The E-Book Nova: A Disputation Collaboration, Cohesion, Copyright

The E-Book Nova: A DisputationCollaboration, Cohesion, Copyright

MURPHYby Samuel Beckett

Illegal (?) fan edits, e.g. CROTZLOB887’s edit, which removes all

mention of Miss Counihan, “Beckett’s Jar-Jar Binks”

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.

Enhanced media content

Embedded video clips (like magic

books)

Audio narration

(human &/or text-to-voice)

Illustrations

Translations

Abridgements, for the Beckett reader on the go

Super-abridged crib versions, cf. Cliffs Notes

Designed piecemeal by the reader, or bundled together into “skins” or “versions”

Appearance

Font face, size, interleading etc.

Words to a page, indenting & other

layout, etc.

Meta content Scholarly commentary

Sponsored versions (free, ad-driven)

Clean versions for children and very mild people

Versions for bigots: e.g. references to

dinosaurs taken out for Creationist

market

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.)

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

Read _____, a version of Murphy in which the main

character … is you! (Perhaps as a comic too).

Read the Potter remix replaces each character with its nearest Hogwarts

equivalent, so Harry need never die! Gogarty is Dumbledore! Yay!

Fragments of Murphy appear in various readers: The Beckett Reader, The

Celtic Bum Reader, The Terror of Non-Existence Reader

Consumers pick the category of

ads: e.g. octopus-related, ethical

Multiple versions

A particular reader’s comments,

marginalia, MSTing

Book club forums / wikis: a

community of readers discuss

Murphy the film

Readers have input into which books studios select for film adaptation, even influence

casting etc. Cf. Snakes on a Plane.+

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

Illegal (?) plagiarised versions, perhaps under another title

Product placement,

including targeted contextual marketingAny 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.

Automated or semi-automated:

equivalent of spam “scraper

sites”Highly derivative other works,

contestably plagiaristic

Bespoke P.O.D. paper version

The New Murphy

Animated typography

“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

• Type

• Audio

• Images & video

• Applications

• Social media

A blend of …hypertext

animated typography

cybertext

“texts that involve calculation in their production of scriptons” (Aarseth)

machine-synthesised

pre-recorded/produced

live performance

chatterbots

expert systems

multiplayer games

editors

malware

forums

wikis

blogs

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

Mixes aspects of . . .• Reading

• Writing

• Editing

• Publishing

• Reviewing

• Criticising

• Curating

• Archiving

• Performing

• Adapting

• Sharing

• Reporting news

• Consuming news

• Working

• Playing

Maintaining relationships, belonging to communities

And watching, listening, playing, experiencing

I. The New Book – Building blocks

Recombination Semantics Prosumption

I. The New Book – Recombination




Full dearely shalt thou by it (quoth Roger Chartier) may I getA weapon: and with that in stead of weapon, he did setHis hand uppon a vowd harts horne that on a Pynetree hyeWas nayld, and with two tynes therof he strake out eyther eyeOf Lara Buckerton: whereof sum stacke uppon the horne, and sum did flyeUppon 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 latchtA blow that crackt his skull. The blaze among his yellow heareRan 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 drowndIn water by the smith, it spirts and hisseth in the trowgh.Eyal Poleg from his curled heare did shake the fyre, and thowghHe 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 itA mate of his that Robert Ritter hyght, it all in peeces smit.Then Jerome McGann restreyning not his joy, sayd thus: I would the rowtOf all thy mates myght in the selfsame maner prove them stowt.

• The centauromachy from Ovid’s Metamorphoses, trans. Arthur Golding (1567), with some adaptations.



