The E-Book Nova: A Disputation
Collaboration, Cohesion, Copyright
The New Murphy
A combination of bot and human
taggers have anatomised Murphy,
allowing reader to adjust settings,
e.g.:
Change Murphy so it’s
set in present-day
Tokyo
Enhanced media
content
Embedded
video clips (like
magic books)
Read _____, a version of
Murphy in which the main
character … is you! (Perhaps
as a comic too).
Scholarly
commentary
Meta content
Audio narration
(human &/or
text-to-voice)
Bespoke P.O.D.
paper version
Illustrations
Read the Potter remix replaces each
character with its nearest Hogwarts
equivalent, so Harry need never die!
Gogarty is Dumbledore! Yay!
Automated
glossing
systems
Comparative databases: e.g. “if
you like this sentence, you
might like this book …”
Multiple editions in the
traditional sense (authorial
and editorial amendations,
critical apparatus, etc.)
MURPHY
by Samuel Beckett
Multiple
versions
Illegal (?) fan edits, e.g. CROTZLOB887’s
edit, which removes all mention of Miss
Counihan, “Beckett’s Jar-Jar Binks”
Animated
typography
Font face, size,
interleading etc.
A particular reader’s
comments,
marginalia, MSTing
+
Readers have input into which books studios
select for film adaptation, even influence
casting etc. Cf. Snakes on a Plane.
Book club forums
/ wikis: a
community of
readers discuss
Murphy fanfics, i.e. original writing
using Beckett’s characters & world. E.g.
pornographic “slashfic” featuring
characters from Murphy, Waiting for
Godot & More Pricks Than Kicks.
Clean versions for children
and very mild people
Designed piecemeal by the reader, or bundled together
into “skins” or “versions”
Words to a page,
indenting & other
layout, etc.
Fragments of Murphy appear in various
readers: The Beckett Reader, The Celtic
Bum Reader, The Terror of NonExistence Reader
Translations
Abridgements, for the Beckett
reader on the go
Versions for bigots:
e.g. references to
dinosaurs taken out
for Creationist
market
Consumers pick
the category of
ads: e.g. octopusrelated, ethical
Super-abridged crib versions,
cf. Cliffs Notes
Appearance
Any aspect of any of these incarnations of Murphy is
liable to be assimilated into other works. The New Book
manifests as “scriptons” (Aarseth); whatever is seen at
any moment is the result of filtering a complex,
reflexive cybertextual palimpsest, fractal in the sense
that many of its nodes would likewise be the result of
filtration. Hubs would come and go.
Murphy the film
Machinima-esque CGI film created in a few days
from 90% existing footage. Books are extensively
“tagged,” so books which would not otherwise be
filmed can easily be organised according to their
common cinematic requirements. Similarly, various
Murphy games / expansion packs: interactive tie-ins
are produced for only moderately-popular titles
Sponsored versions
(free, ad-driven)
Illegal (?) plagiarised versions,
perhaps under another title
Highly derivative other works,
contestably plagiaristic
Product
placement,
including targeted
contextual
marketing
Automated or
semi-automated:
equivalent of spam
“scraper sites”
“If by books you are to be understood as referring to our innumerable
collections of paper, printed, sewed and bound in a cover announcing
the title of the work, I own to you frankly that I do not believe (and the
progress of electricity and modern mechanism forbids me to believe)
that Gutenberg’s invention can do otherwise than sooner or later fall
into desuetude as a means of current interpretation of our mental
products . . .”
— Octave Uzanne, Scribner’s (1894)
“The stable hierarchies of the printed page [...] are being superseded
by the rush of impulses through freshly minted circuits. The
displacement of the page by the screen is not yet total (as evidenced
by the book you are holding) — it may never be total — but the
large-scale tendency in that direction has to be obvious to anyone
who looks.”
— Sven Birkerts, The Gutenberg Elegies (1994/2010)
Part I
• “The New Book” — a thought experiment
Part II
• Originality in UK Copyright Law — influential factors
I. The New Book – Hardware
iPad
• Text, images, videos,
web sites, applications
• Connects to the
internet via mobile
phone networks
• Touch screen doubles
as a keyboard
• Drawbacks compared
with Kindle et al.:
− screen is LCD
rather than e-ink,
which makes it
harder to see in
sunlight
− power-hungry
I. The New Book – Converged media
animated typography
hypertext
A blend of …
cybertext
• Type
• Audio
“texts that involve calculation in their
production of scriptons” (Aarseth)
• Images & video
• Applications
pre-recorded/produced
• Social media
machine-synthesised
live performance
malware
editors
forums
multiplayer
games
wikis
expert systems
blogs
chatterbots
syndicated feeds
“10,000 of us reading the same Kindle book, each of
us highlighting and taking notes. Would the aggregate
of this not be illuminating?”
