‘Ambush marketing’ is a term coined in the marketing world to describe advertising that creates an association between a major sporting event and a particular product, service or business – without the event organizers being able to benefit from the usual lucrative sponsorship agreement. Traditional IP laws have not been much use in dealing with the more sophisticated forms of ambush marketing. Trademark law, for example, would prevent a company from using the trademarks of a major sporting event without consent (in the form of a sponsorship agreement), but clever ambushers do not need to use these trademarks to create associations with a high profile event. For example, when Germany hosted the FIFA World Cup in 2006, Air Emirates was the official airline of the event. Its competitor, Lufthansa, painted the pattern of soccer balls on the nose cones of its airplanes. The association was created without use of anyone’s trademarks. There are many other .

Event organizers – keen to extract the maximum in sponsorship revenues from sponsors – have long struggled against ambush marketing. There are at least two main types of ambush marketing, and a third is also gaining recognition. These are intrusion, invasion and association.

Intrusion and invasion occur when the trademarks of non-sponsors enter the spaces dedicated to the major sporting event, preserving spatial exclusivity for event sponsors. Intrusion occurs when branded items enter event venues on the person (or vehicles) of attendees. Invasion involves a more deliberate plan – perhaps by a group of attendees and perhaps organized by a non-sponsor company. A notorious example is that of the to a FIFA event in South Africa in 2010. Intrusion and invasion have long been addressed through ticket clauses that prevent ticket holders from wearing clothing bearing the visible trademarks of non-sponsors, and from bringing into the venue products (such as bottled water or soft drinks) bearing the trademarks of non-sponsors. The Pan Am/Parapan Am Games 2015 are no exception. Ticket specifically prohibit ambush marketing in clause 11(c) (“whether by invasion, intrusion or otherwise”), There are also restrictions on bringing food or drink into the venue. While this is in part to push attendees to purchase such items from on-site vendors, it also limits the possibility of non-sponsor items from entering TV camera sight planes. There are also separate restrictions imposed by organizers on athletes in terms of how visible logos can be on sporting wear and other equipment they use. Consistent with our wired age, the of the Pan Am/Parapan Am Games 2015 website also prohibit use of the website or any official social media sites for ambush marketing.

Ambush marketing by association is harder to deal with, particularly where it does not infringe existing IP laws. Major sporting event organizers (the IOC, FIFA, etc) have begun to pressure countries that bid for their events to put in place legislation to protect not only against ambush marketing by association but also ambush marketing by intrusion. Some countries have introduced event-specific laws; others, such as New Zealand, have introduced that can be applied to any event designated as a major event. These laws make it illegal to create an “association” with an event. Olympic-related legislation has tended to do this by, among other things, creating lists of words that, if used by advertisers, are considered problematic. In unitary states, such laws have also provided protection against ambush marketing by intrusion. Whereas previously event organizers could only control private spaces associated with the events through ticket clauses and other contractual agreements, such laws controversially restrict the use of non-sponsor trademarks and advertising in wide swaths of public space, including airports, public transit lines, public parks and streets near event venues.

Canada enacted its first anti-ambush marketing law for the 2010 Vancouver Winter Games. The commitment to do so was made to the IOC in the bid documents. The (OPMA) created a special status and special protection for Olympic and Paralympic marks. It also created a separate recourse against ambush marketing by association. Because Canada is a federal state, and the provinces have jurisdiction over property and civil rights, the law could not address ambush marketing by intrusion into the spaces around Olympic venues. This was done by Vancouver City by-laws, a number of which were by the B.C. Civil Liberties Association. As with other legislation of this kind, the statute created lists of words, the use of which were considered suggestive of ambush marketing. These included common words such as: Vancouver, twenty-ten, 2010, Whistler, gold, silver, bronze, winter, and so on.

Legislating against ambush marketing is of questionable value. Action taken by event organizers against small or local businesses (or women wearing orange dresses) can create a sense of public outrage that is perhaps more harmful to the goodwill associated with the event than ambush marketing itself. Further, as Canada’s bold Olympic ambushers illustrated in 2010, associations can be created by encouraging the public to celebrate “Canada”, and it is difficult to see how a major sporting event can claim any form of monopoly over displays of national pride. Anti-ambush marketing legislation may also raise interesting freedom of expression issues so far as it relates to small and local business making reference in their advertising to events taking place in their communities. Of course, small businesses generally do not have the resources to fight legal battles over marketing; once they receive a cease and desist letter from event organizers, they tend to cease and desist. High profile competitors of event sponsors, on the other hand, have legal departments at their service to vet their advertising campaigns to ensure they fit comfortably within legislative loopholes. The effectiveness of such laws is open to question; their overall impact may even be negative.

