This is a common misconception about the patent system — that a
patent corresponds to a product as a whole. The system does not work
that way.

Normally, a patent is an imposed monopoly on using some technique.
One product typically combines many techniques. If it is software,
your program can combine thousnds of techniques, each of which might
be already patented by someone else. When people understand these
facts, they raalize how dangerous software patents are to software
developers.

(See http://www.gnu.org/philosophy/software-literary-patents.html.)

So, the individual visits a lawyer with expertise in the three
areas of copyright, patent and trademark law

There are many other laws that a business needs to deal with: by choosing
to mention these three, you insert the assumption that they form a
meaningful class. That assumption then comes out in your conclusion.

3) the belief that if copyright, patent, and trademark issues ever
have to be discussed in the same sentence, paragraph or document,
that they should always be referred to separately

Not quite. What I say is that, for the sake of clear thinking, we
should take only one of these laws as the topic at any time. To try
to generalize between these laws is a mistake, and the general
statememts people make about them are usually false.

The generalization of “intellectual property” confuses people because
they suppose that these laws do something similar. For instance, if
people know that a copyright relates to a specific work, they suppose
that a patent is about a specific product. That’s not so, but
“intellectual property” leads people to assume it is so.

If we want a broader “generic” concept that takes in copyright law,
patent law and trade4mark law, as well as some others, I suggest the
term “t-laws”, meaning laws with “t” in their names. This term makes
just as much sense, since the various t-laws have as much in common as
the various “intellectual property” laws (i.e., effectively nothing).

The advantage of the term “t-laws” is that it does not suggest that
the laws have something in common. So it won’t mislead.

In the sciences, things are often named by what they
aren’t. A quasi-stellar-object is nothing like a star.

Confusion between quasars and stars cannot do harm to our political
life because governments have no power to legislate about either of
them. But they do legislate copyright law and patent law, and if we
want those laws to be designed thoughfully, the first step is to teach
politicians they are separate issues.

> The merger doctrine says that when the details of a work are determined
> or fixed by its practical use, they don’t make the work copyrightable.

That lets astronomy off the hook – few endeavors are of less practical use

> Van Gogh’s painting may portray some facts, but clearly it is full of artistic
> details that were chosen by the painter. Thus, it is certainly copyrightable
> material (though I’d expect it is in the public domain by now).

“Public domain” is an interesting concept for an artifact with a market value of tens of millions of dollars. Judging by the number of replicas in tacky souvenir shops, you are certainly correct, however.

>> Stieglitz’s Flatiron Building is not the same as mine.

> I have seen the Flatiron Building, but I do not know what you are referring to.

Famous photograph:

http://www.metmuseum.org/toah/hd/pict/ho_33.43.39.htm

I misspoke. The photographer was Edward Steichen – always get those two confused.

> I think we are looking at the gray area between copyrightable
> works and uncopyrightable collections of facts.

Yes. More to my thesis (and to what you have pointed out repeatedly), “copyright” doesn’t have to be a single mechanism. Astronomers would be happy to use some other legal theory, if such were available that were fine-tuned to the public and private requirements of data incidental to scientific research. I suspect the astronomical community is not alone in relying on the “proprietary period” paradigm, for instance.

(Not to mention things like medical records that are neither copyrightable, nor should be allowed to lightly flow into the hands of the public without overriding concerns.)

Or to put it another way, “public domain” itself has a gray area.

> Copyright law in the US does not apply to a collection of facts.
> Copyright only applies to the details of expression of a work, details
> that they author chose. So I would expect that copyright does not
> apply to astronomical photographs.

======================================================================
> A specific exposure with an astronomical camera represents a
> unique snapshot of the universe by a particular observer at a
> particular epoch from a particular point of view with particular
> hardware and observing conditions.

Perhaps a court would call those creative choices of details of
expression, but if the choice was made based on technical or
scientific motives rather than esthetic ones, I think the “merger
doctrine” might apply. The merger doctrine says that when the details
of a work are determined or fixed by its practical use, they don’t
make the work copyrightable.

I am not a lawyer, and I won’t claim to be certain.

> Also, there are facts conveyed or implied by artistic photography.
> Albert Boime’s “Starry Night – A History of Matter, A Matter of
> History” CD-ROM from the late, lamented Voyager Company, presented
> a wonderful argument that Van Gogh’s painting represented the
> stars from a specific location on a specific night.

The relevant question is not “Does this work portray any facts?” but
“Does this work contain anything BUT facts?” Van Gogh’s painting may
portray some facts, but clearly it is full of artistic details that
were chosen by the painter. Thus, it is certainly copyrightable
material (though I’d expect it is in the public domain by now).

> Contrarily, the facts embedded in scientific imaging data require
> a concerted effort to unearth, and the same images used for
> astronomical research are used to create artistic illustrations of
> the heavens for the public.

That is true, but I am not sure it is relevant.

> Stieglitz’s Flatiron Building is not the same as mine.

I have seen the Flatiron Building, but I do not know what you
are referring to.

> It would
> be perverse to assert that a photograph of a building belonging to
> somebody else is copyrightable, while photographs of planets,
> stars and galaxies – photographs devoid of any possible
> conflicting ownership claims – are not.

In just about every legal distinction there is a gray area. I think
we are looking at the gray area between copyrightable works and
uncopyrightable collections of facts. I do not know where courts
draw the line here. Perhaps based on the merger doctrine.

I have read that essay, twice now. I disagree with its fundamental assumptions. But this is probably not the forum to debate those disagreements.

It does seem clear to me me that you wish to change the contract quite a bit, without regard for other authors wishes in the matter. And that you take a rather evasive approach to saying so.

