bob tarantino

The Costs of Crown Copyright

Michael Geist has another interesting post today on the issue of Crown copyright.  As Geist notes, and as I discussed in this post, this is an issue which on its face is startlingly boring but in practice has considerable implications for not only the dissemination of information, but also for ensuring the broadest possible ambit for reviewing and critiquing government action.  And it needs to be emphasized: the Canadian approach (which grants the government copyright for a period of fifty years) is painfully deficient when compared to the position of our American neighbours (no copyright in government materials).  Catherine Bond wrote a comprehensive overview [.pdf] of the matter (in the Australian context, which is comparable to the Canadian) which is well worth the time to read.

"there is no empirical basis for the [judiciary’s] contention"

Not bad work if you can get it:

Inclusive of the 3.2 per cent statutory indexing that kicked in April 1, 2008, puisne trial and appeal judges are now paid $260,000 per annum; chief justices earn $285,000; Supreme Court puisne judges earn $309,300; and the Chief Justice of Canada earns $334,100.

But not "not bad" enough, one supposes:

The judges seek cumulative salary increases of: 3.5 per cent in 2008; and 2 per cent in each of 2009, 2010, and 2011. This is in addition to the yearly statutory indexing they are automatically entitled to under the Judges Act –which boosts their salary in lock step with the prior year’s increase in the industrial aggregate, a measure of workers’ average weekly wages.

The Lawyer's Weekly provides a detailed examination of the ongoing fight between the government and the judiciary over raising judicial salaries, and the rather hallucinatory arguments being made.

"our local brand of half-assery"

Having co-hosted a blogstravaganza or two with Joey (Accordion Guy) de Villa (as well as having seen him bring down the house at Kickass Karaoke), I can vouch for the fact that he's a righteous dude.  Helpfully, we've had over the past few days a blog post which not only demonstrated that, but also serves as a quick tutorial in the differences between copyright infringement and plagiarism, demonstrates the "horizontal editing" function of blogs, and sparks some discussion on the efficiencies and other benefits to borrowing designs.

Start here: Joey notes two "suspiciously similar subway safety posters" from Toronto's TTC and New York City's MTA.  "Who plagiarized whom?" queried Joey.  It should be noted at this point that Joey's question was prompted not by snark, but by that sentiment which animates so many denizens of this city of a certain generation and which must be baffling to those slightly older: pride.  Why couldn't my city come up with its own damn subway safety poster? seemed to be the cry.

Helpfully, within a few hours, one commenter on the post had pointed out that the poster contained a trade-mark notice giving credit to the NYC MTA (the notice is helpfully reproduced in full in this post at Torontoist), and, even more enticingly, the TTC's Director - Corporate Communications himself commented and confirmed that the design had been licensed from the NYC MTA.  (I should note at this point that the "trade-mark notice" which is apparently reproduced on the poster is likely incorrect: it should be a copyright notice, since you would not be able to register a trade-mark for the entire poster - at least I can't see how you could.)  So Joey updated his post to correct the record, and then put up a second post, helpfully clarifying that "it's not plagiarism, it's just lameness".  A perhaps unnecessarily cutting conclusion, all things considered, but the comments on the second post start raising the questions noted above, such as whether the TTC's limited funds are better spent creating new poster designs or licensing existing ones from other transit authorities.

Anyways.  On to my point.  Joey called "plagiarism".  He could just as easily have called "copyright infringement" - but most people wouldn't think to do so.  In this case, given the substantial similarities between posters, any unlicensed use would certainly have been infringement.  But what's the difference between "plagiarism" and "copyright infringement"?  There's overlap between the two concepts, but they aren't entirely continguous. 

The basic distinction is that copyright is a legal matter, while plagiarism is an ethical matter (copyright, being legal, is also potentially ethical, on the theory that any violation of the law is prima facie unethical, but since laws can be themselves unethical, their breach is not necessarily so).  That distinction has a number of implications - perhaps the most important being institutional.  As this short note by The National Council of Teachers of English puts it, "Schools enforce plagiarism. The courts enforce copyright infringement."

This detailed post at plagiarismtoday.com offers a good overview.  The American Historical Association also has a considered take on the matter, including examples.  And Miguel Roig has published the amazingly in-depth "Avoiding plagiarism, self-plagiarism, and other questionable writing practices: A guide to ethical writing", which should be enough to strike the fear of God into anyone who has ever submitted a written paper for anything.

The Great Canadian Crime Comic Caper

The publication of The Ten Cent Plague: The Great Comic Book Scare and How It Changed America, written by David Hajdu, has prompted a slew of stories in the media about the mid-1950s efforts in the US to censor the contents of comic books.  Canadians, being innovators in all things, can take pride [/sarcasm] in the fact that we were well in the vanguard on this one: Canada made it illegal to publish or sell "crime comics" nearly five years before the US Congress began looking into the matter.

Chapter One of Under Arrest - Canadian Laws You Won't Believe provides a detailed examination of the history of the enactment of the "Fulton Bill", as well as the history of prosecutions thereunder.  Even better, the "crime comics" provisions of the Criminal Code remain in effect, as Sections 163(1)(b) and 163(7) - so it is technically still illegal in Canada to sell a crime comic.

"they have made the franchise a lucrative one"

The big news early last week was the opening round of sales figures for Grand Theft Auto IV - the latest videogame release which, inexplicably, warranted prime time news coverage.  Back around the last time a game release was front-page news, Richard Poplak penned a thoughtful piece pointing out that a few hundred million dollars in gross sales is slightly less impressive when the per-unit cost hovers around $75.

Feed Reads 05.11.08

A round-up of interesting (if miscellaneous) stuff that popped up in my RSS feeds:

• Torontoist looks at some buried Toronto history

• Dave Sim (of Cerebus fame and other small amounts of infamy) is back, with a meditation on the roots of anti-Semitism

• since I spent two weeks in Japan in the fall of 2007, I've become a bit of a Japanophile; Marcus Gee had a long piece in the Globe on Saturday examining what has happened to Japan (particularly its economy) over the past twenty or so years, and what the prospects are for the next twenty

• an 11-year old boy in Hamilton is being kept from his family and forced to undergo chemotherapy treatment to which neither he nor his parents consent

• Susan Neiman ponders whether Kant's Critique of Pure Reason is the greatest work of modern philosophy

• Slate explains how media outlets decide what country name to use (viz. Burma or Myanmar?)

"“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.