From: David Dailey <david.dailey@sru.edu>
To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
Subject: [CNI-(C)]  copyright on house plants?
Date: 29 Jun 2005 21:10:33.0025 (UTC)
 
I visited a nursery last week. A pretty little plant labeled "fuchsia" had a curious label on it: "unauthorized propagation prohibited." Hmmm... I find IP law sort of like a mad wonderland anyhow: logic just enough askew to remind one of Borges, Fellini, or Escher -- I think it is like that for most of us outsiders.
 
So, I just had to ask. I asked the clerk who became visibly befuddled with an expression I dared not photograph or otherwise propagate. We tracked down the head nurser who explained it thusly. "The plant is copyrighted." My own facial expression apparently encouraged him to continue: "Officials come to inspect the nursery from time to time to make sure all of our plants are licensed."
 
"What sort of officials?" and "what if I buy the plant and it goes to seed" and "who trains these officials" and "do you really mean 'copyright' or might you mean 'patent', instead?" and dozens of other questions came to mind. I have learned not to ask the "do you really mean copyright or might you mean patent (or trademark) instead" question in polite company -- it sends many people into a trance and seems to anger the others.
 
But I did ask the "what sort of officials" question. I was imagining an SIAA or an ASCAP or RIAA for plants. They would train armies of botanists. The botanists armed with portable DNA labs would tour the country in airstream trailers together with an entourage of attorneys, federal agents and shotgun judges stopping at each nursery,  and yucking it up after each successful bust. Or perhaps there is a whole branch of the government cloned from some secret branch of the OSS that polices our nation's fuchsia. The nurser explained it was more like ASCAP-- they would come in (plainclothes), look at all the plants, and if they see any that need to be licensed, then ask the nurser to produce evidence of licensure.
 
And I did ask "what if I buy one and it goes to seed?" His answer: "that's not a problem since if it grows from seed, then it is a different plant. It is just clippings and so forth they worry about."
 
A wee bit of digging on the net tells me it is really neither copyright nor patent but plant law. Chapter 57 of Title 7 specifically deals with the 1970 Plant Variety Protection Act which provides legal intellectual property rights protection, to developers of new varieties of plants that are sexually reproduced.  The 1994 amendment to the act prohibits the sale of all farmer-saved seed without the permission of the variety owner.

I know that this forum is about copyright and not patents or plants, but this is a category of IP law just so cool, I had to bring it up. It points to new ways of securing the rights of derivation. If the intellectual underpinnings of an idea can be traced back in some unambiguous way (like ideational DNA -- should I file a patent now?) then some clever legislators will probably find persuasive an argument that all derivative thought should be licensed.

 
David Dailey

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