Protecting Intellectual Property Rights in the Face of a Potential Pandemic

March 17, 2008 by mahbod

Issues surrounding medicine patents truly test the moral groundings of patent law.  Specifically, when companies develop and patent drugs that treat life threatening diseases, the inherent morality behind restrictive patent laws seems to lose legitimacy.  The objectives underlying intellectual property must be weighed against the immediate humanitarian agenda.  The anti-patent camp can argue that corporations should not profit from diseases and that public health is priceless, worthy of any sacrifice, including rights to property.  However, even in such exceptional circumstances, one cannot lose sight of the principles behind patent laws and their practical utilitarian objectives.  

Tamilflu, used to treat the avian flu, was developed and is privately held by Roche.  The avian flu is a lethal virus which spreads from poultry to humans directly in contact with them [i].  The major concern is that the virus could mutate to transfer from person to person [ii].  In such a case, studies have shown that even a mild outbreak could result in 1.4 deaths and cost $330 billion while a worst-case scenario could lead to deaths upward of 142 million [iii].   

The fear is that Roche lacks the capacity to produce enough Tamilflu treatment to combat a large outbreak of the virus [iv].  In “Tamilflu, the Takings clause, and Compulsory Licenses…” [v], Amanda Mitchell explores the options available to the US Government in resolving the inadequate supply of Tamilflu.  The first option considered is compulsory licenses which allows the US Government to use patents without the owner’s permission, after which, the owner can sue for infringement.  Furthermore, the government may take an even more extreme approach of “Eminent Domain” which utilizes the Government’s constitutional power to take title of property on the basis of public interest and provide reasonable compensation.  Although, this right is typically reserved for taking title of land, it may also be used for taking possession of patents.  The Government would have to compensate for the whole cost of a patent, which by considering the potentially large demand for Tamilflu, could be very high.  Nonetheless, Roche stands to lose by either approach as they lose their dominant power in the Tamilflu market.   

Although it is difficult to argue against the morality of overpowering pharmaceutical companies to serve the public health, Governments must show restraint in taking a strict adversarial approach.  The enormous profit which a company stands to gain from finding a cure to dangerous viruses is the driving force behind their innovation.  Ideally, the companies would require only humanitarian motivates to develop their drug, however, development is very costly and there is no guarantee the investment will be successful.   Moreover, corporations are currently very effective agents in developing new drugs.  Governments must be careful to preserve incentives for investing in costly research to solve the world’s health problems.   

It is not argued that pharmaceuticals are perfect or that they should be left free to do as they please.  There is great need for reform to develop and execute laws that compel these companies to compromise their profits when possible to serve the humanitarian agenda.  However, one must also not punish them for being in an industry which provides life saving medication.  There is a tendency to be more critical of pharmaceutical companies because they profit from saving lives, as opposed to providing luxury goods.  Alternatively, society is more accepting of companies exploiting our desires instead of our needs.  Instead of condemning the pharmaceuticals for providing life saving products, we must commend them.   

It must be restated that regulation is necessary as pharmaceuticals hold a great deal of power in relation to public interest.  However, governments must exercise their powers with discretion.  Infringement of pharmaceuticals’ rights to property must only be exercised as required and compensation must be fair.  In the case of Tamilflu and Roche, there are other ways to compel corporations to increase the supply of their drugs.  By taking an adversarial approach, governments may misuse their powers in the name of public interest; which could serve to hurt that exact cause.   

Protection of pharmaceuticals has a utilitarian grounding by motivating medical innovation, and is also grounded in justice, as the products developed save lives.  Although, there is a great need for regulation and reform, governments must use their powers with discretion to assure companies like Roche continue to develop the drugs that can protect us from new viruses such as the avian flu.   

[i] Mitchell Amanda, “Tamilflu, the Takings clause, and Compulsory Licenses: An Exploration of the Government’s Options for Accessing Medical Patents” California Law Review (2007) Volume 95 at 538.[ii] Ibid, at 538.[iii] Ibid, at 538.[iv] Ibid, at 539.

