Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In , the Federal Court of Canada invalided patents for interactive program guide (“IPG”) technology and clarified a reasonable royalty as the appropriate remedy had the patents been found valid and infringed.

Rovi supplies , and Videotron is a telecommunications corporation providing cable services and . IPGs are interactive menus that you may have used to select/search programming listings rather than viewing them on a paper guide.

Rovi’s revenue model is to license a portfolio for a rate without consideration for the number of patents. Videotron did not renew its license which expired in 2016. Videotron claimed they licensed to avoid litigation, and later realized that Rovi’s portfolio is obsolete. Notably, Rovi wanted to double the royalty rate and when Videotron asked Rovi to “.” Rovi did not provide an adequate answer.

Rovi that Videotron infringed four patents, which Videotron were invalid. Rovi’s patents were held due to obviousness and anticipated knowledge in consideration of prior art and knowledge of the skilled person. Rovi’s patents were secured in the 1990s, one of which claims a “”. ��The Court held that it was obvious to the industry that IPGs would be prominent in the future and that 1990s were “.” Therefore, or obvious extensions.

The Court’s for denying the remedy of accounting of profits is significant, as not much caselaw has clarified this equitable remedy. Videotron’s products are classified as “complex products” since the patented technology is a small part of the overall value of the product —- not analogous to a pharmaceutical product. With standard patent cases, patentees can be granted ‘accounting for profits’ as a remedy. The availability of such a remedy is questionable with non-standard cases. The for awarding an ‘accounting for profits’ ��are as follows:

First, the Court did not find undue delay by Rovi in pursuing litigation against Videotron.

However, upon examining Rovi’s conduct, the Court found that Rovi operated in bad faith — that Rovi was using “” and not disclosing the list of infringed patents to Videotron to prevent them from designing around them. The recognition of “hard-ball” as a characteristic of bad faith conduct is a novel interpretation of a traditional equitable ground.

Second, the judge recognized Rovi’s “” into royalty deals and took note of Rovi’s delay in prosecuting patents which results in the problem of “holdup”. Granting an accounting remedy in this case would set an undesirable precedent contrary to the purposes of IPR as it gives patentees leverage in negotiations where the royalty would reflect the .

Third, Rovi that Videotron wilfully infringed their patents, however, the judge concluded that Videotron refusing to renew their agreement was actually based on a “reasonable assessment of the necessity of the patents”.

As the court considered the fourth factor neutral, it moved on to an interesting analysis of the complexity of calculating an accounting of profits — that inventors are entitled to that portion of which is causally attributable to the invention. However, patentees seeking an accounting remedy must provide a sound and reliable way to calculate profits. Here, the Courts found that Rovi’s proposal for calculating Videotron’s profits complex and unreliable, said to be based on “” evidence. The court noted caselaw describing that “.”

Instead, the Court accepted Videotron’s proposal of the appropriate remedy as a “.” It was a safer approach to argue a reasonable royalty cap of $150,000 per feature based on design-around rather than arguing that the royalty was zero, since the non-infringing alternative is to remove the IPGs all together.

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Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Abigail Barlow and Emily Bear combined their talent with their love for the Netflix Original, Bridgerton, to create the 15-song “Unofficial Bridgerton Musical” album. Barlow and Bear went on to become viral sensations on social media and (2022 Best Musical Theatre Album) for their production.

On July 29^th 2022, Netflix the TikTok stars Barlow and Bear in the U.S. District Court in D.C. alleging in violation of 17 and . Netflix Barlow and Bear have benefited from their album’s false association with the Bridgerton brand. Netflix also the position that Barlow and Bear “” the elements of expression, dialogue, characters, and key plot points from Bridgerton.

Allegedly, in March 2021, when Barlow and Bear’s team asked Netflix for permission to record their album, Netflix the activity but said they wouldn’t “”. Per their , Netflix told Barlow and Bear that they would not authorize any live performances of the songs. Despite Netflix’s statements, in July 2022, Barlow and Bear held a sold-out show in New 91��ɫ with ticket prices ranging from $29-$149+. When hearing of the future live shows Barlow and Bear had planned, Netflix that would permit their shows, continued distribution of the album, and any further performances of the Bridgerton-inspired songs; but Barlow and Bear refused the licensing option.

