Month: November 2020

It seems you can’t look at the news these days without the word “China” being in a headline. Will a Biden Administration be as tough on China as Trump? How will Justin Trudeau deal with the continued detention of Canadian citizens in China? What will Australia do about new Chinese trade retaliation? How will China’s actions in Hong Kong affect UK-China relations?

Whether it is these issues or accusations of cyber or research theft, planning to plant a “Trojan Horse” inside the critical telecoms infrastructure in the West, or hijacking intellectual property (IP) through forced knowledge transfer or just plain copying, China is getting lots of (negative) coverage. When it comes to IP, it is a popular view that China has an ingrained copycat culture, based on intellectual property free-riding, copying and otherwise appropriating brand-names, pirating copyrighted content and even stealing patents. The “West”, so the argument goes, is much more respectful of intellectual property rights (IPR) and is therefore more original and more innovative. There are no doubt elements of truth in these generalizations, as indeed there usually are in such assumptions, but how valid are they? There is plenty of anecdotal evidence to support the copycat theory; lack of innovation perhaps not so much.

Recently I came across an interesting book recommended by a friend, Bianca Bosker’s, Original Copies: Architectural Mimicry in Contemporary China,which seems relevant to this debate. Is this “mimicry” yet another example of China’s penchant for copying, or does it rather demonstrate that inspiration can be taken from many sources?

The book is not new, having been published in 2013, but I just stumbled across it. As reported by the BBC at the time, in a marketing ploy Chinese property developers came up with a new promotional device; make their custom designed communities look just like a town from somewhere else in the world. Thus, “Thames Town”, located in a suburb of Shanghai, has English pubs, a statue of Winston Churchill, red phone booths, an English-style cathedral, half-timbered buildings, and security guards dressed up in outfits that are probably supposed to resemble the guards at Buckingham Palace. What it doesn’t have, at least according to fairly recent reports, is people. There are places in China that recreate the canals of Venice, the chateaux of Versailles, the Eiffel Tower, a Scandinavian village, and so on. It’s a little bit like having the Epcot Center dropped down on the edge of town, but with no ticket entrance and closing time.

In a 2013 interview about her book, Bosker opined on what drives this mimicry;  

“China, at least traditionally, has viewed copying with far greater nuance and tolerance than we have in the West. This perspective has helped create a copy-friendly climate where knockoff White Houses and Monet-manufacturing centers can flourish. In the United States…copycats are seen as cheats. Yet in China, where there’s a long tradition of replicating everything from architecture and artwork to natural landscapes, copying isn’t viewed with such hostility. Traditionally, people saw there as being many distinct types of copies, each with certain merits and purposes. Being able to copy well could actually be a sign of one’s skill or ability — a good copier would be celebrated as a talent, not a thief, and a well-done replica could be a testament to achievement.”

Sounds like an endorsement for counterfeiters!

China is no stranger to copying, as this example shows. It has been argued that the penchant for copying is culture-based, relating to Confucian culture where knowledge and education were commodities to be “shared”. While there may be some loose connection to Confucian values, much of the current IP rip-offs in China are driven purely by commercial advantage, or greed by another name. In a recent blog, Why is Piracy so Common in China? Confucian Cultural Traditions or Just Plain Commercial Advantage? (A Historical Perspective)I examined this question using the example of Chinese publishing houses in the early 20^th century in Shanghai. At that time, Chinese copyright laws were basically non-existent or at least non-operative but the Shanghai publishers did not let any vague concept of Confucian values get in their way when it came to self-policing of copyright infringement. Printing and publishing were regulated by their guild and discipline was enforced on those who reproduced the works of guild members without permission. Of course foreign publishing houses were not admitted to the guild so pirating their works was fair game!

Other examples of copying and free riding are found in the area of trademarks. China is awash in knock-offs from fake watches and luggage to auto parts and medicines. USTR’s annual Special 301 report on foreign IP practices always has a long chapter on Chinese transgressions. The current edition is no exception with the report noting that; “China continues to be the world’s leading source of counterfeit and pirated goods, reflecting its failure to take decisive action to curb the widespread manufacture, domestic sale, and export of counterfeit goods.” This widespread counterfeit problem has shifted from largely outdoor markets (although still a problem) to online markets, actually compounding the problem by expanding the reach of fake goods to consumers outside China.

