authorization.”

While patentees seemingly received little benefit from the Patent Act's amendments mentioned above, the legislative changes offered some positive developments for patent owners. For example, pursuant to s.19.4(5), holders of the patent are compensated for government use, “taking into account the economic value of ‘the authorization and the extent to which they make, construct, use and sell the patented invention.’” Additionally, as of September 30, 2020, the Commissioner can no longer award the government with any authorizations, which effectively serves as an imposed limit on the Commissioner’s powers. While COVID-19 may arguably be captured by other provisions of the Patent Act (cf. s. 19 or s. 21), s. 19.4 clarifies the boundaries of government uses of patents for public health emergencies.��

CIPO Issues New Guidance Document After Federal Court Rejects Problem-Solution Approach to Claim Construction

Following the 2020 Federal Court decision in , CIPO released a new to clarify patentable subject matter under the Patent Act. The court, and CIPO, endorsed the purposive construction approach to constructing claims set out in 2000 by the SCC in and . The new guidelines cover the framework to be followed by patent examiners while identifying certain elements of patent claims as essential. CIPO’s earlier pointed at undertaking claim analysis, which involved identifying the “proposed problem to the disclosed solution.” The Federal Court in Choueifaty clarified this problem-solution test as incorrect for claim construction.

The Federal Court held that a correct approach looks at the entirety of the specification and presumes an element as essential unless demonstrated to the contrary. Purposive construction attempts to give effect to the intentions of the applicant in determining the scope of the claimed monopoly.

This is particularly important for computer-implemented inventions. CIPO, in the , clarified that an algorithm that improves the functioning of the computer would constitute a single invention and is patentable subject-matter. However, the mere use of a computer to execute an algorithm remains nonpatentable subject-matter under subsection 27(8) of the . This update has brought much needed clarity to the subject matter eligibility issues in computer-related patents.

TRADEMARK LAW

Claims to Official Marks not a Complete Defence to an Infringement Claim��

In February 2020, the Federal Court of Appeal upheld the Federal Court’s decision in , finding that public authorities cannot rely on relating to official marks as a complete defence against an infringement claim. At its most basic level, official marks allow public authorities to , even those that may not otherwise be registered as regular trademarks. Quality Program Services Inc. (QPS) brought a Federal Court claim against the Ministry of Energy (MOE) for infringing their “EMPOWER ME” trademark related to energy awareness, conservation, and efficiency services. The MOE had launched a website with the mark “emPOWERme” to educate Ontario residents about the province’s electricity system. In response to QPS’s claim, the MOE sought protection and public recognition of its mark as an official mark pursuant to which states that “no person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for… any badge, crest, emblem or mark…adopted and used by any public authority, in Canada as an official mark for goods or services.”

However, the Federal Court was not persuaded that s. 9 provided the MOE complete immunity from an infringement claim. Instead, it was recognized that the infringement rights of a trademark holder, such as QPS under , could not be ignored simply because a public authority has been given public notice of its adoption and use of an official mark, especially when that mark follows a registered trademark which could cause confusion between the two marks, as was the case here. The Federal Court of Appeal further that “a public authority that chooses to use a mark that is confusing to a registered trademark does so at its peril.” As a result of this case, we get more clarity and limitations to the confusing and all-encompassing world of official marks. While it is clear that official marks following an existing trademark do not automatically strike down an infringement claim, the official mark and the preceding trademark must be similar in some way to set off a trademark confusion analysis.

Lack of Use is Insufficient for Opposing a Trademark Application

In , the Federal Court affirmed the Registrar’s decision to reject Pentastar Transport Ltd’s opposition to Fiat Chrysler Automobiles (FCA) US’s trademark application for Pentastar. Pentastar Transport Ltd owns a registered mark Pentastar for its oil and gas services, whereas FCA US applied to register Pentastar for its vehicle engines. Pentastar’s ground of opposition is that FCA US did not possess a genuine intention to use Pentastar for its engines, which contravened s. 30(e) of the old Trade-Marks Act. As summarized��, “opposition proceedings involve a two stage inquiry. First, the opponent bears an evidential burden to establish that the facts alleged to support the issue exist. If established, then the applicant bears a legal burden to show that its application does not contravene the provisions of the Act as alleged.” The Court upheld the Registrar’s factual finding that Pentastar did not adduce sufficient evidence as the factual ground of its opposition. The Court also agreed with the Registrar that “use” and “intended to use” were not synonymous. In this case, this ruling entails that even though FCA US had not started using Pentastar as a trademark on its engines, it did not follow that FCA US had no intention to use it in the future. In fact, there was circumstantial evidence (as summarized��) indicating that FCA US indeed harbored the intention to use Pentastar as a mark for its engines.

United States Supreme Court Developments

In April 2020, the United States Supreme Court decided the case . The Court determined that even an innocent trademark infringer could lose its profits and that wilful infringement is not a pre-condition to a profits award. The Court came to this determination by interpreting which does not mention the condition of wilful infringement. Fossil was liable for $6.7 million in profits to Romag, for using counterfeit Romag fasteners in its manufacturing of leather goods.

In June 2020, the Court in held that a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Booking.com sought to register a mark with the USPTO but was denied because “Booking.com” was not a generic name to consumers. Therefore, the term was not held to be generic. The USPTO analyzed the terms “Booking” and “.com” separately. This decision suggests that domain names may need to be marketed to consumers as such to be trademarked.

