May 14, 2012 brings the latest attempt at copyright reform, Bill C-11 one step closer to fruition.

Bill C-11 began with its Introduction and Initial Reading before the House in September of 2011, and is presently, as of May 14 2012, in its Report Stage. Otherwise known as Canada’s Copyright Modernization Act, Bill C-11 was met by a list of last minute motions (totaling 23) proposed by the Green Party’s Elizabeth May and also by Andre Bellavance from the Bloc Québécois Party. Interestingly, neither the Green nor Bloc Parties had representatives present in the parliamentary committee studying the Bill.

Particular highlights of the 19 motions proposed by Elizabeth May include her request for amendments to be made to Clauses 21, 22, 27, 29 and especially 47 of the Bill which concern fair dealing, non-commercial user generated content, defining the parameters of the term ‘lesson’, research or private study and technological protection measures and rights management information, respectively.

With respect to the ‘fair dealing’ provision, May requested that Clause 21 be amended to include a provision which would allow for the Governor in Council to make regulations defining ‘education’ for the purposes of fair dealing.  In the Debate, May elaborated on this provision:

“However, the government threw in “education, parody or satire”, and the use of the word “education” does create some concern, primarily because “education”, as a term or exception under copyright use under fair dealing, has not been previously defined in the courts. It could lead to significant litigation to expand or narrow the meaning in ways that would be prejudicial to the average person who wants to use the material. Given that those people who might want to change the law in ways that restrict consumer access and normal opportunities to use materials are those with the greatest and the deepest pockets to go to court to prove this, it seems that down the road we might want to improve the way the bill currently reads and to create an opportunity by regulation for the Governor in Council to provide a definition of “education”, which is currently not in the bill, in order to leave that flexibility in place down the road. That is what my Motion No. 3 stands for: that the Governor in Council may make regulations defining “education”.

This specific amendment comes from testimony by Giuseppina D’Agostino, a Professor in intellectual property at Osgoode Hall Law School and Founder and Director of IP Osgoode In December 2010, when the previous iteration of Bill C-11, Bill C-32, was before the Parliamentary Committee, Professor D’Agostino commented on the need for an amendment:

“This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.”

Motions No. 4 and 5 propose amendments to Clause 22 to remove what will be s. 29.23(1)(b), or the requirement that you cannot circumvent a TPM in order to qualify for the timeshifting exception, and the same for 29.24(1)(c) for the backup copying exception.

Motions No. 6 and 7 propose amendments to Clause 27, allowing students who receive lessons via telecommunication to reproduce the lesson for non-infringing purposes, striking the provision requiring them to delete copies of the lesson 30 days after their exams, and removing the duty from educational institutions to add TPMs to lessons received by students over the internet.

Motion No. 8 amending Clause 29 would remove the condition requiring that libraries, archives or museums providing a digital copy to a person who has requested it from another like institution, take measures to ensure that the person does not use the copy for more than 5 days from which it is first used -essentially removing the 5 day limit from interlibrary digital loans.

Motions No. 9 through to 21 propose changes to the technological protection measures and rights management provisions in Clause 47. Some of the proposed changes include:

• Defining “circumvention” of a TPM as a “measure for the purpose of an act that is an infringement of the copyright in the protected work.” Namely linking circumvention with copyright infringement.
• Deleting the provision which would make the manufacture, import, distribution or offer for sale or rental of circumvention devices illegal.
• Absolving liability for persons who have lawful authority to care for or supervise a minor and who circumvents a technological measure on a legally obtained, non-infringing copy of a work, to protect the minor.

In his blog, Michael Geist, Professor at the University of Ottawa, Faculty of Law notes that it is uncertain as to whether any of the proposed changes will make the cut, as previous recommendations made by other parties had all been rejected.

Elizabeth May was recently quoted on her position concerning copyright reform in an iPolitics report, stating that she believes that the digital locks are “too restrictive” and that addressing these issues before they become law would be in the interest of both Canadians and Parliament. Further, she believes that the American entertainment industry is partially responsible for these changes and feels that “…[w]e could create a fairer balance that’s fairer to Canadian consumers.”

Other proposed changes include Andre Bellavance’s proposal that Clauses 1, 2, 49 and 62 of Bill C-11 be deleted. These propositions include the definition of the term ‘moral rights’ and ‘treaty country’ and the prescription period for civil remedies.

