Avant Garde | MARCH 2022 | Volume 2, Issue 3
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LINCOLN ALEXANDER SCHOOL OF LAW
IN THIS ISSUE:
Protecting the Yintah: Wet'suwet'en Land Defenders vs RCMP
BY MIRA SETIA, 2L, Editor-In-Chief
Since time immemorial, Wet'suwet'en territory has been called “yintah”, which is a Wet'suwet'en expression meaning “earth” or “land”; but more specially “territory”. The connection this British Columbian Indigenous community has to their land and the Wedzin Kwa River is traditional and sacred. However, this relationship is being threatened by TC Energy’s oil pipeline and the Royal Canadian Mountain Police (RCMP).
Since 2019, tensions have been high in the Wet'suwet'en territory in Northwest British Columbia due to the federal government’s Coastal GasLink pipeline (“pipeline”) project. If completed, the pipeline would carry two billion cubic feet per day of fracked gas from northeastern BC to the proposed processing facility. Environmental concerns run deep at the heart of this issue; however for the Wet'suwet'en peoples, this conflict is much grander as it is about Indigenous sacred land and sovereignty. TC Energy claims it has received the necessary permits and approvals to build their pipeline, but the Wet'suwet'en hereditary chiefs have not approved of this. Rather, the Wet'suwet'en nation opposes the pipeline project, as it threatens the sanctity of their natural resources and territory; and the lack of consent threatens Wet'suwet'en sovereignty. As a result, this conflict has led to months of land defender protests, court injunctions, RCMP involvement and a Canada-wide solidarity movement supporting the Wet'suwet'en peoples.
The tensions within Wet'suwet'en nation itself, between the elected and hereditary governments, have added to this dispute; as TC Energy created “benefit agreements” with elected council members and gained approval from multiple reserves within the territory. However, because the hereditary chiefs have not approved of the pipeline, Wet'suwet'en land defenders have been protesting in encampments on the pipeline’s drill pad site – which, if drilled, would invade and pollute the sacred Wedzin Kwa River – and have created blockades on various construction sites and the neighbouring Gidimt’en territory. This is all aimed to disrupt construction workers from building the pipeline.
Since political discussions have not been productive, and after this long process of injunctions and protests, the government had decided to bring their well-known tactic of use of force to the forefront. Millions of Canadian taxpayer dollars are being used to fund RCMP’s aggressive tactics and raids against Wet'suwet'en land defenders. The Wet'suwet'en territory is now being overpoliced by the RCMP in aims of removing the blockades and aiding the pipeline’s construction. Throughout this process – and in planned and executed raids in December 2021 and January 2022 – journalists, land defenders and hereditary chiefs have been met with aggression and have been arrested. The RCMP has had a difficult history with the Indigneous community; and videos of these raids and violent tactics against the Wet'suwet'en land defenders have gained international traction – in as much as to inspire nation-wide solidarity movements and protests.
Nonetheless, there are two sides to this conflict. On one hand, the federal government and TC energy and its workers are trying to complete their pipeline project safely and with cooperation. On the other hand, the Wet'suwet'en nation is trying to protect and defend their sacred land and sovereignty against environmental harm and federal intrusion. But no matter which side of this issue you stand on, one cannot deny that the abuses and raids by the RCMP cross a line, and continue on the federal government’s legacy of historical oppression and violence against the Indigenous population.
Many Indigenous communities have been silenced in the past, and continue to be systemically silenced today; but not Wet'suwet'en. The Wet'suwet'en nation will continue fighting to protect their sacred river, and their voices will continue to be heard across the country. This conflict will continue in the courts and within the territory, and we do not know what the result will be. However, we do know that the Wet'suwet'en peoples will protect their yintah by any means necessary; and Canadians across the country will support.