Apart from counterfeiting, use of confusingly similar trademark names is also a problem. In a well-known case a few years ago, Starbucks successfully sued a Chinese coffee chain that was using a very similar logo and a Chinese translation of the Starbucks name that was confusingly similar. The case was one of the first where a western brand was successful in a Chinese court, but it seems to have been the exception rather than the rule. I once asked a Chinese friend why Chinese companies didn’t just invest in promoting their own brand image (as a few have done), instead of confusing consumers by pretending to be something else. His answer was revealing to me. He said that a company or product copying another through a similar mark was not trying to fool the consumer; rather the message was “our product is just like and just as good as Brand X” (and probably a lot cheaper). This is a classic advertising free-riding technique. In the West however, the tactic is for the new product to compare itself favourably to Brand X, using the reputation of Brand X to attract consumers to the new, competing product.

So are the Chinese a nation and culture of copycats, unable to innovate without copying either illicitly or openly? That characterization seems hard to square with the contribution that China has historically made in the area of inventions, including paper-making, movable type, gunpowder, the compass, silk, umbrellas, iron-smelting, and porcelain. Oh, and I forgot golf.  Aha, you say, but that was all a long time ago. What have they invented lately? Actually, quite a lot. China is far ahead of most western countries in terms of e-commerce and mobile payments and is competitive if not leading in areas such as AI, 5G, biotech and solar energy. While some parts of the Chinese business ecosystem are content to sit back and copy–or in some cases steal–technology, in other areas cutting edge research is putting China at the forefront of technology. 

But back to architectural mimicry and what it proves, or does not prove. Copying of architectural styles is hardly something new. In the 19^th century many North American cities adopted various European architectural styles, from neoclassical Greek and Roman (think the US Capitol building and state and provincial legislatures across North America) to French Third Empire to Victorian Gothic. We have transplanted Italian gardens, Chinese classical gardens, Germanic castles and French chateaux in North America. We even have an original London Bridge. And then there is Las Vegas, with its Eiffel Tower, Venice and its canals, and Luxor with the Sphinx and pyramids (the real pyramids and Sphinx are over 500 kilometers from Luxor but, hey, why sweat the details?). So copying famous architectural features is not just a Chinese phenomenon, but the cloning of an entire community to create a “Truman Show”-like environment certainly takes mimicry to a new level.

While copying copyrighted architectural designs could get you in trouble, as I wrote about in a blog posting on alleged architectural design infringement in Toronto (“So You Admire Your Neighbour’s House: Best Not to Copy the Design”), Monsieur Eiffel or his heirs are not going to be suing anyone in China, or Las Vegas either for that matter. He passed away in 1923 and all designs and reproductions of his famous tower entered the public domain in 1993, seventy years after his death in accordance with EU copyright law. Thus it is perfectly legal to photograph, copy and sell reproductions of the Eiffel Tower. As an aside, I would note that in a quirk of copyright law, it is a potential copyright infringement to take photos of the tower at night since the night-time light show was added only in 1985 and still falls under copyright protection. As explained in this article, “it’s illegal to share, sell, or publish photos and videos of the night-lit Eiffel Tower without prior permission from the Société d’Exploitation de la Tour Eiffel.” That said, owing to the practicality of enforcement, no case of infringement of this right has ever ended up in court, but if a commercial publisher were to infringe the Societé’s copyright, I can’t predict what would happen.

Returning to the original question, does China have a copycat culture, or at least more of a copycat culture than in the West, the answer depends on your perspective. There is lots of copying in China, some legal like “Thames Town” and some infringing. There is also a lot of innovation and domestic R&D, and a historical tradition of invention to build on. The West does not have completely clean hands either when it comes to copying. The case of the copyright wars of the 19^th century, where US publishers routinely “pirated” and reprinted without authorization British writers is often cited as an example of how attitudes to copying evolved in the West, and will change in China. In another recent blog, I examined this historical question. US, British (and Canadian) publishers pirated each other on a regular basis, but at the time this was all perfectly legal as copyright protection extended only to works published domestically. So technically it wasn’t piracy.

