I was really sad to read about the recent death of Greg Ham, the flautist from Australian band Men At Work. The cause of death has still not been determined. The worst of it is that right up until his death, Ham appears to have been very distressed about a copyright case, Larrikin Music Publishing Pty Ltd v EMI Songs Australia Ltd [2010] FCA 29, which the band unsuccessfully sought to appeal. The appeal was refused by the Full Federal Court in 2011, and the High Court refused special leave to appeal.
Put in short compass, the case involved Men At Work’s hit, ‘Down Under’, which featured a flute riff played by Ham. It will be familiar to any expatriate Australian (and although I wouldn’t consider myself a particularly patriotic person, the song never failed to bring a tear to my eye when I was living in England). Here it is:
In 2007, on the music quiz show ‘Spicks and Specks’, someone noted in passing that a part of the riff seemed to have borrowed part of the melody of a well-known Australian song, ‘Kookaburra sits in the old gumtree’, which was written and composed in 1934 by a Miss Marion Sinclair. Because Miss Sinclair only died in 1988, copyright still subsisted in the song, as it exists for the life of the author plus 70 years. The publishing rights were purchased by Larrikin Music. Larrikin is owned by a US company, Music Sales Corporation.
Larrikin Music sued EMI, Colin Hay and Ronald Strykert (the composers of the song) in 2009 for copyright infringement, seeking a proportion of Men At Work’s past and future royalties. Hay is also the lead singer of Men at Work. The trial judge said that Men at Work had infringed Larrikin’s copyright because the song ‘Down Under’ reproduced a substantial part of ‘Kookaburra’. At paragraphs [214] – [217], Jacobson J said:
What seems to me to be important in the present part of the case is the inference that flows from the failure to call Mr Ham. It is trite to say that I can infer that his evidence would not have assisted the respondents’ case. But it is also open to me to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of evoking an Australian flavour in the flute riff.
For present purposes it is sufficient to say that Mr Ham’s reproduction of the relevant bars of Kookaburra reinforces the finding of objective similarity. That is the real significance of the failure to call him.
In my opinion, it is appropriate to draw the inference that Mr Ham deliberately included the bars from Kookaburra in the flute line for the purpose referred to above.
However, I accept Mr Hay’s evidence that he was not aware of the appropriation of the bars of Kookaburra until about the early part of the last decade.
Men at Work were later ordered to pay Larrikin 5% of past and future royalties from 2002 onwards. EMI appealed the decision, but in 2011, the Full Federal Court rejected the appeal in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47. In his judgment at [100] – [101], Emmett J noted as follows:
If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work…, it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work. For example, it is arguably anomalous that the extent of the monopoly granted in respect of inventions under the Patents Act 1990 (Cth), being a limited period following disclosure, is significantly less than the monopoly granted in respect of artistic, literary or musical works, being a fixed period following the death of the author or composer, irrespective of the age of the author or composer at the time of publication.
Of course, the significance of the anomalous operation of the Copyright Act can be addressed in terms of the remedies and relief granted in respect of infringement. Nevertheless, one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.
In October 2011, leave to appeal to the High Court was refused.
The Age reported that, after the 2010 court case, Ham felt both the song ‘Down Under’ and his professional reputation had been tarnished, and that people would remember him only as someone who plagiarised. The decision also seems to have had a significant impact on Ham’s financial situation, and he had recently sold his beloved house and split from his wife.
We still don’t know why or how Ham died, and there is no suggestion that his death is linked with any of the foregoing. However, it is extremely sad is that at the time when he died, he was still distressed about the legal case and he felt that all his achievements were tarnished. What a tragic end to a talented man!
In the wake of the trial judge’s decision, SL wrote a post which cogently criticised the length of the artificial monopoly created by copyright law, saying:
1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner.
Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.
2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. …Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.
In my view, copyright should expire with the author. This ‘life plus 70′ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.