Currently one step closer to fruition, the current Canadian copyright reform bill – Bill C-11 – has come a very long way since its inception as Bill C-32 nearly 2 years ago, in June 2010. For previous IPilogue highlights on Canadian copyright reform efforts, please see here.

In her chapter Copyright: Characteristics of Canadian Reform, Sara Bannerman, Assistant Professor at McMaster University presents an insightful and detailed chronology of previous copyright reforms. She notes that the last two major copyright reforms (coined Phase I and Phase II) occurred in 1985 and 1997 respectively: Phase I included protection for “computer programs, to strengthened moral rights and to institute copyright collectives”, and Phase II amendments included “rights in public performances and broadcasts for performers and producers of sound recordings”.

Based on the political climate surrounding the Bill and the previously rejected proposed amendments, it is highly unlikely that May and Bellavance’s last minute motions will make a dent in its outcome. It remains to be seen what the ultimate result will be.

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

Posted in Canada, Copyright, copyright reform, Digital Locks, Fair Dealing, Uncategorized
Comments: 0

IP Osgoode would like to congratulate the York University Faculty of Science and Engineering as well as Douglas Bergeron and his wife Sandra Bergeron on their two million dollar endeavour to support entrepreneurial programs and initiatives focused on Science, Technology, Engineering and Mathematics (STEM) majors.

Announced last week, the Bergerons’ gift will create 100 fellowships over the next ten years to support York University students in STEM majors who show great promise and leadership potential. In addition to one of a kind experience, graduates of the Bergeron Science and Technology program will earn a Bergeron Distinction in Entrepreneurship and New Ventures and the top two scholars will be awarded the Bergeron Entrepreneur Medal. Both the distinction and medal will be recognized at graduation.

Douglas Bergeron is currently the CEO and largest shareholder of VeriFone Systems Inc, and was born in Windsor, Ontario. He obtained his undergraduate degree at York University in 1983, with a major in computer science. His wife, Sandra Bergeron, is a venture partner with Trident Capital, a director of Qualys Inc and Sophos plc, chairman of TraceSecurity Inc, and a highly regarded female technology leader in Silicon Valley.

IP Osgoode applauds this investment in the next generation of entrepreneurial engineers and looks forward to supporting York’s students on the intellectual property and technology front.

Posted in Announcements
Comments: 0

Using a quote that he attributes to Pablo Picasso, the late Steve Jobs stated in a 1994 interview that “good artists copy, great artists steal.” It seems somewhat ironic that Apple Inc., the company he co-founded, now finds itself in an entrenched legal battle with Samsung over a number of alleged patent and trademark infringements. The twist? Samsung is one of Apple’s most important component suppliers and has counter-sued Apple, claiming that a number of their own patents have been infringed by the technology giant.

As previously reported by the IPilogue here, here, and here, the lawsuit began in April of 2011 when Apple served Samsung with a number of claims stating that Samsung had “slavishly” copied device designs, packaging, and application icons. Samsung quickly responded with its countersuit, alleging that Apple products infringed a number of Samsung’s own patents. These actions have led to more than 50 lawsuits being filed between the two companies in 10 countries. While this number seems large, it could become even larger as the suits will likely be split up by the courts.

Even more mind-boggling than the number of lawsuits concurrently taking place between Apple and Samsung is the number of claims that were initially made by Apple against Samsung in April 2011. Since the initial filings, a number of patent claims from both sides have been dropped. Judge Lucy Koh is overseeing the suit in California and recently stated that to force a jury to pass judgment on so many claims would be a “cruel and unusual punishment” and ordered both companies to reduce the number of claims being made against each other. The dropped claims will shrink the potential damages that either side can obtain but if Apple’s claims are dismissed without prejudice (as they are aiming to do), it could allow them to take another bite at the proverbial apple.

