Strange you say? Well, according to the domain owner, jackass.com was not always destined for this future. At first, the site was to offer adult entertainment but then apparently the company’s business model changed and��that plan was��later abandoned. Although the company has been using it for pay-per-click ads for six years now, the company attests that this is only temporary. In fact, this group still has big dreams, wishing to convert its site into a website for donkeys, and their contributions to society. Seemingly, plans are underway��and Future Media included a few pages of

According to the UDRP (Uniform Domain Name Dispute Resolution Policy), the complainant in such a case must satisfy a 3-part test to get the domain. First, they must show that the domain was identical or confusingly similar to a trademark��in which the complainant has rights. For Viacom, this was easy enough as jackass.com is blatantly similar and confusing with 'Jackass' the name of Viacom's��television show. The WIPO appointed panelist agreed with Viacom on this portion of the test. Secondly, the complainant has to demonstrate that the respondent did not have any legitimate interests with respect to the disputed name. This is where the panelist felt that Viacom fell short. Finally, (although not necessary here because they failed on the second step), the complainant must also show that the disputed name was registered and used in bad faith. Here again, Viacom was at a loss as Future Media made no attempt to sell the domain.����

So the question remains,��should Viacom��have the rights to jackass.com, even though��jackass is a generic term for a donkey?�� Specifically, should a trade-mark holder be able to take away any domain name that happens to use their trade-mark? In another cybersquatting dispute,����despite the fact that the contested domain name was actively being used and that she named herself after a term that has long been part of the public realm.��So why was Viacom not successful in this case when it was so blatant that cybersquatting was what was going on?

The answer seems to be because of the test itself. It does not seem prepared for changes in internet practice. Firstly, it places a heavy burden on the complainant even in situations where it is obvious that cybersquatting is what has occurred. In the case above, Viacom was placed in a position to need��to prove that Future Media Architects (the respondents) had no legitimate interests with respect to the disputed name even when it is so very obvious that they didn’t. Even the WIPO panelist was not satisfied by all aspects of the respondent’s case and criticized the respondent for offering no explanation as to why it had taken so long to launch��a donkey-themed website.�� The respondent also made absolutely no effort to explain why it suddenly wished to operate a website promoting donkeys and what benefit (if any) it would receive from pursuing this.

Secondly, it seems this test is geared to catch the traditional cybersquatter, and not the more legal minded or modern one. It seems that this is what occurred in the case above for the ruling doesn't take into account the many benefits for a cybersquatter that does��not attempt to sell the domain. First off, they are able to benefit from the application of the test, for not attempting to sell the domain weighs in their favour.��They are less easily labelled as registering and using the domain name in bad faith��under step 3. In addition to this, they are able to reap benefits and income from users who get confused by the very similar trademark and website. If they have gone so far as to use the site for pay-per-click ads, they are able to generate income from this alone.

Although it seems that the result in Viacom is an anomaly, as many others have been successful in stopping their respective cybersquatters, I can't help but wonder if this bad result is one too many. At the very least, this case provides us with a nice example of��the need for law to keep up with changes in internet practice, and to possibly shed some of its inherent retroactive character.

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The debate started when two Torontonian art dealers (collectively called the Canadian Art Group), registered as their trademarks the names of a famous group of Toronto painters from the 1950’s; Painters 11 & Painters Eleven.��Since registration the��Canadian Art Group��threatened to sue what they deem "any illegal commercial activity" associated with the trademarks. In fact, Canadian Art group tried to assert their rights in two separate instances. Ironically, they went so far as to send an to Iris Nowell, (the artist generally acknowledged as having named the group), that her preparations for a book, Painters Eleven: The Wild Ones of Canadian Art were��in "express violation" of their trademarks.

This case raised two key issues pertinent to any debate on trademark law. First, is Painters Eleven a descriptive term as per s.12(1)(b) of the Trademark Act, and secondly, if so, has the Canadian Art group been able to overcome its descriptiveness enough to take advantage of the exception in s.12(2) of the Act?

According to s.12(1)(b) of the Trademark Act, a trademark is registrable if it is not clearly descriptive. Those opposing its registration argued that it (Painters Eleven), is a descriptive, non-proprietary term like for example, the Impressionists, and hence that it belongs in the public domain. The Canadian Art group disagreed, and as evidence, they stated that “if you were to go out on the sidewalk in front of the Globe and Mail and stop 100 people and ask who the Painters 11 are, it is likely that you would not get one person that will tell you.” This argument is erroneous since it is not any 100 people that matter for trademark law, but those who are familiar to the domain that the trademark is operating in. For example, in����where the Federal Court was evaluating the registrability of bananaorange (a phonetic equivalent of banana and orange), the court found that whether a mark is not registrable under s.12(1)(b) must be evaluated according to the first impression of the perspective everyday consumer of fruit juice. Therefore,��this means that we must use the relevant consumer in the relevant segment of trade where the trademark applies.

