bob tarantino

"“Plagiarism is unacceptable”

Torontoist notes an intriguing copyright infringement story:

Just before noon on July 25, 2007, Joel Charlebois caught a man, he says, breaking into his house. When Charlebois gave chase, the man fell from the second-storey deck, landing hard on the ground below and breaking his leg. As police arrived, Charlebois—an avid photographer who has a Flickr account under the name uwajedi, who is an active member of Torontoist's Flickr Pool, and who we've regularly featured—took photos of the man. ...

When [local Toronto television station] CityTV arrived on the scene to do a story about the burglary, Charlebois says that he "refused [a reporter's] request for an interview....[and] asked him to leave." Charlebois did, however, say that he "had taken pictures of the perpetrator and was looking forward to posting them on [his] Flickr site"; the reporter "was interested in seeing them," so Charlebois gave him his card, but, he says, not permission to use the shots in any way.

Charlebois uploaded the photos to Flickr, then left for Montreal later that afternoon. ... When he came back home, he was surprised to find out that the story had aired on the 6 p.m. broadcast of CityNews (on both City and CablePulse24), and, most importantly, had included the photos that he had uploaded to Flickr (above)—without permission from or credit to him.

Charlebois complained to the station, which countered with two responses: (a) the recollection of their reporter was that Charlebois had given verbal permission to use the pictures, and/or (b) to quote the News Director, "Canadian copyright law recognizes that third party materials like photos may be used for the purposes of news reporting. It was in that context that we used this photo."

Not quite.  I often hear surprise expressed when I explain just how narrow the "news reporting" exception is under Canadian copyright law.  Section 29.2 of the Copyright Act states:

Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

Embedded with Section 29.2 are actually two separate requirements: first, the use of the copyrighted work (in this case, Charlebois photos) must itself constitute "fair dealing", and second, there must be attribution of the source and author (in this case, Charlebois).  Unfortunately, the drafters of the Copyright Act declined to provide a definition for "fair dealing".  Fortunately, the Supreme Court sought to remedy that in the CCH v LSUC decision (see this earlier post where I recounted the criteria for what constitutes "fair dealing").  Regardless, in this case, CityTV had not provided attribution, so the question of whether their use fell within the definition of "fair dealing" is moot.

Charlebois, sensibly, rather than pursuing an infringement claim (which would have cost him an arm, a leg and four fingers in legal fees), complained to the Canadian Broadcast Standards Council.  The CBSC released its decision today and sided with Charlebois, finding that CityTV

breached Article 11 of the Radio-Television News Directors Association – The Association of Electronic Journalists’ Code of Ethics in its broadcast of a news report of a bungled burglary on July 25, 2007.  As a part of its coverage of the story, CP24 included three still photographs of the injured burglar without providing any credit to the photographer, whose identity was known to the broadcaster.  By failing to provide that accreditation, the broadcaster has failed to honour the intellectual property rights of the photographer, contrary to the provisions of Article 11 of the RTNDA Code of (Journalistic) Ethics.

The CBSC decision is worth reading in full, as the Council attempts to grapple, in a common sense, non-legal fashion, with both the requirements of the Copyright Act and the applicable Code of Ethics.  In the end, the legal and ethical norms converge:

The Panel begins with an appreciation of the purpose of copyright, namely, the encouragement of creative work by assuring the protection of the rights of the creator, in this case, of the photographs.  It also understands that, for the purpose of news reporting (and other matters not of relevance here), an exception exists to the restrictive demands of copyright protection.  It is that exception that falls within the category of “fair dealing”.  The exception ought not, however, to be misunderstood; it does not provide the news reporting entity with an absolute exemption from copyright rules, or a free ride.  It would be more accurate to observe that the use of copyright material for news reporting purposes opens the door for the user.  But it is not flung open.  Those who wish to pass through it must do so fairly.  Indeed, fairness is the essence of the exception to the total protection that copyright would otherwise afford.  And the definition of what is fair, what, in terms of the RTNDA Code, will “honour the intellectual property of others”, must, at the very least, and consistent with Section 29.2 of the Copyright Act, mention the source, including the name of the author, of the photographic work.  It seems to the Panel to be the opposite of honouring the intellectual property of a creator to take his or her work without acknowledgment and to, in effect, pass that work off as the broadcaster’s own.  Although that may not be the intention of the broadcaster, it is the inevitable effect of the failure to accord credit, particularly where, as in the present matter, the identity of the photographer was known. ... The Panel concludes that the failure of CablePulse 24 to establish in any way that permission was granted by the photographer to not provide credit to the complainant for its use of his photographs, and the subsequent failure to provide the necessary credit to a known photographer constitutes a breach of Article 11 of the RTNDA Code of (Journalistic) Ethics.

The sanction for the violation of the Code of Ethics is that CablePulse24 (the all-news sister channel of CityTV, which was the channel on which the alleged infringement occurred) must air an on-screen announcement about the decision containing the text prescribed by the CBSC.

Section 29.2 of the Copyright Act has not, to the best of my knowledge (but I don't have an annotated act close at hand), been judicially considered - but I don't think a court's analysis would come up much differently from the CBSC's.  Which raises an inordinate number of questions - and implies that an absolutely astounding amount of copyright infringement occurs on news reports (imagine news coverage of a CONTACT event - virtually every reproduction of a photograph on-screen constitutes infringement).  One more reason why the Copyright Act needs to be amended.

Copyright Roundup

A few items which I thought warranted highlighting (each of which involve either copyright, writing or some combination thereof) have popped up over the past few days - each deserves attention, if not for their legal relevance, then just for the fascinating stories themselves:

• the estate of Marxist philosopher Guy Debord is embroiled in a copyright battle over a "copper- and silver-plated board game" created by Debord.  Debord's widow, who evidently could only be contacted through "an intermediary in Switzerland" (which is just awesome) has raised objections to the use of the game in an art exhibit and online.  Her lawyer "would not offer any comment about the seeming irony of a revolutionary Marxist pursuing copyright claims against a free video game" (ht: this)

• who owns suicide notes?

• William Patry links to an excellent paper about copyright (or the lack thereof) in the song "Happy Birthday to You"

• Michael J. Madison writes about "the role of intellectual property law in the persistence of cultural forms of all sorts" - it includes "reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues [and] concludes that that the relationship between cultural persistence and law is more complex than is generally understood" (ht: Media Law Prog Blog)

US Online Public Performance Royalty Decision

The big web-related news late last week was the release of the US federal district court decision which set the license fees that AOL, RealNetworks and Yahoo! have to pay to ASCAP for public performance of musical compositions (a copy of the full decision can be read here).

There is a wealth of information in the decision (despite the redaction of much of the financial information), and it serves as a handy guide to the range of licenses which are in place for public performance royalties.  At page 83 begins a discussion of the "experimental" licenses which ASCAP had been offering to online service providers, which contained a 3% license fee.  Starting at page 93 is a description of the license agreements which ASCAP had entered into with a variety of music users (inlcuding Music Choice (which provides music to satellite and cable TV subscribers), the Big Three US TV networks, commercial radio stations, cable TV stations, and "music intensive" cable TV stations.  At page 98 begins a discussion of the license agreements entered into by the online services with record companies for the right to communicate music videos.  At page 105 begins a discussion of the licenses which have been entered into by BMI (a rival public performance rights society).  Starting at page 116 is the court's conclusion, which makes for interesting reading (well, for an entertainment lawyer - YMMV), as it details all of the factors the court took into account in arriving at its rate of 2.5% of adjusted "music use" revenues.

Glancing through the decision put me in mind of a comment I had started to write about a year ago relating to the then-recent decision by the Canadian Copyright Board with respect to mechanical royalties payable for online music sales.  Mechanical royalties and public performance royalties are obviously rather different, but the opening paragraph of the comment conveys (rather poorly, reading it now), one of the frustrations that I think many in the industry feel:

It took nearly three years to the day, but on March 16, 2007 the Canadian Copyright Board released its tariff decision regarding “mechanical royalties” for online music sales.  To summarize: the royalty is 8.8% of the retail sale price of a “permanent download”, except that there is a minimum royalty of $0.59, unless the song is sold as part of a bundle, in which case the minimum royalty is $0.45; that being said, there is an entirely arbitrary “temporary discount” of ten percent to the foregoing rates for the life of the tariff.  Oh, and this tariff expires on December 31, 2007, so all of this could and likely will change.  And we haven’t even mentioned the other types of online uses to which the tariff applies (“limited downloads” and “on-demand streaming”).  Confused yet?