Full dearely shalt thou by it (quoth Roger Chartier) may I getA weapon: and with that in stead of weapon, he did setHis hand uppon a vowd harts horne that on a Pynetree hyeWas nayld, and with two tynes therof he strake out eyther eyeOf Lara Buckerton: whereof sum stacke uppon the horne, and sum did flyeUppon 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 latchtA blow that crackt his skull. The blaze among his yellow heareRan 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 drowndIn water by the smith, it spirts and hisseth in the trowgh.Eyal Poleg from his curled heare did shake the fyre, and thowghHe 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 itA mate of his that Robert Ritter hyght, it all in peeces smit.Then Jerome McGann restreyning not his joy, sayd thus: I would the rowtOf 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 – RecombinationRoger/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/

“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



• Some images from Robbie Cooper and Julian Dibbell, Alter Ego: Avatars and their Creators (2010)


The slender, good-natured boy rested comfortably 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.”




“Witches!” The slender boy straightened, looking sly. “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 lean, 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.






“Witches!” The lean boy straightened, looking interested. “Today?”


• The first page of The Curse of the Screeching Owl, by Franklin W. Dixon, with some modifications


Chet


The stocky, 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.






“Witches!” The stocky boy straightened, looking uncomfortable. “Today?”



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.






“Witches!” The plump boy straightened, looking worried. “Today?”


Frank chuckled merrily, and ran his hand through his curly chestnut hair.

Suddenly, the candle blew out, and the room was plunged into curly chestnut!

I. The New Book – Semantics

Frank chuckled merrily, and ran his hand through his dark hair.

Suddenly, the candle blew out, and the room was plunged into dark!


• 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”

Find-and-replace


CapableOfUsedFor

LocationOf

UsedFor

Use

dFo

r

Use

dFor

IsAUsedFor

Crea

tedB

y

HasP

rere

qu

isit

e

Motiv

ate

dB

yG

oal M

otiv

ated

ByG

oal

HasLastS

ubevent

HasProperty

Desires

Desires

IsA

UsedFor

CausesDesire

HasProperty AtL

oca

tion

cookfollow recipe

survive

swallow

eatcake

oven

bake

sweet

cheesecake

dessert

restaurant

satisfy hunger

IsA

person

Chet


• Written collaboratively, without hierarchy or codified norms

• Users identify tropes in popular culture and collect hundreds of examples of them – for fun

TV Tropes web site

• “[…] Nameless, Faceless, Horribly Awful Shots, Incompetent, Unwilling To Retreat, and completely disposable: they provide a chance for the characters to show off their flashy fighting skills and can be shot without guilt. The hero might find it in his heart to Save The Villain, forgive him, even Accept Him Into His Inner Circle, but the guys whose only crime is not finding a better employer will be Shown No Mercy […]”

• “[…] In Terry Pratchett’s Guards! Guards! the Palace Guard are Genre Savvy enough to be terrified at the prospect of facing a single, unarmed, smiling foe: after all, that is statistically the most dangerous kind of enemy […]”

• “[…] In Robin of Sherwood, the merry men killed ten or so of the sherriff’s men per episode. You had to wonder what kind of recruitment package was being offered […]”

• “[…] The codified hero/villain interaction in The Venture Brothers naturally invokes mooks; two, Number 21 and Number 24, become important recurring characters. Though they get beaten, maimed and killed on a regular basis, they respect their enemies (as one of them says of Brock Samson, ‘slayer of men, slayer of henchmen!’) […]”

E.g. “Mooks”

• “[…] This is related to Karmic Death, in that it means the hero doesn't have to dirty their hands. Some bad guys will use The Blofeld Ploy to pull off the underling murder. Others will drop the offending underling through a Trap Door in The War Room into a Shark Pool or other Deathtrap […]”

• “[…] In Six String Samurai, the Big Bad starts to deliver the usual ‘You have failed me for the last—’ then pauses, looks down, and says, ‘nice shoes.’ Next cut shows the Big Bad walking off in them […]”

• “[…] Subverted in the Douglas Adams Doctor Who episode ‘The Pirate Planet.’ The villainous Captain hisses ‘When someone fails me, Mr. Fibuli, someone dies!’ — then kills a random extra instead of the person who actually failed, because he’s too useful to kill just out of pique. Of course, the Evil Overlord List specifically says not to do this […]”

• “[…] Double-subverted in the Stargate Atlantis episode ‘Irresponsible’ — Genii commander Kolya aims his gun at a disgraced Mook, but does not shoot. The mook thanks him and Kolya dismisses him, telling him it’s his last chance . . . before angrily giving away his gun for repair […]”

E.g. “You Have Failed Me . . . For The Last Time!”

