In the world of intellectual property, patents are based on being “novel,” while copyrights are predicated on bring “original.” Suppose I write (on this blog) a philosophy that summarizes the works of some great thinker. Further suppose I have never read that thinker’s works or been introduced (explicitly or directly, with my knowledge) to the thoughts and ideas of the thinker. Because my ideas are not new, my work cannot be called “novel.” However, because I developed it independently, it can be considered “original.” (There is some debate over whether, or to what extent, anyone can be said to develop any ideas “independently”; unsurprisingly, this debate is ignored by the law.) In the academic world, this concern translates as: Have I plagiarized?
If such a scenario as this seems far-fetched, I assure you it is not. Last month I was directed to a law review article concerning the philosophy of intellectual property. Nearly 3 years ago, I wrote my own essay on the subject, and I reached quite similar conclusions to those of the author. I was surprised, but also a little worried: if someone read both articles, they might reasonably suspect the more recent paper was influenced by the earlier paper without properly citing it (my paper was more recent by almost 2 decades). Yet I had never heard of the article or the author until years after writing the essay. In times now past, it would have been persuasive to respond that the author has a duty to research a subject before publishing. As the corpus of literature grows, it is less reasonable to expect an author to read even the majority of works on a topic prior to writing. As the number of authors skyrockets and the barriers to various sorts of publication modes (like blogs) decreases, it seems increasingly likely that ideas will overlap without the kind of prior knowledge that makes thorough research and citation possible. If this is true, do we need to re-think plagiarism? Or do we just need to be clearer as to whether academic plagiarism is a matter of novelty or originality?
What does this mean for IP in entertainment? I frequently consider and reconsider whether it’s better or worse that the plots, themes, interfaces, and other elements of videogames, movies, music, and books are not protectable by copyright. One argument in favor of such protection might be that it would encourage more creativity and diversity in entertainment if writers and producers had to come up with novel stories each time they produced a work (are we sick of “Generic-Brown-Grey-Shooter-Iron-Sight-Inspection” yet?). Of course, there is a practical problem with trying to determine the point at which one story sufficiently overlaps with another to claim it infringes.
I still think Torchlight 2 meets all of the street-level requirements to be called a rip-off of Diablo 3. The main differences are that Torchlight 2 works, is fun, and I still play it months after its release. Diablo 3 was full of problems, frustrating at every turn (in ways games shouldn’t be, with Error messages and dysfunctional game design), and I stopped after about 2-3 weeks. Perhaps the ultimate upside to the fact that a lot of would-be “IP” can’t be protected is that if your studio can do a better job with a basic idea or design, you can go for it. Therefore, the best protection for your unprotectable IP is to do such a great job with it that no one can improve on your game. It’s the opposite of preventing plagiarism in the academic world: To keep someone from copying your essay in a class, make it so bad that no one would want to sign their name on your work; to keep someone from copying your videogame (or movie, or song) idea, make it so amazingly good that no one wants to be compared to your work.
UPDATE: Critical Miss just published a comic related. If this is the generic video game IP (and it’s pretty accurate), and only one studio owned it, what would the other studios produce? (Anything at all?): http://goo.gl/ITFVL