In March 2022, the Canadian Intellectual Property Office (“CIPO”)  its first artificial intelligence (AI)-authored copyright registration of a painting co-created by the AI tool, RAGHAV Painting App (“RAGHAV”), and the IP lawyer who created RAGHAV, Ankit Sahni. RAGHAV is the first non-human “author” of a copyrighted work. However, Canadian courts  that “[c]learly a human author is required to create an original work for copyright purposes” (para 88). Though the AI tool is a co-author with a human, the registration suggests that both RAGHAV and Ankit Sahni can constitute an author under the copyright regime and  amongst Canadian artists. Though the landscape in Canada is still unclear, the US Copyright Office (“Office”)  a clarification on March 16, 2023, about its practices for examining and registering works that contain material generated by artificial intelligence (AI) technology.

The Human Authorship Requirement

The Office  that the term “author,” used in both the US Constitution and the Copyright Act, excludes non-humans. To qualify as a work of ‘authorship,’ a work must be created by a human being and works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author are not registrable. This threshold reflects the Canadian copyright regime,. The author  significant original expression to the work that is  to be characterized as a purely mechanical exercise.

The US Copyright Office’s Approach to AI-Generated Work

The Office provided important  on assessing the protectable elements of AI-generated works. It begins by distinguishing whether the ‘work’ is one of human authorship, with the AI tool merely being an assisting instrument, or whether the protectable elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were conceived and executed not by man but by a machine.

If the machine produced the expressive elements of the work, it is not copyrightable. This guidance is critical for  surrounding Chat-GPT, where the AI tool receives a prompt from the user, and the user does not exercise ultimate creative control of the output. The Office provided an  where a user instructs an AI tool to “write a poem about copyright law in the style of William Shakespeare”. Given that the user contributes little to no expressive elements to the AI-generated output, the output is not a product of human authorship or protected under the US Copyright Act.

However, the Office also  that, in some cases, AI-generated works might contain sufficient human-authored elements to warrant copyright protection. This may apply in cases where the human selects or arranges the AI-generated elements or modifies the AI-generated material to a degree where it constitutes original expression. The analysis seeks to determine whether a human had ultimate creative control over the expression and formed the traditional elements of authorship.

This guidance is in response to a recent review by the Office of a  titled “Zarya of the Dawn” containing human-authored elements combined with AI-generated images. While the Office  that the author, Kristina Kashtanova, owned the work’s text and the selection, coordination, and arrangement of the work’s written and visual elements, copyright protection did not extend to the images generated by the AI tool, Midjourney. Though Kashtanova edited the Midjourney images, the Office held that the creativity supplied did not constitute authorship.

How will this apply in Canada?

Given the registration of RAGHAV as an author under Canadian copyright law last year, it remains to be seen whether CIPO will follow a similar assessment as the US Office and revisit the decision to register an AI-generated work as a work of joint authorship. However,  question whether moral rights, which are not part of the US regime, will extend to AI authors and if AI authorship will alter the copyright term of the last living author’s death plus 70 years. The increasing traction of AI warrants similar guidance from CIPO regarding the status of AI authorship under Canadian copyright law.

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Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focused on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The Keynote Address at , delivered by Dean Lior Zemer of the Harry Radzyner Law School, Reichman University in Israel, introduced an important but challenging issue: the rights to works of Holocaust victims. The Keynote Commentary, delivered by Honourable Justice Marshall Rothstein, shed light on the question: “Why has it taken so long?”

Justice Rothstein opened with a story: his father was born in Poland, one of eleven children. The family-owned barrel factory and hotel were not enough to support eleven families, so the younger siblings, including Justice Rothstein’s father, immigrated to Canada before the first World War. While the younger siblings did not get the factory or hotel, they were lucky. Those who remained in Poland became part of the six million victims of the Holocaust.

Justice Rothstein was born in Winnipeg in 1940. While Justice Rothstein was a child, he does not recall any talk about the Holocaust. The prevailing view was that such a traumatizing subject should be kept from children to shield them. In those days, Justice Rothstein could not recall much known about the works of Holocaust victims beyond the Diary of Anne Frank. It is not surprising that it has taken decades before the discussion surrounding intellectual property and the Holocaust has grown to include the recovery and disposition of works of Holocaust victims. Justice Rothstein praised Dean Zemer’s initiative to consider these works and raise complicated, sensitive, and controversial issues.

