Some Reflections on What Can—and Cannot—Be Protected by Copyright

Source: Author

My wife was flexing her wrist, extending her forefinger and manipulating her thumb, following the instructions on the sheet in front of her that the physiotherapist had provided. She (my wife that is) had broken her wrist a few weeks earlier, in an unfortunate fall. With neither of us having ever broken a bone before, it brought home the reality of how challenging recovery from even a relatively minor break can be. Once the operation has taken place, and later when the cast is removed, you start to think you are out of the woods. But then the hard work—the regular and constant physiotherapy and exercise to restore use of the limb—begins. In this instance therapy consisted of ultrasound, massage and personal exercise and manipulation at home, following a set of illustrations and exercises she was given at the clinic.

Having a sharp eye for all things related to copyright, I immediately spotted the “©Island Hand Therapy Clinic 2010” on the instruction sheet. There is nothing protectable about the bone or ligament structure in a person’s wrist any more than the knowledge of how to restore movement and circulation to a limb. So how could this set of instructions outlining and illustrating a sequence of exercises be subject to copyright protection?

This example is a good illustration of the distinction in copyright law between an “idea” and the “expression of an idea”, with the former not subject to copyright while the latter could qualify. The instructions, illustrations and sequence of these specific exercises had all been developed by this clinic for the exclusive benefit of its clients and are the clinic’s particular expression of the idea of wrist manipulation to regain movement. They form part of its intellectual property and are a benefit provided to clients who pay to use the services of the clinic. The exercises needed to regain movement in a limb cannot be copyrighted but the explanations and illustrations, when put together, form an expression of the idea.

Assertion of copyright is simple and straightforward (one of the major advantages of this form of intellectual property, compared to the more costly and legalistic processes required to register a trademark or secure a patent, for example). The ubiquitous © sign is not even required, although to affix it is a good idea as this is a conscious assertion of copyright. In Canada, a copyright can be registered for a modest fee, but it is not necessary to do so. In the US, a copyright does not have to be registered with the US Copyright Office, but registration is necessary if a legal case is to be brought against an alleged infringer.

Although in most countries a work does not have to be registered to be eligible for copyright protection, some form of “fixation” is required for it to constitute a copyrightable work. (A musical score, a photograph, a printed facsimile, for example). Fixation can be difficult to determine at times, as I discussed in an earlier blog post “My Fixation with Fixation”. Recently a Chinese court has extended the concept of fixation even further, ruling that the arrangement of a water fountain display to music can be protected by copyright, notwithstanding the reality that no two performances could be identical (owing to factors such as weather and light). The court dealt with the issue of fixation by virtue of the fact that the water and music show were replicable because of the design of the devices governing the directions and timing of the spray, and the programming of the music.

Most copyrighted works are not infringed, and most minor infringement seems to go unchallenged. It depends on the circumstances. It would be unlikely that the hand clinic would take any action against a patient who unthinkingly shared her physio exercises with a friend who was also having wrist problems. But they might object if another clinic appropriated, copied and distributed the exercises to their own patients. That little © at the bottom of the page is a good reminder and an insurance policy.

The distinction between an idea and its expression is a concept that I explored in an earlier blog “Copyright on the Rocks”.It is something that jurists have grappled with over many years as interpretations of what is subject to copyright evolved. Today, it is widely accepted that a procedure, process, system, method of operation, concept, principle, or discovery (to quote the US Copyright Act) are not subject to copyright, nor are facts, but that wasn’t always the case. 

In the 19th century, some newspapers in England pushed to assert copyright over the news that they generated, arguing that the considerable effort and expense they went to in collecting the news entitled them to protection against copying, at least for a specified period of time. For example, if TheTimes (of London) paid a correspondent to report on events abroad (a war for example), and then invested in the costs of transmission (by telegraph) of the latest news, why should rival newspapers be simply allowed to “cut and paste” the news that the Times had generated? Widespread copying of the news in the morning papers by the evening papers, and literally “cutting and pasting” columns of material into subsequent editions, was a common practice in the early days of journalism (and widely accepted).

