The clerk probably meant patented, not copyrighted.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of David Dailey
Sent: Wednesday, June 29, 2005 5:10 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] copyright on house plants?
I visited a nursery last week. A pretty little plant labeled "fuchsia"
had
a curious label on it: "unauthorized propagation prohibited." Hmmm... I
find IP law sort of like a mad wonderland anyhow: logic just enough
askew
to remind one of Borges, Fellini, or Escher -- I think it is like that
for
most of us outsiders.
So, I just had to ask. I asked the clerk who became visibly befuddled
with
an expression I dared not photograph or otherwise propagate. We tracked
down the head nurser who explained it thusly. "The plant is
copyrighted."
My own facial expression apparently encouraged him to continue:
"Officials
come to inspect the nursery from time to time to make sure all of our
plants are licensed."
"What sort of officials?" and "what if I buy the plant and it goes to
seed"
and "who trains these officials" and "do you really mean 'copyright' or
might you mean 'patent', instead?" and dozens of other questions came to
mind. I have learned not to ask the "do you really mean copyright or
might
you mean patent (or trademark) instead" question in polite company -- it
sends many people into a trance and seems to anger the others.
But I did ask the "what sort of officials" question. I was imagining an
SIAA or an ASCAP or RIAA for plants. They would train armies of
botanists.
The botanists armed with portable DNA labs would tour the country in
airstream trailers together with an entourage of attorneys, federal
agents
and shotgun judges stopping at each nursery, and yucking it up after
each
successful bust. Or perhaps there is a whole branch of the government
cloned from some secret branch of the OSS that polices our nation's
fuchsia. The nurser explained it was more like ASCAP-- they would come
in
(plainclothes), look at all the plants, and if they see any that need to
be
licenses, then ask the nurser to produce evidence of licensure.
And I did ask "what if I buy one and it goes to seed?" His answer:
"that's
not a problem since if it grows from seed, then it is a different plant.
It
is just clippings and so forth they worry about."
A wee bit of digging on the net tells me it is really neither copyright
nor
patent but plant law. Chapter 57 of Title 7 specifically deals with the
1970 Plant Variety Protection Act which provides legal intellectual
property rights protection, to developers of new varieties of plants
that
are sexually reproduced. The 1994 amendment to the act prohibits the
sale
of all farmer-saved seed without the permission of the variety owner.
I know that this forum is about copyright and not patents or plants, but
this is a category of IP law just so cool, I had to bring it up. It
points
to new ways of securing the rights of derivation. If the intellectual
underpinnings of an idea can be traced back in some unambiguous way
(like
ideational DNA -- should I file a patent now?) then some clever
legislators
will probably find persuasive an argument that all derivative thought
should be licensed.
David Dailey
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