SL goes on to point out that when the law is an ass (and it seems pretty clear that it is an ass in this case) it loses its moral authority.
I think we need to reconsider copyright and the length of protection given to works in the wake of Ham’s death, if it is possible to do so. Of course, under the terms of the AUSFTA it may not be possible (it was this agreement that led to the extension of copyright from 50 years to 70 years in Australia). But copyright holders should think about whether they are undermining the moral authority of the law they are seeking to uphold with cases such as this.
53 Comments
{sings} “Kookaburra sits on the telephone wire,
Jumping up and down with his pants on fire.
Laugh, kookaburra, laugh, kookaburra
Sore your ass must be…”
It’s like “happy birthday” isn’t it? There’s a copyright notice and royalty paid every time someone sings it in a movie.
But really this was just a momentary tribute, and certainly not worth 5% of the song.
Marcellous, I have nowhere near the music memory that people like you or DEM have, but I always saw that flute riff as an affectionate homage to the original song. If musicians can’t do that any more, then the law really is an ass.
And yes, way less than 5%.
PS:
DEM
Where did you get “ass” from? Surely not Australian English just yet?
It’s a terrible pity that poor Mr Ham seems to have thought it *shameful* to have copied something.
Art is best when it is interpreting and reflecting existing culture. Shoulders of giants/good artists copy, great artists steal etc.
Pretty good result though in the kookaburra case, given how crap copyright law is.
d
Oh, and Fair Use in Au Copyright Law would be a big improvement. Fair Dealing doesn’t cut the mustard.
d
Did Men at Work steal it or would it be more reasonable to say, honored it for its contribution to the Aussie culture both songs are about — and at that, only the tiniest little pieces of it. If they weren’t so litigious the owners of the rights to the kookaburra song would be happy that MAW had given a nod to their song. The defense should have been “We stole nothing, we hinted at a piece of our culture many Australians know and love”.
To argue that +/-4 seconds of similarity in the song is any real part of the song proves judges do more drugs than artists do. If there is a similarity, then the notoriety of the MAW song and the publicity of this frivolous bit of pettifoggery will have more people listening to the Kookaburra song. That means maybe Larrikin music should have to pay Men at Work a promotional fee for the lift it gives their song. I hate litigious people, stupid judges and greedy asses who want to put a yoke around the necks of the movers and shakers of the world. The outcome here sickens me. Plagiarism is when you take someone else’s song, like Led Zep did with a certain blues song in its entirety. If the Men at Work song had been Kookaburra sits in an old gum tree, and they took it for their own work, then you have a reason to use up the court’s time. I have always thought that greedy self centered and litigious people cause other people fatal stresses with their venial attacks, but it is usually difficult to see. This one shows in my opinion a direct cause and effect ending in the death of Greg Ham.
Spellcheck error, I mean venal not venial.
Robert, as I said to Marcellous above, I always heard this as homage, and didn’t need ‘Spics & Specs’ to recognise it. I must admit I assumed that everyone else thought the same way, and it never occurred to me to discuss it further — with anyone!
I was flabbergasted by the result at first instance (and yes, did mutter to myself darkly about the difference between ‘fair dealing’ and ‘fair use’, as Darryl mentions). I still find the whole business mind-bendingly stupid and petty.
Virtually all art and all ‘classical’ music’ is therefore a form of plagiarism. Humans build on what went before, being inspired, taught, taking pieces, honouring their predecessors. It’s easy to see that Mozart took folk songs and bits of J C Bach, and Haydn, Handel owes a great debt to Vivaldi… and what artist hasn’t taken ideas, colours and other bits and pieces from those who preceded him? This decision is utter nonsense.
Perhaps all cheesy flute riffs sound the same.
This made me very sad, LE. I was talking to a wise friend the other day and he quoted an Australian writer who said that people need three things for happiness: a sense of territory; someone to love; and something to look forward too.
Regradless of the circumstances of Mr Ham’s death, he had been hit at all three levels. That’s very sad.