Trademark Law and Sports in 2020

With all its troubles, 2020 has also been an eventful year for trademark lawyers in sports. In February, a Maryland-based nonprofit Game Plan����against Lebron James and his commercial associates, including Nike, ESPN, and Take-Two Interactive. Game Plan claims that Lebron and his associates had encroached upon its trademark rights by unauthorized use of the registered slogan “I am more than an athlete” to make profits. In April 2020, Michael Jordan����in China that had dragged on for eight years. China’s highest court ruled in favor of Jordan against a Chinese company which had been marketing its sports products under the brand name Qiaodan - a Chinese transliteration of Jordan - since the 1980s.

In September, soccer superstar Leo Messi’s legal team����Europe’s highest court that Messi should be granted the exclusive right to the brand name Messi. Other similar names, such as “Massi,” should be disallowed for commercial purposes to avoid confusing the consumers. Lastly, although the Washington Football Team (formerly, Washington Redskins) changed its name in 2020, it now runs into��. As it turns out, many alternative team names have already been registered by a trademark squatter Martin McCaulay. Washington fans may need to wish for the new year that their team will receive a new name that neither infracts trademark law nor carries racist connotations.

Fashion Trends Followed by Brand Owners throughout the Pandemic��

As it is said, every crisis brings new opportunities. While some members of the general public may have doctor-recommended masks in the early months of the pandemic, they have become a trend for upcoming years. As a result of this trend, big luxury brands tapped into this unchartered territory just after the���� in July. Luxury fashion companies are now monetizing their brand value through this����i.e., face masks and shields, which have become the new reality and necessity of everyday life. Fashion brands like����have already filed applications for their trademarks in classes 9 and 10 with the USPTO and other countries for “Protective” and “Respiratory Masks.” In September,����for its uniquely styled��Toile Monogram print for its��Face Shield, filed for��“protective face shields; protective masks; protective chin shields; [and] protective gloves” (class 9), and “face masks for medical use; Surgical masks; protective face shields for medical use; protective chin shields for medical use; [and] gloves for medical use” (class 10).����

On the other hand, , Nike, and����masks also lead the charts of most searched and purchased masks.��Small and high street brands are attempting to claim proprietary rights in these trademark classes because of the long-term monetary potential. The new fashion ornament brings in value, and the brand owners wish to benefit from damages in infringement and counterfeits cases. Counterfeits are also escalating on e-commerce portals, such as��. A Chinese company has filed a trademark infringement suit for its brand����in the Illinois state. Furthermore, on December 14, 2020 the����announced an initiative to accept expediated examination requests for trademark applications for COVID-19 related goods and services, which include sanitary masks and other things. In view of this, we can predict an����from such luxury and burgeoning fashion brands.����

Bricks and Mortar Presence No Longer Necessary to Establish Use of a Trademark

In the past, the Federal Court of Canada has been unclear as to the fate of travel-related services that do not have a physical presence in Canada, but seek to maintain their Canadian trademark registration through regular use. However, following the Federal Court of Appeal’s decision in , that fate has been clarified in favour of travel-related services. Since 2014, Miller Thompson has tried to expunge Hilton’s WALDORF ASTORIA trademark given that it did not offer physical WALDORF ASTORIA hotel-related services in Canada. As such, Miller Thomson commenced proceedings under s.45 of the Trademarks Act, which would require Hilton to show use of its WALDORF ASTORIA trademark during the three years prior to the proceedings, known as the Relevant Period.

But, on September 9, 2020, the Court of Appeal upheld the Federal Court’s decision that Hilton had demonstrated use of their WALDORF ASTORIA trademark during the Relevant Period. Among other evidence presented by Hilton, during the Relevant Period, Canadians could see the WALDORF ASTORIA trademark when visiting their website and could book reservations in several ways, including directly on the site. As well, Canadians generated $50 million in revenue for Hilton as a result of their stays at WALDORF ASTORIA hotels outside of Canada. Thus, the Court of Appeal summed up the as follows: “so long as consumers, purchasers, or members of the public in Canada receive a material benefit from the activity at issue, it is a service.” This means that online reservations and payment services for later stays outside of Canada are included under the meaning of “hotel services.” Furthermore, a brick and mortar hotel is no longer absolutely necessary to establish use. In fact, in the Court of Appeal’s conclusion, it stated that “the requirements for ‘use’ under section 45 of the Act must adapt to accord with 21st century commercial practices.” For other trademark owners facing the same issue as Hilton, the Federal Court of Appeal provided guidance on how to make a , including website metrics showing that Canadians access their services online and subsequently purchase services as a consequence of their mark being displayed.

Trademark Modernization Act of 2020 Passed

On December 21, 2020, Congress passed the . This bill was enacted to amend the 1946 Trademark Act and authorized third parties "." The bill also introduced a����that would allow any party to petition for the expungement of a registered trademark that is not commercially active. The goal of these amendments was to reduce the number of “” that were on the register despite not being in use, allowing a more productive, competitive commercial trademark market. These amendments are also speculated to affect the longevity of trademark registrations as trademarks become increasingly vulnerable to cancellation. The Trademark Modernization Act of 2020 will certainly continue to generate more discussion and result in changing practices in Canada.

Giuseppina (Pina) D’Agostino is��the Founder & Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from IPilogue Editors:

Copyright:��Meghan Carlin, Emily Xiang, Joaquin Arias, Sarah Raja,��Saumia Ganeshamoorthy

Patents:��Dan Choi, Gurbir Sidhu,��Khristoff Browning, Jin Xu,��Madelaine Lynch

Trademarks:��Adele Zhang, Aishwerya Kansal,��Jingcai Ying, Eloise Somera, Lauren Chan

Bonnie Hassanzadeh, Nikita Munjal, Sebastian Beck-Watt, and Alessia Monastero

The post 2020 IP Year In Review appeared first on IPOsgoode.

Over the last 20 years, global music industry players have seen traditional revenue streams decrease as the shift towards digital distribution has intensified. In 2018, reported global revenues from recorded music With the worldwide concert industry grinding to a halt, for performers and copyright owners alike, the effect of COVID-19 on the global music industry has placed a spotlight on moving the conversation on sound recording rights forward.

On September 9^th through 11^th, 2020, the hosted . Streaming online from in Arlington, Virginia, day one of the conference saw panelists tackling a number of topics in music law, including the colourful history of sound recording rights in America and their current status under the US copyright regime. The below provides a deeper look at the issues discussed during the on September 9^th.

Looking Back: The Music Modernization Act

Revenues from recorded music have grown over the last five years in the US, . In 2019, revenues from recorded music grew 13%, primarily through paid subscription services. Total revenues from streaming alone grew 19.9% in 2019, accounting for almost 80% of all recorded music revenues in the United States.

Consider these statistics against the legislative backdrop that governs the payment of royalties for recorded music. On October 11, 2018, (H.R. 1551) (“MMA”) was signed into law by President Donald Trump. The MMA combines three previously introduced bills intended to modernize copyright law as it relates to the music industry.

Title I of the MMA is the Musical Works Modernization Act, which impacts the conversation on sound recording rights in a number of ways. First, Title I changes the standard used by the Copyright Royalty Board (“CRB”) in setting digital royalty rates, bringing the standard used for digital radio stations up to date. Under the old regime, the standard used for setting statutory royalties relied on public interest considerations, preventing the CRB from considering what a licensee might pay as a market rate. Under the MMA, the rates for all compulsory blanket licences are to be determined through a market-based standard, sometimes referred to as a willing buyer/willing seller standard, ideally creating a fairer standard of compensation for the owners of sound recordings.

Further, Title I establishes the Mechanical Licensing Collective (MLC). While the primary role of the MLC is to collect and distribute section 115 mechanical publishing royalties, it has also been tasked with the creation of a Musical Works Database, intended to link sound recordings to their underlying compositions. In theory, the database will provide music users with a one-stop shop for uncovering all potential rightsholders involved in a song, on both the sound recording and the composition side.

Title II of the MMA tackles the grey zone inhabited by pre-1972 recording artists, otherwise known as “legacy artists”. The Classics Protection and Access Act extends the same protections to the digital public performance of pre-1972 sound recordings as those extended to post-1972 recordings. The practical outcome of this legislation? Digital radio stations and streaming services are now responsible for paying royalties for the expansive catalogue of pre-1972 recordings in their repertoires, according to the uniform rate setting standard outlined in Title I.

Title III, The AMP (Allocation for Music Producers) Act, creates a new “letter of direction” process, allowing recording artists to distribute a portion of the royalties collected for a sound recording to the producers, sound engineers or mixers involved in its production. Title III enables SoundExchange, the entity collecting and distributing sound recording royalties under section 114 statutory licenses, to distribute these royalties directly to the producers involved on behalf of recording artists who submit a “letter of direction” outlining their intention to make such a payment.

Simply put, and as it currently stands, the US legislation regarding sound recording rights maintains its focus on digital plays. What about analog?

Looking Forward: AM-FM Act

The , introduced to , is a bi-partisan bill aimed at creating a terrestrial radio (AM/FM) performance right for sound recordings. The AM-FM Act arrives following the Fair Pay for Fair Play Act, introduced in both 2015 and 2017 with the same goal, but which failed to pass.

Supporters of the AM-FM Act describe it as ending a “” stemming back to the early days of radio that has allowed AM-FM radio broadcasters to play recorded music on air without obtaining the permission of the recording’s copyright owner, and without paying royalties for the use. In essence, it is argued, terrestrial radio broadcasters are being subsidized by the recording industry and will continue to be until the creation of an AM-FM radio performance right in sound recordings.

The National Association of Broadcasters has of the AM-FM Act, countering with their support of the , stating that ��“Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over the air, or on any business for the public performance of sound recordings on a local radio station broadcast over the air”.

In contemplating the ongoing battle over the creation of a terrestrial broadcast performance right in sound recordings, we’re provided with the opportunity to consider the role of analog radio in a digital era, and to think through the questions of promotion versus consumption that relate to music copyright as a whole.

Today: CUSMA

One is that while countries with a terrestrial radio performance right for sound recordings collect royalties for American artists whose sound recordings are played outside the US, they are unable to pass on these royalties to US rights holders as there is no domestic royalty scheme. In , SoundExchange identified 6 territories which deny full national treatment to American recording artists - UK, France, Australia, Japan, the Netherlands, and Canada.