Respect for intellectual property (IP) in all its dimensions—patents, copyright, trade secrets, designs, trademarks—is a foundation stone of innovation and creativity. However, within the framework of IP there is plenty of scope to take inspiration from the work of others without infringing, although staying onside is not always clear-cut. This is what keeps IP lawyers and courts in business, including in China. China’s IP laws and practices are changing given the growth of more domestically-produced IP in recent years, but copying will undoubtedly continue, driven in some cases by short-cutting and achieving unfair commercial advantage but in others by admiration for “something different” with a western allure.

I hear properties in “Thames Town” are still available if anyone is interested.

© Hugh Stephens 2020. All Rights Reserved

Last week I wrote about the challenges facing artists and cultural industries world-wide as a result of the global COVID pandemic. The closure of many venues, from museums to theatres to concert halls, has had a devastating effect–not only on artistic incomes but by stifling creativity and forcing people out of the creative industries. Some governments have offered interim relief through various income support programs, but these are stop-gap measures at best. For some fields of artistic endeavour, the impact will be long-lasting.

While the pandemic has posed many new challenges, flaws in the copyright system that is supposed to protect creators has accentuated the artistic sector’s difficulties. In fact COVID-19 has been used as the pretext to mount assaults on the copyright framework by using the pandemic as an excuse to advance anti-copyright agendas, such as the Internet Archive’s (IA) so-called Emergency Open Library in the US. The IA unilaterally decided that it would abandon the “one copy-one user” principle for lending digitized works in its holdings and make multiple unlicensed copies of digitized works (that were still under copyright) openly available to all comers. After all, there was a pandemic on, so the normal rules don’t apply. Right? Wrong. Publishers were not amused, sued, and the IA pulled back—but only under duress. As I noted in a blog back in the early stages of the pandemic;

“Copyright is the canary in the coal mine when it comes to attempts by special interests to use the COVID pandemic to throw the accepted rules out the window in pursuit of other agendas that have nothing to do with fighting this global crisis.”

While some have used the pandemic as a smokescreen to attack the principles of copyright, in other instances the existing rules, or new interpretations of the rules, have made a bad situation worse. In the Internet Archive case, authors agreed that many people were suffering under lockdowns and accepted that it was harder for students and other to gain access to materials given the closures of libraries (the ostensible reason given by IA for launching its open lending practices). But it wasn’t just students and the public that were hurting. Authors themselves were also suffering. Authors get paid royalties when books are sold through bookstores (bricks and mortar or online) or licensed through libraries. Unlimited, unrestricted circulation of unlicensed copies (even the copies themselves were controversial because rather than being licensed e-books, they were scanned copies of physical books) was just another form of piracy.

In Canada, an ongoing dispute over whether educational institutions have the right to widely copy printed works without a licence under a relatively new “education” fair dealing exception is now going to the Supreme Court of Canada (York U v Access Copyright) for a determinative decision, unless Parliament clarifies the law before a decision is rendered. The hardships imposed by restricted opportunities to market books as a result of COVID-19 are magnified by this major hole in copyright protection. Even the “mandatory licensing” system overseen by the Copyright Board of Canada to enable copyright collectives to manage licensing on behalf of their members has been stood on its head by the Courts, another part of the York U v Access Copyright case that the Supreme Court has agreed to hear. In another creative field, musicians have been forced to compensate for the loss of revenue due to streaming piracy and low payment for licensing of streaming music by staying on tour, but tours are now cancelled for the foreseeable future as a result of the coronavirus.

There is no doubt that this is a very challenging time for creators and the copyright industries. Last month I penned an op-ed on this topic, published by the Globe and Mail. It argued that now is the time to get copyright “right”, given the additional challenges facing creators as a result of COVID.  This is all the more important given the need to maintain and sustain a vibrant cultural sector in order to help us all get through this pandemic with our sanity intact.