One has to ask what property is for? Well delineated boundaries of rightful control lead to far more productive activity and exchanges. (Which, btw, is why permit rajs are always bad ideas.)
So, what productive activity and exchanges are promoted by this decision? It makes it harder and more fraught to pay homage to the work of past artists.
It seems to be based on some absolute worship of “originality” at the expense any sense of connections between creative works. It is, therefore, a classic decision of the WEIRD (Western Education Industrialised Rich Democratic) mindset, which see things as individual rather than as embedded in relationships. But understanding where it comes from does not make it less bad law.
I agree with all the comments above (Darryl, Robert et al) – I saw it as a playful reference, a momentary bar thrown into the riff which would make any person who’d grown up in Australia smile, and certainly not as any kind of plagiarism. I wish I could tell Mr Ham that – this thread is evidence that most people did NOT see him as any kind of plagiarist.
And as Rigby says, art always has an element of copying – that’s what’s interesting about it – that people can take a piece of someone else’s work and make it into something new and quite different.
SL and Marcellous @ 2 and 3 – did you know that they were seeking 30 – 40% of the royalties for that momentary tribute? Extraordinary. But by aiming high, they got a nice proportion of the royalties (typical bartering technique – aim high so that the eventual price is still more than it should be).
Lorenzo, yes I think one has to ask what property is for. It was supposed to protect the rights of the composer, and to promote creativity. In this decision, neither the rights of the composer are protected (she’s dead, and probably would have let Men At Work use it) nor does the decision promote creativity. It’s just a cynical instance of rent-seeking. Therefore there’s something really wrong with the law if it allows this.
If Ham’s death is found to be a suicide, it raises some questions whether there is sufficient financial/emotional assistance given to losing litigants.
Jarryd, indeed. Even if it was not a suicide I think those questions are still apt in the wake of this case.
“mind-bendingly stupid and petty”. That about sums this one up.
The tendency for regulation to favour incumbents over market entrants is also on display.
David Glasner, during a sensible post on intellectual property, quotes Ronald Coase:
Over the top IP law encourages precisely that.
Coase is responsible for one of the two most important ideas in C20th economics–transaction costs matter. The other key idea being information and action are profoundly interwoven.
IP law which raises transaction costs and blights the creative process is not a social positive, but a great way to waste resources via rent-seeking incumbents.
Jarryd@15 & LE@16
Ham wasn’t a party to any of the proceedings, was he? He merely gave evidence (written, as I recall, not in court). He is not even one of the composers of ‘Down Under’, and so doesn’t have even moral rights over the work.
I don’t disagree with your comments about the support failed litigants might require, but Greg Ham falls well outside the class of people who would be covered by that support.
Greg Ham bore no financial penalty nor any legal penalty from the decision. Formally, there wasn’t even any repetitional damage. Whatever shame he felt was entirely of his own concoction. Forget the statutes for a moment, it’s this attitude that we’ve developed, that copying is somehow wrong, that’s to blame.
Everything is a remix, and pretending otherwise damages our society and the individuals that comprise it.
d
I hope you don’t mind my saying it, but the view on IP that you seem to endorse is so onesided it would be interested to know who pays your salary.
The corporate world is pushing the self-employed to the brink, robbing them of their IP wherever possible. Take a technical translator. To ensure consistency in terminology, he purchases a CAT (computer assisted translation) tool. According to the EU law, the data bases he creates with his skills using the software he himself purchased, belong to him. But self-employed translators these days frequently depend on translation and localization brokers (who themselves employ no translators and basically know zilch about what translation entails – their strength lies in management and marketing to end clients, often corporations dealing with at least a dozen languages; they advertise themselves as translation companies but merely act as an intermediary between the translator and the end client) for livelihood.
