May 22, 2013 by Courtney Doagoo
On May 10, 2013, York University’s Osgoode Hall Law School Graduate Law Student Association (GLSA) held a two day Graduate Student Law Conference at the Oakham House at Ryerson University in downtown Toronto.
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 Joel Bakan, Professor at the University of British Columbia, author and filmmaker, and Professor B.S. Chimni, 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. Professor Bakan 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 Dr. Nathalie Casemajor Loustau, 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 National Photographic Collection 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 licence prohibits:
“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, Dr. Carys Craig, IP Osgoode member and Professor of Law at Osgoode Hall Law School, Dr. Martin Zeilinger, Banting Post-Doctoral Fellow in Law and Culture at York University, and Hip Hop artist and McGill Law School DCL Candidate, Salman Rana 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 CCH Canadian Ltd v Law Society of Upper Canada, 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 hotly debated IP topic several years ago, graffiti returns to the forefront due to the cancellation of yet another exhibition 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 Dr. Teresa Scassa, Professor at the University of Ottawa Faculty of Law, in her blog article entitled Public Art, Private Rights: The Case of Graffiti:
“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 BBC reported 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 initially taken 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.
Terrine Friday, 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, Dr. Michèle Beaudoin, Professor at the École supérieure de mode de Montréal 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 Lucasfilm v Ainsworth. What is commonly followed in Canada is the objective standard in DRG v Datafile (1987), 18 C.P.R. (3d) 538. Dr. Elizabeth Judge, Professor at the University of Ottawa, Faculty of Law and Dr. Daniel Gervais, Director of the Intellectual Property Program at Vanderbilt Law School, co-authors of Intellectual Property: The Law in Canada (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, Dan Epstein, who recently completed his MFA in Documentary Media at Ryerson University presented a paper based on his current exhibition 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 York, 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 I.M.A. Gallery 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.