Posted in Pharmaceutical Drugs | 3 Comments »

Copyright Law in Iraq: All Bark, No Bite

March 11, 2008 by reem_a

On January 28th, 2008, the Iraqi Ministry of Culture and the IZDIHAR Project co-hosted Iraq’s first Iraqi Copyright Awareness Conference. While it was awarded minimal media coverage, the rare congregation of authors, creators, painters, innovators and government representatives exemplified the manner in which the political and social landscape is shifting in post-Saddam Iraq. The conference illuminated issues surrounding the existing copyright regime in Iraq and raised questions regarding reforming the current laws to accommodate for the needs of authors, businesses, software programmers and innovators. “Improvements” such as increased penalties, rapid judicial enforcement and policy alignment with the World Trade Organization were brought to the forefront of the discussion.

Abdul Haidi Khdum, a renowned Iraqi author, emphasized the relevance of copyright issues in the lives of Iraqis through recounting his own lost opportunities due to the illegal translation of copyrighted material abroad. He also mentioned the importance of copyright enforcement abroad, which facilitates receiving royalty fees that enable authors to sustain their work.

As the event came to a close, Ali Omar Fatah, Chief Legal Counsel of the Ministry of Culture stated that

[The conference] showed the importance of Intellectual Property Rights (IPR) reform to stimulate Iraqi innovation, protect its cultural and artistic creations, advance the Iraqi economy and increase our country’s standing as an advanced nation in the global trading community.

This conference was touted as a wonderful opportunity to reach out to a very fragmented community of Iraqi artists, creators and innovators. However, it also served to forward the interests of the business community through steering the focus towards Iraq’s accession into the World Trade Organization.

In April 2004, Paul Bremer, the Director of Reconstruction and Humanitarian Assistance in Post-War Iraq, amended Copyright Law No. 3 of 1971 and instilled the current copyright regime in Iraq. The amendments were made to ensure that Iraqi copyright law met current internationally-recognized standards of protection and aimed to incorporate the modern standards of the World Trade Organization into Iraqi law. While the amendments made by Bremer do align the Iraqi copyright regime with the World Trade Organization standards, the fact that the conference held in January 2008 calls for enforcement of the laws through increased penalties alludes to the fact that the laws are quite bulimic. Without proper enforcement, the copyright laws are useless.

I had difficulty finding information regarding the enforcement of copyright laws in Iraq since 2004. However, as an Iraqi who lived in Baghdad during the regime of Saddam Hussein, I am having trouble reconciling the tensions that lie between the lines. On one hand, I recognize that one conference cannot possibly facilitate the change required to adequately protect the authors, innovators and creators from copyright infringement. I also recognize that this whole discussion of enforcing copyright laws in Iraq could be another guise by which the Iraqi people are further marginalized as a result of policies reforms stemming from the World Trade Organization.

I believe that the mere mention of an Iraqi Copyright Awareness Conference is a phenomenon in my mind. No more than a decade ago. authors in my family censored their articles and written pieces in fear of their lives. The notion of a congregation of authors and government officials discussing copyright issues was a laughable idea in a world where free press and freedom of expression was non-existent.

While the country is in the midst of intense political turmoil and the borders have been pried open to allow a surge of economic opportunities to flow into Iraq, the importance of establishing an Intellectual Property Rights regime that is robust and works for the interests of the Iraqi people becomes a pressing issue. The more I contemplate this issue, the number of questions I have increases as the number of answers I gain depletes, which is reflective of my experience Intellectual Property Law in general. IP is a messy and unclear labyrinth riddled many obstacles. There is very little indication that the improvements raised at the conference will actually be implemented. The odds are quite high that the status quo will be maintained and as such, Iraqi copyright law will remain an anorexic framework of empty promises. Without proper enforcement, we are faced with policy that is, once again, all bark and no bite.

Sources:

“Awareness Conference Highlights the Need to Reform the Copyright Regime in Iraq”
http://www.izdihar-iraq.com/news/stories.html

COALITION PROVISIONAL AUTHORITY ORDER NUMBER 83- AMENDMENT TO THE COPYRIGHT LAW - April 2004

Posted in Ownership, Infringement, Copyright, General | 1 Comment »

Appreciating Depreciation (or how I learned to love s. 22 of the Trademarks Act)

March 10, 2008 by David Lametti

Editor’s Note: On Monday, March 10, 2008, Prof. Lametti delivered the lecture archived here. Thanks for those of you who joined us!