Perhaps more important for Netflix is the promotion and success of their event “Queen’s Ball,” a Bridgerton held across multiple cities. Barlow and Bear’s live show would likely compete with the profits of the “Queen’s Ball.”

Barlow and Bear hold the position that their work is not liable for IP infringement because it is inherently “fan fiction.” Netflix has that “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” Jane Quinn, author of the books of which Bridgerton is based has a difference between flattery through composing songs on TikTok and performing an album for commercial gain.

Barlow and Bear may use the “fan fiction” defence to claim their work is not an infringement based on fair use by proving the elements of fair use: the art is to the original show. Additionally, fan fiction must be for the creator. considered for establishing fair use are the purpose of the work created, nature of the work copied, measure of the material copied, and the impact on the market.

Ironically enough, if this case was filed in Bridgerton home territory, the UK, Barlow and Bear may attempt to use the defence of parody and pastiche. Netflix would likely win their case had it went to court based on ��a very similar case earlier this . ��In the of v. Only Fools The Dining Experience, the court ruled in favour of the creators of the original show because the nature of the “dining experience” was not so removed from the original show “” with it. Similar to Netflix, Shazam had their own musical for which sales could have been diverted by their audience choosing the dining experience instead. The court also found that that the defences of parody and/or pastiche did not apply.

TikTok has proven since the pandemic its unique power to make music, books, and tv/film over-night sensations. The Netflix v. Barlow and Bear case illustrates that companies may have to navigate between having its work become a positive viral sensation ��while still protecting their business interests and the content that its ��team has worked so hard to create.

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Source: Screenshot of Night of the Living Dead (1968) opening credit / Public Domain

Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

��

Halloween season is just around the corner and who doesn’t love a good zombie movie? While many might rather shy away from frightening films, dedicated modern-day zombie enthusiasts live among us. The multi-billion-dollar zombie craze in horror today was popularized by George A. Romero’s Night of the Living Dead, an independent film released in 1968. The film curiously entered the public domain due to a slight error, allowing widespread accessibility and reproduction. The film made over , with the creators seeing little to no share of the profits. The release, paired with the copyright error, changed the horror movie genre and the independent film industry forever.

At the time of the film’s theatrical release, the US required notice to maintain enforceable federal copyright protection. The original distributor, The Walter Reade Organization (WRO) from Night of the Flesh Eaters to avoid confusion with the 1964 film . In doing so, WRO accidentally failed to add the copyright indicator (©) onto the prints. The symbol was not in the opening credits of the movie, the image above - that’s it. Imagine that! Without the symbol and the year of publication, the law specified that you lost copyright and the work enters the public domain forever. While a first print with the original name included the symbol, it was lost in a . Romero later attempted to sue the original distributor who made the error, but the organization declared bankruptcy in the 70s and dissolved. Today, copyright notices are no longer required thanks to the (US); sadly for Romero though, the act does not extend protections to his 1968 film.

Due to the oversight, anyone could copy and distribute the film for free. Hundreds of copies of the film were manufactured in different formats, ranging from VHS, Betamax, LaserDisc, DVD, and Blu-ray throughout the years. (A lifelong Living Dead fanatic and collector, Geoff Turner, has created a project called , in an effort to catalogue all of the releases of the film. Over a hundred fans donated almost $20,000 in a campaign to assist Turner. He even has checklists available for download on his webpage for those with the spirit and the storage!)

Before Night of the Living Dead, zombies were – they were typically only seen in Caribbean folklore, and not portrayed in the way they are today. Romero’s film created a , a re-imagined, brain-eating, re-animated corpse who could be quite literally anyone unlucky enough to be bitten. Romero’s specific traits and rules associated with his zombie characters that have lived on through the years. The film’s entry into the public domain allowed it to be licensed free of charge to any distributor. It also allowed non-affiliated remakes and sequels to follow. Romero could not own the copyright in his specific zombie caricatures due to the mistake, and therefore could not stop anyone from including the same interpretation in their own films. The Walking Dead, Game of Thrones, Zombieland, and many more could not exist in the same way today – or would have had to be licensed by Romero, had the distributor correctly added copyright notice. and would have been completely free to do so, without having to pay Romero anything.