On July 1, 2020, the Canada-United States-Mexico Agreement (CUSMA) entered into force in Canada, providing full national treatment to sound recordings. states at Article 20.8 that “in respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection of intellectual property rights”. As explained by panelist and Attorney Eric Schwartz of Mitchell Silberberg & Knupp, Canada’s implementation of its CUSMA obligation to give national treatment to sound recordings is sure to result in new payments to American copyright owners for uses occurring in Canada.

The effect of COVID-19 on the worldwide music industry has put the focus on the copyright regime’s ability to respond to change, both cultural and technological. For those interested in music law, and in the modernization of copyright more generally, the complicated and curious history of sound recording rights provides countless jumping off points for creatively thinking through the issues affecting artists and copyright holders today.

Written by Meghan Carlin. Meghan is in her second year at Osgoode Hall Law School. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association.

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On Tuesday, August 4^th, 2020, for the unauthorized use of Young’s songs “Rockin’ in the Free World” and “Devil’s Sidewalk” at rallies and other political events dating back to 2015, alleging copyright infringement based on the public performance of Young’s copyrighted compositions. The filing comes days after signed by artists such as Sia, Regina Spektor, R.E.M., Blondie, Lorde, Elton John, and Elvis Costello, as well as The Rolling Stones’ Mick Jagger and Keith Richards and Aerosmith’s Steven Tyler and Joe Perry (among others), calling for clearer licensing guidelines that require political campaigns to seek the explicit permission of ��“featured recording artists, songwriters, and copyright owners” for the use of their music.

It’s widely acknowledged that music licensing is a complex process involving multiple rights holders on both sides, various types of uses and a multitude of circumstances that could require anything from the submission of a reporting form to complex negotiations between multiple parties. Regardless, the fact that over performance rights suggests that more work needs to be done to clarify exactly who owes what responsibility and to whom.

In simplest terms (and when there is no visual component involved), campaign managers wishing to stay onside with music licensing requirements will need to secure public performance licenses for the use of music at their campaign event. Sounds simple enough, but things become complicated once we consider the way in which these licenses are administered. ��Those wishing to use music at their event are left to discover if potentially complex negotiations might be required for use of the sound recording and composition, versus an online application for a license and the simple payment of royalties for the use.

For large events, public performance rights are typically administered through blanket licensing procedures by performance rights organizations (PROs) that exist in various jurisdictions. (for compositions) and (for sound recordings) administer these rights in Canada; in the United States, , ��& are major rights-administration organizations. When a copyright owner adds their music to the repertoires managed by the PROs, they contract with the organization to manage their public performance rights on their behalf, and to collect the associated royalties.

When a copyright user wishes to play music in public, they must contract with the PRO (who is acting on the rights-holder’s behalf) in order to secure the appropriate public performance license. Industry standard is that public performance rights for venues such as bars, restaurants and stadiums are secured by the venue and issued through flat-rate, blanket licensing procedures, with royalties in Canada determined by government tariffs & those in the US set by the Copyright Royalty Board. For these types of circumstances, there is typically no song-by-song negotiation process happening between the music user and the PRO. Generally, a blanket license grants a music user the permission to publicly play any song in the PRO’s repertory. In the case of ASCAP for example, this includes over musical works and for . This model makes sense when we consider the usefulness of blanket licensing for music that is played to large audiences in bars, restaurants, shopping malls or streamed through Spotify or Apple Music, for example. The intent of the collective licensing and rights management services offered by the PROs is to create a simplified process for music users, with the end goal being more royalties for copyright owners.

While industry standard is that, typically, public performance licenses are secured by the venue in which the event is taking place, this is not the case in every circumstance. The use of music in political campaigns is one such circumstance. According to , “as a general rule the ASCAP licenses for convention centers, arenas and hotels exclude music use during conventions, expositions and campaign events”. The policy directs campaign managers to secure instead an ASCAP Political Campaign License. As it turns out, this Political Campaign License is basically just another blanket license.

, “The ASCAP Political Campaign License agreement provides a blanket license to perform any or all of the millions of compositions in the ASCAP repertory. However, ASCAP members may ask ASCAP to exclude specific songs from a particular political campaign’s license. In that event, ASCAP will notify the campaign of the excluded works.”

What ASCAP fails to describe is the process by which a rights-holder becomes aware of the use of their musical works by a particular campaign. If ASCAP’s Political Campaign License provides a licensee the right “to perform any or all of the millions of compositions in the ASCAP repertory”, it seems unlikely that further permissions related to the particulars of the use are being sought in advance. It’s more likely that a rights-holder would choose to exclude a song from a particular campaign’s license after being alerted to the use. Considering the whole point of collective licensing is to avoid song-by-song negotiations and to streamline complex licensing procedures for copyright users, it is doubtful that a blanket Political Campaign License is the best vehicle to anticipate rights holders’ desire to know of and approve campaign uses on an individual basis, even if it grants a copyright owner the ability to revoke permission after the fact.

, BMI maintains a similar policy. According to a spokesperson, BMI offers a “political entities license” authorizing the use of more than 15 million songs in their repertory, while also providing rights-holders the option to exclude certain songs after the fact. Indeed, as Pitchfork reports, this is the license held by the Trump campaign.

