"Naturally Self Replicating": Human Bodies and Webtexts (and plants)

Technologies which are “naturally self replicating” fly in the face of US copyright law – or international intellectual property agreements as well.

Two technologies that are naturally self replicating that come to mind immediately are:

1. The Human Body
2. The Digital Webtext

Mapping on copyright law to “bodies,” the argument would go something like this. Under US copyright law, anything that is original and fixed is protected. Think about your mother. Was she original? Probably yes, if according to US law via the Feist opinion, she exhibited or contained a “modicum of creativity.” Was she fixed? Well probably for the most part at least on the outside. OK, so we can pretend that your mother was copyrighted.

Then there is you. Under US law, an item can be copyright infringing if it is substantially similar to the pre-existing item, and its creator had access to this pre-existing item. It doesn’t have to be conscious awareness, just access at some time. The case in point is the George Harrison – Chiffons case where Harrison’s “My Sweet Lord” was alleged to infringe on “She’s so Fine.” While Harrison did nothing intentionally, he did admit that he listened to the Chiffons when he was growing up, so the court found copyright infringement because “My Sweet Lord” was substantially similar to “He’s So Fine,” and Harrison had access even though he didn’t really consciously remember that until prompted during court testimony.

Intention doesn’t matter in copyright for the most part, because copyright is a strict liability law.

So, you ask yourself, are you substantially similar to your mother, and did you have access? Hum. Well I was talking about “bodies,” so I’m sure if you are the biological child of your mother, using various disciplining technologies of the medical field, someone could make the plausible argument in the affirmative to both inquires.

But US copyright law will obviously never be applied in this situation. The reason is that it would too visibly acknowledge that bodies are propertied, which is actually true. But the fact the copyright law can’t apply also is because human bodies are “naturally self-replicating.” Copyright law tries to assign exclusive rights to reproduce an artifact to its creator.

The reason I think of this twisted example, is because an international group, the International Union for the Protection of New Varieties of Plants (UPOV), is debating how to protect plant varieties. According to this article, the issue is as follows:

“Effective intellectual property protection on plant varieties is a challenge, as the technology is by nature self-replicating. Antonio Villarreol, managing director of GESLIVE, an association of plant breeders based in Spain, said there were cases in which seeds from proprietary fruit varieties purchased in a market (where purchasers would never see the technology use agreement) had been replanted and propagated.

‘From the first point of sale, control becomes diluted,’ said Chris Green, director of Senova, a crop development and plant breeding company. Farms save seed, rather than buying new seeds, and sometimes fail to pay royalties on the saved seed, for instance.”

Yep. The western model of naming, owning, and individuating does not work in cultures that just don’t see the world that way. And the reason copyright law doesn’t really do much in the context of Digital Webtexts, at least according to my research, is because, Digital Webtexts, like Human Bodies, are naturally self-replicating.

The full article is here:

http://www.ip-watch.org/weblog/index.php?p=1298