The loneliness of the long-distance pundit

Phillip Adams – pundit unjustly maligned?

The longer I keep blogging, the more I empathise with Phillip Adams.   Adams is regularly assailed by assorted RWDB bloggers (notably Professor Bunyip – who seems about to make an overdue comeback to the blogosphere) for journalistic sins akin to plagiarism.   Mind you, there are more rabid anti-Adams RWDBs than the Bunyip, the  utterly loopy Gerard Jackson for one.

Adams  has been writing op-ed columns week in-week out  for nigh on 40 years, so it’s inevitable that he’ll repeat themes and exhibit fairly strong derivative tendencies.   I’m starting to repeat myself already, and I’ve only been a self-appointed pundit for just under 4 years (although I’ve averaged around 3 substantial posts a week over that period, which is rather more than Adams’ column frequency).

I thought it might be worth extracting some relevant observations on breach of copyright from the recent  English decision in Baigent v Random House (‘the Da Vinci Code Case’).   Breach of copyright is a concept distinct from plagiarism (which is an academic sin  though not a legal cause of action), but they share common elements.   Both involve the dishonest use of the literary work of another, and usually also involve passing that work off as one’s own, although  the latter  isn’t a necessary element of breach of copyright but is of the essence of plagiarism.   Nevertheless the following extracts from Ravenscroft v Herbert (reproduced in the Da Vinci Code Case) are relevant to both concepts:

Mr. Laddie, for the defendants, rightly says that an author has no copyright in his facts, nor in his ideas, but only in his original expression of such facts or ideas. He submitted that in deciding whether copying is substantial there are four principal matters to be taken into account. First, the volume of the material taken, bearing in mind that quality is more important than quantity; secondly, how much of such material is the subject-matter of copyright and how much is not; thirdly, whether there has been an animus furandi on the part of the defendant; this was treated by Page-Wood V.C. in Jarrold v. Houlston (1857) 3 K & J. 708 as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourthly, the extent to which the plaintiff’s and the defendant’s books are competing works.

Copyright protects the skill and labour employed by the plaintiff in production of his work. That skill and labour embraces not only language originated and used by the plaintiff, but also such skill and labour as he has employed in selection and compilation. The principles are clear from the cases. There is a helpful summary of the authorities in Harman Pictures N.V. v. Osborne ([1967] 1 W.L.R. 723). For my purposes it is sufficient to cite two passages from that case which are taken from earlier authority:

… another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. In determining whether an injunction should be ordered, the question, where the matter of the plaintiff’s work is not original, is how far an unfair or undue use has been made of the work? If, instead of searching into the common sources and obtaining your subject-matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangements and questions, or adopt them with a colourable variation, it is an illegitimate use.

Accordingly, if a work deals with someone else’s ideas in a different way, context and order, or applies  those ideas  to a new situation  or to the  second author’s own  life and experience, or considers them in conjunction with the ideas of one or more  additional writers, then in the absence of word-for-word copying of large slabs of text that will almost certainly not  amount either to plagiarism or breach of copyright.

Phillip Adams’s columns usually fall on the correct side of that legitimacy line, although he’s certainly crossed it on at least one occasion.

Indeed, not only is that sort of derivative creativity permissible, it is both desirable and inevitable.    Ideas don’t miraculously spring unbidden from the subconscious of  solitary individuals of genius.   Even the most earth-shattering notions (Darwinian evolution, the electric light or the telephone, Einstein’s theries of relativity) simply build new insights  onto the accumulated mass of  knowledge, wisdom and experience of two thousand years or more of western civilisation.We remember them as especially significant only because they’re rather larger incremental steps than the run-of-the-mill pace of expansion of human knowledge.

It can’t be any other way, as Wittgenstein demonstrated with his hypothesising about private languages.   Language, and indeed thought in any meaningful sense, is a product of social interaction.

The  fundamental importance of this inherently  cumulative nature of thought, discovery and creation is demonstrated by the current example of Wikipedia and its quite extraordinary level of accuracy and coverage of human knowledge.

It’s even more  meaningless to assail a media pundit for being derivative than a scientist or author of a novel.   The pundit’s very job  is to  analyse and express opinions about issues of contemporary relevance, which inevitably involves drawing ideas, issues and arguments  from existing contemporary media (including the New York Review of Books – one of Adams’ favourite sources).

The real issue is whether an op-ed pundit has drawn on another source in a dishonest, deceptive way, and passed the ideas off as his own.   Adams invariably mentions his source, which will mostly satisfy the requirements of intellectual honesty in the genre of  mainstream media punditry.    Copious footnotes just aren’t possible in a weekly newspaper opinion column.   If Phillip Adams mentions the New York Review of Books or some other journal or book in one of his columns, you can confidently assume that it is the source of a substantial part of his article.   That’s why RWDB “gotcha” bloggers like Professor Bunyip don’t have too much difficulty discovering Adams’ sources.    He’s not trying to keep them secret.  

Moreover, you  generally find that Adams has added his own insights and comparisons to the work from which his ideas are derived.   When you’ve been writing opinion columns for 40 years, that sort  of significantly derivative style is inevitable.    Equally derivative RWDB pundits like Janet Albrechtsen  can’t rely on the longevity excuse.  

No doubt this little rant won’t inhibit the  Bunyip from hopping into Adams at the first half-opportunity, now that his blogging batteries are recharged.   But fair-minded readers might want to keep these observations in mind.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Homer Paxton
Homer Paxton
15 years ago

hey ken,
I can read this font, is it the font of all wisdom?

Which is worse reading Adams or reading someone who has read Adams?

Rex
Rex
15 years ago

Isn’t that the art of all great communicators?
Tell ’em what you’re gonna tell them; Tell them; Tell ’em what you told them.