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E- Newsletter - Fall 2007
IN THIS ISSUE:
- What’s New?
- Tips for Sport Leaders: Another quiz – this time, test your knowledge on Copyright.
- Recent Sport Law Cases/Decisions: R. v. AFC Soccer[1] examines infringements under the Copyright Act.
- Feature Article: When music is played at your event, who pays the piper?
WHAT’S NEW?
 CSL to author book!
The Centre for Sport and Law is pleased to announce that Emond Montgomery Publications, Canada's legal education publisher, will soon be publishing our new book, 'Legal Issues in Sport: Tools and Techniques for the Sport Manager'. Authored by Rachel Corbett, Hilary Findlay and David Lech, the book consolidates and updates our ten-volume handbook series while also incorporating abundant new materials. For more information on ordering your copy, expected this summer, please send an email to Robin Witty at rlw@sportlaw.ca.
The publication of this book also marks the Centre for Sport and Law's 15th anniversary. We were incorporated in 1992 and were then two people. We are now five professionals located in four cities, providing services to all levels of the Canadian sport system in all regions of Canada. We would like to thank all our friends, families, colleagues, readers and -- of course -- clients who have supported us over the years.
Forthcoming article in LawNow magazine
Rachel Corbett has written an article for the May/June issue of LawNow, which features a Special Report on the Law and Sports (www.lawnow.org). The article, titled ‘Encourage Good Sports for Better Sport’, examines conflict in sport and the tools that can be used to manage conflict. LawNow Magazine is a resource on the law, the legal process, and their relationship to life in Canada, and is published by the Legal Studies Program, Faculty of Extension, University of Alberta. The magazine recently celebrated its 30th anniversary, and 14 years ago we published one of our very first articles in LawNow.
Proposed Ontario Bill 201 – An Act to Provide Protection for Minors Participating in Amateur Sport
This proposed Bill has received second reading in Ontario and is now being studied by a legislative committee. The Bill, if passed, would make criminal records checks mandatory in Ontario. More specifically, such checks would be 'mandatory for referees, other officials, trainers, coaches or any other position that involves dealing with persons under 18 years of age on a regular basis in amateur sport organizations in which persons under 18 years of age may participate'. Furthermore, if passed, the Bill would authorize the government to appoint investigators to enter into a premise to check for compliance, and failure to comply would be an offense.
We have no inside track on whether or not this Bill will pass third and final reading. It has been sponsored by a private Member of the Legislature, and on the whole, private bills are not often made into law. While we applaud the proposed Bill for its intent -- the protection of children from harm -- we are concerned that the drafters have given little regard to the challenges of implementing mandatory screening in sport. These are the issues as we see them:
- screening is a risk management process that has many components. For example, Volunteer Canada prescribes '10 Safe Steps of Volunteer Screening' and criminal checks are but one of these steps. To focus on criminal checks at the exclusion of other elements of effective screening oversimplifies the problem.
- The Bill does not address any of the issues related to 'results management'. Using the analogy of drug testing under the Canadian Anti-Doping Program, effective screening through police checks requires a well thought-out process for determining what positions are at risk, what information will be collected, by whom and using what methods, what offenses are incompatible with what positions, how results will be communicated, how written records will be managed, etc.
- The Personal Information Protection and Electronic Documents Act (PIPEDA) imposes fairly strict requirements on sport organizations who collect, use, transmit and disclose personal information. Any screening method using police checks must comply with these requirements.
- The contents of a police record can vary widely from one police jurisdiction to another. Any province-wide screening program using criminal checks must accommodate these differences.
- The cost to implement what is being proposed in this Bill far exceeds the capacity of the Ontario sport system. In addition to the out-of-pocket cost of obtaining the criminal record check, a broad mandatory program such as the one being proposed would impose an enormous and unmanageable administrative burden.
- The Bill includes extensive enforcement provisions. Investigators will have the power to enter premises to inspect records and to seize relevant documents. A penalty for breach of the Bill will be a fine up to $50,000 for individuals and up to $500,000 for an organization. Given the voluminous number of criminal record checks that would be necessary under this Bill, enforcement may only be possible after the fact: that is, when an issue arises around a particular person or event.