Which is a long way of saying that it really is a shame that the various regulatory and governance structures in place (and I'll include as a "governance structure" freely-contracted agreements) have been so hard-pressed to make "final" determinations of these issues (I use the quotes around "final" advisedly, since as noted above in the Canadian context, the tariffs expired at the end of last year - and as the Copyright Board noted in its April 2008 decision relating to the next round of hearings to establisht the post-2007 rates, those new rates could be "lower, higher or the same").  SOCAN's Tariff 22A, which covered online public performance royalties in Canada the period from 1996 to 2007 was released in October 2007 - in other words, if you were in a position to be streaming music online in 1996, it would be eleven years before you found out what public performance royalties you owed. 

It's been, what, nine years since online availability of music started becaming relatively widespread (with the rise of mass internet adoption and broadband availability)?  And only it's only in the last couple of years that we're starting to get clarity on what that costs?  Amazing.  And, without getting too melodramatic, tragic. 

This level of complexity and uncertainty is troublesome, since it acts as a retardant to market entrants and does its part to prevent a healthy multiplicty of options in the marketplace.  Having to set aside reserves against a contingent liability (without having any clear idea as to when that liability will crystallize) means that capital is lying idle, rather than being profitably re-invested.  Smaller US players (i.e., those without the financial or legal wherewithal to embark on a fight through the courts with ASCAP) were put in the position of signing the "experimental" licenses - at a rate higher than what the rate court found was fair in the context of larger competitors.  And the decision-makers are still playing catch-up.  When the history of the internet is written, I'm guessing the chroniclers will shake their heads in disbelief at how intransigent both the actors and the regulators were in addressing these issues in a timely manner.

Succession in Law Firms

Jordan Furlong posted an insightful piece on the motivations (or, properly, the lack thereof) behind the failures of many law firms to handle succession issues well (not "wills and estates", but transitioning power and practices between generations of lawyers).  Furlong posits four vectors, which for lack of a better term I'll call "pecuniary" factors: loss of power; resistance to change; few future leaders (because compensation mechanisms do not encourage handing off key client files); and generational conflicts.

A fifth important vector is a deeper, structural attitudinal problem: law firms (at least that subset of law firms with which I think the discussion is concerned, namely large corporate law firms) haven't yet come to grips with the fact that there is a succession issue, because few of them have come to grips with the fact that they have transformed into quasi-corporate entities.  Despite the headlong plunge into becoming business firms (in the sense that they are now profit-focused undertakings, which is something slightly, but importantly, different from professional associations), lawyers are still uncomfortable with acknowledging that they are now subject to the same concerns that have plagued the modern corporation for its century-long existence.  There is an entire body of learning and class of technocrats (we call them "managers") devoted to managing the challenges which face large corporate entities - yet lawyers are resolutely reticent about drawing on that vast reserve of knowledge and talent.  How many law firms across the country employ non-lawyer management professionals as part of their governance infrastructure?  Canada's largest law firm (with nearly 700 lawyers, to say nothing of non-legal staff) only adopted a corporate governance structure four years ago.  It's only been in the last twenty to thirty years that the "mega-firm" structure has come to the Canadian legal landscape - a lawyer who was in his early forties in the mid-80s is just now getting to the point where retirement and relinquishment of power is an issue.  In short, lawyers are bad at succession planning in the large firm context because they largely haven't had to deal with it before (at least in the context of the current large and diffuse structure that many firms have taken on) and may not yet have realized that they need to at all.

Feed Reads 05.04.08

A collection of interesting things that popped up in my RSS feeds:

• The Shame of dot CA

• The new fame: internet celebrity

• the 2008 Pug Awards (Toronto's People's Choice Awards for Architecture) are online

• from TNR, Too Many People Own Homes

"How long will that fun last?"

Repeat after me: there is no allowment for parody under Canadian copyright law.

How do you bring the dead back to life? Well, if you're producer Jeffrey Latimer and the show in question is Evil Dead: The Musical, you do a little grave robbing.

In a publicity stunt as witty as it is outrageous, Latimer has borrowed the original artwork from four of the biggest musical theatre hits of recent years and twisted them to fit his current slashin'-and-singin' hit down at the Diesel Playhouse.

Working with the slogan "It's like the musicals you love, only evil," he has currently plastered the downtown core with posters that bear an amazing resemblance to ads for Mamma Mia!, Hairspray, Les Miserables and Forever Plaid.

... As soon as word of these posters hit the Internet, Latimer was contacted and given a "cease and desist" order, telling him that his posters, although original art, violated the copyright of the show's art. [emphasis added]

Images of the posters can be found here. Brief info on Canadian copyright and parody can be found here and here [.pdf].