In Toronto’s bid to host the Pan Am/Parapan Am Games it promised to ask the federal government to extend the application of the OPMA to the Pan Am/Parapan Am Games (see , page 189). In other words, as with other major events, the promise of legislation to address ambush marketing was made a part of the bid. In this case, the extension has not materialised. Instead, the organizers have contented themselves with a series of official marks (a special category of trademarks available to “public authorities” in Canada). As far as local businesses are concerned, the organizing committee has issued on how to reference (or not reference) the games.

The approach seems far lighter than recent examples, although the Pan Am/Parapan Am Games are lower profile than the Olympics or FIFA events. But perhaps it is evidence of an important lesson learned: that there are limits to the use of law and legal institutions to address problems such as ambush marketing.

is the Canada Research Chair in Information Law at the University of Ottawa. Some of her writing on ambush marketing and the law can be found , and .

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This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents  might characterize both the UGC exception and expanded fair  dealing as unjustifiable encroachments upon the rights of copyright  owners, this chapter argues that these exceptions reflect the shifting  realities of cultural production and dissemination.

1. Defining User-Generated Content

User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]

Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]

The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the  form of the work, is echoed as well in the Supreme Court of Canada’s  emphasis in  SOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to  the works at issue.[14]

The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is  important to note that UGC in its many forms is already becoming  accepted in different fields of activity as a source of information and  creativity, and inquiries in these fields have moved ahead to issues of  how best to use, integrate and derive benefit from these new modes of  knowledge creation.

Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

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The theme of the conference Law Culture Critique was organized into an array of extremely interesting panels that were categorized into various sub-themes including music, culture, gender, art and commerce. The call for papers explicitly encouraged the participation of graduate students, artists and community activists and attracted participants from both international and national institutions.

Distinguished Keynote Speakers included , Professor at the University of British Columbia, author and filmmaker, and Professor , international legal scholar and Chairperson of the Centre for International Legal Studies at Jawaharlal Nehru University in New Delhi, who attracted wide audiences and captivated them with their respective talks. presented a particularly inspiring and timely paper on the myth of corporate social responsibility, “Good Corp, Bad Corp: Corporate Social Responsibility and the Breaking of Society.” He argued that corporations are inherently created for the purpose of economic gain and therefore our reliance on them to fulfill selfless acts through their branding strategies of social responsibility is naïve. His presentation was extremely relevant in light of the devastation that claimed the life of over one thousand Bangladeshi people working in substandard conditions, producing clothing for Loblaw’s Joe Fresh line.

***

Fittingly, based on the theme of the conference, there were several papers concerning intellectual property law including that of panelist , a SSHRC Postdoctoral Fellow at McGill University, Department of Art History and Communications Studies who presented an intriguing paper on the use of copyright policy in the first panel, entitled Law, Symbols and Visual Cultures. Her presentation “Framing the Open: Photography and the Digital Circulation of Israeli Memory” commented on the practices of Israel’s due to the changes made to its licensing policy to create ‘open access’ for the digital images displayed on its website. These policies have the effect of allowing the free access to these digital images while simultaneously resulting in their control and prevention for political uses. The licensing policy was therefore not solely to ensure protection of the creator’s rights or for the purpose of monetization, but rather a tool to prevent political use. Although the content of the images were not at issue, it was the context in which the content would be used that was problematic. The :

“Altering the photograph or using it in any way that harms the name or the reputation of the State, the Government Press Office or the photographer.

Using the photograph for commercial advertising or political activity.”

***

Later that afternoon, , IP Osgoode member and Professor of Law at Osgoode Hall Law School, , Banting Post-Doctoral Fellow in Law and Culture at 91��ɫ, and Hip Hop artist and McGill Law School DCL Candidate, were featured in a thought-provoking roundtable discussion on Music, Law and Theory. Moderator Ali Hammoudi, PhD Candidate at Osgoode Hall Law School and Co-Chair of the GSLA, directed the debate towards hip-hop’s sampling culture.

