WHOSE LINE IS IT ANYWAY?

INTELLECTUAL PROPERTY AND THE HIJACKING OF CULTURE

Gavin Barrett

I woke up this morning, hoovered down my breakfast, dabbed my beard daintily with a kleenex, and flipped through the yellow pages looking for places to xerox this piece of paper.

Disaster struck in the form of a paper cut.

Rather than rush to Emergency, I stuck a band-aid on the finger and carried on courageously.

This was brought to an abrupt halt by a rude reminder from my wife to call the rotor rooter guy to fix the plumbing in the upstairs bathroom

Then, a client called to find out if I had fedexed him a package like I said I would. I said I would.

I put the phone down and took a quick polaroid of my neighbour’s cat taking a dump in my yard, thus putting to bed an old score.

By the time it was 10 am, I had infringed at least nine trademarks, three service marks, 4 copyrights, and possibly, abused one patent if you count the way I wrapped the rotor rooter round the rotor rooter guy’s neck after he presented us his bill.

I am a writer.

I make my living creating advertising for some of Canada’s largest companies.

I am also a poet and have made a princely sum doing that — fifty dollars — the cheque for which I have framed and hung on a wall in my study.

I straddle both sides of the divide on the matter of intellectual property in a display of schizophrenic prowess that is the envy of asylum inmates everywhere.

Martin Aller-Stead asked me to speak on “the advertiser’s dream: the hijacking of culture through the sequestering of language” as my experience qualifies me for the role.

He also asked me to make sense — an area in which my qualifications are extremely dubious.

But here goes. First some definitions, for the sake of clarity. The World Intellectual Property Organization defines intellectual property as creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

There are two basic areas of intellectual property: industrial property and copyright.

Industrial property includes patents and trademarks.

A patent is the protection granted to the owner of an invention — a product or a process — a thing that provides a new way of doing something or offers a new technical solution to a problem. Protection is granted for a limited period, generally 20 years. When a patent expires, the invention enters the public domain. This means the owner no longer holds exclusive rights to the invention, and others can begin to exploit it commercially, as often happens in the pharmaceutical industry.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or services of one party from those of others. The idea is that consumers can more easily identify and purchase a trade-marked product.

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Their use is currently only in vogue in the USA.

That’s industrial property in essence.

Copyright covers literary and artistic works including those that are performed and broadcast, as well as commercial work like ads and technical drawings. Copyright protection extends only to the expression of an idea and not an idea itself.

Copyright law depending on who you talk to goes back to the 1709 Statute of Anne, the US first amendment in 1791 or the Berne convention in 1914. Now we’ve got some basics out of the way,

So who owns what we say, how we say it and when?

When it’s a bunch of brand names used as I did at the start, surely the companies that invented them, registered them and then invested heavily in promoting them, have a right to say how they’re used?

Well, nothing is quite so black and white, as long as lawyers live and lawyers lie.

In the 1950s, Thermos spent a great deal of money and time to ensure that its trademark would not be genericized, that is to say, used to signify any vacuum-sealed bottle made by any other company. It lost because the judge decided that people were already using the word so often, generically, in everyday speech, that it was per se in the public domain.

Bayer, which coined the word Aspirin, lost its fight in the US. Its product is now called Bayer Aspirin there, and the word aspirin is recognized as the generic term for acetylsalicylic acid. Canada however, recognizes Bayer’s ownership of the aspirin trademark and other companies have to call their products ASA.

Confused? Good.

I’m doing my job.

Here are a few more stories from the frontlines of free speech and free trade.

Two US companies are suing each other, over the use of the words “freedom of speech” ironically enough. One is a speech technology company and ‘Freedom of Speech” is a trademarked slogan for one line of products. The other company produces assistive systems for the disabled. The company’s name? Freedom of Speech Inc.

This is hilarious but it’s not scary. Even a poet can understand businesses fighting over turf. What is scary, is when corporations try to own everything.

This is a trend that we can happily blame on America which has created a litigation-friendly business environment that prompts giant corporations to routinely trademark all manner of names, sentences and slogans on the slightest chance that they may want to use them one day and, as importantly, to prevent their competitors from doing the same.

McDonald’s owns no less than 131 trademarks according to a 2001 article in the British newspaper, the Guardian. Among these were familiar slogans like “We Love to See you Smile,” and “You Deserve a Break Today”;

There was also
“Twooallobeefopattiesospecialosauceolettuceocheeseopicklesoonionoonoa-osesameoseedobun”
As one single word.

On one level it’s hardly strange that the world’s biggest fast-food company is greedy. On another level, it’s useful to know that for the most part, corporations are more concerned with the use of trademarks that are brand names than with the use of trade-marked phrases.