— Craig Mod, Embracing the Digital Book (2010)
I. The New Book – Converged media
And watching, listening, playing,
experiencing
• Reading
• Writing
• Editing
• Publishing
• Reviewing
• Criticising
• Curating
• Archiving
• Performing
• Adapting
Maintaining relationships,
belonging to communities
• Sharing
• Reporting news
• Consuming news
• Working
• Playing
Mixes aspects of . . .
I. The New Book – Building blocks
Recombination
Semantics
Prosumption
I. The New Book – Recombination
I. The New Book – Recombination
I. The New Book – Recombination
I. The New Book – Recombination
Full dearely shalt thou by it (quoth Roger Chartier) may I get
A weapon: and with that in stead of weapon, he did set
His hand uppon a vowd harts horne that on a Pynetree hye
Was nayld, and with two tynes therof he strake out eyther eye
Of Lara Buckerton: whereof sum stacke uppon the horne,
and sum did flye
Uppon his beard, and there with blood like jelly mixt did lye.
A flaming fyrebrand from amids an Altar Linda Carreiro snatcht,
With which uppon the leftsyde of his head Eyal Poleg latcht
A blow that crackt his skull. The blaze among his yellow heare
Ran sindging up, as if dry corne with lightning blasted were.
And in his wound the seared blood did make a greevous sound,
As when a peece of steele red hot tane up with tongs is drownd
In water by the smith, it spirts and hisseth in the trowgh.
Eyal Poleg from his curled heare did shake the fyre, and thowgh
He wounded were, yit caught he up uppon his shoulders twayne.
A stone, the Jawme of eyther doore that well would loade a wayne.
The masse therof was such as that it would not let him hit
His fo. It lighted short: and with the falling downe of it
A mate of his that Robert Ritter hyght, it all in peeces smit.
Then Jerome McGann restreyning not his joy, sayd thus: I would
the rowt
Of all thy mates myght in the selfsame maner prove them stowt.
• The centauromachy from Ovid’s
Metamorphoses, trans. Arthur
Golding (1567), with some
adaptations.
I. The New Book – Recombination
I. The New Book – Recombination
Full dearely shalt thou by it (quoth Roger Chartier) may I get
A weapon: and with that in stead of weapon, he did set
His hand uppon a vowd harts horne that on a Pynetree hye
Was nayld, and with two tynes therof he strake out eyther eye
Of Lara Buckerton: whereof sum stacke uppon the horne,
and sum did flye
Uppon his beard, and there with blood like jelly mixt did lye.
A flaming fyrebrand from amids an Altar Linda Carreiro snatcht,
With which uppon the leftsyde of his head Eyal Poleg latcht
A blow that crackt his skull. The blaze among his yellow heare
Ran sindging up, as if dry corne with lightning blasted were.
And in his wound the seared blood did make a greevous sound,
As when a peece of steele red hot tane up with tongs is drownd
In water by the smith, it spirts and hisseth in the trowgh.
Eyal Poleg from his curled heare did shake the fyre, and thowgh
He wounded were, yit caught he up uppon his shoulders twayne.
A stone, the Jawme of eyther doore that well would loade a wayne.
The masse therof was such as that it would not let him hit
His fo. It lighted short: and with the falling downe of it
A mate of his that Robert Ritter hyght, it all in peeces smit.
Then Jerome McGann restreyning not his joy, sayd thus: I would
the rowt
Of all thy mates myght in the selfsame maner prove them stowt.
• The centauromachy from Ovid’s
Metamorphoses, trans. Arthur
Golding (1567), with some
adaptations.
I. The New Book – Recombination
Roger/NNP Chartier/NNP cried/NN ,/PPC “Unpunished/NNP shall/MD not/RB go/VB This/DET fact/NN ,/PPC
if/IN arms/NNS are/VBP found/VBN against/IN the/DET foe.”/NN He/PRP looked/VBD about/IN ,/PPC
where/WRB on/IN a/DET pine/VBP were/VBD spread/VBN The/DET votive/NN horns/NNS of/IN a/DET
stag/NN 's/POS branching/VBG head/NN :/PPS At/IN Lara/NNP Buckerton/NNP these/DET he/PRP throws/VBZ
;/PPS so/RB just/RB they/PRP fly/VBP ,/PPC That/DET the/DET sharp/JJ antlers/NNS stuck/VBD in/IN
either/DET eye/NN :/PPS Breathless/NNP ,/PPC and/CC blind/JJ he/PRP fell/VBD ;/PPS with/IN blood/NN
besmeared/NN ;/PPS His/PRPS eyeballs/NNS beaten/VBN out/IN ,/PPC hung/VBD dangling/JJ on/IN his/PRPS
beard/NN ./PP Fierce/JJ Linda/NNP Carreiro/NNP ,/PPC from/IN the/DET hearth/NN a/DET burning/NN
brand/NN Selects/VBZ ,/PPC and/CC whirling/JJ waves/NNS ;/PPS till/IN ,/PPC from/IN his/PRPS hand/NN
The/DET fire/NN took/VBD flame/NN ;/PPS then/RB dashed/VBN it/PRP from/IN the/DET right/NN ,/PPC
On/IN fair/JJ Eyal/NNP Poleg’s/NNP temples/NNS ,/PPC near/IN the/DET sight/NN :/PPS The/DET
whistling/VBG pest/NN came/VBD on/IN ,/PPC and/CC pierced/NN the/DET bone/NN ,/PPC And/CC
caught/VBD the/DET yellow/JJ hair/NN ,/PPC that/IN shrivelled/NN while/IN it/PRP shone/NN ./PP Caught/VBN
,/PPC like/IN dry/JJ stubble/NN firdd/NN ;/PPS or/CC like/IN seerwood/NN ;/PPS Yet/RB from/IN the/DET
wound/NN ensued/VBD no/DET purple/JJ flood/NN ;/PPS But/CC looked/VBD a/DET bubbling/JJ mass/NN
of/IN frying/VBG blood/NN ./PP His/PRPS blazing/VBG locks/NNS sent/VBD forth/RB a/DET crackling/JJ
sound/NN ;/PPS And/CC hissed/VBD ,/PPC like/IN red/JJ hot/JJ iron/NN within/IN the/DET smithy/NN
drowned/VBD ./PP The/DET wounded/JJ warrior/NN shook/VBD his/PRPS flaming/JJ hair/NN ,/PPC Then/RB
(/LRB what/WP a/DET team/NN of/IN horse/NN could/MD hardly/RB rear/JJ )/RRB He/PRP heaves/VBD
the/DET threshold/NN stone/NN ,/PPC but/CC could/MD not/RB throw/VB ;/PPS The/DET weight/NN itself/PRP
forbade/VBD the/DET threatened/JJ blow/NN ;/PPS Which/WDT dropping/NN from/IN his/PRPS lifted/VBN
arms/NNS ,/PPC came/VBD down/RB Full/JJ on/IN Robert/NNP Ritter’s/NNP head/NN ;/PPS and/CC crushed/JJ
his/PRPS crown/NN ./PP Nor/CC Jerome/NNP McGann/NNP then/RB retained/VBD his/PRPS joy/NN ;/PPS
but/CC said/VBD ,/PPC “So/NNP by/IN their/PRPS fellows/NNS may/MD our/PRPS foes/NNS be/VB sped.”/NN
Similar text to the previous slide, tagged according to parts of speech using Matt Butler’s Open Wound http://openwound.mbutler.org/
I. The New Book – Recombination
“Summer holidays!” Chet Morton exclaimed. “No more school
until September.”
The stout, good-natured boy lounged half asleep between
Frank and Joe Hardy in the front seat of a powerful yellow
convertible. With a soft purr, the car moved swiftly past the
carefully tilled fields of the Pennsylvania Dutch farmers.
Dark-haired, eighteen-year-old Frank Hardy was at the wheel.
He kept his eyes upon the road which would lead them to the
green bulk of the Pocono Mountains later that sunny June
afternoon.
Meanwhile, his blond-haired younger brother Joe said, “There
used to be witches round here, Chet. See that sign? It’s to ward
them off.”
He pointed to a brightly painted circular design on a huge red
barn.
Chet Morton had opened an eye as the car moved past the
barn. “What is it?” he asked.
“A hex sign,” Joe told him. “Supposed to keep off lightning
and protect the farm against witches.”
“Witches!” The plump boy straightened up, looking worried.
“Today?”
“Sure,” Joe Hardy went on teasingly. “If a witch puts a spell
on your cow, she won’t give milk. Those circles keep off the
course.”
• The first page of The Curse of the
Screeching Owl, by Franklin W.
Dixon
I. The New Book – Recombination
• Some images from Robbie Cooper and Julian
Dibbell, Alter Ego: Avatars and their Creators (2010)
I. The New Book – Recombination
“Summer holidays!” Chet Morton exclaimed. “No more school
until September.”
The stout,
slender,
lean,
stocky,
good-natured
good-natured
good-natured
good-natured
boy
boy
boy
boy
lounged
lounged
lounged
restedhalf
half
comfortably
halfasleep
asleep
asleep
between
between
between
Frank and Joe Hardy in the front seat of a powerful yellow
convertible. With a soft purr, the car moved swiftly past the
carefully tilled fields of the Pennsylvania Dutch farmers.
Chestnut-haired, eighteen-year-old Frank Hardy was at the
wheel. He veered eratically upon the road which would lead them
to the green bulk of the Pocono Mountains later that sunny June
afternoon.
Meanwhile, his bald younger brother Joe said, “There used to
be witches round here, Chet. See that sign? It’s to ward them off.”
He pointed to a brightly painted circular design on a huge red
barn.
Chet Morton had opened an eye as the car moved past the
barn. “What is it?” he asked.
“A hex sign,” Joe told him. “Supposed to keep off lightning
and protect the farm against witches.”
“Witches!” The plump
slender
lean
stocky
boy
boy
boy
straightened,
straightened,
straightened,
looking
looking
looking
interested.
worried.
sly.
uncomfortable. “Today?”
“Today?”
“Sure,” Joe Hardy went on morosely. “If a witch puts a spell
on your cow, she won’t give milk. Those circles keep off the
course.”
• The first page of The Curse of the
Screeching Owl, by Franklin W.
Dixon, with some modifications
Chet
I. The New Book – Semantics
Frank chuckled merrily, and ran his hand through
his curly
his dark
chestnut
hair. hair.
Suddenly, the candle blew out, and the room was
plunged
plunged
into curly
into dark!
chestnut!
I. The New Book – Semantics
Find-and-replace
• Hermione for Chet?
• Easy to swap one
signifier for another
• Harder to swap one sign
for another
• Especially when it’s
embedded in a complex
system of co-conditional
signs (e.g. a narrative)
• And problems associated
with “intentional
statements”
I. The New Book – Semantics
Chet
restaurant
follow
recipe
cook
IsA
bake
person
HasPrerequisite
AtLocation
dessert
oven
MotivatedByGoal
satisfy
hunger
sweet
cake
cheesecake
eat
survive
swallow
I. The New Book – Semantics
TV Tropes web site
• Written collaboratively,
without hierarchy or
codified norms
• Users identify tropes in
popular culture and
collect hundreds of
examples of them – for
fun
E.g. “You Have Failed
E.g. Me
“Mooks”
. . . For The Last Time!”
• “[…] This
Nameless,
is related
Faceless,
to Karmic
Horribly
Death,Awful
in thatShots,
it means
Incompetent,
the hero
Unwilling
doesn't
haveTo
toRetreat,
dirty their
and
hands.
completely
Some bad
disposable:
guys willthey
use provide
The Blofeld
a
chance
Ploy
tofor
pullthe
offcharacters
the underling
to show
murder.
off their
Others
flashy
willfighting
drop theskills
offending
and
can be shot
underling
through
withouta Trap
guilt. The
Doorhero
in The
might
War
findRoom
it in his
into
heart
a Shark
to Save
The Villain,
Pool
or otherforgive
Deathtrap
him, […]”
even Accept Him Into His Inner Circle,
whoseSamurai,
only crime
is notBad
finding
better
employer
will be
• but
“[…]the
Inguys
Six String
the Big
startsa to
deliver
the usual
Shown
Nofailed
Mercy
‘You have
me[…]”
for the last—’ then pauses, looks down, and says,
• “[…]
‘nice shoes.’
In Terry
Next
Pratchett’s
cut shows
Guards!
the Big
Guards!
