1. “Creators, Consumers, Users & Identities: Options, Models & Cross- Cultural Moralities” Legal Constraints on (Digital) Creativity Class 7 – Constraining Connections UBC Law @ Allard Hall Jon Festinger Q.C. Centre for Digital Media Festinger Law & Strategy http://videogame.law.ubc.ca @gamebizlaw jon_festinger@thecdm.ca

2. Am blown away (in a good way)…

3. Updated…

4. Working…

5. How goes?

6. Emergent Themes redux

7. 1. Why is Law slow in dealing with advancing technology ?

8. Dialectic between factors… Copyright & I.P. orthodoxies Fear of creativity (aka censorship) Political control needs Industry incumbencies (aka the level playing field) Greed, profit & the 1%

9. 2. The post-IP world where contracts are paramount Triple analysis seemingly needed on every issue relating to digital creativity: A.What is the traditional legal (I.P.) position re X issue ? B.How much of the traditional legal position re X has been ceded to the operation of contract law ? C.Are their any “super-remedies” (constitutional, privacy or consumer protection) ?

10. 3. Does “(Digital)” in “(Digital) Creativity” matter? Yes it does. Because of it’s: 1.Amplifying effect 2.Scaleability 3.Virality 4.Borderlessness 5. “Trackability”

11. A new thought… What comes up for me is how desperate the machinery of commerce is to create controllable funnels for ideas and people. This somehow seems like a reaction to how difficult to control digitization makes processes of creation and dissemination.

12. 4. Creativity is “connected”

13. Johann Wolfgang von Goethe said around 1825: "I may speak of myself, and may modestly say what I feel. It is true that, in my long life, I have done and achieved many things of which I might certainly boast. But to speak the honest truth, what had I that was properly my own, besides the ability and the inclination to see and to hear, to distinguish and to choose, and to enliven with some mind what I had seen and heard, and to reproduce with some degree of skill. I by no means owe my works to my own wisdom alone, but to a thousand things and persons around me, who provided me with material. There were fools and sages, minds enlightened and narrow, childhood, youth, and mature age—all told me what they felt, what they thought, how they lived and worked, and what experiences they had gained; and I had nothing further to do than to put out my hand and reap what others had sown for me."

14. 5. There is no “Magic Circle” There is no virtual… It’s all real…

15. http://remotedevice.net/ctcs-505/mia_2009.pdf

16. Thoughts?

17. 6. What we “do” is changing…

18. So just what is “Originality” ??

19. Preston v. 20 th Century Fox Canada Ltd. (1991), 33 C.P.R. (3d) 242 (F.C.T.D.)

20. http://law.unh.edu/assets/images/uploads/publications/idea-vol52-no1-hutchison.pdf

21. “common store of folklore” = the “collective unconscious”

22. “Subconscious plagiarism” http://mcir.usc.edu/cases/1970-1979/Pages/brightharrisongs.html

23. Conscious homage?

24. http://www.billboard.com/articles/events/grammys-2015/6457978/sam-smith-tom-petty-grammy-medley-mashups

26. Is Creativity More Important Than Property ?

27. IS LAW “AGILE”(enough)? POSSIBLE WAYS FORWARD

28. Another way of looking at what’s at stake…

29. ‘Pentalogy’ as harbinger.. User’s Rights Creator’s Rights: Same thing? (individual rights & responsibilities)

30. SCC Penatalogy Quotes Abella J. for the majority in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37: “…fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose…is that of the user…” Abella J. for the Court in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada 2012 SCC 36: “Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works.”

31. POSSIBLE WAYS FORWARD: Are we evading the deeper question? SHOULD NOT User Rights/Right to Remix really be a independent creative/expressive right rather than an IP right/protection/defense? * Part of Freedoms of Thought/Conscience? * Part of Free Speech/Expression (criticism & review/news reporting)? * Or merely…an expanded “public interest” based Fair Dealing/Fair Use?...NOT NOW..NOT YET?