Anne Spice, The Language of Dispossession (2022), online: Peeps Magazine <https://peepsmagazine.ca/the-language-of-dispossession/#content_1>
iPolitics, Net Zero: Legality of RCMP Raid of Wet'suwet'en Debated (November 2021), online: iPolitics <https://ipolitics.ca/2021/11/29/net-zero-legality-of-rcmp-raid-of-wetsuweten-debated/>
Mark Armao, The Wet'suwet'en pipeline conflict is heating up. Here's why (November 2021), Online: National Observer <https://www.nationalobserver.com/2021/11/18/news/climatedesk-canada-supports-pipeline-violation-wetsuweten-law-well-its-own>
Brand Protection in the Metaverse
BY DENA PAPAIOANNOU, 2L
Last month, OpenSea, a popular NFT marketplace, tweeted that over 80% of the NFT’s listed on their site, that were created through the free service they offer, were plagiarized, fake, and/or spam works. This percentage does not come as a surprise to creators and rights holders who have seen an abundance of unauthorized copies of their work popping up on different digital platforms in recent months. Given the heightened buzz around the metaverse and NFT’s, many fashion brands are attempting to protect their intellectual property as they grow their digital presence.
What is the Metaverse
To begin, the metaverse can be defined as a persistent virtual universe. It continues to exist even when users are not directly accessing it. While in the ‘metaverse’, users can connect with virtual environments, other users and even brands. It essentially refers to a shift in the ways in which we interact with technology.
Fashion brands have been interacting with the metaverse in different ways, whether it be to sell exclusive virtual clothing or used as a platform for promoting real-world products. In the past year, Gucci hosted “Gucci Garden”, which was a virtual experience in collaboration with Roblox, a popular online gaming platform. In this virtual experience, users' avatars were able to try on and purchase digital Gucci items as they made their way through themed rooms. During this experience, Gucci gave a user a limited edition digital version of their Dionysus bag. The digital version of this bag later re-sold for over $4,000USD, putting it over the price of a physical Dionysus bag.
How are brands protecting their IP rights?
While laws surrounding intellectual property protection were not created with the metaverse in mind, there are still structures in place which allow rights-holders protection against infringers. The easiest way for brands to protect their trademarks in the metaverse is to file trademark registrations for virtual goods. Larger brands including Nike, Gucci, and Converse have filed trademark applications with the United States Patent and Trademark Office and the Canadian Intellectual Property Office. These registrations refer to Nice classes 9, 35, and 41, which protect downloadable virtual goods and online entertainment services. Since there have already been instances of third parties filing trademark applications for the marks of famous brands in association with virtual goods, in an attempt to stake their claims in these marks before the actual brands do themselves, rights-holders need to be quick to register their trademarks.
Besides this initial stake in the ground, rights-holders can also subscribe to trademark watch services and work directly with marketplaces once they find an infringement has occurred. This often takes the form of reporting intellectual property infringements on NFT marketplaces through takedown requests. It is important to keep in mind that while large brands have the funds to keep up with this constant game of catch-up being played against infringers, smaller brands do not have as many resources they can easily expend. With the speed at which infringing NFT’s are becoming available on marketplaces, it is becoming increasingly challenging for any rights-owners to keep up. This is concerning given the irreversibility and permanence of NFT’s that have been made available on marketplaces.
Hermes v. Mason Rothschild, “MetaBirkins”
BY BRYN COPP, 2L
In one of the first blockchain legal battles, Hermes sues MetaBirkin creator, Mason Rothschild, for selling virtual fuzzy interpretations of the French house’s exclusive Birkin bags as non-fungible tokens (“NFTs”). In November 2021, Rothschild introduced 100 MetaBirkins and launched an Instagram account linked to the NFTs. All NFTs were launched and sold on the platform OpenSea. He first began advertising the NFTs under the MetaBirkin trademark on December 2, 2021, at Art Basel in Miami, Florida. Rothschild offered the NFTs for sale under the MetaBirkin trademark to users via a smart contract on the OpenSea marketplace.
