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Copyrighting intellectual property

By RUSHWORTH M. KIDDER / December 7, 1987



Geneva

If Louis Armstrong were to play and sing ``Send In the Clowns,'' who would get the royalties? That's the kind of hair-tearing question that Mih'aly Ficsor loves to ponder.

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That's partly because Dr. Ficsor, director of the Copyright Law Division of the 116-nation World Intellectual Property Organization (WIPO) here, is an expert on the various rights enjoyed by authors, performers, architects, choreographers, and the like. And it's partly because this multilingual Hungarian lawyer used to play trumpet in a jazz band.

The problem, of course, is that Louis Armstrong passed on in 1971. Stephen Sondheim wrote ``Send In the Clowns'' in 1973. So you can't have a recording of Armstrong singing it, right?

Not quite. This, after all, is the age of technology. And modern technologies are raising intellectual-property questions not even imagined when WIPO, now a specialized agency in the United Nations system of organizations, was founded in 1967.

Take, for example, digital sampling - a new technique that has already become old hat for composers. First, an instrumentalist - a trumpeter, say - records a few tones. Then those tones, sliced electronically into thin bits of sound, are put into a keyboard-operated synthesizer. When the composer wants trumpet notes - soft or loud, staccato or legato - the machine assembles them out of the slices.

So should the original trumpeter get royalties from the composer? Can single notes, in other words, be copyrighted?

Questions like that drive Ficsor back to the first principles of copyright law. Composers, he observes, typically have rights of adaptation, giving them control over modifications to their works. Performers typically don't have such rights.

So was the trumpeter a composer who was adapted? ``It's not an adaptation,'' muses Ficsor, noting that there is ``no work which was adapted.'' Neither is it a performance, since no work was performed. ``Copyright,'' notes Ficsor, citing a crucial distinction, `` doesn't protect ideas or information or methods, but the concrete expression of these ideas. It protects works and not words. And not a tone.''

But what if the tone has its own unique character - a kind of Miles Davis tentativeness, say, or the breathy fuzz of Paul Desmond's sax? Ficsor notes that ``some personality rights may be involved'' - akin to your right to refuse to have your photograph reproduced. ``But of course,'' he adds with a chuckle, ``a trumpet doesn't have a personality.''

But Louis Armstrong does. And new sampling technology, notes Ficsor, is capable of handling his highly personal voice just as it does a tone - slicing it up and repackaging the sounds into whatever words you want. So what if Satchmo never sang Sondheim? He can now. And when he does, someone needs to figure out who has what rights. So far, says Ficsor, ``it hasn't been tested: I do not know any court case about that.''

And this is just one of the tricky intellectual-property issues brought on by advancing technologies:

Digital audio tape (DAT) equipment, already available in Japan and scheduled to be introduced in the United States next year, produces tapes of extraordinary fidelity. Unlike compact discs, however, they can easily be copied at home. Already musicians are lining up against DAT, saying that home copying will undercut sales of their originals.

As manufacturing processes grow more sophisticated, so do the possibilities for counterfeiting. The design for your Rolex watch came from Switzerland. But is it really a Rolex, or the product of a third-world bootlegger's basement?

Now that data bases can carry video material - the entire contents of an art museum, say, available in near-perfect color - what rights will the artists have in the reproduction of their works?

When a new plant or animal is genetically engineered, who holds the rights to the design?

All these issues are linked by a common thread: Our changing sense of the term ``property.'' It used to be thought of as something you could lay your hands on. Now, under the pressure of new technologies, it's becoming something to wrap your mind around.

If the items on WIPO's agenda are any indication, humanity seems to be moving into a new era. We once labored to protect the transitory, material stuff we called our own. Increasingly, however, we're recognizing the need to protect the mental concepts - the permanent, changeless, but highly portable constructs - that underlie all that stuff.

In an age so often accused of excessive materialism, that just may be a healthy trend.

A Monday column