Bearing in mind the amount of recent attention paid to the unwelcome use of music by various political campaigns, organizations such as the invite us to consider the reasons why the major PROs continue to offer blanket licensing for political campaigns, as opposed to requiring campaign managers to work directly with the rights-holder for this type of use. , but it does not appear to be any kind of mandatory process. Acquiring direct approval from the copyright owner is industry standard in other areas of music licensing, occurring with , for example. In the opinion of the Artist Rights Alliance, seeking explicit consent for this particular type of use “

Part of the problem may be that public performance rights haven’t historically been given the respect that parties such as the Artist Rights Alliance are now demanding in their open letter, particularly on the sound recording side. In the United States, for example, sound recording owners and performers famously lack performance rights to music played on terrestrial radio. Historically, and seeking prior consent from rights-holders was an unknown concept. The situation artists find themselves in when it comes to seeing their music used in political campaigns may be just another symptom of an aging copyright and music licensing model that is struggling to keep pace with changing times.

In this regard, what the current regime appears to offer rights-holders is a remedy as opposed to any real kind of protection, or opportunity for consent. ��As it currently stands, it appears the key to making a successful copyright infringement argument in the context of music used during a Political Campaign event is to show that the defendant campaign is aware of the rights-holder’s lack of consent to the use of their musical work, but continues to do so anyway. This point may be what the Neil Young filing hinges on.

Young’s lawsuit is an interesting development as have been the typical artist response to the unwelcome use of their music by politicians. Depending on how far the case goes, it may provide an avenue to explore copyright arguments that, in this particular context, have yet to be tested.

Written by Meghan Carlin. Meghan is in her second year of studies at Osgoode Hall Law School. In addition to her work with the IPilogue, Meghan is a Fellow with the Innovation Clinic and is Co-President of the Osgoode Entertainment and Sports Law Association.

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

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

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

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

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

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

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

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

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

[2] Ibid at para 186.

[3] Ibid at para 190.

[4] Ibid at para 177.

[5] Ibid at para 170.

[6] Ibid at para 164.

[7] Ibid at 167.

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In June 2019, a group of artists including Soundgarden and the estate of Tupac Shakur filed a First Amended Class Action Complaint (FAC), alleging that UMG was negligent in breaching its duty to properly store and care for the irreplaceable master recordings in which the plaintiffs had a reversionary interest, as well as in failing to notify the artists if and when any damage had occurred to their musical works (see the factual and procedural background ). Other causes of action raised in the FAC include breach of contract and conversion for failing to share the funds secured in the prior litigation and insurance settlements. Lawyers for the plaintiff artists asked UMG to provide “”, arguing that UMG had continually failed to inform the plaintiff artists whether any of their musical works were on the tapes that were lost. UMG was ultimately unsuccessful in fighting discovery over the course of 2019, and in December of last year, .

While this latest filing does not make clear whether any of the artists involved had actual ownership over the physical master tapes themselves, the loss of the high-quality audio contained within them translates into a potential loss of revenue for artists in an era of digital remasters and re-releases. Although the ownership of the destroyed master tapes may have been out of the hands of the artists at the time of the fire, mean that at some point, ownership of the physical tapes could revert to the artists. The destruction of these tapes would mean the loss of opportunities for future commercial exploitation for those artists affected.

The February 13^th filing describes a confidential settlement agreement between UMG and NBCU, as well as an insurer (AXA) following the fire. The filing alleges that “in 2010, then-counsel for UMG wrote a letter to NBCU stating, in relation to one of the two prior disputes at issue here, that UMG had conducted a ‘substantial investigation of the assets lost in the fire,’ that the investigation found ‘UMG lost more than 118,000 original music recordings dating back decades’”. The filing further states that “there were nearly 17,000 unique artist names on the list of purportedly lost original music recordings UMG provided to NBCU and AXA when UMG sought to and did monetize those recordings”, a number which stands in contrast to the 19 artists disclosed by UMG in regards to the case at hand. The artist plaintiffs allege that while whose works were involved in the claim.

UMG’s response rests on the distinction between potentially and actually lost works: “Plaintiffs misleadingly suggest that the investigation undertaken in the immediate aftermath of the fire and in the context of the NBCU and AXA litigations definitively identified lost original master recordings, such that inclusion of an artist’s name on then contemporaneous working lists of potentially lost assets indicates the irreplaceable loss of original masters embodying the works of that artist.” UMG argues that in consideration of the fact that the vault’s list of assets was itself destroyed in the fire, the post-fire inventory was nothing more than a working list of potentially destroyed works, and therefore the plaintiffs cannot compare the 17,000 potentially affected artists identified on the post-fire inventory used in prior litigation with the 19 artists UMG has definitively confirmed as actually affected today. UMG further argues that while it has, at an expense of over $1.4 million USD to date, set up a team devoted exclusively to providing information and transparency to potentially affected artists reaching out with questions, to compel UMG to undertake the same process for all 17,000 names on the original working list would place upon the company an undue burden, and would be essentially impossible to complete.

In the age of digitization, some might wonder why the destruction of original, physical master tapes is causing such an uproar when digitized copies of a work can be accessed from any number of sources. Monetary considerations may be driving the litigation that is currently underway, as the plaintiff artists demand a cut of the settlement funds they allege are owed to them via revenue sharing provisions in their contracts with UMG. Further, while digitized copies are most often used to commercially exploit a recording through channels such as tv, radio and streaming, the re-release of digital remasters and offerings by have become an additional source of revenue for artists and labels alike as playback technology continues to improve. However, for audiophiles, the destruction of these high-quality master tapes goes beyond economic loss. that, especially in the instance of many early recordings, we’re only now developing the listening technology to hear.