While the order has been successful in reducing the number of claims that the California case will now center on, both sides seem as staunch and immovable on the issues as ever. Mediation is scheduled for the end of May 2012, but there is doubt within the technology, business, and legal communities that this will lead to a settlement before the case goes to trial. However unlikely, there may be some surprises during mediation in the upcoming months. Tim Cook, Apple’s current CEO, has stated that he “always hated litigation” and that Apple “just want[s] people to invent their own stuff.” While the statement points towards a willingness to settle with Samsung and move on, it is a very different mindset from the one that Steve Jobs had prior to his death. In Jobs’ biography, author Walter Isaacson revealed that the co-founder had the intention of “destroy[ing] Android, because it’s a stolen product.” In recent years, HTC and Motorola have both been legally at-odds with Apple over the manufacture and distribution of Android-based mobile devices. As Samsung has recently become the number one smartphone manufacturer in the world and creates Android-based devices, one begins to wonder if Apple’s intentions in these lawsuits are more far-reaching than to solely prevent others from profiting from Apple’s designs. This thought has crossed the mind of Google executive David Drummond, who has suggested that Apple, among other companies, is attempting to litigate Google out of the wireless market rather than innovate better products.

Looking at the Samsung Galaxy side-by-side with the Apple iPhone, there are a number of definite resemblances in both hardware and software. (See picture here for reference.) Surely, Apple has every right to ensure that their patents are not infringed upon by others; However, Samsung does have some strong arguments – is it fair for Apple to have the ability to patent something akin to “a rectangular product shape with all four corners uniformly rounded”? To an extent, with these kinds of products, there is only so much a designer can potentially do – the question the courts will have to look at is whether Samsung used product similarities to confuse consumers.

As was mentioned earlier, this case is of particular note for the reason that Samsung is one of Apple’s most important suppliers of components, which are used across a variety of Apple products. So far, the companies have been able to keep their business dealings separate from the lawsuit – a business deal that is beneficial to both parties. The relationship between the two companies and the recent batch of dropped claims may be pointing towards a settlement, but their attitudes towards this legal battle say otherwise. As this case proceeds, it will be interesting to see if both companies can play nice with one another if one party ends up the clear victor in the courtroom.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

Posted in Infringement, IP, Patentability, Patents, Smartphones, Technology, Telecommunications, Uncategorized
Comments: 0

Part of what makes studying the creative arts from a legal perspective so fascinating is the diversity of forms that art takes, and the ways in which law is sometimes underprepared to deal with issues brought forward through art. A classic instance of this problem is the case of Rick Gibson, a Canadian artist who made a name for himself in the U.K. in the 1980s. Unfortunately for him, though, the reason that he is well known is that he was found guilty of outraging public decency for producing and exhibiting earrings made from human foetuses in a London art gallery. Though he tried to defend his use of foetuses in that context as being no different from any other basic artistic material like clay or wood, he was unsuccessful in arguing this point. Still, the case raises interesting questions about how legal thought and exploring the boundaries of art can clash at the edges of creative thought.

Although the Gibson case dealt with a common law offense, copyright law and art are no strangers to one another either in terms of boundary clashes. Though most forms of art can comfortably fit into a Copyright Act’s definitions of terms like “musical work” and “artistic work,” there is some art that pushes at the boundaries. One case in the visual arts was Creation Records v News Group Newspapers, [1997] EMLR 445, where a British judge found that objects floating around in a swimming pool could not qualify for copyright under the legal definition of a “sculpture” ; there is indeed something to be said for the fact that objects floating around in a pool, subject to waves, wind, and who knows what else might not be fixed in the ways copyrighted works generally need to be. At the same time, completely aside from whether copyright applies or not, it is not too hard to imagine a scenario in which things floating around in a pool might conceivably be understood as artistic. To be clear, I make no judgement as to whether such a medium could produce good art, I’m just saying it’s far from impossible to imagine a pool filled with water as a modern blank canvas, given the many materials contemporary visual artists are known to work with. One senses that, if popular art in the year 2013 were to take a sharp turn towards pool installations, copyright as it exists today would probably be ill-equipped to deal with conflicts that might arise from this social choice.

