What protects the things your brain comes up with? Morgan Jarvis breaks down the idea of intellectual property into its three core components: copyright, trademark, and patent. We catch up on B. Rich vs. Coca-Cola, explore the notion of the (unfair term?) patent troll, and break down how the law protects the things we think up.This is all in preparation for Morgan’s new course, Law 206/706, Intellectual Law — an essential program for anyone interested in creative work, business development, coding, entrepreneurship, and more.
00:05 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd and I’m fascinated and confused by intellectual property. Thankfully, Morgan Jarvis is here to unpack it a little both in this podcast and through his new course, Law 206706 Intellectual Property Law. Morgan was on our very first episode talking about trademarks and a conflict between rapper B. Rich and Coca-Cola over a purloined lyric. We’ll catch up on that in a bit and then get into IP, how it breaks into categories and what those categories mean. This podcast is brought to you by the Queen’s Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
00:56 MS: What’s happening with the B. Rich case?
00:58 Morgan Jarvis: Well, I was dying to know, ’cause it’s a year now since we talked about “out for a sip” and that “out for a rip” case with Coke. So, I emailed Rob Kittredge, the Queen’s grad who was the lawyer who featured in that video, I think as was it buddy buddy and Steve or whatever it was, and wondered if there had been a resolution, because you can’t tell online, you can still watch the “out for a sip” video, looks like there’s still this outstanding cease and desist letter which would have now been past the date of when he has to hear from Coke. So I wondered what happened, and he did kindly call me back. Great guy, great creative legal solution finder, as you can imagine, from watching that video and he said, “Look, I’ve got this scripted response that I haven’t actually even read to anybody yet because it’s so dull and scripted, but all I can say is that we came to a mutually agreeable solution to the problem and that’s all.” And then I thought, wow, this is such a great example of why lawyers need to start thinking beyond just the traditional way that lawyers think about their little legal box of legal issues and legal problems and mostly liability and their own liability.
02:26 MJ: They’re often part of a business team, and you need to think about the bigger business issues at play and this was such a classic case of a PR problem and a branding problem, and then the creative solution would have been to go out and this is actually… Rob mentioned he’d thought of this, and I think he maybe even proposed it to Coke. Why don’t we get together and do a bit of a co-branding thing? We do another video and make this a great PR story for everybody and a real win-win and something fun. Not just a classic situation of lawyer comes to table with an NDA, which is obviously the case, negotiating hard, try to get the most out of the other party and then you can’t talk about it. And this video still out there playing is a negative PR thing for them. So it was kind of crazy. And I think I’m gonna get Rob to come in and talk in the Business Law Clinic this year and talk to our students about creative legal problem solving. So that’s something that we’re trying to get students thinking about now is how do they think more like business people in it? And the Business Law Clinic is of course the right place for that. How do you connect with your clients, understand their business and how do you cope with creative business problems as part of it? It’s a business context, it’s not just a context of nitpicky legal issues, there is a much bigger picture out there and you have to keep that in mind.
03:45 MS: So since you brought it up, the Business Law Clinic, you are the director of the Queen’s Business Law Clinic, and that is a role that is not unconnected in a lot of significant ways to IP and IP questions.
03:58 MJ: Yeah, exactly right. There’s a lot of… Especially where we’re dealing with a lot of startups coming out of the university and so a lot of them do have IP issues of difference or sometimes they’re trying to commercialize perhaps a patent. There’s always trademarks, the branding for your business as you go forward, there’s a bit of debate about whether it’s the first thing you think about or not, but I do encourage people to think about it early on because you wanna make sure there’s a domain name out there, you don’t wanna be paying $10,000 for getting your domain name ’cause you’ve gone and chosen a brand name, which someone’s already sitting on, whether they’re actually using it or not.
04:39 MS: So to take you a quick step back, what you do, what the clinic does…
04:41 MJ: Yes, right. So…
04:42 MS: As a pro bono clinic, for the law school, is you are helping businesses with a lot of different legal matters that have to do with setting themselves up, usually in their infancy?
04:50 MJ: Yeah, yeah, exactly right. So most people wanna consider what sort of business vehicle they’re going forward with, are they happy… If they’re one person, are they happy going forward with a sole proprietorship, does that make sense for tax purposes? We try to get them to talk to an accountant for that, but also for liability purposes, is there some liability involved? Often when you’re contracting with other people and you’ve got employees, and maybe you’re doing a service for others and there’s a risk you might hurt someone while you’re doing it or damage someone’s property. It’s often for liability reasons a good reason to incorporate.
