bob tarantino

The Curious Case of the Actor’s Performance (Part One)

The nice folks at IP Osgoode's IPilogue blog have asked me to contribute, and my first post (part one of a two-parter) is up now and can be read here.  The precis:

As many reasons as there might be to reform the Copyright Act, one garners comparatively little attention: for practitioners the Act often offers up a confusing mess of poor drafting, unclear policy motivations and nonsensical results.  A quick tour through Sections 15 through 17 of the Act, three sections which have particular relevance for entertainment lawyers, will demonstrate the point.  The sections, which address a “performer’s performance”, are (or should be) of daily concern for lawyers representing film and television producers and the actors hired by those producers.

UPDATE: Part Two is now up here.

Entertainment, Media and IP Law 03.25.09

Peeking behind the curtain:  Michael Geist comments on the decision of an Ontario judge to order the disclosure of all information relating to discussion board participants by the owners of the website.  Geist's conclusion: "I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met."

The grandest licensing scheme of them all:  Geist (him again) reports and comments on the Songwriters Association of Canada proposal to create "a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms".  The most interesting part of the initiative is its potential for extension to video works as well, since ACTRA has evidently expressed some tentative openness to considering the issue.

Bloodsport:  Barak Y. Orbach has written a paper about the origins of US film censorship - which oddly enough apparently has its origins in films of boxing matches in the late 1800s (ht: Media Law Prof Blog).  Download the paper here.

The most painful headline ever:  In reporting on the news that a Toronto firm has been tasked with licensing and protecting the trade-mark interests of Bob Marley's estate, the CBC elected to use this headline: "Toronto firm gets up, stands up for Bob Marley trademark rights".  Ow.  (Oh, and shouldn't the CBC style guide prefer the Canadian iteration "trade-mark" to the American "trademark"?)

"It costs money even to talk to the copyright holders": Everybody else has already talked about Sita Sings the Blues and its innovative release strategy, but I would be seriously remiss if I didn't mention it as well.

Consistently in the middle of the pack:  The Canadian Intellectual Property Office released its 2007-2008 Annual Report a few weeks ago.  9,321 copyright applications were received, compared to over 47,000 trade-mark applications, 5,174 industrial design applications and 0 (count 'em) integrated circuit topography applications.

Entertainment, Media and IP Law 03.15.09

New techniques: A couple of interesting stories this past week about emerging Canadian talent - David and Ian Purchase used YouTube to get noticed by Hollywood, and one-eyed Toronto filmmaker Rob Spence is planning on using a camera embedded in a fake eye to film a documentary about "the rise of global surveillance" (also here).

Flashpoint opens the door: One of the funny things about Hollywood is the herd mentality - if something works once for one guy, everybody's got to follow suit.  Thankfully, this time the trend is working in favour of Canadian film and television producers.

Defamed today, defamed forever: An interesting discussion over at slaw about whether the time period for launching a defamation action over an online publication should begin running from the first time it was placed online or whether it should start afresh every time the online publication is accessed regardless of how long that is after initial publication (in England, the answer is evidently the latter; in the US, the former).

New Media Fund? Meh: Concerns are expressed about the newly constituted Canada Media Fund and conflicts of interest.

Backstage blogging: Gordon P. Firemark muses on the dangers of letting talent talk about their work experiences while still on the job.

Fairey Use?  More discussion on the AP/Richard Fairey copyright dispute here (Knopf) and here (Wired).

ImageStamper: Plagiarism Today provides some in-depth coverage on an interesting new service which "stamps" a Creative Commons license onto digital images.

Inaccurate sales figures? Surely you jest: Clive Cussler ordered to pay nearly US$14 million to production company over misrepresentation of the number of copies his novels had sold.

The children are our future: Fascinating interview with Terry McBride of Nettwerk Music Group here.

The Fragility of Digital Delivery

This story, about YouTube blocking music videos in Britain due to a failure to reach a new licensing agreement with the PRS (Performing Rights Society), which collects royalties in respect of and administers the licensing of the public performance right of songwriters, highlights the fragility of the music delivery mechanism in a digital age: due to the mind-numbing complexity of managing the rights issues involved, any rupture in the chain results in the consumer being unable to access music.  This is a relatively trivial example, since no one exactly *needs* to watch videos on YouTube, but if the great hope of subscription services is ever realized (i.e., listen to (but not be able to download) any music anywhere at any time), it will become critical: one broken-down negotiation and suddenly you can't listen to the music anymore (obviously excluding music you already own and can play on your own).

"the potential copyright liabilities here"

Chris Bennett & Jeannine Tse provide a concise analysis of the copyright implications of "sharing" electronic versions of articles by means of email and blog posts.

"it could be quite shocking or it could be quite gratifying"

An English publisher and author are experimenting with a "pay what you wish" model for the author's next book (a book which bears the perhaps unintentionally hilarious (in light of this initiative) title What Price Liberty?.  Which is an excellent idea, but one thing might make it even better: the publisher should add an option which allows purchasers to "top up" their payment afterwards.  In other words, it would be interesting to see if purchasers who decided to pay $0 or, say, $5 would, after downloading and reading the book, be willing to "top up" their payment - in effect saying "I thought I was going to get $x worth out of this purchase, but in fact I got $x+y - here's the $y".

The Hermeneutics of Excerpting

Connie Crosby poses the question: How Much Excerpting of the News is Acceptable?  By which is meant, how much of a news report from an MSM website can you "excerpt" on your own website/blog/etc. before it constitutes copyright infringement?

Connie links to a New York Times article about the issue, which is usefully summarized by the following passages:

Generally, the excerpts have been considered legal, and for years they have been welcomed by major media companies, which were happy to receive links and pass-along traffic from the swarm of Web sites that regurgitate their news and information.

But some media executives are growing concerned that the increasingly popular curators of the Web that are taking large pieces of the original work — a practice sometimes called scraping — are shaving away potential readers and profiting from the content.

The NYT article essentially concludes that no one knows what the answer is, and that those " in search of a legal word limit are sorely disappointed". 

Here's the important thing to keep in mind (well, important for Canadians, at least): whatever the answer is in the United States to the question which Connie posed, it is likely that the answer is different in Canada.

The reason for that is that the analysis under US copyright law turns on the vagaries of the "fair use" doctrine.  And in Canada, we have no "fair use" doctrine - we have only a related concept known as "fair dealing".  Regrettably, "fair dealing" under Canadian copyright law has not received extended consideration from the courts - at least not by comparison with the articulation of the "fair use" doctrine - so its contours remain largely unclear.  In order for excerpting to qualify as "fair dealing" (and therefore not constitute copyright infringement), the activity would need to be capable of being construed as one of (a) research or private study, (b) criticism or review, or (c) news reporting.  Unfortunately, except for "research or private study", Canadian courts haven't delved into what those phrases actually mean.  Is a blog which reprints a column or news report in toto with a couple of introductory remarks and perhaps a pithy "Indeed." appended to the end of the post engaging in "criticism" or "review" or, heaven forfend, "news reporting"?  Who knows?  Even if it is, the Copyright Act requires "mentioning" the "source" and the "author" of the original news report - does provision of a hyperlink satisfy that requirement? *shrug*

But the critical analysis really happens once we've dealt with such prosaic considerations.  Then, the criteria for fair dealing set out by the Supreme Court of Canada in CCH v LSUC (which I disccused in more detail here) come into play: the purpose of the dealing; the character of the dealing; the amount of the dealing; alternatives to the dealing; the nature of the allegedly infringing work; and the effects of the dealing on the work.  The latter three would, I think, likely be dispositive in assessing "excerpting": would just providing a link have sufficed? Has there been any "value added" by excerpting? Has the excerpting interfered with, precluded or rendered unnecessary a visit to the original source?  There are no hard and fast rules to be enunciated here because what we're dealing with is a matter of context in every case.  But the broader context (the really broad context, if you will) is that Canadian and US copyright law are likely to come to different (perhaps not radically different, but different nonetheless) answers to the question "how much excerpting of the news is acceptable?".

Copyright Reform

Howard Knopf posts about the impending extension in the UK of copyright protection for sound recordings (I previously posted about this issue here).  He notes that in the UK a group of academics has signed an open letter to the government objecting to the proposed extension.  As Knopf plaintively queries, "if a group of academics in the UK can get together and sign a joint open letter on an important public policy issue, as we also sometimes see in the USA, why has this never happened in Canada?".

I have a broader plaintive query (one which I've been wondering about for a while now): why is it that we still don't have a viable project to draft a proposed revised Copyright Act?  Virtually everybody concedes that the existing Act is a mess - even if you think that it substantively doesn't need correction, it's an unholy mishmash of poor drafting, outdated terminology and nonsensical structuring.  Why can't someone convene a group of academics and practitioners to prepare a model of a revised act?  At the moment, all we've got is unprogrammed criticism and commentary, while everybody waits impatiently for the government to come up with the latest patchwork amendments to a teetering, decrepit building, which will inevitably please no one.  The McGill Centre for Intellectual Property Policy effort at a new Copyright Act wiki seems to have died due to lack of attention.  Lord knows industry lobbyist efforts are focused and effective - what's to stop the rest of us from aiming for a professional, dedicated and clear effort of our own?

Copyright, Kindle and Complication

Howard Knopf's latest post on the Amazon/Author's Guild Kindle brouhaha, which is worth reading in its own right, includes links to this Jack Schofield post (also worth reading), and this post by Lawrence Lessig, which makes use of the term "Corleone-like".

It's worth thinking about the connection between the points which Knopf, Schofield and Lessig raise, and those raised by David Post in this excellent item at Volokh, pointedly entitled "The Death of Copyright, Item #241".  Post's basic point: copyright has gotten way too complicated ("it takes orders of magnitude more time to do the copyright clearances than it does to create the [original] work").  At the interface of new technology and copyright law, it's difficult to see how the former could help but result in complication of the latter.  In a bit of legal judo, perhaps the answer lies in making use of new technology (e.g., the ability to create massive accessible correctable databases) to service the enforcement (and enhanced understanding) of copyright - which may not solve problems of (perceived?) overreach, but at least would assist in rectifying the feeling that stepping into the world of copyright is akin to drowning in quicksand.

David Post over at Volokh has a nicely subtle analysis of the Shepard Fairey / Obama Hope Poster dispute (previously discussed here and here).  Post concludes there wouldn't be a finding of infringement, because nothing to which a copyright interest attaches has been copied:

The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.

