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