Re: Some Thoughts on Copyright Term

From: Timothy Phillips <hrothgar[_at_]telepath.com>
Date: Sat, 14 Nov 1998 14:21:28 -0600 (CST)

On Fri, 13 Nov 1998, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:

>

> The colloquy among Messrs Roettinger, Phillips and others regard-
> ing the debt that all authors have to pre-existing works has gone
> a bit far in its assertions of what is protectable. Mr.
> Phillips stated that "In a world of perpetual copyright rigorous-
> ly enforced since the beginning of human language, there might be
> very little mythology at all, since works of the mind would never
> be considered shared." But even in a world of perpetual copy-
> right, facts, ideas, and scenes a faire (standard elements of a
> particular genre) would still be available for everyone's use.
> Indeed, that is part of what is customarily understood by the
> term "mythology."

It is my belief that in many cases the line between idea and expression is not easy to draw; that sometimes (perhaps especially in music) the idea must find its way into a great deal of expression implicitly before it can be abstracted and made explicit; that one of the benefits inherent in copyright expiration is that it provides an extra layer of protection for the freedom of ideas in a world in which ideas and expression are not always separable.

Under current law any single idea may be copied from anywhere. But an arbitrary association of several ideas might be protectable as a "coordination" of those ideas. The dwarves in Tolkein's novels, for example, are a "coordination" of the following: (1) magical little people who (2) live underground (3) in a world of sword and sorcery and (4) specialize in mining and metallurgy, and (5) are named Fili, Kili, Durin, Thorin, Fundin, Dwalin, and so forth. Under our laws, the "coordination" of ideas (1)-(5) is in the public domain for two closely related reasons: (a) the literary sources on which Tolkein drew are in the public domain, and (b) literature is older than copyright law, and copyright law in its modern form was designed to promote literature. It was therefore neither the law's purpose nor practical politics to restrict too much the freedom to develop new genres that makers of literature were already accustomed to enjoying. These factors meant that even clusters or "coordinations" of some ideas are unprotectable at a certain high but vague level of abstraction.

In a world of perpetual copyright strictly enforced from the beginning, the society would have no prior experience of literature: no experience in identifying ideas and expression; no experience of how much freedom is needed for new genres to develop; no experience of why it is good that new genres should develop; no commonsense about what level of abstraction the line of protection should lie at. (Even for us there is no clear answer.) The first individual to propose a certain "coordination" of ideas, such as (1) to (5) above, might be able to prevent the creation of any other stories using this "coordination". Even if the idea/expression distinction were accepted in this hypothetical world, the level of abstraction at which the idea-cluster resides might be judged to be low enough to be protectable. This would place a frictional force against the creation of new tales about magical little people who live underground. The genre would reach saturation at a much smaller number of tales than would be possible in a world in which copyrights expire. The genre might never mature enough to acquire any "standard elements" at all; no scenes-a-faire would ever come into existence.

This effect is even easier to see in the field of music, where the line between "ideas" and "expression" is harder to draw. According to my understanding, one ordinarily writes a new Irish jig by first becoming experienced in performing existing Irish jigs. Since many such works are in the public domain, this is easy to do. Just pick up your fiddle or whatever, and play, anywhere, anytime, for any reason, without paying tribute to any monopolist. Once one has become experienced at performing Irish jigs, one might have absorbed enough of the tradition to be able to create a new work, which will involve rearranging the "ideas" of Irish jigs--short musical motives and tonal progressions (which are also "expression")--in a new configuration. If all Irish jigs came suddenly under copyright, the genre would be found to be supersaturated. It would be almost impossible to create a new Irish jig without being accused of unconscious infringement of one or more existing works.

All this assumes that ideas would always be considered uncopyrightable. In the world of perpetual copyright which the extensionists seem to desire, the governing concept in copyright law would be protection of "property" rights, rather than the promotion of the arts. In such a world I would not be too hopeful that ideas and scenes-a-faire would remain forever free of copyright.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Sat Nov 14 1998 - 20:22:20 GMT