That's an interesting argument - under Canadian copyright law I think the counterargument would be that (assuming Fairey actually copied the Garcia/AP photograph) use of the Barack Obama image contained in the photograph falls afoul of the copyright owner's exclusive right to "produce or reproduce the work or any substantial part thereof in any material form whatever", where "the work" is "the photograph" and cannot be artificially atomized into constituent "parts" (e.g., Obama's face, the background, the lighting, etc.).  In other words, contra Post, the copyright owner does not have copyright solely in the elements of the photo (though he or she may have that as well) but in the totality of the photo, and lifting the "face" portion of the photograph cannot be construed as something apart from lifting the "photograph" itself.

Kindle 2 and Reading Books Aloud (Out Loud?)

One of the more enjoyable aspects of following copyright law, particularly over the last, say, twenty years, is that as technology changes we witness extensions or applications of the law which were likely literally unthinkable to previous generations of lawyers.  Take, for example, the new Kindle 2 e-book device and its capability of reading aloud the text of an e-book which is loaded onto it.  We can all be fairly certain that nobody, when drafting or revising the Copyright Act, was thinking "so, d'you think this language will cover a situation where someone invents a device that lets you 'download' a digital version of a book, read it and will even, if you're so inclined, read the book aloud?"  That there now is such a device has prompted a variety of responses:

• the Authors Guild is "studying [the] matter closely"

• Howard Knopf describes the Authors Guild's concerns as a "contender" for "most excessive copyright claim of the year"

• Simon Fodden at slaw looks at the legislation and concludes that while using a Kindle to read a book to an audience would infringe copyright, "there’s the issue of when a reading is a performance and when it’s simply a (licit) private act"

• finally, Canadian sci-fi author Robert J. Sawyer, one of the good folks who has copyrights that would actually be affected by this whole endeavour, has the following, rather well-phrased, observation (which prompts a rather vigorous debate in his comments):

I'm not saying that, ultimately, the right to have text read aloud electronically should be limited; I am saying that the way in which the publishing industry and traditional rights issues are being trampled without consultation -- whether it's Amazon potentially cannibalizing audio-book rights (and the irony that they now own Audible.com is not lost on me) to Google just goin' ahead and digitizing my books, and everyone else's, without so much as a "May I?," is pernicious. The Authors Guild is right to be objecting, and Amazon was wrong to do this without permission; all stakeholders need to be involved in the discussions -- including authors.

"there should be no doubt about the legality"

Now that's a litigation strategy:

Artist sues Associated Press over Obama image

An artist who created a famous image of Barack Obama before he became president sued The Associated Press on Monday, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.

The lawsuit filed in U.S. District Court in Manhattan said street artist Shepard Fairey did not violate the copyright of the April 2006 photograph because he dramatically changed the nature of the image.

The AP has said it is owed credit and compensation for the artist's rendition of the picture, taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington.

I discussed this story earlier here.  Seeking a judicial declaration is an audacious move, but it is a beneficial one not just for the tactical maneuvers which are occuring in the case - it will be nice to have an actual precedent set via court decision, rather than the matter quietly disappearing from public view by means of a negotiated settlement.

"undeniable cultural impact"

It's a little surprising that this has taken so long to become a legal matter, though I suspect it's because the AP didn't want to endure the potentially poor optics in the middle of an election:

The Associated Press says it wants credit and compensation for use of a copyright-protected photo in the creation of Shepard Fairey's widely imitated "Hope" campaign poster for Barack Obama. ... Fairey reportedly found the image through an image search on Google.  AP says the photo was taken April 2006 by Manny Garcia, who was on assignment for the wire service, at the National Press Club in Washington, D.C.

Fairey's attorney will be asserting a fair use defence:

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

It's worth noting that, under Canadian copyright law, this would likely be an open-and-shut case of infringement: our "fair dealing" concept is simply too restrictive to accommodate the argument (the statutory regime for fair dealing is here and I went into some details about the fair dealing analysis here).  It doesn't strike me that this is a particularly strong case for fair use, either, but at least the argument can be advanced in the US.

"a major victory for all of those who release code"

Plagiarism Today posted an informative summation of the recent Jacobsen v Katzer decision [pdf] by the US Court of Appeals for the Federal Circuit.  The fundamental import of the case is this: infringement of the terms of an "open source" license amounts to copyright infringement and not just breach of the terms of a contract.  As Jonathan Bailey at PT lucidly explains, that has very important consequences for the range of remedies available against an infringer.

"Fair Dealing After CCH"

My former classmate, and current Osgoode Hall professor, Giuseppina D'Agostino, wrote a wonderfully comprehensive piece on "fair dealing" in Canada in the post-CCH environment which is now being hosted by Canadian Heritage - of particular interest is that it contains comparative analyses of the concept in the UK and of "fair use" in the US.  An html vesion can be accessed here, and a .pdf version here. (h/t Geist)

Cousin of Sam

At dinner the other night, one of my fellow entertainment lawyers was kind enough to gently point out to me that I got something wrong last year when I wrote about "Son of Sam" laws in Canada.  After recovering from the shock engendered by learning that someone actually reads this blog, I thought it prudent to take the opportunity to correct myself.  As I wrote at the time:

Although it's not precisely the same situation, it's worth noting that there are no "Son of Sam" laws in effect in Canada.  The most recent attempt to pass such legislation (which would have had the effect of transferring a convicted criminal's copyright in their writings to the Crown) was, apparently, in 1998, when Liberal MP Tom Wappel tried to get a private member's bill passed the proposed legislation was rejected by a Senate committee, after having passed third reading in the House.

