simon chester is a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch.

While tempted to review 1,000 years of legal stories, the Binchmarks crew thought last year was momentous enough. Many of these stories are still in process and will continue to reverberate well into the 2000s. So what were last year’s significant trends on the legal beat?

Y2Kaboom

Considering the hype, the scares, the fears of endless litigation, and a truly awful made-for-tv movie, the Y2K bug was a huge anticlimax. A large part of the expense of Y2K conversion had been for the insurance reserves to cover the endless lawsuits that were supposed to result.

Canada’s entertainment industry was not directly in the firing line, but everyone had to get the consultants in – and quite a few businesses reckoned this was the time to upgrade the computers – and cross their fingers.

So we can all chill out – in our list of the leading legal stories of 1999, this mega-story failed to happen.

CRTC vs the Web – time out

What should the Canadian broadcast regulator do about the Internet? The crtc decided to sit this one out – at least for now. The questions about Canadian content and the promotion of federal cultural objectives remain resolutely open.

But, the commission did make one important claim – that the Internet was within federal regulatory jurisdiction. While that may seem like the old joke about whether elephants are a federal or provincial responsibility, it’s going to be important in future policy battles.

Sheila Copps and the crtc have staked out their position – for the next crisis when the public worries about this piece of our cultural space.

Privacy rules

As an integral part of its plan to plant a federal flag on cyberspace, Industry Minister John Manley reintroduced a bill with two thrusts – to legitimize electronic contracts and to provide privacy laws to govern the entire private sector. The law recognizes that in the new economy, individual privacy and autonomy are going to be critical.

Depending on which sector you’re in (telecoms have to get their skates on), you’ve got between one and four years to ensure that your business gets its privacy stance together. It’s not going to be any easier to make docudramas.

Banning Milgaard

We thought that press bans were a thing of the past. Not quite. A huge commotion ensued when a ctv special ended up in court.

One of the highlights of the ctv spring season was its docudrama Milgaard, the story of David Milgaard’s wrongful conviction, his decades inside and Joyce Milgaard’s heroic battle to free her son.

But just weeks before the broadcast, a Saskatchewan judge banned ctv from airing the movie in Saskatchewan. The broadcast couldn’t air until after the trial of Larry Fisher, on trial for the very same murder that Milgaard was convicted of – wrongly as it turned out.

Fisher’s lawyer, Brian Beresh, argued that the movie portrayed his client in such a bad light that it could influence the decision of the jury. The court heard evidence from experts ranging from market researchers to psychology professors. Eventually it found that there would be ‘a real and substantial risk’ that a fair trial for the applicant would be impossible if it did not pull the plug on the broadcast.

The court feared that many people eligible to sit as jurors would see the production. The show might confuse or predispose potential jurors. Of course, you would have to have been catatonic to have lived in Saskatchewan and not have read about the Milgaard saga over the years. ctv did a good job, but this was scarcely a breaking news story.

The judge could think of no way – shifting venue or probing juror prejudice – to dispel the possible prejudice Fisher would face if the movie aired. But he limited the publication ban to the duration of Mr. Fisher’s trial, and only across Saskatchewan. The program aired to high critical and audience ratings elsewhere.

Six months later, Fisher’s lawyers went back to the judge to get the ban extended to cover all of Canada to stop a second airing of the movie. It may have been a case of shooting the messenger. The dna evidence was so conclusive that Fisher was convicted.

Cinar: funding fraud

mud-slinging

Cinar is a big fish in the Montreal animation pond. Shortly after it announced record profits, allegations of tax fraud surfaced. The rumors caused large fluctuations in the company’s share prices. These allegations first surfaced in October, after police launched an investigation into alleged tax credit fraud. The story is a complex one, which concerns the substitution of Canadian names for Americans as screenwriters on productions claiming Canadian content tax credits.

Soon the dispute took on political overtones as Bloc Quebecois mps started attacking Liberals over the scandal. They wouldn’t repeat the allegations outside the House, where they could have been sued for libel.

Cinar fought back, saying all this was old news, and had zero impact on the balance sheet. But the damage to Cinar’s reputation has been done.

Indeed, some of the mud slung has hit the entire industry. Following stories alleging that Cinar was the tip of an iceberg and that the Canadian production industry was rife with abuse, ministers in Ottawa and Quebec have launched probes. Though they deny widespread abuse, they will likely tighten up funding rules.

