Copyright

     A few months ago in March, I posted a short write-up titled "What else MAY be copyrightable?". (See here.) In that posting, I looked at the 8 categories of creativities that are explicitly protected by the current Copyright Act (literature; music; drama; choreography; picture, graphic, and sculpture; motion picture; sound recording; & architecture), and noticed that these 8 categories are associated with only 2 of the 5 human senses. The 2 senses involved are "sight" and "hearing", and the remaining 3 senses are "smell", "taste", and "touch". The question I raised was whether creative activities involving the other 3 senses MAY also be copyrightable, even though they are not currently protected in US.

     I wasn't aware at that time that a couple of courtroom battles over that same question had been brewing across the Atlantic Ocean in Europe. And, it turned out the outcomes of the battles were determined shortly after my posting.

     In June, the French high court held that a perfume ("Dune" by Dior) was not protected by copyright laws, because perfume-making was a craftsmanship, not an artistic creativity. Three days later, however, the Dutch high court reached the opposite conclusion and held that a perfume ("Tresor" by Lancome) was copyrightable. (See here.)

     I don't have access to full English translations of the 2 courts' opinions, so cannot properly assess the reasoning advanced by the 2 European courts. However, from the info I assembled from the internet, it's not too difficult to come up with a list of considerations with which the courts must have had to grapple. For example:

     Personally, I'd like to see sufficient protection for innovative artistic works. In Holland, a perfume is now protected by copyright. More precisely, the chemical compound that releases a specific scent of a perfume will be copyrighted. However, if I some day decide to create my own perfumes, it would be kind of cumbersome that I'll need to know the exact chemical composition of the perfume I create to get copyright protection or to avoid copyright infringement! Not a career for the faint-of-heart in chemistry!

     In my previous posting (here), I talked about the ineffectiveness of copyright protection for fashion designs. Fashion design is one type of creative content that can be protected by copyright, but has not been fully embraced by copyright laws. That raises a question: What other types of creative content MAY be protected by copyright, but have not been included?

     Currently, the copyright law explicitly protects 8 types of creative contents: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. I have categorized these 8 types of creativities according to the 5 human senses (sight, hearing, smell, taste, & touch). It turns out these 8 copyrightable activities resort only to 2 human senses: sight & hearing. (See table.)

     Theoretically, then, creative contents resorting to the other 3 human senses (smell, taste, & touch) may be copyrightable, even though they have not been incorporated into the copyright laws. Below are some quick samples of potential copyright candidates.

          Smell: perfume; odor

          Taste: cuisine; medicine

          Touch: furniture surface texture; clothing texture

     I am not advocating that these types of contents should be made copyrightable. In fact, I believe no one wants to see the taste of, say, lamb shank copyrighted. However, thinking through the pluses and negatives of copyrighting these non-traditional candidates may help us better understand the implications of copyrighting.

     Last Friday, I talked about potential copyright issues entangled with Google's Translation tool in my previous posting. On the same day, coincidently, Google lost a copyright battle that it had been fighting since last November in a California federal court. That legal battle involved another Google search tool: Image Search. The case was Perfect 10 v. Google, where the winner (for now), Perfect 10, was a purveyor of adult contents through both traditional prints and Internet. Not surprisingly, the case has garnered significant public attentions, not just from copyright lawyers, because of the "graphic" and "inflammatory" nature of the materials involved.

     Perfect 10 owns thousands of copyrighted images of its models. These images were copied and placed on many web sites, without permission. The problem for Google arises when someone uses its Image Search tool to search for images of any of the models. At the response of such a search request, Google would find the related images, create thumbnail (low-resolution) versions of these images, and then display these thumbnails on the user's browser. Apparently, many of these images collected by Google Image Search are unauthorized copies. The question is whether Google infringed on Perfect 10's copyright when it so uses thumbnail versions of these unauthorized copies. (See here for more details on the case.)

     The court opinion totaled 48 pages and was way too complicated for this posting. In what's relevant here, the court determined that the Google thumbnails did infringe on Perfect 10's copyrights. That it was not a fair use.

     The main reasons why the court held against Google were two fold: (1) Google benefited financially from these unauthorized copies through the AdSense program; and (2) the thumbnail versions of Perfect 10's images are commercially valuable because they were being sold to cell phone users for download. On the first reason, Google's AdSense program allows a web site to register as an AdSense partner by displaying Google Ads on the web site. Google then shares advertisement revenues with its AdSense partner sites. According to the opinion, revenues from AdSense for the 2nd Quarter 2005 amounted to $630 million! Very impressive for the court.

     As to the second reason, displaying thumbnail images generally does not infringe on the copyrights of the original, higher-resolution images, because thumbnails are of much lesser quality and thus do not significantly impact the commercial market of the original images. In the Perfect 10 case, however, the thumbnail images have a market of its own. -- Download for cell phones. Google's use of these unauthorized thumbnails thus can significantly impact this thumbnail market. Too significant for the court!