For those of you who don’t read the Globe and Mail, that op-ed is repeated below.

Canada’s copyright laws are limiting opportunities for creative industries to recover income

Globe and Mail, October 13, 2020

Hugh Stephens

Getting copyright “right” is important for Canada’s creative sector but also for the cultural and economic well-being of Canadians, especially during this time of COVID-19.

Like so many other sectors of our economy, our creative industries – authors, musicians, playwrights, actors, directors – were hit hard by the pandemic. Unfortunately, Canada’s current copyright regime has deepened that blow – limiting opportunities they may have had to recover any lost income.

For example, royalties to Canadian writers, visual artists and publishers for the use of published materials have fallen precipitously since changes to the Copyright Act were enacted back in 2012. Those changes included adding education as a “fair-dealing exception”: Fair dealing is the right of a user to reproduce copyrighted materials without payment or permission under specified circumstances and limits.

The addition of education as a fair-dealing purpose was so vaguely worded it has allowed most educational institutions at primary, secondary and postsecondary levels to cease payment to the collective societies that represent creators. Ultimately, where once educational institutions paid to copy sections from books, newspapers and other published materials for students, most now help themselves for free, depriving Canadian creators and publishers of countless millions in royalties.

Musicians also know the feeling of seeing their work taken for free or undervalued. Ever since the shift from analog to digital media, they have dealt with the “value gap” – where the platforms that house digital content reap the financial rewards with just a trickle left over for those who actually provide the content that make these platforms viable businesses. When live performances, often the only way musicians can earn a fair return these days, were stopped, the often-meagre funds realized from digital streaming were all that remained.

And if all this wasn’t enough, a most unwelcome surprise arrived – with a ruling from the Federal Court of Appeal. It escaped most people’s notice, but for the creative industries, it highlighted just how broken copyright in Canada actually is. The court ruled that tariffs approved by the Copyright Board are not “mandatory” for those who use unlicensed content, even though that has been the practice for the past several decades. Until now, the practice has been that if the board approves a tariff, it applies to all users of the content whether or not they are willing to enter licensing arrangements with the collective. The effect of this ruling undermines the fundamentals of copyright collectives in Canada that license content on behalf of their members.

As the ground was shifting under creators because of the pandemic, this ruling leaves collectives virtually powerless to ensure a fair return for use of creators’ works. If left unchallenged, the ruling will be a crippling body blow to writers, visual artists, publishers, musicians, songwriters and anyone else who makes a living creating. Parliament needs to clarify what a “mandatory tariff” means.

Canada’s creators and creative industries have suffered a double blow. COVID-19 has shut down many of the channels by which they reach their audience and earn a living. Canada’s broken copyright system has made the situation that much worse. As the pandemic has exposed a number of holes in our social fabric that need fixing, our copyright system needs fixing too.

© Hugh Stephens, 202.  All Rights Reserved.

I have COVID fatigue. Perhaps you do too. In the interests of self-preservation, plus concern for others, in the spring I went into a period of deep hibernation, not that there was much choice as most venues—restaurants, galleries, libraries, cinemas, museums, even parks—were closed. Then we started to “flatten the curve” (at least in my neck of the woods) and a gradual re-opening occurred—until the “second wave” arrived that is. Libraries and museums cautiously and partially reopened (with a limit of just 6 people at a time in all our local library branches). Parks reopened, outdoor restaurant patios sprang up and spread into adjacent streets that suddenly became pedestrian precincts, and even cinemas reopened with limited seating. But the local symphony hasn’t been able to perform, live theatre productions for the coming winter season have been cancelled, book launches are virtual only, and just about the only live music one hears comes from the occasional busker and street musician. The cautious re-opening is fragile, and it could be reversed at any time. It’s better than being in full lockdown, but it’s not normal. Perhaps it is the “new normal”, but it’s hard to adjust to. Probably like you, I am frustrated and antsy.

