21 July 2003

Jumping back, one last time, to the copyright-term discussion—

I'm afraid that some others who have commented in different places have completely missed the point of the whole discussion. One of the critical mistakes that many people who wish to debate copyright make is the conflation of idea protection with expression protection. Copyright is about protecting expression, contrary to the underlying assumptions made by, for example, Mr. Vermillion. Throughout his response, which makes some interesting abstract arguments, he continues to assert that copyright protection and idea protection are somehow coterminous. (I will ignore his comments on economics, as they proceed from an incorrect reading of what was actually at issue.)

This actually points out a major area of abuse of copyrights that, from what I have seen, seriously distorts the entire debate. In theory, anyway, the debate should have been settled by Feist: original expression, not facts or ideas, is protected by copyright as a constitutional matter. This is why it is wrong, for example, to claim copyright in a human genome sequence; there is no original expression in it, only undirected operation of natural forces. The whole issue of "database protection" is all too frequently thrown into the same debate as "copyright protection." They are neither congruent nor directly related. The facts in a database are not protectable under copyright law. However, the specific expression of those facts in a book that draws upon that database (whether authorized to do so by some "license agreement" or not) is so protectable, so long as that expression is more than a mere mechanical recitation of the facts.

Admittedly, misuse of copyright law in protection of factual compilations is a significant problem for academics (among others), and no doubt colors perceptions. West v. Mead, which allowed West Publications to restrict access to case law on the theory that its pagination created a copyright interest, is an excellent example. When such nonsense is attempted in more inherently expressive forms, such as fiction, successful assertion of a copyright cause of action is quite rare. Consider, for example, the controversy over The Wind Done Gone (which, because it was tried in the Eleventh Circuit—a circuit that does little copyright work—raised a significant risk of an inconsistent result). Whether one thinks the decision was right or wrong, the courts made clear that they believed the attempt to prevent publication of a purported parody of Gone With the Wind—which certainly deserves parody—was wrongful and well outside the scope of the Copyright Act. That the Second and Ninth Circuits cannot agree on what aspects of a "character" are protectable under the Copyright Act points to a problem in administration, not necessarily with the scope of the Act.

In any event, fiction is different from factual compilations and theoretical interpretations of facts. Although it is not always true for particularly finely argued theories, and may be quite difficult to do, recasting a theory as a different expression does not ordinarily change the substance of the theory. However, recasting a character description, or a character's speeches, or any other fictional element does change the substance of the work of fiction. <SARCASM> Perhaps information wants to be free. Even if it does, novelists do not express information, and want to be paid. </SARCASM>