 This whole idea of virtue ethics as a way of informing both property and intellectual property has been percolating in my mind since I did my D. Phil. And it's so I have to I have to give you that context there when I was working on my D. Phil way back at the other place as you'd like to call it here. There were a lot of I used to be a bit of a philosophy junkie so while I was in while I was doing my D. Phil in law I would go to lectures by Bernard Williams and fill up a foot. These great Oxford analytic philosophers who were working in the Aristotelian tradition. So there were lectures on Aristotle, lectures on virtue and that sort of thing. And it had an impact on my work. At the time I wrote my thesis I had to create a neologism in the title of my doctoral thesis that tried to capture what I thought were non-rights based elements of property. I was doing my thesis with with the late Jim Harris in property theory and couldn't find a word for what I was trying to articulate. Graduated from Oxford left started teaching at McGill started teaching property left this side because it didn't seem to it didn't seem to resonate with any publishers. But did resonate with my students. And then all of a sudden the whole term virtue ethics began to be used sort of around the year 2000. And so for about the last 10-12 years there's been a new virtue ethics school based on the writings of Philip a foot and Bernard Williams and others Iris Murdoch. And so now I have terminology you know I have a and so now it's time to come back to it. It's time to come back to it because there are people working in the field. And I've also discovered a community of property scholars in particular which Kevin Gray is a part still called social obligation school or progressive property types. We meet at least once a year and now it seems that there's a community of people out there who are thinking about property in the same way that I've tried to think about it. And increasingly a group of intellectual property scholars who are also thinking about property in these various ways. So people like Michael Madison, Madhavi Sundar, Anapam Chander and a number of other people particularly again in North America. So the time is ripe to put together put together my thoughts and put together a book. So again this is at the beginning stages it's been delayed for a bit for a variety of different reasons. But I do hope to begin to put start streaming chapters together as early as early as the next few weeks when in theory I have to write what will become chapter one but as part of another collection. So my goal here is just to introduce you to this way of thinking. In this case about intellectual property. And I'll make a few comments to show how I would extend it out to property as well. This was part of a more sprawling lecture so I'm going to skip a lot of the slides but I'll make the slides available to anybody who they're on this computer but I can send you a copy on that screen. There were a number of different parts to the lecture. The first part was about what's wrong with copying. It's copying so bad. The second part went through a backgrounder with respect to copyright which Lionel Bentley's in the room. I don't need to do it here. You can just ask Lionel. And then the third part moving into what virtue ethics might add. So I'll do the first part just because it's fun and then I'll go to the last part. So copying always wrong that was the first question. So is copying always wrong even if an intellectual property copyright act or the Statutovan or other the US copyright act tells us it's wrong. We see the term piracy being used by the recording industry for both exact copying and what Americans call derivative works under their statute. We see the term being used by the big copyright entities of the day such as Disney and we see media campaigns before films and that sort of thing that try to tell us that that taking a song or taking a film is the exact same as doing a car. So let me give you seven examples from the realm of copyright and in part and my first two slides are courtesy of Michael Madison. This is Van Gogh copying Millet. An example that I think some of you know about. You've probably all heard of Van Gogh. Some of you would have heard of Millet as well. It was a realist painter of the previous century. Millet is on the left, Van Gogh is on the right. Van Gogh took roughly 21 paintings. 2021 paintings by Millet and repainted them. Almost exactly, but not quite. The realist is on the left. Van Gogh's style of post-impressionist work is on the right. Very different paintings. There's a different kind of expression in Van Gogh's painting. Even though it's the same subject matter and the same color and light and all the rest of it. Another example. Shearing sheep again. Millet on the left, Van Gogh on the right. Some more differences in light with both color here as well as the obvious difference between a realist and a realist painting and Van Gogh's expression of the same subject. In his letters to Theo, his brother, Van Gogh said he was translating Millet for another audience. And made reference to the educational function here that he was performing. If, you know, in the world we currently live in, this would have been a copyrighted picture in 1852, 1889. The world we currently live in, this would have been a copyrighted picture. Famous American case of Art Rogers and Jeff Koons, which a number of you may have at least read or studied. Art Rogers' photographer took this black and white photograph, which he put a label on Jeff Koons. But he's always in the paper for some controversy or another including a couple of weeks ago. Jeff Koons buys this in the hotel lobby. It's a black and white postcard. Bys is a hotel lobby. Sends it to his artisans in northern Italy. And they make a three-dimensional buttered yes and painted. It was made out of wood, card, one on the right of the painted. Adds the color, adds the flowers on the ears and on the puppies' noses. But continually instructs his artisans to copy it exactly, right in the nose. Please copy it exactly. Please copy it too far from the picture. Copy it exactly. Art Rogers finds out about it. Suze Jeff Koons. The Americans in their Copyright Act have something called Derivative Works. So it isn't just, as in the Anglo-Canadian tradition, you just compare copies, quantity and quality. There's an additional test that one work is derived from the other. And that fell under this category. Koons argued that this was fair dealing, that he'd create a fair use. He'd created a new work. Indeed, he said he was trying to create, this was a parody. And the beauty of parody is that it inverts the idea of expression by Cotomi, right there. We traditionally think about a copyright. We use, usually there are