But if as consumers of culture we feel a bit frustrated, think of the impact on artists and cultural industries of all stripes. The impact is both economic and “spiritual”. COVID not only affects their livelihoods, it threatens to stifle creativity and inspiration, although the degree of impact depends on the genre. Artists can still create, musicians perform and compose, and authors write, but without outlets for their work, the creative spirit is dampened (in addition to the problem of paying the bills). There is still the online world of course, and while it provides an alternative platform which works better for some forms of creativity than others, it is not a substitute for the human interaction that participation in a live cultural event brings to both audiences and performers, consumers and artists.

And let’s not diminish the economic impact. This is significant. A recent study produced by Brookings, “Lost art: Measuring COVID-19’s devastating impact on America’s creative economy”, estimated the loss to the US economy for just the four month period of April through July to be 2.7 million jobs and $150 billion in lost goods and services for creative industries. The hardest hit subsector was fine and performing arts, losing 1.4 million jobs (50% of the jobs in the sector) and $42 billion in sales as concerts, theatres and galleries suspended operations. Design and advertising lost 13% of jobs, publishing 9%, film and TV 7% with smaller losses among other categories such as architecture and fashion. Among specific occupations in the creative industries, the hardest hit were photographers, who saw a decline in jobs of almost 17% with a 21% decline in income, but many other occupations were also hit—musicians, actors, writers, artists, and so on. And this is in a diversified and sophisticated economy where digital penetration is high. Can you imagine the impact in countries less well endowed?

In fact, UNESCO (United Nations Educational, Scientific and Cultural Organization) has surveyed the impact across many societies and economies. Quite apart from the loss of income support, COVID has had devastating effects on the cultural sector worldwide. UNESCO reports on empty cultural sites, closed institutions, suspension of cultural practices and unanticipated negative by-products such as looting of cultural sites as a result of inadequate security, lack of ongoing conservation work owing to loss of revenue, loss of educational materials, and loss of cultural diversity through suspension of cultural social practices. The impact has disproportionately hit poor countries and vulnerable groups the hardest, where out-of-work artists have no social safety net to fall back on. It is worth remembering that 46 % of the global population is offline. “Working from home” is often not a viable option.

UNESCO estimates that many museums, up to 13%, may never re-open, especially those largely dependent on admission revenues for financial support. In a survey, one third of independent galleries and art dealers indicated that they do not expect to survive. Some art institutions may have to close permanently. Overall, there could be a loss of 10% of GDP in some countries because of the impact of COVID on cultural industries, especially where culture is a key driver of tourism.

Is there any glimmer of hope in this bleak landscape? If you subscribe to the theory that out of adversity comes strength, then possibly some good will come out of the adaptations that have been and will be necessary to live with COVID.

First, I think COVID has shown us just how important culture, creative industries and institutions are to our daily lives, not just in economic terms but to our ability to exist as sentient beings. Think of the enjoyment and release that music provides, the escape of a good novel or film, the appreciation of the ingenuity of creators in the visual and plastic arts—in short, the importance of culture to spiritual recovery. For those of fortunate enough to live in a digital world, there has been an opening of new possibilities for access to content. But this can also be a double-edged sword for local creators who may suddenly find themselves in competition with artists a continent away. To cite a local example, my small but proficient regional orchestra, the Victoria Symphony, has not been able to present live performances. The alternative is to try to get the musicians together—in smaller groups than the full orchestra—to perform online. That draws people back in, and the next step will be to try to convert this online interest into revenue generation. But getting people to pay for online content is a challenge especially in a world of unlimited alternatives. If I am going to watch and listen to an online performance of, say, Mozart, why would I choose a local orchestra over the finest in the world, also available online?

Museums and galleries face the same challenge and have gone digital, mounting virtual exhibits and tours, similar to what classical music organizations are trying to do. That can work well where the offering is unique (rarely is this the case with classical music), but virtual exhibitions need to offer something special that cannot be obtained elsewhere. And, while the online environment offers consumers the ability to see or hear content, it does not offer the context of viewing or listening to it live, in an interesting museum building or concert hall, sharing the experience with others. We all know what the Mona Lisa looks like, but it’s the real thing that we want to see. That is what COVID restrictions are denying us.

