Thursday, November 01, 2012

Can the Catastrophic Copyright Fury in the Hebrides be Contained?


Tobermory Cat
Detail from Debi Gliori's tale of the Tobermory Cat (Birlinn)/The Guardian

Here is a story in The Guardian  of cats, ideas, ideas about cats, Facebook, alleged theft, alleged plagiarism, alleged defamation, alleged cyber-bullying and - you name it. And lest I forget - above all - copyright. Maybe even cat copyright?

The story is set in the idyllic isle of Mull, Tobermory, Scotland....but is quickly spreading beyond that quaint enclave.

It seems that a whole bunch of people are quite angry with each other about who has the right to write about a well-known resident ginger tom cat.

Since all of this, being set in Scotland, is much closer to the home of the IPKat, I defer to Merpel and her companions for further expert analysis on their IPKat blog, which is the Catillac™ of IP blogs.

Perhaps my IPKat Kounterparts can scratch beneath the surface of this tale to look into such erudite areas (far beyond my expertise) as the procedural niceties of application of Scottish law to a dispute involving the UK Copyright Act and a potential host of other claims that would presumably involve Scottish law, which is primarily civil in nature. I note that the ever-prescient IPKat recently had a posting about Scottish court procedures and the Flying Scotsman here, which paves the way for the IPKat to pounce on this particular perturbation. No doubt, their perceptive analysis will catalyze a discussion of this important case that will propel it to the CJEU, where there is a severe lacuna of jurisprudence involving the intersection of Scottish law, felines, intellectual property, purrsonality rights, and assorted delicious delicts.

I particularly look forward to their view of whether there could be a fur dealing defence. This needs to be mulled over quite carefully.

And, as a Canadian commentator, I must note that there is a lovely place called Tobermory, Ontario. I wonder if there are any particularly interesting cats in Canada's Tobermory and whether writing about them might bring hisses from the Hebrides about appellations of origin. If appellations are to be included in CETA (the Canada-EU Trade Agreement), let us hope that there will be, for greater certainty, a cat carve-out. I’m not sure that Merpel will like the sound of that.

But, cats are like copyright in the sense of being very territorial. Let’s hope that Merpel doesn’t conspire to render her fellow felines in the former colonies fair game for fervent litigation. And, Merpel, being a European Community Cat, may want to lobby for a copyright term of nine lives + plus 70 years, subject to the rule of the shorter term, or shorter tail, or whatever. All of this is why we need to seal the fate of this issue in CETA and not have to quibble about it further.

And speaking of the delicate subject of seals, it should be clear that, when it comes to free trade negotiations, all’s fair in the fur trade and fair dealing. But let’s hope Canada doesn’t trade off the latter for the former, since that might lead to a furious backlash. Canadian law regarding fair dealing is pretty good these days. If the Europeans want to emulate it, let them do so mewtatis mewtandum.

HPK

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