Re: [Patents] Copyright on ideas, procedures, methods of operation ormathematical concepts

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

Christian Beauprez wrote:
> 
> Hi guys,
> 
> I know what you mean it is that awful phrase "per se" again.

He's talking about the abuse of the "as such" phrase by the EPO, EU Council,
EU Commission and the patent professionals telling them what their clients
want.  He's only obliquely referring to copyright -- the way this article is
written makes it really clear that "as such" can't by any stretch of the
imagination be read the way it has been by these con artists in the software
patent arena.

He's not saying the phrase is dubious; rather that this is an example of how
straightforward its meaning really is, when we consider (with a snort and a
chortle) whether it really means "ideas, procedures, methods of operation or
mathematical concepts" (as such, as such, as such, as such . . .).

:-)

Below are a few copyright-related notes, then I'll drop this discussion for
now on this software patents-related list . . .


> However we can see why it is necessary in copyright. For example I may not
> copy the exact expression of a work but instead lift ideas one after the
> other off another author's work. In cases like this substancial lifting of
> ideas that are merely rephrased could constitiute an infringement.  This is
> necessary otherwise we could just rephrase line by line someone else's work.


Well, this derives from the fact that even a sequence of rephrased
expressions of the ideas expressed by somebody else, is a selection and
arrangement -- that particular sequence of ideas, in that order, would
constitute originality and therefore a duplication of original expression,
even if the ideas are expressed in other words.  The structure, the
selection and arrangement is the same, and if that structure is original,
this duplication would be infringement (this is essentially the same concept
that applies for translations).  This analysis of originality doesn't depend
on substantiality, but sequencing, selection and arrangement.


> Like I say it's not an exact science but it's better than ridiculously
> over-broad definitions.
> 
> To give another example if someone writes and copyrights a program, and I go
> through their code line by line, merely altering the superficial appearance,
> but actually retaining the exact functionality of their code then that could
> be by any stretch of the imagination infringement. The key here is
> "substantive"


The structural analysis of original expression doesn't just apply at the
level of each line by itself, but the sequencing of the lines inasmuch as
that is original -- the sort of operation you describe here would be the
equivalent to what you said above about doing it for other works, and the
same analysis would apply as that which makes translations still
duplications of original expression.


> In the case of copyright it is interesting to see how "per se" has been
> limited as opposed to streched beyond it's mandate as we see in patent law.


Actually, copyright has also been stretched well beyond the real recognition
of its purpose and the essential import of the fact/expression dichotomy,
because WIPO construes it as something where authors control uses of
published works, and by extension, of the information supposedly rendered to
the public in those works.

Traditional copyright is a recourse one can take in cases of duplication of
one's original expression; WIPO is attempting to turn it into direct
physical control over duplication in whole or in part, regardless of the
interests of the beneficiaries of exclusive rights policy -- the general
public, the useful arts and sciences, etc.

A few cool passages from Feist Publications follow
(http://www.bitlaw.com/source/cases/copyright/feist.html):



. . . The mere fact that a work is copyrighted does not mean that every
element of the work may be protected. Originality remains the sine qua non
of copyright; accordingly, copyright protection may extend only to those
components of a work that are original to the author. Patterson & Joyce
800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of
Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990)
(hereinafter Ginsburg). Thus, if the compilation author clothes facts with
an original collocation of words, he or she may be able to claim a copyright
in this written expression. Others may copy the underlying facts from the
publication, but not the precise words used to present them. . . . Where the
compilation author adds no written expression but rather lets the facts
speak for themselves, the expressive element is more elusive. The only
conceivable expression is the manner in which the compiler has selected and
arranged the facts. Thus, if the selection and arrangement are original,
these elements of the work are eligible for copyright protection. See Patry,
Copyright in Compilations of Facts (or Why the "White Pages" Are Not
Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No
matter how original the format, however, the facts themselves do not become
original through association. See Patterson & Joyce 776.

This inevitably means that the copyright in a factual compilation is thin.
Notwithstanding a valid copyright, a subsequent compiler remains free to use
the facts contained in another's publication to aid in preparing a competing
work, so long as the competing work does not feature the same selection and
arrangement. As one commentator explains it: "[N]o matter how much original
authorship the work displays, the facts and ideas it exposes are free for
the taking.... [T]he very same facts and ideas may be divorced from the
context imposed by the author, and restated or reshuffled by second comers,
even if the author was the first to discover the facts or to propose the
ideas." Ginsburg 1868.

It may seem unfair that much of the fruit of the compiler's labor may be
used by others without compensation. As Justice Brennan has correctly
observed, however, this is not "some unforeseen byproduct of a statutory
scheme." Harper & Row, 471 U.S., at 589, 105 S.Ct., at 2245 (dissenting
opinion). It is, rather, "the essence of copyright," ibid., and a
constitutional requirement. The primary objective of copyright is not to
reward the labor of authors, but "[t]o promote the Progress of Science and
useful Arts." Art. I, s 8, cl. 8. Accord, Twentieth Century Music Corp. v.
Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). To this
end, copyright assures authors the right to their original expression, but
encourages others to build freely upon the ideas and information conveyed by
a work. Harper & Row, supra, 471 U.S., at 556-557, 105 S.Ct., at 2228- 2229.
This principle, known as the idea/expression or fact/expression dichotomy,
applies to all works of authorship. As applied to a factual compilation,
assuming the absence of original written expression, only the compiler's
selection and arrangement may be protected; the raw facts may be copied at
will. This result is neither unfair nor unfortunate. It is the means by
which copyright advances the progress of science and art. 

This Court has long recognized that the fact/expression dichotomy limits
severely the scope of protection in fact-based works. More than a century
ago, the Court observed: "The very object of publishing a book on science or
the useful arts is to communicate to the world the useful knowledge which it
contains. But this object would be frustrated if the knowledge could not be
used without incurring the guilt of piracy of the book." Baker v. Selden,
101 U.S. 99, 103, 25 L.Ed. 841 (1880).

. . . "sweat of the brow" courts . . . handed out proprietary interests in
facts and declared that authors are absolutely precluded from saving time
and effort by relying upon the facts contained in prior works. In truth,
"[i]t is just such wasted effort that the proscription against the copyright
of ideas and facts ... [is] designed to prevent." Rosemont Enterprises, Inc.
v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied 385 U.S.
1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).

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