University of Alberta Faculty of Law Blog

1984 Irony

Wasn't 1984 about the control big brother had over its citizens? Well now in a 1984esque move, Amazon remotely removed the electronic copies of 1984 its customers had purchased from their Kindles. Arguably they were justified in doing so due to a Copyright issue, but it is odd that the offending book was 1984. Why couldn't it have been something by Danielle Steel Stepehen King John Grisham [insert your least favorite popular author here].

The Remix Culture

Stanford professor and copyright law guru Larry Lessig is set to release his new book Remix this week.  Judging from this Wall Street Journal op-ed, sounds like there are some lessons we can learn before basing amendments to our Copyright Act on the US model.  New MP's take note.

Here are recommendations from this article:

Deregulate "the copy": Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a "copy," that makes as much sense as regulating breathing. The law should also give up its obsession with "the copy," and focus instead on uses -- like public distributions of copyrighted work -- that connect directly to the economic incentive copyright law was intended to foster.

Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now. Tax-code complexity regulating income is bad enough; tax-code complexity regulating speech is a First Amendment nightmare.

Restore efficiency: Copyright is the most inefficient property system known to man. Now that technology makes it trivial, we should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term. It should be clear who owns what, and if it isn't, the owners should bear the burden of making it clear.

Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop "sharing."

IP Czar

You may have missed this news item with all the fuss over the bailout, but President Bush signed into a law a tougher anti-piracy (the IP type of piracy not the "arggh matey" piracy) law that also creats a piracy Czar!

When the communists executed the last Czar and is family, they probably had no idea that the concept would float accross the oceans to America where we would end up with the Drug Czar, the piracy Czar, ....

Open Source Case Gets it Right!

There is much buzz the last few days in intellectual property circles about the Jacobsen v. Katzer case handed down by the US Court of Appeals for the Federal Circuit.

The open source concept is an alternative business model of innovation, based on cooperation and collaboration and not competition.  It works like this: intellectual property rights (IPRs) are asserted by the intitial developer of source code and are licensed out to subsequent users and improvers of the code on conditions that they not assert proprietary rights over their contribution to the improvement or adaptation.  I use the example here of source code though the concept has been adapted to various areas of innovation.

Two legal issues have emerged from the open source concept (1) can IPRs be used this way? and (2) what if someone poisons the code with proprietary code? Jacobsen answers the first issue.

The Artistic License n  Jacobsen gave users the right to copy, modify, and distribute software "provided that [the user] insert prominent notice in each changed file stating how and when [the user] changed the file..."; "place [the user's] modifications in the Public Domain or otherwise make them freely available"; "use the modified Package only with [the user's] corporation or organization" The defendant breached these conditions. 

The court characterized the issue as whether these terms of the license are conditions or convenants to the copyright license.  If they are conditions, according to the court, they must be complied with prior to the granting of the license - meaning that if the conditions are breached, there is no permisssion to use, and thus there is infringement.  If they are covenants, then a priori the license is granted (and thus there can be no infringement), and the breach becomes contractual in nature. From a practical point of view, the different is significant.  As the court states "Copyright licenses are designed to support the right to exclude; money damages [in contract] do not support or enforce that right."

The court finds the terms to be conditions, the breach of which amounted to infringement.  The decision seems right on legal and policy grounds.  Legally, both the form of the agreement and the substance of the terms seem predicated on IPRs and thus conditional to the grant of a license. On policy grounds, a contrary holding would inhibit the development of an important source of innovation in society.

 

Which Kraft of Statutory Interpretation?

For anyone who might be interested, I have posted a paper on ssrn dealing with statutory interpretation and recent intellectual property case law emanating from our Supreme Court, entitled "Which Kraft of Statutory Interpretation?  A Supreme Court of Canada Trilogy on Intellectual Property Law". 

