Friday, February 22, 2013

Think Before You Speak - Copyright in Spontaneous Statements

Copyright in Spontaneous Statements

A recent story by the Globe and Mail presents an interesting problem for organizations seeking to protect their reputation. Can spontaneous rude statements made by high profile members of the organization that are recorded and posted onto the internet, be removed?

The story involves statements made during a conference call to discuss Encana’s quarterly results. In response to a question as to whether the organization was at risk of being acquired, the CEO responded “No.” Another person, under his breath, muttered a two-word obscenity which was picked up by the microphone. A reporter for the Globe and Mail posted this conversation on the internet. Journalists were permitted to attend the meeting; however, recordings were not permitted.

Encana is seeking to have this recording removed from the website where it is posted, claiming it has copyright in the statements.

Is there copyright in the statements? 

To be clear, assuming there is no agreement to the contrary, the only aspect of the conversation posted that Encana may be able to claim copyright over is the three words said by its employees. Copyright to the question posed by the third party would belong to that third party unless the person who posed the question assigned it in writing to Encana.

For copyright to exist in a statement, the statement being copyrighted must be an “original… work”. The test for originality in Canada requires the author to exercise skill and judgement, where the skill and judgement exercised must not be so trivial as to be characterized as purely mechanical.[1] While the qualitative test for a statement to be a “work” is low, there is a quantitative minimum that must be met for copyright protection.[2]

The statements made by the Encana executives in this scenario do not qualify for copyright protection as they fail to meet both the criteria for a copyrightable work. The obscenity was not an exercise of skill and judgement. It was an impulsive response to a question that the speaker found insulting. In fact, if the speaker had exercised skill and judgement, it is likely that the he wouldn't have said the obscenity at all.

With respect to whether the statements are a work it is important to note that there are two statements which have a total of three words. The first of the three words make up one statement, and the second statement is comprised of a two-word obscenity. While it is well established that there can be no copyright in a single word;[3] a commonly used two word phrase will likely not receive copyright protection either.[4]

It is not impossible for spontaneous statements to be protected by copyright; however in this scenario it is not likely.

Is there any remedy available to Encana? 

Encana may be able to commence an action against the reporter who surreptitiously recorded the conversation and his employer. The fact that there was a prohibition on audio recordings could constitute a breach of contract.

However, if a second person were to independently repost or archive the audio clip, that clip could remain on the internet forever.

If you would like to know more about the rights available to help protect your organization’s reputation, or if you have invented an even better microphone that you would like to patent please contact us.

By Jahangir Valiani

[1]CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. 
[2]Exxon Corp. v. Exxon Insurance Consultants International Ltd., [1982] 1 Ch. 119 (Eng. C.A.); British Columbia v. Mihaljevic (1989), 26 C.P.R. (3d) 184 (B.C.S.C.). 
[3]Exxon, supra, note 2. In this case, even where that word was invented and showed originality, it was too short to be copyrighted. 
[4]Mihaljevic, supra, note 2