multiple expressions in the same idea. With parody, you have the same or a similar expression of widely different ideas. In this case, Koons' argument was he was trying to represent the banality of everyday life. And indeed, this Bahayev formed part of a series of seven Bahayev, which were part of something he called the Banality Show. He lost. He lost on the fair use arguments and the parody arguments, although most academic commentators in the United States think this was wrongly decided. He won on other cases, but he lost on this one. He's a controversial figure. He made a lot of money selling this work. He's not well liked in the artistic community, at least by everybody. He's liked in other quarters. Did he do something wrong? Is this a new work? Is it a justified copying? At least the American Copyright Act, as this court has interpreted. I think it was the Second Circuit, the Federal Court of Appeals, said it was wrong. Third example, famously, the Obama Hope poster, which Shepard Ferry, another controversial post-modern artist in the United States, took from an Associated Press photograph. We don't know the outcome of this because part of the terms in the settlement was confidentiality, but we can imagine that either Ferry had to pay something and then divulge a percentage of it for a sale, or it just has to do the latter. We don't know the terms, but at the very least we know that money is going from Ferry to Associated Press for the use of the photograph. Associated Press has a certain mission in terms of news reporting. Is the poster a new work? Does it do something different? Is it the same as the photograph, even if it was, in a sense, copied from the photograph? Same question. Maybe legally wrong, is it wrong? Another example, sorry about the overkill, this one really gets me angry. I don't know if you know about this case. Gaylord against the United States. Gaylord is the sculptor who was commissioned to sculpt the memorial for the Korean war veterans on Washington Mall. Very powerful work as all of the various monuments in Washington Mall are amazing, particularly in Vietnam. But 50 years later, 50 years after the police action that we now know as the Korean War, the U.S. Post Office had a competition for a commemorative stamp. And the winning photograph became the stamp, and it is that sculpture under snow. It's a beautiful photograph. I, in many ways, like it better than the sculpture. It is striking. Gaylord found out, and despite the fact he'd already been paid once by the American government for this commission, he sued the American government again. He didn't sue the photographer for obvious reasons. The U.S. government has deeper pockets. And he won. He won on the copyright infringement. Now, technically, there's a different copyright in the photograph. What about the millions of people who take photographs of that money? And what about the public aspect to this? Isn't there something striking as wrong that someone has been paid from the public purse to create a work of art? Then claims to sue that same government when someone takes a picture of it. Yes, it's a derivative work, I suppose, but to me it's a new work. Again, a completely different work than that first work. But legally, some people differ, including Gaylord and including the court that awarded him damages here. I won't put the link up, if any of you, some of you may have seen this famous Dangerous video. Jay-Z, an American rapper, properly so-called, took a song from the White Album by The Beatles, whose name now escapes me, and created a mash-up of that song on his very popular black album. DJ Dangerous took the two and mashed them together in what we call the Gray Video. If you just Google Gray Video, you can watch it. But it begins with the Beatles playing their song, and then Jay-Z is added in, and then Dangerous is added in. So that's a definite copyright violation. There were threats of copyright suits in that particular case, but eventually the Beatles copyright holder eventually backed down and just let it go. But there are two borrowings here. The first by Jay-Z, the first sampling of the Beatles song and recreating the new song. And then the mash-up by Dangerous of the two, which comprises the new whole. Again, it's copying, but is it a new work at the end of the day? My son loves rap, and loves Jay-Z, thinks he's one of the best rappers going. These kinds of things happen all the time. They produce new kinds of music. Yes, they're copying. Should we put it in the same category as the person who just makes Beatles CDs and sells them in the market somewhere, or even just takes Beatles songs on the internet and reposts them or reshares them or even resells them? There's an argument here that the mash-up is something different. And the second mash-up, for example, in Girl Talk, who using a laptop takes music, distorts it, bends it, creates music. Extremely popular dance music in particular has concerts with his laptop, which people dance. Sometimes you can recognize the bass song, sometimes they are so distorted that you can't. Again, to a different kind of music that's been created here. So maybe copying in the sense of violating copyright isn't so unequivocally bad, and at the very least, it might be something that is intuitive about copying. The idea that, and here I'll skip through a number of slides, but the idea that we need to copy to learn. Copying has always been part of the way we learn. Copying manuscripts, for example, in medieval times. Copying to learn in a school, copying to learn how to play a musical instrument. The argument that Mozart began composing, as we all know, at the age of four. Mozart scholars, the last listening to a documentary on the CBC, just before I left Canada for Italy, about Mozart and the fact that his genius didn't really begin to exert itself or exhibit itself until he was about 21 or 22. And most of the music that he wrote from the age of four to the age of 20 was really just reworking. Recopying, reworking traditional music, classical music as he knew it. And then at that point when he became such a master at it, he then moved the paradigm and created true works of genius, original works of genius. And a lot of pedagogues will tell you that that's the way we all learn. We learn by copying and then at some point we get to the point where we can move it beyond simple copying. Van Gogh, working on his technique and re-translated for another audience. Michael Madison makes a great deal of this in terms of the curative function of copyright as being something that's supposed to help perform this educational role. Copying has a vital role in that analysis. I'll skip through this. The idea here was to look at the various traditional documents in copyright statute of amm, and that sort of