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No Trademark on Free Speech
Copyright protection was not designed to insulate corporations from public criticism
In 1983, the famous manufacturer of Perrier sparkling water sued a Canadian jokester who had created "Pierre Eh!" bottles that closely resembled its distinctively shaped green bottles.
The Pierre Eh! bottles were created to mock Pierre Elliott Trudeau, sold for $4 (as opposed to a real bottle of Perrier, which then cost about a dollar), and had a limited potential market. Nevertheless, Perrier sued for trademark infringement - and won. Pierre Eh! had to be abandoned.
As one commentator explained, the courts were "not amused," refusing to consider humour, parody or political criticism an excuse for trademark infringement.
Fast forward to 2009, where we now have Wal-Mart seeking an injunction on the same basis, trademark infringement, in an attempt to have a union dismantle its website, walmartworkerscanada.ca.
The order sought by Wal-Mart would require that the union not use the words "Wal-Mart" or "Wal-Mart Workers," not make fun of the Wal-Mart slogan "Save Money. Live Better," not use oval signs similar to Wal-Mart signs, etc.
If successful, the scope of this injunction order could easily have the effect of silencing Wal-Mart's opponents. In response, the union is challenging this use of trademark protection by Wal-Mart - as well it should.
In seeking an injunction, Wal-Mart is misusing intellectual property laws. Trademark and copyright protections exist to prevent commercial free-riders from exploiting the investments that businesses make in their products and marketing.
These protections are not designed to insulate corporations from public criticism. The union is obviously not trying to pass itself off as a Wal-Mart store; rather, it is criticizing Wal-Mart's employment practices.
Trademark and copyright protections should be interpreted to allow exceptions for political speech, parody and satire. Freedom of expression should permit parodies on political leaders, such as Pierre Eh!, which is indeed a legal development that has taken place in many other countries.
But trademark and copyright protections should also permit public criticism of corporate actors. Political speech is not only speech about governmental actions.
At a time when the private sector is under the microscope for having mismanaged risks in the market, citizens should be entitled to express their concerns regarding the ways in which corporate actors behave.
In a neo-liberal economy, corporations are powerful actors. Wal-Mart, for example, advertises average net sales of $100 billion per quarter - which makes it bigger than many governments.
It makes no sense that citizens would be allowed to criticize fully their municipal, provincial and national leaders, using parody and humour, but be prevented from using humour to oppose Wal-Mart's practices.
As with any powerful corporate citizen or public figure, Wal-Mart has to accept that with fame comes criticism. A responsible corporate citizen does not seek to silence its critics, but to engage in the debate.
It is time for our law to recognize and interpret trademark and copyright protection in light of the Charter guarantees of freedom of expression, and to allow exceptions for parody and political speech.
The Wal-Mart case provides an opportunity for the courts to advance the law in that direction and balance commercial protection with free expression.
Ultimately, the federal government must also review its legislation and clearly protect parody, satire and political speech. The review of the Copyright Act announced for this fall represents such an occasion, and, along with other intervenors, the Canadian Civil Liberties Association will be pushing for modifications to the Copyright Act consistent with our evolving understanding of freedom of expression.
The federal government has recently unveiled the Investigative Powers for the 21st Century bill. It is time, however, that it propose A Freedom of Expression for the 21st Century agenda, and provide protection for individuals who want to criticize not only governments, but also the corporate actors who shape their environment and society.
Nothing less is required in a country committed to free expression.
13 Comments so far
Show AllResponsible corporate citizen? That makes as much sense as a solid black hole. Corporations are a sort of black hole for ethics and morality.
somehow this reminds me of the charlie chaplin speech from 'the little dictator' animated using the walmart happyface in a youtube film..... you owe it to yourself to check it out if you've never caught it.
oops, correction, make that the 'great dictator' speech by charlie chaplin as spoken by a wallmart-esque happy face..... just went to look it up and it sadly seems to have been disappeared---anyone know if i'm just not looking in the right spot or if the clever filmmaker got slapped with a humorless walmart lawsuit?
oh, good, it's still there: just google "great dictator smiley face speech" and it'll come up.... still brilliant after all these years.
It has occurred to me recently, here in the USA with the majority of Common Dreams participants, that when we eliminate "corporate personhood" we need to do it worldwide.
When we think about eliminating "corporate personhood" and reigning in these beasts that devour us, we need to think about how we are going to do it worldwide.
Corporations have ALWAYS been globalizers, colonizers, devourers - British East India Company, Dutch East India Company, Hudson's Bay Company, the original corporations, created for colonization - if we leave corporations with a base of operations anywhere, the historical threat of corporate rule will remain.
This article about Wal Mart in Canada is a good reminder of this.
A good way to get the benefit of corps without the bad might be to require that they be incorporated with a single, well-defined purpose, and that they automatically expire and are dissolved after some small span of years (e.g. 5) unless renewed by plebiscite, with each renewal requiring a bigger majority approval than the previous one.
