bob tarantino

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.

Photographs and Privacy

Via the Canadian Privacy Law Blog, news that the European Court of Human Rights has ruled (in Reklos and Davourlis v Greece) that a minor's right to respect for "private life" was violated when a hospital hired a photographer to take pictures of a baby without first obtaining the consent of the parents and then also refusing to give possession of the negatives to the parents. 

The decision itself is available here (only in French).

The press release (in English), which includes a description of the facts of the case, is available here.

The privacy right which was violated is contained in Article 8(1) of the European Convention on Human Rights:

Everyone has the right to respect for his private and family life, his home and his correspondence.

That right is subject to the limits contained in Article 8(2):

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

No similar decision is possible in Canada pursuant to the federal Charter of Rights and Freedoms (which doesn't recognize an explicit right to privacy), but the ECHR decision is very similar to that in the Supreme Court of Canada decision in Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591, which recognized that the right of privacy accorded pursuant to section 5 of the Quebec Charter of Human Rights and Freedoms includes a right of control over the use of one's image, even if, as in Aubry, that image is photographed in a public place:

The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified.

In Canadian jurisdictions outside Quebec, I'm not aware of any similar decision based on their provincial privacy statutes (the existence and extent of coverage of which varies from province to province) (though certainly the wording of some of the statutes is broad enough to contemplate a similar result), and no similar decision could be made under PIPEDA.

UPDATE: I should probably clarify what it is that is so, to use an imprecise term, radical about the ECHR decision from the standpoint of Canadian law (outside of Quebec): the breach of the privacy right is evidently not predicated on a "commercial use" - in other words, it appears to have been the taking of the photograph itself, and not any subsequent use of the photograph, which violated the privacy right.

The Other James Brown

This one should be fascinating to watch:

Former Cleveland Browns player Jim Brown is suing Electronics Arts and Sony for using his image in EA's Madden NFL series without his authorization ... [arguing] that video games had not yet been invented when he was playing football in the NFL, and he therefore never had the chance to make the decision to sign away the rights to his image to be used in video games. (Davis LLP Video Game Law Blog)

EA evidently has an agreement in place with the NFL which presumably purports to grant EA the right to use the name, image and likeness of retired players.  Information on how Canadian legislatures and courts protect the personality rights of individuals (both celebrity and non-celebrity) can be found here (note: the information at the preceding link is slightly outdated) and here.

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".

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).

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.

"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.

"Can Photographers Be Plagiarists?"

Slate has an interesting "slideshow" which explores the convergence of copyright, plagiarism, postmodern sensibility and the art of photography.  It's worth a read for anyone interested in how the vagaries of intellectual property law actually play out in the real world (e.g., it's all very nice to have a copyright interest in a work, but if you don't have the money to bring a claim, you're out of luck (or, in the case of at least one artist mentioned in the slideshow, you get kicked off of eBay after your work has (re)/(mis)appropriated)).

"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."

"shall we say subtle"

If you haven't scrolled all the way down lately to the "blawgers" list on the right-hand side, you may have missed a recent addition which is worth highlighting: The Court, a blog published by Osgoode Hall Law School which is the leading source for news, analysis and discussion of all things related to the Supreme Court of Canada.  Check it out.

In addition to its general awesomeness, I wanted to draw attention to a recent trade-mark issue that The Court encountered.  Copyright concerns generally attract all the howls of outrage: over the last decade or so, it's been the always-juicy targets of record companies and movie studios that have mobilized their resources in various ways both advised and ill-advised, resulting in all sorts of headlines and sometimes vitriolic discussion.  But trade-marks, their uses and abuses, should attract just as much scrutiny.  What happened to The Court should help illustrate why.

To summarize: up until January 22 (or thereabouts), the banner at the top of The Court's page was graced with a stylized (and really rather striking) rendition of the building which houses the Supreme Court of Canada (a picture of the building can be found here).  This was evidently a problem - it's a bit unclear from The Court's account, but either someone contacted The Court on behalf of the real Court with a takedown message, or someone at The Court realized they might be infringing on a trade-mark of the Supreme Court - so, the attractive drawing of the Supreme Court of Canada building was duly replaced with a somewhat less attractive drawing of a Doric-ish column.