Bad walking
the Palace
offGuard
in them
are[…]”
Genre
enough toinbethe
terrified
at the
prospect
facing
a single,
• Savvy
“[…] Subverted
Douglas
Adams
DoctorofWho
episode
‘The
unarmed,
smiling
foe:
after
all,
that
is
statistically
the
most
dangerous
Pirate Planet.’ The villainous Captain hisses ‘When someone fails me,
kind
of enemy
[…]” dies!’ — then kills a random extra instead of the
Mr. Fibuli,
someone
• “[…]
personInwho
Robin
actually
of Sherwood,
failed, the
because
merryhe’s
men
tookilled
useful
tentoorkill
sojust
of the
out of
sherriffOf
pique.
’s men
course,
per the
episode.
Evil Overlord
You had toList
wonder
specifically
what kind
says of
not to do
recruitment
this
[…]” package was being offered […]”
• “[…] Double-subverted
The codified hero/villain
in the Stargate
interaction
Atlantis
in The
episode
Venture
‘Irresponsible’
Brothers
naturally
—
Genii invokes
commander
mooks;
Kolya
two,aims
Number
his gun
21atand
a disgraced
Number 24,
Mook,
become
but
important
does
not shoot.
recurring
The characters.
mook thanks
Though
him and
theyKolya
get beaten,
dismisses
maimed
him, and
killed on
telling
him
a regular
it’s his last
basis,
chance
they respect
. . . before
their
angrily
enemies
giving
(as away
one ofhisthem
gun
saysrepair
for
of Brock
[…]”Samson, ‘slayer of men, slayer of henchmen!’) […]”
I. The New Book – Semantics
Commonsense AI
• E.g. MIT’s ConceptNet
• Vast Commonsense
Knowledge Bases, filled
with facts about the
world
• Accessed e.g. through
fuzzy logic inferencing,
which can approximate
human reasoning better
than precise inferencing
Semantic Canon
How?
• Tagging — the same
content can be “filed” in
many tag categories at
once
• Tag instances can
themselves be tagged
• A vast, metadataenriched corpus
• Machine-readable,
analogous to Semantic
Web – an ensemble of
technologies, oriented
towards enriched Web
content, machinemanipulable at the
semantic level
• Folksonomy / ontology
tension?
• Mass online
collaboration – tagging is
done by people, bots,
and by combinations of
the two
• Data capture:
− e.g. Enhanced
Editions tracks at
what times readers
start and stop reading
− e.g. Text 2.0 tracks
exactly the reader is
looking on the page
“It’s one thing to say ‘I really like Weaving the Web’’ on a web
discussion forum. However, no computer could process what you
said. RDF [Resource Description Framework] gives you a way to
make statements that are machine-processable. Now the computer
(of course) can’t actually ‘understand’ what you said, but it can deal
with it in a way that seems like it does.”
— Aaron Swartz
“<http://aaronsw.com/>
<http://love.example.org/terms/reallyLikes>
<http://www.w3.org/People/Berners-Lee/Weaving/>”
— Aaron Swartz
I. The New Book – Scraping
Scraper sites
Philip Parker
• “Buy cheap flights to
Mary Wollstonecraft”
• The “author” of tens of
thousands of books
• Scraper sites detect
search engine queries,
mine content, and weave
together web sites of
(somewhat) relevant
content, often together
with pay-per-click or payper-view advertising
• E.g. The 2007-2012
Outlook for Tufted Washable
Scatter Rugs, Bathmats and
Sets That Measure 6-Feet by
9-Feet or Smaller in India
• Uses recombinatory
algorithms
• Parker’s books are “skimwritten”
“[…] collect publicly available information on a subject […] and, aided
by his 60 to 70 computers and six or seven programmers, he turns the
results into books in a range of genres […] printed only when a
customer buys one […]”
— New York Times, April 14, 2008
I. The New Book – Prosumers
Prosumers
• Producing/consuming
• Forgiving, creative,
editorialising
• Perhaps not a “bookish”
mind? (JG)
• Comfortable with
recombinant texts, the
new Brutalism of visible
function, hypermediacy,
etc.
• Nonetheless, the impulse
to remediate
hypermediacy as
immediacy . . .
I. The New Book – Prosumers
• Rev, the camera man protagonist of a Machinima
short, tries to pick up a pink intern backstage
I. The New Book – Prosumers
Fan art
• Fanfic (e.g. Xena: Warrior
Princess)
• Fan cuts (e.g. Star Wars:
The Phantom Menace)
• Seamlessness not a high
priority
• Many other examples!
• Collage a dominant
mode?
