The Idea of Authorship in Copyright

Lior Zemer

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351888011
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

As information flows become increasingly ubiquitous in our post digital environment, the challenges to traditional concepts of intellectual property and the practices deriving from them are immense. The romantic understanding of the lone author as an endless source of new creations has to face these challenges. In order to do so, this work presents a collectivist model of intellectual property rights. The core argument is that since copyright works enjoy profit from significant public contribution, they should not be privately owned, but considered to be a joint enterprise, made real by both the public and author. It is argued that every copyright work depends on and is reflective of the author's exposure to externalities such as language, culture and the various social events and processes that occur in the public domain, therefore copyright works should not be regarded as exclusive private property. The study takes its organizing principle from John Locke, defining and proving the fatal flaw inherent in debates on copyright: on the one hand the copyright community is eager to arm authors with a robust property right over their creation, while on the other this community totally ignores the fact that the exposure of the individual to externalities is what makes him or her capable of creating material that is copyrightable. Just as Locke was against the absolute authority of kings, the expressed view of the study is against the exclusive right an author can claim.

Chapter 1

Introduction

Against Sole Authorship

Every copyrighted entity represents the creative collectivity. It is a joint enterprise of both the individual author and the public. Contemporary conceptions of copyright reject the collective nature of authorial and artistic creations and invoke copyright to signify entitlement of a certain kind, to mark an individual territory and disregard its social nature. The framework within which the regulation of copyright is examined is embedded with misconceptions and contradictions. At the heart of this definitional complexity is copyright laws’ perennial struggle to define the boundaries of when the right to own begins, and when the social realm takes priority. The avenues to resolving this struggle are affected by various implications arising from this complexity. Reaching an effectual balance depends on the success of any definition of copyright in taking into account and rewarding the contribution of key participants in the process of authorial creation.

The law’s inability to strike a proper balance between private and public interests in copyright is controlled by the fact that classical notions of property are embedded in policies on cultural and social appropriation. Copyright focuses on authors as a privileged category. It confers a fenced private dominion on rightholders and posits the singular author at the very centre of the copyright creation process. It rejects the very nature of copyright creation as a collectively imagined and produced activity. Hence, the reason for the slogan coined by Boyle: ‘Authors tend to win.’¹

As a legal and social institution, copyright is governed by diametrically opposing conceptions of rights. It is a technical name that does not reveal the concept’s intrinsic difficulties. It declares ownership over authorial and artistic resources and confers exclusive entitlement and control to a definitive category of creators, engaged in genuine activity vested in original works. It is a system that sanctifies and preserves the right to ownership. It is a system that allows traditional conceptions of property and ownership to control its social commitments.²

Copyright denies the contribution of the public to the copyright creation process and imposes and maintains an imbalance between private and public interests. The role the public plays in the copyright creation process has been explored from various standpoints, but no concept has been sufficiently developed to be incorporated into a paradigm of copyright ownership. We are bound to rethink the way in which our copyright system allocates exclusive private rights in cultural and social items. As Coombe argues: ‘If, as human selves in human communities, we are constituted by and constitute ourselves with shared cultural symbols, then it is important that legal theorists consider the nature of the cultural symbols “we” “share” in consumer societies and the recognition the law affords them.’³ In this book I argue that copyright creation is a collective enterprise. I approach copyright from a social perspective and claim a right for the public in every copyrighted entity, not merely for the sake of philosophical or academic debate, but for matters of proprietary entitlement and control.

Every copyrighted entity is a social construction. It depends on the consumption of cultural and social properties that make an author capable of interpreting and absorbing the significance of these properties, then translating his creative ability into the language of copyright creation.⁴ The set of rights copyright confers on authors does not reflect the inevitable causal relationship between authors and public. Moreover, as Scafidi asserts, ‘[t]his exclusive celebration of one individual not only obscures the role of the community and society at large in the development of intellectual property, but it also shifts attention away from the need for a robust public domain…’⁵ Preservation of the collective, and conservation of a rich and diverse array of cultural and social properties rarely conjure a romantic view similar to that of the lone author.

Many plausible arguments justify exclusive property rights over tangibles such as land and chattels. Intellectual property in general, and authorial and artistic works in particular, differ from tangible assets. The distinctions between intellectual and traditional property are three.⁶ First, since a copyrighted work is a form of expression, there is a clear and decisive public role – more than in any other form of property – in shaping methods of expression such as languages, and musical and artistic styles.

Second, copyrighted works such as literature, music and films, are the defining components of our culture and social reality. Treating them as assets that can be subject to exclusive ownership essentially means that our culture and social reality can be owned with the perquisites of buying, selling, transferring and excluding. Not only do the expressions of our culture and social environment define our society as a whole, they are also part of what defines our individual personalities and aspirations. Subjecting these elements to exclusive private property has a direct detrimental impact on the development of our society and its individual members.⁷

Third, the law has recognised that copyright and property, while fulfilling similar ambitions, are different doctrinal areas. The law has designed a different set of rules specifically applicable to copyrights to accommodate their social implications. In that special set of rules, the duration of the right is perhaps of the greatest difference. While perpetuity is not an alien concept in traditional property, in copyright it is.⁸ As Hughes observes: ‘Perhaps the greatest difference between the bundles of intellectual property rights and the bundles of rights over other types of property is that intellectual property always has a self-defined expiration, a built-in sunset.’⁹ Despite the limited duration of the right, it is frequently argued that it creates the danger of conferring on authors a quasi-perpetual right. In fact, as Lessig remarks, this danger is already with us: copyrights have come to be thought of ‘not as rights that get defined or balanced against other state interests, but as rights that are, like natural property rights, permanent and absolute.’¹⁰

