Re: copyright under stress

On Tue, 06 Jun 2000, John Lederer <johnl[_at_]ibm.net> wrote:
>
> It seems to me that this discussion has a divergence that ought
> be recognized:
>
> (1) Moral right. This was expressed as "If I create something it
> is mine, not yours, and not the public's"
>
> (2) Legal right. Copyright laws grant monopolies for public policy
> reasons (to expand knowledge).
>
> The moral right, so far as I can see, really has no justification
> for a split between "information" and "expression". If creation
> is what creates ownership, then surely the creation of an idea is
> important and not the matter in which it is expressed, nor should
> someone be able to appropriate by merely rewording.

Your US-centricity has fatally undermined your argument. (2) is true in the US and just about nowhere else. The basis for copyright law in Europe, the UK and Australia is much more nebulous and, to varying degrees much closer to (1) than (2).

Despite this, both Australia and the UK recognize the idea-expression dichotomy (I have no idea about Europe). The reasoning is that copyright is not about protecting "ideas" but protecting "works". In fact, because we (that is Australia, the UK and other countries in that tradition) protect sweat of the brow, this has complete logical consistency (some might say surprisingly so ;-). An idea is mostly inspiration, a work is mostly perspiration - an expression involves taking an idea and doing some work to fix that idea in some concrete form. The moral right is based primarily on the effort rather than the inspiration. If you want to protect an idea in Australia, you have to use trade secret or patent.

> The problem with the moral right is that all thought (and expression
> for that matter) consists of borrowing. There is a historical first
> novel -- and all succeeding novels borrowed the concept of a "novel".
> We all build off of others -- hubris, ate, nemesis remains a staple
> of fiction from Homer to Hollywood. Music is almost always a
> development on prior works.

Hence the UK and Australian position and the idea-expression dichotomy. The originality of an idea is extremely hard to justify but originality based on sweat of the brow is relatively simple. Our courts recognize this and have no problem with the dichotomy.

> Other expansions include the expansion in subject matter -- software
> copyright without the disclosure of the software code is a
> particularly egregious one. Why should Microsoft obtain a monopoly
> in its code when that code is kept secret and does not go to expand
> our base of knowledge?

Art works are protected without the requirement to disclose how the particular affect was achieved and this protection predates software protection by many decades. I also disagree that copyright was "expanded" to include software. Computer programs are expressions designed both for communicating ideas to humans and embodying ideas in a fixed form (as well as the other functions that they perform). They fit quite nicely into the copyright paradigm.

In the absence of disclosure, reverse engineering is still permitted (so long as it doesn't violate DMCA) to get at the underlying ideas. I think you are confusing patent with copyright here. Patent is about disclosure in return for protection, copyright has no disclosure component to its "furthering the arts and sciences". One could argue that the right of first publication encourages the arts by encouraging people to experiment confident that they can prevent any failed experiments from being distributed. The arts and sciences can be furthered by preventing disclosure! While encouraging disclosure is one way to encourage the arts and sciences, it is certainly not the only one (and not the primary one for copyright).

> Terms, of course, approach the ridiculous. The increasingly long
> terms, retroactively applied, apparently under the impression that
> with sufficient incentive the dead will rise from the grave and
> start writing again, are difficult to square with the legal theory.

On this you have my full agreement. I think 20 years is closer to reasonable for published works, maybe less for software and more for unpublished works. The chances of achieving this are next to 0.

> In any event arguments that mix " moral right" and the "legal right"
> are likely to confuse rather than clarify the issues.

Since the US is part of a global economy (largely of its own making), and the basis of the legal right in other places is actually the moral right, I don't think you are going to have any luck at all with this line of reasoning, particularly as any deviation from the Berne convention and WTO protocols will result in severe repercussions. The US has no choice but to negotiate at least with Europe on changes to copyright law.

--
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
| Postal address:  Multimedia Database Systems, RMIT
|                  GPO Box 2476V
|                  Melbourne 3001
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|	simul iustus et peccator
<tja[_at_]io.mds.rmit.edu.au>