This case draws our attention to the changing digital media landscape and the complicated relationship between physical and intellectual property in such an environment. For those interested in the modernization of the music industry in a digital world, this case offers food for thought. For now, the parties await a response to UMG’s motion to dismiss the plaintiff artists’ FAC.

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

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The event began with a morning forum aimed at providing an interdisciplinary exploration of artificial intelligence systems and the effects of these technologies on the day’s themes. Moderated by , Counsel with the Law Commission of Ontario, the morning’s speakers included Insiya Essajee, Professor Trevor Farrow, Professor Regina Rini and Professor Ruth Urner.

Insiya Essajee is Counsel at the Ontario Human Rights Commission. is a professor of philosophy at 91��ɫ who teaches and writes on a number of topics in ethics, including the moral status of artificial intelligence. Professor teaches in the Electrical Engineering and Computer Science department of the Lassonde School of Engineering, with a focus on machine learning and the societal aspects of this technology. is a professor at Osgoode Hall Law School, with a research and teaching focus on access to justice, and legal and judicial ethics.

The paneled discussion was organized into 3 sections:

• What is AI, and what kinds of concerns do these technologies raise? How might we address these challenges?
  
  
• How does the use of ? What does the use of AI mean for human rights and inclusion?
  
  
• Moving forward, what should we be prioritizing in responding to AI?

How is AI Used Day-to-Day and What Kind of Concerns are Raised by the use of AI?

The panel opened with moderator Ryan Fritsch describing some of the different uses for AI, and the associated benefits and concerns. Fritsch described for the audience the way in which AI is currently in use all around us, almost everywhere we go. In certain circumstances, the benefit conferred by the technology is relatively uncontroversial. In health care for example, provides us with important health data at a rate of speed that would be impossible for a human to achieve. allow us to plan our lives in the safest way possible.

But what happens when machine learning is used to make decisions about people, as opposed to weather and radiology? ��Fritsch described some instances where AI is already being deployed in these kinds of scenarios: in , where AI is used to determine bail eligibility in various American jurisdictions based on “”, in predictive policing models , or in the use of on dating sites when it does not really exist.

With these examples in mind, Fritsch identified four areas of contention that arise in looking at AI technologies through the lens of human rights. Fritsch first recognized the transparency and disclosure issues that arise with AI technologies that we may or may not be aware of at any given moment or in any particular interaction. Questions of data, bias and discrimination came next – how is data generated? Who is developing these systems, and who is auditing the data that is produced? A third issue identified was one of “explainability”; that is, how do we ask a machine to explain the conclusion it has arrived at via machine learning? Further, how do we challenge or cross-examine AI? Finally, AI’s issues with inclusion and exclusion were identified, including problems of overinclusion when AI technologies based on historically biased data reproduces such bias.

How do we address these challenges?

The first question Fritsch posed to the panel was directed at professor Urner: are the issues identified above tech issues? If so, why is there no tech solution? According to Professor Urner, while technology shines a light on the issue of bias in data, it can’t actually provide any solutions, because the questions we’re asking and the issues we’re flagging aren’t technical at all. Addressing these challenges requires an interdisciplinary approach, involving conversations between technologists and scholars from other disciplines – philosophy, ethics and law, for example. Professor Urner urged us to remember that the benefits of AI come at a cost.

In response, Insiya Essajee suggested that while AI does indeed present issues, we can also look at the ways in which we can use AI to promote human rights. She provided the example of AI technologies helping organizations such as Universities meet their human rights requirements through initiatives like . In response to Fritsch’s question as to whether we need new laws in order to deal with the human rights challenges presented by AI, Essajee told the audience that she believes we already have the appropriate laws in place, as the already protects us from violations, whether they are committed by a person or a machine.

Regarding problems surrounding transparency and disclosure related to the use of AI, Professor Farrow argued that rule of law issues remain a major concern; everyone has the right to know by what standard they are being judged, and AI can make this impossible in a number of ways. First, people often do not know that AI is being used to make important decisions with real consequences to them. Second, there is no way to cross-examine a machine to understand how it arrived at its decision. Transparency and disclosure on the part of institutions can help address some of these concerns related to the rule of law, but solutions will need to be thought through on a continuing basis.

On the other hand, Farrow told the audience, AI has the potential to assist with access to justice goals. Citing research by Matthew Dylag, Farrow described Canada as experiencing an access to justice crisis, with AI technologies offering a way to take some of the pressure off people who find themselves requiring help with a legal issue. The potential of AI to help with services that could predict the outcome of a case based on certain factors might be of use to someone who is unable to afford or secure traditional legal services.

In a similar vein, Professor Regina Rini argued for education and awareness as critical to addressing the challenges presented by AI. Professor Rini reminded the audience of the importance of thinking through the ways in which AI interacts with people, in order to understand the capacity for AI to reflect our own biases back to us, but amplified. Professor Rini urged the audience to remain aware of the fact that machines are running on our own biased data, without the human mechanism to temper the resulting conclusions. For Professor Rini, education and awareness are critical to addressing the issues with AI in a meaningful way.

What does this mean for inclusion and diversity at 91��ɫ?