In addition to why it has taken so long to raise this issue, Justice Rothstein shed light on why it is so important that the issue has been raised. Justice Rothstein quoted philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.” He recalled the antisemitism of the past which manifested in pogroms, expulsions, torture, and denial of rights to own land and to hold public office. Even in the 20^th century, zoning bylaws and gentleman’s agreements precluded Jews from certain communities, and many employers would not hire Jews as employees.

Although antisemitism significantly declined in the last half of the 20^th century, the concern of the Jewish community is that it will re-energize. Justice Rothstein explained that when times are tough, people look for someone to blame and conspiracy theories develop and multiply. Jews are always at the top of the list. He pointed to the as an example of the re-emergence of antisemitism, a shooting where the perpetrator was convinced the Jewish people were “committing genocide.” The lessons of the Holocaust are relevant today to understand antisemitism and, indeed, prejudice in any form. There is a danger in letting them be forgotten. Dean Zemer explained that Holocaust works have the potential to teach these lessons. There is a danger in letting them be unrestrictedly modified or transformed. ����

Justice Rothstein offered a Canadian perspective on how our moral rights framework would line up with Dean Zemer’s approach. In , Justice Binnie explains that moral rights “adopt a more elevated and less dollars and cents view of the relationship between an artist and his or her work” and “treat the artist’s oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.” The Canadian provides that moral rights are infringed if the work is, to the prejudice of the honour or reputation of the creator, distorted, mutilated, or otherwise modified or used in association with a product, service, cause, or institution.

Justice Rothstein explained that the concerns raised by Dean Zemer would fit neatly into the Canadian understanding of moral rights. However, a problem arises in that moral rights are tied to economic rights and not perpetual. In 2022, we are beyond the term of protection for works produced during the Holocaust. A further problem arises: where ownership of property is unknown, title escheats to the Government where the physical work is located, and physical ownership is perpetual. Title to Holocaust works may, therefore, be owned by the governments where those works are located.

To statutorily amend the term of moral rights protection for Holocaust works, to make legislative changes across countries, and to potentially move works from their present location will not be easily accomplished. However, it is a worthwhile goal. Justice Rothstein concluded his remarks with the ending note of Dean Zemer’s : “We must protect and promote the potential of these artworks to teach their most important lesson to us all – never again.”

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Claire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative , , and of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas in the Israeli Conservatory: Dean Zemer’s “own little victory.” ��

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Michelle Mao is a 2L student at Osgoode Hall Law School and an IPilogue Writer.

In response to a , where the musical’s contents were , Lin-Manuel Miranda, creator of the Hamilton musical tweets, So, what exactly does this “work” entail?

, The Door, a church in McAllen, Texas live-streamed their production of Hamilton with modified lyrics to reference Jesus and added a scene where Alexander Hamilton repents. The production ends with a sermon helping those who were struggling with drugs, addiction, and most controversially, homosexuality. The copyright issues that exist in this situation include: unauthorized streaming, unauthorized use of Hamilton content, unauthorized alterations to Hamilton content, and an infringement of an artist’s “moral right” to their copyrighted work.��

Lin-Manuel Miranda’s lawyers can consider several measures to protect his intellectual property. First, Hamilton the Musical did not grant performers rights to use its unique content and had only granted licensing to touring companies to perform the musical in various cities around the world. Given that The Door McAllen Church is not a touring company, they had not been previously granted rights to perform and live-stream, much less alter the contents of Hamilton the Musical.��

There is, however, an added layer of complexity for Lin-Manuel Miranda’s lawyers in this case. As religious institutions, from typical copyright protections called the . Therefore, performance or display of a copyrighted work at a religious institution is allowed, such as the performance of a hymn. This exemption, however, still does not grant churches the freedom to alter copyrighted work, such as changing the lyrics of a copyrighted song.��

An interesting argument Lin-Manuel Miranda’s lawyers can make is to claim Lin-Manuel's moral rights claim to his copyrighted work. to prevent the alteration and/or distortion of their work regardless of who the copyright owner is. The purpose of this right is to protect the reputations of authors and to prevent the destruction of unique works. The moral rights argument can be very strong in this case, given the progressive message that Hamilton the Musical stands for, with its casting of people-of-colour to portray an era dominated by colonization and white settlers. It is not hard to see how altering Hamilton the Musical, which has been hailed as an iconic piece subverting oppression, to promote certain Christian values and condemn homosexuality would severely damage Lin-Manuel Miranda’s reputation.��

