Copyright on the Rocks

Photo by author

I was enjoying the hike along the rugged southern coast of Vancouver Island. Across the rippling waters of the Strait of Juan de Fuca, the snow-capped Olympic Mountains in Washington State glistened in the morning sun. Below me the sea crashed into the rocks and a seal poked its head through the fields of bull kelp. Bare-skinned arbutus trees twisted their smooth orange limbs toward the sky. As I rounded a rocky bluff, a familiar sign suddenly leapt out at me. Emblazoned on the rock ahead of me, as clear as day, was the universally known © sign. How did it get there? By whose hand? 

Closer inspection showed that it was created by a naturally occurring lichen formation (see photo above). But it was uncanny. It was as if nature had imprinted the scene with her own assertion of copyright. 

As I continued trudging along the rocky path, I couldn’t help but muse about that copyright sign. Was Mother Nature letting me know that she had copyrighted and laid claim to this magical scene? After all, copyright is all about protecting the rights of creators, and this led me to reflect on the greatest creator of all, whom we can call God, or Mother Nature, or the Great Creator or whatever you choose. (To each, one’s own definition). Was the Great Creator in the Sky asserting her or his right to this creation? The scene in front of me certainly qualified as original and creative (a beautiful morning like this surely did “not just happen”). But, as I explained in my blog last week, for a creation to be protected by copyright, there is that tricky problem of “fixation”. Also, we know that copyright does not protect ideas, only expressions of ideas. Was this scene an idea, or was it an expression of one–and exactly how do you separate one from another? (And was it “fixed” other than in my mind?) 

The Berkman Klein Center for Internet & Society at Harvard has an interesting discussion of the concept of originality and the exclusion of ideas from copyright protection. It points out that according to US copyright law;

 “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.”

It also notes that the Berne Convention states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information”, and that both the TRIPS Agreement within the World Trade Organization and the World Intellectual Property Organization (WIPO) Copyright Treaty state that, while expressions are copyrightable, “ideas, procedures, methods of operation or mathematical concepts as such” are not.

So what are some of the elements that clearly illustrate the difference between an idea and the expression of an idea, the latter being subject to copyright? Many examples can be given; for example there may be only one Harry Potter but J.K. Rowling does not have a lock on the market for stories about boy wizards, so anyone is free to write on that subject. Some topics are generic and mundane, and cannot be copyrighted but yet these generic elements could form the core of a copyrightable work. As I discussed in an earlier blog, a recipe (a “mere listing of ingredients”, according to the US Copyright Office) cannot be protected by copyright. However, while a recipe to bake bread cannot be copyrighted, Beard on Bread is a copyrighted work because of the creative expression regarding the many aspects of baking that James Beard put into that book. 

Yann Martel’s Booker prize winning novel (and later award-winning film) Life of Pi was based on the premise of a boy sharing a boat with a tiger on an oceanic (trans-Pacific) voyage. Martel was accused by Brazilian author Moacyr Scliar of stealing this idea from his novel Max and the Cats, Scliar’s novel written twenty years previously in which a Brazilian boy and a panther cross the Atlantic together in a boat. Scliar accused Martel of plagiarism, and worse, and his publisher contemplated legal action. Martel freely admitted he had been inspired to adopt the “boy and animal in boat concept” by reading a review of Scliar’s work, but said he hadn’t read the novel itself. It didn’t go to court. Scliar dropped the issue after a conversation with Martel, but it is doubtful that Scliar or his publisher would have had much of a legal leg to stand on. People sharing boats with animals is an idea. His novel was his expression of that idea, but so was Martel’s. 

Sometimes it is difficult to separate an idea from its expression. When these become conflated this is referred to as “merging” or the “merger doctrine”. In effect, under this doctrine the expression of the idea has merged with the idea itself. In such cases copyright does not apply because copyrighting the expression would result in constraining the free use of the idea. A good example is the so-called “jewelled bee case”. In this case a jewelled pin in the shape of a bee was the subject of litigation. Would a similar jewel-encrusted pin in the shape of a bee created by another jeweller be an infringement of the copyright of the original jeweller? This was the question the court had to address in Herbert Rosenthal Jewelry Corp v Kalpakian. The court decided on the basis of the merger doctrine that the idea of a jewelled bee could not be protected by copyright, although the defendants could not copy every aspect of the original piece of jewellery (which they had not done, arguing that they had derived the design by studying actual bees).  Because the idea of a bee and its jewelled expression could not be separated, making a jewelled bee was not an infringement of copyright. 

A similar concept to the merger doctrine applies in the area of writing, called as a term of art “scènes à faire”. According to Duhaime’s Law Dictionary, this encompasses “Elements of an original work that are so trite or common that they are not captured by copyright.” There have been several well-known cases in the US where the courts have ruled that common elements of a plot cannot be copyrighted. For example, two police dramas set in the Bronx both involving Irish cops, prostitutes, and drinking would not necessarily involve copyright infringement on the basis of these elements because you likely couldn’t tell a police story in that setting without involving such characters and storylines. The US case where the scènes à faire principle was first enunciated (Cain v Universal Pictures) involved accusations of copyright infringement between the author of a book and a script written for a film. The judge ruled that elements in both such as a couple taking refuge in a church–and engaging in certain activities within the church such as praying and playing the piano–were, in effect, generic and were ideas rather than expressions of ideas. A recent case based on the same principles involved a suit against Disney by two screenwriters who accused the studio of lifting copyright protected elements from their screenplay to produce “Pirates of the Caribbean”. The court dismissed the case pointing out that the similarities between the leading protagonists of both works were common characteristics of pirates; 

“cockiness, bravery, and drunkenness are generic, non-distinct characteristics which are not protectable.”

“Scènes à faire” is not just some abstract copyright theory only relevant in the distant past. In the current dispute between Oracle and Google, in which Google is accused of copying Oracle’s “declaring code” (application programming interface, or API packages) to construct its Android platform, Google is arguing that Oracle’s code had become indistinguishable from standard industry practice and therefore it was entitled to use it without licence, similar to a “scènes à faire” argument. This is a bit hard to swallow when one considers that Google refused a licence from Oracle because it didn’t want to accept the terms of the licence, but then went ahead and copied Oracle’s copyrighted Java code anyway. As Keith Kupferschmid, CEO of the Copyright Alliance stated in an article at the time that the Alliance filed an amicus brief in support of Oracle;

“Google had other options, including creating new declaring code. And if Google wanted to benefit from Oracle’s innovative way to program device functions, it should have licensed the right to do so.”

I am sure that all of these legal arguments are well known to copyright lawyers and are probably a staple of any first year copyright law class, although I wouldn’t know, not having gone to law school! (At the time, I thought history was more interesting). So for you non-legal practitioners amongst my readers, I hope that this quick overview of ideas versus expressions of ideas may provide something new to think about. 

But back to the inspiration for this blog.  As I hiked along the rugged trail, still thinking about the © mark that seemed to have dropped from the sky, I concluded that no-one should be able to copyright this gorgeous setting. The creation that is Nature belongs to us all.  And by the way, let’s not screw it up for future generations. 

© Hugh Stephens, 2020. All Rights Reserved.

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