The abstract is as follows:

As understood from a statutory interpretation perspective, the Supreme Court of Canada has recently handed down a series of controversial decisions in Theberge, Kirkbi, and Kraft. Read together, these cases do not offer a consistent or principled methodology of resolving troublesome statutory interpretation problems. Building on the work of HLA Hart, Lon Fuller, Ronald Dworkin, and Reed Dickerson, this paper argues for such a method. Recognizing that legislation is drafted prospectively and in view of paradigmatically conceived scenarios, i.e. typical kinds of foreseeable cases that might arise, it follows that statutory meaning will often be uncertain or incomplete in the face of novel cases, i.e. the kinds of cases not foreseen by the legislature and for which, consequently, there is no reasonably clear interpretation flowing from the statute. Courts can derive richer meaning from statutory language and resolve novel cases by analogizing the facts before them with paradigm cases, i.e. typical cases captured by a rule as manifested either in the statute, prior case law, or as elicited by subjective connotations in the mind of the judge arising from a purposive analysis of the statute. Specifically, courts should determine if there are enough material similarities between paradigm cases, and the case before it, to include it under the statutory rule. The implications of this method are as follows (a) greater emphasis on the institutional responsibility of the legislature to carefully draft legislation (b) principled development of statutory meaning which both constrains and enables judicial discretion and (c) greater and more legitimate discretion by courts to interpret statutes for which there is only indirect intent of the legislature to regulate the subject matter before the court.

Plagiarism off campus

As a warning to all of you out there with at this point still unpublished but available writing (like theses and dissertations) the following message was posted to a Canadian History list-serv:

Dr. Ken Paulsen was in Nova Scotia last week on vacation and by chance in a book store found a new book titled Grass Roots of Lunenburg: Cultural Change, Adaptation, and Continuity by Roger Demone. When Ken took a closer look at the book, he was horrified to discover that the contents were for the most part his own 1996 doctoral dissertation, word for word. He contacted the printer, a vanity press in the USA, and through them Demone and, after legal advice, he requested that the ISBN be withdrawn and that ALL copies including electronic be collected and destroyed. Roger has handed over about 2/3rd of the print run.

As you may know, Dr. Paulsen has generously deposited copies of his dissertation at the South Shore Genealogical Society in Lunenburg, Archives & Records Management in Halifax and other NS locations. He even gave a copy
to Demone sometime ago when he was a history teacher who requested it for use in the classroom.

If you respect the work of Ken Paulsen (and the laws of Canada and the United States!) and have purchased a copy of _Grass Roots of Lunenburg_, I urge you to do the right thing and send the book to Ken (contact info through his webpage).

Deborah Trask
Manager
Mahone Bay Settlers Museum

Alas, what happened to Ken here is not unique. Some of the popular history of the Canadian West published in the 1970s was largely cribbed and lifted from a student's graduate work. And sometimes the original authors don't succeed in getting items pulled or their work acknowledged.

Harry Potter might die!

Well no - but JK Rowling claims here energy was sapped for a month, because a fan is publishing a book based on her works, and whom she is suing for copyright infringement. Ah how amazing it is that one day she was a humble working mother and now she is a bigwig, she gets to squash her fans all for the mighty dollar - why is she so greedy? Wait a minute, I am sounding like John McCain and the rest of the merry band of socialists.

Cyber-squatting in Morocco

Unlike Canada where Ed Stelmach simply used the old-fashioned lawsuit against someone who took his name on a website, in Morocco, the penalty is prison and beatings.

Naked M&M

Does the naked cowboy have a case against the naked M&Ms?

In California, he would have under the White v. Samsung (yes that White is Vanna White) case, but I suspect in NY and other states (and Canada?) the answer would be no.

I was tempted to make many witty comments - but the comments here already have done a good job!

In the name of money: I get tired of these guys, U2?

I am not sure if U2 is more in the news about making poverty history or making more money for themselves and their corporate bosses.  The latest from their business manager is his draconian recommendations for dealing with illegal downloading, as follows:   we should tax ipods and the like to compensate for illegal downloads (no, not fair, not all of us infringe copyright in our use of ipods); and ISPs should be held liable as a silent and profiting partner to this crime (the Supreme Court in SOCAN decision dealt with this issue and concluded that this was not technologically feasible nor, from a policy perspective, desirable in terms of internet efficiency and cost).  These guys would garner more sympathy with truly worthwhile causes, e.g. poverty, but frankly, I wish they would just be quiet.

ipod levy axed

Those like my colleague Chris Sprysak can breathe a sigh of relief this morning - there will be no extra "tax" placed on the purchase of new digital recording devices (e.g. IPOD, MP3 players).  Many had complained, quite rightly, that this proposed levy unfairly assumed that people use technology for illegal purposes ( i.e. copyright-infringing downloads of music files).  A line of Supreme Court of Canada cases - SOCAN v. CAIP, CCH v. LSUC - have considered it to be good law (and good policy) to encourage the use and advancement of technology through a contrary assumption - i.e. that technology will be used for legitimate purposes.   Read the Federal Court of Appeal decision here.

