Month: July 2024

Introducing “Funopoly”: (But What About Copyright?)

Photo: Author

A couple of weeks ago I wrote about Copyright in Cottage Country, and how those wet afternoons are often occupied with cards or board games, like Scrabble, Clue or Cranium, all of which (the board games, that is) are copyrighted (and trademarked). What I neglected to mention is that, in addition to these well-known pastimes, during our recent stay at the cottage we also played several games of “Funopoly”. Now, I realize you may not have heard of this game, despite its uncanny resemblance to another much more famous, commercially available game that has been around for decades. I was introduced to it when I noticed a plain cardboard box lying on the dining table. “What’s that?”, I asked. “Oh, it’s a game I brought up to play at the cottage”, said my very creative 11 year old granddaughter, Stella. “I made it”.

Although Funopoly has a number of similarities with its famous counterpart, including the concept of buying property and paying “rent” if you land on a square, it is a different game. There are no houses or hotels to buy. You won’t find any Park Places or Boardwalks. Rather you might land on Shoppers’ Drug Mart, or Skyzone Trampolines or Canada’s Wonderland, all places in Toronto. The most expensive property on the Board, valued at something like $50, is the home of prominent rapper Drake, (actually valued at around $100 million) . But even though there are Canadian, British, Australian (and many other) geographically modified editions of Monopoly, this is not simply a Toronto version of that game. (The original US version was based on street names from Atlantic City, NJ. The British edition, also dating to the 1930s, used London street names. A Canadian edition debuted in the 1970s using street names drawn from cities across the country, from St. John’s, Nfld to Victoria, BC).

Funopoly doesn’t have street names. Another difference is the money, handmade and coloured $1 (green), $5 (blue) and $10 (purple) notes. There is a limited supply of each, and there seems to be equal numbers of each denomination. As in Monopoly, you get a reward (in this case, $1) for passing Go. But the properties are relatively expensive in proportion to the amount of money you have in hand. As a result, the first time we played I faced early bankruptcy as I had the misfortune to play last and landed on a couple of properties that had already been purchased. The “rent” was crushing and the paltry replenishment when my token (a coloured Qtip) passed Go didn’t cut it. Stella modified the game the next time we played, with players being rewarded with $10 when they passed Go. In this case, the bank soon went bankrupt as all the money was in the hands of the players. Funopoly is clearly a work in progress and is still being fine-tuned–but is a lot of fun. There are also no railroads or utilities, but there is a casino, a club and an ice cream truck. You seem to end up in jail on a regular basis, but get out just as quickly, something like the “catch and release” policies followed by Canadian courts for frequent offenders. Don’t look for Funopoly on Amazon. There is only one extant version in the whole wide world, and it is definitely not for sale.  And I have had the privilege of playing it (and losing).

Knowing that I write a copyright blog, Stella asked if she could copyright Funopoly. I explained to her that if it is an original work in a concrete form (i.e. fixation), then copyright is automatically conferred. However, if she wanted a nice certificate to prove that it was copyrighted, that could be arranged. For $50, I could get her a vellum-like certificate from the Canadian Intellectual Property Office (CIPO) proclaiming her copyright in Funopoly. She would not even have to send in a photo of the game, because CIPO does not want or keep any copies of the works they are registering. (Many years ago, the Copyright Office required deposit of a copy of the work to be registered, but no longer). Nor does CIPO verify whether the work conflicts with another registered work. All they do is register a description of the work—and send you a nice certificate of copyright, as I demonstrated last year when I registered some AI created artwork and poetry, (Canadian Copyright Registration for my 100 Percent AI-Generated Work). Maybe we will register Funopoly. The certificate would be a nice birthday present for her.

Canadian copyright registration certificate or not, we must still ask the question as to whether this is an original work. Does it infringe on the copyrights or other forms of intellectual property (IP) protection of others? It turns out there has been a long history of IP disputes over Monopoly. The game was first published under the Monopoly name by Parker Bros in 1935 but there were earlier versions variously called “The Landlord’s Game”, “Finance”, or “Auction”. The game’s invention has been credited to Charles Darrow but there is strong evidence that rather than inventing the game, his genius was in marketing it, the original concept being created 30 years earlier by Lizzie Magie who had patented The Landlord’s Game in 1903. While the design and artwork (tokens, the board itself, other unique elements such as game-specific cards) around a board game can be protected by copyright, the actual rules of the game can be patented. And of course, the name (such as Monopoly or Scrabble) can be trademarked.

