Annex 1
Annex 2
In 2012, more than a few eyes on both sides of the pond were
raised when a brilliant young recently appointed judge named Colin
Birss of the Patents County Court in England ruled that the
picture called “Annex 1” above was infringed by the picture called “Annex 2”
underneath it above. These were different photographs from different vantage
points, as the Judge so found. Basically, they are pictures of a red bus
appearing before the black and white British Houses of Parliament. But still,
he found that there was infringement. There was much ado about whether
copyright had been extended to the “idea” of a red bus (which is, as we all
know, the iconic colour of London buses) against the black and white
background of the British Houses of Parliament.
The idea of a red figure against a black and white background figured prominently,
of course, in the well-known 1993
Spielberg film Schindler’s List:
While Colin Birss’s decision has stirred much
discussion, it should be noted that it strictly speaking has no “stare decisis” precedential value in
England because the Patents County Court is rather like a small claims court of
IP cases.
However, and in any event, Colin Birss is
now Sir Colin Birss and
is a judge and rising star of the High Court of Justice of England and Wales and
is reportedly an avid bee-keeper in his spare time. He can also be sighted and
heard from quite regularly at Hugh Hansen’s annual Fordham IP Conference in New
York, which
is always held on the first Thursday and Friday after Easter™.
(I have also been known to have frequented that event for many years and
had something to say on many occasions concerning Canada and related issues. I
have indeed met Sir Colin at that event several times. Likewise, with other
British copyright and cat fanciers, such as Jeremy Phillips of the fabled 1709
Blog who revealed the true colours of the red bus story and who I have alerted to the the situation at Brixton's pub in Ottawa described below.)
So, I happened to have lunch the other day with a
distinguished Canadian Copyright Board
practitioner (who is so modest that he would surely want to remain nameless) at
Brixton’s, the pleasant British style pub on Sparks Street in Ottawa and here
is what our table covering looked like: