Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On April 20, 2022, China released a first-of-its-kind on a dispute over the alleged infringement of a non-fungible token (“NFT”) published on a trading platform.

The dispute arises from a copyrighted image known as “,” a cartoon depiction of a tiger receiving a vaccination. A third party released the image as an NFT and published it on the defendant’s NFT trading platform. The NFT image even has the original author’s watermark in the lower right corner. The official licensee of the image the trading platform for failing to protect its right of dissemination under copyright principles. It argued that the defendant, as the operator of a professional NFT platform, should conduct a preliminary review on the copyright of the NFT works published on its platform. The defendant, on the other hand, argued that its obligation was only to review the notification and delete suspicious works accordingly.

Like most jurisdictions in the world, China has yet to publish laws that deal with the trading of NFTs. Moreover, the NFT market in China is unique because the government is firmly opposed to cryptocurrency and has issued a regulatory document () in September 2021 to restrict its circulation in China. As a result, NFTs in China are digital commodities traded in traditional fiat currency. Examples of Chinese NFT markets include NFT China, Huanhe, and Jingtan. E-commerce platforms in the past, according to the , are not liable for copyright infringement unless they know or should know that the linked items are infringing copyright.

The court found the trading platform in this case liable for infringing the licensee’s right of transmission over an information network. The court also ordered the defendant to delete the infringing NFT works and compensate the licensee 4,000 RMB (about USD$600). Although the fine is nominal, it is a significant decision that requires NFT trading platforms to shoulder a greater duty of care to protect the copyrights of published works.

With the case as an important step, the Chinese legal system for online trading platforms is developing with greater emphasis in favor of copyright holders. With the power Chinese courts wield over China-based defendants, the lower litigation costs in China, as well as the relative ease of obtaining certain injunctive relief, China may become for multinational companies to enforce their copyrights.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Since 2017, the famous Japanese artist, Yayoi Kusama, was running a global tour of her retrospective show Infinity Mirror. She was known for creating kaleidoscopic obstacles and immersive experiences with colored lights, mirrors, and inundating polka dots. These spacey wonderlands, first created by Kusama in the 1950s, went viral on the Internet. It had attracted more than five million visitors around the world to wait in long queues to see the works. Los Angeles Times described the unprecedented frenzy in the US as “.” Kusama’s popularity reflects people’s interest in art that generates interactive experiences and activates all senses in an immersive environment. Similar experiential exhibitions have quickly started trending around the world.��

One of the most successful examples is the immersive exhibition of Van Gogh’s paintings. If you use Instagram, you must have seen photos or short videos of animated paintings by Van Gogh projected all over the walls of a spacey room, creating a fantastical environment. In the past two years, these exhibitions have spread to many cities in Europe and America, including . But what many of you may not know is that these shows are not organized by the same organization.

Van Gogh’s paintings have been around long enough to be legally reproduced. As the immersive Van Gogh shows became so popular around the world (and certainly on Instagram), more creators are joining the lucrative business. which immersive Van Gogh of them is the original one. had warned consumers about the multiple vendors of experiential Van Gogh shows in the US in 2021. These shows have confused and who paid to see something totally different from their expectations.

The Competition and Consumer Protection Commission of Ireland confirmed that there is of consumer protection law from an initial review of the different shows. So far, no organization has proposed to copyright its show. A similar copyright controversy surrounding Van Gogh happened in 2001 between two websites featuring digital copies of Van Gogh’s works.

What is ironic is that the immersive Van Gogh shows the actual artist himself. “They are designed to create crowd-pleasing versions of an artist's existence who didn't sell any work in his lifetime. ... There's an irony to seeing an artist whose work didn't have that kind of economic value be turned into a tourist attraction,” as artist and critic pointed out.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On ��July 18^th, 2022, the world’s second-largest art auction house, Christie’s, announced the establishment of , an investment fund that will support emerging tech companies whose products could have an impact on the art market. According to a representative, the fund is estimated to hold “.” Some may think that it is strange that an auction house would launch a venture fund, but it is not the first time that Christie’s has made a daring venture to embrace the latest technologies in its highly exclusive art businesses. The auction house was one of the first art institutions to arrange NFT sales. The March 2021 sale of digital artist Beeple’s work, , sold for a record-breaking price of 69.3 million. It even launched a two-day conference, , in July 2022, which brought in leaders from both industries to discuss the role and impact of technologies in the art world.