So what is the answer? To date many of the responses from governments have been to provide various types of financial support to the sector, as I noted in a blog I posted early in the pandemic (here). The maintenance of subsidies and the provision of some income support helped stave off immediate collapse and enabled many organizations and creators to manage—barely—for the time being. Much of this support is of an interim nature however, providing help to get through the next few months while we wait to see what happens with COVID. This will be great if in the end we come out this collective experience with a vaccine, or a cure, and everything goes back to the status quo ante. Personally, I’m not betting on it. I have a feeling that we’re in this for the long-haul and that COVID—or the next pandemic—is going to require us to do some things differently on a more permanent basis. One of these will be the ways in which we interact with culture and consume content. But first we have to figure out how to sustain the sector economically.

There are various measures that can be taken to address the financial challenge that creative industries and professions are facing, although some painful adjustments are, I think, inevitable. With regard to the US, the Brookings study comments that;

“Small, stop-gap measures will not undo the damage; a substantial and sustained national creative-economy recovery strategy is required. This strategy must be bottom-up, but supported across the board and led by local public-private partnerships between municipal governments, arts and cultural organizations, economic development and community groups, philanthropy, and the private sector, with support from federal and state levels of government, national philanthropy, and large corporations.”

Brookings also notes that;

“…technical support is also needed (especially for smaller organizations) on how to conform with health and safety requirements as well as how to adapt their business models in light of a protracted period of restrictions on live performances”.

Going local might be the only alternative, just as domestic tourism has been encouraged to offset declines in international travel.

“With reduced demand for large cultural events as a result of social distancing, there is an opportunity for communities to shift to locally sourced culture. Communities can develop strategies to hire local creatives and create online portals and platforms to allow residents and businesses to hire local artists, musicians, and performers for smaller-scale, local events.”

Locally, I have recently been to a performance of our ballet company, with just 40 people in the audience. The hall was set up cabaret style, limited to a “social bubble” of four at a table, and no table-hopping. Hand sanitizers decorated the cabaret tables along with a small bouquet. People were escorted into and out of the hall, with no mingling. The tickets included a generous donation, with a tax receipt, to the company. It is one way to survive for the time being and give young performers a chance.

While performing arts faces particular challenges, the film industry, music and publishing have been adapting to change brought on by digital technology for a number of years. COVID will accentuate those changes; for film production this will mean collapsing cinematic and streaming windows as the bricks and mortar cinema model faces new challenges; for music it will mean fewer live shows (an important revenue earner) and more reliance on thin online revenues; for publishing it will mean continuing to find ways to preserve the value proposition of physical publications. Greater reliance on digital platforms means greater susceptibility to digital piracy, and even greater efforts will have to be made to equip rights-holders with the means to combat piracy. 

Some elements of the cultural landscape will be changed permanently. There will likely be a shake-out when it comes to theatre, dance, classical music groups and artists, with the strongest surviving and others going out of existence.  Some creators will leave their professions to earn a living elsewhere. We will all be the poorer for this winnowing, although perhaps we will better appreciate the cultural entities and individual creators who survive.

I have no crystal ball, so as we now struggle through the second wave of COVID it is hard to know how our world will be changed. It is unlikely that we will ever go back to way things were pre-pandemic, but what the “new normal” will look like is still only emerging. In the meantime, let’s try to hold on to what we have, support and encourage our creative communities as best we can, and give thanks for the intangible yet essential nutrition we get from our creative industries and cultural communities.

© Hugh Stephens, 2020. All Rights Reserved.

It’s that time of year again, with bright red poppies popping up on lapels of TV newscasters, politicians and members of the public (at least in Canada and the UK), just as surely as snowdrops appear in spring. I wrote about this phenomenon in a blog last year, reproduced below, covering the history of using poppies as a token of remembrance, and discussing some of the intellectual property controversies that have arisen over the unauthorized use of poppy designs. Unauthorized uses seem to be a feature again this year.

