June 2012

Colbert and Stewart: Copyright fair dealing

Copyright Law, Telecom Law /

Have you ever wondered how Stephen Colbert or Jon Stewart can reproduce news clips without being sued for copyright infringement?

Just because something is under copyright doesn’t mean it cannot be copied or used by someone other than the author. Colbert and Stewart, as pundits who report on current events, criticize and perform parodies and satire, can rightly claim “fair use” under US copyright law in their use of news clips on their shows to avoid copyright infringement.

Similar to fair use in the US, under the fair dealing provisions of the Canadian Copyright Act, the Canadian general public can also use a copyrighted work without infringing copyright.

In general, fair dealing for the purpose of research, private study, criticism or review, or news reporting does not infringe copyright.  As long as the reproduction was “fair”, there is no copyright infringement.

The second step, whether the dealing is fair, depends on the facts of each case.  In CCH v. LSUC, 2004 SCC 13, the Supreme Court of Canada set out six non-exhaustive factors to determine whether a dealing is “fair”:

  1. the purpose of the dealing;
  2. the character of the dealing;
  3. the amount of the dealing;
  4. alternatives to the dealing;
  5. the nature of the work; and
  6. the effect of the dealing on the work.

These “fairness” factors mean that, for example, a wholesale copying of an entire show would probably not be considered “fair”, even if it was for the purpose of news reporting or criticism. But it does allow for short reproductions of clips a few seconds long, just like the clips reproduced on The Daily Show or the Colbert Report.

 

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The BBM trademark and Research in Motion

Litigation, Trademark Law /

Finally some good news for Research in Motion this morning, as the Federal Court dismissed a lawsuit by BBM Canada challenging the use of the trade-mark “BBM” by Research in Motion Limited (RIM) in the promotion of its BlackBerry Messenger service.

The court held that BBM Canada, offering “BBM” as a specific brand of broadcast measurement services, is not entitled to a broader monopoly outside the broadcasting and advertising industries even though it had been using its trade-mark much longer than RIM, as the nature of the products and services provided by BBM Canada and RIM vary significantly.  BBM Canada’s focus is on impartial measurement of ratings data and sophisticated market research for a narrow and distinct group of consumers in the advertising and broadcast media industry, while RIM makes smartphones intended for the general public. The court also found no evidence of actual confusion by consumers, no finding of passing off and no depreciation of goodwill.

This decision was rightly decided, in my view, as generally the nature of the products and services used in association with a trademark defines the scope of the trademark monopoly.  BBM Canada doubtlessly knew this from the beginning.  Perhaps BBM Canada thought its use of the mark since 1944 gives it a fighting chance at a the court recognizing a broader scope for its trademark.  In this case, they were wrong.

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