SAG Strike 05.02.08

Nikki Finke is reporting that "the AMPTP and SAG will keep bargaining on a day-to-day basis through at least May 6th".  That being said, she also notes that the labo(u)r uncertainty is resulting in a de facto strike position, since there is "no greenlighting because of fears of a SAG strike".  Finke notes that "Major players in this town are telling me they haven't seen the movie industry this dead since, well, they can't remember."  Which means that there is an impact north of the border as well: "If the Screen Actors Guild goes on strike over the same issue as the recent U.S. screenwriters strike—residuals from new media platforms—the B.C. film industry could experience a repeat of 2007’s drop in foreign production."  Independent producers without distribution are able to sign "guaranteed completion agreements" (meaning a SAG strike won't shut down their production so long as they agree in advance to abide by whatever terms are agreed to in the final collective agreement), but any chill on production in the US inevitably has an impact on the Canadian industry (which means lost jobs, which means lost tax revenue, etc., etc.): there was nearly $1.5 billion worth of foreign location shooting in Canada in 2006/07, as reported by the CFTPA.

Great Moments in Canadian Sentencing 05.02.08

"They used him as a combination punching bag and soccer ball," said Justice Eugene Ewaschuk before sentencing Jeffrey Hall and Brian Deganis in a Toronto court yesterday afternoon for the death of Paul Croutch.

"The accused literally stomped Mr. Croutch to death," said the judge, who added the savagery of the beating put to shame the violence of "soccer hooligans."

The maximum possible punishment for a conviction of manslaughter pursuant to the Criminal Code of Canada is a life sentence.

The sentences handed down in this case?

10 years for the beating death of a homeless man.

What with, I don't know - call it inflation, 10 years ain't quite what it used to be:

Based on time served prior to sentencing, Deganis, who has been in custody since his arrest, will serve five years and six months, with a possibility of full parole after serving two-thirds of the sentence.

Hall will serve 10 years and eight months and will be eligible for parole after serving between one- to two-thirds of his sentence.

In completely unrelated news, and on the somewhat tenuous theory that granting bail is at least a component of the sentencing regime:

Rahimullah Shahghasy rushed to his wife Nazifa's aid as she was being brutally stabbed to death only to die himself at the hands of a stranger in a frenzied knife attack. ... A 28-year-old remains under guard in Sunnybrook hospital in "critical but stable" condition with self-inflicted neck wounds. He is expected to be charged with two counts of second-degree murder once his condition improves.  English refused to name the man, who is currently out on bail for violent crimes.

Anyone want to take odds on when one of the reporters covering this story, rather than bothering the children of the victims (""Please just get in your cars and get off my street," the couple's distraught [sic] said when confronted by media out front of the house"), or lurking around the house of the mother of the accused, will track down the JP who granted bail to the accused and say "Hey, great work! Can I get a comment?"

"It's not easy"

Hey, you never know when this might come in handy:

• how to permanently erase a computer file

• how to permanently erase a text message from your phone

Or just, you know, kill the information registry.

It's Just an & - But Who Owns It?

Simon Fodden at slaw ruminates on the ampersand:

The ampersand has going for it that it’s a place for the type designer to fool around and get fancy. We all have some Platonic notion of what a letter ‘a’ or ‘g’ should look like, for instance; but the ampersand is a one off, a sport among the pedigreed.

He provides some examples of the design varietals which various of his computer system's fonts provide for the & symbol.  Which got me to thinking - to what extent is there copyright in a font?

Turns out that is something of an issue among typeface designers.  The typeright organization, for example, advocates for the "legal protection [of fonts] as intellectual property", and offers a FAQ on the issues surrounding use of fonts and a set of arguments/counter-arguments on the issue of extending copyright protection to fonts.  Here's a somewhat old (1998) piece about copyright in fonts [.pdf] by Jonathan L. Mezrich - as well as some further information from the mid-90s, collecting various statements from the US Copyright Office.

"if being geeks is our full-time job"

The 12-year old Bob Tarantino would have pretty much died of happiness if confronted with a summer like that of 2008, what with enough comic book movies (Batman, Hulk, Iron Man) to satiate the most ardent fanboy's entertainment needs.  MTV hosts a roundtable discussion on "the greatest summer in comic book film history" (their term), which contains this pearl of wisdom:

I wish they had found someone more interesting than Gwyneth Paltrow to be in "Iron Man." I mean, she's Gwyneth Paltrow. She's OK, but it's kinda like vanilla yogurt as opposed to some flavorful, yummy yogurt that would have added a little something extra to it. "Oh, it's Gwyneth Paltrow, but now she's got red hair!" She's still Gwyneth Paltrow.

