This is the 2nd part of the 2 part post and discusses my theoretical take on the issue of copyrightability of plots and themes, and the abstraction filtration test as a determining factor for copyright infringement.
Link to Part 1 (context and the cases involved)
Analysis
This part shall discuss the theoretical reasoning for the existence of the scenes a faire doctrine, and why the courts rationale is an extremely important facet of Copyright law, which must not be diverted from, as done in the Singardaan case.
- What is the role of copyright?
Professor Julie Cohen argues: The role of copyright in plain and simple terms is to “stimulate creativity”. The basic idea behind copyright is to promote cultural progress and render cultural elements accessible. She points out these justifications, stemming from the foundational case of Harper and Row v. Nation Enterprises, where the SC of the US recognized Copyright to be “an engine of free expression”, to argue that copyright maximalism restricts cultural practice in circulation. She has gone on to recognize the pitfalls of believing in the inflated notion of copyright in stimulating (incentivizing) creativity as well as the problems of over-broad protection. She goes on to rightly argue that a rigid control of access to and manipulation of cultural goods stifles artistic and cultural innovation, and hence fostering the idea of a limited copyright regime. Even Martin Skladeny has gone on to argue that excessive copyright is a delusion created by corporates and seekers of maximalist control and restriction on cultural access to showcase that “more copyright” leads to “more innovation” portraying an “authorial romance” which equates creation with absolute originality. Professor Mark Lemley has argued that “The goal of IP is to grant as little protection as possible, consistent with encouraging innovation and to provide for diverse cultural expressions to exist. In Warner Bros v. American Broad, Justice Newman for the Federal court of the US had held that although by assuring exclusive benefits of the commercial success of the work created, copyright promotes creativity, however at the same time it can deter the creation of new works if works are easily found to be substantially similar and the law is interpreted in an over protective manner. Even in the case of White v. Samsung Elecs, a dissenting judge at the Federal Court of the 9th Circuit had recognized that “culture like technology grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces; it is supposed to mature.”
- Why is this important? The Incentive-Access paradigm
The realization of this rationale brings the incentives- access paradigm into perspective. The incentive-paradigm in copyright policy suggests that in order to avoid deterring future works, copyright should limit its protection to original elements or to a level of abstraction where “co-incidental reappearance of the element becomes extremely unlikely.” Further it advocates that protection beyond minimal incentives at the cost of access to culture hampers the goal of copyright.
Another, important relevant doctrinal consideration herein is the nature of copyrighted goods.
3. Copyright is unique and non-rivalrous
Here, granting a benefit to someone does not involve taking away anything from someone, unlike physical property. All copyrighted products are a product of expression and do-not-compete with each other for market presence. There is no concept of a substitute or a rivalrous good, or even partial substitutes that subsists when considering speech/ expression/ cultural copyrighted content. Each expression enjoys a monopoly based on its expression and is not based on a relative measure of competition, due to the element of originality of perspective involved in the first place. (Read more on this here) No wonder, there is a need to rethink the need of this “property” oriented discourse around copyright, as it potentially coerces the normative discourse around physical property to the way IP is regulated. The reliance on the property rhetoric has interestingly been argued by multiple IP thinkers like Prof. Brian L. Fyre, Prof. Jessica Litman, and Prof. Mark Lemley.
- Free Riding?
This shows that due to Copyright not concerning itself with competitive goods, and rather with individual expressive information goods, there is no ground for an argument of overprotective enforcements or laws – based on the premise of/ due to “free-riding” generally found under unfair competition law, to subsist. The author has a right against the unauthorized use of their work, not against free riding. Economically as well, IP provides protection against negative externalities and not positive ones, in fact the goal of IP is to allow for positive externalities for a larger creative corpus and wider dissemination.
This discussion portrays the need to limit the interpretation of substantial similarity to conditions where copying induces negative externalities (closer to imitation) in the sense the expression in its pure meaning being appropriated, rather than being used and transformed or even hinted at while expressing something else or producing another creative piece. The simple point here is that although maybe the initial work x was brought in first. Now the creation of some other work y, took in elements from x, which were either “not unlikely” to co-incidentally exist, or were not substantially similar (the connotation bending closer to imitation). If there was a difference in the overall expression to such an extent, I don’t see any free riding, and both should get different protections for their works, because they do not compete with each other for market presence. The whole idea that copyright is to reward labor seems flawed. Copyright intends to be a limited entitlement which is provided for sustenance and accreditation of the original creator, and to increase the creative corpus in the society, by providing multiple artists sustenance and access to an audience. Having tests like “look and feel” to adjudicate upon substantial similarity wrongfully objectify expression to analyze similarities and result in overprotection based on broad ideas around the piece, rather than exactly what is portrayed. Copyrighted goods are subjective in its interpretations and objectively relying on “look and feel” rather than a dissected analysis of similarity is problematic and against the goal of copyright to enrich the creative corpus. It is imperative to have a high threshold of proving similarity to achieve this aim, that copyright policy seeks to achieve in the first place.
