Intellectual property laws need a rewrite
by Richard Owens
This commentary was first published in the National Post on May 10, 2006.
Writers and publishers have a problem; the very law that serves their business obstructs their business. And no one knows what best to do about it.
All new works of authorship borrow from previous ones, taking characters, plot devices, abstract ideas or even quotations. But common though such borrowings are, copyright law makes it very hard to know exactly which ones are without risk of legal liability. Dan Brown, author of the popular Da Vinci Code, was accused of taking too much of another work's ideas and plot. He got away with it - after a very expensive court battle made necessary by the ambiguous law. By the time a court renders a decision in a given case, far too much money and productive time have already been spent on it. And so, authors and publishers make very cautious decisions or even try to obscure their sources.
It is trite to say that copyright protects expression and not ideas. But what is the difference? Many cases cite the ruling of Judge Learned Hand of the United States Court of Appeals, who said that, "Nobody has ever been able to fix that boundary, and nobody ever can". And so it is determined, case by case, battered litigant by battered litigant.
Like most experienced writers, Mr. Brown knew of this problem. It seems that in his research for the Da Vinci Code, he read another work, The Holy Blood and the Holy Grail, by Michael Baigent and Richard Leigh. In constructing the Da Vinci Code, he did not plagiarize the literal text of Baigent and Leigh's book. But he did take some elements of its plot. In determining whether or not an author's copyright of his work is infringed, a court will look not only at the taking of the literal text, but whether the structure and arrangement, characters or plot of the book were taken. At some point, this structure and arrangement, plot and characters become too general to be protectable by copyright, but, as Judge Learned Hand ruled, nobody knows where that point is. It would seem that in writing his book Dan Brown made a guess. It would also seem that in making that guess, he failed to acknowledge the source of his ideas. He then compounded his error by, presumably doubting the appropriateness of his original guess, further denying that he had read the book before writing his own at all. If he had not read it first, then, of course, he could not have copied anything whether or not what was copied was protected, and hence could not be liable.
It turns out that Mr. Brown borrowed ideas, not expression, and therefore was not liable to the authors of the original book. It is unfortunate that the process of his vindication led him to sully his reputation for truthfulness.
Poor Messrs. Baigent and Leigh were left with the hollowest of moral victories. They felt outraged that their ideas had been purloined without the courtesy of an acknowledgement for their efforts - which was all they claimed they ever wanted. Mr. Baigent stated that in spite of his ruinous legal costs, he had ensured that "no writer is going to take someone else's material without thinking very long and hard about the implications". Well, the court ruled that Mr. Brown, in spite of his nervous evasions, was actually free to have taken what he did, so I think Mr. Baigent lost on that score. Mr. Baigent also claims to have lost on the letter, but not the spirit of the law. Wrong again; the restless spirit animating copyright law is as much about sharing knowledge as it is concerned with confining it in monopolistic bottles.
The vagaries of Mr. Brown's authorship and deistic fantasies aside, the dispute throws into sharp relief a central problem of copyright law. This is that neither Mr. Brown, the evasive defendant, nor Messrs. Baigent and Leigh, could understand the rules. One made a gamble that he could appropriate ideas and not be called on it - and was; the others that a remedy lay for the obvious appropriation of their ideas - and it didn't. This was a costly lesson on ambiguous law.
Writers like Mr. Brown should not be embarrassed by borrowing what they are entitled to borrow under public copyright law. Furthermore, whether plaintiff or defendant, authors need to have a better idea of where the line is to be drawn between the free public realm of ideas and a protected economic monopoly. In his book The Future of Ideas, Professor Lawrence Lessig has elaborated at length just how costly this uncertainty can be in producing new works of art, whether they are books or movies. This uncertainty, he points out, costs society and costs artists. A knowledge economy benefits from clearer rules. While the example at hand is that of the pulp novel, this uncertainty bedevils every sort of work protected by copyright, including computer software.
However, that still leaves us with a problem of how difficult it is to generalize a rule of when taking is allowed and when it isn't. In Canada, the Supreme Court has suggested that sometimes one might copy an entire work without being found liable. In yet another U.S. case, it was found that to have reprinted, with acknowledgement, a single paragraph from a 500 page book infringed copyright. Such diametrically opposed results can be reconciled by vague legal intuition, but not by clear logic. Perhaps it's time we took up Learned Hand's challenge anew, and developed intellectual property laws that more clearly abet, and do not hinder, creators.