If you are unable to see the video above, please use the following link to open Windows Media Player on your computer: Link

Bio:

David Lametti is an Associate Professor of Law, McGill University, a member of the Institute of Comparative Law, and of the Centre for Intellectual Property Policy (CIPP). He teaches and writes in the areas of Civil and Common law property, intellectual property and legal theory. His most recent representative publications are “The Concept of Property: Relations through Objects of Social Wealth”, found in the University of Toronto Law Journal, and “Coming to Terms with Copyright”, in a collection published by Irwin Law.

Posted in Trademarks | 1 Comment »

GIs and Australian Aboriginal Art

March 9, 2008 by Katherine Hennig

A reason why ‘new world’ countries should support the protection of geographical indicators (GIs) is because the GI concept can be applied to aboriginal art so that its integrity and underlying traditional knowledge are preserved. In “Intellectual Property and Aboriginal Art,”[1] Adrian Newstead explores the misappropriation of Australian aboriginal art forms by non-aboriginals. There are about 250 tribes in Australia today and each have their own unique images, dances and songs; it is considered offensive among aboriginals to use the unique cultural information of another tribe [2]. The preservation of these art forms is considered integral to the project of redefining traditional lifestyles and culture as aboriginals recover from years of assimilation policies [3]. The integrity of a tribe’s art is diminished if it is misappropriated by outside parties and reproduced in culturally inappropriate ways, such as being printed on t-shirts [4].

As Kasturi Das argues, GIs do not have to be geographical names but can also consist of symbols that indicate origin [5] although the definition in the TRIPs agreement may be too limited to include aboriginal art. For Australian aboriginal art, the style of art, the word ‘aboriginal’ or the name of a tribe can function as a GI. The nature of the GI as a collective and perpetual right is fitting for aboriginal cultural information because its development was a collective effort that spanned generations. A perpetual right is justified in this case because the general public cannot lay any claim of user right on this kind of cultural information. Using copyright and patents as an example, there is an idea that both the creator and the community have a right to the creation - the creator has the right to be compensated and the community has the right to use and build on the creation after compensating the creator. Copyright and patents are for a limited term because of the public’s interest in the creations. In the case of aboriginal art, the community is limited to those within the tribe; non-aboriginals do not have a claim to art forms that were created before they came to that region. How a particular tribe sorts out the balance of rights between creators and non-creators is for them to decide - as sovereign nations they have a right to determine how they deal with their collective creations [6].

The justifications for protecting the indicators of aboriginal art parallel common justifications for protecting GIs. There is consumer confusion regarding the authenticity and origin of the art. Newstead explains that there is a high demand from tourists for authentic aboriginal creations [7]. In response to this demand, businesses are passing off mass produced and often poorly made handcrafts as authentic [8]. The claim of consumer confusion is stronger for aboriginal crafts than it is for goods that clearly indicate where the product was created. Much like the claims of diminished reputation, the placement aboriginal art on t-shirts and souvenirs diminishes the integrity of the art form [9]. A further consequence of this misappropriation and fraud is that aboriginal communities are denied economic compensation and control over the use of art forms they have built. Preventing this unauthorized use would enhance the economic development of those communities [10].

[1] (Paper presented to the Art Crime: Protecting Art, Protecting Artists and Protecting Consumers Conference convened by the Australian Institute of Criminology, Sydney, 2-3 December 1999), online: <http://www.aic.gov.au/conferences/artcrime/newstead.html>.
[2] Ibid at 2.
[3] Ibid at 2.
[4] Ibid at 5.
[5] “International Protection of India’s Geographical Indications” (2006) 9:5 The Journal of World Intellectual Property 459 at 460.
[6] I am aware that GIs are closer to trademarks than to copyright. However, in the case of Australian aboriginal art, the appearance of the art is intertwined with the indications of its origin.
[7] “Intellectual Property and Aboriginal Art,” supra note 1 at 5.
[8] Ibid.
[9] Ibid.
[10] Ibid.

Posted in IP | 1 Comment »

Facing Up to Facebook: The Fight for Fair Copyright in Canada

March 5, 2008 by Michael Geist

Editor’s note: Thanks to those of you who joined us for the lecture! This page will now provide an archive of the lecture.

If you are unable to see the video above, please use the following link to open Windows Media Player on your computer: Link

Abstract:

In December 2007, the Canadian government planned to introduce new copyright legislation that was to have mirrored the U.S. Digital Millennium Copyright Act. A Facebook group was formed to advocate against such reforms and for balanced copyright laws. Within weeks, nearly 40,000 Canadians joined the group, with members writing and calling their elected representatives, educating their local communities, and staging public protests. In the face of this opposition, the Canadian government delayed introducing the legislation. The “Canadian copy-fight” attracted considerable attention from the mainstream media, with many wondering how copyright had emerged as a contentious policy issue. This talk will assess the Canadian experience in an effort to answer the oft-asked question – “why copyright?”.