32. Right to Remix/Mod/CREAtE ? “Right to CREAtE” Not “Right in the Creation” Right to Remix-CREAtE- Mod as a creative/expressive right rather than an IP right/property protection.

33. WE COULD… ……evolve a single standard: For CREATORS as USERS, & For USERS as CREATORS…… to match reality… It makes a difference that machinima/remixes/Fan Fiction are tools of further creativity. There ought to be a “Users Right to CREAtE”

34. Can we find a “right to create” in the Charter? 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

35. Is remixing a “media of communication”? Is fan fiction a “media of communication”? Is machinima a “media of communication”? Is modding a “media of communication”? Would it be better if the Charter said “medium of communication”; or does it matter? Little or no judicial consideration of “…and other media of communication” ???

36. POSSIBLE WAYS FORWARD “Context Shifting” Imagine a world without Sony v. Universal SCOTUS 464 U.S. 417 (1984) (Betamax) time-shifting” fair use? Why isn’t everything in digital world not a form of tool enabled “time-shifting” = “context shifting” Key Factors in Sony: a. enlarged audience; b. did not impair copyright value.

37. PWF: Raise Thresholds for IP Protection “The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity” Dutfield & Suthersanen (U.K.) http://www.academia.edu/860340/

38. POSSIBLE WAYS FORWARD Isn’t it Barter Not Theft (Piracy) IF We Are All Creators?

39. POSSIBLE WAYS FORWARD “Big Data” yields answer?

40. Non-commercial user-generated content (Copyright Act, Canada) 29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if (a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes; (b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

41. Other ways… Identify & isolate “Commercial Intent”??? Is this a useful distinction? Or only a temporary one? Banksy

42. POSSIBLE WAYS FORWARD Enter “Moral Rights” Regime of ATTRIBUTION + INTEGRITY IF TO IP = 1. commercial impact irrelevant; 2. right to be attributed 3. right to protect work’s integrity Berne Convention for the Protection of Literary and Artistic Works (1886):“(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

43. MORAL RIGHTS 14.1 (1) The author of a work has…the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. (2) Moral rights may not be assigned but may be waived in whole or in part. (3) An assignment of copyright in a work does not by that act alone constitute a waiver of any moral rights…

44. What is perhaps most interesting about “moral rights” is that it is the (only) legal concept which directly incorporates the process of Creativity.

45. Cross cultural perspectives: Next week…

46. Cross cultural perspectives: This week…“Western” v. “Eastern” Views of Mods http://www.theguardian.com/technology/2015/feb/18/super-mario-64-high-definition-mod

48. https://www.techdirt.com/articles/20150217/11265630058/what-strong-modding-community-can-do-how-doom-has-been-yanked- into-selfie-age.shtml

49. DOA 5: Last Round Controversy http://gamepolitics.com/2015/02/06/doa-5-last-round-producer-concerned-about-morality-modders#.VOqdE1PF8Ws

51. Not the first time… http://www.theregister.co.uk/2005/02/10/tecmo_sues_xbox_game_hackers/

52. "[W]e believe it is our duty to uphold the integrity of our work," said John Inada, general manager for Tecmo, in a statement. "Hacking of this kind will not be tolerated…” (2005)

53. So what is really going on here?

54. Is this really about I.P. ?

55. Perhaps Creative Integrity Is More Important Than (Intellectual) Property ?

56. Culture Clash: Intellectual Property v. Creative Integrity King Kong v. Donkey Kong (Universal v. Nintendo, 1985): a symbolic morality tale where Hollywood asserted property rights and Nintendo defended creative integrity and independence. Donkey Kong wins

57. “ Respect” for… Creative Integrity & Quality

58. Versus “property”

59. A western lens through which to perhaps understand may be “moral rights” Snow v. Eaton Centre Ltd. (1982), 70 CPR (2d) 105.

60. Next time… Contracting out…of reality…

61. Always include a cat picture

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