Why Size Matters in IP

In "Size Matters (or Should) in Copyright Law," Professor Justin Hughes explores how a series of court decisions are pulling copyright jurisprudence in a direction in which each coin valuation, medical procedure code, or parts numbering system is a copyrighted work. He argues that single words, numbers, and short phrases should be denied independent copyright protection, not because they always lack originality, but because they are never works.

When liability for copyright infringement boils down to copying a name, a couple of choice phrases, a slogan, or a small subset of numeric evaluations, copyright law is being dragged by clever lawyers into dark alleys where it should not go. These dark alleys threaten some of the most flourishing areas of recombinant culture—software programming, collage art, the cutting and pasting of snippets which is a wonder of
digitization, criticism which requires significant quotation from the target of criticism—whether by a Ph.D. candidate or a blogger.

This lurking microwork protection is the result of our having used the originality requirement to justify copyright law’s prohibition against copying words and short phrases. The problem with small phrases is not that they always lack originality: The problem is that they are always too small. Existing case law gives us the material to develop, particularly for text works, an understanding of the minimum size or nature of a “work” that deserves to attract copyright protection.

The adverse effects of using size in evaluating originality can also be seen in the current debate over just what is plagiarism. "Defining just where influence ends and plagiarism begins can be a difficult question," writes Scott McLemee. "Ralph Waldo Emerson, who wanted the American scholar to live in a state of radical originality, ended up conceding that 'all my best ideas were stolen by the ancients.'" Musicians know that all great composers steal; documentarian's lament over dissappearing history; and artists are plagued by intellectual property issues. Even technological contributions can be viewed as more of process involving every element of society, than the singular obsessions of lonely geniuses. It's no wonder that we are now seriously considering protection for "traditional knowledge" and "cultural expression."

According to Stuart P. Green, a professor of law at Louisiana State University at Baton Rouge, copyright law "protects a primarily economic interest that a copyright holder has in her work. . . whereas the rule against plagiarism protects a personal, or moral, interest." But just how far should we go to protect these non-economic interests? When Malcolm Gladwell described the plagiarism of his own work in a November 15 article for The New Yorker, he concluded that "In the worlds of academia and publishing, plagiarism has gone from being bad literary manners to something much closer to a crime. We have somehow decided that copying is never acceptable and the ethics of plagiarism have turned into the narcissism of small differences: because journalism cannot own up to its heavily derivative nature, it must enforce originality on the level of the sentence." Others have even gone so far as to suggest that if the phrase, "To promote the progress," in the U.S. Constitution means prioritizing people's access to writings and discoveries, then the rise of open source production and dissemination of content may now be demonstrating that the incentive justification for intellectual property just isn't true when the means of production and distribution are in the hands of individuals, without the need for significant capital contributions.

Of course, most of us would like to see our works receive recognition, if not outright acknowledgement. In the Talmud, notes Professor Green, "a person who reports something in the name of the one who said it brings redemption into the world." Rabbi, Joseph Telushkin explains the reasoning behind that text this way. "If a person presents as her own an intelligent observation that she learned from another, then it would seem that she did so only to impress everyone with how 'bright' she is. But if she cites the source from whom she learned this information, then it would seem that her motive was to deepen everyone's understanding. And a world in which people share information and insights to advance understanding, and not just to advance themselves, is one well on its way to redemption."