Secondly, according to s.12(2), a trademark can be registrable if it has been so used in Canada by the applicant or his predecessor in title so as to have become distinctive at the date of filing an application for its registration. The Canadian Art group argued that a lot of interest in the Painters Eleven artists and their history was lost after the association disbanded, and that over the years it was they who spent the money and resources to get the name out there by developing websites, and marketing the work. They argued that their trademark was necessary to protect their work and effort. However, they did not establish that this descriptive word had attracted a secondary meaning unique to their enterprise, nor were they able to prove that consumers (or rather those in the art field), were able to recognize the mark for their contribution as opposed to its original meaning. This is where the argument that the Canadian Art group simply appropriated the term comes from.��

A valid registration gives the owner of the trademark registration the exclusive right to the use throughout Canada of the trademark in respect of those wares or services. In addition, this right is . From this we are able to see just how much was at stake here, and how the registered holder is given a great deal of power in relation to the mark. So although this was an issue in the art world, it had a scope much larger in that it affected in a significant way more than just the parties concerned.��

At an abstract level, we must ask ourselves whether we want to provide incentive for other potential right holders to ‘appropriate’ culturally significant words as theirs. At first, I was concerned that in some way, incentive had already been given for this via the initial registration, but now can rest assured by the expunging that what belongs to the public domain might just stay there.

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Therefore, in the hopes of bringing attention to the other side of the debate, it is important to note��just a few of the myriad assumptions, especially in the context of internet scraping, �ٳ󲹳�����������operate unfairly to the disadvantage of the content rights holders.

Assumption #1 - Just because there are attribution and linking requirements, users will abide by them

Although many users do abide by the requirements, to attribute and link back to sources as required, many don’t. There are many users who make use of articles without giving any credit or link to the original source. Then there are users that pay homage to the “original source” but that do so improperly. When arguing that Fair Dealing in the��for the scraping of content��should be welcomed, we should not neglect to pay attention to those that do not satisfy the requirements of this defence.

Assumption #2 - Amount of Dealing

On account of there being no specified quantitative limit in law as to what may be fairly used, users have come up with a variety of ways to justify what is used. A prevalent assumption often relates to quantity. However, it is the quality and not the quantity that is determinative in the analysis, and case law has long established this. Although not on the internet medium, in Hawkes & son v. Paramount Film service Ltd., infringement was found even though the defendants only used a 20 second clip of the��plaintiff's song, as what was reproduced was deemed what anyone would recognize as a portion of the original sound.

Assumption #3 - Increased Exposure

Some argue that scraping actually opens up the “original sources” to other readers who would not have��found them in the first place had they not followed a link from the blog/site doing the quoting. First, it is impossible to know how true this is and whether it ever overrides the amount of users who do not link back to the “original sources.” It also fails to take into account . This is problematic, for when it occurs, it is the secondary source and not the original that is receiving the increased exposure.

Policy Reasons

As one enthusiastic blogger pointed out, . On account of this, we need to find a way to marry��these two entities; the user and the creator of the��original work so that they work in tandem and not against each other.

Unveiling some of these assumptions demonstrate that fair dealing is not so easy even though it is clearly set out in the copyright act and has been established by case law. In addition, they remind us that the Fair dealing defence was meant to strike a balance between users and authors/creators and not to err on either side too heavily. Information is most powerful when it is shared therefore a liberal attitude towards Fair dealing should be embraced. However, in our plight towards promoting this liberal attitude towards sharing information, we should still remain ever mindful to the original source of content��and as such, remember the rights holder.

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The Haka Ka Mate is a traditional dance that was composed by the Te Rauparaha of Ngati Toa to . However, it is now most famously used by New Zealand’s rugby team, The All Blacks. The Ngati Toa is looking for two outcomes: recognition of ownership, and the right to get legal protection and compensation from it. The first issue has more or less been resolved as the government has agreed to negotiate with Ngati Toa on how to protect the Haka.��The second outcome is more problematic,��as any copyright that the Ngati Toa would have, has long expired. The Ngati Toa would need the government to change the law.��Special legislation would be needed to bring copyright back.

This situation raises two main questions; whether dance moves should be protected under copyright law, and secondly, whether Intellectual Property Law as it now stands, should ever be applied to the rights of Indigenous peoples.