These intermediaries push translators (who are in no position to negotiate a fair deal) to sign away the rights to their data bases (called “translation memories”). The intermediaries then use those translation memories for their own profit. Literary translators. A literary translator under the EU law owns his or her work and is entitled to fair compensation. Because literary translators as individuals working with publisher have no negotiating power, they are forced to give away their rights for meager one-time payments if they want to work at all.
Unlike blogging know-it-all generalizers, I find D’Agostino’s study, Copyright, Contracts, Creators – New Media, New Rules, very much to the point in this respect.
If it helps at all (it is so interesting to be accused of being a shill, I must add it to my collection), I work for an IP firm. Unlike many people wholly opposed to IP (who think it is all malarkey, because it cannot be analogized with corporeal property/chattels, and therefore cannot be stolen), I think IP is important and ought to be protected.
However, one of the things you learn as a lawyer is that laws incapable of enforcement — no matter how moral or right — aren’t worth a damn. See, for historical reference, prohibition, anti-abortion laws, anti-sodomy laws, attempts to equate downloading with theft (trespass is probably the better analogy), and so on:
http://www.abc.net.au/news/2012-04-20/illegal-downloading-more-like-trespass-than-theft/3963688
Because I would like to have a job, not just next year but for, oooh, the next 30 or so years, I want to see IP laws that are effective, because if they are rendered nugatory then there will be nothing to protect: the whole system will collapse under its own weight. The best way to make laws effective is not to use them to attempt to produce a moral society, but a society in which we would like to live. The difference may be a small one, but it is important to bear it in mind.
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Very good, SL. Very good indeed.
Bodijelen, I’m not quite sure what your complaint is? Is it that we said there’s some use for IP law and didn’t call for IP law’s total abolition? I haven’t read D’Agostino’s work – what is his argument? You don’t actually tell us. Please explain your argument in more detail.
Personal view is somewhat like SL’s: there’s a place for IP law but not in its present form which does not help innovation or protect creators. In fact it leads to perverse outcomes where creators are not protected and people cannot legitimately use information to generate new material.
And my salary is paid by a university if you must know.
Marcellous, clearly “The Law is an Ass” uses “Ass” in the sense of – an alternative word for a donkey, now obsolete. And therefore clearly proper English, just archaic. Surely memories aren’t that short!?
Not commenting directly on the OP just yet as I’m still too angry to do much other than swear and stick pins in an effigy of a Larrikin exec…
Helen in defence of Marcellous I believe he directed his comment to DEM, not the post as such. So he’s right, and you’re right, but in different senses.
- signed an archaic ass
(since when did I become archaic? I missed that memo)
There is. The flute solo borrows bits of the melody line of “Kookaburra” like jazz players who’d incorporate bits of other tunes into their solos. I imagine 20 years of hip-hop precipitated litigation inspired this case.
And copyright, as now practised, restricts the extent to which such stuff belongs to the culture in general. When a tune, a story or a picture obtain a place in the heart of the public, or some distinguished subset thereof, they become part of the general culture. They become necessary in a spiritual sense.
The law now grants too much power to the property holders – ironic analysis, considering the philosophical predisposition of this blog. I don’t like the idea of registration.
Well, if people like us think the law grants too much power to intellectual property holders, I think that shows something, doesn’t it? It’s important to note that IP is an artificial statutory monopoly – ideas are not rivalrous, and generally are accessible by all.
CP/M-MsDOS, Beta-VHS, Apple-TheRest, Muslim-Christian, LarvatusProfundity-Catallaxy, Democracy-Not.
But I agree with you, and love it as a phrase
The other thing that I would note is that “rent seekers” is generally regarded as an insult. But in fact that is precisely what the holder of a right seeks: rent.
Anyway I thought this post was about the longevity of, and just recompense for, copyright – not about abandoning the concept altogether. I dunno where bodijelen got any impression, from what was said, or from ensuing comments, that it was biased in any particularly self-serving manner.
So maybe just a blip in comprehension? I do that all the time.
