Graham Reynolds

In 2011, the Korean fair use provision, based on US fair use model, was introduced into the Korean copyright system. Since its adoption in the Korean Copyright Act, however, it has not been significantly relied upon by the courts of Korea. This thesis takes the position that strong and robust fair use is necessary in order to fulfill the purpose of Korean copyright law, which is to progress culture by protecting copyright and promoting the fair use of copyright works. Fair use could serve as a tool to attain a balance between these interests. Furthermore, fair use is particularly important in the digital era to ensure the copyright system can adapt to rapid technological changes. Given this standpoint, the aim of this thesis is threefold: First, to identify the US fair use’s incompatibility with Korean copyright law as a problem of Korean fair use. Second, to explore whether another model – mainly Canada’s fair dealing defense – may be more compatible with Korean copyright law. Lastly, to provide suggestions for increasing the widespread use of fair use in Korea by enhancing legal certainty and ensuring appropriate flexibility. These suggestions will cover the revision of the legislation, the role of the Courts, and legal experts, highlighting the significant role of fair use doctrine. To this end, this thesis will rely on the legal transplant theory. First, the process of legal transplant of US fair use into Korean copyright law will be assessed from the perspective of legal transplant theory. The thesis will argue that the failure to account for the necessary considerations during the transplantation of US fair use has resulted in a lack of balance between certainty and flexibility in Korean fair use. Second, the thesis will analyze the cultural and historical context of Canadian fair dealing to examine its compatibility with Korean copyright law. Lastly, this thesis will offer recommendations for Korean fair use in the context of successful legal transplant.

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From time immemorial, developing countries have used biodiverse genetic resources as drugs, food, and treatments. In the 1980s, bioprospecting became the new “gold rush.” Developed countries targeted developing countries rich in biodiverse resources and collected genetic resources in most cases without informed consent or benefit sharing agreements. The illegal collection and use of genetic materials (including human genetic materials) led to outcries of biopiracy from developing countries. This biopiracy continues today.Some international laws were passed to regulate bioprospecting. The Convention of Biological Diversity (CBD), which entered into force in 1993, was the first international law to regulate bioprospecting. The Bonn Guidelines were passed in 2002 to regulate the implementation of the CBD. In 2010 the Nagoya Protocol to the CBD was passed to protect the traditional knowledge of Indigenous peoples. These regulations have two significant shortcomings. First, the current law does not address the bioprospecting of human genetic materials. Second, the law does not address misappropriation through patents. This work will address these issues. Using doctrinal and comparative research methodologies, this work will reach the following findings. First, bioprospecting applies to human genetic materials through population studies of targeted developing and Indigenous communities. Second, there are no laws to regulate the bioprospecting of human genetic materials. Third, the current national and international laws do not address the challenge of patent misappropriation. Fourth, the main proposal debated by developing countries is the “disclosure of source of origin’ requirement. Lastly, the enforcement of the disclosure requirement is unharmonized; there are disagreements on what to disclose, how to disclose, and how to infuse the disclosure requirement into patent laws.Ultimately, this work proposes to address the problem of misappropriation of human genetic materials through patents by re-imagining aspects of the TRIPS Agreement. In building this argument, it will rely on both critical IP theory and theories of new constitutionalism.

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Individuals today create works that outperform their qualitative and quantitative capacities, thanks to generative models such as DALL-E and Midjourney, and sometimes even win awards with these works. These intelligent technologies – incorporated by many into their creative endeavours – throw into question the boundaries of copyright law, built as it is upon human creativity. The unpredictability and autonomous behaviour of AI technologies challenge many of the traditional paradigms of legal systems. The European Union has reacted to these fractures by publishing two Proposals for the AI Act and the AI Liability Directive. The Proposals sketch out a proportionate and future-proof framework for the legal protection of these technologies; but also leave many questions with respect to copyright law unaddressed. This thesis helps to fill this legal gap by analyzing the position of AI-generated works in the EU copyright system, and in so doing, contributes to the European policy-making process. This research comprises five chapters. Chapter One begins with the introduction to the research question. Chapters Two and Three outline the relevant aspects of AI technologies and Union law, respectively. Chapter Four assesses the compatibility of a number of protection models for AI-generated works within the EU copyright system, analyzing whether these technologies can dethrone the human creator, who is at the center of this system, and discard her from the creative process. Under the European copyright system, the author stamps the works with her personal touch, the protection period is based on her life duration, and moral rights are extensions of her personality. This chapter interrogates how the ‘author’, the protagonist of copyright law, can disappear in the creative process, as well as how the concepts of ownership and neighbouring rights could correspondingly evolve. Chapter Five, finally, highlights the need for reform in the legal framework for AI-generated works. It suggests that a sui generis neighbouring right regime would provide much needed transparency and proportionality for AI-generated works, which are, in fact, already a part of copyright systems without explicit acknowledgment of the AI contribution.

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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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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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The most expensive keywords in Google AdWords by average cost-per-click in 2015 was “mesothelioma attorneys tx” priced at $272.00. Keyword advertising is a lucrative business for advertisers and search engines. This thesis will contribute to the academic discussion on unauthorized trademark use in keyword advertising in Canada. Third party advertisers are bidding on competitors’ trademarks without authorization to trigger their sponsored advertisement when the keyword is included in a consumer’s Google search. Trademark infringement has been alleged against Google in the United States and the European Union for the role played by Google AdWords. Canadian trademark law received the first case on keyword advertising in 2015. Keyword advertising is a rapidly developing field: but deep uncertainties remain for the ideal scope of keyword advertising and the ability of ss 19, 20 and 22 of the Canadian Trade-marks Act to provide what will be argued as the ideal scope of keyword advertising. In this thesis I argue that the proper scope of keyword advertising is to prohibit the unauthorized bidding on registered trademark keywords and non-comparative phrases. A doctrinal analysis will be conducted of the current interpretation of ss 19, 20 and 22 of the Canadian Act to determine the extent to which those provisions can provide the ideal scope of keyword advertising. The key issues addressed are trademark use, a likelihood of confusion and depreciation of the value of goodwill of a trademark. A comparative analysis of case law and legislation from the United States and European Union pertaining to trademark use in keyword advertising will supplement the discussion of the Canadian law where there has been a lack of judicial opinion on the subject matter. Based on the current interpretations of ss 19, 20 and 22, it is unlikely that the provisions will provide the ideal scope of keyword advertising. Therefore recommendations to reform the Canadian Trade-marks Act will be set out to address the gaps in the law. The recommended legislative reforms will also include a provision on the extent of search engine liability for unauthorized trademark use in keyword advertising.

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