Bio:

Dr. Michael Geist is the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa. His articles and government reports on the Internet and technology law are published regularly in the Toronto Star and BBC. Dr. Geist is the creator and editor of BNA’s Internet Law News, editor of the Canadian Privacy Law Review, founder of the Ontario Research Network for E-Commerce, and is on the advisory board of several leading Internet law publications. Dr. Geist serves on the Privacy Commissioner of Canada’s Expert Advisory Board and has served on the board of several organizations such as the Canadian Internet Registration Authority and Canada’s National Task Force on Spam. In 2003, Dr. Geist received the Ontario Premier Research Excellence Award, was named one of Canada Top 40 Under 40, and received the Public Leadership Award from Canarie for his contribution to the Internet in Canada.

Posted in Copyright | No Comments »

The Commodification of Intellectual Property, and You!

March 3, 2008 by Jamie Greenberg

I recently attended a lecture by professor Bruce Ziff, of the University of Alberta Law School, where he described what he termed as his only original academic idea. He posited that the reason we as a society are so restrictive about property rights is because it is basically impossible to extinguish property rights that have already been recognized, therefore the courts are very reluctant to recognize new ones.

The lecture got me thinking about how intellectual property fits into the scheme of recognizing “new” property; as intellectual property is the quintessential form of “new” property and is very quickly being commodified into new de-facto categories of property.

Has the commodification of intellectual property in general created a backlash whereby new arenas of communal rights such as the creative commons have sprung up in response to this phenomenon, or have we entered a new horizon of property law, where intellectual property rights will be recognized despite Professor Ziff’s hypothesis?

In a case such as the Schmeiser v. Monsanto case, it is easy to see a commodification of the “new”. This case, where genetic patents on canola seeds were found to be stronger then property rights, represents the established commodification of a new type of property. Furthermore, the Internet has spurred a new commodification of music with DRM (controlling the use of media), and the increasing commodification of personal information with the monetization of social networking websites like MySpace and Facebook.*

It can be argued that society is waking up to the commodification of the new frontiers of property. New institutions such as the creative commons and the movement towards organic food provide us with a countervail to the commercialization and exploitation of some of the “new” forms of property described above.

However the question remains, what is best for the individual and the consumer?

On the one hand it is easy to argue for the “righteous” individual. The individual that buys organically grown foods, uses the creative commons and shuns corporations (which are necessarily evil).

I argue though that it is not black and white. Taking Professor Ziff’s “only original idea” as fact, that once new forms of property are established and recognized it is near impossible to reverse them, there appears a positive side to the commodification of new forms of property. Allowing the patenting new strains of wheat that are less resistant to adverse weather and yield more harvestable crops provides opportunity for those in the third world who go to sleep at night hungry to possibly sleep with full bellies. The placing of digital rights management on music and movies provides incentives for artists to keep on producing quality work with less fear of their work being bootlegged. And the commodification of personal information on the Internet, if the information is voluntarily divulged, provides incentive for individuals to make new connections in their lives with companies maintaining an incentive to develop new technology to make this even easier.

Maybe the new frontier of property is not really new, and the fear of the irreversibility of new types of property is not really a valid one. With every new advance in technology throughout history, there has always come new challenges how to effectively protect the advance from copycats and secure the rights to the advance so that profits may follow, and incentives for more advances are created.

So, while joining the creative commons and buying organic are definitely backlashes against what might be the hyper-commodification, and establishment, of new forms of property, there must also be perspective that both viewpoints can live in harmony. If someone doesn’t buy organics it doesn’t mean that they don’t care for the environment, just as if one does it doesn’t mean that they are against finding new options to alleviate hunger. The backlash to the commodification of new forms of property is natural. So, go out and buy your brand name organics, but please do it while listening to the newest indie band on you iPod after having lunch with the new guy/girl you just met on Facebook, because although it is tough to abolish property rights that have been recognized, it is also futile to fight the tide of the “new” intellectual property rights that will drive our economy in the 21st century.