This problem of copyright, fair use, and moral rights, in this case, is an interesting one, where the non-profit and fair use angles of church and religion and moral rights are evaluated within overlapping legal principles. While most present-day people would view The Door McAllen Church’s condemnation of homosexuality as oppressive, the tension between an author’s moral values and rights against fair use and religious use will prompt future discussions of racism, religious freedom, and individual freedoms.��

, the dispute between Hamilton the Musical and The Door McAllen Church has been settled by The Door McAllen Church paying an undisclosed amount of damages which the Hamilton team has since to an LGBTQ-rights organization. While it is unclear which argument Lin-Manuel's legal team took to achieve this outcome, he undoubtedly had a strong copyright claim against The Door McAllen Church’s unauthorized usage of Hamilton content.��

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Meena Alnajar is an��IPilogue���°����ٱ��, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School.��

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If you have used TikTok in the last seven months, you have likely come across the computerized voice narrating TikTok videos across the globe. The person behind this voice is Canadian voice actor from Welland, Ontario. Despite TikTok’s (USD) value, Standing had not been paid or asked for her voice to be used for Tiktok’s new text-to-speech function, released in . Standing is now pursuing a , drawing attention to how individuals could approach social media conglomerates and take control over their content. On narrating videos, which could alter the direction of Standing’s current claims.

Copyright claim

Standing first became aware of her voice in TikTok videos in late 2020. Her friend , noticing her voice in the background. In early May, Standing filed a copyright violation claim against ByteDance for using her voice recordings without obtaining permission. involves performing a copyrighted work publicly through digital audio transmission. In the United States, the maximum penalty is $150,000 per infringement which, in this case, could mean $150,000 for each TikTok video utilizing the text-to-speech feature. TikTok has yet to to Standing’s team in order to determine how many infringements were committed. Standing’s lawyer, , included in the claim that she not only missed out on a six-figure job, but that TikTok is causing her irreparable harm and injury as these videos can threaten Standing’s reputation and brand as a voice actor.

Standing’s team can thus support her claim using moral rights. enable the author of the work to protect their reputation. of a work can violate the author’s moral rights if it prejudices their reputation. Standing may have a moral right to be recognized for her voice as it connects to her work’s integrity. The text-to-speech function currently has no limitations in terms of use or content. In the United States, moral rights are interpreted narrowly. Many works, such as applied arts, . Standing’s team can also rely on likeness for this copyright claim. In most states, parties can be sued for utilizing , such as one’s personal attributes, for an exploitative purpose. If it is proven that TikTok’s text-to-speech feature utilizes Standing’s voice, Standing can claim the .

The initial question of how TikTok gained access to Standing’s voice recordings remains unanswered. In 2018, Standing was , a research organization in China, to record thousands of English sentences for translations. Standing’s team posits that those recordings came into TikTok’s possession for the text-to-speech function. The Institute of Acoustics may have granted TikTok access to the voice recordings. Standing’s case can also set a precedent for contractual requirements for voice actors and in their work contracts in order to avoid future misuse of their voice.

If Standing’s claim is unsuccessful, there may be detrimental effects for other creators whose content is utilized by large corporations without their consent. Professor Pina D’Agostino, copyright law expert and Director of IP Osgoode, stated in that if this claim is unsuccessful, “you almost eradicate the industry” as “you could say everything is free for the taking.” Without clearer guidelines, social media platforms may continue to misuse voice actors’ works without so little as an attribution.

TikTok’s reaction

TikTok has not filed a formal response to Standing’s legal claim, but TikTok users recently noticed a new female voice narrating videos, Standing has been made aware of this voice replacement. The change was not publicly announced nor . While not indicative of the case’s outcome, legal experts agreed that this change was a way for TikTok . Professor D’Agostino comments that it is a In a sense, she says

Looking towards the future

To date, and they have to file a response to Standing’s claim. Though a representative has stated that , Professor D’Agostino states that the voice change may be , if only , as that could mean paying for any TikTok video which utilizes the text-to-speech function. With , each having the option to use the text-to-speech feature, it could be in TikTok’s financial interest to settle the claim early. It would also require Standing’s team to or that had replaced her voice. On the other hand, business law expert as this case does not currently threaten the app’s revenues. Replacing Standing’s voice unless it is proven to be Standing’s voice in previous videos.

