Innovation demands a far-sighted view of copyright

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Because all discovery and creative work is derivative, claims to originality usually rest on narrow technical grounds. The exact form, rather than the substantive content, of the invention, the program, the lyric or the plot matters.

“If I have seen further, it is by standing on the shoulders of giants.” With this aphorism, Isaac Newton, the greatest scientist of his and perhaps any generation, described the process of creation and innovation. All discoveries make use of discoveries that have gone before and provide the basis of those that will follow, as with Newton’s discoveries: calculus, the nature of light and the laws of gravity.

Popular histories of science and culture attribute development to heroic individuals, but innovations – from the theory of gravitation to the pop music of the 1960s – depend more on emergent knowledge than particular people. Between 1660 and 1690, calculus was a discovery waiting to be made. Two scholars – Newton in Cambridge, Gottfried Leibniz in Paris – working largely independently, saw further than their contemporaries. But to do so, they stood on the shoulders of the giants who preceded them.

Television was about to be invented in 1920 as calculus was about to be invented in 1660. I was taught that the first to see further was John Logie Baird. Baird displayed flickering images on a screen in Selfridges, a London department store, but his device did not work very well and successful innovators climbed on other shoulders.

The truth that innovators stand on the shoulders of giants is illustrated by the history of the aphorism itself. Newton did not originate the thought or its expression. History attributes the words to him, not because he was the first person to say it, but because he was the most famous to say it.

The American sociologist, Robert Merton, devoted a 250-page book to the origins of those 14 words. Merton traces the observation to the Latin scholar, Didacus Stella, 15 centuries earlier. But although Didacus used almost identical words – pygmies on the shoulders of giants – his meaning is altogether different.

A stronger claim to priority can be given to Bernard of Chartres, who not only said more or less what Newton said, but illustrated the aphorism in the great stained glass windows of Chartres cathedral, where Matthew, John, Mark and Luke stand on the shoulders of Isaiah, Ezekiel, Daniel and Jeremiah.

If copyright existed on the phrase “on the shoulders of giants”, it is not at all clear to whom a court would award it. Because all discovery and creative work is derivative, claims to originality usually rest on narrow technical grounds. The exact form, rather than the substantive content, of the invention, the programme, the lyric or the plot matters. Windows is protected, the concept of a graphical user interface is not.

In any area where the law is complex and uncertain, public policy favours the well resourced. Newton’s power and fame meant history gave him priority, not only for the phrase “on the shoulders of giants”, but for the invention of calculus. Newton’s claim was determined by a committee of the Royal Society, Britain’s national academy of sciences, but Newton was not only president of the society but the anonymous author of part of the report.

In the invention of television, also, the big battalions would triumph. The US courts eventually upheld the patents of Philo T. Farnsworth, an Ohio entrepreneur. It benefited Farnsworth little. His finances had been wrecked by litigation with the Radio Corporation of America, whose then-chief executive proclaimed that “we don’t pay royalties, we receive them”. Farnsworth sold his rights to RCA for a nominal sum.

If men of genius such as Newton stand on the shoulders of giants, how much more limited are the claims to originality of the promoters of pop artists, the publishers of pulp fiction and the designers of car doors and toner cartridges. Historically, intellectual property has played only a minor role in the promotion of scientific innovation or creative effort. As Andrew Gowers, former editor of the FT, prepares his final report on intellectual property in Britain, the task of intellectual property reform is to strike a balance between the interests of giants and the interests of the new generation of giants who stand on their shoulders.

John Kay was chairman of a British Academy review of the use of copyright material in scholarly publications.

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