As a musician, I sometimes wonder what would happen if some rather unique musical works from the past few decades were put before a judge in a copyright case. For a time, it looked like Mike Batt and John Cage’s estate were going to indulge me with their dispute over a piece of music comprised entirely of silence, but in the end they settled out of court. So, instead, today I want to throw out a few examples of musical works from the 20th century that are interesting to think about not just as music, but also as copyrighted works, and see what kinds of copyright issues they raise. Note that these challenging works sometimes push at the edge of public conceptions of what music ‘ought’ be, so I feel a little obligated to remind readers that whether one thinks the art is good or bad is irrelevant in the case of copyright; or, as Judge Learned Hand once wrote:

“Certainly the qualifications of judges would have to be very different from what they are if they were to be constituted censors of the arts.” (Hein v Harris, 175 F 875 (CCSDNY 1910), aff’d 183 Fed 107 (2d Cir. 1923))

In other words, judge the art for whatever aesthetic value as you please, but divorce that judgement from that of whether a work deserves copyright protection or not. Whether the music is good or bad is no consequence to the law. So, in this spirit, let us consider works by three contemporary composers, and see what interesting copyright questions are raised by their art. To be clear, I intend to raise more questions than suggest answers in what follows, and I certainly don’t pretend to have all the answers to the questions I ask (I do have opinions, but sharing them isn’t the point of today’s exercise). Rather, the questions as a whole illustrate how at the creative edge of music, conventional paradigms of copyright cease to apply cleanly and bring about some uncertainty as to the correct application of the law.

Let’s begin with examples that straddle the line between visual arts and music. Here are the musical scores to some works from American composer George Crumb’s first Makrokosmos (1972) for solo piano (through the magic of YouTube, you can listen to the entire set here, here, and here). Three scores are reproduced on the page: #4 Crucifixus, #8 Spiral Galaxy and #12 The Magic Circle of Infinity. What’s most striking about these scores is how they are visually organized on the page to correspond to reflect some aspect of the title; the musical notation, while present, is hardly conventional. There’s also something of a pleasing visual aesthetic in looking at the score (especially for the latter two), an asethetic that conventional musical scores simply don’t reflect.

So the copyright question here is: are George Crumb’s above pieces musical or artistic works, as per the terms’ definitions in the Copyright Act? The categorization might actually matter; for example, in collective licensing, where tariffs are meticulously spelled out for each and every use, venue, work, etc., a work’s categorization may affect the rates a collective society can charge for its use in a given context. If I perform these works in a concert hall, should the royalty to Mr. Crumb be any higher or lower than the fee charged for exhibiting these scores in an art gallery? It’s a tricky question, for sure; the art’s categorization is at least partially in the eye of the beholder, according to the context in which the work is experienced.

Of course, Makrokosmos is just a warm-up exercise. Let’s move on to a more extreme example: Karlheinz Stockhausen’s (1928-2007) Helicopter String Quartet (or as it is known in the original German, Helikopter-Streichquartett), composed in 1993. You can consult the score here if you want, but despite all of its nice colours, to really get a sense of what is going on, you’re much better off viewing an excerpt from a performance. Click here for that when ready; but, be warned, it blows the minds of even seasoned musicians to think this actually happened!

As you can see, not content to have his string quartet performed in a concert hall (or even a more modest school gym, subway station or street corner), Stockhausen takes to the skies for the performance of his Helicopter String Quartet. I have no idea if the helicopters themselves are choreographed in some way or if Stockhausen allows them to fly whatever formation they wish. In any case, the performers and helicopter pilots go off and do their thing while the performance is radio-broadcast back to an audience on the ground through speakers. The audience is invited to view the performance from a distance, so to speak.

Now, to the copyright question. Imagine this (fictitious) scenario: after a recorded Canadian performance of the Helicopter String Quartet, one of the helicopter pilots from the recording launches a suit claiming credit as a performer, and thus a share of the royalties from broadcasting rights and the like. Should this be allowed? The term “performer” is not defined in Canadian copyright law, so the term would need to be defined by the courts. There are arguments on both sides. On the one hand, a helicopter is not really an instrument, and its pilot is not ‘playing’ the helicopter as if it were an instrument, either. Second, there is meaningful gap in our understanding that while both piloting a helicopter and playing the cello require skill, those skills are of such a very different kind that we conceive of them as being unrelated, certainly much more unrelated than, say, playing the cello and playing the piano. We conventionally conceive of the job of a pilot as more of a mechanical technician than we do as a skilled artistic performer. That being said, on the other hand, in this instance the helicopter is providing an important part of the distinct sound of the piece, a percussive background of sorts, and this sound constitutes an integral part of the Helicopter String Quartet experience—after all, if you don’t have helicopters for the Helicopter String Quartet, you’re not doing it right, and helicopters are of little use without pilots to guide them through the air. Additionally, copyright laws ordinarily protect plenty of ‘technical skills’ that might not be properly “expressive” in the conventional sense of the word, skills like producing master sound recordings or writing computer code; along the same vein, is there any reason technical expertise in piloting a helicopter as part of a work’s performance ought not be protected, if it contributes to the performance/realization of the work?