I got that bold part way, way wrong.  The only sense in which I was correct was that there was (and remains) no "Son of Sam" law in effect at the federal level.  In Ontario, at least, a "Son of Sam" law in indeed on the books: the Prohibiting Profiting from Recounting Crimes Act, 2002, which itself was an effort to update (and which repealed) the Victims' Right to Proceeds of Crime Act, 1994.  The act does not appear to have been the subject of a reported decision thus far.

CBC Terms of Use

The CBC's official blog has a rather cutting (and insightful) post examining the CBC's own Terms of Use, which includes a proposed "plain English" re-drafting of the TOS which is acually quite good.  Worth a chuckle was the eye-rolling over the inclusion of the phrase "throughout the universe" - something which is second-nature to most of us drafting contracts in this field, but which rightfully raises eyebrows among non-lawyers.

Copyright Roundup 05.20.08

• William Patry offered a quick overview of U.S. law on the occasions when you can infringe copyright by copying a work which is in the public domain (hint: when the PD work is itself a derivative work of a work which is still subject to copyright protection)

• a detailed recounting of recent infringement shenanigans involving the BBC, Doctor Who and, um knitting (ht: Darryl Moore)

• PlagiarismToday offers a FAQ on DMCA takedown obligations

• calm copyright canada aims to offer a forum for the de/reconstruction of Canadian copyright law "through collaboration and communication"

• Russell McOrmand posts about.. well, a bunch of stuff, including whether trade associations for professional writers are helping or hurting their members in their efforts to effect copyright reform - a lively set of comments ensues

"shouting chamber for ideas about copyright reform"

John Degen, who is Executive Director of the Professional Writers Association of Canada, wrote a piece in the Globe and Mail (ht: Geist) today which, having read it a couple of times now, is (a) slightly odd, and (b) is, as with so many things copyright-related, being somewhat misunderstood. 

The op-ed column bears the bizarre title "Who needs copyright, anyway?" - bizarre because it misrepresents the entire thesis of the piece.  In answer to the question embodied in the title (presumably composed and appended to the piece by a Globe editor), Degen notes that, well, he himself needs it:

As a writer, I'm naturally concerned about copyright. It's the legal framework in which I make my living. ... The Uninvited Guest remains my intellectual property. When it comes time to sell the film rights, for instance, it will be me doing the selling.

Well, yes - and it is precisely because of copyright that, when it comes to sell the film rights, it will be him doing the selling (and, hopefully, reaping the rewards).  (For those wondering about the title Degen references, he is giving away copies of his novel, The Uninvited Guest, at his place.)

Unfortunately buried in Degen's piece is his point, and it's a valuable one, which makes it the more distressing that the Globe seemed intent on torquing his argument:

Importantly, all this activity [i.e., his election to make his book freely available online] will occur within the legal boundaries of copyright law.

Exactly - one of the critical aspects of the "copyright wars" (to borrow Degen's term) is the conflation (to the detriment of the debate) of copyright law and copyright culture.  Copyright law says John Degen has the right to seek damages for infringement if someone takes his book, puts it online, and shares it with their friends (or anyone else); copyright culture involves Degen electing to forego, on his own terms, those rights to enforcement and instead engage his audience through the technological means at his disposal.  The distinction is similar to that underlying the Creative Commons initiative: Creative Commons is not an alternative to the copyright regime or a substitute, it is a mechanism for using the existing legal regime in a manner which accords with the cultural preferences of its users - which is to be celebrated, but not transmogrified into something it is not.

Crown Copyright Redux

Further to my recent post about Crown copyright, Mark Lewis at slaw notes that Reproduction of Federal Law Order S.I. 97-115 (which, I must say, has an amazingly unwieldy title) provides for a relatively effective license for the reproduction of

"enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals"

The license is, however, conditioned on the exercise of "due diligence" in ensuring the accuracy of the materials. 

As the Order notes, "it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law" - which begs the question: what then is the justification for a copyright law which has the effect of impeding such access? Further, as Lewis notes, the Order is restricted to federal laws and decisions - though apparently the provincial governments "generally abide by the spirit" of the Order.  While the sentiment is very sweet, for the life of me I can't begin to imagine why the right of a Canadian to access his or her own laws should depend on the good graces of the bureaucatic mind.  The Ontario government has a policy statement (which can presumably be rescinded or modified at a whim) which requires any reproduction to contain a notice of Crown copyright.

Copyright Roundup 05.15.08

A few items of note from the last few days:

• Superman, cancer patients and copyright - Darryl Moore discusses

• this is about the fourth time in recent memory that there have been rumblings of an imminent copyright bill being introduced - I give it about the same odds as the last few times (which is to say slim to none) - but Michael Geist ponders a better way of going about it

• Howard Knopf on copyright enforcement efforts by Getty Images

• William Patry discusses a recent Australian case which seems to augur a frightening prospect (and one which Canadian courts, I think) are getting closer and closer to endorsing: copyright over facts

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.

"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.

"“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.

"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].

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.

"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?

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.

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."

"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).

