Monthly Archives: July 2008

The Stolen Reality

Posted in: "All, Copyright and Trademarks by Admin | No Comments Friday, July 18, 2008

The CBC has published a story about an author who wrote a novel based on a real-life act by a real-life musician (see www.cbc.ca/arts/books/story/2008/07/17/cellist-novel.html).

The musician’s photo appeared on the book cover. There are numerous mentions of the musician in the book; however, the author has asserted that because the musician played a silent role in the novel, no copyright has been infringed.

Amid the controversy, I want to discuss copyright issues arising from this case.

Recalling my other articles on copyright, there is no copyright on history, real-life events or ideas. Therefore, if an author were to write a book, fictional or not, about Elvis, the estate would not have claim to the book’s copyright. The author writes the book, and hence the author owns the copyright.

The musician’s life story had been widely reported world-wide. The musician cannot claim copyright for the book in question.

Things become a little bit murkier when it comes to using the musician’s photograph on the book cover. The photo in question is probably copyright-protected, but the copyright belongs to the photographer who took the photograph, not the musician.

Granted that the musician does not have any claim to the copyright of the book, or the photo, what other remedies are available to him?

One of the obvious remedies is the tort (i.e., civil wrong) of “misappropriation of personality.” To make the claim, the plaintiff (the musician) must demonstrate two things: (a) that the plaintiff has a distinct personality in the public eye, and (b) that the defendant has wrongfully to used the plaintiff’s personality for commercial gain.

The application of this tort to this case is not clear-cut. On one hand, there is definitely a commercial component in using the photograph of the musician. On the other hand, it is questionable whether the plaintiff has a distinct personality in Canada, and whether the use is wrongful.

Besides the above-mentioned remedy, I suggest an that it is a possible tort in using one’s photograph for commercial gain without permission. Among other private information, such as your home address and telephone number, you should be able to control who has access to it and who does not. Some provinces enacted privacy legislation to address this issue.

Tagged , , , , ,

Costs

Posted in: "All, Legalese Dictionary by Admin | No Comments Thursday, July 17, 2008

When I was still a student, I once heard a lawyer say this about costs in the Superior Court: “To bring a motion is like buying a car: it may be a junk car or a nice car, but you are buying a car. To do a trial is like buying a house: it may be a small house or a big house, but you are buying a house.”

Now that I am in private practice, I can’t agree with the saying more. A typical (opposed) motion in the Superior Court typically costs between $10,000 to $30,000; a full-blown trial may cost a few hundred thousand dollars or even millions.

However, you can’t exclusively blame the lawyers for their high rates. In Ontario, unlike the U.S., we have what is called a “cost-shifting system,” meaning that the losing parties, besides footing their own bill, must pay the costs of the winning parties.

There are two types of “costs” that are payable by the losing parties. The usual one is called “partial indemnity,” or “party-to-party cost,” meaning the amount payable to the winning party is about 2/3 of the actual legal bill. Partial indemnity are frequently granted when  no other consideration, such as improper conduct, is involved.

The second, rarer, type of costs payable is called “substantial indemnity,” or “solicitor-client cost,” where the amount payable is close to the actual amount that has been charged to the winning party. This type of costs is generally granted when there are evidence of improper conducts by the losing party.

Besides the two types of costs mentioned above, the judge may also fix the amount of the costs payable. When doing so, the judge generally considers the complexity of the proceeding, the behaviour of the parties, and whether the bills submitted are of reasonable amounts. Occasionally, the judge may order that there are no costs payable if the circumstances warrant.

The fairness of our cost-shifting system is debatable. On the one hand, cost-shifting serves as a deterrent against frivolous claims, since the losing parties are penalized by having to bear the costs of the winning parties. On the other hand, cost-shifting becomes an obstacle for individuals with modest means who wish to bring their claims forward because they fear the possible cost consequences. Which argument should prevail? Your answer, of course, may depend on whether you are the winning or the losing party.

Tagged ,

Legal Aid Demystified

Posted in: "All by Admin | No Comments Monday, July 14, 2008

Today I want to talk about some common myths about Legal Aid Ontario (LAO).

Myth #1: I have to be on welfare to receive legal aid.

Truth:

You do not need to be on welfare to receive legal aid. LAO determines financial eligibility for legal aid funding, and whether a contribution plan is required. Generally, individuals with modest means are qualified for legal aid assistance.

Myth #2: Legal Aid cases are taken by lawyers of the Office of Public Defenders who are on government salaries.

Truth:

In Ontario, we do not utilize the Public Defender system as they do in the United States. LAO provides qualified clients with certificates. The clients then choose their own preferred lawyers, in a fashion much like our universal health care system in Canada. Although not all lawyers accept legal aid certificates, most lawyers do.

Once the lawyer accepts the legal aid certificate, the lawyer bills legal aid at the prescribed rate, just as he or she would in a privately retained matter.

There are a few law offices that are directly funded by Legal Aid Ontario. The staff lawyers, while not “public defenders,” are LAO employees.

Regarding court-appointed lawyers, they are not generally employed by LAO, but are retained on a certificate as mentioned above.