• “[…] Say that the item of interest physically teleports Mooks in the way of the hero — that would be influencing the plot. But if the item is instead merely a Weirdness Magnet but doesn't actually do anything as far as you can tell, then it is a MacGuffin […]

• “[…] Briefcase Full of Money: if money isn't spent in the course of plot, it was a MacGuffin. Clingy MacGuffin: the person who has it has difficulty getting rid of it. Dismantled MacGuffin: split into several parts in different places. Plot Coupons are often this type of MacGuffin. Egg MacGuffin: it’s an egg. […]”

• “[…] In some of the Jeeves and Wooster stories of PG Wodehouse, a silver tea-set creamer, hideously forged in the shape of a cow, becomes the focus of a on-going multi-cornered power-struggle. In other stories, the French chef Anatole is deployed as a living MacGuffin […]”

• “[…] The Paranoia adventure ‘The Yellow Clearance Black Box Blues.’ The title Black Box. What it does is eventually revealed, in some versions of the adventure, but it's unlikely your player characters will live long enough to discover it […]”


• 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

Commonsense AI

• Tagging — the same content can be “filed” in many tag categories at once

• Tag instances can themselves be tagged

• A vast, metadata-enriched corpus

• Machine-readable, analogous to Semantic Web – an ensemble of technologies, oriented towards enriched Web content, machine-manipulable at the semantic level

Semantic Canon

• 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

How?

“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

• “Buy cheap flights to Mary Wollstonecraft”

• Scraper sites detect search engine queries, mine content, and weave together web sites of (somewhat) relevant content, often together with pay-per-click or pay-per-view advertising

Philip Parker

• The “author” of tens of thousands of books

• 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 “skim-written”

“[…] 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 . . .


• Rev, the camera man protagonist of a Machinima short, tries to pick up a pink intern backstage


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 Semantics 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

Works are volatile composites “scraped” from many sources in many media

Mass online collaboration, data capture, and commonsense AI together create a “Semantic Canon” — allowing the automated manipulation of meaning

Intermission

Part I • “The New Book” — a thought experiment

Part II• Originality in UK Copyright Law — influential

factors

Intermission – Other contexts

• Technological, socio-economic, 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

Miscellaneous

• 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

Contract law

“[…] 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

• Literary works

• Dramatic works

• Musical works

• Artistic works

• Sound recordings

• Films

• Broadcasts

• Typographical arrangements

Protectable worksCan include tables,

databases, compilations,

computer programmesOnly original works are protected (CDPA (1988) 1(a))

Includes graphic works, photographs,

sculptures or collages, irrespective

of artistic quality; and buildings,

models and works of artistic craftsmanship

where quality may become relevant

II. Copyright Law – Originality

Subsistence Fixation

Has there been skill and labour exercised — i.e. is it prima facie original?

Expression

Does the work fall into a protectable category, e.g. literary work?

Is the work “recorded” in a tangible medium?

Some elision — e.g. the court may consider whether skill and labour “of a literary nature” has been exercised

Concepts from common law

II. Copyright Law – Subsistence

• Literary works

• Dramatic works

• Musical works

• Artistic works

• Sound recordings

• Films

• Broadcasts

• Typographical arrangements

Protectable works

“[…] 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)


addideas results inlabour skill/judgement+

Original expressions may still infringe copyright (and infringing works may still enjoy copyright protection)

Not necessarily fixed — e.g. an off-the-cuff lecture

original expressions

Concepts from common law

II. Copyright Law – Requirements

Subsistence Fixation OriginalityJurisdictional


Scenes a faire are expressions which “naturally flow” from unprotectable elements, e.g. plot situations

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.

