Copyright in concepts – something to ponder when you’re stranded on a desert island

It is an often stated, and indeed axiomatic, principle that copyright law protects expression and not ideas.  So the reproduction of a copyright work without the permission of the author is an infringement of the author’s exclusive statutory rights. Simple enough, right? Well, not really, especially in the context of works that are not merely words on a page, where reproduction cannot be determined by simply asking the question of whether or not the author’s work (or a decent chunk of it) appears in the allegedly infringing work.

In theory, if you sit by yourself in a locked room and come up independently with – say – the novel “Robinson Crusoe”, then this will not infringe Daniel Defoe’s copyright in the novel of the same name (leaving aside the questions of term and subsistence).  So the writing of the book “Robinson Crusoe” does not prevent, at least under copyright law, others from writing a book about a stranded castaway, and from calling that book Robinson Crusoe (or some thinly veiled alternative  does –anyone else remember the Swiss Family Robinson?  Or Cast Away?).

Which is a long way of getting to the point that copyright infringement requires a causal link.  The infringing reproduction must be a reproduction of the original work, and there will be no infringement if there is independent creation.  As we saw earlier in the year in the Larrikin Music case (or the “Down Under” case), the question of whether or not there has been unauthorised copying can generate prodigious quantities of legal ink.  In that case, the respondent’s failure to call the creator of the offending flute riff as a witness, was used by the judge to draw an inference of causation.

In Canada, however, a different set of facts has led to pitched battle over causation and independent creation.  In France Animation SA v Cinar Corporation (in French; hard going if you’re not a fluent French speaker) the Quebec Court of Appeal found that the children’s television show called “Robinson Sucroë” (can you spot the clever anagram?) infringed the copyright in an earlier show concept for a show called “Robinson Curiosité”.  This history and outcome of the case are set out in an article in the Montreal Gazette, but it is worth noting that it took 13 years to work through the court system.

Eagle-eyed blog readers will have seen that I used the words “copyright in the show concept” in the previous paragraph to describe the finding in the Quebec case.  Of course, as I indicate above, this is strictly speaking incorrect, and what I really meant is “copyright in various works created by the author that describe the concept of a show by the name of Robinson Curiosité which became Robinson Sucroë”.  Which brings me to my point: the reality is that if parties are closely involved in the creation and implementation of a concept, and the copyright in early works clearly vests in one party, then it will be difficult for the collaborating parties to demonstrate that later works that implement the concept have been independently developed.  So, to a limited extent, copyright can protect a concept after all.

Of course, this is not an earth-shattering conclusion, and in fact there are a number of cases that are founded on the following facts: (1) author pitches idea to television executive; (2) television executive says that he is or she is not interested; (3) television executive commissions successful show with concept similar to idea pitched by author; and (4) author sues.  In the main, however, these do not end well for the author, and you can simply type “[insert TV show] concept lawsuit” into your favourite search engine to see that this is the case (for example, there is the plaintiff that claimed to come up with the idea for “American Idol” and the home-grown example of the Kiwi company that was found to have made unjustifiable threats in relation to the concept of “The Block”).  Which means that when it comes to this type of case, most authors – unlike the author in the Quebec case and Robinson Crusoe himself – never do make it off the desert island.

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