In short: what/who is a performer, under copyright law? If this is fairly straightforward a question to answer in most instances of music and the arts more generally, Stockhausen’s Helicopter String Quartet certainly puts the question front and centre, with unclear answers.

One of the most mind-bending works I’ve encountered and tried to rationalize under copyright has to be Surface Tension (2009), conceived by Eve Egoyan and David Rokeby. Rokeby himself describes the piece in this way just beneath a YouTube video showing excerpts from a performance:

“Pianist Eve Egoyan improvises on a grand piano and each note she plays is presented visually on a large projection screen rising out of the piano. [...] The software, written by interactive artist David Rokeby, is designed to pick up and represent a variety of performance features like dynamics, pitch, harmonic relationships, durations of notes and pedaling. The result is a entrancing work in which music and image are intertwined in an extraordinary way, with neither element dominating.”

Having attended a live performance of this work, I can attest that the video accurately reproduces what goes on live. Essentially, music is improvised from an idea (for example, long, slow, elongated tones in the second movement), and the sound signal that results from this is sent into a piece of specially-designed software which then transforms those sounds into something halfway between an image and a video, all in real time. The video is projected on a screen for the audience to consider as it listens to the pianist.

Categorizing this work is itself a challenging task: is it a musical or cinematographic work? Or, even, is it a literary work, given the prominent role computer software plays in mediating the whole work-process? This assessment is complicated by the fact that it is the music that directly generates the visuals, though in a somewhat random way; specific notes are not mapped onto specific events, just a general development of the visual idea already under way. The fact that the whole thing is improvised by the performer (as opposed to read from a score) further complicates identifying what the preexisting “work” is independent of its performance; in some sense, the work can only be experienced through performance, in ways that, say, a poem, need not be. It’s clear that there exists a work somewhere in there, it’s just difficult to cleanly isolate it among all the interdependent factors that contribute its performance.

Second: is Rokeby entitled to a ascend to the rank of “performer” here? He is, after all, the author of the software that is generating in a sometimes random and sometimes orderly way an odd ‘video’ that matches the music. But is writing highly specialized and innovative software enough to become a performer, too, when that software is applied in artistic contexts? Or is he merely one of the authors of the work, separate from its performance? After all, Eve Egoyan could improvise exactly the same music at the piano without a video screen, and that would be straightforward enough to decide that she alone is a performer. But once we add the other devices in, the question of who is “performing” the work is trickier.

In summary: there is clearly art, but how clear is the place of copyright in that art?

Now, if I were accused of copyright esoterica here, I would well confess to the crime. But one of the underlying ideas of this IPilogue entry is that new art can push at the boundaries of what we all thought were settled questions in copyright law. What would we do if one of the above underground currents suddenly turned mainstream? Historically, we’ve periodically revised some definitions of the Copyright Act to keep up with new artistic trends: some time after sound recordings became a thing, we protected sound recordings; in the late 1980s when the definition of a musical work as “any combination of melody and harmony, or either of them” became unworkable in Canadian copyright law (say, due to the emergence of rap, which is based around rhythmic more so than melodic/harmonic musical ideals), the 1988 Copyright Act changed the definition to the one that remains on the books today (“any work of music or musical composition”). Yet, there’s still some delay between when an artistic/legal conflict emerges and when copyright law adjusts to recognize the conflict one way or another. While it’s hard to imagine helicopter-based musical performances taking off as a major musical genre, the idea behind Surface Tension is much less farfetched as a mainstream concept, especially in a society that already glorifies music videos. Who knows in what ways new artists might expand that concept; and who knows if copyright would be apt to deal with conflicts arising from the composition and performance of such works, in case such claims came to court. Slowly but surely, as creativity pushes forward, copyright’s goal posts move further away. That, indeed, is the problem copyright faces at the edge of creativity.