–

*Percy Schmeiser and Schmeiser Enterprises Ltd. v. Monsanto Canada Inc. and Monsanto Company [2004] 1 S.C.R. 902

Posted in Technology, Infringement, Infringement, Digital Locks, Privacy, Copyright, IP, Patents, General | 1 Comment »

GIs: New World Countries Must Bargain

March 2, 2008 by Svetlana Ora Shpigelman

Geographical Indicators are terms used to define names that are affixed to predominantly agricultural products (although GIs are also used for other products such as crafts and jewellery, this kind of use is less common) originating from specific geographical regions where these products are grown and manufactured and from which they derive their quality and reputation (as a result of both human and natural factors). Moreover, GIs are a unique kind of IP in that this form of trademark is shared by all of the people producing in a certain region. Since GIs indicate both quality and reputation to consumers they have become very lucrative (as the products to which they are affixed gain an economic advantage over similar products that do not bear these names).

Since GIs help add economic value, those countries that have a lot of GIs (specifically the EU countries) want to protect them, especially since they feel that New World countries (such as Canada, Australia, and the U.S.) have been abusing European GIs by affixing them to products manufactured in the New World and causing consumer confusion. It is clear that the drive to protect GIs comes from their economic value (the fact that affixing a GI results in recognition of the product and its quality, a higher price, and more sales). As such, it is easy to understand why countries that have a lot of GIs feel that they are losing out when a product manufactured elsewhere with the same name is chosen over theirs. Old World countries claim that this New World product is purchased over the Old World product only because consumers are tricked into believing that the New World product actually comes from the specific region whose name it bears and is merely sold for a cheaper price. However, I find it difficult to believe that a reasonable consumer is as stupid as the EU claims. First of all, any consumer can simply look at 2 bottles and see a “Made in Canada” or “Made in France” tag to distinguish between them and second of all I believe that for most consumers, the price would be enough to indicate that one was clearly imported while the other was not (this can be observed at one’s local LCBO where Andres Canadian Champagne, which is produced in Canada, costs a mere $12.95 for 1500 mL while 99 Clos Des Goisses (Champagne Philpponat), which is produced in Champagne, France, costs $495.00 for 750 mL.).

Driven by a fear that their products are outsold by imitations, Old World countries (such as those of the EU) argued for stronger protection by phasing out the use of their GIs even if a “Made in Canada” tag or an expression such as “kind,” “like,” “type,” or “imitation” are affixed. The TRIPS agreement, which came into effect in 1996 in developed countries and in 2006 in its least developed signatories, was successful in establishing this kind of virtually absolute protection for wines and spirits through Article 23. However, to the EU’s chagrin, Article 24 exempted all GIs that were used in good faith prior to 1994, were used as generic names, and were not protected in their country of origin. As such it was left up to each of the signatories to make their own bilateral agreements with each other if they truly wanted their GIs to be protected.

 One such bilateral agreement is the Wines and Spirits Accord, which was signed by the EU and Canada in September 2003. This agreement called for the gradual phasing out of 21 EU wine names and 2 EU spirit names to be completed by 2013. In return, Canada received the protection of 1 GI: “Rye Whiskey.” This clearly shows that New World countries, which have very few GIs to protect, are at a major disadvantage and must shoulder most of the burden of GI protection. Unfortunately I was unable to find any information on whether or not this agreement has been implemented and to be honest I hope that it has not because I feel that Canada has lost out in the negotiations. If Canada is to respect the EU’s claim for GI protection it must use such negotiations to its advantage (for example, since it doesn’t have many GIs to protect it must argue for other things such as respect to their boundaries in the arctic or fair use through the licensing of GIs). True progress in this area can only occur as a result of compromise.

Posted in Cross Border Issues, Trademarks, IP | 1 Comment »

The Battle over the Rights to “Zombies in a Mall”

February 28, 2008 by Janet Chong

When asked to think about the pop-culture zombie genre, classics such as George A. Romero’s 1979 film “Dawn of the Dead” (and its 2004 remake) and Peter Jackson’s 1992 creation “Dead Alive” come to mind. After all, the storylines read typically: man battling the undead for ultimate survival.

Joining the genre is the popular video game, “Dead Rising”, by the Japanese game maker, Capcom Co. Ltd. The game features a protagonist stranded for three days in a mall where zombies abound. It has many characteristics in common with “Dawn of the Dead”; in fact, so many so that the MKR Group, an independent movie producer and the IP rights holder of the film, is suing Capcom for copyright and trademark infringement.

