RE: "Against Intellectual Property"

I'm in sympathy with a lot of Mr. Cole's remarks. However, I have to take exception with this:

"I would never consider a second photograph a copy of the first if a second camera was involved. Copies use copying technology; re-creations (in my mind) are something else entirely."

It's important to recognize that when copyright law was first developed the only "copying technology" was ink and paper. Copyright law was around long before it was applied to xerography--the exact photo-reproduction of an original. Copyright law was designed to protect against two different things: (1) rote copying of the work of another without authorization, and (2) what is often called "plagiarism," the unrestrained borrowing of significant elements or features of the original work of another. The use of copyright to protect original works against unauthorized photocopying, using copying technology, is a comparatively recent arrival on the copyright scene, definitely not part and parcel of what copyright law is about. I suspect that what Mr. Cole calls "re-creations" are precisely what copyright law was originally intended to protect against. I can infringe a photographer's work by using a second camera just as I can infringe a writer's work by using my own pen (or computer).

Robert C. Cumbow
 Graham & Dunn PC
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-----Original Message-----
From: Roland J. Cole [mailto:cole[_at_]spi.org] Sent: Tuesday, August 29, 2000 6:53 AM
To: Multiple recipients of list
Subject: Re: "Against Intellectual Property"

The digital age has created a situation where actual, literal, bit for bit, byte for byte copying is extremely easy. That kind of copying is one sort of activity; another is represented by what jazz musicians do to standard folk songs (or "perhaps" what George Harrison did to a song sung by the Chiffons.)

I admit I am in the shorter is better camp (say 28 plus renewal for 28?) when it comes to actual literal copying. Moreover, I am in the "keep protection extremely narrow" when it comes to derivatives, jazz extensions, etc. Especially if copyright lasts a long time, its scope should be narrow (literal copying). For instance, I would never consider a second photograph a copy of the first if a second camera was involved. Copies use copying technology; re-creations (in my mind) are something else entirely. (I recognize that many judges and juries would disagree, and consider a re-creation a copy; I just think the world would be better off if they did not.)

I would also note that in today's world, making copyright longer does not necessarily protect the creator. Both record companies and publishers are famous for demanding full assignment of copyright, and in some cases suing the original creator when he or she "came to close" to repeating a work so assigned. The termination right provides some protection; but so would a renewal scheme, where only the original creator could renew. So would a shorter copyright term, or a narrower scope to copyright.

Roland J. Cole, Executive Director
SOFTWARE PATENT INSTITUTE
11 SOUTH MERIDIAN STREET
INDIANAPOLIS IN 46204-3535
317-231-7799; fax 317-231-7433
cole@spi.org; http://www.spi.org

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