Parody Finds Its Way In

Michael Geist notes that the federal Industry Committee considering Bill C-47 (which would accord additional protection to Olympic marks) has modified the draft bill to include protection for parody.  Geist notes a variety of other amendments which were made to the Bill and their significance, but I think it's worth highlighting the importance of the "parody" amendment - unless I'm mistaken, this marks the first time that any Canadian intellectual property legislation recognize parody as a defence to a claim of infringement.  Among other deficiencies, the lack of a parody defence in Canadian IP law ranks as one of the biggest issues to be addressed.  If this committee recognizes the need for a parody defence in this narrow instance, that hopefully bodes well for an acceptance of that conclusion in future reform efforts.

"cartoons in a second bag"

The story of the Ben Wicks cartoons has been garnering coverage lately:

The children of the late cartoonist Ben Wicks went to court yesterday to try to reclaim 2,408 vintage drawings left behind in a move.

Vincent Wicks, the cartoonist's son, moved from Keswick to Vancouver 15 years ago, leaving a bunch of garbage bags including three full of Ben Wicks cartoons.

They were discovered by Richard Harnett, the new homeowner's brother. The two brothers kept the work and, six years ago, Richard proposed they publish a book with the best material.

It would be interesting to see the pleadings in the case.  It appears from news reports that the Harnetts are claiming ownership of the physical drawings, but not asserting any ownership in the copyright to the drawings (which is why the Harnetts approached the Wicks, because the Harnetts would need authorization from the copyright owner in order to publish (i.e., make copies) of the drawings).

The case highlights the distinction between ownership of the physical vehicle on which copyrighted work is carried (i.e., the canvas on which a painting is painted) and ownership of the intellectual property rights in the work itself (i.e., the painting).  At a guess, the Harnetts are likely arguing that the property (i.e., the pieces of paper themselves) was abandoned (on a sort of "finder's keepers" theory), and are seeking the right to sell the cartoons at an auction or something similar - an art appraiser is noted as having estimated a value of over $55,000 dollars for the nearly 2,500 drawings.

While real property can clearly be abandoned through lack of assertion of ownership, it isn't as clear that intellectual property rights can be - though you can gift or quitclaim any intellectual property rights, that requires a positive action on the part of the former owner.  In any event, section 14 of the Canadian Copyright Act contains a provision which provides that copyright ownership in a work reverts to the estate of a deceased creator twenty-five years following death, regardless of any intervening license - query whether that would apply to any purported "abandonment" of the copyright.

Government Work

When does the government have copyright in the materials it creates?  Michael Geist has an interesting column today addressing when, if ever, it is "appropriate for any private broadcaster to maintain copyright control over the public discussion and debates of elected officials" (he has a supplemental post here).  In short, can C-SPAN, the US cable channel which films and broadcasts Congressional hearings and debates, assert coyright ownership over that footage?  As Geist points out, C-SPAN now permits non-commercial usage of its footage.  In Canada, CPAC, the equivalent of C-SPAN, does not assert copyright control over footage of Parliamentary debates - but unfortunately it takes the position that the Speaker of the House and the Senate do have copyright ownership over those same debates.  In other words, in Canada you would, stricly speaking, need to obtain the permission of the Speaker of the House if you wanted to, say, create a parody clip using footage from Question Period which you had recorded off of CPAC.

A situation raising similar issues arose earlier this year when the Conservatives used footage from a Liberal leadership debate in some television ads - as I concluded at the time, had anyone been interested in pressing the issue, the Conservative Party likely would have come out on the losing end of that particular tussle.

While I'm hesitant to see connections where they aren't warranted, I think the difference between the C-SPAN position and the CPAC position can be traced to an analogous underlying matter: how Canada and the U.S. answer the question of when government itself has copyright in material it creates.

Under the U.S. Copyright Act, "Copyright protection under this title is not available for any work of the United States Government" (subject to certain exceptions).  A "work of the United States Government is defined to mean is "a work prepared by an officer or employee of the United States Government as part of that person's official duties".

Contrast that with the position under the Canadian Copyright Act: section 12 provides that "Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year".

The default positions are thus mirror images: in Canada the assumption is that the government owns copyright in works created under its authority, whereas in the United States the assumption is that the government does not own the copyright.

Couple that starting position with a more robust "fair use" doctrine (as opposed to the Canadian "fair dealing" concept) and you start to see the contours of how we ended up in a situation where political discourse undertaken in public can become the subject of copyright claims.  As I said, it's hardly a straight line, but the differing conceptions of the public sphere and the importance of free-ranging expression certainly inform the matter.

Reproduction Tariff

For those interested in how the world of online music sales functions, the Copyright Board of Canada yesterday released their decision on the mechanical royalty rates to be paid by online music sellers.  Nearly sixty (count 'em!) pages of analysis go into explaining how the Board arrived at the relevant results: 7.9% of retail sales price for permanent downloads, 5.3% of the subscription fee for limited downloads and 4.1% of the subscription fee for streaming.  Michael Geist comments here, and Russell McOrmond provides some structural background on how the whole thing works here.

"would've said no"

And so the worlds collide.

Conservative attack ads fired at Liberal Leader Stephane Dion may end up sideswiping the ruling party after questions were raised about possible breach of copyright laws.

