Re: copyright under stress

On Thu, 8 Jun 2000, Timothy Arnold-Moore <tja[_at_]io.mds.rmit.edu.au> wrote:
>
> 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.

My legal history is weak, but isn't the history of copyright in the UK largely that of a statutory right (#2) until recent times?

The original impetus, as I recall, was to protect the capital investment in setting type.

> > 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.

How does the UK and Australia treat classic "sweat of the brow" cases such as directories? Don't I recall a recent WPTO position on databases implying that the theory of ownership by sweat is also recent?

John

John Lederer
<jhl[_at_]dewittross.net> Received on Mon Jun 12 2000 - 20:59:07 GMT