LAW W.8

Intellectual Property: non-physical property based on unique ideas and cognitive effort. Copyright exists automatically upon creation, but registering the copyright provides additional benefits

Copyright Infringement: Occurs when someone exercises the exclusive rights of the copyright owner without permission

Purpose of copyright and IP: To balance promoting public interest in creative works with ensuring creators receive just rewards

characteristics or IP:

1. Non-exclusive good exclusive: Transforms non-exclusive things (like a song idea and melody) into exclusive property

2. Monetize: Allows creators to monetize and control the distribution of their work

3. Idea v. Manifestation: Focuses on the manifestation of an idea, not the idea itself (e.g., Disney owns their adaptation of fairytales, not the original stories)

not subjective to IP

1. common ideas — Common ideas shared among the population

2. important ideas — important ideas like building a culture, IP is about culture circulating (e.g., cultural dances)

Trends in IP Law

1.Propertization: Turning shared cultural resources into property, removing them from the public domain (e.g., Barbie pink).

2.Owners' Rights: Expanding legislation to give owners more rights and ways to enforce copyright, leading to the criminalization of copyright infringement.

3.Technology: Advances in communication technology make it easier to distribute ideas.

4.Globalization: IP policies are now treated as trade issues rather than cultural policies bound by national borders

Three Criteria for a "Work"

1. Originality: Applies to the expression, not the idea itself. It must originate with the author, not be copied, and demonstrate independent creative effort and skill.

2. Fixation: The work must be expressed in a material form, identifiable, and relatively permanent (e.g., written down, recorded). Non-Fungible Tokens (NFTs) are a new form of fixation.

3. Nationality/Place of Publication: Canadians and works published in certain locations are guaranteed copyright protection

Neighboring Rights: Rights given to those who help circulate a work, such as performers and broadcasters. They don't have the same originality rights as the author.

Rights Protected by Copyright

1. Economic Rights: Ways to profit from the work, such as reproduction, performance, adaptation, etc..

   1. Creative Commons Licenses: Allow creators to share some of their rights while retaining others (some rights reserved).

2. Moral Rights: Protect the author's reputation and connection to their work.

   1. Right to Paternity/Attribution: The right to be credited as the author.

   2. Right to Integrity: The work cannot be altered in a way that damages the author's reputation.

   3. Right of Association: Prevents unauthorized use of the work for a particular cause or purpose (e.g., political campaigns)

Fair Dealing: Allows limited use of copyrighted material without permission for purposes like education, research, or private study, as long as the source is cited and the use is fair

Factors Considered for Fair Dealing:

1. Purpose of use

2. Nature of the work taken from

3. Amount and substantiality of content taken

4. Effect on the market value of the original

5. Availability of easy alternatives

Made in Canada" Exceptions for Copyright:

1. Private copy: Making personal copies of works, as long as it's for personal use and doesn't harm the market

2. Preservation: Copying for academic or archival purposes

3. User-generated content: Creating content based on existing works, provided it's not for commercial purposes and doesn't violate encryption

4. Time/format shifting: Copying content for personal use in different formats or time slots

Evolution of Social Media and Content Creation

● Web 1.0: focused on content shared among known individuals.

● Web 2.0: led to professional social media use, the rise of influencers, and content creators as a recognized workforce who monetize through ads, brand deals, and partnerships. This shift brought new challenges like competition for visibility and credit

Copyright Ownership

General Rule: The author (creator) is the first owner of the copyright (Owner is second owner) however exceptions include co-written works, films, sound recordings, letters and employment (if the work is created under a contract of service)

Remedies for Copyright Infringement

1. Border Seizure: Confiscation of infringing work at the border

2. Civil Rights: Include injunctions (court orders to stop infringement), damages (compensation for financial loss), accounting for profits (surrender of profits gained from infringement), and delivery up (removal of infringing content)

Criminal Action: Legal action against copyright infringement

Proposed Solutions for Digital Copyright and Fairness

• Adapting moral rights (attribution) and exploring Creative Commons Licensing on social platforms to give creators more control.

• Enhancing algorithmic fairness to ensure equitable exposure for creators of all backgrounds.

• Addressing cultural appropriation to protect minority creators' cultural expressions.

• Implementing platform-based solutions like Creative Commons Licensing on platforms like TikTok.

• Promoting algorithmic transparency and fairness in content recommendation and monetization.

• Establishing policies against cultural appropriation, possibly modelled after the Indian Arts and Crafts Act, to prevent the exploitation of Black culture and art

Case Studies — Intersection of Copyright and Social Justice

Cultural Appropriation: Using elements of a culture without permission or acknowledgment, often for commercial gain, is a pressing concern.

AI and Copyright: The use of AI in creative processes raises complex questions about authorship and copyright ownership.

The Maliseet First Nation and Their Stories: Highlights the tension between Indigenous communal knowledge and Western copyright law which emphasizes individual ownership. Key issues include:

1. The potential for misappropriation of Indigenous cultural heritage when applying Western copyright frameworks.

2. The challenge of reconciling oral history traditions with written copyright laws.

3. Copyright as a potential tool for control and censorship, conflicting with Indigenous cultural sovereignty

The "Carlton" and "Milly Rock" dances in Fortnite: This case brought attention to the challenges of copyrighting short dances, particularly in the digital realm. Important aspects of the case:

1. The Copyright Office's refusal to register these dances as choreographic works because they were deemed too simple and intended for social enjoyment.

2. The case sparked public debate on cultural appropriation, as the dances originated in Black communities but were commercially exploited without proper attribution or compensation.

3. Although the lawsuit was ultimately unsuccessful, it highlighted the need for copyright law to adapt to evolving forms of creative expression in digital spaces

The "Savage" dance on TikTok: This case represents a shift in the Copyright Office’s approach to copyrighting social media dances:

1. Unlike the “Carlton” and “Milly Rock,” the “Savage” dance was granted copyright protection, suggesting a growing recognition of the creative effort involved in these viral trends.

2. The case still underscores issues of attribution and compensation for Black creators, as others profited from the dance's popularity without properly acknowledging the originator.

3. This case signals a potential pathway for copyright protection for social media dances, but further clarification and enforcement mechanisms are needed to ensure fairness for creators

Black TikTok Creators’ Strike: This collective action highlights the systemic inequities faced by Black creators on social media platforms

1. The lack of proper credit and attribution for dances created by Black users.

2. Algorithmic bias that often favors content by non-Black creators, even when replicating trends initiated by Black users.

3. This event underscores the need for platform accountability and adjustments to algorithms and policies to ensure equitable visibility and opportunities for creators of color.

New York Times v. OpenAI: This ongoing legal battle grapples with the implications of AI using copyrighted material for training, specifically in the context of news articles

1. Whether AI training on copyrighted content constitutes fair use or infringement.

2. The potential economic harm to publishers if AI models can freely utilize their work without permission or compensation.

3. This case has the potential to shape the future of copyright law in the age of AI, influencing how data is used for training and the balance between technological innovation and creators’ rights