Heh, it’s a property lawyers phrase KVD – land is rivalrous because you can fence it and there is a limited amount – ideas are non-rivalrous, because there is no natural ‘fence’ (so one has to be constructed by a statutory monopoly) and there is no limit to ideas, or to how many can use it at once. (So 1,000,000 people can’t use our local park, but 1,000,000 people can listen to my song, if they would like to).
Thanks LE. And proves my last sentence perfectly!
I forget that other people don’t think like a property lawyer sometimes. Bad of me.
Also too (just to add to the mix) there is no copyright in an idea, just the expression of an idea. And plagiarism and breach of copyright are legally distinct, with some overlap. I suspect what happened to Greg Ham has something to do with people trying to blend the two concepts.
No-one here has really addressed Darryl’s & Rigby’s point (maybe because we’re all unimaginative lawyers) that the current obsession with originality is completely barmy (to my mind of a piece with the obsession with authenticity). At some point I suspect it’s going to bite us rather hard, especially in music (particularly jazz and classical, where affectionate homage is sorta kinda the point).
Well I was thinking of Ezra Pound’s modernist exhortation to “make it new” and thinking that this obsession with originality reflects a peculiarly Modernist view of creativity, where the only creative thing is something that is new and breaks from tradition. Whereas for much of our history, creativity has been about borrowing liberally. Indeed, I studied a fair bit of medieval literature in my undergraduate degree, and it was considered flattering to take large chunks from another work and insert them in your own, unattributed. Of course, an educated person would recognise the original source anyway…
So homage is the point. The reason I like genre writing so much (particularly SF, fantasy and crime writing) is that I love to see what different people can do with an old theme. After all there are supposedly only 9 story lines, but the great thing is seeing how different people handle them…
SL@33 I may not have addressed the points, but I did write down “Everything is a remix” as a possible inscription for my tombstone, in place of “The medium is the message”.
Now that we’ve established my position as a plagiarist, we need only discuss price. (copyright: W. Churchill)
B-gger! Along comes LE with “Homage is the point”. Is there no end to this rearrangement of the alphabet?
I think the perverse idea in IP law is the concept of the transferability of copyright.
“there is no copyright in an idea, just the expression of an idea. ”
This is the bit that makes no sense to me, as applied to this case. As everyone who is into music knows (perhaps ruling out most of the Federal Court, a competent but extremely dry jurisdiction) the effect (ie the expression, surely) of a particular melodic line is utterly transformed if the notes it is paired with (in harmony, or counterpoint) are changed. While a VERY SMALL handful of notes followed the same melody, the minor 6, 4th- 5th resolution under the flute line gives it an entirely different feel – ie expression – than the pottering along on the tonic that occurrs in Kookaburra.
I add that cross examination is rancid, and perhaps he didn’t subject himself to it after reading the mindless barbarism of Garfield Barwick’s Archibald Prize cross examinations.
2c.
I also always saw it as a deliberate and effective homage (although no tears in my eye, certainly not once it had been played at least once every evening we visited a certain bar after a seminar for a couple of years).
I was amazed that anyone tried to argue otherwise when it became a legal matter, and am very unclear on what the law is. (Am I right to say that homage is in a very different position to satire?)
Apart from that, it doesn’t seem quite right to say that post-death copyright can’t benefit the creator. I’m not sure I’d call it perverse as Painfree does, but transferability does make post-death income relevant to the creator even without regard to their children. Once you allow creators to profit from future earnings, is there a sensible reason (or way) to exclude situation where the creator didn’t receive full allowance for the protection? Perhaps limiting it to life is simplest and/or best, but it wouldn’t be a no loss to creators generally.
In these types of cases, is the probability of the copyright holder actually losing money taken into account at all?
