04 December, 2013

Retrospective - Authorship

The expression of ideas is one of the cornerstones of copyright. The conveyance of ideas is more complex today through the use of various mediums, far from the more simple approaches in latter days. Who has written something can become exceedingly convoluted, especially in a sphere such as the Internet where anyone can claim authorship over others' works with relative ease. Although former expression mediums such as news papers and books provided a much more straightforward identification of the author on the face of it, some questions did remain as to who can be classed as the author of a work when it involves a person conveying their ideas to another for their expression of said ideas.

The more prominent case which deals with authorship is the case of Donoghue v Allied Newspapers Ltd, faced by the High Court in the United Kingdom in 1938. This case concerned a series of articles published in the News of the World newspaper about the then-famous jockey Stephen Donoghue and his experiences in the world of horse racing. Mr. Donoghue was interviewed about his adventures, which were subsequently used by a professional journalist S. T. Felstead. The series of articles published were called "Steve Donoghue’s Racing Secrets, Enthralling Stories of the Sport of Kings", and all articles were approved by Mr. Donoghue prior to publishing. Mr. Felstead wanted to further use the material which was published in these articles by writing a new piece titled "My Racing Secrets. By Steve Donoghue" to be published in the newspaper Guides and Ideas, which used condensed parts from the older articles, effectively creating a new work. Mr. Donoghue did not consent to the publication of new works, yet when the piece was published in the newspaper, Mr. Donoghue took action to prevent any further publications of such articles.

The question for the court was whether Mr. Donoghue could be seen as the author or co-author of the published articles in the News of the World under the then in-force Copyright Act 1911. Justice Farwell summarized the position of the law well as exposition to this question:
"...there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product."
What is important in the court's assessment is not the idea or ideas themselves, but their expression in a particular form. In the case at hand Mr. Donoghue essentially provided Mr. Felstead the ideas for his articles; ideas which were then conveyed through Mr. Felstead's expression. The language used in the articles was accepted to being that of Mr. Felstead's and not Mr. Donoghue's, even though some of the articles contained dialogue arguably taken verbatim from Mr. Donoghue's recollections.

Pete was a man of ideas, not action
Justice Farwell utilized precedent in his judgment, noting the judgment of Justice Tomlin in Evans v E Hulton & Co Ltd. Justice Tomlin expressed the need to produce the "...express matter which is the original literary work, the subject-matter of the copyright" in works to be the author of those works; something which was accepted by Justice Farwell in the case at hand. His Honor, in his mind, saw this as being the "...particular form of language in which the information is conveyed", and saw that although Mr. Donoghue influenced the substance of the works, the language used was Mr. Felstead's, making him the author of the works. Mr. Donoghue therefore failed in his action.

What can be taken away from the decision is yet again the line which authors and contributors tread; the divide between ideas and expression in copyright (something which has been discussed on this blog more extensively). Whether one contributes themes and ideas, as opposed to written material, can sway the pendulum towards either side, potentially impacting future claims should the material be abused by others. Clearly the world of copyright is not for men of pure ideas.

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