Mr. Mitchell’s case began by alleging that the characters on the BBC’s hit TV series, ’ were copied from his own proposal of animated eco-rangers for children, the ‘Bounce Bunch’. The ‘striking similarities’ between the two sets of characters were enough to raise infringement, in the plaintiff’s opinion, especially since the characters had been made available online in some form since 2004, and most certainly since 2007. This raised the issue of access, and whether the BBC and (a design firm hired to co-create the Kerwhizz characters) could have had access to the Bounce Bunch online, and whether this could have led to copying— either consciously or subconsciously.

In denying any copying or infringement, the BBC, while admitting that there were certain similarities between the two sets of characters, also pointed out that they��were����to be considered copying. With respect to access, it produced a stream of witnesses— from the graphic designers involved at all stages, to the producer of the entire project— all of whom vehemently denied being influenced by Mr. Mitchell’s work, even going so far as to highlight that the former’s work wasn’t memorable enough to be remembered, let alone be copied from. The BBC’s positive defense rested primarily on proving, with the help of its witnesses, that all content produced for Kerwhizz was entirely independently created, with the similarities between Kerwhizz and the Bounce Bunch being nothing more than the commonalities that were a part of the ‘commercial and practical realities’ of the children’s cartoon industry in general.

Judge Birss considered the relevant sections of the : for whether the Bounce Bunch (as original artistic works)�� were copyrightable; for the copyrightability of graphic works; for the legal definition of infringement, and finally, to determine if what was allegedly copied by the BBC constituted a substantial part of Mr. Mitchell’s copyrighted work. The judge was also concerned that the plaintiff’s demand that the defendant show that there was ‘no possibility of access’ and that it “must be ‘categorically impossible’ for the defendant to have had an opportunity to copy” tried to raise the civil standard of the balance of probabilities too high. He preferred to compare the striking similarities between the two works ‘only ever [as a] matter for weighing up the evidence.’ Ultimately, Judge Birss found that the possibility that someone from the BBC ‘could have had access’ to the Bounce Bunch while creating the Kerwhizz project, along with certain similarities, , was enough to raise an inference of copying. This pushed the onus onto the BBC to prove independent creation.

After accepting the BBC’s evidence on the above as ‘fair and truthful’ so as to rule out conscious copying, the judge outlined three factors to determine subconscious copying had taken place. Considering the degree of familiarity, he pointed out that because he had accepted the BBC’s evidence on independent creation as true, it was always possible to demonstrate subconscious influence, thus showing the “slippery nature of the allegation of subconscious copying when combined with the reality of the web.” In considering the character of the work, Judge Birss found the Bounch Bunch to be unoriginal, with generic functional features for ease of animation, rather than anything unique that could have been remembered and copied. Finally, the judge considered a long list of objective similarities, including the much-debated ‘blonde quiff’ on one of the characters in both sets, to be nothing more than ‘mere coincidence,’ pointing to several popular cartoon and comic characters as possible sources of inspiration for the Kerwhizz figures.

While the judgment built on already established principles of copyright law, it seemed to have the paradoxical effect of failing to provide a clearer direction for future findings of subconscious copying. For now, it would seem, subconscious copying still remains at hand.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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Canadian telecommunications giant Research in Motion (RIM), which manufacturers the popular BlackBerry, has reportedly offered information and tools to assist India’s government in monitoring encrypted emails and messaging services ().����India, which had threatened to shut down the BlackBerry service, is the latest country to pursue access to user communications from RIM.�� Recently the governments of Saudi Arabia and the United Arab Emirates have also threatened to ban BlackBerry services unless RIM provides access to user data ().

The threat by foreign governments to ban BlackBerry services poses a serious danger to RIM.�� Competitors in North America continue to eat away at RIM’s once dominating grasp on the smart-phone market, and RIM wishes to expand in the global marketplace to further develop its customer base.�� The reported that during the last fiscal year, 37 per cent of RIM's $15 billion in revenue came from outside North America, up from 23 per cent about five years ago.�� The demand for security concessions from countries such as India may threaten to erode RIM’s customer base as smart-phone manufacturers Nokia and Apple have already lined up to move into this market.��

RIM, unlike rivals Nokia and Apple, controls its own networks, which handle encrypted messages through centres in Canada and the UK.�� Should BlackBerry service be restricted in India, Nokia and Apple would easily snatch up RIM’s market share. This is because Nokia and Apple rely on local telecommunications infrastructure to transmit their data allowing easy government oversight.�� As a result Nokia and Apple would not be subject to a similar ban, as proposed by the Indian government against RIM.��

India has suffered deadly attacks, by both home grown and foreign militants, with some regularity for years. Mohammed Ajmal Kasab, the lone surviving gunman in the 2008 Mumbai attack, told an Indian court that he and his comrades all had Nokia mobile phones ().�� India and other foreign governments are seeking access to encrypted Blackberry communication that could be used to coordinate national security threats.���� ��

