A Critical Assessment of the Subconscious Copying Doctrine

Bilinçaltı Kopyalama Doktrininin Eleştirel Bir Değerlendirmesi

Esra ÜNAL YEŞİLYURT

The notion of subconscious copying has generated a great deal of discussion and controversy within copyright law. The concept of subconscious copying is evaluated critically in this article, which also explores the key arguments for and against it. Subconscious copying is based on the premise that people may unintentionally produce works that are strikingly similar to works that already exist due to subconscious influences. Inconsistencies in court rulings result in variations in the doctrine’s application and interpretation across various legal systems. This article considers the standards that courts apply to assess whether subconscious copying has taken place and explores significant court judgments that have developed the idea of subconscious copying. While some courts place a strong emphasis on the availability of the original work and the degree of likeness, other courts value time distance as a crucial consideration. The article also compares the techniques taken by various legal systems, including the strict liability system in the US and the necessity of a causal connection in the UK and Canada. In conclusion, the notion of subconscious copying is still a complicated and divisive topic in copyright law. Although it makes an effort to overcome the difficulties caused by unintentional impacts on creativity, its application and justification face considerable difficulties. The article advocates for a fair strategy that takes into account the needs of both the public and intellectual property rights’ integrity.

Subconscious Copying, Copyright Law, Case Law, Creativity, Implicit Memory.

Telif hakları yasasının bilinçaltı kopyalama kavramı büyük bir tartışma ve ihtilaf yaratmıştır. Bu makalede bilinçaltı kopyalama kavramı eleştirel bir bakış açısıyla değerlendirilmekte ve bu kavramın lehinde ve aleyhindeki temel argümanlar incelenmektedir. Bu felsefe temelde, insanların bilinçaltı etkileri nedeniyle istemeden de olsa halihazırda var olan eserlere çarpıcı biçimde benzeyen eserler üretebileceği fikrine dayanmaktadır. Mahkeme kararlarındaki tutarsızlıklar, doktrinin çeşitli hukuk sistemlerinde uygulanması ve yorumlanmasındaki farklılıklardan kaynaklanmaktadır. Bu makale, mahkemelerin bilinçaltı kopyalamanın gerçekleşip gerçekleşmediğini değerlendirmek için uyguladıkları standartları vurgulamakta ve bilinçaltı kopyalama kavramını geliştiren önemli mahkeme kararlarını incelemektedir. Bazı mahkemeler original eserin mevcudiyetine ve benzerlik derecesine güçlü bir vurgu yaparken, diğer mahkemeler zaman mesafesini çok önemli bir husus olarak değerlendirmektedir. Makale ayrıca, ABD’deki katı sorumluluk sistemi ve İngiltere ve Kanada’daki nedensel bağlantı gerekliliği de dahil olmak üzere çeşitli yasal sistemler tarafından kullanılan teknikleri karşılaştırmaktadır. Sonuç olarak, bilinçaltı kopyalama kavramı telif hakları hukukunda hala karmaşık ve bölünmüş bir konudur. Yaratıcılık üzerindeki kasıtsız etkilerin neden olduğu zorlukların üstesinden gelmeye çalışsa da, uygulanması ve gerekçelendirilmesi önemli zorluklarla karşı karşıyadır. Bu makale, hem kamunun ihtiyaçlarını hem de fikri mülkiyet haklarının bütünlüğünü dikkate alan adil bir stratejiyi savunmaktadır.

Bilinçaltı Kopyalama, Telif Hukuku, İçtihat Hukuku, Yaratıcılık, Örtük Hafıza.

I. INTRODUCTION

The term “copy” is derived from the Latin word “copia” which means “abundance, plenty, multitude¹ .” Copyright is a legal term that refers to the prohibition of unauthorized copying of work. Technological improvements have made copying a lot easier worldwide, and this issue brought many questions about copyright laws. The consensus is that a work is “original” in the UK for copyright purposes and hence qualifies for copyright protection, provided it is the result of the author’s own skill and judgment.

An author acquires a set of rights similar to property rights when they produce a piece of work that is covered by copyright under the law² . An author has a right to file a copyright infringement case if the author discovers that someone has copied their work³ . In order to succeed in a case of infringement, a copyright owner must first show that the defendant intentionally or unintentionally copied from their work⁴ . A claimant must prove they are the legal copyright owners, and that the defendant has infringed ontheir work by copying. If it is not possible to show direct proof of copying, the court has to decide based on the elements of substantial similarity and reasonable access⁵ .