Indeed.  The three ads (which can be seen here) each appear to use footage from the Liberal leadership debates which took place last year.  According to the Star story, "that footage belongs to a consortium of TV networks which pooled their resources to provide live coverage of the debates" (presumably the copyright of the networks arises under section 21 of the Copyright Act (Canada)).  It would appear then that, prima facie, the Conservative ads infringe copyright in the footage (should somebody be entitled to copyright protection just because they plopped a camera in front of some people and pressed "record"? from such questions are law schools essays spawned).

The Conservative response related in the report indicates that the party is, at this point, refusing to say how they obtained the clips.  It's raised as a possibility that a Conservative member filmed the debate(s) him or herself from the audience - unlikely, though, since the cameraperson managed to score a killer angle for most of the shots and kept an awfully steady hand while doing so.  It's also possible that the party obtained the footage from the "marketing or archival" unit of one of the networks involved - if that's the case, the question of infringement will be a function of whatever license was obtained in respect of the footage.

But as with so many things these days, this is an opportunity to reflect on a larger issue: should there even be a possibility of infringement in situations like this?  In Canada, as mentioned above, this appears to be a case of prima facie infringement.  American readers are likely thinking "this is a clear fair use example" - except that, as Canadians are wont to forget, we don't have the benefit of a broad and flexible "fair use" doctrine in Canada.  Instead, we are yoked with a limited, desiccated "fair dealing" concept.  The Copyright Act enumerates certain exceptions to infringement - and if you can't fit yourself into one of them, you've infringed copyright. 

As Michael Geist, who is quoted in the Star article, notes, there is a remote possibility that the use of the footage could fall under one of the "fair dealing" exceptions to infringement outlined in section 29.1 of the Copyright Act (Canada):

Fair dealing for the purpose of criticism or review 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.

That would be a hell of an argument to make.  First, there does not appear to be any attribution in the Conservative ads to the owner of the footage, so the obligation to identify the source has not been met.  More fundamentally, however, is the matter of whether this is properly a case of "criticism".  If so, I think it would represent a novel expansion of the "criticism" concept.  Generally, the criticism has been understood to allow a reproduction in order to enable criticism of the work being reproduced - so, for example, if you're discussing a painting, you should be able to reproduce the painting in the context of your article/essay/whatever, in order to enable the readers to appreciate what it is you're discussing.  But in the case of the Conservative ads, they aren't engaged in a criticism of the work which is protected by copyright (i.e., the recorded footage itself), they're engaged in a criticism of a subsidiary element which is itself embodied therein (this "subsidiary element", i.e., the "performance" of Dion and Ignatieff is unlikely itself to be the subject of copyright protection, but I'm open to arguments to the contrary, which if correct would make the hypothetical Conservative position even more tenuous). 

Assuming the Conservatives could clear the (high, in my opinion) hurdle that their use in fact constitutes "criticism", question of whether the "dealing" is "fair" would need to be addressed.  Per the Supreme Court of Canada's decision in the CCH case, they would then need to satisfy the following tests (see para. 53 of the decision):

(1) the purpose of the dealing;

(2) the character of the dealing;

(3) the amount of the dealing;

(4) alternatives to the dealing;

(5) the nature of the work; and

(6) the effect of the dealing on the work.

Item (1) is really just a reiteration of the question of whether what they are doing constitutes "criticism".  Items (3) through (6) would likely favour the hypothetical Conservative argument (being, respectively, minimal, none (or limited), largely irrelevant and none).  Item (2), however, could, in tandem with item (1), be fatal to the argument, since the Supreme Court expressly mentioned that "multiple copies of works ... being widely distributed" will "tend to be unfair"; it's an open question whether such an analysis merits application in a digital/broadcast context, but, again on it's face, it doesn't look good for the Conservatives.

Assuming you haven't started bleeding out the eyes from boredom at the foregoing, I'll leave the final word to Michael Geist, who I think get the salient issue exactly right:

"Frankly, it should be beyond doubt that they should be able to use short clips of these kinds of public political events that should fall under a fair use doctrine. I think it's unfortunate that under Canadian copyright law there is some level of uncertainty."

"new manifestos"

Slate answers the burning question: who owns the Unabomber's writings?

Federal prisoner Theodore Kaczynski, also known as the "Unabomber," is suing to keep the government from auctioning off his personal papers to raise money for his victims. Kaczynski wants to donate the manuscripts to the University of Michigan instead. Doesn't the Unabomber have control of his own writings?

... Does the government get the copyright when it seizes a prisoner's personal writings? Some legal scholars think it does, although Kaczynski is arguing otherwise. Even if the feds couldn't transfer the copyright on Kaczynski's writings, they'd probably be able to sell them. That's because they're not trying to reproduce them; instead, they're selling the papers as physical objects, along with other items he owned.

I think that's probably the analysis which would obtain in Canada as well.  Although it's not precisely the same situation, it's worth noting that there are no "Son of Sam" laws in effect in Canada.**  The most recent attempt to pass such legislation (which would have had the effect of transferring a convicted criminal's copyright in their writings to the Crown) was, apparently, in 1998, when Liberal MP Tom Wappel tried to get a private member's bill passed - the proposed legislation was rejected by a Senate committee, after having passed third reading in the House.  This short piece sets out some of the arguments against a "Son of Sam" law.  It appears that a number of US states have "Son of Sam" legislation in force, although the constitutionality of such statutes remains controversial.

UPDATE: ** Wrong, wrong, wrong.  See here for details.