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

Posted in Copyright, Feature Post, IP, Music Industry, Originality
Comment: 1

A recent dispute before an Austrian court has demonstrated a quirky conflict between EU and domestic law with regards to the granting of statutory exploitation rights in cinematographic works.

The plaintiff, Mr. Luksan, was a scriptwriter and principal director of a documentary on the topic of German photography from the Second World War.  The defendant, Mr. Van der Let, was hired to produce the film and was assigned all copyright and/or related rights in the film held by Mr. Luksan.  However, the assignment expressly excluded the right to broadcast the film, in almost any medium, to closed circles of users in return for separate payment.

In apparent violation of this express contractual exclusion, Mr. Van der Let made the film available on the internet and assigned the rights for this purpose to the website, movieeurope.com, where it could be downloaded by video on demand.  He also made the trailer available on Youtube and assigned the pay TV rights to Scandinavia TV.

Mr. Luksan contended that these forms of exploitation violated rights that were reserved to him in the contractual arrangement and demanded that half of the statutory rights to remuneration vest in him.  Mr. Van der Let responded by arguing that a statutory assignment of those rights is provided to him by virtue of Paragraph 38(1) of the UrhG  (copyright code) which grants all exclusive exploitation rights to the producer.  Furthermore, he alleged that this statutory grant renders any agreement diverging from the rule of reservation as void.

The dispute was further complicated, as the first and second sentences of Paragraph 38(1) of the UrhG, seemed to be contrary to European Union law.  The first sentence provides for the original and direct allocation of the exploitation rights to the film producer alone, rather than merely establishing a rebuttable presumption.  The second sentence provides that statutory rights to remuneration are to be shared equally by the producer and author of a film subject to any express agreement derogating from the rule.  On the contrary, EU law requires that the presumption in favour of the producer be rebuttable and that derogation from shared remuneration is prohibited.

As the dispute was dependent upon an interpretation between conflicting laws, the matter was referred to the European Court of Justice.  Firstly, the court explained that reproduction rights vest by operation of law in the principal director.  This vesting precludes national legislation which allocates those exploitation rights exclusively to the producer as was provided by the UrhG.  Nevertheless, EU law must allow the Member States the option of laying down a presumption of transfer, in favour of the producer, of exploitation rights provided that such a presumption is not an irrebuttable one that would preclude the principal director from agreeing otherwise.  The court also addressed the issue of statutory compensation and found that the principal director must be entitled to the right of fair compensation provided in Article 5(2)(b) of Directive 2001/29 (private copying exception).  Finally, the court held that EU law must be interpreted as not allowing Member States the option of laying down a presumption transfer in favour of the producer of the right to fair compensation vesting in the principal director of said work.

Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

Posted in Contracts, Copyright, European Union, Movies, Ownership
Comments: 0

Global Health Challenges and the Role of Law: the 2012 National Health Law Conference: May 4 & 5, 2012; Metropolitan Hotel; Toronto. For the final program and registration, go to: http://nhlc2012.ca/.

Legal scholars, lawyers, and human rights advocates are often prone to believe that global health and human rights issues can be best addressed through law and litigation.  But do they always make a positive difference to the disadvantaged or do they sometimes augment the inequities they are intended to remedy? This is the core theme that runs as a thread through the international Global Health Law Conference that is taking place in Toronto on May 4-5, 2012.  At this conference, leading Canadian and international scholars, policy-makers, practicing lawyers and health care professionals will explore how law can address and make progressive change to global health challenges including: access to care and essential medicines for the most vulnerable; regulating medical tourism; ensuring equitable access to high quality healthcare; addressing the spread of chronic diseases and obesity; access to medicines in a global free-trade environment; and the global politics of health care.

Various intellectual property (IP) and international trade law issues which pervade some of the most burning global health challenges will be debated at the conference. One presentation will explore, for example, the difficult challenge of promoting affordable drug development to address health needs faced by developing and middle income nations under the current international patent regime. Another presenter will discuss the importance of developing a global governance regime to ensure access to reliable safety and effectiveness information. The connection between international trade agreements and human rights will come up in discussions related to pharmaceuticals, but also in the context of presentations on reproductive tourism. Other presentations will focus on tobacco control, the governance of non-communicable diseases, and the role of law in protecting vulnerable populations. James Morone of Brown University will further give a visionary plenary presentation looking at the future of health care in light of the technological changes we are facing, with the intriguing title “Creaky Policies in Nanotime: How will Health Care Systems Cope with Global Age.”