Copyright & Dance

Since dance moves are protected under copyright law it means that an individual can Two fairly recent U.S. cases shed light on the dangers associated with copyrighting dance.��

In the , Martha Graham, often attributed as being the founder of modern dance, died and left her estate to a friend. The legal battle arose when the friend then claimed that he owned copyright to 70 of Ms. Graham’s dances threatening to prevent the Martha Graham dance company from performing those works. The judge held that the majority of the dances belonged to the Center due to the works being deemed works-for-hire. Had the judge ruled in favour of Ms. Graham’s friend, there is the possibility that he could have decided to withhold performance rights from the company. This would have been fatal for the dances, for the primary method by which dances are preserved is via performance.��

More recently, there has been litigation involving the "electric slide" choreographed by dancer Ric Silver in 1976. Although this case was settled, with Silver agreeing to drop any claims of infringement and to place whatever copyright interest he had in the dance under a ), again had the outcome been different, it could have had a stifling effect.

Affording protection to the authors of dance moves always carries with it the dangers highlighted above. Should such protection be afforded to them? It is arguable that it shouldn't. Firstly, the��primary method of preserving dance is via performance, therefore giving copyright to the authors of dance provides no security that these beneficiaries of copyright protection will allow the dance to be learned by others. Secondly,��dancing has a strong public element to it, unlike other copyrightable works in that it needs to be shared in order to continue existing, and perhaps should be differentiated in this regard.

In full, although intellectual property has been a blessing to most, we should still always ask the important question of whether in the case at hand, it provides the best fit.

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A recent ruling by the European Court of Human Rights (ECHR) provides an example of the difficulty of discerning the boundaries of this right.������The court ruled that simply the taking of the photo without the parent’s consent was a violation of the baby’s right to privacy even though the photograph was never published. In his ruling the judge made the following remarks:

the concept of a private life is a broad one encompassing the right to identity - he stressed that a person’s image revealed his/her unique characteristics & constituted one of the chief attributes of his/her personality

the effective protection of the right to control one’s image presupposed in the present case obtaining the consent of the person concerned when the picture was being taken and not when it came to possible publication

the action of taking the photo breached the child’s right to a private life as guaranteed by Article 8 of the European Convention on Human Rights, and that the Greek court failed to uphold that right

At first glance, this ruling may seem arbitrary especially because the photograph was never published, but what is underlying this decision is an implicit contextual balancing. In the recent , (where she won a case over a photo of her infant son), the judge wrote that the question of whether there is a reasonable expectation of privacy is a broad one which takes account of all the circumstances of the case. This means that each case will be context specific. The factors listed included consideration of the attributes of the claimant, nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, effect on the claimant and finally the circumstances in which the purposes for which the information came into the hands of the publisher.��

Other cases involving photographing/filming someone on the street demonstrate that this balancing act is not always so easy. For example, in a recent case, . Later she discovered that the Croatian TV station had featured her in a documentary about obesity. She was quoted as saying “I was absolutely staggered when I turned on the TV to see myself in a film about fat people", and "I want to show that attacks on human dignity like this cannot be tolerated". Unfortunate incidences like this must still be subjected to a balancing exercise for as stated above, an individual’s privacy right is not unlimited. Here the main question was, whether this footage can be said to constitute personal data in the hands of the media. On one hand, one could argue that she was clearly identifiable because she could recognize herself on TV and therefore that this was personal data. One could also argue that because the nature and purpose of the intrusion was offensive and dealt with a very personal attribute of her physical self, it was personal footage.��On the other hand, the fact that this intrusion occurred in a public place could mitigate against a finding of a violation of privacy rights. In addition, it could also just as easily be argued that she was not identifiable in the sense that, although she could be recognized, .��

Another example of privacy rights being asserted in the public domain involves the case of . In holding that her human rights had being infringed, The House of Lords admitted��that if the photographer had merely caught her going "out to the shops for a bottle of milk" she would not have had a claim. It acknowledged that readers would be interested in how Campbell may look when doing something so ordinary.

These cases are more difficult because they often occur in the public domain, where the complainant arguably has a decreased expectation of privacy. In each case, a court must conduct a contextual balancing act because no two cases are the same. Specifically, it is the myriad of factors that makes this balancing difficult for it has long been established and understood that our right to privacy is not absolute. For example, we know that it is not possible to stand in Times Square in New 91��ɫ City and not be accidentally photographed. This is a limit. Furthermore, it would never be desirable to allow an assertion of privacy rights against such incidental exposure��for the public as a whole has an interest in this freedom, and one individual’s privacy rights should not trump it.

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Illegal Content - Although the internet increases the availability of harmful, problematic and illegal content, it does not necessarily increase minors’ exposure. Although unwanted exposure does occur online, those most likely to be exposed are those seeking it out. In addition, as minors get older, they themselves contribute to some of these problems.��

Risk - Minors are not equally at risk online. ��The risk depends on the common uses of social media by minors and the psychological makeup of minors who use them. Therefore, the most at risk are those that engage in risky behaviour, and already have difficulties in other parts of their lives. A��provides an example of this, in that by lying about her age, she put herself at risk.