Standing’s case can help create some guidelines for social media platforms that generate their wealth and usership through accessible audio content. TikTok rose to fame for its for videos. The text-to-speech feature has contributed to the app’s popularity. However, the limitless nature of the text-to-speech function could have cost Standing opportunities and possibly her reputation. The function had been . Standing’s lawyer notes that the is part of Standing’s legal claim. TikTok’s audio library is key to the app experience, but this library can be misused at the expense of creators and actors that keep the app thriving. It may be time for courts to provide some guidelines for how people can have their work and integrity protected on large social media platforms.

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In the context of theatre, the presentation emphasised the function of the script as a text that comes into being with the purpose of being performed. This assumes significance for any meaningful analysis of the reasonable scope of the author-playwright’s moral rights. Empirical research reveals the inherently collaborative nature of creative processes in the context of creating theatrical works, which are often centred around workshopping. The workshopping process involves various agents, i.e., actors, playwrights, and directors assuming each other’s roles interchangeably and often radically reimagining the script such that it can be said to be collectively authored by the end of the process. This collaborative process is conceptually mutilated to fit the individualistic ideal of authorship under copyright law, producing the legal certainty and convenience of dealing with a single rights holder. The creativity emerging out of the that the complex, messy, unpredictable, and organically negotiated workshopping process entails is inherently of the nature of a . This is often obscured by the law’s privileging of the whose superior genius merits protection for both his personhood interests tied to the work as well as the public’s interest in receiving the work as it was originally imagined by the author.

What stood out to me particularly during the presentation was the deliberate academic choice that Dr. McDonagh makes in his work to explore and reveal the lived experiences underlying the arbitrary categories and standards that copyright law creates—legal categories that and insulate the law from critique by mystifying it via neutral rules and evidentiary standards. Using this context, I analyse joint authorship through a feminist lens in this post.

The strongest justification for moral rights emerged out of the theory, which meant to protect the author’s deep connection with his or her work, which is regarded as an extension of his or her personality itself. However, when an actor’s speech patterns are used to write dialogues, he or she could potentially be said to acquire a personhood interest in the script. Similarly, when a woman is recognised as a muse and the work created is dedicated to her as a tribute, it is possible that she has a greater personhood interest in the work that statedly reflects her personality than the male writer who decided to fix his expression around it. Rendering women and their experiences knowable predominantly through a also incurs public interest costs arising out of a homogenous public sphere where the lack of diversity of voices cripples creativity.

The recent decision by the UK Court of Appeals in seems to be shaping the contours of the law on joint authorship in the UK towards “identifying the true nature of the interaction between the parties”. The situatedness of this identification within crucial context makes it valuable to feminist scholarship in exposing power differentials among parties. However, the case also quoted Ezra Pound’s contribution to , a poem regarded as solely authored by T.S. Eliot. The Court held that despite Pound’s significant contributions, which were more than sufficient to justify a claim for joint authorship based on their nature and extent, the work was not jointly authored because “neither” poet regarded it so. Building upon a very insightful question put forth by Dr. Carys Craig, it is important to consider whose intention is considered crucial for a claim of joint authorship to succeed and what are its implications.

According to the British Columbia Supreme Court in , Canadian law required evidence of the parties’ shared intent to be joint authors in addition to working towards a common design and making significant expressive contributions to become part of a unitary whole. The Canadian Federal Court (FC) disapproved of this decision in by holding that Neudorf was incorrect in requiring evidence of the parties’ shared intent to be joint authors. The decision in Neudorf emerged from a reliance on US standards for joint authorship, such as those used by the US Court of Appeals in which held that the of any person to the status of a joint author must not occur unless every collaborator intended that the other be a joint author of the work. The FC in Neugebauer held that the Canadian Copyright Act was similar to the UK Copyright Act of 1912 in this regard and did not require the joint intent of parties for joint authorship. However, the FC in Neugebauer also held that the Neudorf standard was met in the case based on the facts therein. Thus, while Canada awaits an authoritative determination that joint authorship can be found in the absence of shared intent, the shared intention of the parties to be joint authors continues to have strategic if not determinative value in Canadian caselaw.

