Marketing & Communications

Legal Overlaps

I’m working on my LLM — a Master’s in Law — at the moment. It’s… well, it’s a lot, to be honest, even at one course a semester on top of a pretty consuming day job. But I’m learning a considerable amount, and leaning into it as something that overlaps with work.

LLM apparently stands for “Legum Magister”, meaning Master of Laws, and if you, like me, are very bothered by the fact that there is an extra “L” in there, apparently in Latin you indicate plurals in contractions by doubling the letter, which doesn’t seem right but I guess we’re learning Latin now too.

The LLM “flavour” I’m pursuing is five advanced law courses and a mini-thesis; as somebody without a law degree (JD or LLB — there’s that double L again), it’s been a bit of frantic dog-paddling to grasp some of the context and premises of the courses, but I’m getting there. After a couple of false starts (an interest in puffery, notionally, which kind of turned out to be an academic dead end, an initial paper topic in the legal incongruity of legislation on video game loot boxes, which turned out to be a bit more tangential than where I wanted to take this degree) I feel like I’m on strong footing taking courses that overlap with my professional space: privacy, copyright, hopefully trademarks soon, and/or patent law.

The course formula, more or less, rotates around a major paper (25 pages, ~8K words); it’s a lot of work, but I definitely get the pedagogy; it forces me to really dig into one aspect of the topic, and do a tremendous amount of research and writing on it. To date, I’ve completed a paper on last term’s course — privacy — and am currently whacking away at the paper on copyright.

In the interest of professional overlap, I’ve been looking at things that dovetail with what I do for a living. Last term’s paper, on privacy law and photo consent, actually turned out to be darned interesting, if I do say so myself — the notional idea of privacy in public, and how we seek and manage consent in photography and video at the day-to-day level in higher ed marketing.

I’m not going to share the paper here — my professor wants me to work on it a bit more, and submit it for publication in legal journals, and I gather that the making available of drafts is frowned upon in the circles that I’d be submitting it to.

But — spoiler! — we marketing people are not that good at law stuff.

There are a bunch of reasons for that:

First, there’s a lot of law to wrap your head around. PIPEDA, in Canada, is the most critical piece of legislation, but it’s under review right now with a major overhaul tabled last November. It’s federal, so applies to the entire country. But there are also provincial schemes, in Alberta and B.C., which have their own nuances and spins on legal privacy. Ontario is considering its own provincial privacy scheme as well. Quebec, as a civil law jurisdiction (the rest of the country is common law), has its own approach to laws and even its own charter of human rights (where a lot of privacy stuff resides), and is also currently looking at a bill to overhaul its provincial privacy statutes.

Second, there’s not that much action in the courts, or even in tribunals. One of the long, slow discoveries about the law for me is that it’s generally pretty elevated and really moves from abstract to tangible when something hits the courts — public or private. So what we understand of privacy legislation, PIPEDA, etc. is statutory, vague, and in many cases actually untested or not well-tested in the system. When the law is clear, it’s clear, but in one of the many areas where it’s kind of vague, clarity will only be achieved when somebody tests that vagueness, which means (a) somebody has to do something questionable, (b) somebody has to object strenuously enough to take it to the Privacy Commissioner or a similar provincial body, and (c) the Privacy Commissioner has to do something about it.

So while we’re not talking Mad Max levels of anarchy here, things are a lot… fuzzier… when you start poking at the law than I ever expected before I started studying it.

As for privacy last term, so for copyright this term… as a quick f’rinstance, I’m working on a paper on copyright assignment, and trying to figure out how students on placement from a college fit into the schema of “contract of service / contract for services” in terms of automatic copyright assignment to the employer. The intuitive stance is that they’re “employed,” but there’s actually more ambiguity than one might think.

If they’re on the kind of placement where they partially set their own hours, and especially if they use their own equipment (more common in this, the era of pandemic-related remote work), and if for some reason their placement duties overlap with something else they’re doing as a side hustle (say, a student who is working on photo assignments as a placement, but also setting up their own professional photography business on the side)… suddenly there’s the Sagaz test, and the status of their copyright assignments becomes a bit more dubious.

“But aren’t they apprentices, as defined in s13(3)” of the Copyright Act?”, you ask. “Show me the legal definition of ‘apprentice’ in the context of the Act,” I reply. And then you’re down a rabbit hole of “how has the term apprentice been defined in law in the past in Canada?” Is it strictly reserved for government-recognized, trades-related training programs? Or has the colloquial understanding of the word found meaning in the courts?

And until somebody takes it to the mat, pointing at a placement student in front of a judge and saying “this should be considered equivalent to an apprentice in the context of X,” and a judge decides, and any appeals on that decision are quashed, we don’t really know where a “placement student = apprentice, in the context of the Copyright Act” argument will land. It could be as simple as a judge saying “no, dummy, we’re defining ‘apprentice’ according to the Income Tax Act, and what a dumb thing to bring up”, but there’s a non-zero chance that a judge could read a broader interpretation of ‘apprenticeship’ into the drafting intent of the Act.

Which is what makes the law a pretty fun thing to study, but also a pretty frustrating thing to try to figure out. If you like absolutes, this is not a great space to be spending a lot of time in.

So — in the interest of keeping this reasonably brief (and getting back to writing that copyright paper, and the other Business of Sunday), I can park this at “law is hard.”

But! Writing this, I realize there’s a lot of space (and work) in the privacy/consent area I could and should be unpacking, so you can expect more of that in this space. I can’t run my paper here, but I can certainly revisit the themes and ideas — and law — that it unpacks. More on that! Soon!

March 14, 2021


DJ Black Low, “Uwami

Snow Palms, “Everything Ascending

Andrew Bird & Jim Mathus, “These 13

By mattshepherd

I love your story.
You’ve got one. Everybody does. Storytelling is what makes people people, and it’s what makes organizations succeed or fail.
For 40-odd years, I’ve been in love with stories, and I’ve spent a lifetime building structures to help people tell them.