Report of Agency: Assembly (CAVEAT)
For Assembly (CAVEAT) Agency is convening a gathering of 'concerned' around Thing 001779 (Zack Meyer’s T.V. Sales and Service forms). It concerns a conflict between on the one hand O.W. Donald, a non-lawyer contract writer and on the other hand Zack Meyer’s T.V. Sales and Service and Moore Business Forms about the text of a conditional sales contract for TV repairmen called Agreement.
This controversy is part of a series speculating on the question: “How can objective things become included within artistic practices?” This series concerns creations made by governments, state departments, judges, military, prisoners, etc... Specific provisions define the acquisition and exercise of copyright by the state over publications of government works, code and law, judgments, and so on.
During the gathering we collectively read fragments of the various case reports. The purpose of this gathering is to revisit the moment of hesitation during the court case and to actualize the problem discussed in the case as a way to fabulate. A diverse group of concerned guests are invited to resonate: Jan Baetens (Professor Literary Theory and Cultural Studies, writer), Aga Kilian (curator and lawyer), franck leibovici (poet and artist), Mariëlle Matthee (lawyer, linguist), Alain Strowel (Professor Intellectual Property), Emmanuel Verraes (lawyer).
For the organisation of the Assembly, Agency and Caveat connect to Vlaams Pleitgenootschap (VPG), thereby also reaching out to its members to share this moment of reflection, encounter between disciplines and reciprocal sharing of insights and thoughts.
Julie Van Elslande (Caveat): It’s argued that the language of the contract is copyrighted. How can that be?
Alain Strowel: It is not the language itself that can be protected, it is the precise formulation or wording that can be protected if it original.
Emmanuel Verraes: Note that language is a means to express an idea, and that only the expression – thus not the underlying idea – can be copyrighted.
Eric Schrijver & AS: Language doesn’t only mean ‘English’ or ‘French’ but means here a formulation, a way of expressing that can be original.
AS: ‘Arrangement’ is a combination of existing works or elements, and in this case existing words. The fewer words are used, for instance in the title of a work, the more difficult it becomes to protect the arrangement, but the case law in Europe has recognized that sequences of 11 words can be protected by copyright.
Aga Kilian: This relates to Jan Baetens’ concept of remix.
Jan Baetens: The wording is identical though.
AS: Single words cannot be copyrighted.
Participants: A brand whose name consist of one word, can that be copyrighted?
Other participants: That’s a trademark.
AK: I was struck by the fact that in the court’s argumentation it was stressed that the author was not a professional laywer.
AS: Maybe to emphasise that he wouldn’t be capable of original contract writing. But it’s not that one needs to be professional in order to be creative.
franck leibovici: Maybe it would be the other way around.
MM: The reasoning of the judge is that he must have seen certain texts before.
AK: But he imitated to be a lawyer, he assumed the persona of a lawyer contract writer.
Participant: He had some legal notions, which implies unoriginality.
EV: Another notion which as such isn’t copyrightable, is ‘style’.
[Reading from “Neither the…”]
Kobe Matthys: the ‘extinguishable variation’….?
AS: One can have something that is original which isn’t novel. The important thing is to prove the originality, that the text originated with a person and that it shows her/his imprint.
AK: Originality has to originate in somebody.
AS: The social or professional quality of the author or her/his merit should not be a criterion for copyrightability, but judges can be tempted to rely on social judgment when reaching their legal decision, for instance if an artefact has been selected by a museum and is part of an exhibition, the judge might be induced to grant legal protection.
[Reading from “In determining…”]
AS: “Minimal standards”. In 1991, the US Supreme Court has changed its view of originality. In the US the view used to be based on the effort that was made to create the work, whereas the continental European perspective relies more on the imprint of personality and the demonstration that creative and free choices have been made. The US copyright approach has become closer to the continental droit d’auteur (auteurrecht, Urheberrecht, etc.) system since then.
[Reading from “The author must add…”]
KM: It’s confusing that he brings back the notion of novelty.
JB: What does ‘public domain’ mean here? Does it mean that it’s no longer copyrighted?
AS: It means that it’s not protected, or not protected anymore. But once something is in the ‘public domain’, a couple of elements can be added, and the creation is eligible for copyright again. Disney for instance is very good at this.
EV: Rearrangement can indeed be protected if it meets the originality standards. However, in order to be licit and to the extent the original is not in the public domain, the permission of the copyright owner of the original work is required.
Eric Schrijver: You can still get copyright on a new work even if you’re infringing the copyright of an original work.
EV: Kraftwerk case: “To what extent can copyright limit free expression?”
AK: Additionally, in the continental system there are moral rights, which differ from economic rights. The moral rights limit also the work’s exploitation.
KM: Arrangement of little fragments that are already in the public domain.
Participant: The text first differentiates novelty and originality, and then quotes a previous judge again confusing it.
