Your search

"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

Claiming that the criminal justice system fails to effectively prohibit protest and civil disobedience, corporate lawyers embrace the pervasive use of injunctions and contempt of court charges in struggles over resource extraction in British Columbia, dubbing this approach the “new normal.” Yet even a cursory review of protest policing in Canada reveals that state intervention in resistance movements is alive and well and that Indigenous peoples and allied social movements are made subject to repression, surveillance, and criminalization through the mechanism of injunctions and contempt, among other legal tools. Based on my direct experience with injunctions and contempt in BC as an activist legal support organizer and a settler ally, this article argues that the reliance on injunctions by extractive industries embroils the courts and police in struggles over public and/or collectively held lands and resources that are nonetheless constructed by the law as private disputes, largely insulated from the reach of constitutionally-derived Aboriginal rights. After tracing the long history of BC’s “injunction habit,” I examine the judicial and policy practices that make the “new normal” claim possible—and show how it is ultimately not accurate. As crucial tools in the legal arsenal of settler-colonial states, injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance, facilitating access to resources and lands and easing the operation of extractive capitalism.

Volume 51, Issue 1

This study analyses interviews with frontline service workers employed in agencies in Windsor, Ontario, Canada who work with persons without immigration status. Through these interviews, frontline service workers provided insights into their work with persons without status, including the significant barriers to effective service provision requiring 'covert practices' as part of their work. The interview subjects ultimately conclude that an access without fear (AWF) policy would indeed bolster their efforts to work with persons without status, buttressing claims that an AWF policy can be a useful tool to support the basic needs of persons without status. However, the interviews also raise questions about how the law is understood by frontline service workers and the very real potential that AWF might be yet another unmet promise. Underlying these interviews were also questions of trust and relationship-building that re-emphasise both the need and limitations of policy.

This article is about two ideologies. Welfare-consequentialism holds that government should adopt the policies that can rationally be expected to maximise aggregate welfare. Populism holds that society is divided into a pure people and a corrupt elite, and asserts that public policy should express the general will of the people. The responses of world governments to the coronavirus pandemic have clearly illustrated the contrast between these ideologies, and the danger that populist government poses to human wellbeing. The article argues that welfare-consequentialism offers a vaccine for populism. First, it rebuts populism’s claims about who government is for and what it should do. Second, the pessimism and distrust that make people crave populism can be satiated by successful welfare-consequentialist government. Finally, welfare-consequentialism’s sunny narrative of progress can be just as compelling to people as populism’s dark story has proven to be.