As Canada’s national broadcaster, every aspect of the CBC’s business involves intellectual property law. The CBC produces and acquires news, sports, comedy, drama, entertainment and reality programming for radio, television and online platforms in every corner of the country and in both official languages. Award winning investigative programs like The Fifth Estate, news greats like Peter Mansbridge, the political satire and comedy of This Hour Has 22 Minutes and The Rick Mercer Report, and the arts and culture programming of George Stroumboulopoulos and Jian Ghomeshi all call the CBC home. The CBC’s content is as broad and diverse as the country it serves.  

My experiences at the CBC proved to be just as varied. Over the ten-week internship period, I received assignments from lawyers in both the business and media law groups. The work focused on legal research, document review, and drafting on matters related to copyright and trademark licensing and infringement, fair dealing, moral rights and incidental use. I was also reminded that legal issues, especially in the in-house context, don’t confine themselves to the subject headings that show up on a course timetable. Accordingly, the work also touched on contract law, commercial law, procurement, corporate law, trusts, competition law, privacy law, evidence, civil procedure, defamation, and publication bans. These issues were made all the more interesting from CBC’s position as a Crown corporation created by the . The projects I was involved in varied in size as well, from small standard service agreements to the International Olympic Committee Media Rights Agreement designating CBC as the Official Canadian Broadcaster of the Sochi 2014 Olympic Winter Games.

I had the opportunity to participate in meetings with the full legal department teleconferencing in from three locations (Toronto, Ottawa and Montreal) while brushing up on my language skills as the conversation volleyed back and forth between French and English. I sat in on lawyers’ exchanges with executives, producers, journalists, and external counsel. I witnessed how stories are vetted for broadcast and publication, and attended live radio and television tapings. All these experiences provided me with a strong understanding of how a legal department operates within a large organization and facilitates its many activities.

I expected to come away from this experience with more practical legal knowledge (as well as the ability to correctly spell Stroumboulopoulos and Ghomeshi). Even more than that though, I gained an understanding of the importance that non-legal considerations have on legal practice. I saw first-hand that legal research isn’t useful unless it can be conveyed to non-lawyers who are making decisions on a daily basis. Furthermore, I learned that legal advice isn’t helpful unless it takes into account practical realities, business and public relations considerations, and the ethical, journalistic and community standards relevant to the situation at hand. Lastly, I realized that the law can act as a tool to facilitate the kind of risk-taking that is celebrated in journalism and in the arts, not merely to discourage it.

The opportunity to understand these concepts and observe the ways in which they are carried out on a daily basis was an invaluable experience that I couldn’t have received in the classroom. The ability to gain those insights in the context of an organization that defines as much as it reflects our country, surrounded by individuals with an obvious passion for what they do was so much more than I could have asked for. The occasional run in with David Suzuki or Ron McLean didn’t hurt either. My semester at the CBC has been an inspiring and exciting highlight of my time at Osgoode.

Quinn Harris is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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This summer, two proceedings were commenced in New 91��ɫ and California against Warner/Chappell Music, which had to “Happy Birthday to You” in 1988 and collects over a million dollars annually in royalties for the use of the song. Just last month, U.S. District Judge George H. King let the case proceed in , dealing first with the issue of whether Warner/Chappell owns copyright in the song.

No doubt the plaintiffs have read the published by Robert Brauneis, professor of law at George Washington University Law School, contesting copyright in “Happy Birthday to You” through an extensive analysis of evidence spanning nearly 120 years. There is no contention that the melody of the song was authored and first published in 1894 by two sisters, Mildred and Patty Hill, both teachers who put together a collection called “Song Stories for the Kindergarten”. The melody of what is now known as “Happy Birthday to You” was published in this collection under the title and lyrics “Good Morning to You.” What is less clear is who first combined the melody of “Good Morning to You” with the “Happy Birthday” lyrics, authoring the song as we now know it. This combination of the melody and new lyrics constitutes a new derivative work, itself subject to U.S. copyright.

Brauneis’s study challenges the subsistence of copyright in “Happy Birthday to You” on two main grounds. First, the evidence to support the notion that Mildred and Patty Hill were the ones to combine their melody with the “Happy Birthday” lyrics is not sufficient to find that they are the authors of the derivative work, “Happy Birthday to You.” If they are not the authors of this new work, then the 1935 copyright registration on which Warner/Chappell bases its claim to ownership is unauthorized and invalid. Second, even if the song was properly registered in 1935, copyright would have expired 28 years later, unless it were validly renewed. Brauneis contends that the renewal filed in 1962 only covered a particular arrangement of the song, and not the music and lyrics themselves.

Copyright currently offers some of the broadest protection for intellectual property, much longer than the term for patents, and for a much broader range of works and activities than trade-mark law covers. It certainly seems absurd, , that you would need permission or a licence from Warner/Chappell “if you posted a video of your kid’s first birthday on the Web.” This absurdity was cited by Justice Breyer of the U.S. Supreme Court in his dissenting opinion in , the case that ruled the retroactive twenty-year extension of copyright protection in the United States to be constitutional.

What significance has this saga for Canadian copyright law? If Mildred and Patty Hill are the joint authors of “Happy Birthday to You,” copyright protection for the song – on the assumption that the combination of tune and lyrics would, as in the US, have a separate – would have expired in 1996, 50 years after the death of Patty Hill, the work’s last surviving author. Even if copyright subsisted, a YouTube video of little Larry’s first birthday would likely be permitted under the new exception for User Generated Content enacted in 2012 by the . In that year, the Supreme Court of Canada also made it clear that users have rights, and these rights must be broadly interpreted. Much of the recent discussion of user rights has focused on fair dealing and the other exceptions to infringement in the Copyright Act. “Happy Birthday to You” serves as a reminder that the term of copyright and its expiry are also integral to the maintenance of the balance in promoting the dissemination of creative work while generating incentives for creators. When copyright protection extends so far beyond the life of the author, who really stands to benefit from these incentives? Perhaps the author’s descendants, but more commonly, a corporate owner like Warner/Chappell, one of the largest music publishers in the world.

Nevertheless, if the convoluted history of this simple song can be unwound and Warner/Chappell’s claim to copyright in “Happy Birthday to You” is defeated, the movement to restrict the term of copyright will lose one of its best, and certainly its most popular, poster children.

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