05:24 MJ: Or maybe there’s a couple of people working together and they’re a partnership. That’s actually automatically at law, you’re implied to be a partnership, if you’re doing business with someone else. So sometimes you wanna do a partnership agreement that sets out your own terms or you maybe wanna incorporate and you could both be shareholders in the company, and then in all those contracts that we end up doing for them, when they start interacting with other businesses and other people there is often IP issues, ’cause you’re often developing something for someone else which has IP. And then who owns it? A great example is, here we are in a podcast. If you are providing podcast recording or hosting services for people, you would need a contract, ’cause you would just want to set out the understanding between the parties.
06:14 MJ: You want that in writing. You both wanna know that you’re on the same page. There’s money usually involved and people need to know what they’re getting for that money. And so… And the IP comes in, say, if you are recording a podcast for someone, they’re likely coming in with some IP, some copyrighted material, probably, or you’re helping them create some copyrighted material and they’re gonna wanna make sure that they retain ownership of what they’re bringing to the table and they also wanna own the combined work product. ‘Cause they’re paying you to develop IP with them and they usually wanna be able to own that.
06:52 MJ: And then, if you’re gonna go and host it for them, you then need that IP licensed for your use for the hosting or whatever else you’re doing for them with that IP. So that’s just one example, and it comes up all the time in the clinic and the clinic provides some great real world examples for the IP course, which both in the exam questions, ’cause we need those real practical problems for the students to work through, and clinic cases are great for that. But also, of course, in the course material is just great practical examples to connect that theoretical material into the real world and often in situations that are arising right here on campus.
07:36 MS: Well, I’m excited about the course, and really looking forward to it. But, after I signed up for it, I began thinking more. Maybe I should have done this before I signed up for it, but I began thinking more about IP, and one, I realized I’m not entirely sure what it actually is. And second, it kind of seems to be everywhere, all the time. Like, it’s hard for me to distinguish between what’s in front of me, in terms of what I create as content that’s all my intellectual property. But there’s a much broader interpretation in what you’ve been discussing in terms of people are bringing content to the table, and that’s their IP. And my conventional pre-having really thought about that idea of it, which was kind of confined to trademarks and copyrights. So, in the broadest sense of it, what is intellectual property?
08:34 MJ: The name intellectual property kind of says it all ’cause it is… It’s a type of property, it’s property rights. Property is a bundle of rights, but it’s not tangible, it’s intellectual. So, it’s actually created for the most part, it’s created by statute, where the different acts, for those who don’t understand the process of creating law, and we touch on this at the beginning of the course, but basically, the courts over time create and apply the common law and then the government steps in and legislates law. So copyright and patent and trademark each have an act, or a piece of legislation, and those set out the bundle of rights that a IP owner has.
09:19 MJ: And so, the idea behind is… It goes back, way back, in England, which is the base of our legal system, particularly the common law legal system. And there was things like merchants marking their goods and trademarks developed from that. And there’s a lot of work that goes into developing your brand and there was a right that became recognized to be the only one who can benefit from the fruit of the seeds you sow in building your own brand and reputation and that’s the value around a trademark. So now we have a Trademarks Act, which lays out those exclusive rights to the use of a trademark when you’ve built a brand around it, when you’ve registered the trademark. And trademarks is an example of one where you actually have common law rights still, you can build your rights in the mark and sue people at, just in the courts, without registering it for infringement or for passing off. But you can also register and come under the Act and it’s then trademark infringement.
10:30 MJ: And then, there’s patents, of course. And so, it’s that idea of rewarding inventors for creating something new that contributes to society. And part of the filing of a patent is you’re actually sharing it with the public. You file the patent with the government, it’s posted publicly, so anybody can build on your invention and it’s in… For 20 years, you have the exclusive right to actually commercially use that invention, but other people are able to sort of build on that knowledge base.
11:01 MJ: And then, copyright, it’s rewarding creators for bringing something new and creative into the world. So typically, paintings and pieces of literature and now movies and podcasts and all that, they’re… Most of those are considered literary works, but there’s also neighboring rights and some others that we’ll talk about in the course, like the rights of performers and broadcasters. So yeah, no, they really are all around you, all the time. And I suppose, it’s part of this intellectual nature of the rights, it’s they’re… They are all around us.