• Interest in cross-overs,
mash-ups (“shups”)
• Similarities to
detournément, but not
overtly political
“[…] prosumers do more than customize or personalize their wares;
they can self-organize to create their own. The most advanced users
[…] no longer wait for an invitation to turn a product into a platform
for their own innovations. They just form their own prosumer
communities online, where they share product-related information,
collaborate on customized projects, engage in commerce, and swap
tips, tools, and product hacks […]”
— Aaron Swartz
I. The New Book – Summary
Recombination
Works are volatile
composites “scraped”
from many sources in
many media
Semantics
Mass online
collaboration, data
capture, and
commonsense AI
together create a
“Semantic Canon” —
allowing the automated
manipulation of
meaning
Prosumption
Finally, even if
recombinant semantic
works are far from
seamless, prosumers
may still want to read
them and use them to
“skim write” works for
others
Intermission
Part I
• “The New Book” — a thought experiment
Part II
• Originality in UK Copyright Law — influential factors
Intermission – Other contexts
Miscellaneous
• Technological, socioeconomic, institutional, even
philosophical
• Moral rights
• International copyright law
• “Neighbouring” law:
− breach of confidence
− passing off and
malicious falsehood
− performance right
− rental and lending rights
− rights protecting the
encryption of broadcasts
− publication right
− public lending right
− design rights
Contract law
• Content owners license
access on whatever terms
(could be stricter than
copyright?)
• They use Digital Rights
Management (“DRM”)
technologies to police these
contracts
• The Digital Economy Act
2010, giving force to aspects
of a 2001 European
Directive, has made it a
criminal offence to
circumvent DRM
technology
“[…] Copyright is a property right which subsists in accordance with
this Part in the following descriptions of work […]”
— Copyright, Designs and Patents Act (1988), 1(1)
II. Copyright Law – Subsistence
Protectable works
Can include tables,
databases,
compilations, computer
programmes
• Literary works
• Dramatic works
• Musical works
Includes graphic
works, photographs,
sculptures or collages,
irrespective of artistic
quality; and buildings,
models and works of
artistic craftsmanship
where quality may
become relevant
• Artistic works
• Sound recordings
• Films
• Broadcasts
• Typographical
arrangements
Only original works
are protected (CDPA
(1988) 1(a))
II. Copyright Law – Originality
Concepts from common law
Some elision — e.g. the
court may consider
whether skill and labour
“of a literary nature” has
been exercised
Expression
Has there been skill and
labour exercised — i.e.
is it prima facie original?
Subsistence
Does the work fall into
a protectable category,
e.g. literary work?
Fixation
Is the work “recorded”
in a tangible medium?
II. Copyright Law – Subsistence
Protectable works
• Literary works
• Dramatic works
• Musical works
• Artistic works
• Sound recordings
• Films
• Broadcasts
• Typographical
arrangements
“[…] Copyright does not subsist in a literary, dramatic or musical
work unless and until it is recorded, in writing or otherwise […]”
— Copyright, Designs and Patents Act (1988), 3(2)
II. Copyright Law – Originality
Concepts from common law
Not necessarily fixed — e.g.
an off-the-cuff lecture
ideas
add
labour
+
skill/judgement
results in
original
expressions
Original expressions may
still infringe copyright
(and infringing works may
still enjoy copyright
protection)
II. Copyright Law – Requirements
Jurisdictional
Subsistence
Fixation
Originality
II. Copyright Law – Originality
Expression is usually sufficient
If labour and skill/judgement
are lacking, you could get a
“non-original literary work” —
e.g. the haphazard compilation
of already-copyrighted works.
But I think it’s unlikely to be
considered an expression.
Original expression
• Is all expression original? Unless the idea expressed can only be
expressed in a limited number of ways (the “Merger Doctrine”)
Scenes a faire are
expressions which
“naturally flow” from
unprotectable elements,
e.g. plot situations
“[…] [w]hen one is considering a view of a very well known subject […]
the features in which copyright is going to subsist are very often the
choice of viewpoint, the exact balance of foreground features of
features in the middle ground and features in the far ground, the figures
which are introduced, possibly in the case of a river scene the craft may
be on the river and so forth. It is in choices of this character that the
person producing the artistic work makes his original contribution.[…]”
— Krisarts S.A. v. Briarfine Ltd. [1977] FSR 557, 562
“[…] original expression includes not only the language in which the
work is composed but also the original selection, arrangement and
compilation of the raw research material […]”
— Baigent v. Random House [2007] FSR 24
II. Copyright Law – Requirements
Jurisdictional
Subsistence
Fixation
Originality
II. Copyright Law – Ownership
Who owns
copyright?
