Creative Economy: A Feasible Development Option

Box 6.2The Da Vinci Code caseA copyright infringement case was brought against the publishers of The Da Vinci Code by Michael Baigent and Richard Leigh, two of the authors of a1982 non-fiction work, The Holy Blood and The Holy Grail. According to an article in the June 2006 issue of WIPO Magazine, “At the centre of the disputewas a ‘hypothesis’ presented in The Holy Blood and The Holy Grail” according to which “references to the Grail in early manuscripts were disguisedreferences not to the chalice, but rather to holy blood or Sang real, i.e. to the bloodline of Jesus Christ, and to the belief that this bloodline … hadcontinued and merged with the French Merovingian dynasty”.6The role of intellectual property in the creative economyThe plaintiffs “claimed copyright in the literary work and alleged that Dan Brown”, author of The Da Vinci Code, “had copied the way in which they hadmade the sequence of connections of the facts of the merging of the bloodlines. Since there was little copying of the actual text of The Holy Blood andThe Holy Grail, the claim was that there had been non-literal copying of a substantial part of their literary work”.The Holy Blood and The Holy Grail “is comprised largely of historical facts which are unprotectable ideas. Baigent and Leigh based their case, therefore,on the claim that Brown had taken a substantial part of the ‘manner’ in which they had expressed those ideas, as opposed to taking the ideas themselves”.“The court held that, while the evidence was clear that Dan Brown and his primary researcher (his wife) had drawn on The Holy Blood and The Holy Grailto a greater extent than Brown had acknowledged, this did not mean that he had infringed copyright in the book. Rather, they had used The Holy Bloodand The Holy Grail, and other books, to provide general background material for the writing of The Da Vinci Code”.“The significance of the case for copyright law relates to the fact that the lawyers acting for Baigent and Leigh attempted to make – and lost – an argumentthat there can be non-literal copying of a work of literature. The non-literal argument has previously been successfully used, usually in the case ofcomputer programs or recipes or knitting patterns.”Source: Dr. Uma Suthersanen, “Copyright in the Courts: The Da Vinci Code”, WIPO Magazine, June 2006, available at:http://www.wipo.int/wipo_magazine/en/2006/03/article_0004.html. See Michael Baigent and Richard Leigh v. The Random House Group Limited Neutral CitationNumber: [2006] EWHC 719 (Ch), available at: http://www.binarylaw.co.uk/2006/04/smithy_code.htm.semination, be it from the very decision to go public to thesafekeeping of authenticity, thus addressing both economicand cultural dimensions. Moral rights are inalienable fromthe authors and cannot be transferred to third parties undercommercial contracts. 86.4.3 Related rightsMany creative works protected by copyright requiremass distribution, communication and financial investmentfor their dissemination (for example, publications, soundrecordings and films); hence, creators often sell or license thecopyrights to their works to individuals or companies bestable to market the works in return for payment. These paymentsare often made dependent on the actual use of thework and are then referred to as “royalties”. In chapter 5 andthe annex of this report, statistics related to trade of royaltiesare presented as an indication of the magnitude of thetrade flows. The market of royalties has been expandingquickly, from $83 billion in 2002 to $182 billion in 2008.However, this data covers all royalties, of which creativeindustries are just a part. As the data is not disaggregated, itis not included in the world trade of creative industries. Thisis a crucial area that requires more work in order to measureand evaluate the full contribution of the creative industriesto the world economy. WIPO is examining possibilities forimproving its data collection system, so hopefully in the nearfuture we will be able to discern a clearer picture of the earningsfrom royalties originating from the creative industries.In principle, works of the mind are created in order tobe disseminated to a wider audience. This generally cannotbe done by an author alone, since it requires financial investmentby intermediaries that have the necessary productionand reproduction infrastructure, access to retailers and distributionnetworks and professional competencies — such asmanagement, marketing and public relations — that theauthor may not possess. A play needs to be represented onstage; a song needs to be performed by artists, reproduced inthe form of CDs or broadcast by means of radio facilities.All persons who make use of literary, artistic or scientificworks in order to make them publicly accessible to othersrequire their own protection against the unauthorized use oftheir contributions in the process of communicating thework to the public. The field of rights related to copyright8 While the Bern Convention is “moral rights” friendly, the United States does not recognize it.174 CREATIVE ECONOMY REPORT 2010