- we are also concerned about the 'efficacy' of criminal records checks of volunteers. We recognize that a policy for criminal checks promotes 'self-screening' which is beneficial. However, many sexual predators do not have criminal records and would not be detected through the screening process proposed by this Bill.
To learn more about Bill 201, visit http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1516. The Provincial Sport Organizations Council of Ontario (PSOC) has prepared a position statement on the Bill, which raises many concerns similar to those noted above, as well as others. Overall, the PSOC and other sport leaders are concerned that the Bill is an imperfect solution to a much larger problem, and moving forward on any program of mandatory screening through criminal checks must be done in consultation with sport leaders in Ontario.
We encourage readers to learn more about the proposed Bill. For more information on volunteer screening and police records checks, see our articles on the topic in the Writings section.
National Code of Conduct – Update
In the Fall of 2006, John Bales of the Coaching Association of Canada prepared a document titled 'Codes of Conduct: Developing Strategies to Deal with Ethical Misbehaviour in Sport' and presented this to the sport community at the Sport Leadership Conference in Vancouver. This document was triggered by the high profile case of swim coach Cecil Russell, who was reinstated to sport eligibility and was active coaching youth, notwithstanding prior criminal convictions for trafficking steroids and a previous lifetime ban under Canada's former anti-doping policy.
This document led to the creation of a working group of sport leaders made up of John, Pierre Lafontaine, Anne Merklinger, Peter Goodman, Tricia Spooner and David Lech (Associate of the Centre for Sport and Law). The working group accepted a mandate to submit a proposal for a National Code of Conduct to the NSO community at the COC Congress in Halifax in April 2007.
The group has now prepared a draft Code, as well as a discussion paper that follows up on John Bales' original document. Essentially, the Code proposes minimum standards of conduct for coaches, officials, volunteers and others in sport who interact with youth and children. The various issues arising from the 'front end' of the Code include who the Code covers, what are the minimum expectations, the timing of the Code's application, and minimum sanctions. The 'back end' of the Code addresses its implementation and the various issues arising from that, including who investigates misconduct, who must prove what, who will adjudicate hearings, who manages the hearings, who will provide oversight to ensure consistency across sport, and who pays for all this (this is a good illustration of the saying, 'the devil is in the details'!).
The working group has prepared a 7-page discussion document explaining the 'front end' and 'back end' more fully. It is anticipated that a final Code would be adopted by NSOs, who would also assume responsibility for much of the 'back end' activity. It is also proposed that jurisdiction would be established using a top-down model similar to the Canadian Anti-Doping Program – essentially building the Code into the governing policies of NSOs and having it apply to NSO members, participants in NSO activities, and to P/TSO's and their members and participants.
The draft Code was presented in Halifax and there was considerable discussion, mostly about the front-end issues. Next steps are to solicit NSO feedback on the Code and to prepare a final draft of the Code and accompanying policy by the Fall of 2007, with a view to have NSOs adopt the policy and Code by March 31, 2008.
To obtain a copy of the draft Code and the working group's discussion document, please contact Coaches of Canada.
Focus on Intellectual Property
TIPS FOR SPORT LEADERS
COPYRIGHT QUIZ
QUESTION 1: Your organization hires a person to write a technical manual. It now wishes to allow affiliated clubs use and copy the manual. Can they do this?
QUESTION 2: Can a website be copyrighted?
QUESTION 3: Is it essential to register a copyright with the Canadian Intellectual Property Office (CIPO)?
QUESTION 4: Ownership of a copyright ends upon the creator’s death. True/False?
QUESTION 5: Are copyright and trademark the same thing?
See end of newsletter for answers.
DID YOU KNOW?