Ryan Fritsch provided the audience with some examples of the way in which AI is used on campuses: through , , and , to name a few. The next question posed to the panel asked in what ways can AI help or hinder us in achieving our inclusion and diversity goals?

Professor Urner suggested that in asking this question, what we’re really asking about is the fairness of automatic systems. For Professor Urner, the question becomes “how do we force a machine to be fair”? Her answer is that an algorithm for fairness may be impossible.

In response, Essajee proposed ways that humans might audit AI for discriminatory practices. In this, there are at least two ways in which we can look at AI decisions: we either take the advice of machines full-stop, or we supplement our human decision making with AI advice. In terms of auditing, there was no clear consensus who would perform such a task. Do we make programmers responsible for auditing outputs for bias or is this a task for another discipline?

Moving forward, what should we be prioritizing in responding to AI?

Fritsch then asked the panel to share what they perceive as necessary steps for responding to AI in a world increasingly shaped by the use of such technologies.

For Essajee, in order to ensure the responsible use of AI moving forward, we need to have effective systems in place for deciding the readiness of certain types of AI, before they are unleashed. Farrow flagged ideas surrounding the ways in which AI might be written into our notions of procedural fairness, and beyond legal rights, ensuring that institutions are proceeding forward in a human way, even when AI is in use. Professor Urner drove home the message that we must remain focused on developing and instituting interdisciplinary approaches to creating and responding to AI technology. Professor Rini wrapped up by describing how classes on the responsible use of AI are already being offered, such as those at the , and the importance of institutional efforts in educating students on the issues raised throughout the morning’s discussion. On a broader scale, Professor Rini continued, we need to ensure the wider public is aware of the ways in which AI is used, and the concerns associated with such use.

Takeaways

Throughout the morning, two key points continued to be reiterated, providing us with some important takeaways from the discussion.

First, education and awareness will be critical to ensuring the responsible use of AI, now and in the future. This includes the transparency and disclosure necessary to ensure that rule of law principles are respected. Both institutions and individuals have a role in this. Those developing AI technologies must ensure that they are aware of the ethical issues involved and must provide assurance that best practices are in place. Further, as mentioned by Essajee, we need to build strong systems for deciding when certain types of AI technologies are ready for use, and for deciding how the technologies will be managed moving forward. Those employing AI technologies should disclose the use of AI and be transparent in explaining the purpose for its use. Educational institutions must provide the tools necessary to ensure that people understand the ways in which AI impacts their lives.

Further, interdisciplinary approaches to developing, thinking about, and responding to AI will be crucial to ensuring meaningful awareness of the benefits and costs of AI technologies. Technologists must work together with scholars from other disciplines in order to advance conversations around and develop solutions for the ethical and human rights issue raised by certain AI technologies.

Thinking deeply about the issues and concerns with AI is critical in a world shaped by AI technologies. While innovation will push technology ever forward, innovative thinking by scholars in other disciplines will be critical to resolving the human rights issues raised by AI technologies.

Written by Meghan Carlin, a first-year student at Osgoode Hall Law School.

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Entering the new year, conversations continue in many jurisdictions around copyright reform, including modernizing the way copyright disputes are dealt with in the digital age. In the U.S., artists and other independent content creators continue to mobilize around otherwise known as the CASE Act.

Passed by the House of Representatives in late October of 2019 before being stalled in November, the CASE Act proposes the creation of a Copyright Claims Board devoted to hearing copyright disputes in what is essentially a small-claims context. The proposed legislation caps any damages awarded by the Board at $15,000USD per individual work, up to a total of $30,000USD per claim.

who, the Act states, should be lawyers experienced in copyright law and alternative dispute resolution (ADR). The CASE Act’s proposal for an ADR mechanism for copyright comes after years of discussion on the topic and the introduction of other similar legislation.

The CASE Act is largely drawn from the draft legislative proposal found within a on copyright small claims. In 2011, at the request of Congress, the U.S. Copyright Office into the topic. The inquiry sought submissions and commentary from stakeholders on their experiences in pursuing copyright claims with small economic value, as well as input on proposed alternatives to the traditional system for adjudicating these types of disputes. After public hearings in 2012, the U.S. Copyright Office released their findings in September 2013, describing what they identified as the challenges content creators and other American copyright owners face in their attempts to “vindicate their rights and deter continuing violations”.

see it as a vital piece of legislation aimed at protecting the livelihood of independent content creators who might otherwise be unable to enforce their rights. As described in the U.S. Copyright Office’s 2013 report, the cost of litigation in the traditional system can outweigh any monetary recovery for lower-value copyright claims. Loss of time that could otherwise be put towards income-generating activities was identified as another major barrier to traditional adjudication, essentially leaving independent creators with claims of small economic value with no viable recourse.

the Act does not do enough to protect artists. The voluntary nature of the process, allowing parties to opt-out, puts independent creators at a disadvantage when a power imbalance might exist between two parties, one of whom may be better able to bear the time and monetary cost of traditional litigation. Critics also worry about the possibility of misuse, such as with frivolous claims or those brought against ill-informed internet users who may be unwittingly posting copyrighted work on social media, and the difficulties the Act’s opt-out requirement may pose for those caught in a claim with penalties reaching into the tens of thousands of dollars.

