The CRTC, Bell, and a Brief History of Piracy in Canada

Web PirateRecent headlines about the CRTC, and a Bell-led consortium against piracy, are making waves on the Web right now. What’s the CRTC role in combating Internet piracy? What is Bell and other internet service providers’ place in the discussion? Margo Langford, who is part of our Law 206/706 course, Intellectual Property of Law, is here to help. We talk about the CRTC, the Bell consortium, and piracy law, but also some of the history of copyright on the Internet, why Napster might have survived in Canada, international legislation, and much more. This could be its own podcast!

If you’re interested in IP issues, check out Law 206/706, Intellectual Property Law, at takelaw.ca. This course is a must if you’re interested in patents, trademark or copyright — whether you’re writing a novel or crunching code for your new app, it’s essential to understanding your rights in Canada.

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:00 Matt: What I’ve seen and I know we’re gonna go somewhere different with this, but what I’ve seen is this… The CRTC decision to deny Bell and a number of other organizations who’s kind of formed a group kind of this sort of advanced power over privacy, and that’s the headline that I saw flying past me. So I thought it might be useful to start with what is the CRTC’s role in copyright enforcement in Canada?

00:26 Margo: Yeah. When I read the decision from the CRTC I actually understood that the collective of broadcasters and web owners were actually trying to get a website up, or technology up, to block infringing content. So not so much privacy as it was illegal use of other people’s content, what we call piracy in the copyright world. So what they were trying to do was get CRTC really to step outside of its traditional mandate, which is a regulator of content and of rates for the broadcast industry and the telecom industry, and get it to step into the copyright world. We have a copyright board and it also doesn’t deal with infringement, it deals with tariffs for the use of other people’s content in a legal context.

01:20 Margo: So what we’ve had in Canada forever and in most countries in the world are both civil and criminal private rights of action where the rights owners, who have their content infringed, collectively or individually go to court. So they either sue or they try and get the police involved. In our copyright law in Canada, we have both. You can take a criminal action but it’s very difficult. Having been a pirate buster myself I can tell you, extremely difficult to get the police involved. And they only do it really, if there is a criminal who has a rap sheet already and they’re using it as a way to bring that person into the justice system. So, we generally have formed collectives in Canada and we go back to the early 1920s with the composers forming the first collective, which was called SOCAN, and since then just about every kind of rights group has formed a… Content rights group has formed a collective. So we’ve got them for… We got CanCopy for book publishers and we have, well, just a myriad of them and I think in the music industry alone because we have… Quebec has separate ones, we have about six music rights collectives that go out there and look for pirated material and take action.

02:40 Matt: Right. And I’ve seen, if you, as a for instance, if you go to a bar and you’re being served and you look behind the bar tender you can often see like the SOCAN License to Play sticker somewhere saying that they’ve worked through this collective and they’re paying a fee for a tariff and that gives them the right to play copyrighted music in their establishment.

03:00 Margo: Right, because it’s a commercial establishment, which is different than playing it at home.

03:04 Matt: So we’ve got this kind of tiered… I don’t know if tiered is the right word, but there’s a system under which kind of there’s regular folk who access this music through the radio or they hear it at the bar, they hear it in a store, they hear it in the mall. Then there are these collectives that basically allow people to pay money for tariffs that give them the right to play all this music that we’re hearing in these various places.

03:28 Margo: Right, or they can incorporate it into a film or to make multiple copies on campus for publications they wanna use, etcetera. So yeah, depending on what the content is, somebody somewhere, if you’re using content or seeing content in public, chances are somebody has a licence and somebody’s paying.

03:48 Matt: Right. And then there’s a fuzzy part, that I’ll get to in a second, and then there’s the CRTC, which is I feel like it is more of kind of a regulator of sort of the infrastructure of it all.

04:00 Margo: Correct.

04:01 Matt: So they give a radio station a license to be a radio station, but they are not responsible for the licensing of the content of the radio station.

04:10 Margo: No, except that in Canada we decided that it was really important to have Canadian content. So they regulate, they put some rules around those licenses and so they have a certain minimum amount of Canadian content that has to be produced, for example, but they don’t actually regulate things like infringement of content.

