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In this article, I investigate the nature of exceptions to copyright infringement or users' rights. Are exceptions to copyright infringement rights or privileges? Are they mandatory? While copyright users' rights and interests have triggered interest and debate amongst scholars, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. I examine the interplay between the users' rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, I refer to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings and films. I investigate the nature of exceptions to copyright infringement, including through Hohfeld's theory of jural correlatives. I look at the policy considerations behind these questions and conclude by reflecting on the damaging effects of the uncertain nature of users' rights on the coherence and, ultimately, the legitimacy of copyright law.

This is an introduction to selected articles published in vol. 35 of The Windsor Yearbook of Access to Justice (2018) further to the Symposium: "Copyright User Rights and Access to Justice" hosted by Windsor Law on May 18-19 2017. It gives a brief overview of the concept of copyright user rights and access to justice, as well as of the main themes discussed in the articles and at the Symposium, including access to knowledge and human rights.

Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. In Part One of this paper ((2010) 23 I.P.J. 83) I lay out the theoretical framework of property and copyright theory. In this Part Two, I apply the theoretical framework to define the nature of the copy of a copyrighted work, as well as its justifications. I also explore the ramifications of copyright acting as a property limitation rule to copy ownership, and how copy ownership can also act as a property-limitation rule of copyright.

Graffiti is vilified, and at the same time is increasingly revered and celebrated. This ambivalence is reflected in the general legal landscape that surrounds graffiti and other forms of street art at the criminal, civil and municipal levels. Within this general legal framework, the application of copyright law to graffiti and street art reveals a complex web of interwoven issues about the protection of the graffiti artist’s economic and moral rights and questions of illegality and public policy, and about the rights of the property owner of the “wall” on which the art resides, and the public. This book chapter explores how the law mediates between the rights of graffiti and street artists, the rights of the property owner on which the art resides, and members of the public. The application of copyright law to graffiti and street art offers an opportunity to investigate where the balance should lie between various competing rights and interests relating to these types of works.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

Price is an essential term at the heart of supplier-consumer transactions and relationships increasingly taking place in “micro-marketplace chambers,” where points of comparison with similar relevant products may be difficult to discern and time-consuming to make. This article critically reviews recent legal and economic academic literature, policy reports on algorithmic personalized pricing (i.e. setting prices according to consumers’ personal characteristics to target their willingness to pay), as well as recent developments in privacy regulation, competition law, and policy discourse, to derive the guiding norms that should inform the regulation of this practice, predominantly from a consumer protection perspective. Looking more closely at algorithmic personalized pricing through prevailing and conflicting norms of supplier freedom, competition, market efficiency, innovation, as well as equality, fairness, privacy, autonomy, and transparency, raises important concerns about certain forms of algorithmic personalized pricing. This article provides parameters to delineate when algorithmic personalized pricing should be banned as a form of unfair commercial practice. This ban would address the substantive issues that algorithmic personalized pricing raises. Resorting to mandatory disclosure requirements of algorithmic personalized pricing would address some of the concerns at a procedural level only, and for this reason is not the preferred regulatory approach. As such, our judgment on the (un)acceptability of algorithmic personalized pricing as a commercial practice is a litmus test for how we should regulate the indiscriminate extraction and use of consumer personal data in the future.

"10 Simone's approach is reminiscent of Jessica Silbey's work11 - having conducted an empirical study of various participants12 in creative and innovative industries, to situate creators' motivations in relation to the utilitarian objective of intellectual property to incentivize creation and innovation.13 Silbey, and to some extent Simone, apply the insights derived from their studies of creative communities to challenge the extent to which copyright (intellectual property) is necessary to incent authors to create.14 Silbey concludes that misalignments between intellectual property laws and the needs and aspirations of creators and innovators are desirable to some extent, but she also calls for some improvements of the law.15 Simone applies the insights derived from the case studies to rehabilitate the concept of (joint) authorship through an inclusive and contextual approach, sorting out what (often overlooked) contributions should count within the objectives of copyright law. The book focuses mainly on U.K. copyright law and how it addresses concepts of (joint) authorship, with an incursion in Australian law regarding its treatment of Australian indigenous art.16 As such, the analysis the book provides is relevant to Canadian copyright law, under which the basic conception of (joint) authorship bears similarity to U.K. copyright law.17 As recommendations are made in the context of Canada's ongoing copyright law reform to look into the adequate protection of indigenous traditional cultural expressions,18 the book is particularly relevant for its detailed discussion on the interaction between copyright law and indigenous traditional cultural expressions.19 On the law's exigencies surrounding authorship, despite uncertain contours, Simone identifies a "stable core" pointing to "the creator of the protected expression,"20 and argues that authorship requires more than de minimis contribution of creative choices or intellectual input to the protected expression.21 Taking a close look at the requirements of joint authorship,22 namely that contributors (i) act in pursuance of some collaboration or common design (ii) make a contribution that is not distinct, that is significant and that is of the right kind, Simone makes three important observations that highlight the strengths and deficiencies of the legal conception of joint authorship when applied to large groups of collaborators.23 First, the test is heavily fact-driven, which, in itself, is a strength that allows flexibility in the test's application to different creative processes and contexts.24 Second, Simone notices a restrictive approach in the application of the joint authorship test that limits the number of individuals qualifying as authors to one or a few dominant creators.25 Simone suggests that this restrictive trend to joint authorship leans toward imposing a higher standard of authorship for joint works than for single-author works. [...]higher standard for joint authorship is not justified by the CDPA.26 Simone attributes this tendency to a pragmatic instrumental approach adopted by courts where it is deemed more desirable to limit the number of authors in collaborative works.27 This pragmatic instrumental approach is disjointed from the core meaning of authorship in copyright law, i.e., contribution(s) of creative choices to the protected expression.28 Third, Simone notes a preoccupation of the judiciary to maintain aesthetic neutrality in its assessment of joint authorship.29 While some judicial restraint on the assessment of aesthetic merit is understandable given that copyright protection of a work does not depend on this criterion, it is difficult to ascertain (joint) authorship without some resort to aesthetic criteria, e.g, to determine what makes something literary, artistic, dramatic, etc? [...]Simone prescribes the adoption of a contextual approach to the joint authorship test by accounting for the social norms governing authorial groups to assess questions of facts in the test.39 This said, not all social norms are relevant to this exercise and resort thereto should be restricted to social norms based on their certainty, representativeness and policy implications.40 Resort to social norms is particularly important for the requirement of collaboration or common design, which should rely on the shared assumptions of the creators.41 Particularly relevant to Canada where case law diverges on the requirement of intention to be joint authors,42 Simone notes that while