The Nike swoosh is one of the most recognizable trademarks in the world. It was created in 1971 by Carolyn Davidson, an art student at Portland State University who was paid $35 US for her efforts. Some years later it was reported that she was given some Nike company stock and a gold ring with a swoosh on it. The Nike swoosh was not trademarked until 1995, by which time Nike had been in the shoe and apparel business for some 20 years. Coincidentally, Nike also sells products under the brand names Bauer, Cole Haan, Converse and Hurley International, and makes shoes for discount stores like Wal-mart under a variety of lesser-known brand names. Nike’s only significant global competitor is adidas, which also owns Reebok, Taylor Made and Maxfli.
RECENT SPORT & LAW CASES/DECISIONS
Case comment
R. v. AFC Soccer [2]
This case pertains to sentencing for a charge under Sec. 42(1)(a) of the Copyright Act. This Section states, in part, that ‘Every person who knowingly … makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists ….is guilty of an offence’. The Crown proceeded in this case by indictment, to reflect the more serious nature of this particular charge, making the maximum penalty a fine of $1 million or five years in jail, or both.
AFC Soccer was a family-owned business operating two retail outlets in Winnipeg as well as a web site. The police investigation was triggered by a complaint from Umbro that AFC Soccer was selling counterfeit jerseys through its web site. The investigation revealed that AFC Soccer was also selling knock-offs of Nike, adidas and Fubu brand sport clothing and had been doing so for a period of several years. These knock-offs were being manufactured in Thailand at a cost of about $1 per jersey, and were being sold in Winnipeg for about $55 per jersey, when brand-name soccer jerseys were selling for about $140. The owner of AFC Soccer pled guilty to the charge and the matter of sentencing was put before a Judge. The Crown favoured a fine of $50,000 to $70,000 while the Defendant argued for a fine of $2,500 to $3,500.
In the absence of precedent and with the two sides so far apart in their claims, the Judge turned to the principles of sentencing for guidance. She concluded that the case represented a serious instance of copyright infringement that was deliberate, sophisticated and ongoing, with economic harm caused to more than one copyright holder. Aggravating factors were that AFC Soccer had lied to those purchasers who inquired as to whether the apparel was licensed, and that AFC had also directed the manufacturer in Thailand to create false labels for the garments. The Defendant countered that anyone buying a jersey would be a soccer fan, and any soccer fan would know that a $55 jersey must be a replica – therefore, it was unlikely that any customers were in fact deceived.
The Judge stated that inappropriately low fines such as those being proposed by the Defendant amounted to little more than a cheap, after-the-fact licensing fee, and that any fine ought to bear some relationship to the scope of profit of the offending activity. In this case, there was no dispute that AFC earned gross revenues of approximately $180,000 on the knock-off jerseys – there was disagreement about the net profits, but using a standard retail mark-up as a benchmark, the Judge concluded that net profits to the Defendant likely ranged from $60,000 to $120,000.
The Judge also considered mitigating circumstances, including the fact that AFC Soccer had pled guilty to the offense, this was a first offense, the police had already seized a large inventory, and all the negative publicity had caused serious hardship to the small family business. The Judge conceded that the Crown’s request of a $50,000 to $70,000 fine could be justified, but settled on a figure of 25 percent of gross revenues as being appropriate and imposed a fine of $45,000. The Judge also stated that the fine proposed by the Defendant was ‘manifestly inadequate and would clearly amount to nothing more than a nominal licensing fee’.
FEATURE ARTICLE
When music is played at your event, who pays the piper?
Think of the last time you attended a sporting event in an arena, gym or stadium – chances are you heard music played for the warm-up, during the intermission or between periods, and thought nothing of the legal ramifications of that. However, one national sport organization was recently asked by SOCAN, the Society of Composers, Authors and Music Publishers of Canada, to pay a tariff for playing music at its event.
SOCAN is the Canadian copyright collective that administers the performance rights of composer, author and publisher members by licensing the use of their music in Canada. They collect license fees for the communication and public performance of copyright-protected music, and distribute royalties back to the members of the collective. Without SOCAN, every music user would have to get permission from every composer, songwriter, lyricist and music publisher for every musical work they wished to use, which would create an administrative nightmare. Hence the existence of SOCAN as a single entity to oversee the collection and distribution of royalties.