Prior to the game’s release, MKR approached Capcom accusing infringement, but the two companies failed to arrive at a resolution. Capcom then moved to pre-empt further dispute by (1) having a disclaimer on the game’s packaging, stating “this game was not developed, approved or licensed by the owners or creators of George A. Romero’s Dawn of the Dead”, and (2) filing an application for a declaratory judgment that the game did not infringe MKR’s IP rights in the film and an injunction to prevent MKR from asserting those rights at the California District Court. In its filing, Capcom claims that any similarity between two works is “based wholly on the unprotectible idea of humans battling zombies in a shopping mall”.

Despite these efforts and the fact that the game is no longer being produced, MKR sued Capcom this past Monday alleging that “Dead Rising” is essentially the game version of the movie. In particular, MKR states in its filing to the New York District Court that both works “are dark comedies. In both, the recreational activities of the zombies and absurdly grotesque ‘kill scenes’ provide unexpected comedic relief. Both works provided thoughtful social commentary on the ‘mall culture’ zeitgeist, in addition to serving up a sizable portion of sensationalistic violence.” (see Reuters).

The immediate copyright issue is whether MKR holds the right to the “zombies-in-a-mall” theme. Surely MKR owns the copyright in the film, but unless it can somehow argue that the theme is an expression of the classic idea of good vs. evil, the theme remains an idea and thus “unprotectible” as Capcom asserted. It is well established in the Canadian copyright regime that granting copyright to ideas or schemes is simply not in the public’s interest in the encouragement and dissemination of works of arts and intellect. Both s. 64.1(1)(d) of the Copyright Act and case law recognizes this public interest (Galerie d’art du Petit Champlain Inc. v. Thebérge) as well as the need for the copyright regime to balance this interest with justly rewarding the creator of the work. Imagine how dull the entertainment industry and the literary world would be if such creative ideas as “star-crossed lovers” or “international man of mystery” are copyrightable.

In my opinion, MKR’s claim of trademark infringement is unlikely to succeed as well. Given that Capcom disclaimed any association between the game and the movie right on the game’s package, and the fact that many video games contain the same human vs. zombie premise, it would be difficult to prove the likelihood of confusion, .

I understand the importance of asserting one’s IP rights - huge economic interest is involved, and stakes in the outcome of such assertion are high. However, meritless lawsuits may have a chilling effect on the process of creation, and may therefore deprive the society as a whole of intellectual stimulation and worse yet, cultural evolution. This would truly be a great loss to mankind.

Posted in Infringement, Movies, Trademarks, Copyright | No Comments »

Faster Than A Speeding Lawsuit

February 23, 2008 by Christopher Bird

In two months’ time, the estate of Jerry Siegel, co-creator of Superman, will finally take Time-Warner Communications (via its subsidiary, DC Comics) to trial over ownership of copyright. Siegel (along with artist Joe Shuster) created Superman in 1928, and DC Comics currently owns the rights.

Of course, it’s not that simple. Last year, the Siegel estate successfully won back the copyright to Superboy. They did so because Superboy was ruled to be Siegel’s creation: Siegel created Superman and then sold the rights to DC in 1947. When the United States Congress extended the length of copyright renewal in 1976, they also allowed creators who had sold their copyrights under a work-for-hire agreement to terminate their transfers after the fact (reflecting that they might have wished to negotiate different agreements had they known works would not expire into the public domain for another 28 years). These same issues arise over Superman, who was initially created by Siegel and Shuster independently for a comic strip then sold to DC.

When decided, it will further define the parameters of a currently uncertain issue: namely, how much of Superman’s copyright overlaps that of Superboy?

This is more difficult than it sounds. Superman’s copyright encompasses his interactions with Metropolis, Lois Lane, and Lex Luthor; Superboy’s includes Smallville, Lana Lang, Ma and Pa Kent, and Krypto the Superdog. Consider that the television show Smallville includes multiple elements from both franchises. In the Superboy decision, Judge Harold Lew refused to state decisively whether Smallville infringes on the Superboy copyright, but did say that it could potentially infringe. (And if Smallville infringes, then potentially so does the Superman movie franchise. Superman is big money.)

