Janet Chong (3rd year, LLB) is VP Promotions of the Osgoode IP and Technology Society

“Law is a tough mistress is you want to be a good lawyer.”

So spoke Toni Ashton, Senior Partner at Sim Lowman Aston & McKay, busting the myth that the practice of IP affords a better work/life balance than other areas of law. Many more practitioners shared their thoughts on practice-related issues with a student audience at the Annual IP Career Panel at Osgoode Hall on February 19, organized by the student-run Osgoode IP and Technology Law Society. Among the panelists were Osgoode’s very own Professors Carys Craig and Rex Shoyama; Albert Cloutier, Director of Copyright and International IP Policy at Industry Canada (who travelled from Ottawa to attend the event); Sue Diaz and Michael Migus, associates at Deeth Williams Wall; Martin Herman, Senior Legal Counsel at Bombardier Aerospace; and Jason Kee, Director of Policy and Legal Affairs for Entertainment Software Association of Canada.

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When asked to think about the pop-culture zombie genre, classics such as George A. Romero’s 1979 film “Dawn of the Dead” (and its 2004 remake) and Peter Jackson’s 1992 creation “Dead Alive” come to mind. After all, the storylines read typically: man battling the undead for ultimate survival.

Joining the genre is the popular video game, “Dead Rising”, by the Japanese game maker, Capcom Co. Ltd. The game features a protagonist stranded for three days in a mall where zombies abound. It has many characteristics in common with “Dawn of the Dead”; in fact, so many so that the MKR Group, an independent movie producer and the IP rights holder of the film, is suing Capcom for copyright and trademark infringement.

Prior to the game’s release, MKR approached Capcom accusing infringement, but the two companies failed to arrive at a resolution. Capcom then moved to pre-empt further dispute by (1) having a disclaimer on the game’s packaging, stating “this game was not developed, approved or licensed by the owners or creators of George A. Romero’s Dawn of the Dead”, and (2) filing an application for a declaratory judgment that the game did not infringe MKR’s IP rights in the film and an injunction to prevent MKR from asserting those rights at the California District Court. In its filing, Capcom claims that any similarity between two works is “based wholly on the unprotectible idea of humans battling zombies in a shopping mall”.

Despite these efforts and the fact that the game is no longer being produced, MKR sued Capcom this past Monday alleging that “Dead Rising” is essentially the game version of the movie. In particular, MKR states in its filing to the New York District Court that both works “are dark comedies. In both, the recreational activities of the zombies and absurdly grotesque ‘kill scenes’ provide unexpected comedic relief. Both works provided thoughtful social commentary on the ‘mall culture’ zeitgeist, in addition to serving up a sizable portion of sensationalistic violence.” (see Reuters).

The immediate copyright issue is whether MKR holds the right to the “zombies-in-a-mall” theme. Surely MKR owns the copyright in the film, but unless it can somehow argue that the theme is an expression of the classic idea of good vs. evil, the theme remains an idea and thus “unprotectible” as Capcom asserted. It is well established in the Canadian copyright regime that granting copyright to ideas or schemes is simply not in the public’s interest in the encouragement and dissemination of works of arts and intellect. Both s. 64.1(1)(d) of the Copyright Act and case law recognizes this public interest (Galerie d’art du Petit Champlain Inc. v. Thebérge) as well as the need for the copyright regime to balance this interest with justly rewarding the creator of the work. Imagine how dull the entertainment industry and the literary world would be if such creative ideas as “star-crossed lovers” or “international man of mystery” are copyrightable.

In my opinion, MKR’s claim of trademark infringement is unlikely to succeed as well. Given that Capcom disclaimed any association between the game and the movie right on the game’s package, and the fact that many video games contain the same human vs. zombie premise, it would be difficult to prove the likelihood of confusion, .

I understand the importance of asserting one’s IP rights – huge economic interest is involved, and stakes in the outcome of such assertion are high. However, meritless lawsuits may have a chilling effect on the process of creation, and may therefore deprive the society as a whole of intellectual stimulation and worse yet, cultural evolution. This would truly be a great loss to mankind.

Posted in Copyright, Infringement, Movies, Trademarks
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In an attempt to control the HIV/AIDS epidemic in Thailand, the Thai government decided to bypass the patents on anti-retroviral drugs (ARVs) by issuing compulsory licenses to manufacture generic copies of these drugs. The result of this gutsy move is affordable, locally-made alternatives that are dispensed to patients for free via the government’s universal healthcare scheme. Moreover, as the retrovirus developed resistance toward existing ARVs, the Thai government responded by taking further controversial measures, issuing more compulsory licenses to enable mass-production of copies of second-line defence ARVs that are developed by pharmaceutical giants and protected by patents in Thailand.

What is interesting about the Thai government’s action is that it is perfectly in accordance with international trade regulations. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), members to the agreement have the right to grant compulsory licenses in the face of a national emergency and the freedom to determine the grounds on which such licenses are granted. In addition, the members have the right to determine what constitutes a national emergency. Therefore consultation with pharmaceutical companies is not mandatory prior to issuing compulsory licenses if Thailand feels that it is threatened by a health crisis. When Thailand saw the wholesale of drugs as the only solution after numerous failed attempts to negotiate lower ARV prices with the drug companies, it seized the benefit of the TRIPs provisions and has not looked back since.

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Posted in IP, Patents, Pharmaceutical Drugs
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