You read that correctly.  The Supreme Court of Canada has four trade-marks, which are referred to as "official marks".  Pursuant to section 9(1)(n)(iii) of the Trade-marks Act (Canada),

No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, ... any badge, crest, emblem or mark ... adopted and used by any public authority, in Canada as an official mark for wares or services

Three of the Supreme Court's trade-marks consist of images of the Supreme Court of Canada building.  Somebody, either representing the Supreme Court or in fear of those representing the Supreme Court, decided that the image which was previously on display at The Court was disturbingly similar to the images of the building for which the Supreme Court itself has sought registration, and so removed the image from the website.

Without putting too fine a gloss on the matter, this is ridiculous.

Setting aside for the moment whether The Court was correct in its anxiety (there's likely a pretty strong argument that the website's use of the image did not fall afoul of section 9 because The Court blog lacks the requisite indicia for the image to have been adopted "in connection with a business"), we should query whether the Supreme Court of Canada, as a government institution, should even be permitted to claim exclusive rights to the image of a building which, if anything, is part of the collective heritage of Canadians.  I had tried to make a similar point, with slightly less clarity, in talking about the various skirmishes which have arisen over the last couple of years in connection with the image of the poppy. 

The number of Canadians (hell, the number of Canadian lawyers) who could correctly identify the building which occupies 301 Wellington Street in Ottawa is miniscule, but even that shouldn't impact on the broader point: absent an attempt to pass off a business venture as being affiliated with or endorsed by a government entity, there should not be a circumstance where the government is entitled to dictate the use of images, especially of buildings, which are government property.  Imagine, if you will, that someone wanted to protest the Conservative government and elected to use a stylized rendition of the Parliament buildings to convey their message.  I don't even want to do a search to find out what kinds of restrictions there are on such a speculative use.  But when a endeavour like The Court, whose sole purpose is educational and informative, is even potentially falling afoul of trade-mark restrictions, we've got an issue which needs attention.

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.

McKennitt Wins On Appeal

Further to this post, the English Court of Appeal has sided with Loreena McKennitt in ordering an injunction on the publication of a book written by a former friend which the singer felt contained private information which she did not want made publicly available.  From the BBC:

McKennitt, whose Celtic music has sold 13 million albums worldwide, said Ash's book Travels with Loreena McKennitt: My Life as a Friend breached a duty of confidence.  Certain passages covered personal and sexual relationships, her personal feelings about her fiancé who drowned in 1998, health and diet, her emotional vulnerability and detail of a property dispute. ...

Lord Justice Buxton upheld all of the High Court judge's conclusions that various passages in the book were intrusive, insensitive and distressing and came under Article 8 of the Human Rights Act which governs the right to respect for private and family life.

Afterwards, Ms McKennitt said: "If an aspect of career places one directly in the public eye or if extraordinary events make an ordinary person newsworthy for a time, we still should have the basic human dignity of privacy for our home and family life."

There's no doubt it's a compelling argument: the power to retain as private certain aspects our lives is certainly a motivation we can all sympathize with.  The danger, however, resides in trying to define the parameters between A's right to privacy and B's right to free expression - at what point does enforcing the former infringe on the latter?  The McKennitt case be capable of being narrowly read: it appears to have turned on a breach of confidence action, meaning that the writer had breached a duty of confidence owed to McKennitt - so we can query whether the case would prevent, say, a complete stranger from publishing an "unauthorized biography" about someone.  But even in that situation, the potential exists for a chilling effect: friends of the celebrity in question may be reluctant to speak to an investigative author or journalist for fear of being subject to a breach of confidence action.

It's not an easy knot to untie - and the concerns expressed on both sides are legitimate.  It may be that, as the court appears to have done, no single rule can be laid down to cover these sorts of situations and that each instance will need to be assessed on an ad hoc basis.  But we should be cognizant of the fact that there needs to be an interrogation of where the line should be drawn.  I'm not a believer in a public "right to know" about the private lives of celebrities, but there will be instances where privileging private (but true) information about someone will act as a deterrent to enabling someone else from telling their own story - if the book had been a biography of the author, to what extent could she have been prevented from relating stories about, say, the time she stayed up all night consoling her distraught, and famous, friend in the wake of a devastating break-up?  That may be a trivial example, but it's not difficult to think of more salient ones - what if an advisor to a prime minister or president wanted to relate stories about scenes he or she witnessed which testified to the emotional fragility of the leader?  We're not talking about revealing true information which could have an immediate pecuniary impact (bank account numbers, say), but experiential information which, in some circumstances, could be important for the historical record (even in the case of a recording artist, for example, where critics may be able to impart a deeper understanding of, say, a certain lyric or song, knowing that it was written after the aforementioned devastating relationship break-up).