SOCAN fees apply to three categories of activities relevant to sport – including sport events, physical exercise classes, and community recreational activities:
Tariff No. 9 applies specifically to sporting events, and the fee payable is the lesser of: 0.05 percent of the gross receipts from ticket sales, or twice the amount that would have been payable in the year 2000. In the case of an amateur sports event, this amount ranges from 50 cents per ticket (where the ticket costs less than $10) to 90 cents per ticket (where the ticket costs $40 or more). Payments are higher for professional sports events. The fee payable for an event for which there is no charge of admission is a flat rate of $5.00.
§ Tariff No. 19 applies to playing music during physical exercise classes or activities. A license to perform music for dancercise, aerobics, bodybuilding shows and dance instruction is based on a dollar amount times the average number of participants per week using the facility or room for the purpose of physical exercise. The minimum license fee is $64.
§ Tariff No. 21 applies to events at recreational facilities or community halls, such as receptions, fairs, fitness activities, minor hockey and other sporting events. This fee is a convenient single annual amount (approximately $185) if the facility’s gross revenues generated from events does not exceed an annual threshold of approximately $15,000. Should gross revenues exceed this threshold, then licenses must be obtained for the performance of music at each event.
At first glance, these numbers would not seem to be high. However, a quick calculation suggests that over time, these costs could become significant. Every high school, in theory, should be paying $5 for every basketball or volleyball game hosted in its gym, which will add up considerably over a year. And this does not take into account the administrative inconvenience of paying a license each time. A single event grossing $50,000 in gate receipts should be paying $25. A university or college season in basketball or hockey could end up costing several hundreds of dollars in licenses. A further complication is that SOCAN does not specify whether the event organizer or facility operator is to pay the tariff, and will pursue both if the tariff is unpaid. Therefore, it is good practice to determine beforehand, as part of a facility rental agreement, who is responsible for obtaining the SOCAN license.
Copyright infringement is a serious offence, as noted in the Case Comment above. SOCAN has a legitimate objective in pursuing royalties for its artist, composer and publisher members, and it would appear that SOCAN is seeking to more forcefully pursue this objective in the increasingly commercialized world of amateur sport. We have been approached by one large event organizer already who was asked, after their event, to pay up – and it is likely that SOCAN will be pursuing more sport organizations and sport events for recovery of royalties in the future. Event organizers take note!
For more information, contact us at the Centre for Sport and Law. Information on SOCAN is available at www.socan.ca.
ANSWERS TO COPYRIGHT QUIZ:
Q1: If the person was hired as a contractor, the answer is no because copyright is owned by the creator of the work. The organization would have to seek an assignment of the copyright. The exception to this is in the case of an employee – where the work is created by an employee during the course of their work duties, the employer owns the copyright.
Q2: Yes, the look and design of a website can be copyrighted. This has important implications if your organization’s website is created by an independent contractor (see the answer to question 1).
Q3: No, copyright arises automatically when an idea is fixed in some tangible form. There is no copyright in an idea – copyright arises when the idea is put into tangible form (e.g., a book, a song, computer code, video, etc.). Registering the copyright confirms the date it arose and who owns it.
Q4: False. Under Canada’s Copyright Act, ownership of copyrights exists for the life of the owner plus 50 years. It then devolves to the public domain for public use.
Q5: No. Copyright is the expression of an original idea in a tangible form such as a painting, database, document, song, graphic or computer code. A trademark is a unique word, phrase, shape, design or combination of these. A trademark may encompass some copyrighted elements (such as a graphic image or slogan), but not all copyright materials are trademarks. Thus the new Swimming Natation Canada logo and the tag line 'Swimming to Win. Winning for Life' are a trademark that can be registered. The two different components of this logo, that being the graphic and the tag line, might also be copyrighted. There is sometimes a confusing interplay of the two concepts, but they are distinct and they are governed by two different laws in Canada (Copyright Act and Trademark Act).
Watch for our next newsletter – Summer 2007
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