Monday, September 3, 2007
I'm posting this query here in the hope that other law professors with pertinent expertise will weigh in. A philosophy graduate student writes:
I wonder has the topic of copyrighting philosophy ever come up? I mean, what do you do if you have a great idea or solution to some puzzle in logic or what have you, of the sort that can be easily stolen, in order to prevent it from being published by somebody else?
Obviously this kind of thing happens in more straightforward disciplines all the time - math, psychology, the empirical sciences. It's probably a little harder to spot it happening in philosophy. But is there anything that you can do to prevent it happening, or to protect an idea you've come up with in the long process before it gets to press?
I asked my Law School colleague Oren Bracha, who generously supplied this informative answer:
The short answer is “no” as far as copyright is concerned.
The basic rule of copyright is that only “expressions” are protected and all “ideas” even if novel and original are “as free as the air.” So were Hamlet protected under copyright I would be prohibited from copying the play or anything substantially similar, but not from using the idea of depicting the intrigues of a dysfunctional European royal family, even if Shakespeare was the first to develop it and I am imitating him.
Now there is a complicated jurisprudence and metaphysics about the line between expressions and ideas (the common American test is the abstraction test, which says that as one climbs the level of abstraction at which each work could be perceived from the concrete to the very general, at some point the line will be crossed and protection will cease). So under copyright law, I am not allowed to copy the text of your philosophy paper but I am completely free to use and reuse the general ideas developed in it (the messy part, where a lot of copyright litigation takes place, is “the in between” cases).
There are good reasons underlying this idea/expression dichotomy.
Ethics, social and internal academic regulations & sanctions aside, that doesn’t mean that the originator of new ideas is completely protectionless under formal law other than copyright. For “philosophical ideas” the most relevant doctrine would be the (state) law of “idea submission.” This doctrine can protect ideas rather than expressions, but only under a narrow set of circumstances. It’s a complex, ambiguous and controversial area of intellectual property law, one of the debates being whether it is really anything different than regular contract law. Under the law of idea submission a novel and concrete idea is protected from appropriation by another to whom it was submitted, but only if: (a) there is an express or implied (in fact) contractual obligation not to appropriate; or (b) a “confidence relationship.”
As you can imagine there is tons of case law on what’s “confidence relationship” and on when there is an implied in fact contract.
The bottom line, however, is that only under some circumstances and against certain people the originator of the idea would have protection (the classic case is people who submit a story or a film idea to media companies but there is no reason why the doctrine should not apply to philosophical ideas). A straightforward paper presentation of a paper in an academic forum with nothing more will probably create neither a confidence relationship nor an implied contract and hence the ideas will not be protected.
Here are two scenarios (both based on actual cases of which I'm aware), on which readers might comment:
1. Professor G. shares with Professor P. in an e-mail just to him a formal (logical) proof that is responsive to a longstanding problem in their shared field of philosophy. Professor P. then publishes a series of papers employed the basic technique of this proof, without any acknowledgment of Professor G. Professor P.'s papers generate considerable discussion in the field.
2. Professor Q. regularly takes distinctive formulations of problems, questions, and discipline-specific ideas that are articulated by others in his field during reading groups (involving Professor Q. and a few others) and one-on-one conversations, and then publishes material employing these formulations under his own name, usually with some acknowledgment, but never adequate to the full extent of the appropriation of the ideas.
I'm sure philosophers would be interested to hear what legal experts think about these two cases, as well as about the original question to which Professor Bracha responded. Post only once, comments may take awhile to appear.