Tag: idea/expression

Happy Idea/Expression Dichotomy Week!

Today marks the start of the fifth annual Fair Use Week when library institutions, academics, and several anti-copyright organizations disseminate public-facing messages—from useful to whimsical—on the virtues of the fair use doctrine in copyright law. There is, of course, nothing wrong with highlighting the utility of fair use per se, but the mere fact that these parties devote so much energy to a week of fair use celebration is more than a little propagandist in spirit.

For one thing, several of the organizations and individuals waving fair use banners have long been engaged in an effort to expand digital-age fair use until, like a river breaching its levees, it drowns copyright protections out of existence. Second, for the time being, fair use remains a relatively arcane legal defense that may be presented in a copyright litigation—one that is best understood by reviewing precedent case law. As such, the number of creators the doctrine actually touches is quite small even though its most ardent celebrants would say that fair use is so abundantly generative of new works—scholarship, reportage, parody, etc.—that we are all beneficiaries of its application.

And that narrative is true up to a point. Fair use does protect and foster many forms of expression that are essential in a diverse and democratic society. Oddly enough, though, we never celebrate the less melodious-sounding Idea/Expression Dichotomy Week even though it is probably a more important and more generative principle. The idea/expression dichotomy (or distinction) affirms that copyright’s exclusive protections do not extend to ideas but only to original expressions of ideas. And although many critics strive to portray copyright as a system for monopolizing ideas by a privileged few, this is not a sentiment you’ll hear from many actual creators. And that’s not because fair use enables authors to copy from one another in great abundance, but because the idea/expression dichotomy enables creators to work without giving much thought to the prospect of infringement in the first place.

When copyright skeptics overemphasize the need for authors to build upon precedent works (a fact no creator denies), they often muddy fair use with idea/expression, either naively or by design. In practical terms, there are fewer incidents when an author needs to explicitly copy some portion of an existing work than there are moments when the author simply embarks on a project that may be broadly inspired by some precedent work. So, the budding singer/songwriter, for example, is free to use all the raw elements that comprise her favorite punk songs to produce her own expression we recognize as punk; and with very few exceptions, her album will sit comfortably next to The Ramones, The Dead Kennedys, and The Clash without inviting conflict. And fair use has nothing to do with it.

Without wandering too deep into the dense weeds of early IP law, suffice to say the idea/expression dichotomy was shaped into its present doctrinal form by a handful of cases that challenged the courts to identify exactly what copyright protects, including the boundaries between copyright and patent, with the latter more properly associated with protecting ideas. Often, 19th-century cases were as much an exercise in evolving semantics as they were in legal theory. For instance, prior to 1874, a copyrightable work could have an “author, inventor, or designer” until Congress amended the statute to clarify that the word inventor in this context only referred to the printmaking field, where the now-disused term of art once described the original artist/designer in that process.

Absent that clarification, we can see how a word like inventor can blur the line between copyright and patent, especially when it’s the exact word in the Constitution’s IP clause that describes the type of creators who are entitled to patent protections. The distinction between idea and expression was first substantially articulated in the United States in the case Baker v. Selden, decided by the Supreme Court, also in 1874. The key decision in Baker held that while Charles Selden’s book about his system of bookkeeping (an expression) may properly be the subject of copyright, the bookkeeping system itself (an idea) is not a subject of copyright. It turned out Selden’s system wasn’t granted a patent either, but that’s another story rich in tedious detail.

As core concepts, both idea/expression and fair use have long pedigrees dating back to English copyright law, to which American courts turned for guidance in the early 19th century, since we didn’t have any case history of our own. As scholar Matthew Sag describes in his 2011 paper The Prehistory of Fair Use, the fundamental principles of American fair use doctrine can be found in key copyright cases in England as early as 1741. But Sag further notes that his examination of pre-American fair use reveals a broader understanding of authors’ rights than many contemporary critics tend to ascribe to premodern copyright. In other words, the politicized narrative that copyright protections have continued to balloon out of control while fair uses are quashed is neither evident in the contemporary record nor necessarily well-founded in the historic one.

As new technologies transformed the nature of creative work in the 20th century—enabling so many professional authors that the United States became the world’s largest producer—it was inevitable that so much abundance would have to include countless works that are relatively similar to one another. And the limitation on copyright that most often supports this dense, rich anthology is the idea/expression dichotomy—not fair use.

Because the fair use exception can be tricky—even at times for attorneys and courts—it remains an ideal subject for sowing misunderstanding in public fora, and this includes exaggerating its role in fostering new expressions. But the simple truth is that most authors produce most of their work without giving precedent works, or copyright law, much consideration at all. In fact, it would be stiflingly daunting if they tried. So, there’s nothing wrong with celebrating Fair Use Week, but it is almost certainly Idea/Expression Dichotomy doing most of the heavy lifting throughout every creative year.

