Photo from , Smithsonian Design Museum, 1926.

Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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While many were observing the new year, intellectual property scholars and the artistic community were celebrating . January 1^st marks the expiration of most jurisdictions’ copyright terms. The previously copyrighted works enter the public domain, free to use and copy. In 2022, A. A. Milne’s Winnie the Pooh, among other famous characters like Felix Salten’s Bambi, entered the U.S. public domain. Already, versions of the beloved teddy bear are making rounds on , with celebrity even introducing his own “Winnie-the-Screwed” book in an ad for Mint Mobile.

Though the expansion of the public domain is cause for celebration, the honey-loving bear was already freely available for use in Canada since 2006. Works enter the public domain on a country-by-country basis, depending on the jurisdiction’s laws. Canada currently maintains a shorter copyright term than the U.S, set at . In contrast, generally subsists for 70 years after the death of the author or 95 years after first publication for works-for-hire. In other words, all works of corporate authorship first published in 1926, such as Winnie the Pooh, did not become freely available to use in the U.S until the end of 2021.

Copyright terms were not always this long. The U.S.’ first established a copyright term of 14 years, with an optional 14-year renewal period for living authors. This term was eventually extended to 28 years (with a 28-year renewal option) by a , then even further to 50 years from the author’s death in . Lobbying by the American entertainment industry, especially Walt Disney Co, led to the enactment of the , which not only increased U.S. copyright terms but applied them retroactively. Under the former legislation, Winnie the Pooh was to enter the public domain in 2006, 50 years following A. A. Milne's death, but the Extension Act delayed its entrance by 16 years.

The mismatch between copyright terms amongst jurisdictions poses various problems, especially in our digital age. While the public was free to use and copy Winnie the Pooh’s image in Canada long before January 1, 2022, they had to be careful not to make their works accessible in the U.S. or other jurisdictions such as the where the work was still protected by copyright. Though the Berne Convention for the Protection of Literary and Artistic Works, worldwide, attempted to provide some standardization by mandating a minimum copyright term of 50 years after the author’s death, countries like the U.S. have adopted longer terms and ignore the “rule of shorter term”, which provides that the term of copyright in a work created in a foreign country may not exceed the term received in its origin country.

While U.S. copyright terms remain one of the world’s longest, this will soon change due to the (CUSMA), which came into force on July 1, 2020. , Canada has until the end of this year to extend their term of copyright protection to 70 years after the author’s life, in harmony with the U.S. This requirement has garnered much controversy, as user rights advocates are concerned that it will lead to a 20-year gap of materials entering the public domain, significantly restricting access to works. In response to these concerns, Innovation, Science and Economic Development Canada released a noting several limitations and accompanying measures that Canada may choose to adopt to mitigate any potential harms of term extensions.

What does this mean for Winnie the Pooh? As it has already entered the public domain, any changes to copyright terms will not retroactively affect the bear’s status. However, it is important to note that the Winnie the Pooh available for use differs from Disney’s version, which is still under copyright and protection. Only the characters and stories from A. A. Milne’s original 1926 works are freely available. As author Tim X Price , “Red shirt on the bear, artists beware. If nude he be, your bear is free.”

Although Disney did not protest Winnie the Pooh’s entrance into the public domain, some intellectual property experts expected the corporation to lobby for extended copyright terms, as it has successfully done in the past. Granted, the rise of the Internet has , as empowered grass-root organizations and the public fight back against such efforts. Nevertheless, if Disney were to revive its lobbying efforts, it would likely be soon as the Steamboat Willie version of its beloved mascot, Mickey Mouse, is set to enter the public domain on January 1, 2024.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Olivia Rodrigo rose to stardom this year when her song Drivers License dominated pop music charts across the world. However, Rodrigo’s subsequent album Sour has recently been circulating the news cycle for less sweet reasons. Rodrigo has come under fire for copyright theft and plagiarism for her songs Deja Vu and Good 4 U.

What happened?

Rodrigo’s highly anticipated debut album, Sour, was released in the wake of the success of Drivers License. Music fans quickly noted the similarities between Rodrigo’s songs and already popularized songs including . Despite the similarities, some are arguing it’s questionable if Rodrigo committed copyright theft. Good 4 U has a similar melody and chord progressions with Paramore’s Misery Business, but besides the angsty punk undertones many generations of teens have come to love, many contend the songs are not all that similar.

What is copyright and copyright infringement?

Copyright is the or perform a musical work. Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. In essence, copyright infringement is plagiarism. In Canada, courts will determine whether a body of work has been infringed upon using the . Copyright protections are granted as soon as a work is created, so long as it meets the conditions set out in the Act.

What are music royalties? Why did Rodrigo pay them?

Music royalties are payments received by songwriters, music composers, and publishers . Essentially, artists pay royalties to copyright holders in exchange for using part of their work. Like them or not, the music industry heavily depends on royalties and many artists rely on them as a primary form of income. The growing popularity of music streaming platforms like Spotify, , further cements their importance.

This royalty debacle has been costly for Rodrigo. Hayley Williams and Joshua Farro were given writing credits on Good 4 U and Swift, Antonoff, and Clark will also receive writing credits and on Deja Vu. These moves will likely cost Rodrigo millions of dollars in publishing royalties. When weighing the costs of paying royalties versus lengthy litigation against fellow hitmakers in court, Rodrigo and her team likely felt it was most cost-beneficial to simply pay the royalties.

Are artists abusing copyright?

