Re: thought for the week

On Tue, Jul 27, 1999, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> "If man has any 'natural' rights, not the least must
> be a right to imitate his fellows, and thus to reap
> where he has not sown. Education, after all, proceeds
> from a kind of mimicry, and 'progress', if it is not
> entirely an illusion, depends on generous indulgence
> of copying."
>
> --Benjamin Kaplan, _An Unhurried View of Copyright_,
> Columbia University Press, New York, 1967, p. 2

One key fact many copyright people fail to appreciate (or try to avoid) is that mimicry (copying) is an integral component of the creative process; many forms of "legitimate" "art" involve some form of copying. Consider a jazz solo that references a standard tune, collage, parody, a cover version of a song, Chinese traditional painting and calligraphy, a new cinematic take on a Shakespeare play or Austin novel, digital samples in a rap song.

In this context, many acts of copying should be viewed not as exceptions (e.g. fair use) to the rule, but, as Kaplan puts it, a natural right. Anglo-American law tries to deal with this conflict between copyright and reality by requiring *substantial* copying, a nebulous and unpredictable concept. Query whether this approach avoids the issue. Is creativity fostered by declaring ancient approaches to art and learning exceptions to the general rule?

Paul Tackaberry
Adjunct Professor (Copyright), Osgoode Hall Law School Baker & McKenzie, Toronto
paul.tackaberry[_at_]bakernet.com
http://www.ipitlaw.com/ Received on Wed Jul 28 1999 - 14:31:32 GMT