Monday, September 14, 2009

Ask Not What Copyright Can Do For You

The police in Sussex are fit to be tied. Sussex is a village outside of central London. Apparently, some local UK citizens have seen fit to publish on the Internet speeding photos taken from Sussex police speed cameras. The link is here. You know how these cameras work. The camera has an autofocus lens (or a fixed lens with a large depth of field) and is coupled with a radar-type device. If a car goes through the radar scan in excess of a set speed, a signal is sent to the trigger to snap the photo from the fix-mounted camera. Apparently, some of these photos have made their way onto Internet sites, and the Sussex constables are beside themselves. In order to regain control, the police are bringing a copyright claim. Sussex asserts a copyright in the photos.

Several years ago I was taking a tour of Kensington Palace, the home of Prince Charles and other sorts of upper crust. While on tour, I attempted to take a photo out the window from one of the palace rooms of a scene overlooking the palace's south gate. The attendant told me that taking a photo out the window was not permitted because, as explained, "the government owns the copyright of the view out the window."

I get a chuckle every time I think about the Kensington Palace visit. The idea that every image is protectable by copyright is just plain wrong. Neither a view out the window nor all photographs are copyrightable. Certainly, this is the rule in the United States. This rule follows from several basic principles of copyright law.

First, creativity is the sine qua non of copyright. The Supreme Court's decision in Feist Publications v. Rural Telephone Service instructs that the Constitution mandates the presence of minimal creativity in order for copyright to exist in a work. If no creativity, then no copyright.

Second, copyright has always required that a human exercise creative judgment in the creation of a work. As expressed in 1903 by Justice Oliver Wendall Holmes in the case of Bleistein v. Donaldson Lithographing Co., art is the "personal reaction of an individual upon nature." Indeed, the copyright law passed by the first Congress in 1790 provided that an author of a copyrightable work must be a citizen or resident of the United States. It is notable that many of the patriots who negotiated the provisions of the Constitution sat in that first Congress, and courts give respect to the laws of that first Congress as indicating the intent of the framers. The concept that a human force must create a copyrightable work has been imbued in the context of the U.S. copyright law to this day.

With the foregoing in mind, can it be said that a human exercises a minimal degree of creativity by pointing a camera to a space, flipping the On switch, then walking away -- particularly when everything that the camera does from that point on is rigidly controlled by mechanical or optical function? Who/what is exercising creative judgment; man or machine? Who/what is applying a personal reaction; the speed camera or the person who flips the switch? The lens focuses automatically or is fixed with a large depth of field. No film exists, as the image is saved digitally. The shutter speed is often fixed. The lens and light-sensitive computer chip can record images in all occasion of light and weather conditions. Where is the human creativity? There is none.

The Sussex incident raises a profound question as to how much control a human must exercise over a machine so as to create a copyrightable work. Certainly humans employ machines and other tools to assist the creation of copyrightable work. In doing so, the human maintains control by exercising judgment. As suggested by Justice O'Connell in Feist, it may not be possible to determine the degree of copyrightable creativity present in any particular work, but it can be determined when none exists. The Feist court dealt with an alphbetical arrangement of phone listings in a phone book. Justice O'Connell pointed out that, nothwithstanding the considerable degree of human labor required to compile the phone listings, the point is that the listings were arranged in the only logical manner permitted to accomplish the purpose of the phone book -- in alphabetical order by name of the phone subscriber. If there is no other logical way to present the listings in a phone book, then there is no creativity in presenting the listings in the only logical manner appropriate for the function of the phone book. The same is true for a speed camera. There is only one way to take a photo of a speeding car. The radar records the speed and if it exceeds a predetermined number then the trigger causes the camera to take a set photo. The lens must be set at a large enough angle to obtain all necessary information about the car and driver. The computer chip must be fast enough to record in all light conditions. There is no other way to do it so as to accomplish the purpose or function of the speed camera device.

The Sussex police may have a complaint, but it is not copyright based. Perhaps they could attempt to determine how the images escaped their grasp to begin with.

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