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It's National Flag of Canada Day!

Today is National Flag of Canada Day! 52 years ago our flag, maple leaf and all, was raised for the first time on Parliament Hill.¹ 

The Great Flag Debate

The journey to selecting a new flag was not straightforward. There was both passionate support of and staunch opposition to a new flag. Particularly, members of the Royal Canadian Legion did not approve of a design change; they had served Canada under the Red Ensign and considered it an affront to veterans’ service.² At a speech in Winnipeg on May 17, 1964, then Prime Minister Lester B. Pearson spoke to delegates who wore Red Ensign pins as protest to Pearson’s proposition for change.³ There was outrage at the suggestion that Canada needed a new flag. This event started the Great Flag Debate.

Pearson stuck to his belief that Canada needed a new flag that represented all Canadians. Until then they had used both the Union Jack and Red Ensign, which connected Canada to its British heritage. In a time with rising Quebec Nationalism, Pearson viewed national unity of the utmost importance.

However, his proposal for a new flag did not unite the country. Rather, it created a divide between tradition and independence.⁴ The debate spanned 37 Parliamentary sittings, including over 250 speeches by various parties’ members.⁵ John Diefenbaker arguably presented Pearson’s biggest obstacle, opposing him throughout the debate. Diefenbaker demanded that Pearson hold a referendum on the question of the flag, and publicly disagreed with the single maple leaf flag design, among other things.⁶

Hesitantly, Pearson forced a vote on December 15, 1964, using the rules of closure. Parliament voted in favour of the new flag.

The Design

Many ideas were brought forward, but were eventually narrowed down. Three of the proposed flags are below: 

 

The three-pronged maple leaf was designed by Alan Beddoe, a Canadian artist and heraldry expert.⁷ The blue stripes on either side of the flag, as seen above, represented “from sea to sea”.⁸ Pearson loved this design, and it later came to be known as “Pearson’s Pennant”.⁹

The middle flag was a mix of emblems that had represented Canada until 1964, as well as the new maple leaf. John Diefenbaker preferred this flag as it included both French and English emblems.¹⁰

John Matheson, a Member of Parliament from Ontario, brought forward the single maple leaf flag, as designed by Dr. George Stanley and Patrick Reid.¹¹ Stanley was the Dean of Arts at the Royal Military College in Kingston; Reid was the director of the Canadian government exhibition commission.¹²

The red and white flag was appealing for a few reasons. First, those colours were declared Canada’s colors by King George V. Second, since the early 20th century all Canadian Olympic athletes had worn a red and white emblem at the games. Maurice Bourget, Speaker of the Senate, stated, “the flag is the symbol of the nation’s unity, for it, beyond any doubt, represents all the citizens of Canada without distinction of race, language, belief or opinion”.¹³ The maple leaf was already a recognized symbol of Canada.

The red and white maple leaf design became the official flag of Canada on February 15th, 1965.

Reception

Jumping ahead to the present, the Canadian flag is accepted largely by Canadians as a symbol of the country. All over the world, the maple leaf flag is identifiable as ours.¹⁴ Canadians can be seen travelling with maple leafs visible on their belongings, showing their pride for Canada. Though it may not be universally celebrated or accepted, the stark animosity that once surrounded the flag discussions has subsided and is largely replaced by celebration and pride.

 

¹Government of Canada, "National Flag of Canada Day", (25 January 2017), online: <http://canada.pch.gc.ca/eng/1449158599459>.

²Allan Levine, "The Great Flag Debate", Canada's History (15 February 2015), online: <http://www.canadashistory.ca/Magazine/Online-Extension/Articles/The-Great-Flag-Debate>.

³Levine, ibid.

⁴Lee-Anne Goodman, "Canadian flag, now beloved, came into being amid bitter national brawl", CBC News (12 February 2015), online: <http://www.cbc.ca/news/politics/canadian-flag-now-beloved-came-into-being-amid-bitter-national-brawl-1.2954433>.

⁵"The Great Flag Debate", CBC Learning (2001), online: ,http://www.cbc.ca/history/EPISCONTENTSE1EP16CH1PA2LE.html>.