As per an empirical study titled ‘’, women comprise on average 30% or less of the artistic directors, directors, and playwrights in theatres in Canada, Australia, the UK, and the US. The widest gender disparity is conspicuous in the playwright category: 63% of the productions were authored by men, 22% by women, and 15% by mixed gender partnerships. In Canada, women make up fewer than 30% of theatre’s creative leaders, despite constituting a majority of theatre audiences (49% women compared to 40% men), a majority of all of theatre school students at the National Theatre School of Canada (58%) and writing plays that are 18% more profitable than those written by men (ironically, the routine excuse for non-production of women’s plays is that they are riskier at the box-office). I call this phenomenon the ‘ of women’s creative labour in theatre, which can be revealed by feminist inquiries into the power struggles involved in the creation of works of theatre. Women’s intellectual and creative contributions are susceptible to being cited out of male bibliographies, and trivialised as emotional labour that they are socialised and expected to perform. Often this male gaze can be significantly internalised and women may find it difficult to challenge the personhood interests of external actors in their personality and work by doubting the significance of their own contributions.

A jurisdiction such as the US, that requires the joint intent of parties to create a jointly authored work, can end up privileging the intention of the white male author who intended his work to be solely authored and assumed his female partner’s contributions to be those of a “friend and critic”. In a jurisdiction that recognizes authors’ moral rights, the moral rights would then vest in the male author as the legally entitled sole author because there was no common intention to be joint authors regardless of a “common design to create” and ��notwithstanding the actual creative contribution of the woman to the work.

A cause and effect of this feminisation is the pedagogical use of works by at theatre schools, which impact graduates’ choices as artists and audiences regarding the plays that they produce and support. There is arguably a public interest involved in developing and using the law with the purpose of fostering the creation and production of works by female playwrights in order to challenge a system premised on the reification of at the cost of alternative non-conforming identities, values, and works.

However, even as I write this, I am cynical of the potential of any reimagined copyright system to meaningfully further the goals of distributive justice because of the gendered and often privileged nature of 1) the required to be creative 2) the ability and impetus to one’s ideas in a medium and 3) to one’s claims in a court of law. Nonetheless, this recognition of the limited potential of copyright as a system to lead to social justice is useful to interrogate the values orienting its justifications and shed light on the extent to which they fall short of the objectives they unabashedly claim to fulfill.

��

Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig.

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This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,�� where�� it ��is�� seen�� as�� a ��mechanism�� for�� blocking ��out�� competition�� and ��censoring��criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

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

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

[5]��Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September ��11, ��2017), ��online:���� ��<https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

[9]��Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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Melania Trump’s apparent plagiarism of a Michelle Obama speech is by no means a rarity in politics. Politicians, like so many other prominent and , have a of copying without attribution, from student papers (which, as so many students are repeatedly warned, is grounds for expulsion) to public speeches. Though widely-publicized, did this plagiarism amount to actual copyright infringement? Political fallout aside, can this type of copying be seen in the same light as, for instance, ?

The relevant textual comparison can be found in the New 91��ɫ Times article .

While the speeches undoubtedly bear a fairly striking resemblance, it is not unheard of for politicians of all stripes to use . Much as some argue there are only to the stories we tell, there are certain themes most, if not all, politicians employ in their speeches. Indeed, it becomes very difficult to determine what is merely inspired by or what makes use of common elements, as can be seen in the complicated cases of , and what is actual copying. It is useful, then, to examine the issue from a legal perspective, rather than a purely sensational or popular one. It is also worth considering what the absence of moral rights in the U.S. means in this situation.

Blatant Plagiarism?

Not necessarily. Cases like this one are more likely to be tried in the than in a court of law. The standard for copyright infringement is considerably than mere similarities easily picked up on by observers and media. The original speech itself undoubtedly has copyright (as an original literary and dramatic work). Where political speeches especially can complicate the analysis is in the and in elements.

Political narratives tend to hit on several major themes over and over again. For example, the story of the self-made man who rose up to run for President has endured from the times of Presidents born in to recent recounting of politicians’ “” . Therefore, in a copyright context, these themes and stories would not be protected – they are the common stock of political narrative. Returning to Ms. Trump and Ms. Obama’s speeches, the ideas of hard work, respect, and following your dreams are arguably unprotectable as stock elements for many political figures.

