Photo by Brandon Skeli ()

Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

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Bloodborne, an action role-playing game made by FromSoftware, has achieved tremendous success since being published in 2015. On September 17, 2021, IGN released a of a new game named Wuchang: Fallen Feathers. This trailer has resulted in a heated discussion online about the line between inspiration and plagiarism.

Leenzee Games, the developer of Wuchang, claimed that FromSoftware games served as an inspiration. However, some comments online point to similarities that go beyond mere inspiration. Those who have played FromSoftware’s games can immediately identify the similarities. The sound, the art style, and the combat system are reminiscent of Bloodborne, while the UI looks very similar to Sekiro (another FromSoftware’s game). Some comments have gone as far as to claim that Wuchang is a “” or a “.”

A is that copyright law protects the expression of ideas rather than ideas themselves. The same principle also applies to video games. For example, the idea to make a video game that mimics basketball is not extended copyright protection.

Rather, the way basketball is played in a game amounts to the expression of the idea and may be protected. Various elements constitute the expression of a game—such as the graphic design, voice acting, and character design. In Canada, these are given special copyright protection. The same principle also applied in a 2012 American case , in which the court ruled that a game’s look and feel could be copyright protected.

The core issue here is whether Wuchang has infringed the copyright of Bloodborne on an “expression of ideas” level. One gamer has compared these two games and posted a to summarize the elements shown in the Wuchang trailer that are similar or nearly identical to Bloodborne, including gun sound, blood sound, and axe charge attack animation. Given that the idea is to make a role-playing action game, these elements constitute the expression of the idea. Under this consideration, it is reasonable to believe that Wuchang may have infringed the copyright of Bloodborne.��However, there is still much uncertainty in this case.

Soon after releasing the trailer, Leenzee Games announced that Wuchang was still in the early stages of the development, and only 15% complete. The final product might be completely different from the trailer, which makes it risky for FromSoftware to advance the lawsuit at this point. The fact that these two companies are from different countries also adds to the complexity. So far, FromSoftware has not announced any official statement, and Wuchang is still under development.

The post Born from "Bloodborne": Inspiration or Plagiarism? appeared first on IPOsgoode.

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.

The post This is Why You Have an Editor: Politics, Plagiarism, and Copyright appeared first on IPOsgoode.

While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima that��plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement.��The Act has been widely by various parties () as unconstitutional and , with particular concerns over the vagueness of the statutory definition of “libel.” In an , de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is , the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the , and sources such as , in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has , and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have , advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an , Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to , and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for . Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was ��pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the of Philippine citizens and have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

The post The “Word” Is Not Enough: New Cybercrime Prevention Act Leaves Philippine Plagiarists Criminally Vulnerable (UPDATED) appeared first on IPOsgoode.

Karl-Theodor zu Guttenberg in March 2011 from his position as German defence minister following revelations that he had plagiarized much of his 2006 doctoral thesis.

Referred to as the “Teflon Minister” for his ability to escape from controversy unscathed, Guttenberg’s resignation came as the result of ; much of which was driven by an regarding the originality of Guttenberg’s thesis, which had been of summa cum laude by the University of Bayreuth.

The allegations against Guttenberg first following a newspaper article by Andreas Fischer-Lescano, a law professor at the University of Bremen, which questioned the minister’s dissertation. From there, an anonymous online group banded together and began dissecting the material while posting their findings on online forums. As the movement grew, the group utilized an online wiki aptly named the . The wiki was created by a leader in online plagiarism-hunting, a doctoral candidate with a background in online gaming who goes under the pseudonym “.” Along with , an employee of , the two have been instrumental in organizing the online effort to analyze Guttenberg’s dissertation, which also paved the way for the establishment of the wiki. The VroniPlag wiki investigates plagiarism in other dissertations and has already been instrumental in the of German politician .

, the GuttenPlag effort found only approximately 5% of the pages of Guttenberg’s thesis to be free from plagiarism. The wiki implements a to illustrate its findings white pages indicate no plagiarism, black represents plagiarism, and red indicates plagiarism from multiple sources. While intentional plagiarism, Guttenberg soon after and the recently released a following its own investigation into the matter. Eyebrows were also raised by the fact that some of the plagiarism resulted from , which is not permitted for personal use.

