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Re-Righting Copyright

Richard Owens
Thursday, May 18, 2006

I recently published an op-ed in the National Post called "Intellectual property laws need a rewrite."  It drew an unusual amount of interest, so I thought I would post it here (albeit one might have to discount the level of interest for the fact that the article discusses the Da Vinci Code).  Comments welcome.

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Writers and publishers have a problem; the very law that serves their business obstructs their business.  And no one knows what best to do about it.

All new works of authorship borrow from previous ones, taking characters, plot devices, abstract ideas or even quotations.  But common though such borrowings are, copyright law makes it very hard to know exactly which ones are without risk of legal liability.  Dan Brown, author of the popular Da Vinci Code, was accused of taking too much of another work's ideas and plot. He got away with it - after a very expensive court battle made necessary by the ambiguous law.  By the time a court renders a decision in a given case, far too much money and productive time have already been spent on it.  And so, authors and publishers make very cautious decisions or even try to obscure their sources.

Too Much 'Truthiness' in Judicial Activism Debate

Brenda Cossman
Wednesday, May 10, 2006

Truthiness refers to “the quality of stating concepts or facts one wishes or believes to be true, rather than concepts or facts known to be true.”  It is an idea coined and popularized by political satirist Stephen Colbert on the first episode of The Colbert Report.  The American Dialect Society named in the 2005 Word of the Year, and the New York Times declared it one of nine words that captured the spirit of 2005.

Its spirit is surviving well into 2006.

Just look at debates about judicial activism.  Just look at the recent tempest in a teapot around Saskatchewan Conservative MP Maurice Vellacott's criticism of Chief Justice Beverly MacLaughlin.

Let’s start with some facts (even though they may be of dubious value in a world of truthiness).  Here’s what Vellacott said to CBC reporter Christina Lawand:

“I don't think it is the role, whether left or right, conservative or whatever stripe it happens to be, to actually figure that they play the position of God."

"Beverley McLachlin herself said actually that when they step into this role all of a sudden there's some mystical kind of power comes over them by which everything that they ever decree then is not to be questioned."

Federal Electoral Reform - Ontario Wants In!

Sujit Choudhry
Wednesday, April 26, 2006

“The West wants in” was often repeated by Prime Minister Stephen Harper during his years in opposition.  A principal Western Canadian grievance has been the under- representation of Western Canada in the federal House of Commons.  Alberta and British Columbia continue to attract immigrants and migrants from the rest of Canada and to grow in size relative to the rest of the country.  But, the argument goes, the number of Members of Parliament they send to Ottawa has not kept pace with new demographic realities.

However, the situation is far more complex that that.  The Conservative Party platform promises to address the under- representation of not only Alberta and British Columbia, but also Ontario, with good reason.   Actually, it is Ontario that is vastly under-represented in the House of Commons. 

Let’s look at some numbers.  The current House of Commons has 308 members.  Strictly on the basis of representation by population, Alberta, British Columbia and Ontario should have 31, 40 and 117 MPs respectively.  However, the actual figures are 28, 36 and 106.  In other words, these provinces are 18 MPs short.

Room in the Bed for Everyone

Brenda Cossman
Wednesday, April 26, 2006

A few weeks ago, an odd thing appeared on the New York Times weddings page. There were three wedding announcements, but the same husband appeared in each one. It took a few moments for you to realize that it was actually an ad for the premiere of Big Love, HBO's new drama series on polygamy (which runs on The Movie Network in Ontario).

The series is created and produced by creative and romantic partners Mark V Olsen and Will Scheffer, two gay men who are rather obviously and provocatively riffing on the controversies around same-sex marriage.

The mock announcements nicely demonstrate the connection: the New York Times has been announcing gay and lesbian unions since 2002, two years before same-sex marriages were legal anywhere in the US. A wedding announcement in the New York Times is the ultimate sign of arrival, status writ large - even if there is nothing legal about it. The fake announcement of the three fictitious Big Love marriages played on the same gap between cultural and legal recognition.

The show's creators don't recoil from the association between same-sex marriage and polygamy. They seem to delight in playing on it.

Human Rights Reform in Ontario: A Time for Change

Lorne Sossin
Monday, April 24, 2006

For over fifteen years, there has been a growing dissatisfaction with the human rights process in Ontario.  This dissatisfaction has been expressed by members of equity seeking communities, by human rights advocates and by lawyers practicing in the area of human rights. During that time, there have been four government-initiated reviews of human rights enforcement systems in Canada, one specifically directed at the Ontario legislation, one dealing with the very similar federal human rights complaint system, and two reviewing the systems in other provinces. Despite the fact that each of these reviews made very similar recommendations for reform of the human rights complaint process, to date no major reform has been undertaken in Ontario. That is, until now.

