Re: Some Thoughts on Copyright Term

On Fri, 13 Nov 1998, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> The colloquy among Messrs Roettinger, Phillips and others regarding 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 rigorously 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 copyright, 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."

While I agree to a certain extent with this comment, I fail to see how scenes a faire could arise in a perpetual, rigorously enforced copyright environment as the second use of such a pattern would be infringing so no pattern of story line could arise in a particular genre. I fear that the idea/expression line is often drawn rather closer to the idea side of the equation than is appropriate, particularly with respect to plots and film versions of stories. The fine distinction between similarity of an idea and similarity of expression seems to be too often lost.

Should the use of a world created by a fiction author be a copyright infringement (or perhaps more appropriately a trademark infringement)? Should use of the same characters? The same plot with different characters and setting? The same plot with different characters and the same setting? When do these stop being ideas and start being expression of those ideas? The line is far from clear and the courts often reflect this lack of clarity in similarly cloudy judgements.

-- 
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
| Postal address:  Multimedia Database Systems, RMIT
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<tja[_at_]mds.rmit.edu.au>