The Clarkson Cup & IP Rights

With creative artworks or inventive machines, there are always two sets of property rights for sale:  the physical property - which is the chattel - and the intellectual property - which is the right to make copies in whatever form and which is usually more lucrative.  When an artist sells a creative work, say a painting, is she also selling to the purchaser a right to make copies of the work?  The short legal answer is that the purchaser, under the first sale doctrine, is entitled to do what she wishes with the chattel subject the author expressly prohibiting uses by contract (and subject to the author's moral rights).  But the IP rights, unless they have been sold by contract, remain with the author.   

The controversy over the Clarkson Cup centres on whether the author expressly agreed to give up her  IP rights to our former governor general when the latter commissioned the work.  It is unclear what transpired in that oral transaction but it brings to mind two lessons ane one legal issue (1) always get it in writing (2) authors should be educated about their rights and [the legal issue] (3) who should the onus of proving the nature of the oral contract in these circumstances?  On this last point, and regardless of who brings the action, the purchaser should bear the onus of proving that an author gave up her IP rights by contract.

Our very own Audrey's Bookstore leads the charge against differential pricing for books

CBC news reports that Edmonton's Audrey's Books is offering for sale books at US dollar prices. Good for them!  If you are like me, you may have been wondering for some time why our neighbour's to the south pay $16.00 for the same book that we pay $25.00 for, now that our dollar is at par. 

It seems to me that this is a no-lose proposition.  In the bad old days of a 65-cent dollar, US publishing houses, I assume, would license their inventory to Canadian distributors who paid in preimium US dollars.  The distributors would have to make up the difference by charging higher Canadian dollar prices - fair enough.  The Copyright Act protects their right to do that by preventing parallel imports from abroad, i.e. the US.  But now that the dollar is par, we should be paying the same price.

Will the other book stores follow?   

My two cents worth - or can I say that?

Here we go again with trade-mark rights gone crazy.  Royal Canadian mints alleges that City of Toronto campaign that uses photo of the tails end of a penny and the use of "one cent campaign" slogan (all in an effort to recoup a share of the GST revenues) infringes their trademark rights.  Maybe they could have said 1 / 100th of a dollar - or is dollar taboo also?

Helping the World's Poor

Technology benefits those who can pay for it.  When the incentive of expected profits is absent, so too investment in new technologies.  This is the problem with the fight against diseases found predominantly in developing countries such as malaria.  Private philanthropic efforts have been initiated to combat this problem, but is this enough?  A Columbia political science professor proposes to "incentivize" the development of pharmaceuticals for the world's poor. 

I have argued that, for extant essential medicines, the TRIPS Agreement should, and without restriction, allow for the compulsory licensing of pharmaceuticals for developing country export markets.  The basic argument is that, with adequate safeguards against re-importation into developed country markets, the incentive to innovate is preserved while enhancing trade and dissemination of technologies like pharmaceuticals (resulting in less deadweight loss).

Trolling for Dollars Canadian Style

A couple of years ago, the makers of the BlackBerry - a Canadian company (RIM)- were successfully sued in the US for infringment of a patent filed in that country.  The case raised challenging issues of jurisdiction, and patent trolling.  On the jurisdictional front, my colleague Moin Yahya and I have argued that RIM was properly found liable for infringment under US law since they had exploited US territorial market rights.  We are now exploring the second issue, i.e. should patent holders that do not "work" their patent after a defined period of time be able to bring an action for infringement against a company that has developed or used technology that infringes the dormant patent?

Today there is the allegation that US patent trolling is expanding into new markets.  A US company has filed a patent in Canada relating to an electronic system for the clearing of bank cheques.  The allegedly infringing banks reply that the patent is "too vague" - sounds like it could be trolling to me, Canadian style.

The Cross We Bear

Not to be outdone by P & G's pursuit of the American Red Cross posted a few weeks ago on this blog, the Canadian Red Cross is clamping down on unauthorized uses of its official mark.  Do people really get confused as to the source of a product (say a video game) that somehow incorporates a red cross?

Greed - one of the deadly sins

Johnson and Johnson sues the red cross for trademark infringement. Yup - whenever I see the red cross helping hurricane and flood victims, I just think to myself "there goes Johnson & Johnson doing good for the world".