According to the global head of Christie’s Venture, Devang Thakkar, to solve the problems that have long bedeviled the art trade, such as authenticity disputes and safe digital asset transactions.

Christie’s Ventures will focus on : 1) Web 3.0 innovations such as non-fungible tokens, cryptocurrencies, blockchains, etc.; 2) art-related financial products; and 3) technologies that enable seamless consumption of art.

Christie’s Venture’s first investment supported a Canadian Web 3.0 company called . It provides a protocol that allows different blockchains to communicate and work together. The company had already raised CAD$ dollars in its first funding round earlier this year. It will work with Christie’s to “find new and innovative ways to create the most accessible, frictionless experience with assets indexed over multiple blockchains,” says , LayerZero Labs co-founder.

It is worth noting that Christie’s advancement into the venture capital market happened in the context of the recent crash in crypto and the broader selloff in tech stocks. Traditional venture capital firms are pulling back from the risky bets on startups, and the funding for startups altogether fell in the second quarter compared to the first quarter. Many crypto startups are undergoing since June. In fact,����from $93.2 million in 2021 to less than $5 million during the first half of this year.��

Despite the economic downturn, Christie’s clearly believes in the increasingly prominent role of technology in the art market. In fact, the world’s largest auction house, Sotheby’s, is also “actively investing in and acquiring early stage ventures,” though not through a formal venture-capital arm, according to an article in ��The . Christie’s move into the venture capital space challenges the traditional image of what an auction house can do.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On May 24, 2022, the Québec government adopted , one year after it was introduced. This Act modifies the use of French language in business and commerce in the province of Québec. Among a variety of aspects affected in business operations, the Act greatly tightened the requirements regarding the use of French in trademarks and public signage. Despite the controversies it instigated, Bill 96 has received Royal Assent and officially became law on June 1, with some provisions coming into force immediately and others having a transition period.

Bill 96 is the first major amendment made to Québec’s Charter of the French Language (the “Charter”) since it was passed in 1977. Previously, a recognized trademark may appear on product packaging or public signage exclusively in a language other than French. It included both common law marks and marks registered within the meaning of the Canadian Trademark Act. Bill 96, however, stipulates that such exception can only be applied to registered trademarks, if no corresponding French version appears in the Canadian Trademark Database. Moreover, if a registered trademark benefiting from the Bill 96 exemption includes a “generic term or description” of the product, the term or description must be translated into French as well.

Where such trademark exception is invoked for public signs and posters that are visible from outside premises, the French must be “markedly predominant” over the trademark that is in another language. Compared to the previous requirement of “sufficient presence,” companies may need to make the French trademarks twice as large or of greater visual impact in order to stay compliant with the new law.

Non-compliance under Bill 96 may trigger harsher punishments, too. Besides administrative fines and potential suspension of the francization certificate, the Charter now allows people who feel their language right being violated to bring a civil action against the company. It also doubled the fines for a second offense and considers each day an offense persists as a separate offense.

These changes undoubtedly increased the for companies to run their businesses. Some of the companies need to make significant investments to re-design and manufacture new product packages, public signs, and posters. Trademark filings for unregistered trademarks should be made shortly since it often takes three or more years to secure a trademark registration in Canada.

More importantly, some question the constitutionality of the amendments brought by Bill 96. The Constitution stipulates that the regulation of trade and commerce is a federal and not a provincial power. Yet the Office of Québécois de la Langue Française () has jurisdiction over any potential violation of the Charter. It remains to be seen how the courts will determine if the changes affecting federally protected trademarks are truly within the constitutional authority of the Quebec government.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

On June 16, 2022, the Canadian government tabled “An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts.” The Bill aims to strengthen the privacy framework for the private sector in Canada through the enactment of three pieces of legislation—the Digital Charter Implementation Act (DICA), the Consumer Privacy Protection Act (CPPA), and the Artificial Intelligence and Data Act (AIDA).

Bill C-27 is the successor to the��, the Digital Charter Implementation Act, which was introduced in November 2020. Unfortunately, it got at the Second Reading stage despite strong support from the business community. Bill C-27 is largely a re-working of Bill C-11, as a significant portion of the Digital Charter Implementation Act (DICA) and the Consumer Privacy Protection Act (CPPA) remains intact. A detailed comparison between the two bills can be found .

An entirely new section of Bill C-27 is the Artificial Intelligence and Data Act (AIDA). This section aims to regulate the development and use of artificial intelligence systems in the private sector. If AIDA is enacted, Canada would be the only jurisdiction, besides the , to draft legislation that directly addresses the regulation of AI. ��

AIDA is very broad in scope, with respect to both the definition of AI and the range of people obliged to abide by the Act. It does not set out specific prohibited practices and seems to contemplate a distinction only between high-risk systems and all other AI systems. Compared to EU’s 2021 proposal for Artificial Intelligence Act, AIDA is “considerably less elaborate” and “proposes to leave many salient matters to regulation,” according to cybersecurity professionals at .

The legislative purposes of AIDA are, per s. 39.4:

(a) to regulate international and interprovincial trade and commerce in artificial intelligence systems by establishing common requirements, applicable across Canada, for the design, development and use of those systems; and

(b) to prohibit certain conduct in relation to artificial intelligence systems that may result in serious harm to individuals or harm to their interests.

AIDA aims to protect people from any potential harm brought by biased AI output, which is the output of AI systems that differentiate people based on prohibited grounds of discrimination.

AI systems identified as “high-impact” will undergo mitigation measures and ongoing monitoring for compliance. Despite the preliminary guidance from the federal , it is largely the persons responsible for an AI system—including designers, developers, providers, and managers—who are responsible for these assessments and measures. There will also be higher transparency in both the intended and actual use for high-impact AI systems. Any material harm should be reported to the Minister of Innovation, Science and Industry. Under this act, an Artificial Intelligence and Data Commissioner will assist the Minister in monitoring company compliance.

Bill C-27, if passed, is sure to be a milestone in the development of legal regulations for AI. Many law firms are closely monitoring this legislation’s progress since it was released. There are, of course, still many questions to be investigated, such as the potential chilling effect on innovation and the design of administrative penalties. The legislation will become more clear upon the second and third readings in the House of Commons and subsequent regulations.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Last year, Andy Warhol lost an infamous copyright infringement lawsuit against photographer Lynn Goldsmith regarding an image of the pop singer Prince. ��The focus of the conflict was the meaning of “transformative works” in the U.S. Copyright Act—whether Warhol’s print is transformative of the original photograph so that it qualifies as fair use. Both the and the ����considered aesthetic characteristics of the two pieces, but such analysis seems to miss the point. As an avant-guard artist of his time, Warhol used the mechanical process of copying to challenge the conventional notion of art. It also engaged critically with rising capitalist culture and pop culture in post-war America. In this sense, the act of copying is the very medium of Warhol’s art.

There seems to have always been tension between artistic creativity and copyright law. Copyright, in the simplest terms, is “.” It protects the authors’ exclusive rights to reproduce and publish their creations. Artists, however, have long been engaging in deliberate and publicized copying as a form of artistic expression. The belongs to the long tradition of modernist art that questions the nature and definition of art itself. Terms like “ready-made” and “appropriation” appear in any introductory course to contemporary art. Besides Andy Warhol, other famous contemporary artists like and have also faced copyright claims. To many artists, copying is of critical artistic value because the action “” and “” of art. Yet the current law of copyright cannot fully accommodate the sophisticated theories of contemporary art.