Hermes served Rothschild with a cease and desist order, resulting in MetaBirkins temporary suspension from OpenSea. In May 2021, Rothschild launched a single "Baby Birkin" NFT in collaboration with Eric Ramirez. The NFT illustrated a 40-week-old fetus growing in a transparent Hermès' Birkin bag and sold for roughly $47,000. In that case, Hermès didn't contact the authors to complain about the NFT, as that was an isolated event. Rothschild claims that his MetaBirkins are original artworks adjacent to his previous collaboration with Eric Ramirez.
After receiving Hermès' letter, the artist added a disclaimer on his site stating: "We are not affiliated, associated, authorized, endorsed by, or in any way officially connected with HERMÈS, or any of its subsidiaries or its affiliates. The official HERMÈS website can be found at www.Hermès.com." On his Instagram, he posted saying, “The First Amendment gives me every right to create art based on my interpretations of the world around me (…) MetaBirkins is a playful abstraction of an existing fashion-culture landmark. I re-interpreted the form, materiality and name of a known cultural touchpoint. MetaBirkins are also a commentary on fashion’s history of animal cruelty and its current embrace of fur-free initiatives and alternative textiles."
Hermes launched a trademark lawsuit (Hermès International et al. v. Mason Rothschild*). Rothschild is accused of trademark infringement, false designation of origin, trademark dilution, cybersquatting, and injury to business reputation and dilution under New York General Business Law.
This case considers important questions about blockchain legal battles and smart contracts in luxury products, specifically related to ownership and damages. NFTs are stored on the blockchain and records cannot be altered once they are entered. If an NFT of an already-sold MetaBirkin becomes inaccessible, the owners of the individual NFT would be damaged. We must ask, for example, is it legal to go after folk who bought a MetaBirkin, if the NFT in question is not actually a picture of a bag infringing someone’s copyright, but rather, a smart contract and lines of code on the blockchain ?
“This is a battle for ownership of luxury in the metaverse,” says Susan Scafidi, academic director of the Fashion Law Institute at Fordham University. “In the virtual world, we can’t rely on claims of scarcity and quality in the same way, and we’ve found a way to create artificial scarcity for what is essentially a digital image via NFTs” (Surface Mag).
Bill 27: Ontario’s Earnest Effort to Empower Workers
BY NAIME ISAJ, 2L
The increased adoption of remote working arrangements for employees in Ontario is no surprise following the mass transition to working from home that we have experienced in the past two years. Increasingly, employers have come to terms with providing remote working arrangements going forward as a response to increased advocacy by employees demanding more flexibility – a movement that has transcended industries. Ontario’s introduction of employee-friendly legislation seeks to respond to not only the shift in working arrangements, but also as a response to the need to protect temporary help agency workers.
A significant amendment impacting employees includes the “Right to Disconnect from Work” affecting all employers with 25 or more employees. Presently, the Employment Standards Act, 2000 (“Act”) recommends that employers consider drafting workplace policy that governs expectations in the event an employee is working outside of regular hours. Critics of this approach have highlighted that the legislation should be strengthened by outlining consequences for failing to enforce these changes – a solution that would integrate a much-needed enforcement mechanism to secure employee rights. It is unclear whether there is a possibility for this legislation to prohibit work outside of regular work hours, which is a consideration that will be addressed in guidelines expected to be issued throughout 2022.
Additional amendments proposed by Ontario’s Bill 27, the Working For Workers Act, 2021 may also have considerable implications regarding enforceability of non-compete clauses – a potential shift that could see courts looking favourably on non-compete clauses given amendments governing its application. The expectations applied against these clauses have historically involved meticulous drafting that include reasonable restrictions with requisite carve-outs that address the territory and duration of the non-compete clause. Alternatively, the amendments have specified that there is an exemption available to employers which allows them to protect their business interests by relying on the ability to apply non-competition clauses against senior or executive personnel. It is unlikely that these amendments will expose employers to appropriation of their business interests due to the fact that tools such as non-solicitation and confidentiality clauses are still available for inclusion in employment contracts. Although these tools are still available, employers remain subject to an expectation of reasonableness, which ultimately ensures that employees are not negatively impacted.