This incentive access paradigm also criticizes the rationale behind wide derivative rights, however that is outside the scope of this piece. (Interesting reading though)
- The Idea Expression Dichotomy and scenes a faire doctrine
Copyright creates a monopoly-based market power over an expression and disallows others from marketing a perfect substitute (the exact expression). This results in a dead-weight loss wherein the expression can enjoy an extremely high cost and limit access substantially. To avoid a situation of this sort, and to limit this market power (in order to promote realistic access to the expression), copyright leaves out certain thematic, plot-based ideas around that expression for a wider choice exposure to the public around such content. These won’t constitute substitutes of the primary good or won’t even act as partial substitutes (the way something is conveyed forms a major part of its market and marketability), however these provide for an essential alternate perspective around a similar theme or a plot line, which enriches the discourse and diversity of perspectives in creative expression, as well as incidentally keeps the price of the primary good in check, due to them being somewhat related (common superset?)
Learned Hand in Nichols v. Universal Pictures Corp. had held that abstractions that level to the concept of an “idea” apart from how they are expressed are not protected as property, however the boundary is vague, and nobody will ever be able to fix that boundary. Further, he had also recognized that in the case of plays/literary and dramatic works, it is the sequence of events, pattern, the development and interplay of characters as well as the message conveyed, read together, that portrays expression, and nothing else can be protected. This clarified the foundations of the scenes a faire doctrine which stated that a common theme around a particular war, or a dinosaur zoo or an adventure park do not enjoy copyright protection, including folklore, true story lines, fables etc., and they must be in the public domain. In my opinion, the need to do so, stems from the Nietzschean understanding of perspectivism which recognizes the possibility of subjectivity and the need to see themes from various viewpoints (subjective cognitive faculties and individual confessions) (see here on the blog for more). Allowing themes/ plotlines which can showcase varied perspectives within allow the chance of multiplicity to realistically exist, and help foster a multifaceted dialogue around culture and content, which is the essence of Copyright in the first place (unlike in Singardaan where one perspective showed the dressing table in context of love and preserved good, and the other showed it from the perspective of theft and revenge, and yet there was a ruling supporting infringement). Hence, a way to resolve the (so called unresolvable) idea-expression dichotomy could be to identify the possibility of a varied perspective being portrayed or being stemmed out of an element. If it is possible, or has been done, then the element should not be protectable, otherwise it should be (as it does not hamper the existence of multiplicity of perspectives)
Another resolution to this dilemma is the incentive-access paradigm, where certain courts use the compelling need for access, either to assure the creation of future works or to minimize over pricing at the cost of reasonable access, as a reason to rule an element as an unprotectable idea. (Read more here)
- The Public Domain (What does it symbolize?)
There are inherent physical or metaphysical limits on what one can claim as a property under the copyright discourse. (Read here) As Professor Jessica Litman has recognized elements that “seep” into the society and quickly get absorbed, makes one lose sight of its origin, and makes them difficult to trace. They are used in sheer multiplicity, which makes a rights-based enforcement by all prior users – against subsequent users, as well as licensing- a daunting task. This has been argued to have a chilling effect on the work of future authors. Further, Prof. Litman has argued that elements that are generally absorbed in such ways must be kept free from private claims, to allow them to be exploited according to the different understandings they portray. It is essential to keep such elements in the public domain. The task of finding the true author of such absorbed ideas are difficult, which renders it appropriate to put them in the public domain, for further absorption and usage.
It is essential to glorify the presence of such “raw materials” (elements that quickly get absorbed into cognition), or elements which are capable of producing multiple perspectival representations within, in the public domain, free to be used by all. Such raw materials are essential to exist within the system as commons as they provide a crucial device for other perspectives to be created. As Prof. Litman has recognized, the “originality” system of authorship is sustainable in the first place due to the existence of the public domain upon which authors can freely draw, otherwise creation would have been a myth. Only those elements which are not “drawn upon” are protectable.