Euro-Excellence v. Kraft Canada

In this case, I more or less agree with Bastarache’s opinion which as Norman Siebrasse has suggested on this blog dealt with the policy issues head on.

This is one of those cases, like Kirbi, where intellectual property law was strategically deployed in a manner other than the purpose for which it was intended.  Whereas in Kirbi, trademark was used in an attempt to extend a monopoly upon expiry of the patent, here copyright is used to prevent competition in what is essentially a matter of trademark law.

Trademark was not engaged in this case because the source the product (and its quality) was not misrepresented to consumers.  Indeed, the value of the goods are almost exclusively based on the trademark's goodwill and the underlying quality of the product. 

The only recourse for the plaintiff was copyright -protection of the expressive work on the packaging - as a means of prohibiting parallel imports.  While there are economic rights of the copyright owner engaged here (which were exclusively licensed to the plaintiff) it is hard to see that this represented anything more than, at most, de minimis value.  I am all for protecting the territorial market rights of intellectual property, but it just doesn’t seem that this was implicated (or at least sufficiently so) to invoke copyright protection. In other words, what is at issue here (like in Kirbi) is trademarked chocolate bars (lego blogs) and not a copyrighted expressive works (not distinguishing guises). 

I would have preferred an analysis based on abuse of rights or misuse of copyright (which Bastarche avoided), which would have dispensed of copyright on the basis that the purposes of copyright protection were not properly engaged in this case.  While like the "incidental" copyrighted works, this adds some uncertainty to the law (see Abella's judgement), this in my view is justified to avoid strategic extensions of monopoly protection.

Noticably absent from the case was any mention of the TRIPS Agreement, which demands that IP not act as an unreasonable restraint on trade.  The result of the decision is good for international trade and for competition within the Canadian market.

"Talent Borrows, Genius Steals"

Famously etched on the B-side of the UK 7" and 12" vinyl release of The Smiths' single "Bigmouth Strikes Again" (a B-side song on the classic The Queen is Dead), the quote in the subject line (credited to Oscar Wilde) sums up singer Morrissey's feelings on the place of plagiarism in music and art. Moz fleshes out this position in the closing song on the A-side, the rhythmically pleasant  "Cemetry Gates", stating:

"A dreaded sunny day
so I meet you at the cemetery gates
Keats and Yeats are on your side
while Wilde is on mine...

You say: "ere thrice the sun done salutation to the dawn"
and you claim these words as your own
but I've read well, and I've heard them said
a hundred times, maybe less, maybe more

If you must write prose and poems
the words you use should be your own
don't plagiarise or take "on loans"
there's always someone, somewhere
with a big nose, who knows
and who trips you up and laughs
when you fall
who'll trip you up and laugh
when you fall"

What Morrissey seems to be saying here is that conscious copying of other's works is common artistic practice which should not be sanctioned, for the sake of art. This claim is highly relevant in the new era of bastard pop (mashups) and other musical genres that depend on extensive sampling of released material (hip-hop, electronica, classical music etc.). For example, Gregg Gillis a.k.a. Girl Talk, music producer and mashup new poster boy's critically acclaimed 2006 release titled "Night Ripper" contained songs composed almost entirely of songs from other artists. Gillis' work is perhaps the world record holder for copyright violations per number of possible plaintiffs, as he uses unlicensed sources, although the artists and songs are credited on the liner notes. For this reason, some music stores refused to sell Night Ripper. As far as I know, Gillis hasn't been sued yet, and he might have even succeeded in arousing congressional interest in the ways copyright laws and music licensing hinder art.

I haven't done any extensive reading on the Canadian legal position re: plagiarism in music. I did find one Ontario Supreme Court case,  Gondos v. Hardy,  38 O.R. (2d) 555, which contains an excellent summary of the law on the point. The current legal position seems to be that copyright infringement is established if there is sufficient objective similarity between the infringing work and the copyright work, and that the copyright work must be the source from which the infringing work is derived. Also, it does not matter whether the copying is conscious or unconscious, so long as there is a causal link.

Of course in a situation like Gillis encountered where it would be impracticable to obtain permission to use copyrighted work, the fair use defence might avail the infringer. However, in the final analysis, one wonders whether the time has come to recognize a "common artistic practice" exemption at least for those who ply the music sampling trade, a la Morrissey?

If you don't own The Queen is Dead, go here immediately. Or you're welcome to listen to the entire Smiths catalogue at my place, on vinyl.
Read my music blog.