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)

Giving Them Something to Talk About

A couple of relatively under-the-radar celebrity court cases which I think could have significant impact on news reporting and unauthorized biographies, at least in the US and the UK.  Because legal trends in those jurisdictions often influence developments in Canada, these cases may be worth keeping an eye on.

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)

IP Developments

A couple of interesting articles in The Lawyers Weekly over the past couple of issues on IP-related issues.

First up, an article by Navin Khanna and Julie Catzman critical of one of the fundamental premises underlying the recent Supreme Court of Canada Robertson decision (judgment available here), which addressed copyright in collective works (the case revolved around articles written for the Globe and Mail by a freelance journalist, which articles were subsequently included in CD-ROMS and online databases without either the permission of or compensation to the author).  There are a number of problems with the majority decision in Robertson, which I'd like to write about in further detail at some point, and the article highlights one of them in this paragraph:

The rights of a publisher in its compilation coexist with the rights of the contributing authors. Authors have the sole right to reproduce their articles. A publisher has the sole right to reproduce its selection or arrangement of the articles. But a publisher does not have the right to reproduce the articles, except as permitted by the authors. Copyright in the compilation should not override an author’s exclusive right to control reproduction of her article, even if it forms a part of the compilation. [emphasis added]

As I said, I think there are a number of concerns with the Robertson reasoning.  I'll be moderating a panel discussion on it tomorrow, and will hopefully have a summary of the discussion written up shortly afterwards.

Dan Burnett wrote a few weeks back about the need to reform Canadian defamation law.  Here's the clincher:

The Americans inherited the same common law of libel from England that Canada did, but American courts concluded that the law had to be reformed to protect free speech. In cases involving matters of public interest, the plaintiffs now bear the onus of proving falsehood, fault and damage, and statements of opinion are immune from liability. ... For those who prefer British and Commonwealth role models, it is noteworthy that in the past dozen years or so, the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada. [emphasis added]

Read the whole thing.

"pounding on the door in Pall Mall"

People love their poppies.  Chris Selley weighs in with pertinent questions on the matter, contrasting the approaches of the Canadian and British Legions to the use by third parties of their registered poppy marks.  For previous discussion on this matter, see here.

Mad World

So you've got your YouTube.  You've got those who think that Google, recent purchasers of the site, are about to become the target of innumerable lawsuits for all kinds of copyright and trade-mark infringement claims.  There's also those who argue (with considerable merit) that YouTube has nothing to worry about.  Then there's those who aren't suing YouTube, but rather the so yesterday MySpace.  You figure it out.  Without pronouncing on the ins-and-outs of the legal issues involved, let's just say that any website that allows viewers to check out this song and its accompanying video, on demand, deserves to stick around:

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.

The T-Shirt The Kids Are All About

People sometimes say to me, "Bob, is intellectual property law interesting?"  Well, no one says that to me, but I sometimes get the sense that the question is lurking behind their glazed-over eyes as I fulminate on some IP-related issue.  Anyways, if someone were to pose that question, my response would invariably be something along the lines of "not only is it interesting, it's hilarious".  Bear with me.

You may have heard about the Entertainment Software Ratings Board.  They're the folks who come up with the ratings for videogames which are evidenced those little indicia containing an off-kilter letter inside a black-and-white box, ranging from "eC" (early childhood) to "AO" (Adults Only).  There's an "E" rating, about which more in a moment.  Here's the "Teen" rating, for illustration purposes:

So, what happens?  Some enterprising young folks came up with a slight modification: with a big "E" in the middle, instead of saying "Everyone" at top, it says "Your Mom" - across the bottom, the text has been replaced with "Rated E for Everyone".  Then they put this on a t-shirt.  A sample can be found here.

