With the 2010 Winter Olympic Games scheduled for Vancouver, the Canadian Olympic Committee has set the goal of "owning the podium." Today the Olympic Committee took the first step toward another form of ownership - language. Industry Minister Maxime Bernier introduced Bill C-47, the Olympic and Paralympic Marks Act, legislation that provides the Vancouver Olympic organizers with remarkable power over the language and symbols associated with the Olympics. The legislation is supposedly intended to deal with ambush marketing, which are attempts by businesses to associate themselves with the Olympics without becoming official sponsors. Similar legislation has been introduced in other countries that have hosted the Olympics, though there are questions about the effectiveness of the approach.
While it is understandable that the Olympic organizers want to maximize the marketing potential of the games, the bill raises several concerns.
First, as David Fewer of CIPPIC notes, the organizers already have trademark and copyright law at their disposal, which begs the question of whether additional legislation is necessary.
Second, if a new law is needed, there are concerns that this bill may be overbroad and limit freedom of speech by curtailing criticism and parody of the Olympics. The bill contains an exception that seeks to address the concern by providing that "for greater certainty, the use of an Olympic or Paralympic mark or a translation of it in any language in the publication or broadcasting of a news report relating to Olympic Games or Paralympic Games, or for the purposes of criticism relating to Olympic Games or Paralympic Games, is not a use in connection with a business." This may be enough to address the issue, though many artists, bloggers, and social commentators may think twice before targeting the Olympics for fear of facing legal demands arising from this legislation (criticism and parody are not the same thing and will a court treat a blogger coverage as a news report?). Indeed, the arts community expressed these concerns during the Sydney Olympics and questions have already arisen about this issue in Vancouver.
Third, and IMHO most importantly, even the most balanced implementation of this law still represents an extreme example of special interest legislation. Bernier has no time to deal with spam, spyware, privacy, or net neutrality but commits to legislation on behalf of the organizers of a sporting event? Moreover, the legislation grants the Olympic organizers enormous power to police the use of anything approaching association with the Olympics. For example, the bill contains a list of expressions to be considered by the federal court to determine whether someone has misled the public into believing that their business is endorsed or associated with the Olympics. The expressions include: winter, gold, silver, bronze, sponsor, Vancouver, Whistler, 2010, tenth, medals, and games. While this looks like a recipe for abuse, the Olympic organizers have assured the public that it "is committed to applying the proposed legislation in a disciplined, sensitive, fair and transparent manner." Perhaps, but many Canadians may justifiably be left to ask whether anyone should be granted the right to govern the use of generic words such as winter or Vancouver.
Update: Several people have written arguing that I've misrepresented the bill and that it is indeed balanced. I've re-read my posting and stand by what I said - I think there are questions about (i) whether the bill is needed, (ii) whether it provides sufficient protection for parody and other use of the word Olympics in a manner that might be treated as commercial under the law, and (iii) whether it is appropriate to create this form of special interest legislation.
That said, there are precautions in the law. I pointed to at least one in the initial posting, noting the exception for criticism and publication or broadcasting of a news report (though I suggested that this might be incomplete). There are others, notably for businesses that used these marks before March 2, 2007 (ie. Olympic Pizza might be ok if it was established last week but it is now off-limits) and protection for some of the expressions expire after 2010 (though other countries have dropped all protections after the Olympics concluded). It should be noted that there are some unusually strong measures too. For example, a court can order all goods using the marks to be seized by Minister of Public Safety and Emergency Preparedness, as if public exposure to non-authorized Olympic goods were a public safety issue.
As for protections for generic terms such as winter, Vancouver, games, etc., I thought I was clear that this protection is a factor to be considered by a court in determining whether a violation has occurred. The combination of words - Games, 2010, Tenth, or Medals on the one hand, with winter, gold, sponsor, Vancouver or Whistler on the other - would be evidence to be considered by the court in assessing whether there has been a violation of the law.
Saturday March 03, 2007