past PD strengthens present PD (Was: Some Thoughts on Copyright Term)

Kerry L. Konrad <k_konrad[_at_]stblaw.com> wrote:

>

I thank Kerry Konrad for the thoughtful response.

It should be kept in mind that my remarks are part of the debate over the appropriate term of copyright. Many of the supporters of longer terms argue their case in terms that suggest that they believe that copyright should be perpetual; that the public domain should never have existed to begin with; that if we allow some works to be in the public domain, we should do so only as a grudging concession to past ages' lack of efficient police apparatus; that the public domain performs no positive function. I reject all these notions. Sometimes I will frame my response by imagining a hypothetical world ruled by what I percieve to be the maximalists's presuppositions: a world in which copyright has existed from the beginning of human language, and in which all colorable ingringement claims are brought to court. I find, on imagining such a world, that the public domain might not come into existence even in the form of such things as scenes-a-faire, and that in any case literature in such a world is strangled by law.

> The presence of a particular "selection" or "arrangement" in
> third-party works is useful primarily to show the lack of originality
> of the plaintiff's work, following the scenes a faire doctrine --
> i.e., "this is the way everyone has always done it." Whether or
> not the third-party work is in the public domain doesn't matter
> very much if at all for this purpose.

I think we are more in agreement here than not. The usefulness of works in the public domain for providing a standard by which to evaluate originality is precisely the point I was making.

Few things have "always" been done a certain way. The wide use of the dominant-seventh chord in music is a fairly modern feature. Its presence in MANY works, however, going back several centuries, is a different factual situation from one in which it were present only in a single third-party work. The use of the dominant-seventh chord in many past works allows us a reference point from which to evaluate the originality of its use in any present work. But many uses of the dominant seventh chord which are now commonplace might never have become so in a world of perpetual copyright rigorously enforced since the beginning of human music and language.

> Obviously, if the defense is that the defendant didn't copy from the
> plaintiff's work but copied from a third-party work -- an infringement
> defense -- it would be better to have copied from a p.d. work, since
> the author of that work can't bring its own claim against the defendant
> later on.

This is one of the things that makes the public domain so valuable. When the writer is still working, before any actions are filed, the use of the public domain can enhance confidence that no claims will be brought from any quarter.

> But copying from a copyrighted work will not necessarily be
> excused simply because a similar selection or arrangement can be found
> in a p.d. work, because both the copyrighted and the p.d. work could
> be original in the copyright sense and copyrightable.

If the selection and arrangement in the copyrighted work are in the public domain, then by definition the copyrighted work's copyright does not extend to them. The selection of name, city and law firm in West's reporters, and their arrangement in a certain order, is not original in West's latest reporters. It is COPIED from the practices of the house, or the ways of the trade. The editor of each reporter does not brainwash himself of all previous editing experience and re-originate the selection and arrangement of these items for each volume of the Federal Supplement. So why shouldn't a second-comer be allowed to "reverse-engineer" West's reports, using public domain reports as a reference, and extract those components that are in the public domain ?

> Novelty is not the test for copyright, and the existence of prior art,
> copyright protected or not, will not defeat copyrightability unless
> the plaintiff copied from that prior art.

As I have said elsewhere, judge Learned Hand's hypothetical magic poet has been bad for copyright law. If copyright should learn anything "at the school of patent" it is that the existence of prior art should in special circumstances invalidate copyright. Put another way, copyright's originality standard should be considered to differ more in degree than in kind from patent's novelty standard. If an invention should be strikingly new, and a design patent should be a step beyond the prior art, then a copyright should require a short step beyond the public domain. Judge Hand's magic poet should be denied copyright in his "Ode on a Grecian Urn" even if he COULD prove that he got it completely out of his head. If the result is EXACTLY the same, shouldn't I be able to copy the "Ode" from anywhere it occurs, whether in a book of Keats's poems or in a book of the magic poet's? The alternative stinks of the discredited sweat-of-the-brow theory. (Note aside: this is not to say that a "path-dependent" analysis should never be used in copyright law. But it might be best if the result is compared to the "path-independent" result, and if the reasons for applying path-dependence are made explicit.)

I also have noticed that some of the copyright cases I most love to hate, such as Fisher v. Dillingham and Wihtol v. Wells, are cases in which the judge made much of the distinction between originality and novelty.

But all this is off the main point, which is that "present" public domain (ideas, commonplaces, scenes-a-faire, music-a-faire, the "cocktail pianist vairations" of Woods v. Bourne ) doesn't drop from the sky. Such things are created over time. Their presence in the "past" public domain (works on which the copyright has expired) provides a term of reference which allows us to distinguish what is original from what is part of every artist's inheritance--those things which we copy from the past even without thinking of it. If a worker in the present has (consciously or unconsciously) copied something from the past, it makes no artistic difference whether a second comer copies the same thing from the past or from a present copyist. So, for example, if a guitarist writes down a set of three-chord-theory guitar chords for a public domain melody, are the chords copyrightable as an original work of authorship? They are original in the sense that the guitarist got them directly out of his head. But I think that under the standard of Woods v. Bourne the chords would not be copyrightable, and I think this is the right standard. The guitarist learned three-chord theory by copying from others. That is how music progresses: musicians learn from one another. Others should therefore be allowed to learn from our guitarist, by COPYING his chords if they are such as would (in the language of patent law) be "obvious to one skilled in the art." Denying copyright to simple chordings makes it easier for others to become equally "skilled in the art." And the vast body of works of the past helps us to distinguish which of the innovations of the past have become today's commonplaces.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Nov 13 1998 - 17:14:32 GMT