On February 20th, 2006, Attorney General Michael Bryant announced proposals to reform the human rights system of Ontario.  The proposals call for direct access to the Human Rights Tribunal of Ontario rather than the current system in which the Commission screens all complaints and decides which complaints will be referred on to a hearing in front of the Tribunal.

Cutting the GST

Benjamin Alarie
Monday, April 24, 2006

The Globe and Mail has a story by Steven Chase this morning on the federal government's plan to reduce the rate of the GST from 7% to 6% in the budget.  In the story, Chase claims that the staff of the Department of Finance is not supportive of the plan, primarily on the basis that the GST is, in several respects, a "better tax" than the income tax.  Let's examine the two main arguments countering the "let's cut the GST" idea.

How Piracy Opens Doors for Windows - Los Angeles Times

Ariel Katz
Monday, April 10, 2006

The LA Times yesterday published the following article:  How Piracy Opens Doors for Windows.  The article explains why some software publishers complain so much about piracy, but do very little to prevent it. Basically, it makes the same argument that I made in a paper published last year in the UTLJ.  What I especially liked (in addition to being quoted...) is a remark made by Bill Gates, which in an unguarded moment confrimed my point.  Here's what Gates said in 1998 to an audience in the University of Washington: 

Although about 3 million computers get sold every year in China, people don't pay for the software. Someday they will, though... And as long as they're going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.

I wish I had this qoute for my paper.  Thanks Bill.

 

Is Administrative Law Only for Losers? Lessons from Gomery

Lorne Sossin
Friday, April 7, 2006

Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.

For example, since Roncarelli v. Duplessis, the rule of law in Canada has come to mean protection from arbitrary public decisions and public decisions based on ulterior and improper motives and public decisions made in bad faith. Such decisions might as easily be positive determinations grounded in corruption and favourtism as negative determinations which are punitive or discriminatory. Is the decision to grant a license based on the political stripe of an applicant any less offensive than the decision to deny a license on the same basis? 

The Afghan Apostate Case: Issues of Law and Development

Anver Emon
Thursday, March 30, 2006

Recent events in the Muslim world have occupied front page news for weeks.  Between the violence generated by the cartoons depicting the Prophet Muhammad, and the recent capital case against the Afghan who converted from Islam to Christianity, questions about the nature and humanity of Islamic law loom large.  Each instance, however, seems to be a symptom of a larger problem: namely, defining what Sharia is and its place in modern constitutional society.

In the Afghan apostate case, for instance, the judge was in an unenviable position.  Article 1 of the Afghan constitution states that Afghanistan is an Islamic republic. Article 2 declares Islam to be the state religion, while subsection (2) states that religious minorities are free to exercise their faith “within the limits of the provisions of law.”

This begs the question: what defines those limits?  Article 3 states unequivocally what those limits are:  No law can contravene Islamic law. Consequently, a Muslim can live in Afghanistan in peace. A non-Muslim can also live in Afghanistan without suffering persecution for his or her faith.  But if a Muslim converts to Christianity, this violates general provisions of Islamic law; any law drafted under Article 2(2) that protects the apostate would violate Article 3. 

Schumpeter in the Supreme Court

Ariel Katz
Thursday, February 23, 2006

Last November, in  Kirkbi AG v. Ritvik Holdings Inc. the Supreme Court of Canada dismissed Lego's case against Mega Blocks.

The plaintiff was the manufacturer of the well-known LEGO construction bricks for children. It had obtained patent protection for the locking system of interlocking studs and tubes that held the bricks together. On expiry of the patents, the defendant had commenced the manufacture and sale of its Mega Blocks, similar construction bricks using the same locking method. The plaintiffs had commenced an action for passing off, claiming trade-mark rights in the orthogonal pattern of the raised studs distributed on the top of each brick (the 'LEGO Indicia'). The trial judge had found that the LEGO Indicia was purely functional and dismissed the action, a finding that was upheld by the Federal Court of Appeal. The plaintiffs obtained leave to appeal to the Supreme Court of Canada.  The SCC held that the appeal should be dismissed.

Lebel, J. writing for a unanimous court ended the decision with the following paragraph:

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