To elaborate: DC’s current argument, should they maintain the Superman copyright, is that Smallville is a show about a “young Clark Kent.” DC claims this because stories featuring a young Clark Kent were published long before any comic with Superboy, and thus “a young Clark Kent” is part of the Superman copyright. The Siegel estate countered (and Judge Lew seemed to agree in his decision, albeit not emphatically) that “a young Clark Kent” does not automatically give DC an escape clause, because all Superman comics featuring a “young Clark Kent” featured the character as an infant or toddler, rather than as a teenager.

I think the most difficult aspect of deciding whether any “young Superman” story drifts into Superboy territory, however, is that storytelling in comics is by its very nature fluid; new writers add and change the character as they see fit, and interactions with other (copyrighted) elements help to define each property. A good example of this as regards Superboy is Smallville itself. If you ask most casual Superman fans where Smallville is, they’ll tell you it’s in Kansas. The problem is that Smallville’s location was only determined to be in Kansas in the original Superman movie in 1980; prior to that, Smallville’s location was indeterminate. Does the Superboy copyright include that Smallville is in Kansas? Should it? It wasn’t part of the integral concept as envisioned by Siegel, but later creators were simply building upon and extending DC’s intellectual property (and, by proxy, Siegel’s).

And of course, Smallville the television show draws upon elements of both the Superboy and Superman copyrights. On the Superman side of things, you have Lex Luthor as the show’s primary antagonist – but on the Superboy side, Lana Lang is the primary love interest. Modern superhero comics storytelling (and anything derived from it) is unique in that it absolutely demands the interaction of dozens, even hundreds or thousands of copyrights at a time. DC’s ownership of Superman may be in question, but their ownership of Krypton, Lois Lane, Lex Luthor and Jimmy Olsen isn’t, and what’s Superman without his home planet, girlfriend, archenemy and best buddy?

Which is why the Superman lawsuits aren’t about control of the character – that’s effectively been ceded to DC until such time as the character and his entire supporting cast becomes public domain – but simply about fair recompense.

(A final word: although I’ve been trying to be fair in discussing this, the truth about DC’s shameful treatment of Siegel and Shuster - and later their estates - is public record. The Superboy and Superman lawsuits are classic examples of how corporate advantage in the legal arena can be harnessed to unfair extremes.)

Posted in General | No Comments »

Some Share the Files, All Share the Costs

February 23, 2008 by Zainab Somji

The Songwriters Association of Canada (SAC) recently proposed legalization of peer-to-peer music filesharing via the imposition of an obligatory $5 monthly fee on all Canadian broadband users. It is estimated that this would result in the collection of $500 million to $900 million per year, to be distributed to musicians and creators to compensate them for the downloads of their songs. The solution sounds simple, but is laden with problems.

It is highly doubtful that Internet Service Providers (ISPs) will accept this scheme without resistance. The enforcement of the monthly levy will see many angry internet subscribers, especially those who do not download music at all but who nonetheless have to pay for the service. Furthermore, the proposal requires that the distribution of the collected monies to each musician be based on the amount of downloads of that particular musician. ISPs will thus be required to engage in the costly activity of policing customer downloads closely. If that is not deterrent enough, the possible privacy issues that will result from such policing will likely further discourage ISPs from accepting the SAC proposal.

The proposition seems to be a ‘band-aid’ solution to a complex issue. The main benefit of the scheme would be that those who have been engaging in peer-to-peer downloading will be able to do so without having the stigma of ‘illegality’ attached to their activities. However, the proposal fails to address the after-effects of its implementation. While SAC seems to be speaking on behalf of creator rights, it does not discuss the possibility that songwriters and musicians will have to “give up their long-established right to approve or disapprove of the use and means of dissemination of the work” leaving them only with the “right to be paid for peer-to-peer downloads.”[1] Furthermore, aside from imposing a heavy burden upon ISPs, there is also no indication that levies on CDs will be lifted, resulting in multiple tariffs on consumers.

The efforts by SAC should be commended, since it accepts the reality that peer-to-peer file sharing is here to stay and attempts to balance the phenomenon with creators’ rights. However, while it is refreshing to see some overdue lobbying for creator rights, the proposal seems under-developed at this stage.

 

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[1] Quill, Greg. “Could $5 a Month Save the Music Industry?” The Toronto Star. 20 Feb. 2008.
<http://www.thestar.com/entertainment/article/305082>

 

Posted in Digital Downloads, Music Industry, IP, Copyright | No Comments »