To all: thanks for the discussion. tytso: thanks for hosting it.

I don’t advocate the total elimination of copyright on works of art
and entertainmemt, nor on works that state people’s experiences or or
thoughts. However, everyone must have the freedom to noncommercially
copy and redistribute any published work, because sharing is the basis
of community and must be defended.

See http://www.gnu.org/philosophy/misinterpreting-copyright.html,
which I referred to before.

> Copyright law in the US does not apply to a collection of facts.
> Copyright only applies to the details of expression of a work, details
> that they author chose. So I would expect that copyright does not
> apply to astronomical photographs.

This would be an entertaining position to take to the Director I’ll not be the one inviting the company lawyer to the meeting.

A specific exposure with an astronomical camera represents a unique snapshot of the universe by a particular observer at a particular epoch from a particular point of view with particular hardware and observing conditions. This is not different from photography (digital or otherwise) for other purposes. There are at least as many degrees of freedom configuring a camera at a telescope as there are in setting up an exposure for a Hasselblad.

Also, there are facts conveyed or implied by artistic photography. Albert Boime’s “Starry Night – A History of Matter, A Matter of History” CD-ROM from the late, lamented Voyager Company, presented a wonderful argument that Van Gogh’s painting represented the stars from a specific location on a specific night.

Contrarily, the facts embedded in scientific imaging data require a concerted effort to unearth, and the same images used for astronomical research are used to create artistic illustrations of the heavens for the public.

Stieglitz’s “Flatiron Building” is not the same as mine. It would be perverse to assert that a photograph of a building belonging to somebody else is copyrightable, while photographs of planets, stars and galaxies – photographs devoid of any possible conflicting ownership claims – are not.

> Copyright fits the term “data rights”, but it takes a stretch to make
> trademark law fit it, and patent law does not fit it at all.

This conversation is surreal and doesn’t seem particularly more productive for my willingness to forgo using the term “IP”. As I’ve tried to imply in several different responses, I would be happy to use any term you want to suggest, no matter how elliptical. What is controversial about subclassing? Often the parent class is quite generic.

As I’ve indicated, my professional interest lies with scientific data, but consider a commercial use case. An individual or corporation team designs a brand new concept for some dohickey. Perhaps it’s pure hardware, perhaps it’s pure software, or more likely these days the dohickey has elements of both. They want to patent it. They want to trademark a name to sell it under. They want to copyright associated documentation, at least partially to assure that the devise is used properly.

Perhaps this is some lifesaving medical breakthrough. It is widely deemed to society’s benefit to provide some appropriate level of special protection for the enterprise over some appropriate period of time. So, the individual visits a lawyer with expertise in the three areas of copyright, patent and trademark law (because these three often go hand-in-hand as with this enterprise – there is your “simple pattern”). You are asserting that it is confusing to refer to that lawyer as an “intellectual property” lawyer. It appears you have three reasons for this:

1) calling it “property” presumes a model of ethics, politics and economics that you (and more-or-less, lots of software professionals) don’t share

2) calling it “intellectual” (or various other words) limits the range of “stuff” (as with your comments about patents not being about data)

3) the belief that if copyright, patent, and trademark issues ever have to be discussed in the same sentence, paragraph or document, that they should always be referred to separately

It seems to me that it is #3 that causes the obvious friction observed in this thread. All a programmer is ever going to want to do is to fit their world view into a hierarchical model of everything. Somewhere between a completely general class called “stuff” and a specific class called “stuff_suitable_for_copyright_protection” sits other levels in the hierarchy. What might other names for those levels be? What might a lawyer have painted on her shingle more specific than “lawyer” and more general than “patent lawyer” if they also (as seems quite likely) handle copyright cases?

Many terms of art in the modern world have obscure and left-handed etymologies. In the sciences, things are often named by what they aren’t. A quasi-stellar-object is nothing like a star. Genes are named by what they break. There is nothing special about the poor fit of the phrase “intellectual property” to the purpose. Personally, I would think a strategy of focusing aggressively on the non-inherent-property rights aspect would pay off more dramatically than what amounts to grammatical criticism.

At the very least, suggest an alternate term of art for the entire class of such term-limited social compacts; a class that might well be extended far beyond the gang of three mentioned so far. If no new language is permitted to be developed to accompany creative new social/economic paradigms, then what is going to be left available are precisely the terms you reject so strongly. The will to name things (or their appropriate or inappropriate combinations) is stronger than the will to deny others this possibility.

“Intellectual property” is misleading? Fine. Suggest a broader or narrower or perhaps disjoint parent class(es) to copyright, patent, and trademark – and parent to all those other nameless and formless constructs, perhaps much better adapted to 3rd millennial needs, that are growing like blind fish in a cave.

======================================================================
Copyright law in the US does not apply to a collection of facts.
Copyright only applies to the details of expression of a work, details
that they author chose. So I would expect that copyright does not
apply to astronomical photographs.

Thus, your lab’s policy about distribution of the photos is probably not
related to copyright law.

However, IANAL; you need to ask a lawyer if you want to be sure.

The idea that all of these laws are “data rights” is another instance
of the way “intellectual property” leads people to misunderstand.
Copyright fits the term “data rights”, but it takes a stretch to make
trademark law fit it, and patent law does not fit it at all. The
monopoly in a patent is not about any particular data.

(Conversely, many countries have laws about protecting confidentiality
of personal data. This is certainly a kind of “data right”, but these
laws are not called “intellectual property”.)

Hearing other people use the term “intellectual property” for certain
laws leads us to suppose that the reality of these laws fits the term.
But it doesn’t. Rejecting the term helps us reject these
preconceptions and see the facts of these laws — which do not fit any
simple pattern.