by Diva Chanchani
It has been estimated that there are 7099 distinct languages in the world today. Seven thousand and ninety-nine. If we decide to count the number of languages that we individually have heard of, we might reach 70; the smarter ones might even reach a hundred, but 7099 is a number that most of us would not have thought of. Who do you think owns these languages? Do languages even have an owner? What does copyright law say in this regard? And what about the protection of indigenous languages to preserve cultural heritage?
Can languages be copyrighted?
Under present copyright law, the short answer is no. There are various reasons that can be attributed to it.
Languages are fact; fact cannot be copyrighted, therefore languages cannot be copyrighted. Seems like a logical conclusion, doesn’t it? Imagine if fact did have copyright protection — newspapers would have nothing to print, science would not be able to move forward, and the world would come to a standstill. Copyright law does not protect facts, but it does protect the expression of facts. Dictionaries can be copyrighted, but grammar and syntax cannot.
Language and grammar deal with ideas that can be expressed in a fairly limited number of ways. This does not come under the protection of copyright law due to the doctrine of mergers, according to which ideas that can only be expressed in a limited number of ways cannot be protected.
Languages are dynamic bodies undergoing constant and inevitable change, taking a life of their own through the ongoing contributions of countless authors, over a large number of years. It is impossible to attribute or assert ownership of a language to anyone in particular.
Interestingly, this debate on the copyrightability of a languages became a topic of discussion only with the recent growth of constructed languages, mostly occurring in the sci-fi world.
What are constructed languages?
A constructed language (conlang) is a language whose grammar, vocabulary and phonology have been developed for human or human-like communication instead of originating organically over many centuries like a standard human language. A conlang usually comes into existence for a clearly defined purpose.
Although extensive use of skill and creativity has gone into refining the languages of today, for the most part, the original authors are long dead and buried making it close to impossible to attribute the effort of a single individual in creating any language now in common use. But conlangs have identifiable creators. Does this mean that they can be copyrighted?
Marc Okrand, a professional linguist, was hired by the producers of Star Trek III: The Search for Spock to create a tough-sounding language suitable for the warrior characters of the film, and Klingon was born. Klingon is an unnatural language, its phonological inventory juxtaposing sounds that do not normally occur together. It uses a highly unusual object-verb-subject sentence structure, which occurs in only six of the thousands of other known languages.
The first Klingon dictionary, published in 1985, was meant to be a novelty item, but went on to sell over 2,50,000 copies, becoming a key feature of the Star Trek franchise. Okrand has published two subsequent books on the language and continues to remain a binding authority on Klingon. However, overpowering him is Paramount Pictures, the producers, who own the copyright to all his books on the language, as well as the trademarks of ‘Star Trek’ and ‘Klingon’. Okrand himself does not assert his ownership rights over the language — the producers claim they are the owners. In as recently as 2015, the copyright over Klingon became an issue when a fan-funded and fan-formed production company Axanar Productions made a film on the prequel to the Star Trek series. Paramount Pictures filed a case for copyright infringement. Like most high-profile lawsuits, this too was resolved in an out-of-court settlement.
Like Klingon, there are numerous other conlangs in the sci-fi world like J R R Tolkien’s fictional languages of Quenya, Sindarin and Taliska, all protected by copyrights held by the Tolkien Estate. These Elvish languages qualify for copyright protection in most jurisdictions of the world.
Although both these conlangs are recent creations, they are languages nonetheless, and awarding copyright to an entire constructed language would not serve to incentivize language creation, nor do the author’s moral rights justify control over an entire language. More importantly, copyright over a constructed language would hinder the study of semiotics and pose a challenge to its growth. Further, conlangs aren’t just from the realm of science fiction — indigenous communities have also tried to retain their copyright over their traditional languages. Let’s take the example of palawa kani.
What if it’s for the protection of cultural heritage?
In 2012, the Tasmanian Aboriginal Community (TAC) requested Wikipedia to remove the search page on palawa kani, a conlang that resembles the extinct languages once spoken by Aboriginal Tasmanians (Palawa), as they owned the rights to the language itself. Wikipedia rejected this request as this could curb free speech and negatively impact research, education and public discourse. This is a convincing reason on the face of it, but things get interesting on further consideration.
Palawa kani is neither an organically developed language nor a completely invented one. It is part of a project to reconstruct up to a dozen extinct Tasmanian indigenous languages. Under the TAC policy of language usage, the language shouldn’t be available to the general public until the aborigines themselves are competent with it. It also asks those from outside the community to submit an official request if they want to use the language for any reason. The TAC didn’t make their removal request under any copyright law — the appeal came under the UN Declaration on the Rights of Indigenous Peoples, which says it allows control over how the language is used.
Intellectual property rights of indigenous communities are often exploited (in the literal sense), for example, with respect to indigenous medical knowledge to create and patent drugs, without informing the community from which it is taken. When these issues are then brought into public discourse, it is often under international treaties that have no tangible impact in domestic courts. However, for these indigenous groups, copyright law is actually a means to protect and preserve their traditions of culture, and to prevent outsiders from trivializing or copying them. Garnering control over their language, religious ceremonies and art is a way for them to establish boundaries and stay relevant in the world.
In 2001, Lego (makers of the toys we all love and curse when we step on) was criticized by the Maori community of New Zealand for taking meaningful Polynesian names and using them for their toys. An out-of-court settlement was reached (as often happens in high-profile cases) where the most offensive words from future toys were removed and a code of conduct on the usage of this language was reached.
Where do we draw the line?
The line between the protection of cultural heritage and copyright infringement is very thin, and is most effective when drawn on a case-by-case basis. The cultural heritage of a community is its identity, and protecting it is something that is meaningful and important to the community. But when cultural practices like language come under the fair use / fair dealing exemption to copyright, does this interfere with the community’s right to protect their own cultural heritage?
Answering this question is controversial, as we are then drawing boundaries around things which should be limitless. At the end of the day it is culture that is both important to the community and to the world — a dynamic entity whose significance should not be belittled when subject to copyright law.