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Brian Leiter
University of Chicago Law School

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Monday, September 3, 2007

Protecting Philosophical Ideas with Copyright?

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.

http://leiterlawschool.typepad.com/leiter/2007/09/protecting-phil.html

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Comments

Put another way, the answer is yes - one can copyright the paper one writes. One cannot copyright the ideas in the paper.

If one wants non-disclosure, why not send out a non-disclosure agreement ("NDA") before the paper (or email) gets sent to the reviewer/colleague? Better yet, "get their first with the most" (publish first, say on a blog) and keep innovating. The law will not do much for the "shrinking violet" dealing in IP.

Lots of folks (VC firms) will take a pass rather than sign an NDA. The Microsoft NDA has vast holes in it that anticipates that the submission may trigger a cascade of new (related) ideas at Microsoft that MS will then be free to exploit.

Another interesting related concept - could one get a patent (business process) for coming up with a philosophical idea (say in logic) that is novel and useful from an economic perspective? Probably so, but there needs to be strict confidentiality until the proper application gets filed - emailing the idea to a colleague before sending in the patent application and watching him/her apply first for the patent is a risk to be avoided, if patent law protection is the goal.

As to publication of joint ideas without proper credit - why not have a modified NDA signed before hand that describes, in polite language, what is expected in terms of credit and (if warranted) setting up arbitration to resolve credit ideas? See how screenwriters sort out who gets credit for films, if there is enough interest.

Posted by: cfw | Sep 3, 2007 8:29:34 AM

Although copyright won't protect your philosophical ideas, only their expression, it might give you a small income stream: anyone who has published articles in journals with ISSN numbers is eligible to join the ALCS (Authors Licensing and Collecting Society) see www.alcs.co.uk. Money received for photocopying licences in the UK is divided amongst members who had articles published in ISSN journals in the relevant year. You can join even if you are not a UK citizen or resident. Those members whose books show up in surveys of photocopying are also eligible for payments.

Posted by: nigel warburton | Sep 3, 2007 1:58:17 PM

What's particularly paradoxical here is that copyright will only protect the expression of the ideas, not the ideas themselves. So Prof. Q's off the hook (from a copyright perspective) if he "just" takes the ideas; but if he goes so far as to take others' way of expressing them, he's in trouble. But this is a notoriously slippery distinction.

For a philosophically sophisticated analysis of the idea/expression dichotomy, see Dan Burk:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999433

As for the relation between idea submission law and other areas of IP, Arthur Miller's Harv. L. Rev. article (and Jane Ginsburg's reply) come to mind; here's a bad copy that at least gives the cite:
http://64.233.169.104/search?q=cache:K4oLunPtoSwJ:www.harvardlawreview.org/
issues/119/jan06/miller.pdf+idea+submission+arthur+miller&hl=en&ct=clnk&cd=3&gl=us

The following book on "Who Owns Academic Work" may be of interest:
http://www.hup.harvard.edu/catalog/MCSWHO.html

Finally, here's Learned Hand on the idea/expression dichotomy:

"Upon any work. . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended."

"Nobody has ever been able to fix that boundary, and nobody ever can."

Posted by: Frank | Sep 3, 2007 6:36:31 PM

Why overlook areas of law outside of copyright? Just because a client walks into the lawyer's office thinking she might have a copyright claim doesn't mean the lawyer should limit her analysis to copyright causes of action. Contract (depending on express and implied terms), state and federal false advertising (depending on how people perceive the putative defendant's statements about the source of the work), and patent (so-called business method patents are examples of exactly this type of basic idea applied to solve a practical problem in a given field) may each provide the putative plaintiff in these cases with a cause of action. Some other areas of law also may be available to apply pressure (e.g., various state and federal fraud provisions -- remember the use of wire fraud to catch lawyers overbilling in the book and movie "The Firm"). So, too, may various organizational rules or norms on so-called plagiarism etc. Sure, nothing is perfect, each of these tactics has hurdles, some of which are time sensitive, and there is debate about whether these causes of action are well grounded normatively. But each has normative support and each is descriptively available under present law.