     So, the AdSense profits and the impact on thumbnail market combined as a double whammy to knock Google out of the fair use arena. Outside of the search engine terrain, however, this double whammy is just as formidable. -- What if a web site displays AdSense ads and thumbnails simultaneously? Better watch out when cell phone or iPod users begin to take a keen interest on these supposedly lowly thumbnails!

     Are you aware that Google offers a translation tool? This tool allows the user to translate a whole web page (or a phrase) to and from many languages. To make translations, the user simply types the web page address in the input box, choose the languages, and hit the "translate" button. After a few seconds, the translation is displayed in exactly the same layout as that of the original web page, except in a different language. (Currently, however, Google translator translates only the first several hundred words.)

     If you noticed, I did not include a hyperlink to the Google translation tool. That is because if you use it, you MAY violate some people's copyrights. (No such warning on Google's tool pages.)

     Copyright includes not just the right to copy. It also includes the right to prepare "derivative works", which basically means variations of the original copyrighted works. Translations are "derivative works". Therefore, if someone translates a copyrighted book without the author's consent, the translation violates the original author's copyright. This is also true if one uses a translation machine. Under some circumstances, such translation may be considered "fair use", but I won't delve into it here.

     Using the Google translator to translate a web page, therefore, may violate the original author's copyright. For the original author of a web page, it raises two concerns. If the translations are accurate enough, and thus potentially profitable, the author will be deprived of such profit opportunity. If the translations are inaccurate, on the other hand, the original meaning intended by the author may be distorted, mutilated or modified, in ways completely beyond the author's knowledge or control. Moreover, with Google translator, the original author is still identified and associated with the translated page. In most occasions, the user will not confuse the Google translation as approved by the original author. However, the risk of communicating something unintended by the original author can still be huge.

     I used Google translator to translate a short paragraph of my earlier posting from English to Chinese, and then from Chinese back to English. The original paragraph:

          "Incorporating 'reason' into 'law' is intuitive and a great idea. One can even
           argue that all laws should be reasonable. Only reasonable laws foster reasonable
           behaviors."

The double-translated paragraph:

          "Merge 'reason' enters 'the legal' intuition and one huge idea. You possibly
           even argue say all laws should be reasonable. Only reasonable legal foster
           reasonable behavior."

     For this paragraph, the translation seems to have lost a high portion of the original linguistic relationship, but nothing acutely harmful is obvious. Random combination of words, however, can be very unpredictable.

     Some will be wondering whether Google may be liable for such violation of copyrights or any other harm. That is a complicated question. To be short, I think the answer is yes, although Google's legal advisers must have thought differently.

     The fashion industry seems to have become a perfect demo of when intellectual property protection is not necessary to stimulate innovation.

     Currently in the US, fashion designers (apparel designers in particular) have only limited legal protections for their designs. Among the 4 major areas of intellectual property protection (copyright, patent, trademark / trade dress, and trade secret), none is effective for fashion designers, although copyright seems to have the best potential. I am going to focus on copyright in this post.

     Generally speaking, fashion designs MAY be protected by copyrights, just like a sculpture. (Click on the thumbnail to check out some wonderful designs. They do resemble fine sculptures.) The problem is we human beings wear apparels to cover ourselves day in and day out. Apparels carry a utilitarian function not shared by a piece of fine sculpture. For this reason, the Congress and courts have been reluctant to grant full protection to fashion designs, for fear that too much protection would cripple the commerce in apparels and consequently hurt our standard of living.

     As a result, only the portion of fashion designs that can be separated from the utilitarian function of clothing (that is, to cover up our bodies) can be protected by copyrights. That all sounds fine, except the Congress never clearly tells us in the copyright law how we can go about making the "separation". Thus, it will be up to the courts -- which means confrontation, hostility, wasted time & money, and uncertainty. Most fashion designers don't think the benefit is worth the hassles.

     What is interesting is that despite the lack of effective intellectual property protections, innovation is not wanting in the fashion industry. (Just watch those fascinating gowns and dresses displayed in fashion shows and stores!) This poses an interesting question: If innovation is not lacking in fashion design, why should we worry about the ineffectiveness of intellectual property protections, which aim to stimulate innovation anyway?

     Innovation in the fashion designs has not suffered for 2 reasons: One, innovative fashion designs still commands very high premiums in the high-end market; and two, a design's value drops precipitously after just one season. So, high-fashion designers can bring in sufficient profit from one design, but only for a very short period of time. They must continue to innovate to sustain the business. Protecting the less-valuable older designs is relatively unimportant.

     But, what if the high-fashion market gets more and more competitive? What if the premiums for high-fashion designs decrease significantly? What if the mid-end market becomes an indispensable segment for fashion design houses to sustain the business? Will innovation wither when profits shrink?

     And, what about protections for the young designer dreaming about establishing herself by innovating for the mid-end market, which commands lower premiums? What about the need of mid-end and low-end markets for innovative designs (which people actually dare wear daily)?

     Something to think about!