Guttenberg, whose full name is Karl Theodor Maria Nikolaus Johann Jacob Philipp Franz Joseph Sylvester Freiherr von und zu Guttenberg, is still one of Germany’s most despite the scandal and is to still have a future in politics. Guttenberg’s popularity is bolstered by his aristocratic lineage and he, along with his wife, to represent a form of German royalty.

Guttenberg’s quest to obtain a doctorate was likely influenced by the in Germany. found that 58.5% of chief executives in Germany had a PhD vs only 1.3% in the US even though both countries have similar rates for overall population participation in PhD programs. As such, a PhD in Germany is instead of advancing academic research.

The proliferation of doctorates in Germany among non-academics makes it likely that many others will face scrutiny in light of the Guttenberg scandal, particularly in light of of the VroniPlag wiki. However, the lack of accountability on the part of anonymous online “plagiarism hunters” has made some uncomfortable. Volker Rieble, a plagiarism expert and law professor at Ludwig Maximilian University in Munich, of anonymously accusing someone of plagiarism since the accused doesn’t know who is attacking his credibility.

The internet has revolutionized and altered many of the traditional approaches to both life and business, online and offline, and plagiarism is no exception. With the success and attention of WikiLeaks, GuttenPlag, and VroniPlag, it appears that the era of anonymous vigilantes is upon us.

The post GuttenPlag: German Politician Brought Down By Anonymous Internet Activists appeared first on IPOsgoode.

Plagiarism has existed around the world for ages, but since the introduction of the world wide web it has been growing exponentially.�� Understandably, schools have long searched for ways to curb plagiarism.�� Thousands of schools have signed up with Turnitin.com to deter and detect plagiarism and many swear by its effectiveness.�� Problem solved, right?�� Not by a long shot.�� Not only are students forced into using the service against their will, but Turnitin violates their intellectual property rights, and possibly even some privacy laws along the way.�� How can a company out to do good do so much wrong you ask?�� Keep reading and I'll show you.

The Turnitin system is straightforward.�� Students submit their papers online and Turnitin compares the papers to its archive and generates an originality report so that teachers can decide whether a student plagiarized or not.�� The heart of the problem is that the archive contains previously submitted student works and every time a student submits a paper it gets added to the archive even if they object.�� Turnitin claims that students agree to the terms of service when they click "I agree" and therefore grant Turnitin a perpetual, world-wide, irrevocable license to reproduce, transmit, archive, and otherwise use the student papers.�� Although contracts entered in this manner are ordinarily enforceable, this one should not be for two reasons.�� First, the students are often minors and have the right to rescind contracts they entered upon reaching majority.�� Secondly, the contracts are procedurally and substantively unconscionable.��

On March 11, 2008 the ��United States District Court ��for the Eastern District of Virginia dismissed the first argument by saying that the students accepted the benefit of the contract and have no way of returning it.�� On April 16, 2009 the 4^th Circuit Court of Appeals affirmed the District's Court decision.�� However, we need not discuss whether the students can return the benefit they received as it is patently clear they received no benefit from this contract.�� The District Court singled out standing to sue and ability to submit their papers for grading as benefits the students received.�� The students had the ability to do both of these things before they clicked "I Agree" and therefore it is entirely illogical to claim that clicking a button granted them these benefits.�� With no benefits to return (because they never got any in the first place) they can rescind the contract thereby revoking the license they granted earlier.��

Furthermore, the contract is unconscionable and should be voided in its entirety.�� A contract between a multimillion-dollar business with a legal team and a 12 year old is the paradigm of unequal bargaining power.�� The contract prevents students from submitting DMCA take down notices, prohibits them from receiving injunctive relief, and even goes so far as to say that the license survives termination of the user agreement.�� With no meaningful choice but to agree to the terms or risk failing all of their classes students have agreed to this preposterous agreement.�� Even someone with no legal training can spot the injustice in allowing a contract on these terms to survive.