Sampling is a technique that has, in several American cases, been held to infringe the rights of copyright owners by the courts. The panel confronted the practical, legal, and cultural norms concerning creation, reproduction, originality and attribution. Professor Craig laid the solid doctrinal foundation of these concepts in discussions on substantial taking, fair dealing, and the balanced originality approach enunciated in , while Martin challenged important contentions concerning originality and creative labour, the blurred lines between re-use and copying, and self regulating social norms. Salman presented information about the norms that govern the hip-hop community: hip-hop artists do not sue each other over the use of each others' work largely because sampling is an accepted practice. Quite frankly, as Salman put it – ‘they don’t care’ because it is considered to be an honour to be sampled rather than the appropriation of their work. For this reason, hip-hop artists do not expect to be remunerated for the use of these samples. It seems that in the context of sampling, the hip-hop community relies on social norms that do not always reconcile with the legal norms that corporate owners rely on.

***

A IP topic several years ago, graffiti returns to the forefront due to the cancellation of yet another in an Ontario art gallery because of the uncertainty surrounding graffiti artists’ rights in Canada. Dr. Laura Petican, an Art Historian, and I explored the medium of graffiti art historically, culturally and legally. Laura began with a discussion of Jean-Michel Basquiat and Banksy, whose works have not only transcended the ‘label’ of illegality, but have also become revered as fine art. The context of their street art (graffiti) however, continues to be defined as ‘vandalism’. Graffiti receives intellectual property protection when legal (i.e. when authorized) whereas the question remains “open” when it is not. As argued by , Professor at the University of Ottawa Faculty of Law, in her blog article entitled :

“There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works . . . .”

Although the artist is vulnerable in the context of the illegal street art he or she produces, in the gallery (what is referred to as the ‘white cube’), their works are considered to be legal, artistic and protected. This issue has not yet been explicitly addressed in the Copyright Act.

Coincidentally on the day of our presentation, the that a mural created by Banksy in 2012, which was subsequently physically removed from the building earlier this year, will be put up for auction for a second time in June “alongside pieces by Damien Hirst [and] Andy Warhol . . . .” The piece entitled “Slave Labour” was a ‘gift’ to a community in London. When the piece was from the community and put up for auction in Miami in February 2013, it was expected to sell for up to $700,000 USD, but was pulled due to the public outcry. No legal action has been taken yet. Although the removal of the wall is a question of property rights (no reproduction was made), this example highlights the parameters that define legal and illegal art.

***

, LLM Candidate at Osgoode Hall Law School, Co-Chair of the GLSA, and panelist, presented a fascinating paper on the implementation of creator rights and the legal infrastructure of copyright in Trinidad and Tobago. In particular, she commented on the evolution of hybrid art forms and focused on works of mass. She interrogated the ways in a particular conception of Trinidadian culture could be ‘protected’ within the existing framework of international cultural protection. Rather than side with one particular approach, she stressed the need to further investigate the social issues that inform copyright law and practical implications that arise therefrom.

***

On the same day, , Professor at the at the Université du Québec à Montréal, and I illustrated the way in which fashion designers attempt to define their work as either artistic, industrial design or both. We compared the perspective of fashion designers to the boundaries of subjectivity and objectivity used by the courts in order to determine the qualification of artistic work based on the intent of the artist in light of the recent United Kingdom Supreme Court case of . What is commonly followed in Canada is the objective standard in DRG v Datafile (1987), 18 C.P.R. (3d) 538. , Professor at the University of Ottawa, Faculty of Law and , Director of the Intellectual Property Program at Vanderbilt Law School, co-authors of (2d ed), suggest that

“[t]he objective test in DRG, which defines “artistic work” as a “generic description of the type of works … which find expression in a visual medium” is preferable to tests based on more subjective criteria such as the author’s intent, the audience’s perception of the “artistic-ness,” or evaluations by art experts or judges of aesthetic merit or value.” (Gervais & Judge, p 105)

In Professor Beaudoin’s experience, whether a fashion designer decides to create ‘artistic work’ rather than ‘industrial design’ is a difficult question that only he or she can determine.

***

Unrelated to intellectual property law, some presenters used artistic mediums to investigate and interpret ‘law.’ In the panel entitled Theorizing Law and Art, , who recently completed his MFA in Documentary Media at Ryerson University presented a paper based on his entitled Defenders. Dan’s exhibition consists of interviewing and “paint[ing] a living ethnographic portrait of Canadian and American criminal defence lawyers in  . . . Detroit, New 91��ɫ, and Toronto.” He used images and videos in his presentation to portray the intricacies of the criminal justice system by allowing viewers to observe “criminal defense attorneys” from a different perspective. The Defenders exhibition remains at the until May 25, 2013.