Posted by: Scott Kieff | Sep 4, 2007 4:22:20 AM

Copyright's mostly a dead end, for the reasons noted above -- although if the appropriating professor took not only the idea for the solution, but also the particular way of expressing it (say, a particular "Twin-Earth" hypothetical involving water and "twater"), then an infringement claim might have some traction. Of course, having a claim is one thing, proving it another.

A more interesting question is, as Scott notes, whether you can get a *patent* for the solution to a philosophical puzzle. If you can get a patent on the solution to Rubik's cube, see U.S. Patent No. 3,655,201, upheld by the Federal Circuit in Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, then perhaps a solution to Gettier counter-examples would be patentable also. One issue would be whether the solution to a philosophical problem produces a sufficiently "useful, concrete, or tangible result" to get around the bar on patents for "laws of nature, natural phenomena, or abstract ideas." (My guess: no, but the trend is toward requiring less and less tangibility.) And of course, the process of getting a patent is a lot more involved than simply filing a $45 copyright registration.

Posted by: Bruce Boyden | Sep 4, 2007 9:03:11 AM

There's always the risk of too much protection. Be grateful, professional philosophers, that you're not publishing in science journals, a possible consequence of which is recounted here:

http://yro.slashdot.org/yro/07/09/04/1341248.shtml

The Slashdot post is adorned with the usual remarkable, often remarkably funny, trail of rants and opinions. The original post is less...vibrant.

Posted by: Dean C. Rowan | Sep 4, 2007 9:26:29 AM

It seems the grad student who posed the original question is primarily interested in credit/appropriate attribution of the idea and worried that in the long road to publication in a scholarly journal someone else will popularize the idea and become associated with it. Bracha's response is right, legal protection for this sort of situation is thin. However, better protection is likely to be found within the moral norms pervading the philosophical community.

As an aside, misattribution of ideas is a long "tradition" in philosophy. We have a thing called Leibniz's Law that Aristotle was well-familiar with but not everything can be called Aristotle's Law that Aristotle knew about or we'd never be able to tell all the principles apart! (Other, perhaps better, examples abound).

Part of the problem stems from the fact that the time to press of scholarly philosophical papers is abysmal, in part because of the paper submission norm, which differs from the one law journals employ. A philosopher is generally expected to submit a paper to a single journal at a time and wait agonizing months for the rejection before starting anew, while legal scholars submit to dozens of journals at once and accept their best offer a few months later. There is some good reason for these practices, as philosophy journal submissions are generally reviewed by busy professors whose time should not be wasted with hundreds of duplicate submissions that will likely be published elsewhere, while law journals use their hordes of willing law students to sort the wheat from chaff. Perhaps philosophy journals should enlist graduate students into this process to achieve similar results, but it's not obvious that the numbers of available graduate students could meet the challenge. Philosophy journals ought to seriously look into it, however.

Until that day, the philosopher with an original idea should simply seek other means of associating that original idea with his or her own name in a more timely manner than scholarly publication can achieve. Several exist. One could post to one's own blog such as this, and the date stamp would be some indication of priority. More traditionally, individual's give early versions of papers at conferences and then publish a polished version later. Your name, paper title, and the witness of those in attendance, will provide a date certain when you espoused the novel idea. Other means can also be pursued.

The enforcement of proper attribution will then rely solely on the norms of the philosophical community. If someone manages to publish substantially your idea elsewhere first, then you'll still have your blog post or conference paper to point to as evidence of priority. Cite such evidence in your own paper (and write a better paper!--that gets published in a better journal!) and in the long run the community tends to sort these things out and give credit where credit is due.

Brian, Copyright Attorney and Recovering Philosopher

Posted by: Brian | Sep 5, 2007 3:59:57 PM

Brian is obviously right that one has better resources within the academic community than within the law to dealing with these matters. But the interesting question (briefly mentioned by Dean C. Rowan) is whether it would be in our interest as scholars to seek such legal remedies. One need only visit the Electronic Frontier Foundation to see case after case of intellectual property abuse (do a search on www.eff.org for 'DMCA' or 'patent' to see some examples) in those areas that do have strong legal protection.

Do we really want to retain legal counsel every time we submit an idea to a journal? Wouldn't such legal rights be more likely to impede scholarship than to promote it?

Posted by: Derek | Sep 6, 2007 5:37:31 AM

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