"a hard time getting worked up"

So, the other day, Cory Doctorow wrote this post at boingboing about copyright in Canada, which prompted this piece at Maclean's.  A little hyperbole never killed anyone, but here are the relevant portions of Doctorow's take:

Canada's about to have a copyright disaster

... Bev Oda (the Canadian Tory Heritage Minister who funded her campaign with money from the big entertainment, software and pharma companies) is poised to bring down new copyright legislation that will plunge Canada into the dark ages, outdoing the USA for sheer boneheaded lunacy.  ... Record companies like Sony, Warner and Universal are terrorizing the world by suing hundreds of music lovers every month. ...

I mean, I guess.  But take some time to look through the boingboing post, and then through the Maclean's piece, and you'll notice something: not the faintest whisper of what proposed amendments to the Copyright Act will actually say.  Because nobody knows (well, somebody knows, I'm sure, but it isn't public knowledge).  The proposed amendments haven't been tabled, and there isn't even any solid evidence (like, say, an announcement by the government) that they will be tabled any time soon.  These are important issues, but fear-mongering in the face of next to no evidence doesn't strike me as being terribly helpful to anyone involved.

On a related note, Heritage Minister Bev Oda will be speaking on Monday to the OBA's Entertainment, Media and Communications Section (of which I am, bashfully, Vice-Chair).  Anyone who is interested is encouraged to register and attend, but we're close to being sold out.  I'll be sure to let y'all know if the Minister says anything bearing on the timing of the copyright reform legislation.

Free Stuff!

Copyrightwatch.ca is a blog which is, unfortunately, infrequently updated, but when it is, it's almost inevitably fascinating.  So, with a tip of the hat to Michael Geist (and particularly the "Must Reads" section of his blog, which genuinely warrants the name), everyone should check out the Public Domain Day 2007 post, which lists dozens of authors whose works have gone into the public domain effective January 1, 2007 (note, however, that for authors whose originals works are not in the English language but have been translated into English (or other languages, for that matter), the translations themselves may still be the subject of copyright protection).  Which means that all sorts of material can now be reappropriated, remixed and refreshed - or, as Wallace McLean rather more lyrically words it, it is an index of material from which "modern-day creative people, historians, academics, and citizens of all interests, can recreate and build on the legacy ... left [to] us."

"All things that the technology utopians say they wanted to avoid"

Speaking of photographs, taking things down from the theoretical world of copyright and infringement thereof, a photojournalist writes a sobering account of how technology has enabled easy infringement of his copyright and appears to run the risk of beggaring him in the process.  There are a few different threads which are run together somewhat willy-nilly (it's as much a rant against "citizen journalism" as it is about the enforceability of copyright and economic rationalization), but it's an interesting read:

Fifteen years ago my sector had over a dozen photo-agencies which worked with freelance photographers, providing images to newspapers and magazines. Some specialized in sport, some in long-term documentary projects, some in hard news. Some were co-ops run by their members, some were big, some were small. In other words, the 'photo-eco-system' was reasonably diverse and a wide variety of imagery was produced by professional photographers earning decent fees.

Nearly all those agencies are out of business and now only a few major image corporations like Getty Images, Corbis - owned by Bill Gates - and Jupiter Images dominate the market and produce 'wholly owned' work - the corporation owns the copyright - either from staff or contract photographers. ...

If wholly-owned or virtually copyright-free (more commonly known as Royalty Free) content can be aggregated into a hub, and the economies of scale means the hub drives out smaller competitors, then huge profits be made.  It's a volume and service business now to such an extent that you could argue that the individual image has been rendered almost worthless. People either won't pay for images, or will only pay a small fee - as little as 50 pence a time for images offered by iStockphoto, an image library owned by Getty Images. All this commodified 'off the peg' stock imagery has infected the attitudes of editors commissioning 'live' photography. These commissioning editors now see photographers as widget makers, and the cheaper the widget, the better.

No UK Copyright Term Extension

Following up on something mentioned earlier, the Gowers Report [note: link is to .pdf] in the UK has been released, and recommended that the term of copyright on sound recordings not be extended beyond the current duration of fifty years.  As the CBC reports notes,

Recordings of early Beatles songs like I Want to Hold Your Hand and other British classic rock hits could soon be free from copyright protection, if the government adopts the recommendations of a new report on intellectual property. ... If the government acts on the report's conclusion, sound recordings by artists such as [Cliff] Richards, the Beatles and the Rolling Stones would fall out of copy protection within a few years.

Those statements, while technically correct, are a bit misleading: if the term is not extended and the recordings fall out of copyright protection, it's not like you'll be able to put together your own compilations of Beatles and Stones songs and start selling them.  There are (at least) two copyright interests embedded in the recording of a song: the copyright in the recording itself (subject to a fifty year term in the UK and Canada), and the copyright in the underlying composition.  So, for the song "Yesterday", there is a copyright owned by (most likely) EMI which will shortly expire (well, in 2015, since the song was recorded in 1965), and a copyright owned by Lennon/McCartney (and whoever their publishers are), which will continue for a much, much, longer term: for the life of the author(s) plus seventy years (in the UK - life plus fifty years in Canada).  If you want to use that recording of the Beatles playing "Yesterday", if the law does not change, you won't need a license to use the recording itself, but you will continue to need a license to use the compostion which is embedded in the recording - either way, though, you will need permission to use it.