Myth #3: Legal Aid cases receive less attention from lawyers.

Truth:

Lawyers in Ontario have professional responsibilities to conduct themselves in a competent manner. Lawyers, for the most part, do their best whether the case is privately retained, legal aid assisted, or done on a pro bono basis (undertaken without charge).

In fact, many lawyers take pride in serving legal aid clients as a means to give back to the community.

Myth #4: Only less competent lawyer takes on legal aid cases.

Truth:

LAO imposes high standards on the lawyers who take on legal aid cases.

A newly-called lawyer is not automatically qualified to accept legal aid cases. Rather, a new lawyer must demonstrate that he or she has adequate training and experience to provide competent services to legal aid clients. He or she must also meet certain criteria prescribed by LAO before he or she is allowed to take on legal aid assisted cases.

Tagged ,

Secondary Infringement

Posted in: "All, Copyright and Trademarks by Admin | No Comments Saturday, July 12, 2008

“Secondary infringement,” in copyright law, refers to where the defendant has not personally infringed copyright, but is still nonetheless deemed to have infringed. Section 27.1 of the Copyright Act deals with secondary infringement.

A person is deemed to have infringed copyright under one of the four circumstances. He or she

(1) sells or rents out an infringing copy of the protected work (e.g. selling or renting out a pirated DVD),

(2) distributes the material so widely that it prejudices the copyright owner’s right (e.g. putting copyright-protected MP3s on a website for people to download),

(3) displays the infringed materials in public (e.g. showing a movie without proper licence),

(4) imports for sale or for rent materials that would infringe copyright if they were made in Canada (e.g. importing goods that are not authorized to be copied in Canada).

Readers should note that generally it is an infringement to perform any copyright-protected work in public. Therefore, any kind of public display of copyright-protected material without the copyright owner’s consent is generally a bad idea.

In fact, performance for private profit purposes of any copyright-protected materials is a criminal offence under the act, for which a person may be fined or imprisoned or both.

*This article is for information only, and is NOT LEGAL ADVICE. Readers must consult a properly licensed lawyer for legal advice.

Tagged , ,

A Note on Domestic Contracts

Posted in: "All, Family Law by Admin | No Comments Friday, July 11, 2008

Note: This is NOT LEGAL ADVICE.

Historically, domestic contracts were not enforceable in common law because these contracts generally lack what’s called “consideration,” or an exchange of valuables for the agreement.

In modern times, domestic contracts are recognized as a result of family law legislation. However, there are a few requirements and exceptions. The following are some examples:

  • The contract must be in writing.
  • The contract is subject to the best interests of the children. Child support takes priority over spousal support.
  • Matrimonial homes cannot be excluded from equalization.
  • Clauses requiring chastity are not enforceable.
  • Bars to remarriage are not allowed.
  • Breach of promise of marriage is not actionable.
Tagged , , , , ,

Contract Red Flags

Posted in: "All by Admin | No Comments Thursday, July 10, 2008

Today I want to talk about certain red flags that should alert you when signing a contract. If you encounter one of the following scenarios, you should seriously consider obtaining legal advice from a properly licensed lawyer in your jurisdiction.

  • The other party is a foreign resident.

Implication:

There are several risks when dealing with foreign residents.

First, the individuals in question may not have any assets in Ontario, making them judgment-proof in Ontario. Enforcement of an Ontario judgment in a foreign jurisdiction may be difficult in law or prohibitively expensive in cost.

Second, if you decide to sue in another jurisdiction, e.g., the  defendant’s home court, there are numerous considerations that must be taken into account, including costs and the choice of law. Private international law rules may prevent your chosen court from taking jurisdiction.

  • You negotiated with an individual, but the name on the contract is a numbered corporation.

Implication:

Be aware that a corporation can be used as shell to shield the defendant’s liability. A corporation is separate and distinct from an individual in law; generally the individual who signed the contract cannot be held responsible for the corporation’s contractual liabilities.

When the contract goes sour, you will likely discover that the corporation does not have any assets and is effectively judgment-proof.

  • Lucrative returns on your investment, or too good a deal to pass on.

Implication:

Lucrative returns themselves may be illegal, or fruits of illegal activities. Many seemingly innocent transactions may be illegal because the interest rates exceeded the legal limit. Transactions that are fruits of criminal activities may be subject to seizure under proceeds-of-crime legislations.

There you have it. If you think something is not right about the contract, talk to a lawyer before you agree to anything. It’s better to be safe than sorry.

What Is Moral Right?

Posted in: "All, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Wednesday, July 9, 2008

Moral right is the author’s personal right relating to the protected work, independent from the copyright, regardless of any assignment of copyright.

Think of moral right as a parallel right to the copyright, because both moral right and copyright arise out of the authorship of protected works.

Moral right cannot be assigned, but can be waived.

In summary, moral right encompasses the following rights:

(1) Paternity Right: The author has the right to be associated with the work. The author has the right to be named, be named under a pseudonym, or remain anonymous.

For instance, for works done during employment, the employer would be the first owner of the copyright, but the author employee would nonetheless be entitled to be properly credited as the author.

