Is the Intellectual Property of Public Agencies Public Domain?


It has been very interesting watching a battle brew between Toronto transit fans and the Toronto Transit Commission.

A few weeks ago, John Martz, the man behind the blog Robot Johnny, posted a modified version of the TTC’s iconic black background subway map. In it, he took every station on the line and fed it through an anagram machine. The result was quite funny, with stations like Ossington renamed Gino’s Snot and Bathurst becoming Butt Rash, and Johnny received some well-deserved links from the blogosphere, including Boing Boing’s Cory Doctorow.

It’s important to note that John Martz’s activities weren’t being performed in a vacuum. There was a bit of a fad going around, remixing the maps of transit agencies across the world, from Amsterdam to Vienna. After the London Underground got remixed, Martz decided to do the same for Toronto. He promptly received the same treatment as the makers of the remixed London Underground map: he was contacted by lawyers and told to remove the map or be sued for copyright infringement.

To date, only lawyers for the London Underground and the Toronto Transit Commission have acted against the makers of the modified transit maps. John Martz complied with the legal request, and produced a new map, which did not infringe upon the TTC’s copyright. He also posted the reason he was doing this. The resulting wave of negative publicity in the blogosphere caught the notice of the Toronto Star, who wrote an article on the contretemps.

This is all starting to come to a head. A couple of days ago, transit fan Sean Learner, who is already known among transit circles for putting together the TTC Rider’s Efficiency Guide explicitly challenged the TTC’s legal department, reposting the copyright-infringing map and issuing an open letter to TTC Chairman Howard Moscoe demanding that the TTC rescind its cease and desist order, and apologize to Martz. It remains to be seen what the TTC’s response will be.

For Sean Learner and Cory Doctorow, this goes well beyond a matter of copyright. In their view, given that the TTC is a public agency funded by the riders’ fares, Torontonians’ taxes and advertising, then the intellectual copyright of the TTC belongs not to its commissioners, but to the public at large. In Sean’s words:

The TTC belongs to the people of Toronto; not to a few employees who happen to be in positions of power. The people of Toronto pay for the TTC at the fare box, through taxes, and through being a captive target market for advertising on the system. We believe it is our moral right (and possibly our legal right under fair dealing laws) to be able to create art such as the anagram map.

Cory Doctorow goes as far as to call the matter censorship:

I grew up riding the TTC, and the map is burned into my subconscious. It’s part of every Torontonian’s experience of the city, a part of the cultural fabric. Culture gets remixed — that’s what happens with it. Trademark is supposed to protect rightsholders from competitors who use their marks to confuse the public in the course of commerce. No one who saw RobotJohnny’s genius map would have confused it for a second with a real TTC map and sent him a subway token. The TTC’s legal bullying here is completely needless — they face no risk and no loss from letting their riders make turn the map into their own personal remix.

Torontonians go to bat for the TTC all the time, shouting at the province and the feds to beef up funding. We’ve put up with the disruption of the Sheppard Subway, we’ve lived through the years when they couldn’t even get the platform clocks to work. Where the hell do they get off wasting legal fees threatening bloggers for producing noncommercial humourous, harmless remixes?

John Martz is mostly keeping his head down, although he is dutifully acknowledging the support he has received.

There is no doubt, in my opinion, that the TTC’s legal department is being over-exuberant in going after Martz for his own artistic expression. And I hope that Sean Learner’s activities bring the TTC’s commissioners to their senses, especially considering that no other transit agency outside of London feels threatened by the presence of anagrammed maps of their systems. But does the public truly own the intellectual property of public agencies? Do they have the right to take government logos and icons and use them as they please?

This controversy echoes the conflagration over Jim Elve’s imitation of the Government of Canada’s web page style for the original version of his Blogs Canada website. He was also issued with cease and desist orders, and received considerable support from other bloggers in the Canadian blogosphere.

The relationship between copying words and plagiarism is clear to me, but the relationship between the “look and feel” of something is somewhat less so. Consider the Government of Canada’s website and now consider BlogsCanada. What ideas from the Government of Canada’s website did Jim Elve “steal”, really? And did Jim Elve just “steal”, or did he use the original ideas to build something new and different? I can understand a webmaster getting upset if he looked at copycat site and saw a CSS stylesheet or HTML code that was a direct copy of his own (this is hard work unacknowledged), but Jim didn’t steal code; instead, he worked hard to build a site from scratch that mimicked the Government of Canada’s website. And, in my opinion, that makes all the difference.

The French protect parody for this reason, and for the most part, the courts in North America seem inclined to take the French system’s lead. We value freedom of speech, and that especially includes the right to criticize and mock. Taking characters, logos, trademarks, etc, and twisting them to highlight their ridiculousness to the world is a valid (some would say vital) component of democracy. It is for this reason that the folks at PaulMartinTime took on the people behind Paul Martin Times and won.

But Jim Elve is not ridiculing the Government of Canada or its website. Indeed, his parody falls in the “imitation is the sincerest form of flattery” category. He’s picking up on the Government of Canada’s website’s usefulness in bringing important information to the Canadian internet and applying it to his very useful service of publicizing Canadian blogs. I’ve done something similar, and have had people come down on me for it.

The incident wherein the TTC came down on me came in 2000 when a contributor to Transit Toronto extrapolated what the black background subway map might look like with the Sheppard subway added — two years before that subway was due to open. In protecting their copyright, the people who contacted me explained that they appreciated Transit Toronto’s service as a library, but they didn’t want a modified version of their copyright materials existing outside their control for fear somebody else could pick up the map and think it was the real thing. For this reason, when Mr. NC Duong set up a website proposing a massive expansion of the Toronto subway network, I warned him that he should tweak his map so that the TTC couldn’t complain. His white background map ended up surviving his website and made the rounds in the blogosphere last year, and even appeared in the Globe and Mail.

Jim stood his ground against the government of Canada’s lawyers, and the promised legal action did not materialize. Jim later redid the design of his site on his own volition. So the matter of parody/cultural remixing and fair use remained unresolved.

I think we have stumbled into a legal grey area. We protect intellectual property rights for a reason. Canadians should not be allowed to use the government of Canada logo with impunity; for instance, slapping the logo on a product and pretending that it’s government approved or sanctioned. But that isn’t what happened here; here, individuals are remixing the logos of public agencies for artistic purposes, and only idiots would think these are official products and go looking for Gino’s Snot station. But where do we draw the line?

It is important to point out that while nobody outside of London or Toronto has acted on these anagram maps, none of these transit agencies have maps that are as instantly recognizable as London or Toronto (inside of Toronto, at least). The London Underground sells images of its maps on mugs, t-shirts and serving trays, and has made a business out of this image. Toronto has not seriously pursued a merchandising campaign using its subway map design, but it is clear that it wants to leave that option open. If the London Underground and the Toronto Transit Commission were private businesses, their actions would make sense. The London Underground and the TTC have the ability to sell themselves and open up a new source of revenue, and such cultural remixes could harm that. The question is, should we care given that, techically, London and Torontonian taxpayers own their respective transit agencies?

Is the intellectual property of public agencies public domain? What happens if the London Underground or the Toronto Transit Commission isprivatized, or their merchandizing departments sold off or contracted out? Is it possible for the public to lose its copyright rights in these instances? Is parody really protected under North American laws? Should it be? Are there limits to artistic expression? Should there be? Where, if anywhere, do we draw the lines?

We need a discussion on this, and I invite comments below as a small surrogate of the venue we should be having this discussion in. I hope, once this topic is widely discussed, we come to a consensus that protects John Martz’s right to put the TTC map through the anagram mixer.

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