A PHOSITA for Copyright

Over at The Fire of Genius, Joe Miller has a series of posts, inspired by the briefs in KSR International v. Teleflex, on the practical meaning of patent law’s PHOSITA standard: “What does the POSITA invent?” Part I, Part II, Part III, and Part IV. The essential thrust of the whole argument is that the Federal Circuit’s “suggestion” understates the extent to which a skilled artisan knows how to manipulate the tools of a given field to combine, recombine, and reconfigure existing technologies. But read the whole thing. And can someone please settle, once and for all, whether the proper phrase and acronym is PHOSITA (Person Having Ordinary Skill in the Art) or POSITA (Person of Ordinary Skill in the Art)?

As all IP lawyers (and many non-IP lawyers) know, copyright has no equivalent to the PHOSITA or POSITA. A copyright emerges automatically when a “work” is “minimally” creative, in the language of Feist. So it’s not just that copyright has no nonobviousness requirement; it has what might be called a “subobviousness” limit: a work is copyrightable, no matter how pedestrian it may be, so long as it is “creatively” distinct from the works on which it is based (and so long as the author is the source of the distinction). Such a minimalist standard has a certain democratic appeal, but Jessica Litman and many others persuasively argue that its expansiveness causes no end of trouble in the real world.

More after the jump.

One of the major rationales for the copyright approach is a combination of adminstrability concerns and the “non-discrimination” postulate, which is sometimes linked to the First Amendment. In sum, these arguments hold that courts neither can nor should be in the business of validating “good” art with copyrights. Fred Yen, Christine Farley, and others have written about the inevitability of artistic judgments in copyright, but Diane Zimmerman is, I think, one of the few scholars recently to have gone so far as to suggest that some species of artistic discrimination in copyright might actually be both a manageable and a good thing. Joe Miller’s posts inspire me to think about how copyright might go about that task — that is, in some contexts, by creating a copyright PHOSITA, the law might manage to put some useful and usable limits on the expanding universe of copyrightability. (Nothing in Feist, as I read it, prevents Congress from legislating a threshold of copyrightability that is *higher* than “minimal creativity. Which is not to say that the notion would have an easy time of it.) I can’t help but think that what Wynton Marsalis has to say is relevant here. Thanks, Joe: You’ve got me thinking.