Each of these forms of IP protection has different characteristics. A patent has to be examined and accepted, and there is a limited period of protection, about two decades. Copyright is also time-limited, albeit of much longer duration. Trademark protection can be continuous, providing the mark stays in use and is renewed as required, normally every ten years. There was a notorious dispute in the 1980s over a game called “Anti-Monopoly”, that involved challenges to the trademark. In the end, Parker Bros. retained its trademark on Monopoly and acquired the trademark Anti-Monopoly, then proceeded to license it to the creator of the Anti-Monopoly game.

However, while many of the aspects of a board game can be protected by IP laws, some cannot. This is where the idea/expression dichotomy comes into play, meaning you cannot copyright an idea, only the expression of an idea. Thus, anyone can make a game that involves the buying and selling of properties and sending a person to jail for a variety of infractions. Anyone can make a game that involves moving a token around a board according to the role of a die or dice. But the rules of a game and its artwork and design can certainly be protected by both patent and copyright, and if a game that was sold commercially was substantially similar to a copyrighted work, with only a few details changed, that could be a factor in finding infringement.

Substantial similarity is another one of those complicated copyright issues. Simply put, you cannot simply change a few words in a published work, or presumably just a few features in a copyrighted game, and claim it is a new work. But substantial similarity is an elastic concept; even different judicial circuits in the US interpret it differently, according to this article from lawfirm DLA Piper. For my part, I am convinced that Funopoly is substantially different from Monopoly. What other game in the world uses a coloured Qtip as a token?  

Nonetheless, as I am always quick to point out, I am not a lawyer and any interpretation of copyright laws that you find in this blog does not constitute legal advice. Instead, I try to go to reputable sources to buttress my opinions. I can find no better source than the American Bar Association, which outlined all you need to know when it comes to IP and board games. Will Hasbro, (now the owner of Monopoly) come after Stella to shut down Funopoly? Somehow, I doubt it. In fact, according to the ABA there are several “opoly” named games registered with the USPTO, a precedent that should help. In the meantime, we can pursue a Canadian copyright registration and obtain a pretty but not very useful certificate to hang on the wall.

Funopoly is not going to make Stella’s fortune. The real inventor of the property game concept, Lizzie Magie, got only $500 and no royalties in the mid-1930s when Parker Bros bought up rights to related games from her to protect its monopoly on Monopoly. Stella for her part won’t earn a cent from Funopoly, but that is not the point. Playing Funopoly with her on a rainy day at the cottage—even though I went bankrupt–was a priceless experience, and was the true reward.

© Hugh Stephens, 2024. All rights reserved.

Copyright and Education in Canada: Have We Learned Nothing in the Past Two Centuries? (From the “Encouragement of Learning” to the “Great Education Free Ride”)

Image: Shutterstock (AI Assisted)

Last month I wrote about the 200 year history of copyright in Canada, (Two Hundred Years of Copyright History in Canada: What a Journey!), drawing on a recent book by copyright scholar Dr. Myra Tawfik, “For the Encouragement of Learning: The Origins of Canadian Copyright Law”. That work outlined the genesis of Canadian copyright law in Lower Canada in the 1820s and 1830s, carrying through into the 1840 pre-Confederation period in the united Province of Canada (Canada East and Canada West). As Professor Tawfik pointed out, the motivation for the first copyright laws in what eventually become Canada was to incentivize the production of localized school texts. Appropriate books for local schools were hard to come by; books produced in Britain or France were expensive and did not always meet local needs in terms of content. Books from the US, while obviously not able to address the needs of Canada’s French speaking population, were also considered suspect in the English-speaking colonies because of their “republican” content.

Various local authors petitioned the assemblies of Lower and Upper Canada for financial support to produce books of local interest, often school texts but also sometimes maps, geographies and natural histories. Support was often provided, either in the form of an advance payment (which carried the obvious risk of funding a work that ultimately was not published), or else a commitment to purchase a set number of copies once the work was in print. The problem of the lack of suitable pedagogic materials was chronic, and the Assemblies got tired of being importuned. The solution, first bruited in the 1820s, but then implemented in the 1830s, was to introduce a copyright law to provide authors with a revenue stream from royalties to encourage production of more local content. In terms of achieving its objectives, this legislation was generally successful, despite constant interference from Britain which wanted to standardize copyright laws throughout the Empire and would not recognize Canadian copyrights in Britain unless the works were registered, and copies deposited, in London. Nonetheless, Canadian copyright laws allowed Canadian authors and publishers to establish themselves and begin a long tradition of Canadian educational publishing.