I could spend the next 5,000 words analyzing the copyright and fair use issues (and in fact I have, see or the upcoming issue of the Touro Law Review for the complete paper), but the clearest way to visualize how the students should have prevailed in the Turnitin case is with a chart listing each of the fair use factors.�� Everyone in the Unites States automatically owns the copyright to original works of authorship that they produce.�� 17 USC §106 entitles students to the following relevant exclusive rights:�� (1) to reproduce the copyrighted work, (2) to prepare derivative works, and (3) to distribute copies of the copyrighted work.�� Turnitin adds the papers to its archive violating #1, creates an originality report violating #2, and distributes student papers to teachers that request them violating #3.�� If it was not clear earlier it should be now that Turnitin is up to its neck on the copyright infringement claim.�� Their saving grace has been the very next statute in the code (§107) which codifies the fair use factors, which are weighed together to determine if a particular use of a copyrighted work is "fair".�� Let's take a look at the chart I promised just a moment ago:

Keep in mind that no single factor is dispositive, but the students have compelling arguments for why they should have been favored in each of the four factors.��

Turnitin's final legal blunder relates to privacy.�� COPPA (The Children's Online Privacy Protection Act of 1998), FERPA (The Family Educational Rights and Privacy Act), and PIPEDA all aim to protect personal information from collection and disclosure.�� COPPA provides that it is unlawful for an online service directed to children to collect personal information from a child and requires the operator to obtain verifiable parental consent for the collection, use, or disclosure of personal information.�� FERPA dictates that schools and their agents must have written permission from a parent or adult student before releasing information from a student record (which may include student essays).�� PIPEDA states that private Canadian companies must maintain basic safe practices with personal data and obtain consent when collecting and disclosing it.��

COPPA, FERPA, and PIPEDA are considerably more complex than I make them out to be, but their intentions are clear.�� The following hypothetical scenario should show you how Turnitin blatantly violates all three laws on a regular basis.

A teacher asks her class of 12 year olds on the first day of school to write a brief essay on what each student did over the summer.�� One child writes about how hot it was because their family could not afford air conditioning and another writes about how they were abused by a parent.�� The students then dutifully submit their essays to Turnitin where they are stored for eternity.�� One day a second teacher discovers that one of their students' papers matches one of the hypothetical essays that was submitted to Turnitin.�� The second teacher emails the first teacher through Turnitin explaining the potential plagiarism and Turnitin then facilitates the transfer of the student essay from the first teacher to the second teacher.�� The students are never asked for consent and COPPA, FERPA, and PIPEDA are all violated in the process.��

Let me conclude by saying, I sincerely hope no one thinks I support plagiarism because I disapprove of Turnitin's methods.�� What I do support is upholding the laws that I just spent the last three years studying.

The post U.S. Circuit Court of Appeals Rules that Turnitin's Fight Against Plagiarism Does Not Violate Student Intellectual Property Rights: A Dissenting Opinion appeared first on IPOsgoode.

In late 2008, it was that the first picture of Emily, which appeared in 1991 in conjunction with skateboards, bore a striking resemblance to an image of a character named , a young girl seen occasionally in the 1970s book series "Nate the Great".�� In this particular , Emily is pictured with her cats and the text reads: "Emily didn't look tired or happy. She looked like she always looks. Strange." The image of Rosamond, which predates that of Emily by more than a decade, shows Rosamond with her cats, and the text: "Rosamond did not look hungry or sleepy. She looked like she always looks. Strange." Cosmic Debris acquired Emily the Strange from original creator Nathan Carrico after this initial image had been featured on stickers that were distributed at concerts and skateboard shops. The similarity between the characters was brought to Rob Reger's attention in 1998.��Reger claimed he was not aware of the Rosamond character and that he has never drawn inspiration from the Nate the Great series; however, once the similarity was brought to Reger's attention this particular depiction of Emily was phased out and discontinued by 1998 and the creative team of Cosmic Debris then worked to further distinguish Emily.

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Rosamond, who was created by and is a young girl, with long straight black hair, who wears a black dress and who has four cats. Emily is also a young girl, with long straight black hair, who wears black dresses and who also has four cats; however, Cosmic Debris argues that is where the similarities between the two characters end, claiming that Emily wears only black, is always pale and sullen, and never spends any time with any other children, whereas Rosamond is often rosy-cheeked and smiling, wears dresses of different colours and often plays with other young children.

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Interestingly, throughout the almost 20 years that Emily has been openly promoted and publicized, Sharmat and Simont have Rob Reger or Cosmic Debris concerning a claim to any rights in the image associated with Emily the Strange; however, once the similarity began to be publicized on the internet, Sharmat and / or Simont began to contact businesses who had agreements with Cosmic Debris claiming that Emily the Strange somehow infringes copyrights in Rosamond and the "Nate the Great" series. Cosmic Debris that these actions are interfering with their ability to conduct business and on May 18^th, Cosmic Debris launched a requesting that defendants Sharmat and Simont be barred from recovering damages regarding Emily the Strange and that the defendants be restrained from claiming that Emily infringes on their work.