Where contributions
are indistinguishable,
whoever has “had the
final say,” or who had
the clearest preconception of the work
• In most instances,
whoever has exercised
skill and labour
• Joint copyright is a last
recourse — the courts
would prefer to
recognise multiple sole
copyrights
• Special rules for works
created in the course of
employment, and
computer-generated
works
II. Copyright Law – Originality
Expression is not necessary?
Not much case law
Economic individuation
• Express Newspapers v.
Liverpool Daily Post [1985]
FSR 306 — awarded
copyright in a computergenerated (?) grid of letters
to the programmer
/operator — but this way
decided on skill and labour
• In 1997, a new database
right (implementing the
1996 European Directive).
Oriented to the protection
of “substantial investment
[…] whether of financial,
human or technical
resources”
• Getmapping Plc v. Ordnance
Survey [2002] EWHC — no
problems with recognising
computer-generated maps as
copyrightable, emphasising
the prerequisite investment
• Cf. the issue of
substantiality in altered
copying cases — nonrival
objects are less likely to be
infringements
• Cf. also “fairness” tests in
the fair dealing case law
“[…] ‘Computer-generated’, in relation to a work, means that the
work is generated by computer in circumstances such that there is no
human author of the work […]”
— Copyright, Designs and Patent Act (1988), 178(b)
“[…] In the case of a literary, dramatic, musical or artistic work which
is computer-generated, the author shall be taken to be the person by
whom the arrangements necessary for the creation of the work are
undertaken […]”
— Copyright, Designs and Patent Act (1988), 9(3)
II. Copyright Law – Labour & skill
CDPA (1988) 178(b) implies
this possibility — but it is
hard to reconcile with the
continued emphasis on
labour and skill/judgement
in other areas
Few precedents. The court may
have to reconsider labour and
skill/judgement! – in the
context of investment of
financial, human and technical
resources, and the case law on
subsistence, on substantiality
and on “fairness” in fair dealing
No copyright
Original literary
(etc.) work?
Labour and
skill/judgement?
Computer-aided
work
Copyright of life plus
seventy years, and
moral rights, belong to
the user of the New
Book (or her employer,
if it was generated in
the course of work).
Affordance of labour
and skill is
unproblematic
Computergenerated work
Copyright of fifty years belongs
to “the person by whom the
arrangements necessary for the
creation of the work are
undertaken” (or her employer, if
it was generated in the course
of work). Probably the user —
the court may have to
reconsider labour and
skill/judgement! – in the
context of investment q.v. and
the case law on joint authorship
II. Copyright Law – Infringement
Substantiality
• Qualitative not
quantitative — a
substantial borrowing
“might not have a single
word in common with
the original” (Lord Scott
of Foscote).
• Closely linked with
originality — “a copier is
not at liberty to
appropriate the benefit
of another’s skill and
labour” (ibid.).
“[…] a copier is not at liberty to appropriate the benefit of another’s
labour and skill […]”
— Lord Scott of Foscote
II. Copyright Law – Labour & skill
Lifeworld
Then again, maybe this
is the excessively
permissive explanatory
concept, rather than
labour and skill . . .
•
•
•
•
•
Is there an affinity between the non-protectable and the Lifeworld?
Everyday, taken-for-granted orientations
Difficult to protect what is commonplace, hackneyed, everyday
Background of shared dispositions, savoir faire, “what goes without
Difficult
to protect
scenesmeanings,
a faire — institutions
works strongly
by structures
saying,” shared
cultural
and implied
personality
contexts/functions — even if they are detailed and remarkable
• Cf. Bourdieu’s habitus, Durkheim’s social facts, Habermas’s Lifeworld,
• Someone
who
is notHusserl’s
self-governing
is governed
either by another
or by
Heidegger’s
Dasein,
Lifeworld,
Searle’s Background,
Schütz’s
the
Lifeworld
cf. emphasis on
choice and responsibility
in the
joint
life-world
and —
everyday-world,
Wittgenstein’s
private language
argument
authorship case law
II. Copyright Law – Summary
Substantial borrowings
would infringe.
Substantiality is at the
court’s discretion. Fair
dealing exceptions
probably wouldn’t be
available
Originality
Very likely to be
considered original,
although the
subsistence(s) of a
converged media work
may cause anxiety
Ownership
Copyright probably
belongs to the person
responsible for using
the New Book
Infringement
Unlikely to infringe on
the rights of
programmers or
taggers
Final thoughts
• Is the writing implied in this thought experiment really that unusual? Is skim-writing that unusual?