New technologies, such as virtual reality (“VR”) and augmented reality (“AR”) further complicate things. Because of pandemic restrictions, many museums and galleries now rely on new media technology to attract audiences. The blockbuster Leonardo da Vinci at the Louvre, Mona Lisa: Beyond the Glass, gave viewers an interactive VR experience to explore the painting and its context. In other cases, museums invited artists to create derivative works based on museum collections. For instance, the National Museum of Singapore invited the Japanese art collective, teamLab, to create an using visual motifs from the museum collection. Similarly, Art Gallery of Ontario invited digital artist Alex Mayhew to create of the old paintings collected by the museum using AR technology. Exhibitions like these provide audiences with refreshing experiences, but they also require museums to exercise and navigate the legal problems.

The power and resources enjoyed by large art institutions do not go unchallenged. In 2019, a group of renegade artists developed an app called that mocked the iconic paintings by Jackson Pollock at the Museum of Modern Art (MoMA) in New 91��ɫ. Viewed through the app, Pollock’s paintings are either retouched or entirely replaced. The purpose of the artwork was to call attention to the power hierarchy and elitism in the art world. Although MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are and technically could give rise to an infringement claim. It would be interesting to see how copyright law would deal with artistic creations that were meant to be offensive or even illegal. ��

The authoritative nature of law seems to go against the inclination of art to break rules and challenge conventions. The law of “,” or “ in Canada, cannot satisfactorily address the questions raised by the changing practices of contemporary art. Luckily, the Supreme Court of the United States will further develop the law as it had decided to the dispute between Warhol and Goldsmith.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On June 8, 2022, the Department of Justice of the United States announced the official withdrawal of (2019 Statement). As a result, there is now no official written government policy ��setting out infringement remedies for Standards-Essential Patents. Instead, courts are now responsible for case-by-case regulatory scrutiny.

Significance of this Withdrawal

��, or SEPs, are patents that serve to ensure compliance with technical standards. Holders of SEPs are often required to grant licenses to their patents on fair, reasonable, and non-discriminatory (FRAND) terms. When disputes arise, SEP holders would need to do more work to demonstrate good faith and to move the negotiations forward. ��According to the , the withdrawal of the policy is intended to “create incentives to generate more innovation” and “strengthen the ability of U.S. companies to engage and influence international standards.”

The Policy Statement on Remedies for SEPs was initially launched by USPTO in . It was harshly by many in the IP community and thus was replaced with a more SEP-holder-friendly version in . The policy statement faced another transition in July 2021 when President Biden issued an to promote a “fair, open, and competitive marketplace.” In response to it, the USPTO and National Institute of Standards and Technology proposed a and solicited .

The new draft statement strengthened restrictions on SEP remedies again. Supporters of the draft argued that it provides a more handling of the rights of patent holders and implementers. The global corporation, Canon, that the draft would improve the predictability of SEP enforcement and facilitate the participation of potential SEP holders and implementers.

Yet, overall, criticism of the draft outnumbered the applause among the public. Many businesses and innovators found the policies unfair and disfavored the dictating role of the government. Senator Thom Tillis that it “diminishes patent holders’ statutory rights and undermines the judicial process by substituting the courts’ judgement for its own.” Another comment that the 2019 policy gave US companies an edge in 5G, artificial intelligence, biopharmaceuticals, and robotics sectors. The draft statement would subject American tech-companies to a less advantageous position in patent disputes. Apparently, these comments persuaded the US government that “withdrawal best serves the interests of innovation and competition.”