***

The conference embodied an exceptional fusion of carefully curated panels, topics that were diverse yet intertwined and a wide representation of scholars and artists. The Osgoode Hall Law School GLSA organized a very professional, accessible and personable event. I look forward to attending next year!

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

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The publication of the second edition of ’s is a welcome event. The first edition of this book, published in 1997,was a lucid and concise account of the three main areas of intellectual property law: copyright, trademarks and patents. The book’s conciseness did not detract from its value. Professor Vaver’s experience and depth of knowledge of the subject matter, combined with his talent for expressing himself with clarity and simplicity all contributed to a slim book that spoke figurative volumes.

The second edition of Intellectual Property Law can hardly be described as concise – it has 833 pages compared to the 348 pages of the first edition. Yet there is nothing flabby about this account of the law. The reality is that intellectual property in this post-industrial age has undergone significant changes and expansion. Entire new fields of technology which seemed like science fiction in 1997 are standard fare today. Biotechnology, nanotechnology, digitization, the internet, and mobile communications – to name just a few – have all presented new and often difficult challenges for intellectual property law systems.  In addition the growing international dimensions of intellectual property law have also led to significant changes in law, policy and practice.  The universe of intellectual property has expanded, and with it has Professor Vaver’s book.

The new edition adopts a structure similar to the original. A general introduction to intellectual property law is followed by main sections covering copyright, patent and trademark law. There is also a substantial chapter on the management and enforcement of rights. Each topic is addressed in a systematic way; headings and subheadings are used to guide the reader through different key points. The structure is logical, and although it distills the main areas of intellectual property law to their essence, the book is not a bare and descriptive text.  Professor Vaver’s introduction speaks to the fundamental shifts and transformations in the field of intellectual property law. These include the pressure to expand intellectual property protection, the ongoing importance of intellectual property in the international trade arena, and the growing public engagement with IP issues. Professor Vaver makes his perspective clear here, and throughout the book. IP rights must be reconciled with other crucial social values:  “the right of people to imitate others, to work, compete, talk, and write freely, and to nurture common cultures” (page 14). For those who are new to the field of intellectual property law, it is important to understand how central Professor Vaver’s work has been to the maturing of intellectual property law as a serious academic field of study in Canada. Professor Vaver began his academic career in the early 1970’s in New Zealand before moving to the in the latter part of that decade.  In 1985 he arrived at , where he taught IP and IT law for many years, and began to develop a body of serious scholarship in this area. At the time, he was one of only a handful of IP scholars in Canada. For the most part, Canadian law schools offered a course in IP law, if at all, as a practitioner-taught “trade” course. Professor Vaver’s first edition of Intellectual Property Law, and the book which followed shortly thereafter, were important books for IP in Canada. These books made IP law accessible and engaging to a new generation of law students, and they were cornerstones for the maturing intellectual property law scholarship in Canada. Professor Vaver’s academic leadership in this field eventually resulted in his move to the in 1998, as Director of its .  In 2007 he transitioned to a new role as Emeritus Professor of Intellectual Property and Information Technology Law at the University of Oxford. He also returned to Osgoode Hall Law School to add his considerable academic weight to that school’s new centre for intellectual property studies, . As Justice Rothstein observes in his preface to the second edition of Intellectual Property Law, “David Vaver is in the very top rank of the most highly respected experts in the field of intellectual property law” (page xxv of Preface).

There could hardly be a better text for a Canadian student of IP law. The second edition of Intellectual Property Law is comprehensive without being overwhelming. The book addresses the full range of issues: from the elements of each main area of intellectual property law, to constitutional concerns, issues of territoriality, international treaties, first nations issues and areas for law reform. While some of these issues are touched upon only briefly, the book is intended as a starting point and not an end point. Each chapter concludes with suggestions for further readings and the footnotes throughout reference both case law and academic writing.

Yet this book is not just for law students. Judges and practitioners will find it a useful reference tool and will value it for its clarity, comprehensiveness and insight. In addition, the book will be of use to the growing number of individuals not trained in law whose lives are touched by intellectual property law, as creators, users, policy makers, or entrepreneurs.  As Vaver writes in his preface, “The aim is to make IP law and policy accessible to whoever wishes to know more about them, be they students, lawyers or members of the general public, particularly those who rely, whether they know it or not, on IP in their daily lives” (page xxvii of Preface). This goal seems to be fully realized. Although heavier to lift, the second edition has not lost its accessibility to a very wide range of readers with a very diverse set of interests in intellectual property law.

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