That is: “Kookaburra” is not on any top 40 or top 100 of pop tunes being played on radio, so any “sales figure” in any format will be minimal. As far as I can make out, the most likely way someone would actually purchase the song would be in sheet music format as a teacher intending to use the song in a school concert or musical. In that case, is it likely that the teacher or camp leader or whoever would go “Sweet! No need to get the sheet music of lyrics. I’ve got a copy of Men at Work’s Land Downunder and we’ll just extrapolate it.” Really! NOT GOING TO HAPPEN. Not only does the one-bar reference NOT deny Margaret Sinclair’s heirs, or the rapacious record execs, their contemporary sales, but it can only increase them by jogging peoples’ memories of the song. In other words, I think it is impossible for the copyright holders to have lost anything. How can the court have failed to take this into account?
Exceptional question, Helen. It goes to the heart of a fundamental debate in private law – namely, should one have to prove loss before one can recover damages? The answer to that is — in my opinion at least — no, not always.
Often in intellectual property cases, the court imposes what is called a ‘reasonable fee’ award (i.e. a reasonable fee for the use of the property in question). This is because the actual loss made by the copyright holder is exceptionally hard to quantify. As you correctly note, here, how could Larrikin say that it had lost any sales of records or the like? It is also (I think) something which provides an incentive for people to seek consent before infringing the rights of others.
Some lawyers see these reasonable fee awards as loss-based (i.e. Larrikin lost the chance to ask Men at Work for a reasonable fee for the use of its song) and thus the court imposes a licence fee ex post facto to reflect that loss. Others see these awards as reflecting the loss of a right to exert total control over one’s property as a result of the infringement.
Some lawyers see them as gain based (I happen to be one of those) – you can see such awards as reflecting an expense saved on the part of Men at Work, in that they did not have to pay for use of Larrikin’s property right, and therefore I see reasonable fee awards as something which strips profit or a proportion of profit. I should not this is not an orthodox position in any way, and most Australian lawyers would prefer to see them as loss-based in some sense or another.
Of course this answer assumes that Men At Work infringed Larrikin’s rights – and I’m just not sure that as a matter of fact that they did. Unfortunately, the position of the law of copyright with respect to homages (and even with respect to satire) is unclear. A while back, I wrote a series of posts on creative works which allegedly infringed JK Rowling’s (or Warner Bros’) copyright in Harry Potter. (oops, typed Harry Pooter initially, I think that’s a Freudian slip, I’m no longer a fan, gave up at Book 4 or 5). Ultimately the spoof which was sufficiently different was not infringing, the lexicon which just took chunks of the books was…
Well spotted indeed, Helen – putting your finger on one of the curliest problems in private law (Legal Eagle has a forthcoming book on just this issue!).
It’s one of the quirks of private law that certain civil wrongs (torts/delicts) are considered per se wrongs – trespass at common law, and the iniuria of sexual harassment in Roman law, for example.
When something is a per se wrong, the plaintiff – if he makes out his case to the requisite standard – always gets an award of damages, however small. That’s why there was provision in both English and Roman law for damages in the amount of ‘the lowest coin in the realm’ – traditionally a farthing or an as. These days, it’s a pound and a Euro respectively.
Other civil wrongs are not per se wrongs – the plaintiff actually has to prove and quantify the loss. Negligence is an example of this.
Working out why something has evolved into a per se civil wrong is immensely tricky and involves a lot of to-and-fro among comparative lawyers, as it’s one area where the Romans and the English have completely different ‘lists’. This has led legal systems derived from the two civilisations to diverge markedly from each other. It’s why, for example, sexual harassment is a crime defined by statute in common law jurisdictions (because the common law never protected women’s interests very well; parliament and the equitable jurisdiction had to do all the heavy lifting), while it is still a delict in civilian countries (because the Romans already had a good rule on point that didn’t need to be changed as a result of feminism – it just had to be enforced).
Copyright is a wholly common law development, and so it is infused with common law ideas about the infinite ‘splittability’ of title (the ‘bundle of rights’ made famous by the Mabo decision). This makes Roman lawyers’ heads go round (the Romans developed a unitary conception of title); that is why they have given us concepts like moral rights, which cannot be assigned and always vest in the creator (this ties in with Painfree’s comment above).