Although it is not entirely wrong to argue that ‘[o]ur lives are in every respect dominated by an intuitive sense of property and belonging’,¹¹ when intellectual properties are at stake, ownership and control should not be defined under exclusive terms. I shall argue that copyrighted entities are manifestations of the collective creativity; they are socially and culturally constructed. So we may ask, if works of art and authorship are collectively produced, ought they to be collectively owned? Admittedly, as Underkuffler remarks: property is a legal conclusion but ‘[t]he idea that property rights…are presumptively free from collective claims has been decisively abandoned, if ever it was true.’¹² I largely base my arguments on the claim that every copyrighted entity is socially constructed and historically contingent.¹³ This claim raises serious doubts regarding declarations such as ‘I own the copyright’ or ‘this is my copyright.’

A starting point for the understanding of copyright from a constructionist perspective is the role of collaboration in copyright creation and its place as a key characteristic of the creative society. In fact, collaborative authorship is not an invention of modern times. Masten tells us that collaboration ‘was a prevalent mode of textual production in the sixteenth and seventeenth centuries, only eventually displaced by the mode of singular authorship with which we are more familiar.’¹⁴ Vickers asserts that collaborative authorship was a ‘standard practice in Elizabethan, Jacobean, and Caroline drama.’¹⁵ Jaszi tells us that in recent times works of art and authorship are increasingly becoming ‘collective, corporate, and collaborative.’¹⁶ In the relationship between collaborators, whether artists, musicians, choreographers or architects both artists win: their relationship and collaboration make them better individual artists. Copyright laws acknowledge this and reward them with an exclusive right.

Yet, in every creative collaborative incident there is one contributor who does not win: the public. The collaboration between two artists – for example, Picasso and Matisse whose collaborative efforts were the subject of a recent three-city exhibition, conveying to the audience the long obsession the two artists had for each other’s works, focusing on instances where one artist surges and the other responds, consciously or not, to the other¹⁷ – cannot be isolated from the wider cultural and social matrix in which they are created. Collaboration that reaches artistic fruition is always dependent on collectively produced and owned social and cultural properties. I reject romantic notions of creativity and authorship which stress the subjective experience of the author in order to perpetuate patterns of social denial and further diminishing the rights of the general public.¹⁸ As Palmer most poignantly remarks: if rights are to be recognised in works of art and authorship anywhere ‘they should be in the audience, and not in the artist, for it is on the audience that the art work depends for its continued existence, and not the artist.’¹⁹

On this account, authors cannot claim, and in fact are not entitled to, any exclusive ownership rights of the products of their creative labour. After all, both the public and its members laboured on each creation. While the individual author invests qualities from his original make-up, his subjective interpretation of the external reality, his talent, and financial resources, the public invests the social and cultural capital, necessary to transform an individual into an ‘author’ and make him realise and translate his talent into the language of authorial creation.²⁰

I shall argue that every copyrighted work is limited ab initio due to the dependency on the contribution of the public. The copyright bargain must reflect the fact that each copyright work is dependent on the public’s social and cultural input, and each work owes much to its predecessors while each informs its successors. The question, then, ‘who authors copyrighted materials?’ is not idle. Viewing the public role in this way raises the question that motivates my research – why should the public not be granted authorial rights similar to those granted to individual creators? It is my main argument that every copyright work is a joint enterprise. For every copyright work there are at least two contributors: the individual author and the public.

In a recent work Gordon reminds us the ‘gift all artists receive, namely, a tradition and world they have not made.’²¹ How to translate this gift into the language of power and control in copyright is a task I undertake in the present book. Copyright laws sanctify the lore behind the principle ‘as you sow, so shall you reap.’²² I argue that the principle applies to both the public and authors. Donne’s words in his second Satire, judging poetry plagiarism, show how Renaissance writers regarded the theft of intellectual property. Donne’s remarks support the argument why both public and authors deserve a right in the products of their labour:

But he is worst, who (beggardly) doth chaw

Others’ wits’ fruits, and his ravenous maw

Rankly digested, doth those things out spew,

As his own things; and they are his own, ‘tis true,

For if one eat my meat, through it be known

The meat was mine, th’excrement is his own.²³

The concerns I expressed above are known to scholars familiar with the rhetoric encircling the scope of the ‘right’ in copyright. I believe all feel some sense of uncertainty as to the direction copyright law is taking us. Some even proclaim ‘the death of copyright’,²⁴ warn us about ‘the escalating copyright wars’,²⁵ argue that the institution of intellectual property is ‘in crisis’,²⁶ simply remark that ‘old-fashioned’ copyright does no longer exist,²⁷ or just tell us that the future of copyright depends on our intention and how we choose to redefine it.²⁸ These predictions reflect different schools of thought, but scholars still adhere to the idea that traditional concepts of property and ownership best accommodate contemporary copyright issues. I argue that we must be aware of the fact that property, when used in the ‘copyright talk’ is not a mere metaphor. As Rose observes, the property metaphors we use

[A]re not just ornamental; they structure the way we think about matters and they have consequences…they are deeply embedded in the way we think about ourselves as well as the way we thin...