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Copyrighting intellectual property

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If Louis Armstrong were to play and sing ``Send In the Clowns,'' who would get the royalties? That's the kind of hair-tearing question that Mih'aly Ficsor loves to ponder.

That's partly because Dr. Ficsor, director of the Copyright Law Division of the 116-nation World Intellectual Property Organization (WIPO) here, is an expert on the various rights enjoyed by authors, performers, architects, choreographers, and the like. And it's partly because this multilingual Hungarian lawyer used to play trumpet in a jazz band.

The problem, of course, is that Louis Armstrong passed on in 1971. Stephen Sondheim wrote ``Send In the Clowns'' in 1973. So you can't have a recording of Armstrong singing it, right?

Not quite. This, after all, is the age of technology. And modern technologies are raising intellectual-property questions not even imagined when WIPO, now a specialized agency in the United Nations system of organizations, was founded in 1967.

Take, for example, digital sampling - a new technique that has already become old hat for composers. First, an instrumentalist - a trumpeter, say - records a few tones. Then those tones, sliced electronically into thin bits of sound, are put into a keyboard-operated synthesizer. When the composer wants trumpet notes - soft or loud, staccato or legato - the machine assembles them out of the slices.

So should the original trumpeter get royalties from the composer? Can single notes, in other words, be copyrighted?

Questions like that drive Ficsor back to the first principles of copyright law. Composers, he observes, typically have rights of adaptation, giving them control over modifications to their works. Performers typically don't have such rights.

So was the trumpeter a composer who was adapted? ``It's not an adaptation,'' muses Ficsor, noting that there is ``no work which was adapted.'' Neither is it a performance, since no work was performed. ``Copyright,'' notes Ficsor, citing a crucial distinction, `` doesn't protect ideas or information or methods, but the concrete expression of these ideas. It protects works and not words. And not a tone.''

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