Sometimes correspondent here at GX40, Jim Elve has been writing about getting a cease and desist letter from GovCan lawyers. As I am one of the guest writers on the election group blog section of his web site, I am hardly impartial but I play no part in the questions of design.
That being said, the cease and desist letter is instructive and interesting. If the letter is correct, there is a copyrightable interest in the "look and feel" of a web site as well as in the combination of the word Canada and the use of the flag. [There is also a trademark interest, perhaps, but the letter does not really go there.] If there is a copyright interest under the Copyright Act then there are also corresponding "fair use" exceptions under section 29 and 29.1 to infringements of that interest - as I have discussed under my own "fair use" observations as well as in relation to the Supreme Court of Canada's recent ruling on "fair use" in CCH Canada v. Law Society of Upper Canada.
These defences are never raised, never quite mentioned, in "cease and desist letters"...but it is an interesting legal problem which might appear like this on a second year exam:
If the "look and feel" of a web site is a protected interest under copyright, how does the "fair user" comply with section 29 or 29.1?Certainly there is implicit criticism in the form of visual mimicry such as we see on Jim's blog. What do you guess this has never been adjudicated? Very interesting for it to proceed on an agreed statement of fact on an issue of law before a trial. I wonder if the Federal legal counsel would go for that? Surely some web-savvy copyright litigator would do it pro-bono? Hands up out there.
Comments
Ben - April 15, 2004 4:56 PM
Actually I've been told that the government watermark- the word Canada with the flag above the final 'a'- has never been copyrighted. That may just be heresay though.
Alan - April 15, 2004 5:00 PM
Nope - here is the trademark as registered. I don't know what the letter means by a trademark being under the copyright law as it is clearly a matter of the <i>Trade-marks Act</i>. <p><i>Later</i>: by way of gratuitous and utterly tangential comparision, here is the Canadian Club rye trade-mark.
Ben - April 16, 2004 8:42 PM
That's actually the corporate signature, not the watermark.
I have a friend who works for Industry Canada in the Trademark Office of the Intellectual Properties branch. He doesn't think blogscanada stands much of a chance if it goes to court, but then again he isn't a lawyer. He does have a really thorough understanding of Canadian copyright though. It'll be interesting to see what happens.
SayNay? - April 17, 2004 11:56 AM
Unfortunately "pardoy" is not seen as fair use/ crictism under Canadian copyright law. See Michelin v. Caw (Fed.Ct.): "The defendants fall short because American case law permitting parody as criticism under the American doctrine of "fair use" is not applicable nor terribly persuasive in the Canadian context of a different legal regime and a longstanding trend to deny parody as an exception. As well, exceptions to copyright infringement should be strictly interpreted."
"Parody" should be an exception - Jim's site is clever and funny, he has invested original thought, and he mentions the source. I agree with you Al that it would be an interesting case.
Alan - April 17, 2004 12:44 PM
Thanks! I knew that case was floating around. Perhaps if Jim moves the server to a US location he would be fine.
SayNay? - April 17, 2004 1:30 PM
I think that would work - brilliant idea, Al.