This last line of reasoning has been the primary argument of those opposing the bill, which is currently on hold as of January 2020. In November of 2019, Senator Ron Wyden (D-Or) put a hold on the bill, citing concerns about “” in the bill as it is currently drafted. ��

Here in Canada, , and many similar critiques apply. In Ontario, recovery is capped at $25,000CAD and there is no process of discovery. Equitable remedies are not typically awarded by small claims courts, so if an individual is seeking something other than monetary recovery, they may still be forced down the road of traditional adjudication. Still, having the small-claims option available allows an individual to decide which route may be best for them in their particular circumstances.

As negotiations continue between proponents of the bill and those senators blocking the full vote, the CASE Act will be one to keep an eye on this year.

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

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As first , on December 29, 2019 a user uploaded to YouTube 75 rare and previously unpublished Rolling Stones recordings. The recordings were made public for approximately 24 hours before being hidden by the user on January 1, 2020. The YouTube lists an email address for , a record label and music publisher that owns and administers much of the Rolling Stones early material. This led some to suspect that the uploads were a quiet attempt to make the recordings available to the public before falling under the Term Extension Directive’s “use it or lose it’” clause, or perhaps, to allow the label to make use of the option to create a copyright term of 120 years under this legislation.

The Term Extension Directive seeks to address the fact that, for performers in the EU, the “term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime”, resulting in what the directive describes as an income gap at the end of a performer’s life. It does this by not only extending the copyright term for sound recordings from 50 to 70 years after fixation, but also by providing performers with access to what has come to be referred to as a “use it or lose it” clause providing them an avenue to regain access to sound recordings that are under the control of a producer (Directive 2001/77/EU, Art. 1(2)).

According to , the “rights of producers of phonograms shall expire 50 years after the fixation is made”, and when a sound recording is lawfully published within this original 50 year term, the rights extend to 70 years from the date of first publication, via the Term Extension Directive (potentially extending the producer’s copyright term to a total of 120 years). However, the Term Extension Directive also adds the following:

“If, 50 years after the phonogram was lawfully published or, failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract by which the performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer”.

Here, performers are given the option to request termination of copyright, extinguishing the rights of the producer if they do not make the material available for sale within a year of receiving a notice of contract termination from the performer. As of 2018, , which leads us to ask what it means to make a sound recording available to the public, and if a 24-hour public upload to a digital streaming platform fulfils this requirement. What did ABKCO have in mind when deciding to upload to YouTube these previously unpublished recordings on the final day of 2019?

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

The post 24 Hours for 70 Years: Interpreting the EU’s Copyright Term Extension Directive appeared first on IPOsgoode.

is the President and CEO of , a non-profit trade organization which works on behalf of its membership of Canadian music labels, and their partners, the artists themselves. Before joining Music Canada in 2004, Henderson was a Senior VP at Universal Music Canada, having previously worked as an Entertainment Lawyer.

, a veteran of the Canadian music industry, is a performer, record-label owner, and an advocate for artists’ rights. Beyond managing Roaring Girl Records, Miranda is the founder of the Muskoka Music Festival, and currently sits on the Board of Governors of Massey Hall/Roy Thomson Hall.

The session stood as a touch-base on the current state of an ever-changing creative marketplace, in light of a number of recent reports and recommendations released in 2019. It’s an interesting time for the music industry in Canada, especially considering .

Henderson described how 2019 saw the release of two documents important to the creative industry in Canada, and those interested in the modernization of Canadian copyright law. on June 3, 2019, the (otherwise known as the INDU) completed and released their widely anticipated . In the works since December of 2017, the INDU consulted with various industry stakeholders, hearing 263 witnesses over 52 meetings, eventually providing intended to help set the stage for copyright reform in Canada. Released just prior by the Standing Committee on Canadian Heritage (CHPC) was their entitled focused on remuneration models for artists and creative industries. While the INDU’s review did not officially consider the CHPC report, the two documents provide meaningful insights when considered together, overlapping in some areas while remaining inconsistent in others, providing the government with much to work with as they begin any potential policy updates.

Henderson described Music Canada’s own report, , released in late June of this year, subsequent to the INDU’s review and the report by the CHPC. Music Canada’s 2019 report reiterates the organization’s 2017 release called , which first detailed what they describe as the gap existing between artists and their revenues. In directing us to the 2019 report, Henderson and Mulholland described the way in which content creators continue to struggle in a digital marketplace, protected by copyright laws they see as holdovers from the analog era, even after the 2012 Canadian reforms.

Critics on the music industry side, including artists and other rights-holders, have pointed to weaknesses within the INDU’s review, finding that the recommendations do not go far enough to protect and ensure adequate remuneration for those creating the content we enjoy, or to provide an effective base for modernizing the . Henderson and Mulholland described for the audience how, in their view, the current lack of legislative safeguards for artists creates a form of subsidization for the tech sector that thrives on streaming digital content. Based on the recommendations in the INDU report, it appears that the government remains alive to the way in which copyright law acts as both a protective and a restrictive force which it aims to keep in equilibrium. While the legislature learns to keep up with the break-neck pace of digital and creative industry, growing pains will likely continue to be felt. Moving forward, it’s clear that there are various interests which must be balanced in modernizing the Copyright Act, whatever the eventual legislative outcome. As 2019 comes to a close, we look forward to seeing what’s on the horizon for Canadian copyright reform.

Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.

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