Mickey Mouse needs our help

Canada lacks protection for “famous characters” like Mickey Mouse or Rhett Butler, and so faces the same problems the U.S. has.

In the United States, companies needing protection have found it necessary to campaign for extension of general copyright terms. This extends the lifetime of copyright well past the lifetime of the author, and is a benefit only to his distant heirs. It is an expense and a source of confusion and litigation to others.

This is so severe that a case was taken to the supreme court of the United States by a well-known American law professor, Laurence Lessig, who argued that the repeated extension of the period of copyright actually flies in the face of their constitution, which permits only securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

But we already protect designs

Both Canada and the United States have protections for a design: in our case, we have “design patents”, under the Industrial Design Act, RSC 1985, c I-9, http://canlii.ca/t/7vhp

Part of this is a good fit for the Mickey Mouse and Rhett Butler characters:

Part of it is a miss: we might well wish to have the protection lapse if it is not kept in use. Here we might borrow the wording (and the case law!) of trademark, and limit the protection to characters in active use, the same way as it is limited to trade marks in continued use.

Canada could achieve with by amending the copyright act to specify that protection of a design past the term of an individual copyright can be obtained by registering the character as a design, under the design act. This registration could be done any time during the term of the copyright, and I suspect that priority should go to characters in the oldest copyrighted work, in the rare case of a conflict.

Why do this?

To me, this is in part a cost-avoidance strategy, to avoid the costs to business and the public domain of a constantly increasing copyright term, and conversely to avoid the cost of fighting an extension of the lifetime of copyright.

The greatest practical advantage, however, is that Canada would be seen as an enlightened country, having solved the problem of protecting Mickey Mouse without distorting the rest of copyright.

The infinite extension of copyright … is a bad thing

I therefore recommend we write a mickey mouse law, to grant famous characters the same protections famous marks already have.

Advice to Mice

A smart Canadian mouse might start by taking out a design patent under the current rules. It’s not obvious to me that it would be rejected. If granted, Mr Mouse could ask the legislature or perhaps the courts to adjust the fit. If rejected, the legislature would be made aware of an opportunity…

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