Will the millions of people sharing these Olympic GIFs be punished? The short answer: it is legally possible, but success is highly unlikely.

Enforcement will be a major road block

Part III of the expressly prohibits the use of Olympic material for GIFs. Pursuant to the Canadian (the “Act”), the IOC has the right to produce, reproduce and prevent others from using Olympic material in any way with which they do not agree. Anyone, including the everyday Facebook and Twitter user, is therefore in violation of the ������’s when they create and share Olympic images over the internet without the consent of the IOC.�� However, enforcement of the new rules will likely be a major road block for the IOC.���� As by : “[y]ou can legislate all you want but at the end of the day if people are not going to obey by your rules . . . you’re going to have an uphill battle”. With social media users totalling in the billions and extending to almost every jurisdiction on the planet, the cost of rigorous enforcement may be too high and ultimately not worth it.

The IOC may instead decide to target the social media companies for providing a forum for posting prohibited material. In bringing an action, the IOC must establish that these forums authorized the rights-infringing activity as per the ������’s ��. But many social media outlets, like Twitter, have terms of use that expressly state that they and expect the same of their users. The terms indicate for inappropriately posting copyrighted material.��

Currently, a person authorizing an activity is only to do so to the extent they do not violate the law. Furthermore, does not flow from the mere fact that social media companies provide a forum for users to post the rights-infringing graphics.�� It is therefore difficult to support the position that social media companies like Facebook and Twitter authorize such rights-infringing posts.

The delicate balance between the rights of the owner and public interest

Courts have held the concept of fair dealing as not only a defence to copyright infringement but also an of the Act and as a . Its purpose is to balance the rights of the owner to the profits of their against the public interest in promoting dissemination of such works. Users of this defence must prove that their copyright infringing activities were fair and for the purpose of , or . The latter two do not infringe copyright when the is properly mentioned.

The courts have stated that what is is a question of fact. In determining whether certain activities were fair the courts consider: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Twitter and Facebook users are likely posting GIFs for comedic relief rather than for commercial gain. The average post of this kind may fall under s. 29 of the Act’s criticism, parody and satire exceptions. Moreover, sporting events typically t to begin with, as held in Canadian Admiral Corp v. Rediffusion Inc [1954] Ex. C.R. 382, 14 Fox Pat. C. 114. (not followed by the Federal Court of Appeal in the later case of ).

Sharing images and graphics of televised sporting events on social media has become widely popular among sports audiences, so much so that single GIF may be tweeted and re-tweeted millions of times. Furthermore, GIFs usually last mere seconds, not entire performances or games. Consequently, it will be very difficult to argue that GIFs provide a realistic alternative to watching the Games in a way that could be considered a substantial part of any work for the purpose of establishing a copyright infringement.

Could the ban upset users enough to forego watching the games?

Some fear that the IOC’s policy may do more harm than good. The ban may be seen as contrary to the celebratory spirit of the Olympics and users may consequently decide not to tune in.�� However, since many users have simply elected to ignore the prohibition and continue posting graphic material, it is unlikely the ban will have any lasting negative effects on the Olympic brand.

Olivia McKenzie��is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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Its Purpose is the Protection of Personality Rights

The Act was first introduced to the Minnesota Senate in the wake of the death of world-famous musician and Minneapolis native Prince, who died unexpectedly and without a will. The PRINCE Act, as reported, is short for , had its introduction and on May 9^th, 2016. The Act reportedly required to proceed quickly through the reading but failed to pass before the end of the legislature’s session.

The Act provided a potential plaintiff with a claim for by recognizing “a property right in a person’s name, voice, signature, photograph, or likeness [“Personality Property Rights”].” ��Not only did the Act provide exclusive rights to the individual during their lifetime, it proposed the protection of those rights for a minimum of 50 years after death. After death, the rights would be transferred to an executor, administrator or heir, who would maintain ownership of the right until a successful claim of non-use for commercial purpose was made.

The Act would prohibit the unauthorised use of a persons’ protected personality property for commercial gain and provides a variety of remedies from an injunction to damages. Fair use, however, remains an important limitation. The limitation for fair use is a mirror of Title 17 of the United States Code: . As a result, any of the protected property types with connections with the news, public affairs or sports broadcast would be deemed fair use and therefore permissible under the act.

How does it compare to Canadian Law?

Currently, there are four Canadian common law provincial jurisdictions with —British Columbia, Manitoba, Newfoundland, Saskatchewan—that provide a cause of action for the unauthorized appropriation of another’s personality. In jurisdictions without a written statute, the common law tort for wrongful is used to protect proprietary rights similar to those that would be protected under the PRINCE Act had it been passed.�� The tort prohibits the of another’s name or likeness without permission. Although there is some uncertainty as to how far the tort extends, Canadian suggests that it covers at least the use of another’s personality, image and name. A successful plaintiff must prove the defendant ��their personality for commercial gain.

Notably, Canadian common law also protects one’s exclusive right to market his/her own personality. A plaintiff can recover damages resulting from an infringement, even without proving intentional appropriation for commercial gain.

Similar to the proposed PRINCE Act, the tort of misappropriation of personality has built within it a public interest limitation. In [Gould Estate] the plaintiff’s appropriation of personality action failed because the court deemed the impugned use of Glenn Gould’s photographs and interview material as a permissible use in the interest of the Canadian public. Consequently, it appears that thoughts, ideas, newsworthy events and matters of public interest are exempt from the tort of misappropriation of personality.

The Canadian common law and the PRINCE Act diverge on the topic of posthumous protection. The of British Columbia, Newfoundland and Saskatchewan provide that the common law protections on personality rights extinguish upon the death of the person holding those rights (Manitoba's , however, lacks such a provision). Despite three of four provincial acts prohibiting the survivability of the right, in the Ontario Court of Justice held that such an intangible proprietary right was akin to copyright and therefore should be devisable to heirs. The decision was later , albeit on different grounds. As a result, there is still much confusion as to whether the proprietary rights protected by the tort of appropriation of personality are indeed devisable and, if so, how long after death the rights��would survive.

Difficulties ahead

It is unclear how broad in scope the fair use exemptions with be under the��PRINCE Act, if it is eventually passed. The courts may gradually carve out its scope on a case-by-case basis. The��definition of fair use in the PRINCE Act and the public interest limitation in Canadian common law seem to protect altruistic uses in which the object is to provide the public with information. It will be particularly interesting to see how the court handles situations in which such altruistic pursuits lead to material commercial gain by another.

Olivia McKenzie��is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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