Determination by the Copyright Board that fees be paid by Canadian cable television companies for the retransmission of certain radio and television signals.
The board found that sports games per se were not the subject of copyright.
Playing of the game itself couldn’t be seen as copyrightable, due to its unscripted nature - not choreographed.
The unpredictability in the playing of a football or hockey game is so pervasive, despite the high degree of planning, that it cannot be said to be copyrightable.
National Basketball Association v. Motorola, Inc.
Defendant manufactured and sold pager devices that displayed game info from the plaintiff’s basketball games.
Plaintiff alleged a violation of state tort law for misappropriation of a business value and federal law copyright infringement.
Facts:
Sports events are not authored in any common sense of the word.
Cannot copyright sports moves/plays without impairing the underlying competition in the future.
In 1976 Congress extended copyright protection to the broadcast of games, due to the camera work, etc. but not to the games themselves.
Held:
District judge correctly held that the appellants were not infringing a copyright in the NBA games.
Not contended that there is copyright in any spectacle itself.
Submission is that the originality is to be found in the conception, selection and arrangement of the production, which in this case, goes on the air.
Talks of three cameras set up to record the game, and a producer picks which feed to use.
No films were taken of the games, and when the telecasting was completed, there was no record of any sort remaining.
s 2(g) defines dramatic work and one of the requirements is that the scene arrangement or acting form of the work is fixed in writing or otherwise.
In “Law of Copyright” it is said that the making of a work is prima facie the production of a material thing - a manuscript, a picture or negative, in the case of a lecture or speech, of the literary work which is the subject-matter of copyright from which the lecture or speech was delivered.
Also says, “when however, any material has embodied those ideas, then the ideas, through that corporeity can be recognised as a species of property by the common law”
The claim is not to ideas, but to the order of words, and this order has a marked identity and a permanent endurance.
All of the works included in the definitions of artist work and literary work have a material existence, musical work must be printed, reduced to writing or otherwise graphically produced or reproduced. Dramatic must be in writing somehow. Cinematographic works are fixed in film.
In this case, nothing fixed, nothing planned ahead of time. An ad-lib production.
Cinematographic Works
Dramatic work includes a cinematographic work.
Pre-Jan 1, 1994 used to be that a cinematographic work was protected as a dramatic work if “the arrangement or acting form or the combination of incidents represented [gave] the work an original character.”
If it didn’t meet this, could only be protected as a photograph under artistic work.
The requirement of originality in this context was considered in Canadian Admiral and live telecast scenes and the telecasting of extracts from previously filmed games were found to lack the requisite originality to constitute “dramatic works”.
To meet requirement for cinematographic works as dramatic works, the maker of the film had to have some involvement in the actual arrangement of the acting form or the combination of incidents being filmed.
Mere selection of scenes or events was not enough.
As of January 1, 1994, in NAFTA, a cinematographic work is protected as a dramatic work whether or not the element of originality is present.
However, if the elements is not present, then s. 11.1 of the Copyright Act limits the term of protection:
(a) for the remainder of the calendar year of the first publication of the cinematographic work … and for a period of fifty years following the end of the calendar year; or
(b) if the cinematographic work or … is not published before the expiration of fifty years following the end of the calendar year of its making, for the remainder of that calendar year and for a period of fifty years following the end of that calendar year.
Further change was to the definition:
Before 1994: cinematographic includes any work produced by any process analogous to cinematography.
After Jan 1, 1994: cinematograph includes any work expressed by any process analogous to cinematography
The expression cinematograph was replaced with cinematographic work by s 1(2) of the Copyright Amendment Act 1997, and the definition now reads “cinematographic work” includes any work expressed by any process analogous to cinematography, whether or not accompanied by a sound track.”
The definition of photograph was similarly amended with effect from January 1, 1994.
The word expressed replaced the word produced with respect to any process analogous to photography.
In Canadian Admiral Cameron J considered whether the live telecast process in that case could be protected as cinematography or photography - rejected any analogy.
Said the process by which film is made is much different from how photographs are taken (true in a physical sense, less true now with digital media though.
Could you say film was a series of photographs compiled into a compilation?
Look to Copyright Amendment Act 1997 ss. 1(5) and 14 inserting s 18 concerning “Rights of Sound Recording Makers” and the definition in s. 2 of “sound recording”.
