Over lunch, a writer outlined a new book idea to his editor. It was to be a niche concern but promised much. The writer left the restaurant with a glow and decided to get an outline over soon. But days and weeks of being too busy turned to months and then, eventually, came the shocking discovery that his editor has been rather elusive of late for a reason: he has been busy crafting a book based on the writer’s idea, and it was now in the shops. An apocryphal tale, maybe, but it will send shivers down any writer’s spine. What’s more, if the writer were to turn to the law in such a dread scenario, the law would be of no use to him at all.
Phil Sherrell, a media lawyer with Eversheds, explains: "Intellectual property law protects the expression of ideas, not the ideas themselves." Sherrell agrees that "the distinction is not always satisfactory," but says that there needs to be a limit to the protection conferred on creativity by the law. "To extend the ambit of copyright protection to embrace ideas would be difficult in practice—how would the artist prove that they have conceived the idea if it has not been reduced to a tangible form It would also open the door to undesirably wide monopolies."
But copyright’s 300-year pedigree might be a cause for concern rather than veneration. The means by which we communicate has changed out of all recognition from the time when copyright was invented. Today, in the post-modernist world, what constitutes an artistic, literary or musical work is radically different, not least in the field of conceptual art. Here, copyright’s time-honoured reluctance to protect ideas is of dubious merit, according to Hubert Best, a media lawyer with Best ＆ Soames.
"If you look at Martin Creed’s [art installation] Work No. 227, The Lights Going On and Off, where is the work" asks Best. "Is it in the fact that a light bulb goes on and off, or in the concept I suspect it’s the latter. But old-fashioned copyright law does not cover this kind of thing." Creed’s Work No. 227 was an empty room in which the lights periodically switched on and off. It won the Turner Prize in 2001 to a predictable chorus of controversy. This goes with the territory in conceptual art, but other artists have found their work inspires not merely lively debate but accusations of plagiarism.
Last year, three weeks after he unveiled his diamond-encrusted, 50m skull, Damien Hirst was alleged to have stolen the idea for the work from another artist, John LeKay. In 2006, Robert Dixon, a graphics artist, said that Hirst’s print, Valium, was too close for comfort to one of his circular designs in The Penguin Dictionary of Curious and Interesting Geometry. Hirst had another brush with intellectual property law when Norman Emms complained about a 1m bronze torso which, he said was copied from a 14. 99 plastic anatomical toy. Emms later received a "goodwill payment" from the artist.
As one of the world’s wealthiest artists, Hirst is well-placed to fight such battles, but due allowance should be given for art’s intertextual essence. Writers borrow plots and embed allusions to their forebears, artists adapt well-known motifs, musicians play each other’s songs and sample existing riffs and melodies. But there is a fine line between plagiarism, and creative allusion, and it was considered by the courts in the case of Dan Brown’s The Da Vinci Code. The Court of Appeal upheld the initial ruling that Brown had not reproduced substantial content from The Holy Blood and the Holy Grail. The decision was also widely seen as confirming English law’s disinclination to protect ideas.
Yet if ideas can’t be protected, where does that leave the writer aggrieved by the appearance of his idea in another’s book "It sounds harsh," says Sherrell, "but unless a writer has gone some way to creating the work—by way of an outline and perhaps a chapter or two—there is no remedy if the same idea appears under another author’s name. However, given that everything is done on computers these days, it would be relatively easy to prove first creation by looking at the hard drive. Other than that, anyone in the creative arena should keep full and dated records to evidence their work. "
There is another thing that can be done. "You can impose a confidentiality obligation on those with whom you want to discuss your idea," says Best. "Non disclosure agreements (NDAs) are often used in the corporate world to give a contractual remedy for breach of confidence if an idea is stolen. But the trouble is that a writer, musician or artist who comes into a meeting wielding an NDA isn’t likely to make friends. It’s a fairly aggressive way to proceed." Best is doubtless correct when he says. "You’ve just got to get on with it and do it. Once your work exists, in material form, you can sue if anyone steals it.\
The concluding paragraphs mainly tell us that ______.
A．non disclosure agreements can be used to protect ideas
B．confidentiality obligation is the moral standard
C．the best way to prove first creation is to use computer
D．there is no other way to protect ideas unless the work exists
