Popular works should enjoy narrower copyright protection, argue legal experts

When Australian Federal Court judge Peter Jacobsen ruled that a famous flute riff from the hit Down Under by the pop group Men At Work plagiarized a popular nursery rhyme from the Girl Guides, it once again underscored divisions over the implicit and explicit role that popularity should play in the copyright debate.

In a ruling that marked the end of a three-year legal battle, Judge Jacobsen held that the riff in the song, which topped the charts in the United Kingdom and America in early 1982, infringed on the copyright of Kookaburra “because it replicates a substantial part of the song” written by written by teacher Marion Sinclair.

While the ruling held strong to the unstated position that popularity sometimes can and does actually increase the protection a work is afforded, not everyone is swayed that such views should be hold true in the digital age.“It comes down to conflicting perspectives on the purpose and nature of copyright interest,” explained Carys Craig, a law professor at Osgoode Hall who specializes in international intellectual property law. “This is to simplify it but if the focus is on reward for success or reward for creating a valuable thing then the more successful it is, the more popular it is, then the greater protections we would accord it. The scope of the right then flows from the value of the thing.”

Often it is an evidentiary issue, adds Craig. The factual question about whether the plaintiff’s works were copied or was the source of the defendant’s work is often resolved in favour of the plaintiff when the plaintiff is famous or at least very well known. Besides the Down Under hit, Craig points to the infamous case involving ex-Beatle George Harrison, whose song my My Sweet Lord was held to be “subconsciously” plagiarized from a song called “He’s So Fine” recorded by the Chiffons in 1962.

But there is another perspective that makes a simple but counterintuitive argument — the most popular literary, dramatic, musical and artistic works should, in certain circumstances, enjoy narrower copyright protection, argues Michal Shur-Ofry of the Hebrew University of Jerusalem in an article published by the University of Toronto Law Journal. Shur-Ofry contends– as does Craig – that the more popular something is, the more it becomes a part of the public’s consciousness, the more it becomes part of society’s cultural environment. It follows then, so the argument goes, that once the work becomes a cultural artefact, then the “greater of the rights the public should have to use, to engage with, to share and to transform that thing,” said Craig.

That is a position that Ariel Katz, the director of the Centre for Innovation Law and Policy at the University of Toronto, is sympathetic to. “It is a counterintuitive argument but it makes sense,” said Katz, who practiced competition law at the Israeli Antitrust Authority before coming to the University of Toronto. “Many works are works that we not only consume for enjoyment but are also works that are culturally significant like the Down Under song, and it is important to allow people to use it for their own works that may be equally important or popular,” added Katz who believes that there should be greater protection for works in its early stages and weaker when works become hugely popular.

Richard Owens, counsel in the Toronto office of Stikeman Elliott specializing in intellectual property and technology, is not swayed. Flatly stated, he says that what the “copyright reform crowd” are really trying to do is take away the benefit of copyright, protection and the appropriation of value of a work from owners and artists.

“They are also saying something quite odd, which is if we are using intellectual property law to encourage works for the good of society then we should change IP laws to punish those whose works demonstrate they are providing the greatest value to society,” said Owens who successfully represented Toronto-based software company i4i Limited Partnership (i4i) in its patent infringement action against Microsoft Corporation. “The basis for successful copyright regimes is to allow companies, people and artists to get the value of their work. There’s no objective value of the work, except for what it fetches in the market, and I don’t think it’s ethical or good copyright policy to interfere with that.”

But Shur-Ofry points out that while the courts have not explicitly recognized popularity as a relevant factor that affects the scope of copyright protection, copyright law is not completely oblivious to the “need to limit the protection” afforded to very popular works. A case in point is the U.S. ruling in Lotus Development Corp. v. Borland International Inc. where it was held by the District Court that competitors could use the then-standard Lotus interface in their competing spreadsheet, despite the owner’s objection, by proclaiming the interface as an unprotected method of operation. That is a case, adds Craig, where something becomes so fundamental to the way people use a thing, in this case the software interface, that to give a person or company a monopoly over that thing would be to limit competition.

Even trade law, which relies upon fame and distinctiveness as the source of the right to protect , has an exception that “plays into the notion” that popularity can diminish rights when the “mark becomes generic because it is so widely known” that it loses its trademark protection, said Craig. The brand name Band Aid is an example as is Kleenex, added Craig.

A generational divide may partly explain why the notion of popularity as a factor in copyright law is so divisive, said Craig. The digital generation are not passive consumers but rather active participants, and the “law as it stands doesn’t create enough space for that active participation.”

In the meantime, the federal government is trying to update Canada’s copyright laws, the third time in the past five years that successive Liberal and Conservative governments have proposed legislation that tries to protect copyright holders without putting unreasonable restraints on consumers.

Bill C-32, an Act to amend the Copyright Act, was tabled on June 2, 2010, debated and passed on November, and sent to a special legislative committee that held eight meetings before parliament was adjourned.

The bill is controversial. While Bill C-32 would officially legalize practices such as copying for personal and non-commercial use, it would also create new protections for creators, who can decide to use digital locks to restrict access to their work.

On a related manner, the Supreme Court of Canada is about to wade into the copyright muddle. The nation’s highest court announced before the Christmas holidays that it agreed to hear a case involving whether previews of music downloaded from the Internet should be subject to royalties. The Society of Composers, Authors and Music Publishers of Canada is suing a number of communications companies, including Bell Canada and Rogers.

In October 2007, the Copyright Board of Canada ruled that 30-second previews downloaded from the Internet don’t infringe copyright and aren’t subject to royalties. The music producers objected and went to the Federal Court of Appeal, which refused to hear the case.

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