bob tarantino

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.

Launch of Osgoode Hall Review of Law and Policy

Shouts to the Osgoode Hall Review of Law and Policy, which recently launched an "online legal journal", which aims to "highlight jurisprudential and legislative activities in Canada and other parts of the world".  The inaugural issue can be viewed here (.pdf), and includes a piece from David Vaver doing what he does best (i.e., offering his incisive and comprehensive thoughts on IP law).  What makes the OHRLP particularly note-worthy is its commitment to taking advantage of the technology available to it: online, searchable, RSS feeds, a discussion forum - some of the features aren't yet functional, but it augurs well for the future.  The ability (and apparent commitment) to publish material "without the delays associated with print publications" is just one of the exciting aspects to be celebrated.

Toronto Star on Toronto Film

The Toronto Star spent considerable effort this past weekend focusing on the Toronto film industry.

• Peter Howell wrote about "the paradox of Toronto that even while the city enjoys international recognition and acclaim for the annual Toronto International Film Festival, the burg can't catch a break when it comes to actually appearing as itself in movies. You are as likely to see the CN Tower in a Hollywood movie as you are the Abominable Snowman. It's almost inconceivable to think of a film being made in Paris without showing the Eiffel Tower. Yet Paris is rarely called upon to wear a mask the way Toronto so often is." (Left unasked is the question of whether the disguising of Toronto perhaps has something to with the fact that the most compelling visual of the city that Howell could come up with was in fact not a "visual" but the fact that we have a film festival every fall...)

• Philip Marchand profiled the post-production industry in the city.

• uber-producer Don Carmody offered his thoughts on Toronto's selling points for US studios and what else could be done to enhance the city's profile as a filmmaking destination.

• A graphic representation [.pdf] of declining film and TV spending in Toronto over the last eight years.

• A map of the Filmport facilities [.pdf].

• A nice graphic [.pdf] showing how soundstages are constructed.