Nevertheless, the expression of those ideas remains copyright-. Had Ms. Trump, then, merely borrowed these run-of-the-mill ideas for her speech, it seems unlikely anyone would even have noticed. It is in her expressive copying, however, that there is evidence of plagiarism. Like a song that copies lyrics in addition to a common pop melody, the likelihood of infringement increases when literal and expressive copying intermingle. Indeed, the question becomes not whether there was copying, but whether what was copied was a of the original work.

Since the copying was more or less (i.e. literal copying), we must consider how much was taken and how important it was. Here is where we can see why this case has become such a . Ms. Trump did not just crib political talking points from Ms. Obama. She appeared to appropriate parts of her life story. And while facts and history are not protectable, even for , passing off a person’s history as your own is seen as much more than borrowing their ideas. At the very least, it is easy to see how this story was a substantial part of the original speech. That the copying barely disguised the original language only makes the infringement more obvious.

Moral Rights: What If?

Because Canadian copyright includes moral rights, we might ask what role they could play in such an instance. It is easy to imagine that, given their political differences, Ms. Obama would be especially displeased with Ms. Trump’s copying of her personal story. The Copyright Act gives authors of integrity, attribution, and association in their work. There is no comparable provision in the U.S. If there were, musical artists there might frequently claim moral rights infringement where their work is used to the “” by its association with a cause (Copyright Act, s. 28.2(1)(b)) such as a politician with whom they disagree.

In Canada, Ms. Obama could both demand attribution for the use of her work in Ms. Trump’s speech and assert that her moral rights were infringed via the use of her work in association with a political movement with which she must certainly disagree. Of course, the concern about prejudice to her honour and reputation must be in the circumstance, though given the divisive nature of U.S. politics today, that belief would certainly seem reasonable.

Borrow Responsibly

There are undoubtedly many political lessons to be learned from Ms. Trump’s speech. Beyond the public fallout though, an examination of the issue from the perspective of copyright law is informative. It is clear that politicians are unlikely to infringe when they trot out reusable themes and archetypes – the stuff of politics for centuries. Where they will run into trouble is when they borrow from personal narratives, and more obviously, when they copy the actual expression – almost word-for-word – of those stories. Further, it becomes evident that the absence of moral rights in U.S. copyright law make it difficult for authors of many types to prevent the association of their works with causes they do not themselves support. This plagiarism scandal will likely remain in the political realm, but it is worth noting that that arena is no less immune from copyright protections than any other.

Sebastian Beck-Watt is the IPilogue’s Content Editor and a JD Candidate at Osgoode Hall Law School.

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The filed by the artists alleges, among other things, that the honour and reputation of the artists will be damaged if 5Pointz is destroyed or modified. To those who are familiar with copyright actions, this is a fairly classic moral rights argument. However, unlike countries such as Canada, France and Germany, the US does not provide authors of all copyright protected works with moral rights: only limited moral rights protection to creators of works of visual art under the .

VARA gives the author of a work of visual art two separate rights, although the two rights are somewhat conflated in the statement of claim.

The author of a work of visual art has the right

(A)��to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B)��to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The first right allows the artists to prevent the distortion or mutilation of works that will be detrimental to the artists’ reputations. The initial debate is therefore likely to turn on whether the destruction of the buildings, or even a portion thereof, containing the aerosol artists’ work will be prejudicial to each artist’s honour or reputation. Early decisions in Canada were reluctant to hold that the destruction of a work qualifies as “distortion, mutilation or other modification” or even that it is prejudicial to an artist’s reputation:^[1] once a work is out of sight, it is generally out of mind.^[2] But subsequent reforms to the deem if the work being distorted, mutilated or otherwise modified is a painting. Unlike the Copyright Act, VARA contains no similar deeming provision for paintings. The artists must therefore prove prejudice to their reputations.

In this case, 5Pointz is world famous and extensively photographed, and so the aerosol artists’ reputation may not suffer from the destruction. If anything, the destruction of the property may actually drive up the value of the artist’s reputation by limiting the number of people who have ever had a work on the site. After all, art loves scarcity.

The second right provides the artists with the ability to prevent the complete destruction of their works if it can be demonstrated that the works are of a recognized stature. However, recognized stature is not defined in the statute. Given the fame of 5Pointz the artists may be able to show that their works are well recognized and have legitimate stature in the art world. The multi-million dollar successes of street artists such as and demonstrate how large a space graffiti have firmly established in mainstream art culture. If the owners of a museum were intending to destroy a one-of-a-kind painting, similar arguments could be raised. Why should works painted on brick by aerosol be given any less legal protection than works painted on canvas by brush?

In the leading US case^[4] on the application of VARA to graffiti the court held that public policy reasons should prevent graffiti artists from asserting moral rights over works added to another’s property illegally or without consent. But what makes this case unusual is that all of the graffiti at 5Pointz were apparently done legally with the knowledge and consent of the buildings’ owner. Moral rights to graffiti works done with consent appear to be untested in US courts.

For artists and legal professionals, the lesson here is that moral rights can turn up in unlikely places and it is unwise to ignore them. In Canada, the grants authors, including visual artists, . However, the limits of these rights are largely untested, particularly as they relate to aerosol artists. The outcome of the 5Pointz action may therefore assist the development of Canadian law in this area.

For the time being, the 5Pointz lawyers have that the plaintiffs have been granted a temporary restraining order and are waiting to learn if they will be granted a hearing for a preliminary injunction. IP Osgoode will maintain a watching brief on developments.

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Over the last two months, Professor Jim Gibson from the University of Richmond School of Law, has written two articles identifying how Copyright law has for many centuries, and to this day, been used as a tool to censor works.

Professor Gibson began his chronicling the use of copyright as a means to censor works. The first attempt to limit the use of copyright for censorship purposes occurred three hundred years ago in the Statue of Anne. The gave individual authors exclusive rights to their works. This replaced a system where the distribution of books was controlled by the government through royal charters, which granted monopolies over printing and empowered the chartered firms to seize unauthorized books and bring their publishers before the courts.

Despite the Statute of Anne, Professor Gibson argues that Copyright continues to be used as an instrument of censorship. Censorship continues in two forms: direct and indirect. Direct censorship arises from the court’s judgment about the immorality of certain publications. There are a long line of cases both English and American where courts have refused to grant copyright protection for works that were lascivious and immoral. The most recent example of this type of censorship is the 1979 case of Mitchell Brothers v. Cinema Adult Theater. In Michelle Brothers, the exclusive licensee of a pornographic film sued another theater for their unauthorized exhibition of the film. At trial, the US district court recognized the long line of cases that refused to protect immoral works, judged the film obscene and denied it copyright protection.�� Though the decision was reversed on appeal, the decisions shows how recent this attitude is within the American courts.

The - indirect censorship - occurs when the Copyright owner is motivated by desires to suppress expression rather than disseminate. This type of censorship deserves greater scrutiny.

Professor Gibson argues that Copyright law operates under the assumption that the author wishes to disseminate his or her work to the public for a fee. Accordingly, to incentivize authors to create works, the threat of unauthorized and uncompensated copying needs to be minimized. If the assumption is false, however, and the Copyright owner does not wish to publish their work, then copyright law can be used to prohibit and censor materials.�� A prime example of this is rapper Eminem’s use of copyright law to he wrote in his youth. Professor Gibson questioned whether parties should be allowed to use copyright law to hide their dirty laundry from the public. Infringement of copyright in these cases would not result in an economic injury, but something more akin to privacy. He answered his question stating that copyright is ill-suited to deal with such concerns: “Its constitutional goal is to promote the dissemination of information, not retard it.”

There are��two issues with Professor Gibson’s argument that copyright is an indirect censorship tool. Professor Gibson recognizes these problems upfront. The first problem is that Fair Use (Fair Dealing in Canada) regulates to some extent the tension between privacy and the public interest. In some cases infringment of copyright is justified if it is in the public interest. A good example of this is the UK case of Hubbard v. Vosper. Vosper, a long time Church of Scientology follower and member of the inside circle, left the Church and published criticism of church books and confidential material. In the criticism, Vosper copied substantial parts of the Church’s books authored by church founder Hubbard. Hubbard sought an injunction and Vosper went to court to lift. Under the fair dealings defence, the UK Court held that breach of copyright was fair and justified given that it was in the public interest to expose the material.

The second problem with Professor Gibson’s argument is that the idea/expression dichotomy makes copyright an ineffective censorship tool.�� Copyright only protects the expression and not the ideas captured within the expression. Paraphrasing the racist lyrics of Eminem would not violate copyright law.