While Romero and his team expressed regret at the error, they subsequently agreed that the mistake allowed them to garner popularity and recognition. In a , Romero stated “But that film really gave us our careers. I have no complaints.” The filmmaker passed away in 2017, but not before creating official zombie sequels and . Suffice to say, public domain means the zombie genre refuses to die. If interested, check out Night of the Living Dead for on most streaming platforms, or the .

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As the Government of Canada has , "new business models and new market strategies will be needed if the Canadian digital media sector is to succeed in the global digital economy. " For example, "Over-the-top" service providers, such as��Netflix, as well as an array of companies offering on-demand or��à la carte��options, notably Apple Inc. via��iTunes, are��growing in popularity, ,��and demonstrating the shifting nature of the contemporary television landscape in Canada and across the world.

Due to these changes in how Canadians view television content, the country’s television regulator is seeking advice from the Canadian public to determine if and how television regulations must change.��For the CRTC, “making the right choices about how we shape Canadian television requires a complete and in-depth understanding of the Canadian television viewing experience.”

The regulator has, therefore,��asked Canadians to reflect��on the their habits and offer advice on three areas: “Programming: What do you think about what’s on television?;��Technology: What do you think about how you receive television programming?; and a so-called��Viewer Toolkit: Do you have enough information to make informed choices and seek solutions if you’re not satisfied?”

A common area of concern for many Canadian television viewers sits at the convergence of these first two topics: the relationship between programming — often of foreign content — and emerging technologies. Canadian consumers are often irritated to find that the content they wish to watch online is unavailable to them because of their geographic location.

Due to the nature and complexity of content licensing agreements, many popular programs are "" for viewers based in Canada or are otherwise unavailable to Canadian-based service providers. The frustrations surrounding Netflix’s��2010 entrance��into the Canadian market epitomize this. At the time, many Canadians were irritated by Netflix Canada’s relatively��limited selection��when compared to the service as offered in the United States. These sentiments continue today; have been created to track the differences between the Canadian and American services.

Geo-blocking and the unavailability of foreign content are distinct but related issues for Canadian viewers as well as service providers.��Geo-blocking��is a technological protection measure, allowing rights-holders to determine who can view content based upon the geographic location of a user’s Internet Protocol address. Rights-holders employ this technology in order to recreate traditional, geographically-based broadcast boundaries in the online environment. In , digital media consultant Alan Sawyer��argues: “since this is consistent with the realities of the physical world, it's a logical approach for broadcasters to take and makes a sensible foundation for enforcing territorial licensing agreements – and it preserves the effectiveness of the existing ad-supported model and helps broadcasters avoid disintermediation.” Foreign websites restrict access to the content that they host based on the territorial markets that they are attempting to serve and generate revenue from.

Territorial licensing agreements also determine what content Canadian websites and services can offer to their markets. Much of the television content offered by Canadian service providers as well as foreign companies operating in the country is produced internationally, primarily in the United States. Service providers in Canada must therefore negotiate����with particular rights holders in order to deliver this content to Canadian audiences. In certain cases, popular foreign programming is often unavailable to Canadian viewers.

The CRTC is not directly involved with what content service providers license from rights-holders. So while many Canadians may wish to discuss this topic during the CRTC’s��Conversation, the regulators hands may be tied in terms of addressing the problem.

Instead of attempting to solve the business model challenges of Canadian service providers, better results might be obtained if the regulator focuses on ensuring that Canadian content continues to be produced and delivered to Canadians via traditional and emerging media. As more and more content migrates to online platforms, the CRTC will need to explore whether or not Internet-based content providers need to be regulated so that they contribute to the creation of domestically produced content.

[Note: As part of the #TalkTV proceedings, (a non-partisan, student-run initiative of the 91��ɫ & Ryerson Joint , Politics & Policy stream), is hosting a ‘Flash Conference’ on December 4, 2013. More information is available .]