04:28 Matt: And the fuzzy bit in the middle that I don’t quite understand is sort of Bell, as they seem to be kind of the public face of this group, they are now getting more involved in terms of saying we want to set up and do things to block infringers.

04:43 Margo: Right. And so, interestingly, there was a collective of the web service providers back in the late 19… Like about, I would say, 1995 through to sometime, I think, the group disbanded somewhere in the 2000s. It was called the Canadian Association of Internet Providers and I was actually part of that and was actually chair for a while. And we formed this collective exactly for reasons like this, which was that collectively, we were all experiencing challenges with content, some of it very illegal and criminal and nasty, and so we wanted a whole bunch of rules about first of all what ISPs would do, and then what the content owner could do. We came up with a kind of what we called “notice and notice.” So in the United States they were doing something already, being that much ahead of us in the internet called “notice and take-down.” So basically I would give an ISP notice that their… My music is being infringed on that particular website and basically they took me at my word in the United States, and they took it down and that caused them, of course, some problems as well because something that’s… Might not actually be true. And what kind of proof was required to say it was mine and all of those kinds of issues. So we decided… And there was also the issue of privacy and maybe this is where the confusion comes in.

06:17 Margo: If I wanna deal with a website I have to know who owns that website. And I can’t deal with them directly, so I have to go through my ISP, but ISPs had locked lips about who their customers were. And so they didn’t want to disclose to any old third party who would show up saying, “I have a right and this guy is infringing it.” Because that would be sharing their customer information. So they had… We came up with something called notice and notice, which was basically, “You tell the ISP you got a problem and the ISP will tell the owner of the website.” And if they think that they have a right to be using that then they come back with their information on how they got the right to use that piece of content and why they’re not gonna take it down.

07:07 Margo: Notice and notice worked really well in Canada, we didn’t have then any of the problems about disclosing customer information. People generally took them down because they didn’t know, there was so much content in the internet. It’s very hard for an ISP or a website owner, even. Some website owners are liable for it because they’ve put the content up, but for an ISP to know whether or not content on somebody’s website is legal or not would be impossible. So that worked for a while as a voluntary method, and then in 2012 when the Copyright Act was amended, that went into actual formal law. So that’s actually what Bell and Rogers are trying to do in the… The system they were trying to set up through the CRTC was actually a notice and notice system, which basically says, “Internet providers have the right to remove or block access to content upon receiving notice.” So it was pretty straightforward, they just didn’t wanna have to do it themselves and they didn’t have a collective to do it, and they thought the CRTC should or should at least allow them to create a technology means of doing it.

08:16 Margo: And then they basically said, “No. I guess what you got going now is good enough, it’s in law, you can form a collective to do it if you want, and do it yourselves the way other rights groups have done it. But we’re not gonna start taking on or allowing you to have some sort of hyper rights to deal with infringement.”

08:40 Matt: So the CRTC’s take was kind of, “This is out of scope for us to say yes or no to?”

08:44 Margo: Yeah, I think that’s really what it comes down to. They’ve never been in the infringement world and they’re not about to step into it.

08:51 Matt: Right. So as someone who’s been involved in this in the past, I guess my natural curiosity… My curious question is, why do they care? If you build a road, you’re kind of agnostic as to whether the traffic on that road is criminal or not criminal, so if you own the pipe, why do they feel obliged to be involved in what traffic is going through the pipe?

09:17 Margo: I’m not sure why they want to be. Maybe they just feel that they lack the tools to do it effectively. And ’cause the last thing on earth we certainly wanted as a collective of ISPs, was to be in any way liable. And there was a case, it went all the way to the Supreme Court of Canada, basically, about common carrier liability. Whether or not if you were just a pipe, whether you would be liable for the content, and it ruled in favour of the ISPs. It says, “No. If you’re not actually aggregating the content yourself then you are just the pipe, then you’re not liable.” The second… There’s a lot of hybrid rights, so a lot of ISPs are also website creators and owners and builders and whatever. So the second that you move into the content creation side, well, then you’re wearing a different hat and then you could be. So I think also all of these companies are such hybrids now. It may be that from their content side, in their content creation side, they wanna protect their own content and they wanna block illegal content.