Testify.

"Violate the terms, and we'll report you ourselves"

Everybody wants a piece of the action:

Even criminal hackers want to protect their intellectual property, and they've come up with a method akin to copyrighting — with an appropriate dash of Internet thuggery thrown in.

Professional virus writers are now selling a suite of software on the Internet with an unusual attachment: a detailed licensing agreement that promises penalties for redistributing the malicious code without permission.

It sounds like in this case the hackers were relying on their EULA to (purportedly and, one suspects, facetiously) enforce their rights, rather than copyright per se.  Copyright protection of course extends even to immoral or illegal works - it even covers works which themselves are infringing of other works.  One policy issue which perhaps arises is whether copyright protection should extend even to works whose sole purpose is to commit a crime?

The Harry Potter Wars Pt II

Further to this post, John Willinsky writes at slaw.ca about Harry Potter and the Scholar's Fair Use:

Still, I am distressed by [JK Rowling's] failure to realize the vital relationship between the pleasure of reading and scholarly inquiry. Actually, Rowling was fine with it, when Vander Ark’s The Harry Potter Lexicon was no more than a freely available website. She used the website herself, and only came to object when the lexicon was about to be published. I am also delighted, then, by Ms. Rowling’s respect for open access to research. But this celebrity endorsement of open access apart, fair use is necessary for scholars in all mediums and price points.

He also points to a further detailed New York Times' overview of the proceedings.  Willinksy points out yet another facet of the proposed clamp-down on companion books: a stifling of scholarly research.  After all, if you're doing research into the Potter universe, what facilitate's such research more than a compact, complete, cross-referenced compendium (wow, that was a lot of alliteration)?  Rather than plowing through the hundreds of pages of individial novels to determine the lineage of a particular character, it is readily available - and the cross-referencing may prompt yet further fruitful enquiries. 

Which means that, in addition to the "facts/information" argument I mentioned yesterday, there might be a "fair dealing" defence that would be available at Canadian law: a Section 29 research dealing.  In the CCH v LSUC decision, the Supreme Court laid out the following criteria for assessing "fair dealing", and here's a quick stab at how they might play out:

• the purpose of the dealing
  • there's an argument that the Lexicon constitutes fair dealing for research purposes - or at least it constitutes work done in order to facilitate further research; cutting against this argument would be the fact that the Court noted "research done for commercial purposes may not be as fair as research done for charitable purposes" (para. 54)

• the character of the dealing
  • this would turn on the extent to which actual passages from the books were copied into the Lexicon - as the Court noted, however, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism - so, potentially, even large amounts of copying might be permissible in the context of the new work

• the amount of the dealing
  • again, this would turn on the extent to which actual passages from the books were copied into the Lexicon - a quick look at it indicates that there does not appear to be large chunks copied verbatim - snippets are taken and re-contextualized

• alternatives to the dealing
  • here a court would assess whether there were any non-infringing alternatives available - in other words, was there a non-infringing source which could have been drawn upon? I think the answer would be "no" - in creating a reference work for a fictional universe, the only possible source would be the original fictional works themselves

• nature of the work
  • the Court wasn't as clear as they could have been on this criteria: I would argue that the nature of both works (i.e., the original work and the allegedly infringing copy) should be assessed; in this case, we're looking at a work of fiction and an attempt to create a complete reference guide to that work - and the latter would not be possible without "infringing", in some sense, the original - as I mentioned yesterday, though, I think the "infringement" looks heavier on the "idea" side of the spectrum, rather than on the "expression" side

• effect of the dealing on the work
  • as the Court noted, "if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair"; this would ultimately be a fact-driven assessment: if Rowling could introduce evidence that sales of her books would be negatively affected by the publication of the Lexicon, this point would go to her; as an observational matter, it would strike me that the fact that a fully-searchable, always available, free version of the Lexicon has not eaten into her sales would put to rest the possiblity of arguing that a pricey paper version of the same work would do so

Thoughts, anyone?

Illegal Sex in Canada

As the Globe reports, effective Thursday, May 1, 2008, the age of consent for sexual intercourse in Canada will rise from 14 to 16.  Unfortunately, the government missed an opportunity to rectify a glaring incongruity in the Criminal Code: the criminality of anal sex.  As I detail in Chapter Four of Under Arrest (*ahem*), Section 159(1) of the Criminal Code makes it a crime (punishable by up to ten years' imprisonment) to engage in anal sex.  Which, if I might be permitted some bluntness, is retarded.  I digress. 