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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The Dish Network (“Dish”) is a television service provider based in the United States which retransmits the broadcast signal of networks such as Fox, ABC, NBC and CBS to Dish subscribers. ��In 2012 Dish introduced��“the Hopper”,��its new DVR and Video-on-Demand system. This system came with a feature known as “PrimeTime Anytime” which allows the user to record primetime programming, if the feature is enabled. Later that year Dish released another feature to the Hopper called the “AutoHop” which, if selected, skips over the majority of the commercial breaks of some primetime programs recorded by Primetime Anytime.

The release of this program resulted in controversy Fox later sued Dish for copyright infringement and breach of contract in the District Court and attempted to obtain a preliminary injunction against the device's feature. The California Central District Court and last week the United States Court of Appeals .

In order to obtain a preliminary injunction in the United States, the claimant must be able to prove, among other items, that the claim will succeed on its merits. The Appellate court held that the District Court did not err in holding that Fox was unlikely to succeed on the claim of direct copyright infringement or secondary copyright infringement of their broadcast television programs.

The reasoning of the Appellate Court regarding the copyright arguments is based on the fact that direct infringement of the reproduction right would require copying by Dish. The AutoHop technology, however, only creates a copy in response to the user’s command. The user, therefore, causes the copies to be made. Since direct infringement looks at who made the copies, and Dish is not in a position to engage in the creation of a copy, the claim would necessarily fail.

Secondary liability for copyright infringement requires direct infringement by a third party. There was a prima facie case of direct infringement by a third party (Dish customers) and the burden was therefore on Dish to prove that this use fell within the exception of ��",” similar to the Canadian Copyright Act exception to infringement in “.” The District Court accepted Dish’s arguments outlining the likelihood of success of the consumer’s fair use defense. The court found that the purpose and character of the use was for a non-commercial, non-profit activity and that the application of the program simply enabled the consumer to see the work which he or she was already entitled to.

In examining the final step of the “fair use” test, the court looked at the effect of the use on the potential market for, or value of, the copyright-protected work. The court noted that Fox only owns the copyright interest to the television programs and not to the commercials which play during the break. On this basis it was determined that the analysis of market harm should necessarily exclude any consideration of the commercial-skipping feature of the Hopper as it does not implicate the copyright interests of Fox. Since Fox does not charge licence fees for providers offering their television programs as long as they disable a commercial-skip feature, the court found it unlikely that merely copying this work would cause any market harm. As a result, this use successfully fell within the copyright exception of “fair use.”

With this last refusal to grant an injunction the case may now proceed to trial, the outcome of which The AutoHop takes away incentive for advertisers to place ads in primetime shows and, as such, is set to considerably diminish advertising revenue for many networks. This technology represents such a threat that this may lead to two of the big four networks and become accessible through cable only. The climax is sure to be dramatic, and we've got our popcorn ready.

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Background
CBC’s French division Radio-Canada rolled out its “Ici” branding to , ranging from mocking to anger, because the re-marketing downplayed Radio-Canada’s main name and state broadcaster status. In fact, the new brand largely eradicated the Radio-Canada affiliation.

Radio-Canada quickly of Heritage Minister James Moore, whose portfolio responsibility includes Radio-Canada. The new, new brand will clearly include both “Ici” and “Radio-Canada”.

"They made the right decision in going back," Moore told news outlets after the announcement. "Maintaining a clearly Canadian brand for Canada's broadcaster is the right choice."

The marketing misstep even made it .

Legal implications
But there’s a second legal layer to the problematic re-branding. Montreal broadcaster Sam Norouzi obtained a licence from the (CRTC) for the multi-language channel “ICI – International Channel/Canal international” . Similarly, Norouzi legally registered the trade-mark “Ici” with the (CIPO) and received an official CIPO trade-mark certificate in . Norouzi originally planned to to launch his channel this coming fall.

But there are holes in Norouzi’s legal argument, as the Montreal Gazette. Firstly, a trade-mark in Canadian law. Secondly, a trade-mark may be expunged through sections and of the up to five years after CIPO registration. Thirdly, a paperwork technicality – wherein Norouzi informed CIPO in August 2012 that he had already started using the name when in fact the station had not yet launched – may also leave him legally vulnerable.

“If you file a faulty or untrue declaration of use, it can invalidate the entire registration,” Lauzon told the Gazette. “If he had waited, he would be in a much better position.”