In a brief submitted to the standing committee on industry, science and technology, 11 Canadian intellectual property scholars urged Parliament to maintain a balanced, distinctly Canadian copyright system that guards against external...

This in an introduction to the special Issue "Media and Communication Theory and the Regulation of the Networked Society" published by the international peer-review journal LAWS. The collection of articles builds on the interdisciplinary dialogue that took place at the University of Windsor (Canada) symposium on the regulation of digital platforms, new media and technologies in the fall of 2019. The articles of the collection explore the various effects of media and borders, networks, amidst pandemics and environmental crises, different understandings of regulation, and the particular challenges of interdisciplinarity as it connects to law and regulation. The collection gathers the works of several academics worldwide who reflect on some of the biggest questions and challenges of our time: how do transnational digital media platforms, algorithms and big data shape commerce, politics, speech and mobilization or resistance on pressing issues such as climate change, the pandemic, elections, racial discrimination or social justice? How do transnational digital platforms redefine the role of our governments, our everyday lives, the citizenry? How do governments, private undertakings, institutions and citizens resort to, or respond to, this ultra-mediatized networked environment? To what extent have national borders become obsolete in this networked global village? Building on the scholarship of Canadian media theorist Marshall McLuhan and others, as a point of departure to explore the regulation of new media, this Special Issue tackles several of these pressing questions in a post-colonialist, posttruth environment. Various theories about media, networks and borders at the intersection of law and regulation may better inform the goals that law and policy makers should pursue (or not). This is particularly timely as governments, private corporations and citizens around the world face unprecedented challenges with flows of (dis)information about the global pandemic, hate speech and environmental crises.

This article examines the legal and normative foundations of media content regulation in the borderless networked society. We explore the extent to which internet undertakings should be subject to state regulation, in light of Canada’s ongoing debates and legislative reform. We bring a cross-disciplinary perspective (from the subject fields of law; communications studies, in particular McLuhan’s now classic probes; international relations; and technology studies) to enable both policy and language analysis. We apply the concept of sovereignty to states (national cultural and digital sovereignty), media platforms (transnational sovereignty), and citizens (autonomy and personal data sovereignty) to examine the competing dynamics and interests that need to be considered and mediated. While there is growing awareness of the tensions between state and transnational media platform powers, the relationship between media content regulation and the collection of viewers’ personal data is relatively less explored. We analyse how future media content regulation needs to fully account for personal data extraction practices by transnational platforms and other media content undertakings. We posit national cultural sovereignty—a constant unfinished process and framework connecting the local to the global—as the enduring force and justification of media content regulation in Canada. The exercise of state sovereignty may be applied not so much to secure strict territorial borders and centralized power over citizens but to act as a mediating power to promote and protect citizens’ individual and collective interests, locally and globally.

This submission, made to the Canadian Competition Bureau's public consultation on algorithmic pricing, focuses on algorithmic personalized pricing (APP): the use of algorithms to set individualized prices based on consumers’ maximum willingness to pay. The authors argue APP represents a transformative shift in market dynamics. They analyze APP’s potential to facilitate first-degree price discrimination, and contend that the pursuit of this goal by firms, even if not fully achieved, raises significant concerns for consumer welfare, market transparency, and the normative foundations of competition law. The authors examine how well potential strategies used by firms to implement APP (collusion/coordinated competitor conduct, abuse of dominance, and deceptive marketing practices) are likely to fit within the ambit of Canada's Competition Act, particularly as recent amendments made important changes to the applicable legal frameworks. Noting that the precise ambit of the amended Act is not yet fixed, the authors argue that responding effectively to APP will require both creative interpretations of the new rules, and refined enforcement strategies and tools as competition law is adapted to a world where the incidence of algorithmic coordination and data-driven market distortions continues to increase, and with it, the erosion of consumer surplus. The submission concludes by advocating for public education, tailored enforcement guidance, and the development of consumer-side AI tools to counterbalance APP’s adverse effects on consumers and the proper functioning of competitive markets.