[pp.int.general] Commercial use of functional works

[Reinier Bakels]

> I'm not sure if the law should divide functional and non-functional
> works, though.  When I say "functional works" I mean "works which is
> intended for practical use", but maybe it's better to divide "practical
> use" itself (which should be free) from distribution, demonstration and
> other ways of use, which can be restricted by copyright.

You make it too complicated. There is no reason to distinguish "functional" 
from "non-functional" works. There is only a reason to be (very) critical on 
the recognition of a right of *use* (other than by publication and 
multiplication, the traditional rights reserved by copyright). Present-day 
copyright only recognises a "use" right for software, which is bad enough. 
Cooking recipes from a cookbook was never and should not be covered by 
copyright. This turns copyright in a kind of (cheap and long) patents - 
which is a dead sin. But even if the legislator does not recognise a general 
"use" right for copyright, (authors and) publishers try to mimic such a 
right on a contractual basis, e.g. for caselaw databases, as I explained 
bfore.

Incidentally, occasionally indeed patent applications are submitted for 
recipes. In 1966, a German court recognised than *in principle* a mushroom 
soup recipe could be patentable subject-matter - but eventually the 
application was rejected for lack of a sufficient inventive step. More 
successful was the Dutch applicant in 1947 of a tomato-plum soup "with a 
suprisingly fresh taste that reminds neither of tomatos nor plums". But the 
applicant had to disclose the tomato/plum ratio: patents require a 
disclosure sufficient for *any* person skilled in the art.

Constant vigilance is needed to prevent copyright from becoming a general 
right on information. Copyright only protects expressions. Still, the Dutch 
Supreme Court recognised copyright on a "kinetic flowchart" (Technip case) - 
which really surprised true copyright experts. Apparently courts are prone 
to the perception that using information from someone else constitutes 
"theft" - while actually the freedom of information is the principal rule, 
allowing exceptions only if and when explicitly recognised by the 
legislator. It is regrettable that (high) courts are susceptible to the 
misconception that an orderly society requires wide property rights on 
information. This is a very basic mistake, recognised even by very 
traditional lawyers.

Before trying to *reduce* copyright, PP should obviously by all means try to 
prevent copyright from *growing*.

Attorneys constantly test the limits of copyright (that is what they are 
paid for). I recall a nice story I once heard from a judge (actually a judge 
specialised in patents). After a lengthy an cumbersome argument (*not* about 
copyright), the attorney made some vague statement that caused the judge to 
ask: "but do you base you claim on then?". The attorney replied: "no your 
honour, I am not that desperate yet". The message is clear: there is a 
tendency to use copyright as a "catch-all" in intellectual property cases 
(also because it does not require any formalities, unlike patent, trademark 
and design model law). Incidentally, there is even a second level of 
catch-all, tort law, but the requirements for a successful tort claim are 
much stronger. And a tort is not a "property" (it is a "liability rule" - 
which is preferable, as leading economists Calabresi and Melamed explained 
nearly fourty years ago).

reinier