From IPKat:
Is there copyright in the totality of the solutions to clues that a person writes on a crossword grid when he's solving a crossword puzzle (i) correctly and (ii) incorrectly -- and why?
The riddle doesn't specify which country's copyright law should apply, so I start out with the Berne Convention, Article 2, Paragraph 1:
1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
Crossword puzzles might qualify as "books, pamphlets and other writings". The fact that they are interlaced in two dimensions does not remove their quality as "production in the literary domain". If anything, it rather enhances the amount of effort needed to write them, as compared with a simple list of clues and answers that might be included in a reference book for preparing for some university admission test.
On the other hand, Paragraph 8 of Article 2 states:
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
That is a problem when looking at a single set of clue and answer typically found in crossword puzzles, since they often just ask for "miscellaneous facts". However, the question is not about the protection of a single such set, but rather about the "totality of the solutions". So the exception in Paragraph 8 would not seem to stop copyright protection for crossword puzzle solutions.
Now lets turn to the two cases in the question.
The first case is that a person writes the correct answer on the grid. In that case, there does not seem to be any room for an affirmative answer. Where is the creative work?
It would be premature, however, to conclude that there is no copyright protection in that case. There is. The author of the puzzle has copyright on the totality of clues and on the totality of answers in the first place. That copyright is not removed by the act of someone filling in the grid. And the question was not if the person filling in acquired a copyright, but if there is any copyright at all.
Now to the second case, that of the wrong answer.
In that case one could discuss a copyright of the person who thought of the wrong answer and filled it in.
Assume for a moment that one might recognize that kind of copyright. If people call for copyright protection on a rifle design, clearly there are extremists out there who would have no doubt whatsoever that wrong answers deserve copyright protection.
That wrong answer however would seem to be a derivative work based on the original crossword puzzle. So the author of the wrong answer would seem to need some kind of license from the author of the crossword puzzle, for example a Creative Commons license. See Article 12 of the Berne Convention:
Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.
Assuming the original author has authorized the adaptation of writing a wrong answer, several questions remain.
The obvious question is if wrong answers deserve any copyright protection in the first place.
The copyright system gives authors a monopoly right to compensate them for the effort they have put into creating the work. What kind of effort is needed to write a wrong answer?
Actually, that might be quite a lot of effort, under one condition. That is, that the "wrong" answer still fits the original clue and the original grid. Under that condition, it is actually more difficult to come up with a "totality of wrong answers" than to just find the "correct" solution. I assume that this is close to impossible for just about any crossword puzzle, just as it is just about impossible to come up with more than one valid decryption for any random encrypted text longer than the unicity distance.
Therefore, to motivate people to invest a lot of time and energy in coming up with wrong answers, we might need copyright protection for them.
On the other hand, anyone engaging in that kind of activity is probably not motivated by profit anyway.
And the other question is how exactly infringements on the copyright on wrong answers are supposed to be dealt with in court. There is no market for wrong crossword puzzle answers, at least no market I am aware of. So any infringement would generate no profit making it worth talking to a lawyer and paying $500 for the act of saying hello.
That in turn means that even if we follow the extremist position that there is a copyright in wrong answers, that copyright won't have much of any practical relevance.
Posted by Karl-Friedrich Lenz at February 13, 2004 02:49 PM | TrackBackehi! Luca here, your remark concerning the existence of copyright in the work of the original inventor of the grid is appropriate, I omitted to stress that because the riddle came after monday's lecture in which the question of initial copyright of the crosswords was settled.However I do not think that to argue the existence of copyright in the wrong answers is extremist. It's a possible solution to an extreme example.
ciao !
LUCa lc03338@qmul.ac.uk
I would tend to agree with you in the case of a "wrong" answer that fits the grid and the clue. That might be impossible for the "totality of answers". I don't think that anyone can come up with alternative fitting answers for every clue in a crossword puzzle of average size. But it should be possible for single clues, and that might involve some creative effort worth recognizing under copyright law.
If the original author comes up with a crossword puzzle that has two sets of answers (that should be rather difficult), both sets of answers would deserve copyright protection.
If on the other hand someone just writes a random wrong answer that fits neither the clue nor the grid, there seems to be no creative effort involved.
Posted by: Karl-Friedrich Lenz on February 14, 2004 06:18 PM