This, understandably, has caused some consternation over at the ESRB, along with some guffaws elsewhere.  One of those elsewheres is the gaming site kotaku.com, where they posted a picture of the offending t-shirt, which prompted a demand letter from counsel to the Entertainment Software Association, which founded the non-profit ESRB, requesting removal of the image, on the basis that it infringes the ESA's copyright and trade-mark rights.  kotaku.com has declined the request.  The Davis & Company video game law blog has a good primer discussion about the strength of the various claims.

"trying for years to get the religion recognized"

You want fascinating?  I'll give you fascinating.  It seems that some Wiccans in the US are aggrieved (rightfully, frankly), that a Wiccan pentacle is not an approved symbol for military headstones:

The widows of two combat veterans sued the government Monday for not allowing Wiccan symbols on their husbands' military headstones.

The U.S. Department of Veterans Affairs allows military families to choose any of 38 authorized headstone images. The list includes commonly recognized symbols for Christianity, Buddhism, Islam and Judaism, as well as those for smaller religions such as Sufism Reoriented, Eckiankar and the Japanese faith Seicho-No-Ie.

The Wiccan pentacle, a five-pointed star surrounded by a circle, is not on the list, an omission that the widows say is unconstitutional.

The CNN story is a little bit off: you can apparently put whatever you want on a military headstone, but they will only pay for headstones carrying certain pre-approved images - so if the widows in question want to have the Wiccan pentacle on there, they have to shell out for it themselves.

Here is the list of approved symbols, comprised of 38 designs, some of which are, as the article noted, decidedly obscure: they include Eckankar (a religion evidently led by Harold Klemp ("the Mahanta, the Living ECK Master"), the United Moravian Church and the "Humanist Emblem of Spirit".  Best-design-from-a-1940s-pulp-sci-fi-magazine award goes to number 16: "Atheist", with its forlorn "A" trapped in what appears to be a doodle from a high school student's science lab notebook.

IP gurus out there will especially appreciate discontinuous items 97 and 98, the "Christian Scientist (Cross & Crown)" and "Muslim (Islamic 5 Pointed Star)" designs, since the designs are apparently super-secret: only the rather dismal notation "Not shown because of copyrights" marks their place.

All of this is a relatively recent phenomenon: according to this history from the Department of Veterans Affairs, it wasn't until some time between 1930 and 1941 that even a Christian cross was allowed on headstones.  The next addition to the approved list appears to have been the "Buddhist emblem" added in 1951.  It was all, as they say, downhill from there.

"a tough time proving his case"

Another $29 million for Borat, another series of people angry at being duped (some to the point of threatening lawsuits).  It's a basic CYA rule for movie producers that no one should appear on-screen in a motion picture without having signed some sort of consent and release.  What did the various folks appearing in Borat sign?  And will having signed those documents prevent them from successfully bringing a claim?  Helpfully, Slate has a brief Explainer on the topic, along with copies of the releases.

Again with the Poppies

In 2005, Pierre Bourque received a letter from the Royal Canadian Legion asking him to remove the image of a poppy which he had put on his site to commemorate Remembrance Day.  I wrote a piece which was published by The Lawyers Weekly, which outlined the legal basis for the action taken by the Legion - as I explained in a post at the time on Let It Bleed, the Legion really doesn't have much choice in the matter: in order to protect their trade-mark rights in the poppy image, they basically have to protest whenever there is an unauthorized use of the poppy.

This year, the Legion, our cultural heritage and intellectual property rights are intersecting once again, as this story in the Globe and Mail relates, this time with respect to white poppies:

The Royal Canadian Legion is threatening to bring out its big guns — the lawyers — in a war with peace activists over poppies.

Veterans say the activists are unlawfully selling white poppies in a fundraising drive that violates trademark rights to the scarlet poppy, which they say belongs to the Legion.

Already, an Edmonton store owned by Michael Kalmanovitch that has been selling the so-called “poppies for peace” has been shipped proof by the Legion's intellectual property lawyer that the veterans association owns the image, regardless of the flower's colour, and has been asked to stop.

“If he [Kalmanovitch] doesn't, then we will proceed with further legal action,” explained Steven Clark, the Ottawa-based remembrance co-ordinator who oversees the poppy trademark for the Legion.

Oliver Kamm offers some background on the "white poppy" initiative (hat tip: Damian Penny).