In a famous case in the 1890’s known as Walter v Steinkopff (documented in Prof. Will Slauter’s book, “Who Owns the News: A History of Copyright), The Times sued another journal, the St. James Gazette, for copyright infringement for reprinting both part of a story by Rudyard Kipling and several news paragraphs. The Gazette admitted infringement with respect to the literary excerpts, but the case turned on the news paragraphs. The Times had taken the necessary steps to ensure payment to the journalist and had arranged assignment of the reporter’s copyright to the newspaper. The case was heard by Sir Ford North who ruled that even if cutting and pasting was a common practice in the British newspaper business at the time, the Times had not expressly consented to it. Moreover, the Times had complied with the legal provisions regarding establishment of copyright. However, North pressed the plaintiffs as to what exactly they thought copyright should protect. To quote from Slauter (p.175);

If The Times published a telegram announcing the death of a foreign leader, would other papers be prohibited from publishing the same news unless they obtained their own telegram? After some back and forth, counsel for The Times was willing to concede that other papers could not copy The Times’s report verbatim but that they could restate the facts.”

North summarized by noting that there is no copyright in news, but there is or may be copyright in the particular forms of language or modes of expression by which information is conveyed. In other words, facts (news) by themselves cannot be copyrighted, although the form of news articles may be subject to copyright protection. The same issue was settled in the US in a precedent setting case in 1921. (Chicago Record-Herald Co. v Tribune Ass’n)

And then there is the “merger doctrine” to consider. This occurs when there are only limited ways to express an idea, where the expression merges with the idea itself and is therefore not protected. The most recent example of what was probably a merger doctrine case, although it was not decided as such, was the US Supreme Court decision on Google v Oracle. Google had copied Oracle’s Java APIs (application programming interface) or source code (aka “declaring code”), without payment or permission, in order to facilitate programmers writing programs for the Android platform, which uses Java code. Google argued that the APIs, which provide a kind of underlying framework for writing computer code, (a so-called “building block”) were not copyrightable as they were basic utilitarian functions. Initially the court agreed but this ruling was overturned on appeal. The case was further appealed to the US Supreme Court where Google also argued that even if the APIs were subject to copyright, there was no infringement because Google’s use was fair based primarily on the fact that its subsequent use of the APIs led to new works and was thus transformative. (This is a gross oversimplification of the case but outlines the basic elements. A more detailed explanation can be found here).

In the end, the Supreme Court did not rule on whether the APIs were subject to copyright protection—which was the essence of the case. Instead, it focused on the fair use argument, and concluded that Google’s use was fair. This is a controversial finding as it potentially opens the door to other arguments that an unauthorized use of a copyrighted work that leads to a transformative product or service is legal under the US fair use doctrine. The Supreme Court tried to ring-fence its decision by stating that its ruling applied only narrowly to “declaring” computer code, but others have already been quick to try to jump on this bandwagon. Ultimately, the real question in Google v Oracle was whether the underlying code—which some have compared to a QWERTY keyboard—was copyrightable because of the limited ways in which computer code can be written.

This landmark case is a long way from my wife’s wrist exercise instructions, which shows how quickly one can go down the rabbit hole when discussing copyright issues. However, the principle of what can be copyrighted, and what cannot—based on the distinction between ideas and facts on the one hand, and the original expression of ideas and facts on the other—is a fundamental if sometimes blurred principle.

I am not sure whether I have made the distinction any clearer or simply blurred it more. But if you are in any doubt, please note the © symbol below. After all it is fixed (you’re reading it); it is my expression of the idea of what is and is not subject to copyright and it is original. Who else in history has connected Google v Oracle with Walter v Steinkopff (1892) with a Chinese court’s copyright finding on a water fountain display with my wife’s hand clinic physiotherapy instructions? It qualifies for the big ©! And I’m pretty confident that no-one is going to challenge my assertion of copyright.

© Hugh Stephens 2021. All Rights Reserved.

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