permaculture

[Toby Hemenway <hemenway@jeffnet.org>]

Hi all:

Although trademark and copyright not identical, I think it's time for me to
share my copyright horror story with the list, as it may give some insight
as to what is going on with Bill and Lisa Mollison and their recent efforts
to privatize permaculture. Pardon the length of this.

Last October, I had my publisher send Bill a copy of my book manuscript, and
asked him if he would consider writing a foreword for it. We received from
Bill a letter saying that I had used a lot of material from Bill's
publications, I didn't adequately acknowledge him, he would not endorse
plagiarism, and I must omit all material derived from his work. He listed
many pages in the Design Manual where, he claimed, I had used his work.
Needless to say, I was flabbergasted.

I couldn't figure out where I was in copyright violation. Copyright protects
the "work of expression" of an author--the wording or artwork they use--and
I had used my own words everywhere. Also, I had cited my debt to Bill in my
acknowledgements and listed his books in my bibliography as sources for my
work. Either of these is considered sufficient legally and ethically to
acknowledge a source, but I had also stated in the preface that few of the
ideas in the book were mine and came from permaculture and other sources,
included a 2-page sidebar describing Bill's development of permaculture, and
mentioned many times in the text that these were concepts from permaculture
or from Bill. I described all this in a letter to Bill, and said if I had
accidentally used his wording anywhere in my text, I would gladly remove or
alter it.

In reply we received a letter from Lisa demanding that I remove roughly 35
pages of my book that they claimed were infringements because they were
paraphrased versions of Bill's work, as well as some illustrations. They
claimed I was in violation of their copyright, and threatened legal action
if I did not remove all material derived from Bill's work. They said they
had prevented others from infringing in the past.

It took a couple more rounds of letters and some escalation of rhetoric (my
behavior was called "improper") for me to realize that by "material derived
from" Bill's work, they didn't mean places where I had copied his words
(because I hadn't done that) but places where I had referred to anything
mentioned in Bill's books. Lisa and Bill sent a list showing that they
wanted me to remove all reference to guilds, keyhole beds, mandala gardens,
certain aspects of patterning, herb spirals, Zone and Sector, and a host of
other concepts basic to permaculture. But US copyright law says "In no case
does copyright protection . . . extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery." You can't
copyright ideas; once you've published them, no matter how much work it took
to come up with them, anyone can write about them. Of course, it's important
to give credit, and I had done that.

My publisher was incredibly supportive, and offered to pay Bill a very
generous fee for the foreword plus a royalty from my book (an amazing thing,
considering I had written it, not Bill), with the understanding that he and
Lisa would drop any legal charges, even though we know we weren't infringing
on Bill's copyright. We just were sick of being hassled. In response we got
a demand for triple the royalty we had offered to pay, plus a renewed demand
to drop all reference to anything in Bill's books. Again, I was stunned.

At that point we said we were sorry that we couldn't find common ground, and
went ahead with publication. Lisa said we'd hear from their attorney. We
sent everything to our own attorney, who said we had nothing to fear. And
that, back in February, was the last we heard from Bill and Lisa. I don't
know for sure why they dropped it, but I assume it is because they learned
that I had in no way infringed on Bill's copyright. This was a tremendous
hassle, all completely unnecessary. If only they had read up on copyright
law before they wasted everyone's time and money.

The whole episode makes me believe that BIll and Lisa wish to control who
writes about and who teaches permaculture. Somehow I didn't meet their
criteria, and they used threats of legal action to try to prevent me from
publishing my book. I am deeply grieved that such a great man is reduced to
such actions.

A quote here from the US Supreme Court seems apt: "The primary objective of
copyright is not to reward the labor of authors, but 'to promote the
Progress of Science and useful Arts.' To this end, copyright assures authors
the right to their original expression, but encourages others to build
freely upon the ideas and information conveyed by a work. This . . . is the
means by which copyright advances the progress of science and art."

If what I take to be the Mollisons' view of copyright prevailed, no could
build on the work of anyone else. I hope their view of trademark is a great
deal more reasonable (as well as more legally correct) but I am not
optimistic about that. I am cheered by the presence of "permaculture" in the
dictionary, as that should make it impossible to trademark. Why Bill is
paradoxically wanting to exert control after 20+ years of giving it away is
a mystery, unless he is under the influence of someone else.

Toby