The Lister List

Copyright in England and Elsewhere

Rona Gurkewitz has raised the hoary topic of Copyright once again!

I have for several weeks been contemplating whether to plunge into this topic once more and send a posting to Origami -L, because I, too, have been having doubts about the OUSA interpretation of copyright law as it applies to Origami. I will therefor make a contribution, even though it will not be as comprehensive or as authoritative as should have liked.

First, however, the answer to a fairly simple point. The Berne Copyright Convention to which both The United Kingdom and the United States, as well as many other countries subscribe, lays down the minimum requirements of copyright law to which subscribing nations must enact within their own legal jurisdictions. The Convention does not itself impose the law. That is done by the domestic law of the signatory country: by Act of Parliament in the UK and by Act of Congress in the USA. The actual form the copyright law takes in each country differs in many details, (for instance the provisions for fair copying are somewhat different in the UK abd in the USA) but in general the law imposed in both countries is broadly the same, because each country has to incorporate the basic requirements of the convention.

It is absolutely clear that the law of both countries protects the copyright of diagrams. Of that there is no doubt.

I am of the opinion, too, that the law of both countries protects the copyright of the finished model as a work of art or as a piece of sculpture. But I should like to see a decision of the courts in the respective countries before being absolutely sure of this. I can imagine a grumpy old judge considering that origami was too trivial to merit the application of the law of copyright and finding some way of throwing out the case, come what may!

The nebulous area is the question whether the idea or design or folding structure of the model is protected by copyright. The legal advisers of OUSA have concluded that this is an invention and is therefore capable of being proteted by the very different law relating to patents. They argue that if the folding structure is capable of being patented then it must be so patented if it is to be protected and the law of copyright will not apply. In paretheses, it should be noted that rightly or wrongly, paperfolding designs have been patented several times in the United States and in Japan, so that there is no question that an origami design has been deemed capable of being patented.

Increasingly, I have become disatisfied with this line of reasoning. A piece of music exists not only in the printed sheet music and in the actual sound when it is played, it also exists as a cerebral invention. Yet it is fully protected by copyright.

A piece of architecture is as much an invention as a work of art. Yet the design of it is protected by copyright. Try building a house similar to one designed by an architect and wait for the writ! My own view is that an origami design is much more a work of art than an invention.

I admit, however, that this is an excedingly difficult branch of the law. Although I am a lawer (English and retired), I am very reluctant to venture into this territory without making extensive studies of patent law and copyright law and into bothe statute law and case law in both the UK and in the USA. I think that my retirement wouldn't long enough for thatI Enough to say that I don't think that the OUSA lawyers are necessarily right, but I cannot at present give substance to my argument.

I was, therefore, interested to read Bernie Cosell's response to Rona's posting and that he has not yet found a lawyer who believes what the OUSA claims is the law. I agree with what he says. I also agree that questions of this kind will never be decided in the field of Origami, because nobody could ever afford the litigation involved in bringing a case before the courts of either the UK or the USA.

Bernie suggests that a decision might be made in the field of clothing design. But, even there, there are so many difficulties. By the time a case came to court on a particular design for say a womans's dress, several years would have gone by and it would be far too late for the couturier to benefit form his litigation. Fashion designers throughout the world are trying to limit the huge quantity of forged clothing and stolen trademarks being marketed all over the world, but with only very, very limited success.

My own advice to paperfolders is to give up bothering about what the law may or may not say, but to respect other people's creations. Whatever the law says, it is very discourteous to copy someone else's model, especially for commercial purposes, without getting permission first.

David Lister,

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