Fast forward two hundred years to the present and the disconnect between the goals of those early legislators and educators, and the situation today, is stark. I find it highly ironic that while the impetus for the first Canadian copyright laws came from a desire to promote learning and production of educational materials, today most Canadian educational institutions are taking a massive free ride when it comes to paying for teaching materials. Instead, they are using every pretext possible to avoid paying collective licence fees to the Canadian copyright collective for authors and publishers, Access Copyright, for their use (reproduction) of printed or digitized educational materials, using the “education” fair dealing exception introduced in 2012 as the excuse. Two hundred years later, we have gone backwards with respect to meeting the social objectives of copyright law.

I have written a number of times (most recently, here, but also here and here) on the fundamental unfairness of the way in which educational fair dealing has been interpreted by the educational sector in Canada, spurred on by university librarians, and abetted by the courts, resulting in upsetting the fundamental copyright balance between creators and users in this segment of the market. In the process they have turned their back on Canada’s copyright history. The negative impact on the educational publishing sector in Canada has been well documented, with several publishers giving up on the K-12 or post-secondary markets in Canada and many authors facing a drastic loss of income.

Universities and librarians continue to protest when this unfairness is pointed out, advancing a variety of arguments to justify their free ride on the work of others. One good example of the kind of self-justification put forward is an article published last summer  in “The Conversation” by a couple of prominent university librarians. Among other things, they argue that the market has changed, moving largely to digital resources and digital access, no longer requiring any copying. (They seem to equate “copying” with photocopying although lots of digital reproduction takes place. This has the same impact on the market as the former practice of photocopying pages of textbooks). They point out that universities spend considerable sums on obtaining access to digital content directly from publishers. These facts are true, but they do not represent the full picture.

While many works are accessed by students from library sources directly through links, considerable copying and sharing (which a reprographic licence would permit) still takes place. After all, if there was no reproduction, the educational institutions would not have to invoke fair dealing to justify the unlicensed copying and sharing that is taking place. In testimony before the House of Commons committee reviewing the Copyright Act, one university librarian estimated that over 15% of access to course materials by students at their institution was based on fair dealing (as unilaterally interpreted by that university). Yet we have no proof that this copying complies with fair dealing guidelines, or indeed that the fair dealing guidelines published by the universities are consistent with fair dealing jurisprudence. In the long drawn-out case between Access Copyright and York University over educational copying and whether the tariffs (user fee per student) established by the Copyright Board of Canada were mandatory if universities used materials represented by the copyright collective (the courts ultimately determined that the tariffs were optional, not mandatory), the issue of whether York’s fair dealing guidelines were “fair” was never determined. The initial Federal Court ruling found that they were, in fact, not fair, and on appeal the courts declined to issue a statement requested by York that would have blessed its interpretation and application of fair dealing.

Because of the uncertainty this unilateral interpretation of fair dealing has engendered, universities have had to strengthen their oversight of copyright to ensure they stay out of trouble. Trying to make a virtue of a necessity, they have used this additional investment in library staff to attempt to demonstrate their respect for copyright.  Among other things, they have had to improve their communications to make students aware of copyright and explain what they can and cannot do with copyrighted content. It is true that if you go to any university website, such as this one from Simon Fraser as an example, you will find an extensive discussion of the “do”s and “don’t”s of copyright. But is there any enforcement? Who knows? What is clear is that if these additional resources had been invested in acquiring a collective licence instead of unnecessarily bulking up on staff, this would have resulted in a better outcome for all concerned and would have provided the degree of protection needed. (“Throwing Good Money After Bad: How Canadian Universities Wasted Millions by not Acquiring a Copyright Licence”).

Many, if not most, of the digital licences obtained directly from publishers provide for access to works (usually limited to a certain number of users) but do not contain reprographic (reproduction/copying) rights. Educators have argued that the previous Access Copyright licence that covered photocopying of printed materials is no longer relevant in the digital age. While there may be truth to this in respect of printed materials, which are used less, Access’s licences also now cover digital copies. A copy is a copy, and an unauthorized copy is an unauthorized copy, whether hardcopy or digital.