Spokesperson Marc Pichette states Radio-Canada has a history of “Ici” use akin to an unregistered trade-mark dating back to the 1930s. The broadcaster’s official internal magazine was called “Ici Radio Canada” from 1966 to 1985 and Radio-Canada registered a semi-similar “Éditions Ici Radio-Canada” trade-mark in 1969 for a failed publishing wing.

“It is more or less universally known in the French market and has, in fact, become almost as iconic an identifier as Radio-Canada itself,” .

Radio-Canada has not requested an injunction, but has requested that Norouzi stop using “Ici” and destroy all materials with the name, or else pay damages “.” No court date has been set.

Analysis and opinion
It sounds like Radio-Canada has a decent case when you combine the historical use of “Ici” with the yet-unmet statute of limitations for federal trade-mark expungement.

That said, it is my opinion that Radio-Canada is still making a mistake.

As I’ve argued , sometimes exercising a legal right doesn’t translate well into the court of public opinion. And the court of public opinion is an arena that Radio-Canada cannot ignore, especially on the heels of the re-branding outcry.

Canadians, the Minister of Heritage, and the broadcaster itself have loudly declared that “Radio-Canada” is the brand, which would make “Ici” more a slogan than anything else. Considering this, I propose that there is more than enough room in the Quebec market for a Radio-Canada broadcaster with an “Ici” slogan and an ICI broadcaster with or without any additional slogans.

This is particularly true when you consider market segmentation. ICI, the broadcaster, intends to focus on "allophone" content��– primarily non-English, non-French programming in more than a dozen different languages. This is a market entirely discrete from Radio-Canada’s content, which is exclusively French.

At its root, a trade-mark is a tool that provides legal rights to the holder against others who seek to diminish the value of the brand trade-marked by passing themselves off as a similar or related entity.

I don’t believe the “Ici” slogan is closely affiliated enough with the Radio-Canada brand to warrant copycats. Radio-Canada’s use of “Ici” has been inconsistent, as indicated by Pichette’s dated references. I lived in Quebec for five years and have consumed much Radio-Canada content throughout my life. At no point did I feel “Ici” was a core part of the branding.

And I don’t believe ICI is attempting to be a copycat. ICI stands as an acronym for a full channel name that embodies its unique multi-language offering; this is indicative of a good faith trade-mark registration.

Radio-Canada may win their expungement case, but not without accumulating industry enemies and negative public sentiment during an already tumultuous time. Ici Radio-Canada Télé and ICI – International Channel/Canal international can live in harmony. And so they should.

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For a comprehensive, entertaining, pun-filled and generally geek-tastic video primer on the two sides to the Game of Thrones piracy debate, please see by Mike Rugnetta.

The Cultural Buzz Argument

The dominant pro-piracy narrative has focused around the concept of “cultural buzz” and the promotional value of piracy and its residual impact on sales. :

“No, it's great. It really helps the show's cultural buzz, and it does not impact the bottom line because HBO has more than enough money to keep making the show… this makes HBO the center of a cultural conversation about illegal downloading, about streaming content, about the production of content and distribution of content, which is probably somewhere they really want to be."

Even HBO’s programming president Michael Lombardo these positive sentiments about privacy,

"I probably shouldn't be saying this, but it is a compliment of sorts… The demand is there. And it certainly didn't negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network."

 

The Moral and Legal Retort

But not everyone is happy about this historic record. Anti-piracy advocates fall into two camps: those that believe piracy is wrong and those that remind piracy is illegal. The distinction is subtle, and there is some overlap, but the latter argument seems far more prevalent in online discourse. ��Blogger John Birmingham politely that they’ve got their understanding of criminal law wrong.

“Specifically, there was one argument that kept coming up again and again. That unauthorised downloading is not theft; at worst it’s a copyright violation, which somehow sounds less serious. Almost admirable and kinda Robin Hoody in fact... And sure, in a strict literalist interpretation of most statutes in the various jurisdictions which take seriously the protection of intellectual (as opposed to ‘real’) property, theft and copyright infringement are treated separately. But both are usually defined under criminal law, and both are punishable with fines and jail terms.”

