Overreaching copyright: an old problem getting bigger every day

An interesting piece from the Electronic Frontier Foundation about how the "content industry" (a nicely disparaging name for them, unless that is the first word is an adjective - but they are clearly discontent, or perhaps they are malcontents) can use the DMCA as a tool of censorship, by banging out takedown notices with no regard for fair use. They can get stuff that offends them taken off-line for quite a long time - well, in internet terms, in which time moves more rapidly than usual, a very long time, effectively for ever in some cases. It shows how important exceptions are to the copyright system, to prevent over-reaching or the sort of absolutism of which I and many others have written before. And the US notion of "fair use" is so much wider than our "fair dealing" exceptions!

Trade marks - indefinite copyright?

If your copyright expires, how about using a trade mark instead? I was interested, and rather pleased, to read this posting on a blog entitled IP in the Digital Age, "the class blog for CPSC 182: IP in the Digital Age at Yale College" - not sure why that doesn't say "University", but maybe it's one of those transatlantic things: the link on the blog certainly leads to Yale University's website. Anyway, the point is that this business of using trade marks to supplement copyright protection is widespread, unduly restrictive and undesirable. At least, I think it is.

What's the solution? Not to try to make the two rights mutually exclusive, that's for sure. Tempting, but doomed to failure. That's a road you can only set off down if you haven't grasped the fact that trade marks and copyright are distinct pieces of property. It's easy to get hung up on the way that both rights protect seemingly-identical subject-matter, but the fact is that they don't. In the example cited in the Yale blog, there is copyright not in the cartoon character Popeye but in artistic works depicting him, and if you don't get that you're going to be floundering in the sea that is called intellectual property.

Likewise, a trade mark does not protect Popeye: rather, it protects the trade reputation or goodwill that attaches to the name or image or whatever. A trade mark is an indication of origin, even if nowadays it performs several other jobs - like (as Floyd J remarked at a seminar I went to last autumn) one of those multi-function tools you see in the Sunday supplements which enable you to do whatever you need to do to your bicycle. But the advertising function and the investment function - I can't remember any others off-hand - are linked as much as the source-indicating function to goodwill, so I think the statement at the beginning of this paragraph still holds. The problem is that trade mark owners are trying to extend the scope of trade mark protection, and trade mark offices are letting them get away with it. The problem is one of over-reaching trade mark protection (which is not to say that there's nothing wrong with copyright) and the solution is to put trade marks back in their box.

Discuss.