AS: It shows that judges aren’t completely coherent in their motivation. In practice, when originality is to be proven, one often falls back on the issue of novelty. Once the defendant in a case has identified previous works that are quite similar, it is for the plaintiff claiming copyright to show her/his work is different and goes beyond what is known.
fl: “Emphasizing”: for instance adding a yellow mark in a sentence in a text, or increasing and decreasing certain parts of a sound recording, isn’t that an act of originality? Can that constitute an original work?
EV: If you merely “emphasize” something while performing a work, then this should not be considered as an alteration of the work itself.
AK: Legal phrases have often just a descriptive function. E.g. I give you this, and you give me something else in return. Therefore, the legal form originates from observed simple life function. In that regard copyrighting may be problematic itself, as appropriating the life events.
MM: A lawyer would use rhetoric in order to emphasize certain elements of a formulation.
JB: In this kind of context, emphasizing might not make a great difference, but for instance in art this cannot apply.
ES: Also, just because it’s artistically meaningful, doesn’t make it protected.
AS: I completely agree, appropriation art for instance… Let’s think of Warhol’s Brillo boxes. The positioning or the geste of the artist is original, but the boxes are not copyrighted, and there is no need for protection as nobody probably would dare to present the same boxes as his/her own work.
EV: The act of the eating of the banana that was the protagonist of the recent media event at the Miami art fair as such couldn’t be copyrighted, even if it reaches all the media.
MM: The functionality of words. Collocations. Using a combination of certain words refers to certain legal concepts.
EV: One of the first things one learns in law school, is that law is language.
AS: That’s true, but at the same time lawyers may use many words that have no meaning – and part of the language used in contracts is superfluous.
AS: There’s a distinction between thin and thick protection. In painting, the whole of a composition may be well protected. For informational works, the protection is rather thin as many bits are just facts or information that remains outside the scope of protection.
[Reading from “In the case before us….”]
[Reading from “Donald did no…”]
[Reading from “While the Agreement”]
fl: In art history, since at least 130 years, artists have made monochromes. All of them could consider their work copyrighted. Even though they are all monochromes, the same colours. I’m sure there are even monochromes of the same sizes.
Vincent Meessen: But not the same colours.
fl: So you would actually look for little differences.
AS: I see no original arrangements in those works. Also, those are unique pieces of art, and are not mostly sold under the form of copies. Copyright usually become important when there is a distribution of copies of the work.
VM: Colours are copyrighted.
AS: A unique colour cannot be copyrighted. When there’s a technical aspect for instance a special process for obtaining a colour, then a patent might be obtained.
KM: Anish Kapoor acquired the exclusive rights to use of the patent on the technical invention by Surrey NanoSystems of the darkest pigment called Vantablack.
MM: The judge refers to the legal research that Donald hasn’t done.
ES: Often that isn’t really relevant though…
Steyn Bergs: Language in a legal context is highly technical, standardized, and conventionalized so as to become functional. In legal language, meaning is made to seem already settled.
AS: People and lawyers in particular tend to be quite conservative in their phrasing in order to use language that has been accepted and acknowledged.
KM: Isn’t there a danger to privatize documents in the legal system?
JVE: That’s already the case, a bit…In case law for instance, court cases are entered in databases, and lawyers have to pay in order to access them.
KM: What if your contract would show up in a book?
EV: It would be flattering.
AK: The privatisation of legal systems also happens to claims. We witness a paradox: statuaries or particular regulations cannot be copyrighted. It belongs to the free domain. But if you want claim your rights, guaranteed in the statutory, you have to be careful, how you formulate it. I worked on a case where there was a note added that that way of claiming is copyrighted. Therefore, I see it also as a class problem.
Lawyer participant: We know that ‘structure’ and ‘selection’ are criteria for authorship. We know of the interior of Pain Quotidien, it was copyrighted by the interior architect. I won that case. Monochromes are more than an idea.
EV: Form and the freedom of choice thereof are indeed necessary conditions, but only qualify for copyright protection when they meet the originality standards.
Nina Janssen: What’s the procedure to get a copyright? Why does it have to come to a case, and why can’t it be checked before?
AS: There is no administrative phase or registration requirement for copyright to subsist in a creation, the substantive condition of having free and creative choices is enough. But to enforce your copyright, you might need to go through a judicial phase so as to obtain mandatory measures from a court.
NJ: What are the thresholds?
AS: Technical ability or expertise is not enough. Let’s take the case of diamond cutters in Antwerp. They wanted to copyright a special pattern of cutting, which was rejected by the US Copyright Office because it was too functional. The shape of the cutting is not freely chosen, but is largely determined by the objective of optimizing the light reflections.
AS: We have decisions as well about the work of lawyers. In Belgium the revenues from the exploitation of copyrighted works is no taxed at the normal rate for professional revenues (which can reach 45%), but at a preferential rate of 15%. So, for tax reasons, attorneys, bailiffs and other professionals have claimed they exploit copyrighted works (when they publish a newsletter, prepare a legal opinion or a contract, etc.), and this lead to some procedures before the courts.