The conference further features a keynote panel debate:  “Can Law Meet Global Health Challenges?  Perspectives from Medicine and Politics”, with as panelists: Abdallah S. Daar, Senior Scientist, the McLaughlin-Rotman Centre for Global Health & & Dalla Lana School of Public Health, University of Toronto; Theodore R. Marmor, Health Care Policy, Politics and Law Expert, Yale University; Michael Ignatieff, Senior Resident, Massey College, University of Toronto; and James Orbinski, Chair and Professor in Global Health, Dalla Lana School of Public Health; Co-Director, Global Health Diplomacy Program, Munk School of Global Affairs, University of Toronto

For Ontario lawyers, this program can be applied towards the 9 Substantive Hours of annual Continuing Professional Development (CPD) required by the Law Society of Upper Canada. The program may also be applicable towards up to 15 CPD hours for other jurisdictions within Canada and the U.S. Practitioners from these jurisdictions should confirm the applicability with their local law societies.

Trudo Lemmens is an Associate Professor in the Faculties of Law and Medicine of the University of Toronto, and a member of the Joint Centre for Bioethics and the Centre for Ethics.

Posted in Access to Medicines, Feature Post, IP
Comments: 0

Jay-Z and Kanye West have decided to settle a sampling lawsuit brought forth by soul musician, Syl Johnson.  The pair was accused of illegally sampling one of Johnson’s songs on a track entitled, “The Joy,” on their joint album, Watch the Throne.  Johnson has had a history of pursuing rappers for sampling, including a $29 million suit against Cypress Hill which was eventually dismissed on a technicality.

Some commentators speculate that the reason for the settlement was because there is no conclusive rule on the legality of sampling, despite an increasing number of lawsuits claiming damages.  While this legal uncertainty has not stopped other artists from pursuing a number of high profile lawsuits, the outcomes of such cases demonstrate a general lack of legal clarity.

The two principle legal defenses to sampling are de minimis use and fair use (fair dealing).  The former is invoked when the litigant argues that the sample is so negligible that the court needn’t bother with a fair use analysis as there is no copyright infringement to be found. The latter requires the sampler to prove that the use falls under a number of legal exceptions to copyright infringement.

There has been contradictory jurisprudence on the de minimis use defense.  For example, in a 2004 decision involving the Beastie Boys, the Ninth Circuit accepted the de minimis argument.  They based their reasoning on a significance test stating that, “To say that a use is de minimis because no audience would recognize the appropriation is thus to say that the use is not sufficiently significant.” Just one year later, the Sixth Circuit eliminated the de minimis defense with regards to sampling based on a value test.  The court explained that

“Even when a small part of a sound recording is sampled, the part taken is something of value.  No further proof of that is necessary than the fact that the producer of the record or the artist of the record intentionally sampled because it would (1) save costs, or (2) add something to the recording, or (3) both.”

Fair use doctrine with regard to sampling is even more unclear.  The Sixth Circuit’s holding which eliminated the de minimis use defense considered a sample of merely three notes lasting two seconds.  While the court stated that the door for fair use is still open in sampling cases, the strict test for infringement could have a bearing on other fair use defenses.  Accepted fair use defenses could include sampling that is transformative, for non-commercial purpose, copied only a small amount, the original had a thin copyright, or the copying did not harm the market for the original work or its derivatives. It would seem the only bright line rule would be that if one is unsure, it is best to assume that permission is required for sampling.

With the rise in popularity in sampling, and the mutual interest from both samplers and copyright holders, many artists now seek sample clearance before using a copyrighted work.  This requires seeking clearance from the owner of the song (typically the publisher) and the holder of the master recording (typically the recording company).  Alternatives to seeking sample clearance also include recreating the music sample, seeking copyright owners who want to have their work sampled, or contacting the artist directly if they still maintain some control over the work.

Andrew Baker is an LLB/BCL candidate at McGill University Faculty of Law.