Academics have very importantly defined “originality” to be a deeming fiction and have noted the problems with its underlying treatment as inventions (in terms of over- protection), or something new which is being produced. Creativity is really the result of a combination of absorption, vision and amnesia. (Read more here). The only power an author has – is to mix writings, to counter ones with other, in such a way that makes the author represent a distinct perspective, as against others, narrowly. The label of “originality” undervalues the broad range of anonymous material that the author relies upon or “bases their work upon” and considers the “author” as a “creator”, when all what the author does is to represent a particular perspective (original to themselves) using all what is around them. It is essential to realize “that every first author (unlike an inventor) is also a second author as every act of creation involves a re-use of materials elaborated elsewhere” (Read here). Imperatively, the author uses material in the realm of circulation (Read here), and as a mechanism of quid pro quo, cannot be allowed to monopolize the same, and must let it exist freely, for others to draw upon and produce multiple perspectives as well (as long as it is not copied or representative of their perspective/ cannot be distinguished from their individual perspective). These raw materials in the society/ public domain materials, are essential devices that permit the rest of the system to work and produce multifaceted authorial works. Recognizing this and limiting protection only to subjective cognitive elements is thus essential in copyright law, to allow for multiplicity of expression to subsist, which is definitely hampered by exclusive over-protection over the whole work (including these raw material elements).
Infact, it is essential to realize the normative practice of “reworking” as essential to creative production. As Prof. Julie Cohen emphasizes, reworking is a common literary device that has been used in the history of the written word. Shakespeare not only borrowed plot materials from numerous pre-existing works, however even systemized a play-within-play system to introduce multiple perspectives, contextualize and then provide his own. She has even argued for the infelicity of the scenes a faire doctrine to recognize the importance of creative borrowing by producing alternate perspectives, due its narrow requirement of “necessity to portray”. Creative borrowing, to produce alternate perspectives and transformed ideas, needs to be normalized, because two expressions which produce distinct perspectives do NOT compete with each other. That’s not how copyright expressions work. The connotation of property has blurred this belief, and so it is essential to blur out the property connotation from IP rights. Creative borrowing has been practiced for centuries to allow people to portray breath taking variety, beauty and powerful cultural elements all over the world. Genres like impressionism, hip hop, etc. borrow incessantly from the creative stock in the society, and this must be normalized as against over protection – to foster creative practices. The author as an individualistic genius also is a very western idea of copyright law and undermines the nature of collaborative/ borrowing based creational tendencies in various other cultures (for instance the value of hear-say singing in Indian classical music, the value of sampling in Hip-Hop etc.) Imposing such standards in IP laws around the world, is an imperialistic colonial tendency which must be questioned and re-thought.
Conclusion
The purpose of copyright law is to increase authorship, as against protecting authors. The protection given to authors is a measure to incentivize authorship (although does it really incentivize? Read here), and not to provide unreasonable entitlements to curb access and use of such public goods. The incentive access paradigm holds essence and must be regularly kept in mind while interpreting copyright principles – we cannot confer incentives at the cost of access to culture/ creative expression (both by other authors as well as users).
I believe overprotection, and the concept of romanticizing the author to portray a creative genius who “creates” something new and novel, rather than re-working existent raw materials to showcase a distinct perspective, is another corporate tool. Corporate lobbyists have over time used this philosophy of romanticizing authorship in legislative debates, to portray the psychological requirements of entitlements for authors, later having them assign all of it to these corporates (based on an unfair bargaining power, of course). The true virtue of an author genius (if at all so) gets punctured by the assignability and the property metaphor around the same, which is what corporate copyright owners build upon to seek overprotection and in turn maximum revenue, at the cost of public access. (Read Jessica Litman’s insightful piece here) This tool of overprotection is a definite façade for capitalistic progress as against the actual goal of multiplicity of expressions and perspectives in the society. These justifications presented by overprotection proponent draw upon principles of trademark law i.e – association to the primary work, free riding, unfair competition – which are unimaginable/ inappropriate in the case of copyrighted public/ non-rivalrous goods. Conflating the two and seeking protection on such grounds goes against the intent of copyright theory and policy. We need to stop associating the principles of “property with IP” and we need to “normalize creative borrowing to showcase a varied perspective”, because that is how culture and expression is supposed to progress. (Read more here)
Finally this critical take might seem tough to accept – because of it going against our intuitional idea of what copyright protects and how they are entitlements for authors to realize from their works – but questioning the same, in light of the actual goal of the policy is imperative, and is the essential purpose of critical scholarship. I am glad the Lootcase decision has been taken clarifying the stand, and this is definitely a positive step, however there is a long way to go before we are able to psychologically instill and ingrain the problems of overprotection-and over entitlements at the cost of the society and the creative corpus – as an intuitional thought.
IMAGE SOURCE: here
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