In addition to being nonsensical on its face, the law then gets wince-inducingly complicated.  Introduced in 1969, Section 159(2) carves out certain exceptions to the general prohibition: anal intercouse between (a) husband and wife or (b) two people both of whom is over 18 years of age.  Which means it is still illegal for two people under the age of 18 to engage in anal sex.

There's no apparent justification for this prohibition.  When the issue was last addressed by Parliament in 1988, the only pseudo-argument the government was able to come up with was that the prohibition was required to assist in preventing the transmission of the AIDS virus.

To make things even more absurd/interesting, Section 159 has been declared unconstitutional and of no force or effect in at least two provinces.  In Ontario, the Court of Appeal (in R v M(C) (1995), 98 CCC (3d) 481 (Ont CA)) declared the section to be unconstitutional and of no force or effect.  In Quebec, the Court of Appeal (in R v Roy (1998), 125 CCC (3d) 442 (Que CA)) declared the section to be unconstitutional and of no force or effect.  In Alberta, a decision of the Court of Queen's Bench (R v Roth, 2002 ABQB 145) declared the section to be unconstitutional and of no force or effect.

And yet the law remains on the books.  To summarize, Section 159 is of no force or effect in Ontario, Quebec and most likely in Alberta.  Elsewhere, homosexuals under the age of 18 (or heterosexuals under that same age (or even a 19 year old and a 17 year old) who are inclined to... er... explore) still face the very real possibility of criminal prosecution.  Quite why that should be the case is something that no federal government, Liberal or Conservative, has been forced to answer.  Which is a shame.

Infringement, Theft, Piracy

When, if ever, is copyright infringement "theft"? What are the rhetorical advantages of describing "copyright infringement" as "theft"? Patricia Loughlan ponders those questions in "You Wouldn't Steal a Car" Intellectual Property and the Language of Theft, a short, incisive paper which is available for download here.  Loughlan argues that infringement is, in most cases, not properly (i.e., as a legal matter) described as "theft", and that "the insulting and inflammatory language of theft, in short, reduces a difficult policy debate, with significant economic and cultural consequences, to a crude and simplistic moral drama". (ht: Media Law Prof Blog)

Richie Loses

The decision in the Richie Ramone case can be accessed here.  The short version: Richard Reinhardt (p/k/a Richie Ramone) was a member of punk band the Ramones from 1983 to 1987, during which time he wrote six songs for the group.  Richie argued that his agreement with the band's corporation (Ramones Productions) only allowed the band to exploit his songs by means of physical exploitation (i.e., vinyl albums, cassettes, CDs, etc.) and did not extend to digital methods of exploitation.  Richie sued, inter alia, the band, Apple and Wal-Mart for unauthorized use of his copyrighted compositions.  Richie lost - the court (see esp. pages 14-16 of the opinion) held that the contract on its face contemplated exploitation by means of "all forms of reproduction .... now or hereafter known", which includes digital modes of reproduction and transmission.  Even shorter version: always draft your rights language clauses expansively, and make liberal use of fun phrases like "all methods, media and modes of exploitation, communication, reproduction and transmission", "now known or hereafter devised", "throughtout the universe and in perpetuity" and "including, without limitation".

The Harry Potter Wars

Julie Hilden, in response to Joe Nocera's "A Tight Grip Can Choke Creativity" piece on the JK Rowling/RDR Books matter (otherwise known as the Harry Potter Lexicon case - in which RDR proposes to publish a print version of its online compendium), offers a technical analysis of whether RDR can rely on a fair use defence under US law. (ht: Media Law Prof Blog)  Hilden concludes that Rowling has the better argument, though she notes that the potential win would not be a "walkover" and damages would likely be limited.  Nocera's piece addresses policy questions about whether Rowling's copyright should extend to prevent the type of activity in which RDR is proposing to engage.

The issues raised by the lawsuit are near to my heart, for a variety of reasons, not least the fact that my LLM thesis addressed the contours of protection available for "ideas", and the point at which unprotected "idea" becomes protected "expression".  I think the idea/expression dichotomy provides another useful lens through which this case can be addressed, and I'm going to take a quick stab at canvassing what I think the arguments under Canadian law might look like. 