10:18 Matt: So there’s a certain amount of, they may in fact own IP that they want to protect and that they’re trying to facilitate the means of protection through this method they have devised.

10:31 Margo: But of course the world is completely international, in terms of the internet and where most of the infringement is taking place.

10:37 Matt: I was gonna say, we’ve been talking about this in a Canadian context, but you’re right, it’s an international issue. My internet access is not Canadian, my internet access is global. So how is this affected by international treaties and international agreements?

10:51 Margo: It’s terribly difficult [chuckle] because the copyright laws, although very similar because of treaties, in which basically are that they’re kind of normative setting guidelines for countries to form their laws around some agreed upon principles, but there’s wrinkles in everyone. So the Canadian copyright law’s slightly different than the US in a number of ways, and then the treaties are not always ratified by all the countries in the world. So not everybody is playing by the same rules, but generally over the last 100 years it’s been fairly well harmonized. Interestingly, we’ve just formed another treaty, and that’s with the US and Mexico. And there were some issues around copyright that had to be harmonized. One of them was the length of copyright.

11:41 Matt: Yeah, things are longer now.

11:42 Margo: Yeah. We expanded to 70 years, it was 50 in Canada, life of the author plus 70 years now, which gives the owners more protection. But the other one was actually the notice and notice story. We do not have the same regime, as I was mentioning, as the US, they have notice and take-down still in their law. And we got an exemption, and we are allowed to continue with our notice and notice, which is actually fantastic because it’s really working. I don’t know if it’s working in the States, I really can’t speak. But I’ve been in-house counsel in an ISP and I’ve been involved right in the front end of getting a notice and what we do with it, and I have been involved with a lot of content owners trying to protect their rights. And as far as I’m concerned, we have a pretty good regime. The problem is that when the infringement is taking place offshore, you really have very few tools.

12:41 Matt: I think there’s a pervasive understanding that things are different, nation to nation, and this idea that there are different rules in different places, so if you have got something that originated in this place, different rules apply. Copyright happens in the country that things start from, right?

12:58 Margo: Where the creator, yeah, has made whatever it is, what piece of content they’ve created is the origin of the copyright. But the interesting thing about the internet, it brought on, I think, I would call the era of technological measures to actually address infringement. We really can’t do it with laws super inefficient to try and sue somebody. So what’s really happened is people try to lock down their content with tools, so you can’t get access to content that’s… People probably are most familiar with it with Netflix, because you can’t get content that’s not licensed for Canada on Canadian Netflix. It’s just the way the rules work and technology permits that to happen. Napster being one of the more fascinating stories about the genesis of these technology tools, and the difference between Canada and US copyright law. Because if Napster had actually been in Canada, they wouldn’t have been guilty of anything.

14:02 Matt: Really?

14:02 Margo: Yes, because we have something in the United States called contributory infringement. So the fact that it was a website that allowed people to file share in the United States was contributing to the infringement and therefore they were liable. But if they’d been in Canada, and they’d set up their service on a Canadian server and then a Canadian company, we don’t have contributory infringement and they would have just been that common carrier. They put the technology there and they allowed people to file share and they weren’t actually doing the copying. That’s been an interesting thing to watch as well.

14:41 Matt: I think we could talk for days about this. I think one of the things I kind of understand about this is it matters where the data resides. So if I have a website, I’m sitting here in my office in Canada, I make my website in Canada but it’s hosted by Squarespace, and the actual server’s in LA, so that’s now a US law thing around the data because that’s where the server is?

15:06 Margo: Still probably a little bit unsettled law.

15:09 Matt: Okay.

15:10 Margo: Because it’s really hard to say. Sometimes it’s where it’s been uploaded from, and this goes into satellite law, that was the first upload and download copyright cases. I don’t think we have enough body of law yet about whether the law of the server applies or not, there’s cases on both sides of it.

15:32 Matt: Right. Anyway… Again, it’s fascinating, pads off in all directions, but back to the core idea of, there was a consortium that wanted to implement new anti-piracy measures and the CRTC said no. Is there anything we haven’t covered there that we should unpack a little bit?

15:50 Margo: Well, I’m just gonna circle back and say the thing about Napster is, it was created in a vacuum before all of the music companies could get together and create their own aggregate site. And so there was something called The Madison Project, IBM was actually… Had all of the music companies on board into this project, and they were trying to come up with their own Napster before Napster appeared on the scene. And they had challenges trying to get those music pieces licensed from the composers, because they were individually licensed in all different countries and people weren’t willing to give up their royalties. And so by the time they got all the legal stuff worked out, they lost the window of opportunity to go to the public with an offering. You saw a little better job when it came to iTunes, when they finally got some act together, but that’s such a small part of what music is actually being consumed on the internet. I think, I don’t know, I’ve heard somewhere between 1% and 10% of the music’s actually paid for on the internet. So we now have a whole generation of people who believe that it’s okay to infringe anyone’s content, that content is free. And I think we have some major challenges for creators as a result.

17:07 Matt: Right. Sorry, when you’re saying 1% to 10% is actually paid for, does that 1% to 10% also include streaming, like Spotify, Google Play?

17:14 Margo: Mm-hmm, mm-hmm.

17:16 Matt: That’s… Oh, wow, that is very different than I thought.

17:18 Margo: Yeah, yeah. The illegal is far eclipsed in the decades that ensued since Napster. It’s just grown as opposed to shrunk. And so part of that is there’s been the resistance, I think, to use the technology tools to stop people from actually getting access to content. So in part that is because people got so used to being able to get it, so now it’s viewed as, “Well, we’ll release some of it for free because this will build a fan base,” or whatever. But it is… I have represented many musicians in the interim, and it’s very hard. Your income is extremely dispersed now. You might make a few bucks on each of the websites that you put your songs on, but you’re not making the kinds of money you used to get with mass sales of records.

18:08 Matt: And so I guess the last question for me would be, Bell et al have put together a consortium and said, “This is something we want to do.” And the CRTC has said, “Not really our bailiwick to say yes or no to this so we’re not going to say, ‘Yes, do it.'” But they’re clearly not gonna give up. So where do you sort of go from here? Where would they take this?

18:30 Margo: I do think that they can just do it.

18:33 Matt: Okay.

[chuckle]

18:34 Margo: As Nike would say.

18:35 Matt: Right.

[laughter]

18:36 Margo: That I think they know they… They did have a mechanism before as a collective to take collective action because obviously one company doing it on its own is, again, not really the answer, but they could create, either with the group they have now or expand their collective and do it themselves.

19:00 Matt: You’ve been very generous with your time, so I don’t wanna get into another whole thing if this is another whole thing, but is this… Does net neutrality plug into this argument at this point or is that a sort of a different ball of wax?

19:12 Margo: I think it’s a very different ball of wax.

19:13 Matt: Okay.

19:14 Margo: That’s really about access to the internet.

19:16 Matt: Right.

19:16 Margo: Well, I guess it get does play in in that people are talking about walled gardens, of creating, again, the technology’s limited access for content. I don’t think we’ve got enough to… I don’t think we’ve figured any of this out well enough yet.

19:34 Matt: Right.

19:35 Margo: [chuckle] I just think it’s sometimes happening much faster than all the existing mechanisms that are in place can react to it.

19:43 Matt: Well, we may have to check in again at some point soon about this or start a spin-off podcast, but for now, thank you very much, Margo.

19:49 Margo: It was a pleasure to be here, Matt.

Protecting Products of the Mind: Intellectual Property

Idea Locked. Val Desrochers: vdesrochers.comWhat 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.

[chuckle]

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.

[music]

Rebroadcast: B Rich, Coca-Cola and Trademark Infringement

Fundamentals of Canadian Law is taking a few weeks off, to return in September with new episodes.We’ll be coming back with special guest Morgan Jarvis — creator of our new Intellectual Property course — and a follow-up on our first episode, where we talked about Southern Ontario rapper B Rich taking on Coca Cola in a trademark dispute. We’re therefore re-sharing that episode (one of our favourites!) to have the situation fresh in people’s minds for the follow-up in a few weeks. We’ll see you in September!