Looking into the future, the law regarding SEP injunctions inevitably becomes in the US. IP attorneys will have to watch more closely on how the courts rule cases involving requests for injunctions based on SEPs. It will also have ripple effects on smaller businesses and institutions, in the US and across the world, whose operations relies on SEPs implementation.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

Cybersecurity has become a major battlefield in the war between Russia and Ukraine. Even before Russia invaded Ukraine on February 24^th, it had launched waves of cybersecurity attacks on a range of important social sectors of Ukraine. ��The attacks in January focused on governmental websites. According to Ukraine officials, Russia had taken down around Ukraine government websites, including the central institutions such as the Cabinet of Ministers and the Security and Defense Council.

By February, brought down the websites of Ukraine’s defense ministry, army, and two largest banks: ��and��. Russia used a sophisticated that reached hundreds of computers from different organizations in Ukraine, including the defense, aviation, finance, and IT service sectors.�� Although Russia never officially admitted it, believe that the Russian government is behind the groups that launched these attacks.

Quad9, a domain name system platform, detected attacks against computers and phones in Ukraine on March 9^th alone. According to cybersecurity expert , Ukrainians are experiencing increasing numbers of phishing and malware attacks during the war.

The Ukraine government responded to the attacks with support from and . The NATO Cooperative Cyber Defense Center of Excellence at Tallinn, Estonia, collaborates with Ukraine to strengthen its national cyber security. The EU had deployed a rapid-response team of ten cybersecurity experts from six different countries to help Ukraine mitigate the effects of the cyberattacks.

In addition to state actors, large private companies have lent Ukraine critical support. For instance, is helping Ukraine with cybersecurity. announced on April 7^th that it had disrupted cyberattacks from Russia targeting Ukraine and organizations in the United States and Europe. Its representative claims that Microsoft can observe Russia’s attack on the Ukraine government and infrastructure since the beginning of the invasion. Microsoft works closely with the Ukrainian government and other organizations to help them defend against the onslaught. Another example is , a space exploration tech company. It provides civilians and tech companies in Ukraine access to the Internet via satellite in rural or disconnected areas.

Private companies, especially tech giants, have been unprecedentedly active in interstate warfare. As cybersecurity becomes an increasingly important part of national security, big tech companies are likely to have more power and a higher level of involvement in global conflicts. While this change may benefit the public interest, it inevitably calls for more scrutiny and regulation.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Pankhuri Malik is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School

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On February 24, 2022, the Supreme Court of the United States (“SCOTUS”) decided . They held that an inadvertent mistake of law in a copyright registration application does not automatically nullify the application.��

Unicolors, Inc., a fabric and design company in Los Angeles, owns copyrights in various fabric designs. It sued H&M for copyright infringement, claiming that H&M used their copyright-protected designs in its clothes. As a defense, H&M argued that Unicolors’ application did not satisfy the “” requirement, which provides that a single application cannot cover multiple works that were not first made publicly available as a singular, bundled collection. Despite this mistake, the District Court ruled that Unicolors’ copyright registrations remain valid because Unicolor was unaware of the requirement when it submitted its application. Consequently, Unicolors’ copyright registrations are protected by the safe harbour provision of the Registration and Civil Infringement Actions, which states that inaccuracies are permitted so long as they were unknown. On appeal, the overturned the decision. It ruled that the safe harbour provision did not apply in this case because it only protects good-faith mistakes of fact, not law.

In a 6-3 decision, the U.S. Supreme Court agreed with the Ninth Circuit’s decision that Unicolor’s mistake in the registration was a mistake of law. However, applying the safe harbour provision depends on the applicant’s “actual, subjective awareness of both the facts and the law [page 6].” It can therefore excuse innocent mistakes of both facts and law.

SCOTUS considered the following factors while rendering its decision:

1. Intent to Defraud: The Ninth Circuit said that the applicant does not require intent to defraud as long as it knowingly made any inaccurate representations. On a textual reading of the provision, this appears to be correct. However, SCOTUS found that “knowledge” historically does not differentiate between law or fact. Nothing in § 411(b)(1)(A) indicates that constructive knowledge would be sufficient to invalidate the registration instead of actual knowledge of wrongdoing.
2. Holistic Reading of the Statute: To corroborate its above conclusions, the Court also relied on other provisions of the Act to state that the statute does not intend to forgive applicants without legal backgrounds for mistakes of fact, while continuing to penalise them for mistakes of law.
3. Legislative Intent: The Court also opined that § 411(b) was enacted to eliminate exploitative loopholes that prevented copyright holders from enforcing their otherwise valid rights merely due to procedural irregularities.