Despite these weaknesses, Professor Gibson may still generally be correct in his assertion that US Copyright law is ill-suited to handle concerns of censorship. If an author was not incentivized to create a work because of the profits they would receive from that work, why should copyright law apply to them?�� These authors fall outside the purpose of the copyright act. The work would have been created irrespective of whether the author would have a monopoly to sell the work. The underlying assumption is of course that the sole design of copyright law is to “encourage the creation and dissemination of expression.”

It is in this regard that Professor Gibson’s argument suffers a fundamental dint however, especially with respect to copyright law in other countries. Not all copyright laws exist for the sole purpose of encouraging the creation and dissemination of expression. As the Supreme Court of Canada stated in Galerie d'art du Petit Champlain inc. c. �ճ�é��������� at paragraph 116:

[I]t is important to recall that Canadian copyright law derives from multiple sources and draws on both common law tradition and continental civil law concepts. As Moyse observes, supra, at p. 562:

[TRANSLATION] What the term "copy-right" very certainly reveals is the actual function of copyright. It is an exclusive right and, as it applies to the part that relates to the commercial exploitation of the work, a true monopoly on reproduction. ...Canadian law inherited that aspect while remaining receptive to the French doctrines, particularly because of Quebec's influence. This does great credit to our law since the Canadian Parliament is more inclined than any other legislature to stay attuned to external developments in order to mould its own rules. ...

... Thus, in Canadian statutes, the intention is to establish both a right that is centered on the person of the author, this being derived from the civil structures of the right of ownership, and a definitely dynamic right centered on its economic function, which reflects the theories underlying the concept of monopoly [.]

Canadian statutes must therefore be interpreted in light of their historical context, domestic case law and legislative developments, and international conventions.

Moral rights are an example of the continental civil law influence on copyright. Section 14.1 of Canada’s Copyright Act gives authors a right to be attributed with their work (including the right to anonymity and a pseudonym), a right to prevent their work from being mutilated or distorted should it prejudice the author’s honour or reputation, and a right to not have their work associated or linked with a certain product, cause, service, etc. These moral rights are founded on the belief that a work is an extension of the author’s personality. If such a continental understanding is applied in determining the purpose of copyright law, then it becomes apparent that copyright law does not only incentivize authors to create and disseminate their work. Assuming this continental view, should not the author of a personal journal of intimate thoughts be able to exclude all from reproducing in the same way that they are entitled to anonymity or a pseudonym with respect to their work? Are these rights not consistent with one another?

It is apparent Professor Gibson’s arguments were not directed toward Canadian copyright law or nations with similar moral rights. However, may also impact Professor Gibson’s argument specifically with respect to the purpose of American copyright law. The difference between moral rights and economic rights is arguably a false dichotomy. In Jacobsen v. Katzer, the federal court commented that authors of open source works might be able to sue for copyright infringement on conditions typically considered moral rights. The court said that prima facie non-economic license restrictions such as attribution, should actually be considered economic benefits and thus be protected under copyright. The court reasoned that just because an author gives a license for no monetary consideration, does not mean that they have relinquished all economic rights. While a license for monetary consideration may be the standard method of licensing to create income, releasing for free public use can also provide economic benefits because the author creates a reputation and generates market share for their programs.

The inextricable link between an author’s personality and their economic interest is perhaps best captured in a 1777 quote from P.A. Caron de Beaumarchais, founder of the Société des Auteurs:

[TRANSLATION] It is said in the theatre lobby that it is not noble for authors to write for the worthless pursuit of money, they who pride themselves on their claim to fame. Indeed, they are right, fame is appealing. But they forget that nature condemns us to dine 365 times in order to bask in glory merely for a year. For the authors, they are not defending a privilege, but the sacred right of all rights to retain ownership of their works... .
(M. Pagnol, Preface, in J. Boncompain, Le droit d'auteur au Canada (1971),�� at p. 9.)

Professor Gibson is correct that: “[I]f there is an injury to be articulated here, it is different from the economic loss that results from the usurpation of one’s right to profit from one’s own expression.” But Jacobsen v. Katzer supports a more expansive view of the types of economic loss American copyright law protects against. Accordingly, if an author can require attribution for their free, open-source code should they not also be able to remain anonymous or not have their work published if it would have some impact on their economic interests? Does this not fall within the purpose of American copyright law?

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