I wish you were in my Remedies class, both Helens, we could have a lovely discussion.
A nice riff on the ‘more like trespass than theft’ argument, by a writer I admire:
http://ma.ttrubinste.in/?p=512
Ooh that’s a lovely little piece SL.
Since it’s a quiet, reflective sort of day may I politely ask either SL or LE to comment upon these two statements:
LE@27: It’s important to note that IP is an artificial statutory monopoly
SL@41: Copyright is a wholly common law development
Also, SL@43 references a post which seems quite clear, until it finishes by referring to ‘piracy’ and pirated’. I’d just say that the layman’s idea of piracy is not ‘trespass’; it’s more like a maritime equivalent of break and enter, theft, then burn your house down.
I accept there’s discussion about this, but I’m just saying ‘piracy’ is an unfortunate choice of word – if you are pushing the idea of trespass.
KVD: ha! Well copyright first developed in a modern kind of a form with the Statute of Anne – basically to give persons who printed books a right over their works. There is no natural way in which you can stop people using your creative works (songs, stories, pictures etc). It goes back to what I was saying about IP being non-rivalrous – you can’t go and say “You’re not allowed to use my song!” whereas if you have real property you can put a fence around it or lock it in a box or whatever. Accordingly the only way in which you can stop people using the expression of an idea is if the courts back up infringement with remedies. This is essentially what IP statutes do; they say – “Okay, we realise you can’t actually physically stop people from using the expression of an idea, so we’ll stop people from doing so by court order.” Most IP regimes are strongly statutory in nature, although some common law doctrines play into the statutory regimes (eg, the tort of passing off to a great degree, as well as breach of confidence to a lesser degree).
So what Parliament has done is to create a situation where you CAN exclude people from using the expression of your ideas – in other words, it has created in the author or creator of an idea an artificial statutory monopoly. If the author or creator doesn’t want anyone else to use the expression, they can exclude everyone.
I take SL to be saying that the notion of copyright developed in the UK (which has a common law system), and later in the US (although the US was a country which was notorious for its copyright pirates in its earlier days!). However, IP rights are also buttressed by a raft of international statutes, starting with enactments such as the Berne Convention.
LE@46 The US in the C19th used to act like it has spent much of the time since c.1950 complaining about other countries acting. Being IP Piracy centre was just one of them.
Thanks LE. Now I’ll go back to trying to understand @33 – “no copyright in an idea, just the expression of an idea” – which I think you’ve repeated.
I gave up long ago pretending I understood everything. There is no ego involved, or ‘trick question’. It’s just far quicker to be honest, and simply ask for a further explanation, imo.
KVD, does it help if I said that there’s nothing to stop me making a song about an octopus (idea) but I would be in trouble if I started singing a song about an octopus’ garden in the sea with a bit of a Beatles-esque lilt (expression of an idea)?
LE@49 yes thanks. You are saying that there can be only one legally protected expression of an idea, even though many may have independently contemplated the idea, or something so remarkably similar as to appear a copy – even though it isn’t.
With due recognition to Highlander.
kvd, I was altogether too brief in my outlining of the principle, which comes naturally to IP lawyers, to the point that we forget that it took us some time to learn. Apologies. This chapter (from a relevant and clearly written textbook) provides the history:
http://www.federationpress.com.au/pdf/Reynolds%20IP%20Ch02.pdf
The section on the idea/expression dichotomy begins on page 14, although the earlier material on why the Romans (who had block printing) and the Germans (who had Gutenberg) did not come up with copyright is fascinating. The Romans, it must be remembered, did have passing off. ‘Trademarks’ are very old.
Thank you for that link SL. A very clear and interesting read.
Have a look at this if you want to see how petty the Ham case really is.
http://kosmo.hubpages.com/hub/Did-Led-Zeppelin-Steal-Music-from-other-Artists