The concept of “substantial similarity” is a doctrinal instrument used in copyright law to establish illegal copying as a normative inquiry⁶ . Also, the defendant somehow must be able to access the original work to copy⁷ . The plaintiff may first present proof that indicates a certain course of action or may demonstrate that the work was generally made available to the public. On the other hand, the defendant always has the option to show that the work in question was created independently without the impact of the plaintiff’s work⁸ . The defendant will then be absolved of responsibility for the copyright violation. However, even if the defendant claims not to have copied knowingly, the court may declare infringement if the defendant cannot disprove the plaintiff’s claim of infringement⁹ .

Human conduct is the result of a complex web of conscious and subconscious impulses and behaviours, therefore, when creativity first emerges, humans might not be aware of what initiated the process or what factors were considered in their own works¹⁰ . This brings the question whether an author could be liable for copyright infringement if they think they created something on their own without influence, but the creation is substantially similar to another author’s previous work.

This article will discuss some of the different perspectives on subconscious copying from legal scholars, focusing mainly on how the copyright law system should work, whom the law should protect, and whether there is a need for using the subconscious copying doctrine in court decisions. Section I will explore the doctrine based on various court decisions. Section II will look into the possible justifications and reasons for the doctrine are explained. Section III will discussthe various views of those that oppose the doctrine. The article will examine cases from the common law judicial system, where the majority of cases take place, and the argument of subconscious copying is employed. The fact that the US common law judicial system handled the first case using the subconscious copying idea gives us the opportunity to compare and contrast common law systems in some other common law nations such as UK, Australia, Canada.

Overall, this article argues that the subconscious copying doctrine is difficult to justify because of limited resources, daily human interaction, implicit memory, the possible effects of decreasing the number of authors, and the inconsistency of protecting the intention for different law systems. Some suggestions regarding the legislation will be presented in the conclusion.

II. ORIGINS OF THE SUBCONSCIOUS COPYING DOCTRINE ON CASE LAW

Copyright law is related to implicit memory, which affects behaviour without the subject being aware of it. It is because someone’s subconscious copying of various creations, which is obviously related, may have an impact on them while they are creating¹¹ . The phrase “unconscious mind” is most frequently associated with Sigmund Freud and the field of psychoanalysis, but the idea existed for hundreds of years before Freud. But for Freud, the idea that memories, emotions, and other mental activities were not conscious took on a different, useful meaning¹² .

Copyright law now applies similarly to both conscious and unconscious copyingwhich leads to both forms being held accountable for copyright infringement¹³ . In legal writing, this rule is known as the subconscious copying rule/doctrine. In different countries and legal systems, the terms “unconsciously” and “subconsciously” copying are used synonymously¹⁴ . On the contrary, according to the Navara v. M. Witmark & Sons¹⁵ case, conscious copying means being aware of the original reproducing it deliberately, intentionally, and adopting it as their own.

The starting point of subconscious copying doctrine can be traced first in the Fred Fisher, Inc. v. Dillingham¹⁶ case, which dealt with two musical pieces. Judge Learned Hand ruled that because there was no other way to explain the striking similarity between the two pieces, the defendant copied subconsciously. He also mentioned that copyright infringement cannot depend on the defendant’s good faith, so there is copyright infringement¹⁷ . The court decision was based on the findings that the access to the piece was undeniable, the two items were practically identical, and there wasn’t much time between when the work was accessed and when the unauthorized content was produced. Since Fred Fisher’s case was revealed, the case has been the fundamental basis for the implementation of the doctrine for a long time¹⁸ .

There have been some case decisions that ruled the existence of subconscious or unconscious copying since the Fisher case, such as Sheldon v. Metro-Goldwyn Pictures Corp.¹⁹ case, Harold Lloyd Corp. v. Witwer²⁰ case, Twentieth Century-Fox Film Corp. v. Dieckhaus²¹ case, Whitney v. Ross Jungnickel, Inc.²² case and United Artists Corp. v. Ford Motor Co.²³ case. In these cases, the courts decided whether there was subconscious copying or not based on three elements which were the access to the original work, the degree of similarity, and the degree of temporal remoteness²⁴ . However, in some of these court cases, the lack of access to the original work and/or lack of substantial similarity resulted in a rejection of subconscious copying and thus also a rejection to the claim.

