Intellectual Property

Lawsuit shows why copyright can be ‘tricky area of the law’

By Tony Poland, AdvocateDaily.com Associate Editor

The extent to which copyright protects concepts is at the heart of a recent lawsuit involving Canadian icon and fictional character Anne Shirley, says Toronto intellectual property lawyer John Simpson.

The lawsuit, filed by the producer of the 1980s television series Anne of Green Gables, alleges a new Netflix show has copied elements he created that were not in the original novels written by L.M. Montgomery.

Among the allegations in the claim, the plaintiff says the new production copied the set and depiction of Charlottetown and “the decision to set the story in the late 1890s” instead of the 1870s, which was the original setting of the novels. The producer also claims the new show replicated the use of steam trains, which were not present in the time period of the books.

The defendants deny any infringement, saying the concepts are simply ideas that exist in the public domain.

The allegations have not been proven in court.

Simpson, principal of IP and new media law boutique Shift Law, says copyright can be “a really tricky area of the law” and the lawsuit is worth watching.

“There’s a real tension in copyright law because you have to balance the fairness issue against the notion that the general stock of incidents in fiction or drama is free for everyone to use. It’s a substantial part of the culture,” he tells AdvocateDaily.com. “If you start drawing fences around that then pretty soon you’re going to have a handful of people who can monopolize culture.

“That’s the reason copyright protection has to be limited just to the individual’s real work on expressing those ideas in a unique way,” Simpson says.

Copyright law exists to ensure the author reaps the benefits of their work but does not grant a monopoly over ideas or elements from the public domain, he says.

Simpson explains that copyright protects how an idea is expressed but not the ideas themselves, and while it may be easy to make the distinction in the abstract, it can be difficult to do it in practice.

Using a work of art as an example, Simpson says that if he talks about painting a picture of a car going up a set of stairs and someone else paints it, it is not an infringement.

However, if he comes up with the idea, paints the picture and someone else copies it, then that would be a transgression.

“The first thing you learn as a lawyer about copyright law is that it doesn’t protect ideas, data or facts,” Simpson says. “If someone wants to write a story about some obscure figure from Canadian history and then someone else decides to do the same thing, copyright doesn’t offer protection because that’s factual.

“I see this case right at the border of ideas and the expression of ideas,” he says. “It is about the extent to which copyright protects concepts.”

Simpson says if you poll average Canadians, the majority may agree that the new show is just “ripping off” the 1980s miniseries.

However, since the original book is in the public domain and the characters are free to use, the defendants may well claim, “You had your version of Anne of Green Gables, and now we have ours.”

“It’s going to be interesting to see if the court is guided by that sort of gut instinct of what’s fair, or will it be a concern about granting monopolies over cultural ideas,” Simpson says.

He notes that Canada’s top court has been focused on “the potential abuses of copyright” in recent years, and has introduced some restrictions that many “creative industries and producers are really concerned about.”

“The Supreme Court of Canada came up with this idea that copyright is a balance between an individual’s creative efforts and investment against society’s right to enjoy certain concepts and ideas without fear of infringing someone’s intellectual property rights. That is the balance,” Simpson says. “Many academics say it’s not a balance at all. There’s no talk about balancing in the Copyright Act. It is about protecting someone’s efforts, and that should be it.”

He says it’s because of that balance that the Anne of Green Gables’ lawsuit should provide some interesting commentary as the case progresses.

“This is not cut and dried,” Simpson says.

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