11:43 MS: And you’ve been… I think you’ve been doing a great job of kind of describing the ideal purpose of intellectual property. It’s to make sure that people can benefit from the trademarks that they fought to establish a quality and then they want the right to associate that and only that, to them. And patents is, you came up with the idea and you own it, and you deserve to benefit from that. And copyright is you created it, it’s yours, it should be yours. It’s your song, it’s your novel. But there’s also kind of a flip side to this, like we were discussing before we started recording, that people can create a trademark and then just kinda hang on to it for no apparent benefit to anyone for decades, past its sell-by date.
12:23 MJ: Yeah, that is at the very foundation of the IP rights is that balancing of the public interest and their right to either create and develop new things, or to be able to use things that have been created and really for everybody to benefit and enjoy, either the creative work or to build on the new technology and the inventions, and so that’s that balance of the term. 20 years is kinda what we’ve come to for patents, but the pharmaceutical companies are always wanting to get that longer because on their side of it, they’re spending probably often 10, 15 years through, and huge amounts of money going through clinical trials and by the time they actually get a drug to market, they maybe only have 10 or five years at worse case, to actually make some money back out of it. And that’s why the pharma, the drug prices are so high ’cause they have a very limited amount of time on that patent monopoly. So it is that… Yeah, it’s always that that balance, exactly, right.
13:26 MS: And we live in the age of the patent troll too. This is a term I see a lot online. Not entirely sure what it means but…
13:33 MJ: Yeah, and it’s a term that… I was chatting with… I don’t know if I’d… I don’t know if he’d appreciate being called a patent troll, but he has one of the organizations that some people can call a patent troll. But it’s not the greatest term because it is really just another business model. And there are some interesting Canadian companies who would argue that what they’re really doing is helping people who own IP and aren’t able to commercialize it. They’re helping them actually make some money out of their IP rather than it just sitting on a shelf and not getting out there and not earning any royalty revenue. They go and look for… I’m not sure exactly how the business model works but I think essentially they kind of… They would either… They probably license the IP, or they somehow have an arrangement with someone who owns IP, who isn’t working it, to go out and look for infringers.
14:29 MJ: And then the business model is that you sue, and ideally come to a settlement where you’ll get some royalties out of people who are infringing IP that’s usually just sitting on the shelf. So in some ways, it’s a… It’s actually quite a reasonable thing to do. You’ve got this property right and you’re just helping people exercise it. And often, it’s universities who might be sitting on it. We generate all kinds of IP and we can’t commercialize everything. We’d love to, we want everything to be out there contributing to the economy and to society. But often it isn’t, it takes a lot to actually… It’s often, I wouldn’t say the easy part, but it’s only one part is to generate the IP, it’s on a whole another level to actually be able to build a business around it or incorporate it into a business and make money out of it. So these so-called patent trolls, and a better term is a non-practicing entity, so they can… Yeah, they’re just helping, in this particular model I’m describing, they’re helping people make money out of IP that’s not being used otherwise.
15:37 MS: Maybe we should… Patent mercenary, is that maybe a better…
15:39 MJ: It could be, yeah, yeah. So this and… And the other side of it too, there is now groups that have got together to try and pool IP because you have… The other issue is the issue of patent thickets where you’ve got so many of the patents, so many out there with overlapping claims and there can be someone who actually, they may have a patent on some part of the technology but they need… There’s usually a whole bunch of other patents that are also now actually stopping them from taking their technology forward, because there’s claims that cover what they’re doing as well as the claims in their own patent. So what people have started doing is pooling. So either by license or buying a whole bunch of patents together in particular areas of technology to try and make the whole bundle of rights available for people who are wanting to get out there and make a product that requires licensing, of, say, a thousand different patents and they’ll have them all in one place.
16:36 MJ: You can go to these patent pools and just pay one licensing fee, one chunk of royalties and they find their way back to the owners, but you just have to… It actually enables commercialization because you just have to deal with this one party and you get licensing to all the patents that you need to be able to move forward with your business, which is a really positive thing.
16:58 MS: I feel like I could kinda throw a rock and we could find something we could talk about for an hour here.
17:04 MS: So how are you… This is huge. How are you condensing this down into one course and what’s the composition of this to try to encapsulate all of these ideas around IP into a fairly tight schedule?
17:18 MJ: Yeah, that’s… So, everybody… We’ve interviewed the real experts in each area of IP that we’ve touched on. And most of them have said, “Oh, wow, this is a whole IP course.” So you’re having to condense all of IP, ’cause normally people specialize in either patents or trademarks or copyright. And they don’t normally attempt to do a course in all of them. So it’s been a lot of fun for me ’cause I do enjoy all of them. And I wouldn’t say that I’m particularly a specialist in any of them, so it’s been a lot of fun. And what I’ve tried to do, ’cause I come at it more from a practical angle, which I think is important for a course like this. And so I’ve tried to think always what matters in a practical setting of, say, a university startup, or in university research commercialization.
18:11 MJ: I was working at a research hospital before and so I’m fairly aware of what really matters in terms of IP in a practical, commercial context. And so I’ve tried to come at it from that angle and just sort of, and cover key points that I’d be considered negligent if I didn’t cover in doing an IP course. Cover all the key issues from all the different areas of… Or mostly areas of IP, the main areas of IP that are relevant to a business is really what I’ve asked myself in putting together the course. And then we build towards the licensing at the end of the course, and that’s that commercialization of IP. And that’s… You’ve got your theory now and then you’re learning why does it matter. And that’s really how I’ve tried to put it all together ’cause, yeah, it is a lot to put in one course, but we’re trying to do it with a practical perspective, which helps to simplify a little.
19:07 MS: I’m hardpressed to think of people that this doesn’t apply to, though.
19:10 MJ: Yeah, you’re absolutely right. I mean, an academic in the university who’s doing research probably needs to understand what the IP implication is, no matter what they’re doing, even if it’s a nontechnical area, there’s still copyright all the time. And that’s actually a fun example, ’cause there’s a lot of people publishing papers, and now there’s more going on with the creative commons and that open sharing of copyright. But it was that, that if you wanted to publish a paper in a leading journal you would just assign away your copyright and not even think about it. Not even realize that you can’t go and reproduce your own work that you’ve now assigned to that journal. So, yeah, it comes up, it comes up all the time, and starting a business, you’re certainly dealing with IP in some regard, even just as a student, an undergrad student, you’re surrounded by copyright issues all the time with whether you can copy your course materials, and you may be tempted to go and go and download my exam questions and my fantastic videos from the course and you can’t do that ’cause I own the copyright. [laughter]
20:23 MS: Right.
20:26 MJ: You can’t sell it online after the course ’cause that’s my exclusive right. [chuckle]
20:30 MS: I mean, again, it’s like throw a rock. [chuckle] Like just from what you’re talking, like creatives, anyone who’s writing making music, anybody, that’s obviously of interest. Anyone who’s coding making their own apps, making their own software, obviously of interest and then you get into all these weird side nichey things. Like if I write fan-fiction, if I’m writing my own stories based on licensed copy, where does that reside? And there’s all sorts of side paths and interesting areas you can get into from the central point of what is IP.
21:00 MJ: Yeah, and it is especially complicated when you’re getting into that overlapping rights and in copyright you’ve got different levels of works and authors on top of each other and when you watch a movie and you see those… That endless list of credits at the end. You’ve got copyright in the script, in the story and then the directors and the music and then music itself, you’ve got lyrics and then the music, and then the performers’ rights and the broadcasters’… The record makers’ rights. Yeah, and then as I mentioned, in patents, the patent thickets are a huge problem. We’ve got all these overlapping rights, and they stop people from being able to make the most of the IP. So it’s an ongoing issue and it’s yeah, it’s a very interesting problem to think about and hopefully students can come away from the course, not only understanding IP, but maybe thinking about it critically, and are there better ways to go at the same intentions of the IP system? Could we actually solve the problem better than what we’re now doing?
22:13 MS: ‘Cause I mean, moving it back to the beginning you’ve gotta find creative solutions. And this seems like a field in which most of the problems that arise are gonna be creative problems, ones that root back to someone having created something. So if you’re not finding creative solutions to your creative problems, what are you solving?
22:30 MJ: That’s right, and you don’t want to, in rewarding creativity, you certainly don’t want to end up having the effect of actually stifling it, which some people would argue is what the IP system does sometimes.
22:40 MS: Well, I’m looking forward to the course. Thanks so much, Morgan.
22:42 MJ: Great, thank you.
22:48 MS: Thanks to Morgan Jarvis, the developer and instructor of Law 206706 Intellectual Property Law. You can find out all about trademarks, copyright and patents through his course at takelaw.ca. If you’re a creative, a coder, an entrepreneur, an inventor or any combination of the above, you owe it to yourself to understand IP law.
23:12 MS: Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen’s Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie’s portfolio at vdesrochers.com. Thanks for listening.