Contentious Construction

Abstract

Language can serve various purposes. For some, it is merely the way humans communicate with each other. For others, it is a set of rules on how to arrange words to permit communication. And for a select few, the creation of new languages is an expressive activity through which ideas about language, both human and computer, are conveyed.

While U.S. copyright protection “subsists . . . in original works of authorship fixed in any tangible medium of expression,” academics have debated whether constructed languages in general—languages that are invented or intentionally devised—and computer languages in particular fit naturally into the copyright system. On the one hand, commentators recognize that “[t]he involvement of a creator with her constructed language does not end when the first book or article describing the language is published.” Instead, the creator is interested in how the language is distributed and developed by subsequent users. In other words, she (like any author) intuitively possesses a sense of ownership over the work that she has created.

On the other hand, not all effort in creating a new work is entitled to copyright protection. Some commentators have argued that languages, even if they are original and creative, should not receive copyright protection because language is akin to an unprotectable idea that is free for anyone to use. This debate has raged particularly large in considering the copyrightability of computer languages, which some in the academic community believe should be per se uncopyrightable or as minimally protected as possible.

Despite this academic debate, until recently, the U.S. courts had not had the opportunity to consider the issue. That changed when two cases began making their way through the U.S. court system.

SAS Institute Inc. v. World Programming Ltd. concerns the SAS System, “an integrated suite of business software products” that allow users to “access, manage, and analyze data by writing programs in a programming language” called “SAS Language,” and World Programming’s competing system that, among other components, copied the SAS Language.

In contrast to the software issues raised in SAS, Paramount Pictures Corp. v. Axanar Productions, Inc. concerned the creation of a short film titled Star Trek: Prelude to Axanar and a feature film titled Axanar, which are “set in the Star Trek universe twenty-one years before The Original Series.” Paramount alleged that Axanar copied several elements from Paramount’s Star Trek works, including the Klingon language.

This article addresses the debate through a fresh lens in light of recent judicial opinions. Without staking out a position, it summarizes the differing views on critical questions of copyright law related to constructed languages: First, whether constructed languages qualify as “original works of authorship” under the Copyright Act. Second, whether such works would be sufficiently fixed to warrant copyright protection. Third, whether constructed languages are ideas or expression. And finally, how constructed languages might be infringed and whether unauthorized use of a constructed language would constitute fair use.

Keywords: copyright, fair use, software, language, fixation, copyrightability, infringement