The more moral argument is furthered by ,

"What you hope is that even though people watch it online, they will still buy the DVD. You can always hope…At the end of the day it's stealing. I know it doesn't feel like it but it is and it's not right."

 

Analysis

Market failure is being touted as a for the piracy; delays in the availability of HBO shows around the world have been argued to lead to fans downloading out of necessity. This doesn’t necessarily explain why the US was the country responsible for the highest percent of illegal TorrentFreak Game of Thrones S3E1 downloads. is a born-and-bred US channel that is more accessible domestically than anywhere. So it seems that the math to this argument doesn't add up. Moreover, I’m unclear why market failures would justify breaking the law. If the capitalist claim were that piracy effectively hurts Hollywood enough to be an appropriate bottom line motivation, then I believe we’d see some kind of adjustment in content distribution on the part of HBO. That doesn't seem to be happening in any short order.

And even if it did, it likely wouldn’t matter. Laws don’t serve at the pleasure of the market; the market serves at the pleasure of the rule of law. Citizens who have problems with anti-piracy law should be voting with a ballot, not a cursor. From this paradigm, illegal downloads starts to look a lot more about laziness than consumer rights. Finally, these statistics are shaky ground for the foundation of any debate. There’s a definite English bias – 4 of the top 5 countries on the list are English-speaking and it’s an English-speaking show. Sure Game of Thrones could be the most downloaded show of all time. Or it could be the most downloaded English show of all time.

In honesty, I don’t know what the most popular shows are in India and China. But if they’re not English and BitTorrent has an English show bias, then the data set starts to look particularly weak. And in addition to factoring in language, a truly fair comparison would weight downloads by country population and broadband internet penetration.

In conclusion, excitement about Game of Thrones piracy is noble fantasy.

Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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The patent has a of applications including interactive gaming, video conferencing and signature recognition.�� The touch technology might also be adopted into cars, allowing drivers the ability to start their with their palm-print.�� This technology may even have military applications.�� In support of Apple’s boast that their touch-screens could be made up of anything, Apple used the example of a touch-screen made from , which users could literally fire bullets at while a computer calculated the total range of the shot.�� According to the patent, screens may not even be necessary for a full 5 dimensional environment.�� The proposed sensors are said to be able to track changes to the air, such as the temperature.�� ����The patent application also indicates that the technology might be used as a replacement for keyboards.

This patent clearly represented a major leap forward in the field, with calling it “wild and crazy”.�� But despite the excitement surrounding the patent in recognition of its technological innovation, there are a few business related concerns.��

With a host of applications along with a combination of next-generation touch technology, I am left wondering whether apple patented this invention too quickly.�� In the U.S., the is 20 years from the date of initial filing of the patent.�� The issue with this patent is that some of the claims have filing dates between 1999 and 2006 (prior to the release of the iPhone), with Apple refiling them for patent in 2009.�� Despite the period of protection of this patent being much less than 20 years, Apple doesn’t appear to be able to fully capitalize on the patent at this time.�� Even for a company as large and accomplished as Apple is the focus of the company has been primarily on mobile devices.�� For example, Apple sold 1.3 million units in the 3^rd quarter of 2012.�� This is compared with of 17 million iPads, 26 million iPhones and 6.8 million iPods during that same quarter.�� It is no wonder than that CEO of Apple said that Apple’s TV empire was just a “hobby”.�� With one of the most obvious applications for this patent being in the television industry, it’s uncertain whether Apple wants to put the resources into developing their own 5 dimensional equivalent to the television.

Apart from Apple being prepared to capitalize on the market, it’s also unclear as to whether the market is prepared for a 5 dimensional product.�� The sales of 3 dimensional TVs has been underwhelming according to , representing only 30% market share in 2012 compared to 2D TVs.�� Despite the fact that sales are growing, consumers simply haven’t seen the need to upgrade yet.�� With the current level of scepticism towards 3-D home entertainment, how can Apple hope to make the best use of this new patent?

That is not to say however, that Apple won’t make money as a result of this patent.�� The development is still a major improvement over the current technology with a multitude of applications.�� As a patent, however, Apple may not be in a position to capitalize on this investment for many years to come.

Adam Stevenson is a JD candidate at Western University, Faculty of Law.