Posted in Copyright, Fair Dealing, Infringement, Music Industry, Music Industry, US
Comments: 0

Today marks the 12th annual World Intellectual Property Day. This observance day was created in 2000 by the World Intellectual Property Organization (WIPO). It is an opportunity to “celebrate the contribution that intellectual property makes to innovation and cultural creation.” World IP Day is celebrated every year on April 26 in recognition of the day the WIPO convention (which created WIPO) came into force.

This year’s theme is “Visionary Innovators” and it seeks to celebrate the role that innovators play in the creation of Intellectual Property. As WIPO Director General Francis Gurry noted in his annual World IP Day address, innovators are “people whose innovations transform our lives.  Their impact is enormous.  They can, at times, change the way society operates.”

In his annual address, the Director general also discusses the importance of maintaining a proper balance between the incentivizing innovators to create, and public interest in sharing useful innovations. He notes that “we have to get the balances right, and that is why it is so important to talk about intellectual property.  On this World Intellectual Property Day I would encourage young people in particular to join in the discussion, because intellectual property is, by definition, about change, about the new.  It is about achieving the transformations that we want to achieve in society.”

In Canada, the Canadian Intellectual Property Office (CIPO) has set up a website honouring World IP Day. The website includes tips for making IP a part of your business, information on IP for students, success stories of famous innovators, and additional information on the history and importance of World IP Day.  There is also a fun “IP Basics Quiz” where visitors can test their knowledge of various fields of intellectual property.

For more information about World Intellectual Property Day, you can visit the WIPO World IP Day website, or join in the conversation yourself at the official facebook page.

Mark Kohras is a JD student at Osgoode Hall Law School. For IP Osgoode’s coverage of last year’s World IP Day event, see here.

Posted in events, Innovation, IP, WIPO
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IP Osgoode’s Professor Giuseppina D’Agostino is featured in Osgoode’s April 2012 Research Byte: The Legal Implications of Commercializing Intellectual Property Rights.

See the video embedded in the masthead or click here.

Posted in IP
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Global Health Challenges and the Role of Law: the 2012 National Health Law Conference: May 4 & 5, 2012; Metropolitan Hotel; Toronto. For the final program and registration, go to: http://nhlc2012.ca/.

This international conference will bring together leading scholars, policy-makers, lawyers, physicians and other health care professionals to explore how law can address global health challenges and make real change. The conference includes a keynote panel debate entitled: “Can Law Meet Global Health Challenges?  Perspectives from Medicine and Politics” with Abdallah S. Daar, Senior Scientist, Dalla Lana School of Public Health, University of Toronto; Theodore Marmor, Health Care Policy, Politics and Law Expert, Yale University; Michael Ignatieff, Former Leader of the Liberal Party of Canada & Senior Fellow of Massey College, University of Toronto; and James Orbinski, Chair of Global Health at the Dalla Lana School of Public Health, University of Toronto and former President of the International Council of Médecins Sans Frontières.

The conference will also feature a Keynote Public Lecture: “Creaky Policies in Nanotime: How will Health Care Systems Cope with Global Age” with James Morone from Brown University. Other panel presentations focus on the role of law in the context of access to medicines and the control of chronic diseases, pharmaceutical policy, medical tourism, health and human rights, and health and vulnerability. Panel speakers include: Mary Anne Bobinski, William Bogart, Oscar Cabrera, Timothy Caulfield, I. Glenn Cohen, Rebecca Cook, Jocelyn Downie, Colleen Flood, Richard Gold, Lawrence Gostin, Aeyal Gross, Trudo Lemmens, Ruth Lopert, Constance Macintosh, Erin Nelson, Mariana Motta Prado, and Sheila Wildeman.

For Ontario lawyers, this program can be applied towards the 9 Substantive Hours of annual Continuing Professional Development (CPD) required by the Law Society of Upper Canada. The program may also be applicable towards up to 15 CPD hours for other jurisdictions within Canada and the U.S. Practitioners from these jurisdictions should confirm the applicability with their local law societies.

Trudo Lemmens is Associate Professor at the Faculties of Law and Medicine of the University of Toronto, and a member of the Joint Centre for Bioethics and the Centre for Ethics.

Posted in Announcements
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