Artists are becoming increasingly concerned about outlandish copyright claims in the wake of the 2013 case involving the estate of Marvin Gaye and the trio behind Blurred Lines, Robin Thicke, Pharrell Williams, and Clifford Harris Jr. (T.I.). The trio alleged that the Gaye estate staked an ownership claim of not a song or an album, but rather an entire genre of music. Thicke and Williams were found guilty of copyright infringement and were ordered to pay This amount was , in addition to half of all future royalties from Blurred Lines.

Although caselaw is rife with examples of major royalty deals ordered to artists, not all cases end with million-dollar payouts. Katy Perry was successful in her appeal against rapper Flame for her song Dark Horse, which Flame asserted plagiarized his song, Joyful Noise. Specifically, the case centered around an eight-note “ostinato.” The judge ruled that the ostinato . Perry’s lawyer praised the ruling and proudly stated, “building blocks cannot be monopolized.”

The controversy has only further advanced the argument that outrageous music copyright lawsuits are going to lead to stagnation in the music industry. Some record labels are going so far as to hire on-call musicologists who can review new releases for potential copyright claims. Artists signed with major record labels are also encouraged to sign “Errors and Omissions” insurance, which protects them from legal challenges to their intellectual property. Errors and Omissions policies . Shockingly, copyright litigation in the United States . Along with its high costs, the fear of copyright litigation risks preventing less established, albeit talented, musicians from climbing the charts without the support of a major record label.

Although new to the hit music scene, Olivia Rodrigo has not only offered music lovers catchy pop anthems, but has also advanced the conversation surrounding copyright theft in the music industry. While some believe Rodrigo is guilty of plagiarism, others feel she is a victim of the corollary impacts of the growing popularity of streaming services and increasingly outrageous copyright infringement suits. The latter camp can only hope that the courts will become more stringent in future suits to prevent music monopolies.

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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen's University Faculty of Law.

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Artificial intelligence (AI) is everywhere. It influences the ways we socialize, work, and carry out our daily lives. Some even say we are in the . But while AI is creating new opportunities and innovations, the law has yet to catch up.

The latest decision from the United States, , comes off the heels of recent judgements in and asking if AI can be considered the inventor in patent law. This question has sparked widespread and within the legal community as legal frameworks struggle to adjust to AI. While South Africa and Australia answered in the affirmative, finding that AI passes the inventor test, the U.S. District Court for the Eastern District of Virginia disagrees.

These decisions can be traced back to a professor at the University of Surrey, Dr. Ryan Abbott. To advocate for AI to be granted inventorship rights, Abbott spearheaded the . Here, he filed patents for inventions generated by Dr. Stephen Thaler’s “DABUS”, an AI machine that was quite literally invented to invent. South Africa and Australia are just two of seventeen jurisdictions where Abbott and Thaler filed these patents in the hopes of granting inventorship rights for DABUS.

U.S. Rules Against AI as an Inventor

The United States Patent and Trademark Office (USPTO) originally denied Thaler & Abbot’s patent application in 2019, a decision which Thaler and Abbott described as “” The ruling was made on the basis that “no natural person is identified as an inventor.” USPTO supported this finding by citing cases like (“M˛ąłć-±Ę±ô˛ą˛Ôł¦°ě”) and (“Beech Aircraft”) where the Federal Circuit concluded that inventors could only be natural persons.

In the recent 2021 decision, Justice Leonie Brinkema found that the issue of whether AI can be an inventor turns on the plain meaning of the statutory term “individual.” This term is referenced explicitly in the U.S. and appears in the ’s definition of “inventor” to mean: “the individual, or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.”

The U.S. Supreme Court previously conducted a statutory construction analysis of the term “individual” in (“M´Çłó˛ąłľ±đ»ĺ”). They ultimately concluded that the ordinary meaning of “individual” referred to a “natural person.” While Congress may intend a different meaning of the term, there must be at least “some indication” of their doing so. Although Mohamad interpreted Congress’ use of the term “individual” in the Torture Victim Protection Act, Justice Brinkema found that the Supreme Court’s analysis remains applicable as the Patent Act does not define the term individual and similarly uses the term as a noun. Therefore, she concluded that since AI is not a natural person, nor normally referred to as an individual, it cannot be an inventor under the Patent Act.

Justice Brinkema also referenced Max-Planck and Beech Aircraft to support her conclusion: “... the unequivocal statements from the Federal Circuit that “inventors must be natural persons” and “only natural persons can be inventors” support the plain meaning of “individual” in the Patent Act as referring only to a natural person and not to an artificial intelligence machine.”

Finally, Justice Brinkema rejected the notion that the court should be the arena to “encourage innovation” and “promote disclosure of information and commercialization of new technologies” through granting patents for AI-generated inventions. Such policy considerations do not override a statute’s plain language. Rather, incentives to create more artificial intelligence machines and other policy matters are problems for Congress to address.

The Future of AI as an Inventor

Abbott is at the and in the . In a comment for , he noted that “this decision would prohibit protection for AI-generated inventions and it diverges from the findings of the Federal Court of Australia.” Specifically, the found that while only a human or other legal person may be an “owner,” it is a fallacy to argue from this that an inventor may only be a human. In defining inventor, Justice Beach found that the court cannot merely resort to “old millennium usages of [the word inventor]” and must recognize the “evolving nature of patentable inventions and their creators.” As such, he found it possible that AI could be an inventor.

As AI grows more ubiquitous, governments will have to intervene and create new legislation that explicitly considers AI and other novel technologies. Otherwise, as noted by Justice Brinkema, courts may be left to make these decisions without proper authority.

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