Bandwidth wars

The Internet started to get real as major cable companies entered the market to hook Canadian homes onto the ubiquitous Net. Though they charged premium prices, they have had a major impact on the small Internet service provider industry. They have also slowed the growth of services like Bell’s Sympatico, which faces the weaknesses of the telephone system. With cable access, multitasking becomes a breeze. You can watch tv, surf the Net and talk on the phone simultaneously.

The key advantage that cable offers is speed and reliability. But the service is only slowly spreading beyond affluent urban markets in Toronto, London, Ottawa and the B.C. Lower Mainland. And the vaunted speed slows dramatically as all of your neighbors pile on the system.

The crtc’s hearings into access to cable networks became much more significant.

If the cable industry play succeeds, it is likely that Rogers, Shaw and other cablecos will be some of the more predictable profit points in the volatile Internet sector. So much so that Rogers’ latest investor is none other than the world’s richest man, Bill Gates, who has had his own tough legal problems this last year.

Dudley and Danielle

Canadian courts seldom see litigation involving dragons. Danielle Jones, a Toronto-based freelance graphic artist and designer, has sued tvontario, Ontario’s Ministry of Energy and Breakthrough Films. Her claim is that she is the creator of Dudley the Dragon. So she owns substantially all of the residual copyright in the popular Dudley character. She has asked the court for a cut of the licensing and merchandising revenues.

The reason that Jones’ suit names all three parties is that at one time or another, Energy, tvo and Breakthrough each owned the rights to Dudley the Dragon. The ministry admits that it may have asked Jones to do some artwork for it, but she is far from being the mother of the dragon, since her work was not the basis of Dudley. They say Breakthrough created the Dudley character in the ministry-sponsored film, The Conserving Kingdom.

The court will have to grapple with dragon anatomy. Both Breakthrough and tvo say their dragons are quite different from Dudley. Although both are dragons, they have different skin color, facial structure, teeth, fingers, clothing, torso and body.

The entire brouhaha will get the court into a tangled mess of counterclaims and warranties. The lesson for all creators is that spending time documenting your creative work saves you from messy fights if your idea turns out to be a bonanza.

The end of WIC

as we know it

When Emily Griffiths decided, two years ago, to sell WIC Western International Communications to Shaw Communications she unleashed a firestorm of bidding, counterbids and litigation. The prize was a major stake in the Alberta and Western Canadian broadcast business. Jim Shaw and Izzy Asper, the executive chairman of CanWest Global Communications, battled it out in the media, in boardrooms and in the courts.

It took the crtc’s intervention, by threatening to call a hearing into wic’s ownership, to get the parties back to brokering. Corporate consolidation in the media and communications industry may be inevitable. But it isn’t pretty, as it happens.

Parody must be funny – most porn isn’t

The old excuse ‘it was a joke’ has been quite literally upheld in an odd copyright case last year. A maker of porno films had lifted plot and characters from a popular tv sitcom, and placed them in an orgy.

The sitcom was itself somewhat outrageous. It caricatured Quebec suburbia, with a couple consisting of a wife, clearly played by a man dressed in a floral robe, and a husband, who wore a large, obviously fake beard. It was a smash hit with Quebec audiences. The producer of the sitcom was not amused. He sued.

But at trial, he lost, since the porno filmmaker admitted that the characters were recognizable by their costumes and mannerisms, but he successfully argued that copyright law recognized that parodies were within the fair-dealing exemption.

Quebec’s Court of Appeal disagreed. They found for the sitcom. Simply adding pornographic activity to characters from another writer’s work does not constitute parody or fair use.

The fair-dealing exception only applies to a parody where the purpose of the parody is within the purposes within the Copyright Act, particularly the purposes of criticism. Although it found that criticism may be humorous or comic, it held that a claim of parody can’t be used to shield what is truly a copyright infringement.

Since the porn film did not aim to criticize the sitcom, it was neither parody nor criticism. Lifting characters was found to infringe copyright, motivated strictly by commercial opportunism. So if you’re tempted to rip off characters – don’t – or make them screamingly funny.

Internet tilts at the

broadcast establishment

As the year closed, the first skirmish in what is likely to be a major confrontation between old and new media. An Internet company, iCravetv, started to make available, over the Internet, the broadcast signals of the major broadcasters in the Toronto area. It claims to be a retransmitter – in the same way as the cable companies.

The broadcasters have wondered for a while how the Internet will affect their business. Broadcasters across the world are focusing on this Canadian case.

Since McMillan Binch is involved, we won’t say more, except for the prediction that the coming battle has major implications for all concerned, and that the whole world is watching. This story continues.