Then there is the double-dipping argument that an Access Copyright digital reprographic licence would duplicate a similar licence obtained directly from a publisher, and so users would be paying twice for the same material. This is another red herring. Access Copyright represents most publishers. They belong to Access for sound business reasons. It is to receive compensation for unlicenced copying of the works they represent. If a situation arose where there was potential double-counting, Access Copyright has the ability to adjust its licence to accommodate such a situation through negotiations with the education sector, provided educational institutions were willing to demonstrate which materials were already covered by a direct licence from a publisher.

Finally, and this is the most galling assertion of all, apologists for the educational free ride (as in the article from The Conversation cited above), argue that the nature of university funding has changed. Students are now facing a heavier burden, and universities and colleges are challenged when it comes to funding. Both are true and both are irrelevant in terms of justifying the broad use of educational fair dealing to deprive authors of payment for reproduction of their content. Rather than pass on any savings to students, post-secondary institutions have found a plethora of ways to squeeze a bit more from them, as best exemplified by current stories regarding heavy dependence on–one might even say exploitation of–international students by many institutions. Do funding challenges mean that caterers for cafeterias, or cleaners in student dormitories, or any of the other suppliers to a university should suddenly provide for free what was previously paid for? Why should publishers and authors carry the burden for the funding challenges faced by many of our post-secondary institutions? We are talking about a few dollars (a couple of cups of coffee) per student per year.

Since there is no denying the hit the educational publishing industry and authors have taken, the educational sector has been quick to point to the Canada Book Fund and the Public Lending Right as alternatives. In other words, someone else should pay—but certainly not the users of the content! Whatever happened to the user-pay principle?

What is the solution? It is not to undermine fair dealing, or to remove education as a specified fair dealing purpose with respect to use of materials by students themselves. It is to put reasonable limits on its use by educational institutions who have been enjoying a decade long free ride. The Standing Committee on Canadian Heritage in its review of the Copyright Act proposed a reasonable solution. It recommended that,

“The Government of Canada amend the (Copyright) Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”

This would preserve education as a fair dealing purpose but, with respect to educational institutions, would mean that it would not apply in situation where a commercially available licensed alternative is available. This would include both digital reprographic licences obtained directly from some publishers as well as a non-duplicative collective licence from Access Copyright for works in its repertoire. This is similar to what is done in the UK. Such an amendment would restore the education fair dealing balance that has become so badly skewed as a result of the 2012 Copyright Act amendments, and the subsequent broad interpretation thereof by the education sector, an imbalance that was surely not foreseen nor planned by legislators at the time.  

Today’s Parliamentarians can make common cause with their predecessors of some two centuries ago by recognizing the symbiotic relationship between copyright, authorship and the production of quality educational materials. They need to act, and act soon. To date, despite assurances by the current government that it would take measures to ensure a sustainable educational publishing industry, including fair remuneration for creators and rights-holders, nothing has been done.

Canada’s first copyright laws were introduced almost two hundred years ago to encourage learning. That should still constitute a prime policy objective for copyright legislation; to incentivize the production of quality content for the education of today’s scholars. It is said that those who fail to learn from history are doomed to repeat it. In this case we seem to be forgetting the progress that has been made in building a vibrant and (until relatively recently) viable Canadian publishing industry and are turning our back on two centuries of copyright development for the sake of giving the education sector a short-sighted (and hopefully short-term) free ride.

(c) Hugh Stephens, 2024

Copyright in Cottage Country

Photo (c) author, 2023

For anyone who may have noticed (hopefully you did), I have not posted a blog for a couple of weeks. I am invoking that blanket summertime excuse, “I’ve been up at the cottage”. But I have not completely divorced myself from thinking about copyright issues, since they seem to pop up everywhere, even in cottage country.

For non “Central Canadians”, the term “cottage” may be a bit of mystery or even a misnomer. If you are thinking Anne Hathaway’s Tudor cottage covered with climbing roses, you are way off base. In fact, the term doesn’t seem to be used much outside of Ontario, where the term “cottage country” means any place on any lake north of Toronto. (There are a lot of them; over 250,000 lakes in Ontario). In the west, they are referred to as “cabins”, in Quebec as “chalets”—and in Russia, “dachas”, or so I am told. They can be rustic, water-access by canoe only simple abodes with outdoor plumbing or they can be multi-million homes on places like Lakes Rousseau or Joseph in the Muskokas, with every kind of cottage toy (ski boat, sea-doos, inflatable floating bouncy castle etc) imaginable. For those fortunate enough to own a cottage—and it is not a small number—many have been in the family for several generations (and will now likely attract a higher capital gains tax when they are passed on to the children, given recent budget changes. So much for the new rules affecting only 0.13 percent of Canadians). But cottage life is also embraced by new Canadians and some are even rented out (God forbid) on platforms like AirBNB.