• Is all expression original? Unless the idea expressed can only be expressed in a limited number of ways (the “Merger Doctrine”)

Original expression

Expression is usually sufficient

“[…] [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

Subsistence Fixation OriginalityJurisdictional

II. Copyright Law – Ownership

• 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

Who owns copyright?

Where contributions are indistinguishable, whoever has “had the final say,” or who had

the clearest pre-conception of the work

II. Copyright Law – OriginalityExpression is not necessary?

• Express Newspapers v. Liverpool Daily Post [1985] FSR 306 — awarded copyright in a computer-generated (?) grid of letters to the programmer /operator — but this way decided on skill and labour

• Getmapping Plc v. Ordnance Survey [2002] EWHC — no problems with recognising computer-generated maps as copyrightable, emphasising the prerequisite investment

Not much case law

• 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”

• 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

Economic individuation

“[…] ‘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

Yes

Yes

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

No

Computer-aided work

Computer-generated work

No copyright

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

“No”Labour and

skill/judgement?

Original literary (etc.) work?

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

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

II. Copyright Law – Infringement

• 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.).

Substantiality

“[…] a copier is not at liberty to appropriate the benefit of

another’s labour and skill […]”

— Lord Scott of Foscote

• Is there an affinity between the non-protectable and the Lifeworld?

• Difficult to protect what is commonplace, hackneyed, everyday

• Difficult to protect scenes a faire — works strongly implied by contexts/functions — even if they are detailed and remarkable

• Someone who is not self-governing is governed either by another or by the Lifeworld — cf. emphasis on choice and responsibility in the joint authorship case law

• Everyday, taken-for-granted orientations• Background of shared dispositions, savoir faire, “what

goes without saying,” shared cultural meanings, institutions and personality structures

• Cf. Bourdieu’s habitus, Durkheim’s social facts, Habermas’s Lifeworld, Heidegger’s Dasein, Husserl’s Lifeworld, Searle’s Background, Schütz’s life-world and everyday-world, Wittgenstein’s private language argument

II. Copyright Law – Labour & skill

Lifeworld

Then again, maybe this is the excessively permissive explanatory concept, rather than labour and skill . . .

II. Copyright Law – Summary

Ownership Infringement

Very likely to be considered original, although the subsistence(s) of a converged media work may cause anxiety

Originality

Copyright probably belongs to the person responsible for using the New Book

Unlikely to infringe on the rights of programmers or taggers

Substantial borrowings would infringe. Substantiality is at the court’s discretion. Fair dealing exceptions probably wouldn’t be available

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

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© Lara Buckerton, 2010. All rights reserved.

B-Slides

II. Copyright Law – Moral rights

• 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

CDPA (1988), 77-89The New Book could

incorporate automated citations

Confetti Records v. Warner Music UK [2003] ECDR 31

emphasised reputational damage

— shouldn’t be a problem


• 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 non-commercial research or private study, for reporting current events, for criticism and review, and a few other things

When is copyright infringed?

• Authors whose works have been “scraped”

• Programmers of the New Book

• Taggers whose metadata have been exploited

Candidates


• 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

Who owns copyright?

• 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

Candidates


• 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

Fair dealing


“[…] 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 […]”

• Whitford report

“[…] 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 […]”

• 1981 Green Paper

• 1986 White Paper, “Intellectual Property and Innovation”

Prior to the 1988 Act . . .

“[…] 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 wished she were the author of The Mystery of the Aztec Warrior.

Hermione wished she were the author of The Clue of the Screeching Owl.

Documents

The E-Book Nova: A Disputation Collaboration, Cohesion, Copyright