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In their , Cosmic Debris also argues that no one, including Sharmat and Simont, should be able to claim rights in the idea of a young girl with long dark hair, pale skin and a short dark dress, who is accompanied by cats since this idea was not created by Sharmat and Simont and has been part of popular culture for decades. The complaint includes several examples of this common , including Vampira, Morticia and Wednesday Addams, Elvira, and Lydia from Beetlejuice. Cosmic Debris there is nothing illegal about creating a unique variation of a concept, and that Emily is their individual interpretation of "Goth Girl" image. Interestingly, it has been that Emily's strong anti-conformist, pro-individuality message is very much at odds with what Cosmic Debris is claiming in their complaint for declaratory relief; the creators of Emily claim that she, a character who has become popular based on the fact that she is different from everyone else, is actually just like every other gothic female character to have been created.

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There are who strongly criticize Cosmic Debris because of the one comparable image of Emily and Rosamond, claiming that Cosmic Debris has Sharmat and Simont. While the first image of Emily was similar to one particular depiction of Rosamond, that image has long since been discontinued and it is clear that Cosmic Debris has spent 18 years and millions of dollars making Emily and her universe as unique as possible. Furthermore, as shown by several examples, the notion of a "Goth girl" is hardly a novel concept, or a concept unique to Rosamond. Lastly, Sharmat and Simont did not issue any complaints about any possible similarity between Emily and Rosamond for almost two decades. It will be interesting to see the outcome of this complaint and whether Cosmic Debris will be successful in halting Sharmat and Simont's belated attempt to stop Cosmic Debris from licensing or exploiting Emily the Strange.

The post Emily the Strange, or Emily the Plagiarized? appeared first on IPOsgoode.

On April 16, 2009, the United States Court of Appeals for the Fourth Circuit affirmed the in favour of iParadigms who operates the "Turnitin Plagiarism Detection Service". This online system evaluates the originality of submitted written assignments by comparing them with content available on the Internet, previously submitted student papers, and journal databases. Turnitin also offers an "archiving" option so that the submitted assignments become a part of its database, if so requested by the educational institution. In order to submit a paper, a student has to agree to iParadigms' "terms of agreement". Four high school students had sued iParadigms for copyright infringement for archiving their submitted works. Although their respective submitted papers included an objection to the archiving of their works, the courts found that these disclaimers did not "modify the Agreement".

More importantly, the courts found "fair use" in favour of iParadigms. The is a good example of how important it is to thoroughly test any use in question against the four factors that guide the fair use analysis (17 U.S.C. § 107). Both courts emphasized the first factor, "the purpose and character of the use". They found Turnitin's comparative use of the submitted student papers to be "highly transformative" as its purpose is the prevention of plagiarism and it "provides a substantial public benefit through the network of educational institutions using Turnitin". As to the second factor, "the nature of the copyrighted work", the courts held that iParadigms used the student papers for comparison purposes only and "iParadigms' use was unconnected to any creative element in plaintiffs' works". For the third fair use factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", the courts held that although iParadigms used the entire student works, the uses are limited by the comparative purpose. Referring to the fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work", the courts found that iParadigms' online detection system "did not serve as a market substitute".

The textbook-like application of fair use by the courts in this case shows how central the interplay of all factors is. The courts reached their decisions by skillfully weighing the factors together.

This is certainly a case that also shows that technology works both ways. In recent years, it has become easier for students to plagiarize. The Internet in general, and Google, Wikipedia, educational CD-ROMs, electronic journals, in particular, lure students to plagiarize. Twenty years ago plagiarism would have been more cumbersome. With the increase in plagiarism, detecting devices, such as Turnitin, came along. The present case demonstrates that the fair use doctrine is flexible enough to accommodate new technologies.

A final but noteworthy remark! Should the court have not found fair use in this case, then it would have meant a victory for plagiarism. This decision illustrates how the affirmation of fair use in the present case, fulfills copyright's very purpose, namely "to promote the Progress of Science and useful Arts" and to foster creativity. By making it inconvenient and risky for students to plagiarize, the court aids in preventing the unauthorized use of others' intellectual labour and efforts. If students do not want to risk sanctions for plagiarism, they will have to write the papers themselves, resulting in original and creative papers. I would say that fair use did a great job here.

The post “Fair Use” Helps in Battle Against Plagiarism of Student Papers appeared first on IPOsgoode.