• Do some artefacts falsely imply that somewhere in their origination the Lifeworld has been surmounted?
• Copyright law is unkind to this thought experiment — for the wrong reasons
• Copyright law is untroubled the rearrangement of “insubstantial” elements
• Detournément is plagiarism — and so is recuperation
© Lara Buckerton, 2010. All rights reserved.
This document is confidential and prepared solely for your information. Therefore you should not, without my prior written consent,
refer to or use my name or this document for any other purpose, disclose it or refer to it in any prospectus or other document, or
make it available or communicate it to any other party. No other party is entitled to rely on our document for any purpose
whatsoever and thus I accept no liability to any other party who is shown or gains access to this document.
B-Slides
II. Copyright Law – Moral rights
CDPA (1988), 77-89
The New Book could
incorporate automated
citations
Confetti Records v.
Warner Music UK [2003]
ECDR 31 emphasised
reputational damage —
shouldn’t be a problem
• Right to be identified as
the author
• Right to object to
derogatory treatment of
the work (integrity right)
• Right not to have
another’s work falsely
attributed
• Right to privacy of certain
photographs and films
II. Copyright Law – Infringement
When is copyright
infringed?
• When certain acts,
including copying and
adapting, are performed
in relation to a
substantial part of the
copyright work
• There are “fair dealing”
exceptions for noncommercial research or
private study, for
reporting current events,
for criticism and review,
and a few other things
Candidates
• Authors whose works
have been “scraped”
• Programmers of the
New Book
• Taggers whose metadata
have been exploited
II. Copyright Law – Ownership
Who owns
copyright?
• In most instances,
whoever has exercised
skill and labour
• Joint copyright is a last
recourse — the courts
would prefer to
recognise multiple sole
copyrights
• Special rules for works
created in the course of
employment, and
computer-generated
works
Candidates
• The user of the New
Book
• Authors whose works
have been “scraped”
• Programmers of the
New Book
• Taggers whose metadata
have been exploited
• Somebody else
II. Copyright Law – Infringement
Fair dealing
• Must fall into one of the exception categories,
e.g. “criticism and review”
• Must also be fair. HRH Prince of Wales v. Associated
Newspapers [2008] EMLR 4 (CA):
− decisive factor — is the alleged fair dealing is
commercially competing with the copyright
owner’s exploitation?
− secondary considerations — is the work in the
public domain? What proportion of the work
is used? What is its proportion to the new
work?
• There are no parody or transformative use
exceptions in UK law
II. Copyright Law – Ownership
Prior to the 1988 Act . . .
• Whitford report
“[…] it is clear that the author of the output can be none other than the person, or
persons, who devised the instructions and originated the data used to control and
condition the computer to produce the particular result. In many cases it will be a
matter of joint author-ship. We realise this in itself can cause problems, but no
more than in some other fields, and we are not convinced there is a need for special
treatment […]”
• 1981 Green Paper
“[…] it has been suggested that a more appropriate analogy would be to regard the
programmed computer, rather than the computer alone, as a tool. If this approach
is adopted it is logical to conclude that the author of the new work is neither of the
two parties proposed by Whitford, but instead a third person; namely the one
responsible for running the data through the programmed computer in order to
create the new work […]”
• 1986 White Paper, “Intellectual
Property and Innovation”
“[…] the question of authorship of works created with the aid of a computer will
therefore be decided as for other categories of copyright work, i.e. on the basis of
who, if anyone, has provided the essential skill and labour in the creation of the
work. If no human skill and effort has been expended […]”
• BCS Copyright Committee
submission to government
“[…] The above are some examples of works that are produced to date with little
or no human skill and effort, the emergence of so-called expert systems or artificial
intelligence machines will extend the boundaries still further […] The investment to
produce such machines is very large and there should be no doubt that works
produced therefrom are protected by copyright […] The BCS proposes the creation
of a new class of copyright protected works. The copyright owner or ‘maker’
should be defined as the person by whom the arrangements necessary for the
making of that computer output or computer-generated work, are undertaken […]”
I. The New Book – Intensionality
Hermione
Hermione
wished
wished
sheshe
were
were
thethe
author
author
of of
TheThe
Clue
Mystery
of the
of Screeching
the Aztec Owl.
Warrior.