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An interesting debate has arisen in regards to copyright which subsists in reality TV shows. Recently, broadcasting companies and game show producers have alleged copyright infringement in regards to other reality shows bearing resemblances to their own. In 2008, Japan’s , alleging that ABC’s Wipeout infringed the copyright of six TBS shows, including Takeshi’s Castle, MXC and Ninja Warrior. More recently, over allegations that ABC’s Glass House infringes the copyright of CBS’ Big Brother. While the TBS suit against ABC , the CBS suit against ABC is , and has been on IPOsgoode by Tracy Ayodele.��Nevertheless, the current questions regarding the copyright protection available to reality shows, as well as the permissible similarities between shows, remain unsettled.

Lawyer-by-day, punk-rock-bassist-by-night , “copyright is the protection of a creative expression of an idea. Not the idea itself, the creative expression of that idea.” This is due to the “fixation” requirement of the American §102(a), and the Canadian common law’s approach since .

Under Canada’s copyright regime, any infringement debate commences with an inquiry into whether the expressed idea fits within the categories of works or other subject matter protected under the and whether it meets the originality requirements: “the exercise of skill and judgment” which is not merely a copy of another’s original work or a “purely mechanical exercise.”

Television shows enjoy copyright protection under Canadian law in many facets: the underlying written script and recognizable characters as literary work (see ); the original written descriptions of episodes or scenes (see at para 83) as well as the discourse of the television show as dramatic works; and the character designs as artistic works. The common threads between these elements of the show are their expression in a material form as well as their originality. Reality TV shows are presented with an issue distinguishing between parts of the show which fit within these characteristics, and are therefore copyright protected, and those which are considered unprotected by copyright as the idea can only be expressed in a single manner, or an extremely limited number of forms – known as the .

While discussing the copyright protection for concepts of television shows, Bob Tarantino’s “” illustrates Canadian cases which have discussed the copyright of television show formats. In one of the illustrated cases, , it was held that CBC’s Good Rockin Tonite (GRT) did not infringe upon the plaintiff’s show Star Chart. While GRT utilized the format and concept of Star Chart, MacCallum J held “the similarities [were] relatively unimportant in the context of copying,” implying, as Tarantino states, there is “unprotected expression necessarily resulting from the manifestation of [an] idea.” In affirming the lower court’s decision and discussing copyright infringement of television shows’ concepts and formats, the stated, “the requirement of substantial similarity must be apparent when viewing the works as a whole.”

More recently, the Quebec Court of Appeal in held an erotic film, which parodied a popular Quebec television show La Petite Vite, copied substantial amounts of the television show’s original and important elements including “the principal characters, their costumes and appearances [including mannerisms and quirks], and the décor.”

Tarantino summarizes the Canadian copyright regime’s stance as “recogniz[ing] that copyright can subsist in concepts or formats for television and feature film productions, provided that the elements otherwise required for copyright protection are present.” For reality TV shows, which can be said to be unscripted narrative programming, certain expressed elements will be copyright protected, while others will be unprotected as they are, in the words of MacCallum J, “common constituent elements of any television program of the genre.”

Disputes surrounding reality TV concepts will hinge on which elements of the show have been appropriated from previous programs. As the TBS/ABC settlement illustrates, the expressed concept of certain obstacle-course competitions, such as Wipeout’s “Cookie Cutter” which is nearly identical to MXC’s “Rotating Surfboard of Death,” are likely to be original, and thus arguably protected by Canadian copyright law. Although a host, an elimination format, and other elements may be unprotected by copyright as they are “common constituent elements” of a obstacle-course reality TV show, copyright likely subsists in the costumes and appearances, including the mannerisms and quirks, of TBS show hosts, as well as the shows’ obstacle-courses. Conversely, disputes involving overarching reality show formats are unlikely to succeed, as the concepts are undoubtedly common to any reality TV show. Thus, perhaps ABC is not out of line in stating that “.” However, keeping Favreau in mind, ABC’s Glass House should be sure to hire a different interior decorator from CBS to avoid any issues involving copying Big Brother’s décor.

Adam Jacobs is a JD candidate at Western University, Faculty of Law.

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