Displacement of Concepts

Via the Patry Copyright Blog, it seems there was a bit of an interesting discussion over the advertisement run in the UK for Transport for London and created by folks at or associated with WCRS. The interest was not so much over the advertisement itself, but over the fact that the idea (and perhaps more, see below) was based on one developed in 1999 by Prof. Daniel J. Simons at the University of Illinois in the U.S. (note, java required to see the original). The story has pretty much run its course (I was working on a law review article over the past two weeks, and pretty much stayed out of daily news), with the good Professor not pushing the matter.

Even so, there are two (largely unrelated) parts of this story that I wonder about. The first is the overly legalistic response from the advertising agency in question, and the second is a post which seems to argue that if used to achieve a laudable end, even copyright infringement should be allowed.

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William Patry writes about a recent U.S. Federal District Court decision that is “a masterpiece of analysis and witty writing” (Ricky Gervais Inspires Copyright Opinion). Patry quotes from the decision (citations omitted):

For example, presuming Shakespeare’s poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem’s depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard’s virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet’s motives are of no moment so long as the final product is not substantially similar to the original.

In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS’s works to create ASP’s. Even if they smuggled copies of SMS’s programs and poured over them, redlining and rewriting, such “intentional dissimilarity” is permissible.

From, Situation Management Systems v. ASP Consulting Group, F.Supp.2d —-, 2008 WL 538808 (D.Mass.)(available here), Civil Action No. 06-11557-WGY.

What’s particularly interesting to me here is that this case would likely be decided differently in the UK (at the very least the analysis would be distinctly different).

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Cory Doctorow at BoingBoing tells of a talk by John Perry Barlow given at the O’Reilly Emerging Technology Conference:

Today at the O’Reilly Emerging Technology conference, I attended the Electronic Frontier Foundation’s panel, “On a Brighter Note…”, a talk about why we should be optimistic about the future of technological liberty. I took a ton of notes and uploaded them.

John Perry Barlow, EFF co-founder: I am still optimistic. I didn’t expect that the entire wealth of the industrial period would gracefully allow us to render them irrelevant. They’re putting up a spirited fight, but I don’t think they’ll win. Victory comes to the patient.

Cory concludes:

Can we come up with a regime for regulating the economy of ideas and the way of getting paid for work you do with your mind that doesn’t treat thought as a noun and therefore subject to being treated as property. The IP system is a gigantic kludge of patches that have been laid on in different regimes, as it all goes to bits, it needs to be harmonized with a regime that recognizes that this regulates the relationship of the creator and the audience.

I’m not sure this is the right question, but it’s at least worth thinking about.

Some things just never die. In 2007, the UK House of Commons investigated extending the term for copyright protection for sound recordings from 50 years (which it is now) to 70 years. The Government ultimately decided not to pursue the extension, much to the dismay of its supporters. But now, less than a year later, the idea is back, this time in the form of a private member’s bill in the House of Commons. That something might actually be happening in this regard was brought to my attention courtesy of the IP Kat’s Jeremy Phillips, who says:

According to a tiny article in The Times Online on Monday,

“the [UK] Government has indicated that it will support a policy change that will allow pop stars to earn more money from their recordings. Andy Burnham, the Culture Secretary, said that the Government would revisit its opposition to extending the copyright term on sound recordings from 50 to 95 years”.

There’s nothing on the Department of Culture, Media and Sport website to substantiate this, though. Can any wise reader put the IPKat right as to what’s going on?

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