Social Networking Sites -�� Surprisingly social networking sites are not the most common space for solicitation and unwanted exposure to problematic content, but are frequently used in peer-to-peer harassment, most likely because they are broadly adopted by minors and are used primarily to reinforce pre-existing social relations.��The recent is an example of this. What occurred was a result of a pre-existing bullying situation and the use made of MySpace was simply a continuation of it. MySpace did not create the situation, but was rather used as a means to propagate it.

Finally, the Report highlights the need for collaborative effort and that protecting minors is not just one stakeholder’s responsibility. This is reasonable. For even when one stakeholder (say MySpace) has safeguards in place, it is still not enough. The Drew case demonstrates this as MySpace’s efforts to prevent internet abuse was futile. Lori Drew acted in violation of the MySpace guidelines, registering herself as a member to obtain a fictitious account. This was done despite the fact that MySpace required

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There are two principal international conventions protecting copyright; the Universal Copyright Convention and the Berne Convention. Both Bangladesh and India are parties to the latter. Where the Berne Convention standards apply, copyright is automatic, existing as soon as the work is created and applying in all countries party to the Convention. The protection must include .��Works of architecture are included in the list of protected works.�� There are also a series of rights that it recognizes, for example the right to make reproductions in any manner and form. However, these exclusive rights are not unlimited. They are only given for a specific period of time after which they are said to enter the public domain, and under the Berne Convention, the general rule is author’s life plus fifty years. From this we see that any copyright term of protection for the Taj has long expired.

Even though the replica is legally permissible, should it be allowed? The Taj is not just a building. It was built by Mogul Emperor Shah Jahan not only as a symbol for the love of his wife, but as her tomb. In addition, despite being one of India’s most prized possessions it also has been considered a site that is in the interest of the international community to preserve. In 1983, it gained the .��

We should also be mindful that this recent dispute over the duplication of the Taj is just one example of copying. New 91��ɫ City’s very own Times Square, although not a building, .��However there are many renditions of it in other countries. Another example would be the Tokyo tower, built in 1958 and intended to be an Eiffel Tower-like structure, although perhaps functionally different. So, what exactly constitutes copying, and where exactly do we draw the line? Does functionality change things? Or does just pure imitation qualify? In this case, Bangladesh is to have an actual full size replica of the Taj Mahal, and as mentioned above, it will also have the very same granite, marble, and diamonds. This seems to be full fledged copying��that threatens originality and undermines the existence of a country’s cultural heritage. Copying is not always the sincerest form of flattery, especially when it is definitely not flattering. And although it is , the Taj Mahal is not an identical replica.

Although significant terms of protection are afforded by copyright law, it seems this is insufficient for historic and culturally significant sites like the Taj. Perhaps everything subject to copyright law should not eventually become fair game. Copyright is meant to encourage the dissemination of ideas, as well as promote the creation of more.��Placing restrictions on the��entry of sites like the Taj into the public domain might further this purpose by��encouraging the creation of new ideas, and equally formidable, yet different works of art generating more wonders of the world.

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The parties however, still disagree as to the legality of the issue. The defendant Liberals argue that there was no legal issue with using the name because their party is not a commercial entity and the name, “Green Shift” describes an environmental policy. In addition, they argue that “Green Shift” has become synonymous with bold environmental policy throughout the world. The Plaintiff company begs to differ, arguing that the fact the Liberal party caused confusion contrary to trademark law is enough to warrant legal action.

This leads to the question of whether confusion is enough. The act does afford��protection to those who are victims of trademark confusion. Section 7(b) of the act explicitly provides a prohibition against this. A strict application of the act would support the Plaintiffʼs position that confusion is enough, but as the defendants point out it seems that there is more to the story.

There are three key issues at stake here. First, there is the issue of whether the��defendants should be prohibited usage of “Green Shift” even though they are a non- commercial entity and as such, do not offer any services. The act is meant to protect the confusion between services, and so what happens in a situation such as this, where some of the purposes the act is meant to protect are nonexistent?

Secondly, confusion must still be subjected to the legislative test set out in s. 6(5), the primary factor being whether there is inherent distinctiveness in the trademarked name, but where is the distinctiveness if Liberals are correct and “Green Shift” has become synonymous with bold environmental policy? And since the Plaintiff company was only trademarked in 2003, is it truly realistic that a�� “Green shift” ideology was not in existence before then?

Finally, what should we do when an idea becomes so common that it transcends into our everyday language, but at the same time is trademarked?�� A possible solution would be to give rights to the trademark holder as per a strict application of the act. It seems however, that there is something more at stake. The act provides a living example of the tension that is existent between two primary stakeholders; the user and the trademark holder. Giving rights to the latter is definitely taking something away from the former. This case is demonstrative of the all together too usual case in which that which is part��of our everyday language is taken away via trademark. I am left wondering whether this is the solution that we wanted, and why are we being forced to license that which is rightfully ours.����

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