Take a look at the Lexicon itself - even if you're not a fan of the Harry Potter boooks (and, as I haven't read the books, I can't count myself among them), I think you can't help but be impressed by the level of dedication and enthusiasm (and the sheer volume of work) required to compile the website.  That, however, doesn't address the issue of whether copyright infringement has occurred (the dispute revolves not around the website itself, which apparently has the tacit approval of Rowling, but around the proposed print publication only).  Setting aside any trade-mark or passing off issues, at some level what the website is engaged in is compiling facts or information - two concepts which resolutely should not be the subject of copyright protection.

Copyright protects the expression of ideas, but not ideas themselves.  The content which makes up the Lexicon is perhaps best analyzed on an "idea/expression" spectrum (for purposes of this discussion, I'm limiting myself to JK Rowling's expression as embodied in the novels themselves, and ignoring the movies).  Take, for example, the character Dumbledore.  If we analyze Dumbledore on an idea/expression spectrum, the two poles of that spectrum might be, at the farthest reach of the "idea" end, "a wizard", and, at the farthest reach of the "expression" end, a collection of descriptions, quotations and other textual information relating to Dumbledore (and when I describe the "expression" end of the spectrum, I mean a literal word-for-word collection of the textual material).  Moving along the spectrum from "idea" to "expression" involves adding more and more detail to the "concept" of Dumbledore - so you'd be moving from "a wizard" to "a wizard with a white beard" to "a wizard with a white beard who is headmaster at Hogwarts", etc.   Somewhere along that spectrum you cross a line from "idea" to "expression" - and the question becomes whether what the Lexicon is doing is simply creating its own expression out of unprotected "ideas" or copying protected "expression".  But even if one concedes that "expression" has been copied, there is another limiting factor which serves to restrict the scope of copyright protection: information itself cannot be the subject of copyright protection (an axiom which has, regrettably, been overlooked, ignored or wilfully weakened far too frequently by our courts). 

There is, I think, a cogent argument to be made that the Lexicon is dealing only with a compilation of facts, expressed in a new form, and so Rowling's writ cannot extend to prevent the print publication.  Otherwise, publishers would never be able to publish "unauthorized" compendiums - a recent example of which are books dedicated to the television show Lost (see, e.g., this book).  However, Canadian courts have recently and, I assert, contrary to basic copyright principles, been moving towards extending copyright protection to facts and information on the basis that the "copyist" is misappropriating the labour of the plaintiff (see, e.g., British Columbia Jockey Club v Standen (c.o.b. Winbar Publications)(1985), 8 CPR (3d) 283 (BCCA) and Edutile Inc. v Automobile Protection Assn.) - and on the basis of that authority, Rowling might find Canadian courts to be welcoming venues for her action.

Law Commission Jobs

The Law Commission of Ontario is looking for student researchers (both undergraduate and graduate law students).

"those sexy montages of explosions and buffoonery"

The Top 25 Opening Credits of 80s Television Action Shows.  There's really nothing else I can add.  Fine, one word: Manimal.

"melisma for melisma, bromide for bromide"

Jody Rosen at Slate ponders the significance of Mariah Carey:

have learned to cherish Carey's singing for its brute force, blinding technique, and, yes, showboatiness—to place Mariah's vocal "runs" in the tradition of John Coltrane's "sheets of sound," the pummeling drumming of Led Zeppelin's John Bonham, and Eddie Van Halen's "Eruption" (aka the Magna Carta of shredding 1980s guitar solos).

Not analogues that came immediately to my mind, but I still think her live renditions of the Lep's "Bringing on the Heartbreak" from a couple of years ago was pretty freakin' killer.

CFS - Statement on Copyright Reform

The Statement on Copyright Reform from the Canadian Federation of Students has been made available.  A couple of things worth noting:

• the argument to transform the (circumscribed) "fair dealing" provisions of the Canadian Copyright Act into a device resembling the (open-ended) "fair use" provisions of the U.S. copyright regime continues apace

• the CFS has noted the importance of eliminating Crown copyright - something which should really be higher up on the radar screen of our discourse when talking about copyright reform

• one potentially discordant note in the CFS paper is the argument for strengthening moral rights protection - I'm not sure how you square the circle of advocating for more robust user rights while also arguing that moral rights protections should be increased, since the latter would only serve to act as a check on the former

UPDATE: Darryl Moore remarks on his shared concern about strengthening moral rights: "With the exception of a right of (dis)association, moral rights in copyright should be abolished."

UPDATE: Howard Knopf offers his take on the CFS's SCR: "I've had a quick look at this brief and it's excellent."