thing. And to examine the question of copyright fostering creativity, which is part of the utilitarian justification that you've come to realize is the dominant narrative for copyright. Empirically it may not be true, and hence we may want to think about other metaphors, so not necessarily creation but adaptation as Jessica Litman would argue, fits with some of the examples we've seen of the paintings and the mash-ups. But also we might be challenged to think about other candidates that help inform the narrative. I do think creativity still forms part of, has to form part of the justification for copyright. It's done a fair bit of good work so far in terms of helping us to understand the institution of copyright, and I don't want to be guilty of throwing out the baby with the bathwater. So there are other candidates, and one of them, I'm just going to really run through this, is this idea of virtue that copyright might be a way of helping us to develop individual and collective virtues. And therefore we need to understand some parts of copyright, not all parts of copyright, but maybe virtue will help us understand some of the trickier parts of copyright discourse. Aristotle, the idea of virtue is how to live a good life, how as individuals we need to find the mean using practical reasonableness in terms of our own actions, with respect to both a method and substance, with respect to IP, what does the substance or the method of virtue ethics, there should be an or and an of, bring to the table. Well, we might think of copyright rules as fostering sharing and generosity. Aristotle had said friendship in the politics, one of the reasons why we have private property, so that we could be generous with others and bolster friendship. Think about kids sharing files, music files. There's a great deal of social interaction there. It's something I will talk about Monday because it's in the paper that I circulated on virtue ethics and file sharing. It's respecting music files. It's a way that kids develop socially. And that's something that probably hasn't been up until now weighed into the foundational discourse of justificatory discourse in terms of understanding what the appropriate rules ought to be. Knowledge. I mean, I'm an academic. We're academics here in some very different stages of our careers, but certainly I take this seriously with respect to the way I share as an academic. But there's a responsibility here. Virtue ethics doesn't mean that I can do what I want with other people's texts. I made this point last evening as an academic putting together my course. I would never photocopy an academic text produced for the academic market and give it to my students. I just don't think that's right. People, colleagues, and publishers have put together these texts, usually with edit and with care, at a price for the student market, destined for the student market. So if I'm going to assign that text, I will ask the students to buy it. I don't think it's right to photocopy it and hold it in part. On the other hand, we as academics all share PDF files. It's become one of the new norms on SSRN. There I don't hesitate to share those papers that are up there, and I hope that people will share more. There are responsibilities in the Virtue Ethics approach. The whole idea is to understand in a nutshell, understand your context, understand the goal of what the role is trying to propose, and if the rule falls short or seems counter-intuitive, I think there will be times when it is justified to go against the formal norm. There are also a fair number of social norms in this context, especially in copyright, that are also informed by Virtue Ethics. So, talked about sampling before as between musicians. There are informal norms as between the record companies, which say your artist can sample, your artist can sample our music, our artist can sample your music, everybody's happy. Or there's a 30-second rule, I think it may have gone down now, but at one point you can sample 30 seconds, but don't sample more. They don't always hold true. Sometimes there will be litigation in spite of these various norms, but to a large measure there are a fair number of informal norms that actually work in this context. I'm really rushing, because I know I've run over, but creativity still plays a part. I'll give you the slides, all the signaling to formal and informal norms that are here. There's a complex relationship. We as individual actors do this all the time, when we have to discuss fair dealing. What does the word fair mean? We always go to context to decide what is fair and what is not fair with respect to the copyright act. We always go to context to decide what's reasonable and not reasonable, when we're talking about private law, civil responsibility, torts. These kinds of contextually-based analyses, and I would add contextually-based, virtue-driven analyses about doing what is right or what ought to be, are part of what we do as lawyers. I'm not saying anything new here, we do it all the time. We just don't always admit that we do it all the time. Even H.L.A. Hart admitted that we did this in his post script, that sometimes the formal norm will push us, as it does when we talk about fair dealing in the form of copyright act or when we talk about the reasonable person in the law of tort. Sometimes the formal normativity will push us to informal resolution, which may be based on principles of morality. So we do do this all the time. I think that a virtue-ethics analysis helps us to understand that there are a variety of different sources for answering these kinds of questions. We have to pay attention to context. A black and white rule will be a good source of guidance, but it won't necessarily lead us to the right answer in all cases. It's something that Aristotle understood in his discussion of equity, of apicaia, and it's something that I think we need to understand with respect to copyright. Sorry, that's a real cooks tour. There is a practical example in the paper that I've circulated for Monday's discussion. I think it's open for anyone who's here if they want to come, and we could think of other examples too. I'm sorry I've run out of time, but I do think it's a fruitful addition to the other kinds of discourses that we see in intellectual property and property, which I'm not going to say that rights and exclusive rights don't form the basis of property law or intellectual property law. They do, and there are different degrees of exclusivity or exclusion. As between say copyright and land law, there's no question that's the case. But I do think that there are other discourses that help to frame and perhaps control some of the excesses that are relying too heavily on one set of justifications or how they might lead towards. That's it. Thank you.