In my case, our cottage is located in the Kawartha Highlands, Canadian Shield country between the towns of Bancroft and Haliburton. We can drive there on washboard dirt roads. There is hydro (most of the time) but very limited cell coverage. If you walk down the road, and stand on a particular rock in the evening, it usually works. We used to have a landline and dial-up Wifi but it was so slow we gave up, and then the phone company cancelled the “cottage line suspension service” we used to use in the winter. Because, you see, like many cottages, we close up for “the winter” (which generally means between Canadian Thanksgiving in early October and Victoria Day weekend in late May). The power is shut off, the pipes drained, the dock lifted and everything is closed up to await the minus 30C temperatures that sometimes arrive in Jan-Feb.

So what does this have to with ©? Well, you can’t escape it, even up here at the lake. Whether it is the $4.99 DVDs we buy at the local supermarket for those inevitable rainy days or the ubiquitous copyrighted board games (Scrabble, Clue, Cranium, you name it) that get trotted out, the © symbol is everywhere. Cottage country must be the last stand of the DVD, and a lot of low grade Hollywood movies and series that you have never heard of seem to arrive on the shelves of the local Foodland for bored cottagers. But there is no cable and no streaming, so if you want to watch something in the evening, get out the old DVDs. At our place, Bugs Bunny and Tom and Jerry cartoons, dating back to the 1950s and beyond, are still popular as a new generation discovers them, but beware of piracy.  One young visitor, having seen the scary FBI warning at the beginning of a Bugs DVD, asked what piracy was because, as she said, I don’t want to go to jail for 5 years or pay a fine of $250,000.

And then there are the card games, many of them, like cribbage, having been invented a couple of centuries ago. But the Bicycle “Official Rules of Card Games”, first copyrighted in 1887 (our edition is a relatively recent 2006) is indispensable. While the rules of a game (i.e. the mechanics) cannot be protected by copyright–although artwork and design unique to a specific game could be–Bicycle’s edition of the rules is copyrighted because of its editorial content, organization, etc.

The local paper, the Bancroft Times (founded 1894) has its own copyrighted copy. You won’t find Canadian or Associated Press articles here. You will find a blow-by-blow description of the local Council meeting where Council wrestled with the thorny problem of the arena’s deficit and whether to impose user fees on residents of outlying municipalities that were refusing to pay their share of operating expenses. This seems only fair, except the problem arises from the disincentive caused by user fees. If it stops the kids from outside town from using the arena, there won’t be enough players for the hockey league. Thorny local issues. This made me reflect on some of the big journalism issues of the day, such as the OpenAI v New York Times lawsuit (that I wrote about here) concerning OpenAI’s unlicensed use of NYT content to train its Artificial Intelligence (AI) algorithm. This made me wonder if the Times’ (the Bancroft Times, that is) coverage of Bancroft Town Council’s meeting would be scooped up by OpenAI’s AI machine. We hear that AI has an insatiable appetite for data, in fact that within a year or two there may be such a shortage of data for AI training that AI may have to produce its own synthetic data. If there is a data drought, no doubt content in the Bancroft Times will be as important to OpenAI as the content it has purloined from the New York Times.

Another manifestation of AI is the use of copyrighted artwork and photos to produce new AI-generated content. A couple of years ago, while gazing at the lake from the dock, I read about DALL E-2, one of the earlier AI programs that could produce images on demand. I created one using the scenery I was enjoying, titled “Autumn foliage, with Muskoka Chairs in the style of Monet”, to illustrate my blog on “AI and Computer-Generated Art: Its Impact on Artists and Copyright”.

Whether it is broadcasts from “The Moose” (Moose FM Radio, officially known as CHMS-FM), content from the local newspaper, the “Think Turtle Conservation Initiative” that sells signs, decals, and fridge magnets to raise awareness of turtles crossing the road, or information from the local lake association or Fish and Game Club, the integrity of content is protected everywhere by copyright—even at the cottage!

© Hugh Stephens, 2024. All Rights Reserved.