They are also more concerned with commercial exploitation of those trademarks than artistic exploitation. Let me explain with a typical scene from the popular TV series, The Sopranos.
It’s a warm fuzzy moment, with one wiseguy encouraging another.

He says “Just do it, Paulie. Just do it. Kill the fucker.”

An innocent enough usage, surely.

Here’s the thing. Nike has enough sense not to sue the makers of the show or HBO for the abuse of its slogan. The phrase “Just do It” was always part of common speech and there it will continue to stay. On the other hand, woe betide the insolent beef jerky manufacturers who use “Just Chew It” as their slogan. Nike attorneys will come upon them like wolves upon the fold.

For now, the rule of thumb is that trademarked phrases may be used in novels and in speech but they may not be repeated in any commercial context.

Here are the grey areas. What about trademarked names as opposed to phrases — brands? And what constitutes a commercial context?

And while news and editorial uses of trademarks are almost always exempt from most trade-mark restrictions (even newspapers are businesses), what about artistic uses?

Let’s say a young writer bursts upon the world with a new best-selling novel titled: purple velcro sex toy.

We tend to think of art as non-commercial, but that is itself a grey area. Isn’t the writer earning a living? But let’s exclude the individual — what of the publishing house? Isn’t it making a killing?

The truth is, while Velcro could sue for trademark infringement, like most other companies it is sensitive to the freedom of expression issues inherent in such a suit and the resulting PR crisis that would unfold.
Instead, the company would most likely do what it usually does, ask the author not to “abuse” its trademark and to use it in its proper capitalized form. I am not suggesting that companies do not sue artists — just that they focus much more on commercial infringements.

Here are a few more examples and questions.

Owners of landmarks like the Chrysler Building have sent “cease and desist” letters to photographers who photographed them and were trying to sell their photographs. Were they right?

Was Andy Warhol right to iconize a can of Campbell’s soup?

Should Starbucks be allowed to trademark the words Christmas blend?

Did you know that Happy Birthday is a copyrighted piece of music?

Who owns a photographic portrait? The subject or the photographer?

Who owns an X-ray? The patient or the radiologist?

Every time a student or teacher makes a photocopy from a book in a library, should the writer be given a royalty? Margaret Atwood thinks so.

Permit me now a small digression about the one area of intellectual property worries me most — the rush to patent living things — both biological and cultural.

On the cultural and biological front, we have what is called bio-piracy. Well-documented herbal remedies that have been in use for millennia in India like turmeric and neem are being patented by US pharmaceutical companies. 80 patents have been registered on various applications of neem — many of which have been in use for over 2000 years.

Or consider the Human Genome Project which placed its mapping of the human genome in the public domain. It was in a desperate race to complete its research ahead of Celera Inc a private company looking to make a fat profit from something that is intrinsically you and me, and most certainly, not it.

Then there are companies like Monsanto, which have created sterile seeds, good for one generation of crops and no more, forcing farmers to buy new seeds every year.

Copyright is meant to balance the interests of society and the interests of those creative geniuses who help the progress of society with the ideas they express.

Industrial property simply aims to protect the commercial interests of businesses.

But in its cold, legal heart, all intellectual property law is about one thing and one thing alone: control.

And money. Control and money.
Okay, two things.

Companies want to prevent their trade-marks from being diluted. And they and to guard their inventions so that they are paid for their use.

Artists and writers want to be paid for their art however little it may be because it gives them the incentive they need to keep producing art. And they want to exercise their moral authority to protect their artistic vision.

The question is how much control is too much control?
How much money is too much money?
And what about the public interest?

These are questions for which I do not have answers.

There is a US group at Stanford Law School, that has recognized the dangers inherent in intellectual property law and are doing some experimental work in this area already. The Creative Commons project, as they style themselves, aims to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules. You could say they believe that the words intellectual and property are mutually exclusive and they have invented a system of “open” licences — I’ve used one for this piece — that encourages the sharing of knowledge. They, however, are an anomaly.

In North America, culture has become the servant of business. Our Prime Minister is a CEO. Wall Street, with its circling masses of traders, is our Mecca. Our heroes are rapacious corporate leaders like Ebbers and Lay. Greed is our creed and our crest is a large pig rampant on a field of green.

So how much do we have to fear this greed for ownership? How much of our language does it really hijack?

The simple truth is that all greed is to be feared and it will hijack whatever we let it.

If we are not watchful, our right to express ourselves freely may indeed be curtailed because some corporation slipped in while we were sleeping and stole our language.

Stop the thieves.

Go on.

Just do it.™

Author’s note: this was a lecture I gave at the Monarch Institute, a think tank founded by the award-winning high school teacher Martin Aller-Stead. Since I gave the lecture, a great many things have changed, as things have a habit of doing, some for the better, some for the worse. However I believe the essentials remain the same and thought this might be a valid way to begin my posts and contributions on Medium.

This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/1.0/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.