⁶Levine, supra note 2.

⁷Government of Canada, "History of the National Flag of Canada", (13 September 2016), online: <http://canada.pch.gc.ca/eng/1444133232512>.

⁸Diefenbaker Canada Centre Archives, "Pearson's Pennant" (2003), online: <http://scaa.usask.ca/gallery/flagdisplay/pearson.htm>.

⁹Diefenbaker, ibid. 

¹⁰Diefenbaker, supra note 8.

¹¹Library and Archives Canada, "Alan Beddoe", biography, online: <http://collectionscanada.gc.ca/pam_archives/index.php?fuseaction=genitem.displayItem&lang=eng&rec_nbr=104827>.; John Mackie, "Obituary: The remarkable life of Patrick Reid", Vancouver Sun (11 December 2015), online: <http://www.vancouversun.com/obituary+remarkable+life+patrick+reid/11583916/story.html>.

¹²Reid, ibid; History, supra note 7.

¹³History, ibid.

¹⁴History, ibid.

¹⁵ Paul Luke, "50 years of the Maple Leaf: How Canada's much loved flag initially divided the nation", The Province (15 February 2015), online: <http://www.theprovince.com/news/years+maple+leaf+canada+much+loved+flag+initially+divided+nation/10812716/story.html>.

Which Court is it Anyway?

Dear Sir or Madam,

This week our theme is the judiciary, the structure of our courts. Today we will begin with an outline of the main levels of court in the country. These are the Superior Courts, Provincial Courts, Courts of Appeal, and Supreme Court.

The Superior Courts (known as the Court of Queen’s Bench in Alberta and, for example, the Supreme Court of British Columbia) are the “courts of inherent jurisdiction”.¹ They are the only level of court established in the BNA Act.² These courts have jurisdiction over anything not delegated to other courts by legislation. This jurisdiction includes major criminal trials, divorce, and civil suits over large sums of money.³

The BNA Act allows for the provinces to establish provincial courts underneath the Superior Court.⁴ The Superior Courts delegate much work to the provincial courts. All criminal cases start at the provincial court level, and most are resolved there. The provincial court also handles matters such as traffic violations and civil suits up to a certain amount of money.⁵

Cases heard in these two lower levels of courts can appeal decisions to the Court of Appeal. In Alberta, the Court of Appeal is made up of the Chief Justice of Alberta and thirteen justices of appeal.⁶ They sit in panels of three to hear appeals and evaluate the lower court decisions for errors.⁷ Sometimes it takes a long time for a case to be heard by the Court of Appeal, and in the meantime the lower court judge has been promoted to the Court of Appeal. When this happens that justice is not allowed to hear the case.⁸

The BNA Act also allows the federal government to establish courts, especially courts of appeal, to improve the administration of justice.⁹ This power has allowed them to establish the Federal Court and Federal Court of Appeal, which handle federal matters such as immigration claims, intellectual property (e.g.: copyright and trademark), and appeals from federal administrative boards.¹⁰

The most important court created under this power is the Supreme Court of Canada (SCC). The Supreme Court of Canada is a panel of nine judges headed by the Chief Justice of Canada.¹¹ Currently that position is held by University of Alberta Faculty of Law Alumnus the Right Honourable Beverley McLachlin, P.C. They need a minimum of five judges to sit, but often all nine will form a panel together.¹² The Supreme Court hears appeals from civil and criminal laws from across Canada.¹³ People who want their cases heard by the SCC need to “apply for leave” (which means apply for permission) to appeal to the SCC. These can be referred by the Court of Appeal, the Lieutenant Governor in Council (i.e.: the provincial legislature or federal parliament), or the SCC itself.¹⁴ In addition to appeals from lower court cases, the SCC can also be called on to comment on the constitutionality of a piece of legislation.¹⁵

Our court system can seem complex and daunting to people unfamiliar with it. Today’s post gives a brief outline of only the most active branches of the judiciary. Each of these courts has much more complexity in their roles, and this doesn’t even include specialized courts like the Tax Court, or military courts. Some of these will be explored in more detail later this week.

Your Humble and Obedient Servants,

The Dominion

 

 

¹Moin Yahya, Foundation to Law (Second Edition), Selected Course Material, (Faculty of Law, University of Alberta, 2015), at 35.

²Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 96, reprinted in RSC 1985, Appendix II, No 5.

³Supra note 1, at 34.

⁴Supra note 2, s 92(14).

⁵Supra note 1.

⁶Court of Appeal Act, RSA 2000, c C-30, s 3(1).

⁷Ibid, s 7.

⁸Ibid, s 11.

⁹Supra note 2, s 101.

¹⁰Supra note 1, at 37.

¹¹Supreme Court Act, RSC 1985, c S-26, s 4.

¹²Ibid, s 25.

¹³Ibid, s 35.

¹⁴Ibid, ss 36, 37, and 40.

¹⁵Ibid, s 53.

 

Sound Recording Copyright Extension to 70 Years is a MONEY GRAB!

New reports are suggesting that the Government of Canada plans to extend the term of copyright monopoly from 50 years to 70 years for sound recordings. I will give you  4 reasons why this does not further any legitimate public policy goal but rather is mere rent seeking (a money grab)  by copyright owners (in particular the record companies):

1.  Ever since the Statute of Anne (a mere 12 year term I believe), copyright terms have creeped higher and higher without any empirical reason to support a public policy benefit, e.g. increased incentive to create more or better art or in this case music. In the absence of such data, does anyone really think that artists, or more particularly the record companies that own the sound recordings, will create more or better music if the monopoly is extended yet another 20 years?

2.  Most of the money made on a sound recording happens shortly after its release.  For some classic songs and albums, significant streams of income still happen several decades down the road.  However, by that time, the copyright holders have made bundles and bundles of money, and much more than could ever be justified by the incentive copyright is suppose to provide creators to make art.

3. Despite the apparent support of the extension by Canadian luminaries Bruce Cockburn, Gordon Lightfoot, and Leonard Cohen , each of these artists probably receives about 10-15% (the industry standard) royalty on all sales of sound recordings - meaning the other 85-90% goes to the record companies.  What did they do to justify a 20 year term extension?  They lobbied long and hard!

4.  And even though, as Leonard Cohen is purported to have claimed, some of his sound recordings from the 60s would go off copyright soon if it were not for this extension, his composition or song writing rights will be with him to the end of his days and then another 50 years thereafter (this is a separate copyright with an even longer term).  So while he would not receive a cent for the sale of sound recordings if these were to expire soon, he would still receive his royalties (again probably less than the music publishing house) every time someone else played one of his songs.

 

 

 

Enjoy your US Netflix Guilt Free!

Many Canadians subscribe to VPNs (virtual private networks) - i.e. a server with a location in another country, usually the US - as a means of accessing content in that jurisdiction.  So far example, you may subscribe to Netflix in Canada but with the same user ID and password, access US Netflix (with more and better content) simply by adjusting your computer settings to a US proxy server.

Yesterday Netflix announced that it would be cracking down on Canadian subscribers who do this. Articles I read in the Globe and CBC variously described the practice as "illegal" or at least a legal "grey area."  I dont really think it is much of a grey area.

There are three ways it could be illegal:  breach of contract (i.e. breaching your terms of service); copyright infringement in Canada; or copyright infringment in the US.

As to the terms of service, here is what they say about this:

"You may view a movie or TV show through the Netflix service primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location."

This does not come close to prohibiting the use of VPNs to access content in another jurisdiction.  

Canadian copyright law characterizes the streaming of content over the internet as "communicating a work to the public by telecommunication" - an exclusive right of the copyright holder. But so far courts have interpreted this to mean a right of upload; the right has not been interpreted to have any bearing on the viewing of streamed content.  Moreover, streaming is not copying (so our Supreme Court has ruled) and so there is no issue of infringement of the reproduction right or with respect to illegal parallel imports (since this only applies to "tangible objects.")

As to US copyright law, well the rights have been paid for in that jurisdiction and so it is hard to fathom how viewing content through a server in the US could ever implicate its copyright law,

So enjoy your US Netflix guilt free. 

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."

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.

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?

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.