Despite the shaky enforcement regime underlying Bill 27’s amendments, workers will be relieved to know that any breaches are still subject to enforcement mechanisms prescribed under the Act. The buzz around significant expansion of worker’s rights initiated by these amendments has fostered a sense of optimism for the future, especially in the changing landscape in the world of work.
A 1L Read of the Charter
BY GRACE GODDEN, 1L
Have you ever read the Canadian Charter of Rights and Freedoms? I know, it sounds like a rhetorical question. But it’s not. I ask because there seems to be a recent obsession with individual rights in Canada and I am genuinely curious about where people are getting their information. I am, by no means, claiming to be an expert on the topic; rather, after just wrapping up my 1L Constitutional Law class, I thought I’d share some of my observations about what the Charter actually does.
One: Yes, You Have Rights
The Charter is an integral aspect of Canadian society. It is, arguably, one of the most important documents in the country, as it outlines–in clear and plain language–the rights and freedoms that people have as Canadian citizens. Since being incorporated as Part 1 of the renewed Constitution Act of 1982, Canadian citizens have been empowered with rights and freedoms that are expressly protected from arbitrary and unjustifiable state action. Some of the most common–and contemporarily relevant–examples are the s.2(b) freedom of thought, belief, opinion and expression and the s.7 right to life, liberty and security of the person.
Two: But, These Rights Can Be Limited
For anyone seeking to mobilize a “rights”-based argument to justify a behaviour and remain protected from state interference, it would be in this person’s best interest to familiarize themselves with s. 1. The opening words of the Charter and its promise remind Canadian citizens that the rights and freedoms it embodies can be subjected to “reasonable limits” if those limits are “demonstrably justified in a free and democratic society”. Section 1 is explicit in its message: your rights and freedoms are not absolute, and they can be constrained if democratic society sees fit.
Three: Plus, Rights Come With Obligations
It is also worth asking the question: where do my rights come from? This answer is quite simple; the Canadian state promises you your rights and freedoms in exchange for your belief in democratic organization and justice. As such, the Charter is really just the Federal government’s way of saying, “Hey! If you respect my authority as your elected body to keep Canadian society organized and functioning, I promise to be mindful of my actions so they do not unnecessarily transgress on you and your being.” While the Charter reminds us that we are empowered to be individuals in society, it also reminds us that our rights are relative and that, as individuals, we are all connected. Canadian society works because we trust that each individual is ascribing to a social contract that trusts in democracy to do its job to balance all the conflicting beliefs and opinions in society. In a very broad, functional sense. This is not to say that we are perfect. In fact, I believe there are many areas for improvement, and I do not mean to discredit the many challenges that various ‘Canadians’ experience and the efforts that are underway to make Canada more equitable and hold our governments accountable.
Four: So, Your ‘Rights’ Cannot Infringe on Other People’s Rights
A true understanding of your rights and freedoms as a Canadian citizen revolves around the understanding that not every individual can be catered to all of the time. The exceptions outlined in s. 1 exist to give the government the power to balance individual expression, practice and action with the greater good of society. So, it is not about whether your beliefs are right or justified, it’s about the practical limitations of the Canadian social contract. If everyone’s rights were unlimited, we would not live in true freedom; rather, we would live in anarchy.
The recent waves of the Covid-19 Pandemic seem to have produced a new side effect: “my rights” activism. While political engagement is essential to improving society and keeping those in power in check, the individualist nature of this general movement demonstrates a fundamental misunderstanding of being a Canadian citizen and, subsequently, one’s Charter privileges as a Canadian. No matter how loud you shout (or honk), or how long you protest (or party), you cannot expect to succeed on an argument that is ignorant of the reality of your social contract.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.
2022 Olympic Games: Court of Arbitration for Sport Steps
BY DANIEL PIGNATARO, 2L
The 2022 Winter Olympics are taking place in Beijing, China for the second time in the last 15 years, but most of the action is taking place outside of the arenas and the slopes.
