Can there be unrecognizable copyright infringement?

A copyright infringement of a work, be it a painting, photograph, television show, musical composition, or source code can take many forms, one of which is a “reproduction” or”copy”.  In order to establish an infringing “copy” the courts in Canada require that a “Substantial Part” of the original work be reproduced or copied.  In determining what is “Substantial”, the courts look at quality over quantity. So, even if only a small part of a work (i.e. a few words of a speech) is copied, if that small part is significant enough, the “copy” can be an infringement.

There are many other factors involved in establishing a copyright infringement, but I will leave that discussion for text books and law school Profs.  Lately I have been particularly intrigued by the notion of an unrecognizable copy for lack of a better term.  Traditionally, when one looks at an audio-visual work (let’s use a TV show as an example here) we can say, “Hey! This show uses the same characters, settings, music and plot-line as another show before it show! It must be a COPY!”  Then the lawyers would step in, correspond with one another and possibly go to court establishing that if Sesame Road were produced by people who have seen Sesame Street and without getting a license from the owners of Sesame Street, it is a “Copy.” With video games and other computer program based audio-visual works, it’s not always so clear cut.  When the audio and visual elements can be separated from the program or code and other programming materials, these separate pieces are each separate works subject to their own copyright – the music has copyrights (in fact several), the visuals have copyrights, and the code and other programming materials like the design documents each have copyrights.  With music and visual elements, we listen or look and can determine if there are similarities. Unfortunately with code and programming materials, it’s not so simple.  Because the code and programming materials set out the parameters of a game or program and how the user must interact in order to accomplish tasks, even the original programmer could play a game or otherwise experience the end product and not be able to determine if it is a copy.

Let’s say the code and programming materials lay out a configuration that a player must, at a specific time in a game, enter the following sequence of keys to continue to the next level, “UP, UP, DOWN, DOWN, LEFT, RIGHT, LEFT, RIGHT, B-key, A-key” (ah, the classic!) This sequence could make a little knight running around a graveyard with zombies popping up from the ground “look up, look up, crouch, crouch, turn left, turn right, turn left, turn right, jump, and throw a spear”.  With different visual elements, it could  make a high-tech car equipped with weapons necessary to evade and destroy bad guys trying to run it off the road “speed up, speed up, slow down, slow down, change lanes left-right-left-right, oil slick, gunfire”.  With this short configuration, it may be a little obvious, but in standard gameplay over a timeline, it is easy to see how it could not be recognizable, even to the author (programmer or creative designer) of the original work (code, or programming documents).  In order to see the copy, the code or programming materials of the two games would have to be compared, and users/audience members do not look at or even have access to these elements.

This is to say that things have changed since the days of unidirectional or passive audio-visual content. Now you can make a copy which the author of the original work might not recognize even when experiencing the copy.

This entry was posted in Uncategorized. Bookmark the permalink.

Comments are closed.