Since we are close to Christmas, I thought it would be appropriate to post a blog about a popular gift product that often finds its way under the tree at this time of year, and—as always—consider its copyright dimensions. That gift is perfume…fragrance…scent…eau de whatever. Continue reading “Making Scents of Copyright at Christmas”
When you negotiate with the 800 pound gorilla, the gorilla usually gets what it wants. Therefore exactly what it wants can be very important. In case you were wondering, from a trade policy perspective the 800 pound gorilla is the United States, the world’s largest economy and a largely open market, although increasingly less so these days. The United States also runs a massive global trade deficit in goods, some $887 billion in 2018 ($621 billion when services, where the US has a surplus, are factored in). Given the US dollar as the world’s reserve currency and the strength of the US economy, the US has had no difficulty in financing that deficit but the trade imbalance is a red flag for the Trump Administration. Many countries, from Canada to China, Japan to the EU, and from Mexico to Korea, depend heavily on the US market, and most (with the notable exception of Canada, which has a deficit in trade in goods and services with the US) run sizeable surpluses. Therefore, when it comes to negotiating trade pacts with the US, the US Government in the form of the US Trade Representative has a big stick to wield. Bend to our interests, or access to our market will be restricted. Continue reading “Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US)”
Last week I wrote about the ground-breaking Federal Court decision that granted the request from Rogers Media, Bell Media and GroupeTVA to issue an injunction requiring Canadian ISPs to block pirated streaming content from offshore content provider GoldTV. This is the first such “site-blocking” order issued in Canada, although such orders are relatively commonplace in a number of other jurisdictions. The order was unopposed by all respondents in the case, which included all of Canada’s major ISPs, and some smaller ones, with the exception of Teksavvy, a small reseller of ISP access based in southern Ontario. Ten days after the order was issued, Teksavvy filed an appeal. Continue reading “Canada’s First Piracy Site Blocking Decision is Under Appeal: What are the Issues and What’s at Stake?”
There is an old saying that “one man’s meat is another man’s poison”, something that came to mind the other day when I read two very different accounts of the Canadian Federal Court decision reached on November 15 granting blocking orders against two sites (GoldTV.biz and GoldTV.ca) that were providing pirated streaming content to Canadian households from offshore servers. The order, issued in response to a complaint brought by Bell Media, Groupe TVA and Rogers Media, requires all of Canada’s major ISPs (including those owned by Bell, TVA and Rogers), to undertake domain name server (DNS) and IP address blocking against the defendants. The order was unopposed by all the ISPs with one exception–Teksavvy, a small reseller that for the most part provides its services by purchasing last-mile access from its large telecom competitors, as permitted by government regulation. Continue reading “Canadian Court’s Ground-Breaking Site Blocking Decision: Meat or Poison?”
We are all familiar with national anthems although most of us don’t get to sing them much except when we belt them out, to various forms of accompaniment, at sports events. These pre-game rituals can sometimes be controversial, as we have seen in the US with certain athletes refusing to stand for the anthem as a form of social protest, or when a performer mangles an anthem (usually someone else’s). It seems to happen mostly at hockey games between US and Canadian clubs when the singer is unfamiliar with the words of the visiting team’s anthem. In what became known as the “Star Mangled Banner”, jazz singer Alexis Normand found—half way through the song—that she didn’t know the words to the US national anthem that she was singing to open a hockey game in Saskatoon being played between a US and a Canadian team. The Americans got their revenge a couple of years later though, when anthem singer Jill Schackner decided to insert some lines from America the Beautiful into O Canada at an NHL game in New York. Apparently the worst-ever known rendition of O Canada occurred at a football game featuring a Canadian and an American team back in 1994 in Las Vegas when the singer lost the plot, and the tune of O Canada morphed into O Tannenbaum by the final stanza. You can hear that version here. Continue reading “When Copyright Meets Patriotism: Who Owns the Copyright to National Anthems?”
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
War, unfortunately, is as old as history. Usually violent, involving the use of force to compel or resist, in recent years the nature of warfare has begun to change. While physical force is still part of the military’s repertoire, today we are moving into an era of so-called “hybrid warfare” or “grey zone” strategies. There are various dimensions of this new phenomenon, including social media disinformation campaigns (particularly to manipulate election results or to create internal dissension), cyber-attacks, use of remote vehicles and drones, use of supposedly “private armies” to seize territories, economic measures such as sanctions but going beyond sanctions to include disruption of supply chains, and other measures that fall short of outright use of force, or are “plausibly deniable”. There is a good discussion of the topic here. Continue reading “Content Piracy as Hybrid Warfare”