All eyes have been on Russian figure skating prodigy Kamila Valieva during the games after a controversial ruling allowed her to continue to compete, despite testing positive for trimetazidine, a drug used to treat angina prohibited by the World Anti-Doping Agency (WADA). Valieva, who is only 15, made history at this year’s event, becoming the first woman to land a quad jump, leading her team to a gold medal.
Valieva tested positive for trimetazidine on December 25th, 2021 at the Russian national championships, but her team ultimately allowed her to compete in Beijing. Following her gold medal win in the team event, her test was flagged by a lab in Sweden and the International Olympic Committee subsequently canceled the medal ceremony, citing a “legal issue”.
The matter was brought to the Court of Arbitration for Sport (CAS), an international body that determines sports disputes. It was decided that Valieva would be able to continue to skate during the Olympics, despite results confirming she had been involved in doping.
This isn’t the first major doping scandal in the sports world within the last year, as Sha’Carri Richardson, an American sprinter, was banned shortly before the 2020 Summer Games in Tokyo, Japan after testing positive for Cannabis. The difference, according to the International Olympic Committee (IOC), was timing.
“Every single case is very different. She (Richardson) tested positive… quite a way ahead of the Tokyo Games”, said IOC spokesperson Mark Adams, during a news conference to discuss the CAS ruling.
Richardson, who was unable to race in the Summer Olympics following her positive test, voiced her concern on twitter and sparked widespread debate within the sports world concerning the latest CAS ruling.
However, the decision came down to more than just timing. Valieva, a minor, is said to be a “Protected Person” under the World Anti-Doping Code (“WADC”); and the ruling cited “irreparable harm” to her career as a reason for allowing her to skate. In its decision, the CAS explained that the Panel considered “fundamental principles of fairness, proportionality, and the relative balance of interests” when determining its ruling.
This is also not the first time a Russian athlete has been found to be using banned substances during the Games. Following a finding of a state-sponsored doping scheme ahead of the 2014 games in Sochi, the country’s name, flag, and anthem were banned from the Olympics by the IOC. Russian athletes not connected to the initial scandal have been able to compete under the “Olympic Athletes from Russia” banner since 2018.
Valieva’s doping case will likely be the subject of further debate, as the IOC will likely consider revoking the Gold medal she has won due to her positive test coming to light. Should the Russian team be stripped of their medal, the Canadian figure skating team will claim bronze, after finishing fourth in the team event.
"Kane" You Believe This: A Deep Dive on the Controversial Evander Kane
BY BRIAN HADDAD AND JOEL PERERA, 2Ls
You do not need to follow hockey to truly appreciate how wild Evander Kane’s life has been recently. Let us walk you through a quick recap:
May 24, 2018: The San Jose Sharks sign Evander Kane to a seven-year deal worth $49 million USD.
November 1, 2018: A woman referred to as Jane Doe sues Kane, alleging that Kane offered her $3 million USD to abort their baby. Doe and Kane agreed to multiple abortions in the past, but Kane offered $3 million to ensure she recieved this one. Kane told her that he was not going to pay her after she got the abortion.
November 6, 2019: Kane is sue
d over an unpaid gambling debt worth over $500,000 USD by a Las Vegas casino.
January 11, 2021: Kane files for bankruptcy with $26.8 million USD in debt.
August 3, 2021: Several teammates say they do not want Kane back on the team and that he was difficult to deal with during the season.
September 22, 2021: Anna Kane (Kane’s ex-wife) files a restraining order which includes sexual assault and domestic battery allegations against Kane.
October 18, 2021: The NHL suspends Kane for 21 games for submitting a fake proof of COVID-19 vaccination card.
January 9, 2022: The San Jose Sharks terminate Kane’s contract for travelling outside the country while testing positive for COVID.
January 27, 2022: The Edmonton Oilers sign Evander Kane to a 1-year contract worth $1.375 million USD for the rest of the season.
But was San Jose allowed to terminate Kane’s contract? The NHL Players Association (NHLPA)—a players union of former and current NHL players—did not think so, as they immediately challenged the action and filed a grievance on Kane’s behalf.