Photo by alphaspirit

Shakespeare would thrive in a world with copyright.

shakespeare

I saw it again the other day. In a sarcastic tweet that flew by. A familiar theme. Without naming names, it said something like this: As if creativity didn’t exist before 1709. There was no Shakespeare.

For one thing, this is the kind of pugnacious statement that I can’t believe ever informs the copyright debate. Because I don’t know anyone who asserts that creativity did not exist before copyright. Creativity existed in pre-homo-sapiens. But so what? That fact is as useful to a discussion about contemporary life as observing that eating predates cooking.  True but ick.

The year 1709 is of course a reference to England’s Statute of Anne, which is identified as the precursor to modern copyright law because that legislation was the first to grant exclusive rights in written works to authors rather than publishers. And if it is sufficient for some to condense four centuries of history since Shakespeare’s death into a single tweet, maybe this reveals something about those who both say and believe unexamined statements that invoke the Bard as exemplary of copyright’s irrelevance. In particular, this line of reasoning makes two fundamental mistakes.  The first is one of overstating the extent to which Shakespeare relied upon borrowing; and the second is one of understating the significance of the idea/expression dichotomy in copyright law, which dictates that ideas may not be copyrighted and only unique expressions may be.

As explained in a previous post, the reason Shakespeare and his contemporaries so often borrowed, or even outright plagiarized, existing work had a great deal to do with the exigencies of producing high-volume, high-speed theater in 16th-century England and little to do with the abilities of the writers themselves to be inventive. Had the Arthur Brooke estate, for instance, owned a copyright on The Tragicall History of Romeus and Juliet, everything we know about Shakespeare’s gifts implies that he had both the talent and the desire to work around this relatively minor creative barrier. Moreover, the result would almost certainly have been a more distinctive play than Romeo & Juliet. After all, Brooke would not have owned the idea of ill-fated lovers, just his own expression of it.

The idea/expression dichotomy is the reason why a large volume of works can share many qualities with one another and still remain distinctive enough to be considered individually “original” and, therefore, separately copyrightable. And in the generalized debate—especially when it’s made tweet-sized—I think people fail to recognize just how subtle the distinctions among works can be in order to render them non-infringing upon one another. Combine this error with a glancing knowledge of Shakespeare, and it’s easy to make The Bard into an unwitting poster child for the importance of borrowing or building upon prior works.

Part of Shakespeare’s genius—as historian Bill Bryson puts it—was to “…take pedestrian pieces of work and endow them with distinction and, very often, greatness.” The manner in which he achieved distinction and occasional greatness was both by invention (e.g. a plot device here, a twist on an idea there) and by his remarkable ability to produce indelible sounds from the fledgling English language. If we were to keep his raw talent intact, remove the political, social, and economic barriers of his time, and replace these instead with only the boundaries of modern copyright, Shakespeare’s ability to draw upon source elements and make them uniquely his own suggests that he would have done quite well in such a regime.  To put that in a contemporary context, if author E.L. James is skilled enough to adapt her Twilight fanfic into the separately copyrightable 50 Shades of Grey, I think it’s fair to say that Shakespeare would be up to a similar task.

To Bryson’s point, we should view Shakespeare as already wrangling with the idea/expression dichotomy by revising existing notions and elements into richer expressions than they had been.  Like any artist, we see him working around the barriers of his own internal aesthetics and sensibilities. And by contrast, the external barriers of copyright are quite minimal to the author, which is why this entire line of criticism doesn’t tend to come from creators and artists themselves. Perhaps more relevant to my initial point, though, is the fact that a great deal of Shakespeare’s often-exaggerated “borrowing” would be consistent with copyright anyway. This would likely be the case with all of the history plays or certainly with plot devices taken from ancients like Plautus, who died in 185 BC.  There’s a lot more to Shakespeare than Romeo & Juliet, and we have far more reason to imagine that he would thrive in a world with copyrights than to assume that he would wither.

It’s just too easy to conjure Shakespeare as a lofty trope of literary brilliance and then assume that the works as we know them are now fossilized in the only form they could ever have taken. No one who has ever created anything would make this mistake because the end product is almost never the only way the process could have gone. If Shakespeare had both copyright and free speech, it is more rational to expect that he would have been even more prolific and profound than it is to imagine that he would have produced less—or nothing. As it stands, he was modestly prolific by both 16th-century and contemporary measures. Sam Shepard, Tennessee Williams, Neil Simon, Eugene O’Neill, and Arthur Miller—to name a few—all wrote more than Shakespeare and all certainly worked in a world with copyrights. So, of course creativity itself predates copyright law; but invoking Shakespeare — though it may seem counter-intuitive — only suggests that creativity was weaker without it.