Thursday, August 30, 2007

Plagiarizing my Own Story??? Give me a break!!!!


I had a rather interesting situation arise this week concerning an article I had written. A client called me complaining that I had posted an article on my blog that I had written for him/her. I was accused of all kinds of things: plagiarism, theft, betrayal. I was also informed that the original idea for the subject of this article had come from this individual which meant that their rights on the idea superseded my own copyright on the creative expression of that idea (the article itself). There were the usual threats implied and otherwise.


I had a few ideas of my own on the matter, after picking myself up off the floor in disbelief. First of all as I had spent several days researching the subject and about half a day writing the article (alone I might add), there was no way to accuse me of plagiarism*. (It was my own article for heaven’s sake!!!) Second, unless I sold the exclusive rights to that article or otherwise disclaimed them (which I had not done) I retained all creative rights to that article. It matters not that someone else used that article on a “so called” copyrighted blog. (In fact as the author of the article I should have been credited on that blog, a requirement I did not invoke at the time nor will invoke.) The simple fact of the matter is that as a writer I posted the article as representative of the kind of work that I publish. It was a well researched and written piece and I was proud. There was no opportunity for personal gain other than as a writer as I in no way was involved with the target audience for that article.

With all that in mind, I began to wonder myself about artistic control, editorial control, and the like. So off I go again, this time to research a subject and to write an article about intellectual property rights, something that interests me as a writer and artist and should interest anyone involved in the expression of creative ideas.

I want to first define intellectual property and copyright and secondly I want to address the concept of idea-expression dichotomy before going into actual intellectual property rights themselves.




Noun: intellectual property
Intangible property that is the result of creativity (such as patents or trademarks or copyrights) 1

Intellectual property
n.
A product of the intellect that has commercial value,
including copyrighted property such as literary or artistic works, and
ideational property, such as patents, appellations of origin, business methods,
and industrial processes. 2

Intellectual property

Computing: Intellectual property (IP) The ownership
of ideas and control over the tangible or virtual representation of those ideas.
Use of another person's intellectual property may or may not involve royalty
payments or permission, but should always include proper credit to the
source.

Economics: Non-tangible property that is the result
of creativity such as copyrights and patents. 3

Noun: copyright
A document granting exclusive right to publish and sell literary or
musical or artistic work 1

Copyright n.
The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical,
dramatic, or artistic work. 2

Copyright
noun
A document granting exclusive right to publish and sell literary or
musical or artistic work. 3



This takes us to the subject of ideas. In short copyrights provide protection for the expression of an idea and not the idea itself. This is known as the Idea-Expression Dichotomy. This doctrine has held in literally hundreds of cases and is one of the most commonly used principles regarding copyright. Idea-Expression Dichotomy means that an author’s ideas go into public domain while their creative expression of those ideas remain the author’s to control. 4

A perfect example of this doctrine can be found in the United States Copyright Act 5 which was itself modeled after TRIPS and Berne, discussed below. A relevant portion of this act reads as follows:



In no case does copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work. 5


This specific distinction is at the heart of the issue between patents and copyrights. Were ideas to be protected under copyright law, then all inventors would have to do is create a copyrighted piece and then they could circumvent governing patent law.

In turning my attention to intellectual property rights themselves, I came across two important international agreements regarding intellectual property that govern world standards: what is known as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 6 and the Berne Convention 7 . Both of these agreements control nearly every country in the world and even developing nations such as Brazil, India, Korea and Thailand now recognize the automatic rights of authors over their own writing as a result of TRIPS and Berne.

In 1994 the World Trade Organization negotiated what is called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) during the Uruguay Round of the General Agreement on Tariffs and Trade. Ratification of the TRIPS is a compulsory requirement for membership in the World Trade Organization (WTO) and any nation seeking to obtain access to world markets opened by the WTO must enact the strict intellectual property laws mandate by TRIPS. A few of those rights include:



  • Copyright must be granted automatically and immediate to creation of material with no requirement for registration or renewal.

  • Copyright terms for authors are for the term of their life plus 50 years after death.

  • Copyright terms for films are set at 50 years and photographs at 25.

  • National exceptions to copyright rights are to be tightly constrained.

  • TRIPS rights must be equal for all persons in a member state with no benefits enjoyed by local citizens not available to nationals from any TRIPS country.


The Berne Convention of 1886 upon which TRIPS was based was an international treaty that is still in place to protect intellectual property rights. As with TRIPS, under Berne copyrights for creative works do not have to be declared, asserted, or registered. They are instead immediately in force upon creation (as soon as a work is “fixed”, that is, written or recorded on some physical medium). At that time the author is automatically entitled to all rights of copyright to include any derivative works until such time as the author explicitly disclaims those rights or until fifty years after his or her death.

I also found myself interested in the rights and privileges afforded to authors in particular. Authors under TRIPS and Berne have the right to:



  • display their work publicly,

  • import or export their work,

  • produce and sell copies of their work,

  • create derivative works,

  • sell or assign any of these rights to others.


In conclusion, I have found in life that the old clique that there are not any problems, only solutions holds true. I have additionally learned that any situation can be turned into a positive learning experience. Through the travails of dealing with a disgruntled client asserting ridiculous claims to my own writing I have learned a valuable lesson in copyright law and international treaties governing intellectual property. In the future I will not be so quick to entertain absurd claims that someone else owns my writing in the absence of a disclaimer by me of those rights.


Footnotes:

http://www.wordwebonline.com/
http://www.thefreedictionary.com/
http://www.websters-online-dictionary.org/definition/intellectual+property
http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1-20.htm
http://www.law.cornell.edu/copyright/copyright.table.html
http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

Author’s notes:



  1. I might note here that I still have the core research for this article and I uploaded the article onto my client’s blog from my own computer at my own home, a fact verifiable through internet records.

  2. And I had a friend proofread the article providing an e-mail record of creation superseding any blog’s claim to ownership.

  3. I might add this is all rather odd to have to get into considering the fact the client was and may still be a friend.


Additional Reading:



  1. Works Unprotected by Copyright Law, i.e. titles, short phrases, IDEAS http://www.bitlaw.com/copyright/unprotected.html
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