The Second Circuit employs the copyright merger doctrine — holding that mercantile exchange settlement prices are not protectable.
See New York Mercantile Exchange v. Intercontinental Exchange, No. 05-5585-cv (2d Cir. Aug. 1, 2007).
Patry has a great critique here:
The merger doctrine has been explained by language like, “When the ‘idea’ and its expression are … inseparable, copying the ‘expression’ will not be barred, since protecting the expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law.” Subsequent courts have expanded the doctrine’s reach, finding it applicable when there are a number of ways to express a particular idea, and yesterday’s Second Circuit opinion follows this trend.
The doctrine is, however, based on a faulty premise: If an idea and its alleged expression are truly inseparable, there can be no selectivity sufficient to permit originality. This is also true if there are only a limited number of ways to “express” the idea. Such a conclusion is, in reality, a statement that the purported copyright owner’s way of expressing the idea contains only a de minimis number of non-ideas. So understood, merger is merely a judgment that there is a lack of originality and thus, like the idea-expression dichotomy, merger merely reflects a judgment about where on the continuum of expression the work at hand lies. The prices asserted by NYMEX fall off the spectrum completely.(source and more)
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September 17, 2007 at 4:42 pm |
Does joint / co authorship, under the Nimmer test, create a copyright in ideas? What if the only “work” offered by a co-author is the idea for the expression. The other author then creates the copyrightable expression. The first “author” now has an exclusive, concurrent with the co-author, right to an idea. The argument may be stretched but with an eye to the text of the Copyright Act, this appears to be an invalid application of copyright protection.
The joint authorship doctrine does not view the extension of a copyright in jointly created work as a monopoly in an idea but that is the fall out if the Nimmer test is the applicable standard. An actor now has idea protection. The Goldstein test is less violative of the statutes and Copyright Act. The terms, inseperable and interdependent, are satisfied through the latter standard. The joint work remains inseperable because the copyrighted work would and could not exist without the combination of the parts. While the parts may be independently copyrighted, this does not invalidate the necessity of the sum. The parts are inseperable as to the copyrighted whole.
September 18, 2007 at 12:45 pm |
One of the fundamental principals of copyright law is that an idea cannot be copyrighted, period. Patry’s critique still holds true to this fundamental principal. Regarding one explanation of the merger doctrine he states, “When the ‘idea’ and its expression are … inseparable, copying the ‘expression’ will not be barred, since protecting the expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law.” This definition seems to take the position that when an idea and its expression are inseparable, pursuant to the merger doctrine, the totality of that work will be deemed an expression and therefore a copyrightable work.
However I agree with his critique which questions the copyrightability of a work under the merger doctrine in that the merger doctrine is based upon a faulty premise. In this instance a work which only has a de minimus number of non-ideas would lead to the assumption that the work itself lacks any originality to be fixed in a tangible medium. This seems to fall along the lines of an exception to the copyright clause which implies that where an idea only has a minimal amount of ways to be expressed, once those ways are expressed and copyrighted, then that idea no longer has the ability to spawn new copyrightable works. How can this doctrine be viewed as anything other than a judgment on the continuum of expression when it implores that an idea and its expression are so inseparable there is no way to distinguish and permit originality. Since originality is a necessity to copyright a work, the lack thereof (under the merger doctrine) would nullify any alleged expression of an idea because any idea and expression so inseparable would be deemed indistinguishable from each other and therefore an idea that lack originality.
~ Justin Schafer
September 18, 2007 at 2:46 pm |
Just an error correction on my part. I meant “principles” not “principals.” My mistake.