Hot Docs

If you ever want to confuse and/or frustrate a filmmaker, walk them through the copyright concerns which impact on a documentary film.  The Documentary Organisation of Canada has prepared a "white paper" on copyright clearance issues [note: link is to .pdf file] for documentary filmmakers.  There are some discordant notes (they're a bit too liberal with use of the term "censorship" and there's at least one reference to "Mike Moore"), but the arguments advanced are bang-on from a legal and practical standpoint, it provides a very good overview for both lawyers and interested non-lawyers.  Non-lawyers may be particularly surprised at some of the examples provided which give rise to copyright concerns.  (Hat tip: Michael Geist)

"the last resort for us"

Buried in this story about a SOCAN action seeking unpaid public performance royalties from the Air Canada Centre is a telling nugget about just how dysfunctional the courts have become:

The 80,000-member Society of Composers, Authors and Music Publishers of Canada, formed to force commercial outlets to pay when they use copyrighted music, has put Toronto's Air Canada Centre in its sights.

SOCAN has gone to the Federal Court to claim that the centre's owner, Maple Leaf Sports & Entertainment Ltd., owes it millions of dollars -- from tariffs on ticket sales for concerts staged at the centre over the past seven years.

"It is not the venue's obligation to pay these fees, it is the concert promoter's," said Robin Brudner, lawyer for Maple Leaf. "We didn't have knowledge of the non-payment until we were sued by SOCAN."

Almost two years ago, SOCAN filed a statement of claim against Maple Leaf for those tariff fees, but the complex case is progressing slowly -- it is still in the discovery stage -- and it may be several months or even a year before the case goes to trial. [emphasis added]

That's insane.  Despite the editorial comment by the Globe that the case is "complex" (based on what's being reported, the matter is hardly all that complicated), that parties could see an action take nearly three years before even getting to trial is ridiculous.  Compare that to, say, the English copyright infringement case against Dan Brown, author of The Da Vinci Code, which went from filing to decision in less than six months.

UK Copyright Term Extension?

The BBC is reporting that a British independent review panel is set to recommend that the copyright which performers hold in their recorded performances not be extended from the current term of 50 years.  This is to be distinguished from the copyright which composers hold in their musical compositions, which is currently set at a term equal to the life of the author plus 70 years.

British star Sir Cliff Richards has been leading a campaign to secure an extension of the copyright from 50 to 95 years - his earliest recorded tracks will begin to come out of copyright in 2008, and so he will no longer be entitled to receive royalties on their performance or duplication.  A fact sheet setting out the arguments of the British Phonographic Industry for an extension of the term can be found here [note: link is to .pdf document], which essentially turn on the lack of congruency in the terms of copyright accorded to different participants in the song creation process: the composers (and their heirs) are entitled to royalties for the aforementioned "life + 70" term, while the performers themselves are stuck at 50 years.

Canada only recently introduced a similar concept to that which the British are talking about, as part of the "neighbouring rights" reforms of the 1990s.  The current term for Canadian neighbouring rights protection sits at 50 years.

(hat tip: Michael Geist)

Cuban Copyright Case

The vagaries of copyright law are just compounded when you step across international borders, and even moreso when you try to reconcile disparate conceptions of private property (like, say, a rights-based capitalist conception with a nationalizing communist conception):

A U.S. company has lost a six-year legal battle to win the copyright to a collection of Cuban songs that was taken over by the Cuban government.

Peer International Corp. had claimed ownership of 600 tracks, some of which were made famous by the Buena Vista Social Club.

A London high court said Thursday it has rejected Peer's contention that Cuba's Editora Musical de Cuba had claimed copyright unlawfully, but also rejected a claim by EMC for larger royalties for the composers.

More information on the decision is available here.  Must have been a hell of a trial: though Peer is American-based, proceedings evidently had to take place in England and Cuba because of US prohibitions on trading with Cuba - Peer International claimed that it had been prevented from making royalty payments after the 1959 Cuban revolution due to American prohibitions on money transfer to Cuba.  The Cuban state-owned music publisher had transferred their rights to a British-German publisher.  Interestingly, the court did uphold the enforceability of certain contracts, but declined to grant a sweeping declaration that Peer owned copyright in all the songs to which it asserted a right - in other words, it appears that contractual relationships can survive a nationalization.

"productive for the country"

Howard Knopf calls for a Canadian copyright commission to determine the future of our Copyright Act - which is probably a good idea.  The Copyright Act is in desperate need of revision, for a variety of reasons, among the most important of which is that in its current iteration it is completely unwieldy, difficult to navigate for both lawyers and laypersons, and encumbered with terminology and concepts that are decades out of date (if you're ever bored, try to figure out what you can do with those wedding photos you commissioned, or determine who the "author" of a movie is).  I have a lot of time for those, like Knopf and Michael Geist, who are on the front lines of ensuring that attempts to torque or over-extend our current copyright legislation in favour of what I'll call "distributors" (e.g., the larger entertainment conglomerates) at the expense of creators and end-users, but I wish our leading academics on the topic would spend a little less time critiquing the status quo (or the proposed changes of others) and more time constructing: I still have little to no idea what a copyright system that would meet the approval of a Knopf or a Geist would look like (other than that it wouldn't include something like the DMCA).  That's a pity, because in the absence of concrete proposals from some of the leading voices on the topic, what will likely fill the void will be the well-funded arguments of the distributors.