Remembrance Day, 2020, will be different from those in the past.  COVID-19 has changed many aspects of our lives and November 11 is no exception. There will be no parades, no mass wreath-laying at cenotaphs around the country, no crowds gathering to mourn and show respect, and the lone piper playing the lament will be very much a lone piper–but there will still be poppies. This year they will be sold more remotely than in the past; you won’t find older men and women with blue blazers and Legion berets standing in shopping malls with trays of poppies. In Canada the Royal Canadian Legion (which holds the trademark for poppies when used for commemorative purposes) has initiated a touchless “Pay Tribute” credit card tap-enabled donation box in conjunction with one of the major banks. You can also purchase a digital poppy to display online. And of course you can purchase poppy-themed anti-COVID masks.

The Legions in both Canada and the UK market a variety of poppy themed items –Marks and Spencer has teamed up with the Royal British Legion to produce a “Poppy Collection”, a 12 piece line featuring socks, ties, cufflinks, bracelets and earrings, among other “essentials”–and masks have been added this year to the Legions’ repertoire. The official Legion masks on offer, however, are not particularly alluring, at least in my view. Masks have become a bit of a fashion statement (certainly in Canada where mask-wearing is generally not considered to be a political statement but rather a health measure), and retailers have been quick to fill the gap. In Canada, the Legion is marketing a sole mask design, featuring maple leaves, a small poppy and the Legion’s logo. To me it looks more like a promo for the Legion than a symbol of remembrance (although it seems to be selling well as they are now out of stock). A Remembrance Day mask delivered post November 11 has about as much value as a Christmas present delivered on December 26.

However, if you want a catchy poppy-themed mask, for example one featuring the timeless phrase “Lest We Forget”, or one with WW1 soldiers highlighted against the sky, or planes flying low over the countryside, or even a field of poppies, you will have to go to Redbubble or Etsy for masks produced by independent artists. These almost certainly violate the Legions’ trademark rights, and given the way Google Search works, when you search for poppy masks from the Legion’s Poppy Store or Poppy Shop, the first thing to appear is an ad from Etsy. Both Etsy and Redbubble are known for a somewhat cavalier attitude to the trademark and copyright status of products on their sites. They take the position that they are platforms—therefore they hear, see and speak no evil. If there is copyright violation, it is the artists or sellers who are doing it. If an IP owner in the US requests that the products be removed, they will do it, but don’t be surprised if the offending items are back up on the site again within a few days.

The sales from products on commercial sites like Etsy and Redbubble do not go to veterans, so perhaps the British or Canadian Legions will take action, although it may not be worth their while to do so. A few years ago, a group of eager knitters of poppies, who intended to donate the proceeds of their work to the Royal Canadian Legion learned to their chagrin that the Legion refused to endorse their work and reminded them of the Legion’s IP rights. It’s not clear whether any action was taken and this year there is a story about another well-intentioned person from a military family making and selling poppy masks in order to raise funds for veterans. The Royal Canadian Legion is unlikely to go after this Manitoba woman but it is careful to protect its intellectual property as the copyright notices on its website attest. However, none of the non-authorized designs that I have seen appear to have been copied from either of the Legions’ websites (if so, they would infringe copyright) although they arguably violate trademark rights. Probably the best thing that the Legion can do is to offer a wider and more attractive range of mask designs in future and ensure that they have enough stock on hand to meet demand.

Ideally, none of us will need masks by the time Remembrance Day 2021 rolls around so this may be a one-time story, at least insofar as the design of poppy masks is concerned. Let’s hope so.

© Hugh Stephens 2020. All Rights Reserved.

For those interested in reading more about poppies and intellectual property concerns, here is my blog on this topic published in November last year.

Remembrance Day Poppies and Intellectual Property Controversies

At the 11th hour of the 11th day of the 11th month in 1918, the guns on the western front in Europe fell silent. An armistice was declared. Germany didn’t formally surrender although it soon collapsed and the 1919 Treaty of Versailles treated it as a defeated country (with the results twenty years later that we all know about). Thus Armistice Day, now known as Remembrance Day in many countries including Canada, the UK and Australia, and Veteran’s Day in the US, was born. And for that reason, I am posting this blog on November 11.

Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. (When I was in Sydney last November 11, I spotted just one red poppy, an admittedly unscientific although first-hand survey). It is probably fairly well known (although with today’s young people it is probably wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.

It was an American teacher, Moina Michael, who campaigned to make the poppy the international symbol for remembrance of Allied war veterans, and to use their sale for veteran’s welfare. Between 1920 and 1922 the poppy was adopted by veterans organizations in the US, Britain, Canada, Australia and New Zealand. In Britain an organization known as the “Poppy Factory”, which still exists today, was set up to manufacture the paper poppies for sale for the support of veterans causes. That leads us into the main point of this blog, the intellectual property (IP) controversies that have arisen around the sale of the poppies.

What I love about writing this copyright blog is that one can always find a new twist. I confess that I am fascinated by the nooks and crannies of copyright, such as the blog posting I wrote on “Copyright and Your Carbon Footprint”, or the blog on whether copyright is gender neutral (I argued that it was. That was like poking a hornet’s nest!), or a rather bare-bones effort on copyright and death, or last week’s posting on copyright infringement as a form of hybrid warfare. So, since Remembrance Day is upon us, I feel compelled to explore whether there is a copyright angle to the wearing of poppies. And surprise, there is.

It’s a bit tenuous, mind you, although there is definitely an intellectual property angle as to who gets to produce and sell poppies. However, it is more of a trademark than a copyright issue but, hey, why quibble? It’s all IP. There have been controversies in both Britain and Canada involving production and sale of the little red flower. In both countries (and possibly elsewhere) the poppy is trademarked, by the Royal Canadian Legion (RCL) and the Royal British Legion (RBL), respectively, both respected veterans organizations. The Royal Canadian Legion’s website notes that the trademark was conferred by Act of Parliament in 1948, and is limited to the use of the poppy in remembrance;

“The Canadian trademark for the Poppy includes both the Legion’s Poppy logo, as well as the Poppy symbol, as it relates to Remembrance. The trademark does not apply to the use of the actual Poppy flower, unless that usage is misrepresented as the Legion’s Poppy by associating it with remembrance or the raising of monies for a purpose other than the Poppy Campaign.”

However the trademark extends to any colour or configuration of the poppy when used as a symbol of remembrance. This is increasingly relevant as various groups make their own versions available, from a white poppy symbolizing peace (some would say pacifism) to a rainbow-hued LBGTQ poppy that has caused some controversy.

Whether either of the Legions would take legal action against someone for producing and selling poppies of a colour other than red is an interesting question, but last year in Britain a seller at an outdoors market pleaded guilty to selling red poppies that had no association with the RBL. In Canada a group of knitters who were knitting poppies for the price of a donation, which they say they intended to give to the RCL, were reminded that they were violating the Legion’s IP. In addition to its statement of trademark, the RCL has a very clear copyright warning on its website;

“The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Reproduction of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from The Royal Canadian Legion…”

And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans welfare programs (although the Legion is not a registered charity). Nevertheless, the Legion IP monopoly on the poppy symbol (when used in connection with remembrance) has not been without its critics. Sean Brelyea, a former air-force officer and frequent commentator on veteran’s affairs, has argued that the Legion should no longer have exclusive control of the poppy symbol since it is not the only veterans organization in the country and, indeed, as the numbers of their veteran members has dwindled over the years owing to “natural attrition”, many of the Legion’s members have no association with veterans at all. Brelyea suggests that the Legion should licence use of the poppy symbol to other veterans’ organizations, with a concomitant sharing of the proceeds. I am sure that the RCL would argue that it alone is best placed to protect the meaning of the symbol and to ensure that poppies are effectively distributed in order to bring maximum returns. Last year over $16 million was raised.

Well, who knew that the innocuous looking poppy on people’s lapels on Remembrance Day carried such weighty IP concerns on its shoulders? When you drop your donation into the collection box, and pin your poppy on your jacket or shirt, remember…even the humble poppy can be controversial when it comes to trademark and copyright issues.

© Hugh Stephens 2019. All Rights Reserved