Blog exclusive:

WNYC's On the Media (which I listen to in podcast form through iTunes, because why can't my iPod or iPhone receive over-the-air AM/FM broadcasts?) is one of my favorite programs, and it's one I would recommend to anyone in the media business or interested in the media business. They routinely address in an intelligent manner the current issues facing not only journalists but also producers of other kinds of media as well as consumers of media. One of their intermittent features is titled, "Present and Future Business Models to Monetize the Newspaper Industry," and it comes with its own catchy jingle.

I have a lot of respect for hosts Bob Garfield and Brooke Gladstone. But in a recent episode, I heard an exchange that disappointed me in my intellectual-property-law-geek mode.

Last week, our own Richard Bingler commented on some of the trademark enforcement measures being taken in conjunction with the 2012 London Olympics. This has been a story widely observed in a variety of media, not just the articles linked in Richard's post. Indeed, On the Media itself addressed the issue in its July 27th edition. In a four-minute segment on that episode, Gladstone interviewed Esther Addley, senior news writer for The Guardian of London, about the "confusion and anxiety" created by the strict rules being enforced to protect the branding rights of sponsors. (Addley herself wrote about the Olympic "branding police" back in April.)

Now that I've set this up, I'm going to change tacks, because this particular post isn't about branding enforcement at the 2012 Olympics. Rather it's about Gladstone and Addley's use of the term "copyright" when talking about it. The relevant sentences:

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 Gladstone: So, The Independent reported that even as London was scrambling for staff to secure the Games, hundreds of highly organized, uniformed Olympic copyright cops stood ready to enforce the sponsors’ marketing deals. Is that true?

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Addley: [W]hat's interesting about this law is it goes beyond kind of copyright law.

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So, we're talking about branding here, and these branding rules are being promulgated pursuant to authority derived from the London Olympic and Paralympic Games Act of 2006, 2006 c. 12, and its predecessor statute, the Olympic Symbol etc. (Protection) Act of 1995, 1995 c. 32. The 1995 statute was aimed at "the use for commercial purposes of the Olympic symbol and certain words associated with the Olympic games," and the 2006 statute expanded its scope.

Now, for those with expertise in IP law, there are several words here that act as beacons, such as "symbol," "words," "association," "commercial use," that announce this statute as being about trademark or related law, not copyright law. Forgive me if I state what to many readers might be all too familiar, but copyright law is about granting exclusive rights regarding creative works, not about granting exclusive rights regarding the commercial use of symbols and words associated with some particular entity. That's branding, that's trademarks.

Yet, On the Media, a (necessarily) media-savvy operation used the word "copyright" without hesitation or second thought. This is more than trivial. While all forms of intellectual property protection have become controversial to some extent or another, particularly with the rise of the internet age, it's dangerous for the general public, and for voices of authority, like public radio media reporters, to confuse them.

Trademark and copyright protections (and patent protections, for that matter) derive from different intent, motives, and purposes, and are given differing scope, breadth, and depth. The problems relevant to and the solutions sought for each kind of protection are different, and this degree of confusion sets up a situation in which finding the balances between the interests of rightsholders and the public become more difficult to find.

And then let's go to the final use of the word "copyright" in this segment:

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Gladstone: What do you think is the most extreme example of copyright protection that you've seen so far, since this process was inaugurated? 

Addley's reply to this query fairly made me fall out of my seat, because her evaluation of the "most extreme example of copyright protection" was that it was the fact that all payments at the Olympics could be made only by using Visa credit cards—even cash was not accepted. Not only is this not a copyright issue, it's not even a trademark issue or any kind of intellectual property issue at all!

The danger here is that outrage over strict sponsorship deals, like the one between Visa International and the London Organising Committee of the Olympic Games may bleed over into outrage regarding other (related) areas, such as trademarks, or even other entirely unrelated areas, like copyrights, making it even more difficult for policymakers and the public to achieve appropriate policy balances.

I still have a great deal of respect for Gladstone and On the Media and I would hope that important sources of public information like it would be more careful in this respect.