There is an issue I started thinking about several years ago. It was interesting, so I also wrote a short story while I spent some time at the distinguished Oxford University. As there have been several copyright-related issues on our tables recently at TRUST., I though about writing something on this topic myself as well but, please, bear in mind that the background for this originates from the precedents and literature from the UK and not so much from Finland, where we unfortunately still suffer from a relatively scarce amount of precedents despite our brand new IP court. The point of this article really is that I have always fancied the idea that we could have actually two identical copyright protected works (and by this I mean identical or very similar, of which Led Zeppelin's past actions serve as a good example, as pointed out my good old friend - listen from here) existing in the world while under patents it is at least substantially more difficult. Perhaps one exception is filing applications on the exactly the same date (which I gather might still involve some practical difficulties but I am glad I do not have to be an expert in these patent filing procedures). However, in this online world we are currently living in, it can be questioned whether this is really the case for copyrights as almost all the works are available globally and, then, how can you actually prove that you did not copy? Or should subconscious copying constitute an infringement at all? And taking this into account, are the scope of protection awarded by the patent (here exclusivity to make, offer to sell and so forth) and copy-right (protection against, e.g., copying, making available to the public, as an example) fundamentally so different when such issue is dealt with in courts?
Let's see in detail. There are two different types of infringements and this helps analyse subconscious copying. Primary infringement is concerned with people directly involved in the restricted activities. The other form, secondary infringement, is concerned with people who operate within the commercial context and are indirectly involved in the restricted activities, for example by way of dealing with infringing copies. It is held that the mental element is not as important in the case of primary infringement as it is in the case of secondary infringement. The reason for this additional mental element in the case of secondary infringement can be based on the requirement of knowledge. Since a person is not performing directly restricted activities, secondary infringement is justified only if and to the extent he/she was aware of the wrongfulness of his/her actions. In direct infringement, a person him/herself is per-forming restricted activities. Is it, however, to hold him/her responsible even if he/she is not aware of the infringement? I would argue (obviously) that subconscious copying should amount to infringement on the grounds of “originality”, “harm” and “unjustified enrichment” arguments. On the other hand, economical argumentation does not seem to provide an answer to this question due to the fact that copyright is not a right of monopoly in the sense that if a person using his own skill and labour creates independently the same or similar work, it is held to be non-infringing and this char-acteristic feature inevitably seems to result in welfare losses.
The case closest to this point is Francis, Day & Hunter vs. Bron, in which the plaintiff claimed that the defendant, a publisher, and Mr. de Angelis, a composer of a song “Why”, had infringed his copyright in song “In a Spanish Town”. In the trial, Wilberforce J. held that the copying had not been intentional despite the fact that the songs contain many similarities. Mr. de Angelis denied not only copying but also that he had consciously heard the song. In his judgement, Willmer L.J. considered subconscious copying first as a psychological possibility and came to the conclusion that if such subconscious copying is to be found, it is required that there is a proof of familiarity with the work alleged to be infringed. The main problem in this infringement issue was establishing the causal connection between the defendant’s work and the plaintiff’s work (emphasis here by the author), since, as mentioned above, copyright is not a monopoly right. Willmer L.J. also seemed to accept Mr. Skone James’ proposition that a causal connection can be presumed if there is a substantial amount of objective similarity. Furthermore, Mr. Skone James argued that the denial by the defendant can be seen as evidence to rebut the causal connection but it is not conclusive. It should be noted that if the defendant can show sufficient counterevidence, for example, that both works were inspired by the same source, his work might be held to be non-infringing. So, from this perspective the subconscious work can be held to be infringing.
It is also possible to look at the process of skill and labour from the perspective of originality. In the Interlego AG vs. Tyco Industries plc case, the plaintiff owned intellectual property rights to Lego bricks. The defendants intended to manufacture a competing system in Hong Kong, and is was alleged that this infringe the plaintiff’s copyright in designs for the bricks. In this case, Lord Oliver considered the concept of originality and argued that a mere process of copying, which requires application of skill and labour, does not render the work original. He also argued that there should be some material alteration, which suffices to make the work an original work. The point here is that if a person is subconsciously copying, he is not using his own but someone else’s skill and labour, and I argue that this aspect also renders the treatment of subconscious as an infringement justified. In other words, he is not using right kind of skill and labour.
Subconscious copying can also be understood from the perspective of “harm” caused by subconscious copying to the original creator. This requires that we presuppose some kind of general duty of care towards other people, which includes a requirement that we should not take fruits of someone else’s labour. It should, however, be noted that the argument of harm is justified only to the extent that the original copyright holder is actually worse-off as a result of infringement. Michael J. Spence classifies harm to three different subcategories, which are also relevant when analysing the harmful effects caused to the original creator by the copier despite the fact whether copying is conscious is not. First, material harm can result if the copier and the original creator operate in the same markets in competition. Second, the original creator might suffer emotional harm. Third, cultural harm might result if the work in question would no longer be of any value to him in relation to the others in the community.
Another line of argumentation might be based on unjustified enrichment. By taking someone else’s work even accidentally or, as in this case, subconsciously, the copier is unjustifiably enriched at the expense of the original creator. If it were allowed, the result would be analogical to allowing unfair competition in the event of misappropriation of intangibles. In the case of intangibles, the problem of the argument relates to the issue of imitation and how much is taken and similarly in the field of copyright the question is whether substantial part is taken or not.
From the economical perspective, copyright nature seems to lead to some restrictions. Since—at least in theory—copyright itself is not a right of monopoly, two independ-ent authors may create the same work and in this respect waste resources. Therefore it is difficult to see how allowing or forbidding subconscious copying would lead to more effective allocation of resources or help save resources.
However, when, in practice, e.g., all music or pictures are available online as said above—I return to the one of the first questions—if you have this case in a court, can you really have two identical copyright-protected works existing at the same time? I would say not likely if a causal connection can be presumed out of substantial objective similarity, which I think is a correct line of argumentation by the way and provided that the works are not inspired by the same source like for example a picture of Finnish rural landscape where you have a field full of hay and blue sky above. This leads to another interesting question, which I will discuss later, namely, when there is a copyright infringement between objectively similar works inspired by the same source.
Until next time!! Cheers, Jan