Looking ahead, the Supreme Court’s decision strongly protects copyright applicants and holders. It requires that alleged copyright infringers prove “willful blindness” on the part of the registration owner to nullify a registration based on inaccuracies. Such high standard was meant to protect copyright owners, especially those unrepresented by legal counsels, from the excessively formal and sometimes “esoteric”—in the Court’s words—U.S. copyright registration processes. The Ninth Circuit’s judgement appears to be the exact outcome that § 411(b) seeks to eliminate.

On the other hand, there are concerns about increasing s and misuse as a result of the stringent test for nullification. Invalidating all inaccurately registered copyrights can protect the public from entities which hold large numbers of copyright for the purpose of making frivolous infringement lawsuits. A that more than 50% of copyright cases filed in the states between 2014 to 2016 were against John Doe defendants. However, in this case, H&M’s arguments regarding the practice appeared to be an attempt to escape liability by using policy concerns.

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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On Tuesday, March 8, 2022, Ukraine’s president Volodymyr Zelensky said in a video recording that the Russian army flattened a 19th-century wooden church in the village of Viazivka in the Zhytomyr region. The architectural monument was an important national cultural heritage, listed under protection number 108. Olha Rutkovska, a member of the Ukraine council for the protection of monuments, described it as “.”

UNESCO, the United Nations’ cultural agency, responded swiftly to the challenge of protecting Ukraine’s cultural heritage from the war and bolstered the protective measures. Its first move was to mark the important cultural sites and monuments with the distinctive “blue shield” emblem as protected areas under international law. It aims to avoid deliberate or accidental damage to the monuments.

The is the primary source of international humanitarian law that UNESCO relies on to protect cultural heritage. The destruction of cultural heritage during World War II served as the impetus for the Convention and the recognition of the importance of cultural heritage for all peoples of the world. All permanent members of the UN Security Council, including Russia, are bound by the Convention to refrain from violent acts against cultural properties. It also urges governments to take active moves to prevent damage and provide adequate protection in times of emergency.

Cultural heritage protection was further upgraded by the in 1999, in response to the devastating damage of cultural properties in the . The protocol established an enhanced protection regime for cultural property and narrowed the exemptions from such protection. The protocol also formulated highly advanced rules on individual criminal responsibilities for breaches of the obligations.

It is undeniable that the international community has achieved much progress in protecting cultural heritage in armed conflicts. However, the efficacy of the Convention in checking Russia’s hostile acts against Ukraine’s cultural properties remains questionable. Firstly, there is insufficient awareness among armed forces about the Convention mandates. Former US President Donald Trump to attack 52 Iranian cultural sites as retaliation against potential attacks from Iran in January 2020. He was heavily criticized immediately for his ignorance of the law and dismissive attitude about cultural heritage. Indeed, few armed forces have established their or conducted relevant training, as required by the Convention, to protect cultural property in military conflicts. It is questionable if Russia would uphold the values established in the Hague Convention, even under increasing pressure from the international community.

According to Professor Peter Probst from Tufts University, the results brought by the Convention and its listing of cultural properties is a “.”�� The grew from 12 in 1977 to 1121 in 2019. On the one hand, it raised global awareness of the value of cultural heritage. However, it also made the heritage sites prominent targets, especially in asymmetrical warfare between nations and non-state actors. The destruction of cultural sites is a powerful attack on the other side’s beliefs and values. Many believe that it is part of Putin’s strategy to “” Ukraine as an independent state.

The protection of Ukraine’s cultural heritage requires urgent attention from the international community. Only collective recognition and effort can protect cultural properties from destruction.

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