Leslie Chong is a J.D. Candidate at Osgoode Hall Law School
When Jose Ojeda Vidal penned the note “Estamos bien en el refugio los 33” (“We are okay in the refuge, the 33 of us”), it is unlikely that he could have imagined the furor that those seven words written in red ink on a scrap piece of paper would cause. As the seventh Chilean miner to be rescued after over two months trapped underground, he is now at the centre of a copyright controversy spurred by the registration of that now-infamous Spanish phrase.
A Chilean writer, Pablo Huneeus had registered the words on Mr. Ojeda’s behalf “after seeing Chilean President Sebastian Pinera handing out copies of the message to the British Queen and prime minister during his tour of Europe”. Huneeus’ goal was not to commercialize the phrase that the President claimed to “belong to all Chileans”, but rather to prevent the President from reaping the rewards of Mr. Ojeda’s creative labour. Since being discovered, the phrase served as a token of hope and has been seen on clothing, stickers and other novelty items in support of the miners’ rescue.
While the note is still in the President’s possession, the copyright in the written phrase has since been registered to Mr. Ojeda, prompting debate about whether copyright protection ought to have been extended. As some critics have argued, current copyright laws may be covering works that fall beyond the scope of those originally contemplated for protection by copyright law. While it remains to be seen whether Mr. Ojeda’s copyright registration will even stand the test of time, the rescue will continue to spark a flurry of copyright applications for other notable phrases and the rights to the miners’ story for films and books.
2 Responses
I doubt that registration in Chile creates a copyright where one didn’t exist previously, any more than do the registration systems of other states such as the United States or Canada; although it may help proof of title to any copyright that is found to exist. The idea that 7 trite words, whether in their original Spanish or in the equally obvious translation, rise to the level of an original literary work is preposterous under any country’s law of which I am aware; the claim would not be recognized in any Commonwealth country or the US. “Beauty is a social necessity, not a luxury,” is similarly punctuated phrase, & longer by 2 words, and yet the slogan was long ago ruled by the Court of Appeal in England, presided over by the redoubtable Scrutton (who had been an eminent copyright barrister and written a leading text on the subject), to have no copyright (Sinanide v La Maison Kosmeo (1928) 139 LT 365. Nothing since then, except wishful thinking by dreamers and the ignorant, has changed that position in the UK or elsewhere.
Perhaps the miner might be better off by seeking a trade-mark registration for the phrase on the basis that he proposes to use or license it to sell some good or service (e.g., the provision of lectures on mining safety, or toy miner helmets); but at some point he would have actually so to use the mark, or lose it. And any registration & rights would be confined to the country of registration.
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