(2) Integrity Right: The author has the right to the work’s integrity.

For instance, a sculptor has the right to restrain the exhibitor from mutilating the work.

(3) Association Right: The author has the right to restrict association of the work with something else.

For instance, a painter may restrain the owner of the painting from associating the painting with businesses that may harm the painter’s reputation.

Under the much-blogged Bill C-61, the Parliament is considering granting moral rights to performers, which are essentially the same as an author’s moral rights.

“Can I Have My Money Back?” – A Common Myth

Posted in: "All by Admin | No Comments Tuesday, July 8, 2008

When you return from the store having bought something that aren’t happy with, the first thing that comes to mind is probably “to get my money back.” Granting that this request is a common practice among retailers , but it is not required by law.

Commercial transactions are governed by the law of contracts. When a contract doesn’t work out, the law doesn’t guarantee your money back. This is another area of law known as “restitution.” Contract law, however, follows what is called the “expectancy rule.” In essence, when a contract doesn’t work out, because it is breached or otherwise frustrated, the parties should end up in a position as if the contract has been carried out.

If that’s the law, then why do retailers give buyers their money back? Actually, there are several ways to get your money back under the law of contracts.

  1. When the “money back” policy is embedded in the original transaction-contract, then it becomes part of the agreement. When the contract doesn’t work out, the contract itself would mandate a refund to the buyder and the return of the goods to the seller. A receipt stating a return or exchange policy will suffice.
  2. If the contract itself does not have a clause on return or exchange, the parties can agree to rescind a contract. In theory, when this happens, the parties are actually forming another contract to rescind the old one. However, most people think of it as unwinding the contract, and nothing more.
Tagged

An Overview of Intellectual Proterty Laws

Posted in: "All, Copyright and Trademarks by Admin | No Comments Sunday, July 6, 2008

Today I wish to briefly explain some common intellectual property laws, what they do, and how long the protection lasts. *This article is for educational purposes only, and IS NOT LEGAL ADVICE.

Copyright

Copyright is the right to copy and reproduce any protected original work.

The duration is generally the author’s life plus 50 years.

Trade-mark

Trade-marks distinguish the goods or services of one trader from those of another.

There is no specified duration for trade-marks. In theory they can last indefinitely, provided that they are continually in use.

Patent

Patent is a state-granted right to monopolize a new invention. Registration is required.

The duration is 20 years.

Trade Secret

Trade secrets are the confidential business or technical information that must be kept in secrete.

The duration is indefinite, provided that the information is kept confidential.

Industrial Design

Industrial design protects the shape, pattern or ornamentation of an object or article that is mass-produced. Registration is required.

The duration is 10 years.

Integrated Circuit Topography

ICT protects semi-conductor chip designs. Registration is required.

The duration is 10 years.

There you have it! Now you know what people are talking about at cocktail parties.

Tagged , , , , ,

Special Treatment to Copyright of Photographic Works: To Be Repealed

Posted in: "All, Copyright and Trademarks by Admin | No Comments Friday, July 4, 2008

This posting is for educational purposes only, and is NOT LEGAL ADVICE.

In the previous blog (June 28, 2007) I wrote about copyright reform under Bill C-61, through which certain special treatments of photographic works will be repealed. The bill is currently in its second reading. However, because  Parliament has broken off for the summer, the new bill is unlikely to become law before the end of the year. I wish to take this opportunity to talk about these anomalies before they are officially repealed.

Generally speaking, the author of a work in question is the first owner. However, under s. 10 of the current Copyright Act, the owner of the initial negative plate is deemed to be the author. Where no negative plate exists (as with a digital camera), the owner of the initial photograph is deemed the author. For example, if you ask a stranger to take a picture of you with your camera, you will own the copyright of that photo.

Further, under s. 13(2), where a photograph has been “ordered by some other person” who pays for the photograph, in absence of a contrary agreement, the person who ordered the photograph is deemed to be the first owner. In plain English, the commissioner of a commissioned photograph, and not the photographer, owns the copyright.

The two clauses above are to be repealed under Bill C-61 for good reasons.

(1) The photographs of you taken by strangers are generally of very little commercial value. Generally these pictures are for your private review only; therefore, the likelihood of a dispute that warrants legal action is minimal.

(2) Sometimes it is difficult to say whether a photograph is “commissioned” or not. This adds uncertainty and costs to commercial transactions.

Generally, yearbook photos, graduation photographs taken at the end of a school year are not considered “commissioned,” and therefore are not applicable under this clause. The same goes for family portraits taken at a photographer’s studio, passport photos, and ID photos. The copyright of these photos belong to the photographer.

On the other hand, where a photographer was retained to take photographs for an event, e.g. a wedding, and the photographer has duly invoiced  the fees and the cost of the film, then the person who paid for the invoice would qualifies as  the first owner.

In my opinion, photographs, whether commissioned or not, are the product of the photographer’s skills and judgment. The photographer should be duly rewarded for his or her work, and therefore protected under the copyright law. If a person wishes to obtain the copyright in the photograph, the person must duly compensate the photographer, rather than rely on a statutory exception.

Tagged
Page 2 of 3123