"ensure that the present opportunity to become more seriously democratic is not lost"

As noted over at The Court, the question of the judicial appointments process to the Supreme Court of Canada will shortly be engaged yet again.

"[the] pertinent question is by what process will the selection be made? The answer could have a profound effect on the future of Supreme Court appointments in Canada, and more broadly on the relationship between the judiciary, the legislature and the public."

We should be so lucky.  To my eye, no one in Canada does a better job of articulating the deficiencies in the current appointments process, and explaining the fundamental democratic criteria which mandate an overhaul to make it more participatory, than Allan C. Hutchinson.  This piece, penned nearly three years ago when the appointments issue was being (badly) addressed by the Paul Martin government, is worth clipping and saving - read the whole thing, but here's a taste:

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge.Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it.  It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

This is a sad state of affairs by any lights, let alone in the actual conditions of the contemporary Canadian polity and the increasingly central role of its courts. If democracy is about anything, it is about increasing public involvement in the exercise of political power. While there are a few occasions in which confidentiality and even secrecy are justified, the appointment of powerful and unelected officials is not one of them. Democracy demands more and its citizens should expect more.

Despite Canadian contentions, the Supreme Court of Canada is as political and its decisions as controversial as those of its American counterpart. The divisions may not be as stark, but that is more a matter of style than anything else. Canadians, especially the judicial community, are much more polite and backroom in their disagreement; not washing dirty linen in public remains a guiding principle of too much Canadian politics.

Brevity Is the Sister of Talent 04.28.08

"One reason that I try never to wear a tie is the advantage that it so easily confers on anyone who goes berserk on you. There you are, with a ready-made noose already fastened around your neck." (Christopher Hitchens, Slate)

"overlapping laws and sky-high costs"

As previously noted, few people are as finely attuned to the mindnumbing complexities and costs of copyright clearance issues as documentary producers.  The issue is still a hot one:

Documentary filmmakers say it's getting tougher to make independent productions because of growing restrictions on what images and sounds they can use.

The battle over rights issues was a hot topic of discussion at Toronto's Hot Docs Film Festival, where a session last week about fair use was packed with filmmakers from around the world.

Many filmmakers fear they'll soon no longer be able to fully document our pop culture and mixed media age because of the high cost of using footage and sound, and the consolidation of rights to this material in a few hands.

Too much can be made of the "consolidation" issue - it wouldn't matter whether the rights are held by one corporate entity or a million individual people (if anything, the former would at least be more efficient from a clearance standpoint) - but it all speaks to the need for a robust fair use mechanism that is embedded in the structure of the copyright regime.  As the article notes, this is not just a concern for Canadians:

Italian filmmaker Marco Visalberghi says overlapping laws and sky-high costs have made documentary creation difficult in the European Union.

... As a result, directors are abandoning anything with a hint of pop culture content, Visalberghi told fellow filmmakers in Toronto.

As a reminder, the Documentary Organisation of Canada's "white paper" on copyright clearance issues provides some excellent background information on the issue (with the caveat, mentioned in my earlier post, that they seem overly fond of throwing around the word "censorship" when it comes to clearance matters).

Another Salvo in Charlie Wilson's War?

Arthur Kent (latterly the "Scud Stud") is "suing the makers of Charlie Wilson's War after footage Mr. Kent produced for a 1986 BBC news program about the Soviet Union's conflict in Afghanistan appeared in the 2007 Universal Studios movie without his permission".  It would be interesting to see the claim, as it appears that Kent is not only requesting monetary damages, but an injunction against further exploitation of the film - at least until it is altered to "eliminate anything associated with him". 

A number of questions arise from the brief description provided by the news report:

• who owns copyright in the footage used in the movie?  I'm not familiar with how the BBC handles copyright from independent producers (assuming Kent was not a BBC employee at the time he created the footage), but I would have thought the BBC would have acquired copyright in any materials which were produced at its behest.

• is Kent asserting a moral rights claim (perhaps not - the story seems to indicate that the claim is being brought in Los Angeles, and US copyright law provides exceedingly week protection for moral rights)? The report states that Kent "claims that his footage was re-edited and taken out of context ... images from Mr. Kent's documentary appear without their accompanying narration, and at other times narration is lifted from the documentary and is heard over other footage" - even if Kent does not own copyright in the footage in question, that would seem to be ripe territory for a moral rights claim, as distinct from a copyright claim.

In any event, this is a classic "errors and omissions" claim for a motion picture - a timely reminder of the importance for counsel to play an ongoing role in vetting all materials which are incorporated in a film project.