Andrew Knight, a US novelist and a patent agent, was the first to apply for a patent on the unique plot of his novel. Although the US patent office rejected Knight’s application, the author intends to appeal to the Federal Circuit.
Knight espouses that patent protection is crucial because copyrights are not enough to keep away others from stealing his intricate storyline and free-riding on the ‘rewards of his best work’. In general, copyright law protects expressions of ideas but not the ideas themselves. In this respect, while the material fixation of a novel is clearly protected, its underlining story may not be. Thus, Knight argues that authors need a robust guard against those who try to steal ‘their thunder’.
Authors will not be the only ones who benefit from such a patent. According to Knight, other winners include small media companies who are able to obtain few but unique storyline patents. This will allow them to better compete in the market and ‘garner a larger slice of the pie by offering enforceable licenses to the media giants’. This argument, however, is not cogent. It rests on the assumption that small media companies can afford to invest in a patent of a storyline. In my opinion, this is not the case for several reasons.
Firstly, getting a patent is an expensive process, which individual authors and small entities may not be able to afford. In the US, a relatively simple invention, such as a paper clip, costs between $4,000 and $6,000 to be patented, while a highly complex invention could top $15,000. Furthermore, the process takes between 18 months and a couple of years. Very few small companies can wait that long before they start realizing any profits on a patent investment. Thus, contrary to Knight’s conclusion, a patent on a storyline might only be beneficial to big players in the industry.
More importantly, patenting a storyline could deny important user rights under the Canadian and US Copyright Acts. For example, the Canadian Copyright Act allows a user to utilize a copyrighted work if it is done for the purpose of private research or study, review or criticism, news reporting or education. Such is not the case for patents. If a storyline is patented, then the owner has a full monopoly on it. Any use of the storyline could be done only through a license or by obtaining the consent of the owner. In this respect, it would be very hard for a user to review or newsreport on a given book without reproducing the underlying storyline. Thus if a protection on a storyline is to be allowed, it should be done through copyright and not patents.
The real issue may therefore be, what can be done to improve our copyright system to ensure that authors are better rewarded and protected, while users and investor concerns are also met.