So XYZ Corp is brought into being for the purpose of building and operating an interurban railway. After 5 years, they have to get 51% of the people in their area of operation to agree to let them go on. After 10 years they have to get 56%, after 15, 61%, etc. Any time they fail to get the new level of support from their customers, they're dissolved and their assets sold off to buyers who must not be the current owners or financially connected with them.
That wouldn't be a bad idea for other laws and for politicians' elections, either, really. Anyone can be elected or a law passed with 51%, but if he/it can't garner increasing public support as time goes on, he/it goes away.
"That wouldn't be a bad idea for other laws and for politicians' elections, either, really. Anyone can be elected or a law passed with 51%, but if he/it can't garner increasing public support as time goes on, he/it goes away."
Great, so any red state can ban gay marriage forever then...not to mention abortion and other reproductive medical services, comprehensive sex education, teachiong of proper history and science in public schools, etc.
Be careful what you wish for.
"That wouldn't be a bad idea for other laws and for politicians' elections, either, really. Anyone can be elected or a law passed with 51%, but if he/it can't garner increasing public support as time goes on, he/it goes away."
What is it with people and the fear of a straightforward one human one vote system?
Why do people fear that so much that they want to come up with all kinds of elaborate wonkish kludges to "solve" a non existent problem? Your solution, the first past the post system, alternate voting systems, all these systems are designed to circumvent the principle of one citizen, one vote.
This is a growing trend, to let commercial consideration trump basic rights. But that's to be expected in a militantly Capitalist period.
As an artist, I depend on the protection of my work from thieves. As a writer, I make use of other people's writings within my own. Hypocrisy? When I incorporate someone else's prose, I try to remember to credit, usually in the course of the quote (rather than footnote, after the text), and so far, none of my art has gotten big enough that anyone would steal it. When I need to learn a new application, particularly an expensive one, I often use a "borrowed copy" (AKA piracy) and I doubt very much that the music library that the kids built for me was all bought and paid for. Where I draw the line is if I was selling the artwork or using the software for money. As soon as I determine that a program is going to be part of my professional toolbox, it has to be a legit copy, registered...Try before you buy has saved me from several disastrous purchases, but the BUY part keeps the propellor-heads that wrote good apps in the business of writing good apps.
But this isn't about fair use or sharing, isn't really about the "intelectual property". This is about corporate control of the Commons.
"..not make fun of the Wal-Mart slogan "Save Money. Live Better," not use oval signs.."
Oval signs?
It's time to end Corporate Personhood. (For a strong argument and deep analysis on this look up David Cobb. He ran for President on the Green ticket in 2004, brilliant!)
Corporations must not be allowed to assert human rights. They are not humans. A human that knowingly does anything that results in another human's death, faces the death penalty themselves. A corporation cannot be executed. A multi-million dollar settlement of a copywrite case would bankrupt most humans but it's a tick on the Cost of Doing Business and is passed on to the customer by corporations. Moreover, the corporate structure itself is designed to deflect responsibility from the investors and the officers. It's mission in "life", aside from making profit for the owners, is to promote a kind of irresponsibility, it's designed to create inaccountability. They call it defraying risk.
In this case, they are using their intellectual rights to not only smother other people's free expression but also to protect their profits.
People, particularly here in the good ol' U.S.A believe passionately in free speech when they feel like shooting their mouths off, but want it squelched if it means hearing something they don't want to hear.
That's exactly it. They love spouting off how much they love America, capitalism, democracy, etc., but demand anyone critical of America in any way be silenced and censured.
The party is over and the ugly reality of hardship that has been engineered upon the poor is now, predictably, visiting the middle class. Free speech is only free for those who can afford to defend it. Copyright is not exempt from corporate abuse. Rights are no longer rights but must be earned and few are willing to pay the steep price.
Problems are overwhelming and ever more unsolved and vexing. Creativity has become the currency of the present and our individual and collective creative actions will ultimately result in systemic change. We are in a boiling cauldron and our powers of creativity and invention will see us through the thin veil of oppression. The road forward will not be found in power centers but instead in the decentralized application of practical innovations both social and otherwise. Thoughtful and attuned people are laying the groundwork for local change. They will soon be joined by the minions and flow along the paths prepared for them. Our place in the change process is local.
These copyright lawsuits are just a variation of the SLAPP (Strategic Lawsuit Against Public Participation) that corporations have been using against activists for years. Often they are quite frivolous, but since activists don't have the money to mount a legal defense, they usually have to acquiesce.
There have probably been far more SLAPP and other corporate suits against citizens than "hot coffee" and wet-floor type suits. Yet the media stays quiet about them.
Pennsylvania has a law that requires a surface coal mine leave a 200 foot undisturbed buffer zone around a residents home, but if if the resident requests this law be followed, he gets sued an exorbitant amount for the value of the coal, and the costs of modifying the mining plan, legal fees, etc. So, the law is effectively rendered nonexistent. It's all perfectly legal.