RIM launches patent suit against Kik Interactive

As reported in the Globe and Mail, Research in Motion has launched a patent infringement lawsuit against Kik Interactive Ltd. RIM claims that Kik Messanger infringes on their patent for Blackberry Messenger. They claim that Kik’s CEO was previously employed at RIM and after leaving the company “he quickly went about starting his own instant messaging app”.  Kik has vowed to “vigorously defended” itself against the suit.

The problem with “intellectual property”

I recently read an article by Richard Stallman where it was suggested that “if you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics”. The essence of the article is that lumping copyrights, patents, and trademarks together and calling it “intellectual property” can be distorting and confusing. Seeing as how I am in my first year of law school and pretty much everything seems distorting and confusing I decided that it might be helpful, at least for me, to briefly visit the basics of each area.

Patents

The World Intellectual Property Organization describes a patent as an exclusive right granted for an invention, which is a product or process that provides a new way of doing something, or offers a new technical solution to a problem. In Canada patent rights last up to 20 years.

Patents fulfill several useful functions. The first is creating an incentive to invent. The Canadian government’s guide to patents states that “without the possibility of patent protection, many people might not take the risk of investing the time or money to create or perfect new products”.

Another function of patents is to benefit the public at large by encouraging disclosure of innovations to the public. In Canada patent applications are made public 18 months after filing. Making innovations part of the public record allows them to be exploited by anyone, after expiration of the patent, and encourages perpetual improvement by other inventors. In Canada 90 percent of patents are for improvements to existing patented inventions.

Copyrights

A copyright is an exclusive right to copy a creative work or to allow someone else to do so. Copyright covers such things as literary, dramatic, musical and artistic works. Creators automatically acquire a copyright when an original work is created. In Canada copyright exists for the life of the author plus 50 years following their death. The main function of copyright is to reward and protect creative endeavour.

One main difference between patents and copyright is the area of public disclosure. As Richard Stallman notes “copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it”. Taking an existing, patented invention and adding or modifying a single component can be lawful and may well lead to a new patent. Writing a new and improved ending, or an extra chapter, for an existing novel is deemed to be copyright violation even if such an addition were widely viewed as a marked improvement to the existing work.

Trademarks

The Canadian government’s guide to trademarks defines a trademark as “a word, a symbol or a design (or a combination of these features) used to distinguish the wares or services of one person or organization from those of others in the marketplace”. Trademarks serve to identify a particular business/organization as the source of a good or service. Registering a trademark is not essential to its creation and a trademark that remains in use can exist indefinitely.

The function of trademarks is to ensure clarity among consumers regarding the source of a product or service. A word or symbol may be deemed a trademark in relation to a particular product but this does not necessarily mean that other companies are barred from using the word or symbol in a different way. This was illustrated in 2006 when the Supreme Court of Canada ruled that a small restaurant chain named “Barbie” was not violating the trademark of Mattel because this use was not likely to create consumer confusion with Mattel’s dolls.

Conclusion

So what do you think? Are the fundamental concepts behind, patents, copyrights and trademarks so different that it’s a grave mistake to refer to them all as “intellectual property”? Stallman also argues that the phrase is problematic in that it “carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects”. Is it time to retire “intellectual property”?

Access Copyright proposes costly new licencing scheme

In a recent article for the Toronto Star Michael Geist reported that Access Copyright is proposing a new licencing scheme to cover copying and course packs at post secondary institutions. Access Copyright is a copyright collective licences copying and course packs across the country. The proposal would see the fee set at $45 per university student, which represents a substantial increase over current fees. Geist finds the proposal surprising considering “the myriad of ways teachers and students access materials that fall outside the Access Copyright licence” and wonders if the proposal will cause universities to forget the collective altogether and consider individually licenced materials where needed.

Naked Cowboy trademark dispute

It has been reported that the famous New York street musician Robert Burck, known as “The Naked Cowboy”, is suing rival busker Sandy Kane for trademark violation.   Burck claims that his look is trademarked and that Kane was “seeking to earn a living by appropriating his intellectual property for her own commercial benefit”.

Canada being bullied into copyright reform

There is an excellent article by Cory Doctorow on guardian.co.uk that highlights the problems with protecting digital locks and suggests that Canada is being bullied into the reforms by the United States. Doctorow points out that after wide public consultation regarding copyright reform the consensus was to “let us have protection for digital locks, but only if you’re breaking them in order to commit an act of actual copyright infringement”. Of course our government failed to heed the calls and has gone the other way in pursuing U.S. style protection for the digital locks themselves and we are left to wonder exactly whose interests are being protected.

Is the new copyright bill good for gamers?

An article by Danielle LaBossiere Parr, executive director of the Entertainment Software Association of Canada, appeared recently in the Calgary Herald. The article was titled “Why gamers should love copyright bill” and set about explaining why the new bill is good for gamers. Parr cites a “300 percent increase in the number of games illegally downloaded via Canadian ISP’s between 2007 and 2008″ as evidence that the Canadian government hasn’t been doing enough to protect creator’s rights. Insufficient protection, Parr says,  is tantamount to forcing creators to “give their works away for free”. It is argued that better protection allows for more innovation and risk taking among producers and ultimately to better products in the hands of consumers.

India argues that ACTA restricts developing economies

The Register reports that India recently submitted a document to the World Trade Organization which is critical of ACTA.  One of India’s main concerns is that the agreement has the potential to destabilize existing international agreements and damage the economies of developing nations. They also argue that, when it comes to intellectual property reform, ACTA “does not represent a reasonable or realistic response” and that such an agreement “has to emerge from a multilateral and transparent process”.

Rock Band/Gibson lawsuit settled

Networkworld.com is reporting that the lawsuit between Gibson and Harmonix, which was initiated in 2008, has been settled. Gibson was suing Harmonix for infringement of its virtual guitar patent in the popular Rock Band video game series. Gibson had already settled a suit with Activision, publisher of the Guitar Here series, last year regarding the same patent.

Conservatives seeking allies in drafting of new copyright legislation

The Globe and Mail reports that the Conservatives are “actively looking to recruit allies across the Commons floor” to support and help shape the proposed copyright legislation. The bill is expected to be introduced later this week and reportedly will, among other things, make it a crime  to pick “digital locks” attached to media files. The article goes on to say that such changes are almost certain to be unpopular amongst most Canadians and that the real pressure to update the law comes from the U.S. and Europe who are dissatisfied with the current state of copyright law in Canada.

Beyonce pirating her own music?

It is being reported on thewrap.com that Sony Music has blocked videos of Beyonce appearing on YouTube for copyright infringement. What’s interesting is that the videos being blocked are on Beyonce’s own YouTube channel. The article states that “Sony’s move is the first time a record company has shut down one of its own superstars”.