In response, RIM has assured its customers ‘that it genuinely tries to be as cooperative as possible with governments in the spirit of supporting legal and national security requirements’ ().�� ��RIM stated that a foreign government’s access to BlackBerry communications should not be boundless, and ‘lawful’ access be limited by four principles.�� First, that access be restricted to the context of national security requirements as governed by the country's judicial oversight and rules of law.�� Second, government access to BlackBerry services should be no greater than regulators already impose on RIM’s competitors and other similar communications technology companies.�� Third, no changes will be made to the BlackBerry’s security architecture and finally that RIM will maintain a consistent global standard for lawful access requirements that does not include special deals for specific countries.

RIM and other companies will likely continue to work with foreign lawmakers in their respective countries to resolve national security concerns.�� However, in doing so RIM risks damaging an important aspect of its business, its reputation.

BlackBerry Messenger users have long enjoyed the secure end-to-end encryption methods used by RIM to scramble information sent from one RIM phone to another.�� However, as reported by the , RIM may have agreed to place a BlackBerry server inside Saudi Arabia and more recent reports indicate RIM may hand over the “codes” to all local BlackBerrys to the Saudi government.��Providing such information has drawn RIM into the ongoing debate of the morality and ethics of allowing foreign government access to communications that can be used to quell political dissent and imprison human rights advocates.�� The reported the comments of Ron Deibert, director of the Citizen Lab at the University of Toronto’s Munk School of Global Affairs: “These can be ruthless nasty regimes where political opposition or human rights advocates are imprisoned or worse. In colluding with them, [RIM is] assisting in that abrogation of human rights.”

Canada and the United States (U.S.) have aligned behind RIM against access to Blackberry communication, citing the need to defend consumer privacy and internet freedom ().�� The economic interests of Canada and U.S. are also at stake, which may have instigated the strong response by these countries against the proposed BlackBerry bans.�� Patrick Leblond, an expert on international economic integration and government-business relations at the University of Ottawa summarized Canada’s position “It is good business for the Canadian government to stand up for RIM, since this is one of the world's leading technological companies, and ‘what is good for RIM is good for Canada.’”������

RIM’s struggles with foreign governments to maintain its security systems and preserve its market share will likely expand to other forms of communication.�� Any concessions made by RIM may set a precedent for future negotiations between foreign governments and other communications companies.�� As reported by the , the Indian government is already considering a crackdown on Google and Skype to gain access to the information transmitted by these services. Moving forward, it will be interesting to observe the impact that RIM’s security negotiations will have on other communications based companies.

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From the :

Beijing authorities say they learned about the problem only this month. They have blamed greedy corporations and local officials for wrongly hiding the crisis. But there were early warnings that were muffled by censorship or lapses in Beijing.

A key problem was that warnings were simply ignored and withheld. Chinese citizens may have noticed a connection between sick children and specific dairy products as early as February. Local officials were alerted to the problem, but were either unwilling or unable to respond. One journalist claims he became aware of milk-related illnesses in July, but was not permitted to publish articles about it. With the Olympic games on the horizon, censorship edicts had become more and more restrictive to preserve “harmony”.

Even as the scandal finally surfaced, key information had been distorted. By September, the Chinese government finally acknowledged the scandal, and responded by firing and arresting several high-ranking officials. But the state’s official news agency quickly shifted towards praising the government’s response, despite months of neglect. So the truism goes, power corrupts. It's not hard to predict the effect of power over information.

Perhaps if the Chinese government's power over the media weren't an issue, journalists could offer a wider range of perspectives, let alone criticism. After all, uncensored bloggers were at the government's response. But even ignoring censorship of the media, let alone , there are still obstacles in terms of access to information. If the tainted milk was discovered sooner, the damage would have been limited. Since the problem took months to even understand, the damage was catastrophic.

Citizens had to experience the effects of contamination before they began the slow process of tracing the problem to its root cause, with limited resources and little help. This crisis was completely preventable. The Chinese government had the authority and resources to oversee the dairy industry, and could have detected the contamination promptly. But they chose not to:

China’s leading dairy companies — including the Sanlu Group, the worst offender in the scandal — were exempted from mandatory government inspections. In hindsight, inspections might not have mattered: in May, the government’s top food quality agency rated dairy companies among the safest producers in China’s food industry, reporting that 99 percent of them passed safety inspections for their infant milk formula. Now, the government says that 22 dairy companies, including export brands like Mengniu and Yili, have produced powdered baby formula that contains traces of melamine.

The obvious lesson is that an independent and free press is vital to inform the public of a growing catastrophe. But without independent and free access to information about practices that affect millions of people, more catastrophes are inevitable. After all, this was that contamination in China impacted the world.

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