There have been other cases of subconscious copying, such as Bright Tunes Music Corp. v. Harrisongs Music, Ltd.²⁵ case, Three Boys Music Corp. v. Bolton²⁶ case, and Edwards & Deutsch Lithographing Co. v. Boorman²⁷ case²⁸ . In all these three court cases, the court determined that the copied work was exactly or highly comparable to the original, and since there was proof that the copied material had been accessed, it was still an infringement even though it was not intentional. However, Three Boys Music Corp.’s proof of “reasonable access” was significantly more circumstantial than Fred Fisher, Inc.’s and Bright Tunes Music Corp.’s proof of “reasonable access.” Also, unlike Fisher, where the unconsciously copied work appeared soon after the original, the supposedly copied work in the Three Boys Music Corp. v. Bolton case appeared twenty-five years after the original²⁹ . Likewise, on the appeal of ABKCO Music, Inc. v. Harrisongs Music, Ltd. case³⁰ , the court stated that where the likeness was so strong and access was obtained, so there is no basis for reversal due to the remoteness of that access based on the circumstances³¹ .

All these court decisions onsubconscious copying come from copyright’s strict liability approach. In other words, this approach requires imposing culpability on a second author or artist who was subconsciously copying a copyrighted work³² . In light of all of these court rulings, it is certain that defendants will be held responsible for any copies they made, whether they did so intentionally or unintentionally. Unintentional copying does not serve as a defence against a claim of copyright infringement, even if the defendant may have done so unwittingly due to unconscious processes³³ . Also, it can be understood from the Navara v. M. Witmark & Sons case that courts do not want to widen the subconscious copying area. When asked to decide if subconscious copying is a copyright tort in common law, the court decided that the intention should be felonious to be considered as a tort and giving such as a decision means extending the subconscious copying doctrine³⁴ .

In summary, courts can decide whether or not there was subconscious copying mostly based on the existence of access to the original work and the degree of similarity rather than temporal remoteness. Several other courts, though having considered the subconscious copying concept, found it unsuitable to their particular situations for a range of factors such as lacking similarities between two works or absence of access by the defendant³⁵ .

Contrary to the strict liability framework used by US courts to address subconscious copying, UK courts use a different, less stringent interpretation of the doctrine.

As stated in the Francis Day & Hunter, Ltd. v. Bron case, UK Courts aim to establish a causal connection and take the defendant’s testimony into account when deciding whether there has been a copyright infringement³⁶ . The Court of Appeal stressed that the existence of subconscious copying is a factual question that depends on the specific facts of the case. Since there is a chance that two musical compositions with similar qualities could have been separately composed, strong proof of subconscious copying is also required³⁷ . The Canadian Courts’ adoption of the subconscious copying doctrine is more similar to the UK Courts than the US Courts. Moreover, in the Drynan v. Rostad³⁸ case, the Canadian Court found the notion of subconscious copying very problematic, emphasizing that its application requires medical evidence³⁹ . Likewise, the Full Federal Court of Australia emphasized the causal connection in subconscious copying while dealing with the EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd.⁴⁰ case. According to it, copyright may be violated via unconscious copying and the intention to profit from another’s work is not required for infringement; however, the requirement of a causal link should be met⁴¹ .

It can be understood from all these court decisions that, in the doctrine, unconscious copying is an infringement after all, and it is still brought up in copyright infringement cases. Of course, mostly in these cases, defendants first claim that they created something on their own. However, if there are enough elements for infringement, such as substantial similarity, reasonable access, or causal link depending on the courts, the court may decide, or defendants argue that there might be unconscious copying. But if the liability does not change, why is subconscious copying ever a factor in copyright cases? One of the advantages of claiming subconscious copying might be that it can reduce financial damagesif someone is found responsible for violating copyright. Protecting one’s reputation and demanding respect in the event of copyright violations may be another reason to engage in subconscious copying⁴² . Up until now, the court decisions show that the damages decided by the courts against defendants have risen significantly. So, it can be argued that instead of lessening the compensation, saving their reputation may be a greater motive for the infringers because famous people will benefit and often use it. Also, in the court, we are under oath not to lie, so if the defendants say that they made it on their own, but the courts find that they copied other works, it might be interpreted as a lie. Therefore, applying the doctrine in relation to the defence is useful to mitigate reputational lose and compensation.