04 August, 2013

Retrospective - The Nature of Copyright

One of the most important aspects when dealing with copyright is the definition of what it actually protects. Does it protect the financial interests of authors? Cultural interests at large? Without the understanding of what it exactly is that it protects, the scope of copyright would be near impossible to determine, leaving it either open for abuse, or it would leave it too strict as to prevent further dissemination of information or expression creating something wholly new. This issue was decided as far back as 1890 in the English case of Kenrick v Lawrence.

The case dealt with Mr. Kenrick and Mr. Jefferson who owned a printing and publishing company called the Free Press Company. During the 1800s, Mr. Jefferson had noticed that illiterate voters had a hard time understanding how to vote, effectively consisting of drawing a cross in a certain part of a piece of paper indicating who you would vote for, without the aid of a picture or pictures showing them exactly what to do. In attempting to resolve this he sought the help of Mr. Bott to draw a hand drawing a cross in an enclosed box, as per his own initial sketch. Mr. Bott did exactly that, and the drawing was determined to being the creation of Mr. Jefferson and the property of his company under the Fine Art Copyright Act 1862. Subsequently the defendant, Mr. Lawrence, published a similar informational card where the hand was in a slightly difference position also finishing a cross in a blank box, and was sued by the plaintiffs for copyright infringement.

An incredibly 'complex' form of expression
What had to be looked at by the courts is what is often referred to as the 'idea-expression dichotomy'. This rule was formulated to protect the expression of ideas as opposed to the ideas themselves. As mentioned above, should ideas be protected expression would be severely hindered. To illustrate this further, if someone drew a picture of a castle and was therefore offered the protection over the concept of a castle, effectively preventing anyone from using that idea, clearly any subsequent authors would be hindered. The original author should be able to protect the expression of that idea in his particular way (the look of the castle for example) from possible copycats, but protecting the whole idea of a single thing would prevent any dissemination of similar ideas in the future.

Looking at the issue at hand, should the 'idea' of a hand drawing a cross be protected by copyright? The court in its judgment rejected this notion. In his opinion Justice Wills saw that if the work is copied exactly, there could be an infringement, but if the idea of a hand drawing a cross is used but expressed in a different manner, as what Mr. Lawrence had done, there would not be infringement. Offering Mr. Jefferson protection for the concept of a hand drawing something would impede others from drawing anything similar, as anyone attempting to draw a hand drawing something would inevitably end up with something similar to what Mr. Jefferson had produced. Justice Wills did admit however, that the more skill and labor has been put into a work, the more protection will be offered to it as a consequence. In summarizing the court's position, Justice Wills stated that:
"It seems to me, therefore, that although every drawing of whatever kind may be entitled to registration, the degree and kind of protection given must vary greatly with the character of the drawing, and that with such a drawing as we are dealing with the copyright must be confined to that which is special to the individual drawing over and above the idea - in other words, the copyright is of the extremely limited character which I have endeavored to describe. A square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes the plaintiffs' drawing was intended to fulfill there are scarcely more ways that one of drawing a pencil or the hand that holds it. If the particular arrangement of square, cross, hand, or pencil be relied upon it is nothing more than a claim of copyright for the subject, which in my opinion cannot possibly be supported."
Copyright does not serve as to protect broad concepts like ideas, but a very specific expression of those ideas. The complexity of the work will play into its protection, as more abstract concepts are harder to recreate without any influence or copying of the original work, but simple concepts can be recreated without any prior knowledge of them due to their simple character. Once this is understood, copyright finally shows its true colors and intent, and more detailed considerations in any given case can be assessed.

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