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"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

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.

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and the Internet of Things (IoT). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian, US, and international intellectual property law.In what follows, we explain:•The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, within the broader framework of the Constitution;•That the modernization of the Copyright Act requires a careful examination of the copyright framework within larger observable trends of dominant positions in the marketplace and anti-competitive practices, of the extraction of big (personal) data, and of market and legal infrastructures’ heavy reliance on non-negotiated standard form contracts;-That the growing prevalence of the IoT shows more clearly than ever before why Technological Protection Measures (TPMs) need to be recalibrated in keeping with the objectives of copyright, the Constitution, property rights, and of promoting competitive markets.As such, we recommend: -To narrow the scope of the TPM prohibitions under the Copyright Act, whereby the circumvention of access controls or copy controls for non-copyright-infringing purposes would be lawful, with a non-exhaustive list of such purposes to provide greater legal certainty. The same treatment would apply to the dealing in TPM circumvention technology enabling the exercise of non-copyright-infringing purposes.In the alternative, the Copyright Act should be amended to:-Introduce a new exception that would confirm that the TPM provisions (and other relevant exclusive rights in the Copyright Act) do not apply to the right to repair, including for maintenance and diagnostics purposes. -Introduce a new exception to encourage follow-on innovation. -Additionally, just as copyright holders should not be allowed to contract out of exceptions to copyright infringement through non-negotiated standard form agreements, neither should they be allowed to opt out of exceptions to TPM prohibitions by contract.

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law. In what follows, we explain:- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, consistent with a robust principle of technological neutrality.- The importance of ensuring that text and data mining (TDM) activity can be undertaken in Canada without the threat of potential copyright liability. We therefore propose both an opening up of Canada’s fair dealing doctrine to better accommodate TDM activities, and the enactment of a specific statutory provision to confirm that uses of copyright works and other subject matter for TDM (whether commercial or non-commercial) do not infringe copyright. - The importance of resisting calls to extend copyright protection to AI-generated outputs. We therefore propose maintaining and confirming the existing principled requirements of human authorship and original expression as preconditions of copyright protection, and we caution against any move to establish new neighbouring or sui generis rights in respect of AI outputs. Works generated by AI should remain in the public domain. As such, we recommend:- Enacting a broad statutory provision confirming that use of a work or other subject matter for TDM does not infringe copyright. This specific exception should be available to all users, apply to commercial and noncommercial uses, permit the retention and sharing of copies, and be protected from contractual override. - Amending section 29 of the Copyright Act to make the list of purposes an illustrative list (“for purposes such as”) and adding TDM or data/informational analysis as an enumerated purpose therein.- Confirming in section 2 of the Copyright Act that “author” means a human being/natural person; and confirming in section 5 of the Copyright Act that copyright shall not subsist in a work created without a human author.