Honourable Justice Marshall Rothstein’s Keynote Commentary at Bracing for Impact Conference: “Why Has it Taken So Long?”

Honourable Justice Marshall Rothstein’s Keynote Commentary at Bracing for Impact Conference: “Why Has it Taken So Long?”

Claire WortsmanClaire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focused on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The Keynote Address at Bracing for Impact Conference: The Future of AI for Society, delivered by Dean Lior Zemer of the Harry Radzyner Law School, Reichman University in Israel, introduced an important but challenging issue: the rights to works of Holocaust victims. The Keynote Commentary, delivered by Honourable Justice Marshall Rothstein, shed light on the question: “Why has it taken so long?”

Justice Rothstein opened with a story: his father was born in Poland, one of eleven children. The family-owned barrel factory and hotel were not enough to support eleven families, so the younger siblings, including Justice Rothstein’s father, immigrated to Canada before the first World War. While the younger siblings did not get the factory or hotel, they were lucky. Those who remained in Poland became part of the six million victims of the Holocaust.

Justice Rothstein was born in Winnipeg in 1940. While Justice Rothstein was a child, he does not recall any talk about the Holocaust. The prevailing view was that such a traumatizing subject should be kept from children to shield them. In those days, Justice Rothstein could not recall much known about the works of Holocaust victims beyond the Diary of Anne Frank. It is not surprising that it has taken decades before the discussion surrounding intellectual property and the Holocaust has grown to include the recovery and disposition of works of Holocaust victims. Justice Rothstein praised Dean Zemer’s initiative to consider these works and raise complicated, sensitive, and controversial issues.

In addition to why it has taken so long to raise this issue, Justice Rothstein shed light on why it is so important that the issue has been raised. Justice Rothstein quoted philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.” He recalled the antisemitism of the past which manifested in pogroms, expulsions, torture, and denial of rights to own land and to hold public office. Even in the 20th century, zoning bylaws and gentleman’s agreements precluded Jews from certain communities, and many employers would not hire Jews as employees.

Although antisemitism significantly declined in the last half of the 20th century, the concern of the Jewish community is that it will re-energize. Justice Rothstein explained that when times are tough, people look for someone to blame and conspiracy theories develop and multiply. Jews are always at the top of the list. He pointed to the Tree of Life shooting as an example of the re-emergence of antisemitism, a shooting where the perpetrator was convinced the Jewish people were “committing genocide.” The lessons of the Holocaust are relevant today to understand antisemitism and, indeed, prejudice in any form. There is a danger in letting them be forgotten. Dean Zemer explained that Holocaust works have the potential to teach these lessons. There is a danger in letting them be unrestrictedly modified or transformed.   

Justice Rothstein offered a Canadian perspective on how our moral rights framework would line up with Dean Zemer’s approach. In Théberge, Justice Binnie explains that moral rights “adopt a more elevated and less dollars and cents view of the relationship between an artist and his or her work” and “treat the artist’s oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.” The Canadian Copyright Act provides that moral rights are infringed if the work is, to the prejudice of the honour or reputation of the creator, distorted, mutilated, or otherwise modified or used in association with a product, service, cause, or institution.

Justice Rothstein explained that the concerns raised by Dean Zemer would fit neatly into the Canadian understanding of moral rights. However, a problem arises in that moral rights are tied to economic rights and not perpetual. In 2022, we are beyond the term of protection for works produced during the Holocaust. A further problem arises: where ownership of property is unknown, title escheats to the Government where the physical work is located, and physical ownership is perpetual. Title to Holocaust works may, therefore, be owned by the governments where those works are located.

To statutorily amend the term of moral rights protection for Holocaust works, to make legislative changes across countries, and to potentially move works from their present location will not be easily accomplished. However, it is a worthwhile goal. Justice Rothstein concluded his remarks with the ending note of Dean Zemer’s paper: “We must protect and promote the potential of these artworks to teach their most important lesson to us all – never again.”