Graham Reynolds

Associate Professor

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Graduate Student Supervision

Doctoral Student Supervision (Jan 2008 - May 2021)
The right to parody: copyright and free speech in selected jurisdictions (2018)

This dissertation examines the rights to free speech and parody by combining philosophical inquiries with legal analyses. Part One draws upon natural law theories to argue that the right to free speech is a universal right, and expressing oneself through parodies is an exercise of this right. It then discusses the nature of copyright from both natural rights and utilitarian perspectives, to illuminate how the right to parody copyrighted works is also a universal right that should be accommodated by copyright law. Regarding the scope of this right, because free speech is more fundamental than copyright, a broad legal definition of parody, which encompasses works targeting the originals as well as those that direct their criticism or commentary towards something else, is preferable to narrow definitions. However, parodies must not adversely impact the interests of rights holders by serving as market substitutes for the original works or their derivatives. Courts should also apply the parody defence or exception with reference to the free speech doctrine to ensure that lawful speech would not be suppressed for the sake or under the pretext of copyright protection.Part Two of the dissertation employs four case studies—the United States, Canada, the United Kingdom, and Hong Kong—to elucidate its arguments for a broad definition of parody and for courts to apply the parody defence or exception with reference to the free speech or freedom of expression doctrine. All four chapters explain how the free speech jurisprudences of these jurisdictions have been informed by the natural law, and how the proposed parody defence or exception would serve to bring their copyright jurisprudences, which have been influenced by utilitarianism, and/or a narrow conception of natural rights privileging the authors’ over the users’ rights, in line with their free speech jurisprudences. These studies also reveal the usefulness of the free speech/freedom of expression doctrine as an external mechanism in safeguarding parodists’ speech freedom. If this external solution would not be sufficient to protect free speech, then solutions within the copyright statutes would serve to create the needed breathing space for free speech.

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Master's Student Supervision (2010 - 2020)
How do the jurisdictions of India, Canada and the United Kingdom interpret the inventive step requirement for follow-on pharmaceutical innovation? (2020)

This paper looks at the three jurisdictions of the United Kingdom, Canada and India todetermine how each interpret the inventive step, for follow-on pharmaceutical innovation. Ananalysis of domestic statutes and case law, allows the stringency of approach to the inventivestep in each jurisdiction to be determined on a comparative basis. The paper provides thecomparison by utilising two differing benchmarks as a means to establish a lenient, versus astringent perspective. The stringent perspective is established from UN recommendationswhilst the lenient perspective is provided by a critical analysis of the recommendations byChristopher Holman et al.The first three chapters detail the approach taken by each jurisdiction respectively. This isachieved through extensive literature reviews and case law analysis. Through a comparisonof a dosage patent, which was challenged before both the Federal Court of Appeal and theUK Supreme Court this paper reveals the similarity in approach between the UK and Canada’sinventive step inquiries. The comparative nature of this paper further establishes thestringency of application in India, through a step by step, comparative analysis of the inventivestep inquiries.The potential consequences of the stringent approach in India and the comparatively lenientapplications in Canada and the UK, are established through summaries of key debates in thisarea. This includes ethical debates such as the vital ‘innovation v accessibility balance’, thecontroversial ‘lifecycle management plans’ and Erooms law. In order for these key concernsto be adequately accounted for, unnecessarily strict standards for the inventive should not beapplied. It is established that an emphasis on flexibility in approach to the inventive stepinquiry, as is beginning to emerge in the United Kingdom, is an appropriate first step towardsan inventive step inquiry which is capable of accounting for these crucial concerns.

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What role for copyright in podcasting?: a study of crowdfunding and advertising models in an emerging medium (2019)

Podcasts are a relatively new form of media which have grown immensely in profile and popularity in recent years. From the standpoint of copyright scholarship, however, one characteristic of podcasting stands out: despite being protected by copyright, podcast episodes are largely released for free. On one influential theoretical account, copyright’s purpose is to provide creators and publishers with a financial incentive to produce and distribute works. In particular, the exclusive right to reproduction allows the copyright owner to sell copies of a work without being undercut by competitors who could sell the work at a lower cost. The free distribution of podcasts may present a challenge to this “copyright-as-incentive” model and further raises the question of how podcast creators make a financial return in the absence of selling copies.With this in mind, this thesis will consider the following two-part research question: How do podcast creators make a financial return on their work without excluding non-paying users, and what role if any does copyright play in realizing these financial returns? This thesis will establish a theoretical framework based on Nicolas Suzor’s concept of abundance models. Next, a legal analysis of Canadian copyright law will show that podcasts are in fact protected by copyright. With the relevant copyright law and theory established, this thesis will use a study based in content analysis methods to generate data on how podcasts make money. This study will focus on non-exclusionary alternatives to funding creative work such as advertising and crowdfunding, as well as evidence of the use of copyright.The data gathered for this study confirm that all of the surveyed series had free episodes available. Despite existing copyright law protecting podcasts, the study showed little evidence of the use of copyright by podcast creators. This study does not indicate why creators are choosing to make their work available for free. But if abundance models based around crowdfunding and advertising are more effective for podcasts than selling copies, this complicates the utilitarian theory proposition that “copyright incentivizes creativity” and suggests that copyright is insufficient as the only or primary creative policy lever.

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