For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 22 February 2013

Where Has the "Author" Gone in Copyright?

Why is the notion of the copyright "author" held in such low regard? And why is the notion of "users' rights" so ascendant? At the risk of sounding banal, there is no work to consume, much less to protect, if there is no author to create it. True, books were written long before there was copyright protection. True, as well, copyright protection is also about distribution of content and the various commercial interests that are involved. Still, there must be an author for there to be a work. But to read many an account of current thinking about copyright, the author is at best an afterthought. Increasingly, it is the right of the user to the content, rather than the right of the author in creating the content, that is paramount. This Kat was reminded of this issue during a meeting, after a nearly a one -decade absence, with a long-time acquaintance with an extraordinary research record in the copyright field. As ebullient and passionate about copyright as ever, one issue troubled her deeply—the rise of the notion of users' rights as a (the?) central component of our current understanding of copyright. "Whatever happened to the notion of the 'author'?", she dejectedly asked.

This Kat has often wondered about the same question. After all, we have always been taught that the great breakthrough in the development of the copyright system came about with the enactment of the Statute of Anne in 1709 (1710). For the first time, instead of a system based on the grant of a publishing monopoly in favor of the Stationers, augmented by the ability to censor, we had an arrangement which put the author front and centre. The authors received a limited term of exclusive protection (and the legal ability to transfer rights to publishers so commercialization could take place), after which the content entered the public domain. In so doing, the public presumably benefited twice: first by encouraging the creation of content and second providing that the content ultimately ended up in the public domain for all to use. As best this Kat's sense of feline smell can determine, there was not a whiff of users' rights in this arrangement. And yet, by 2013, "users' rights" have become a staple in copyright discourse and education. So this Kat reached out for some further guidance – whence the centrality of "users' rights"?

There can be no better source than the thoughts of the late Professor L. Ray Patterson here, one of the earliest and most vigorous proponents of the notion (witness his book of over two decades ago—The Nature of Copyright: A Law of Users' Rights). A useful way to understand the gist of Professor Patterson's thinking can be found in the transcript of an interview that he gave for the American Library Association here before his death in 2003. For Patterson, copyright was not primarily a matter of international norms (after all, the U.S. joined the Berne Convention only in 1989) but rather a creature of U.S. jurisprudence, especially the Constitution and the Supreme Court. On that basis, Patterson was adamant-—the purpose of the copyright system is not to reward authors but to promote the societal interest through the advancement of knowledge. In his words, "the three constitutional policies of copyright [are] the promotion of learning, the protection of the public domain and the right of public access." The author (and obviously the publisher) are nowhere to be found.

For Patterson, "copyright is a limited statutory monopoly of information for a public purpose and that purpose is not to make a commodity of information and facts so that learning will be subject to licensing by publishers as in Elizabethan and Jacobean England." Under such a view, the Statute of Anne comes out as merely a poor-man's version of the maligned 17th century Licensing Acts. It was the U.S. Constitution that conferred upon copyright its proper role in an enlightened society. Fair use is the ultimate expression of this view. In Patterson's view, fair use is not simply a legal privilege (as defined by West's Encyclopedia of American Law, a power of exemption that " one from the performance of a duty, obligation, or liability") but a full-fledged right, presumably as integral to the copyright system as the author's right of reproduction and distribution

This Kat would like to think of himself as not naïve when it comes to copyright. He is aware that technology, and the ways by which contents are distributed and consumed, continue to pose a challenge to whether the copyright system can continue to be relevant. On a daily basis, this Kat both creates content as well as consumes it. In so doing, however, he simply cannot accept the proposition that the copyright system should put the author and user in some correlative balance with respect to rights. Reasonable people can debate how to best enable users to use the works of authors. Maybe the academic world, with its emphasis on articles and recognition, should have different operative rules than book publishers of full-length contents, many of which derive from settings other than the Academy. But in so doing, to cast all of copyright with the broad brush of an ever-expanding notion of users' rights goes beyond the pale of that debate.

15 comments:

Anonymous said...

In all fairness the US is not coming at it from the same direction as many EU jurisdictions - not least because of their constitution.
"author's rights" or (UK) "copyright" are often opposed on the moral rights issue. Setting aside vary different styles of lawmaking, another striking difference lies in contractual protection. Well developed in France and Germany - which some scholars then link to the personality doctrine, e.g. Lucas: the personal relationship to the work is continued into a continued economic relationship, i.e. royalties or 'proportional remuneration' as the French would say. It can equally be seen as the recognition of the author as a risk taker, entrepreneur, entitled to a joint venture - e.g. Prof. Cornish and some court decisions on publishing contracts.
While English courts have forayed into contractual protection of authors rights through the law of contract, there is no clear legislative or policy intention to do so. Even the US, in trying to outlaw 'controlled composition clauses' , or UK Patent law, on the face of it, seem to take more interest in that than UK copyright law.
I do not think it is right to pitch authors against users. Copyright is more often (at least) a triangular relationship - author - exploiter - public. Pitching users against authors avoids the inconvenient truth that right now, authors get short changed in many countries, not by users, but by their contractual partners (that's not the stuff of legend - the Elton John case was not made up, and there are many others). Unless they become big potatoes of course (see the gini coefficient in the music industry...).
It's hard for 'users' not to feel that this should the debate - authors, not copyright as fully tradable asset of companies.

Anonymous said...

Another origin of the discussion of user right comes from the big expansion of the author rights. When was the last time that a copyright reform reduced the length of protection or make more difficult to obtain copyright protection?.
Specially in EEUU that the continuos time expansion of copyright seems that would keep thing out of public domain forever.
Talking about user right is another way of asking how much can and should the author right be extended or even has already be extended too much.

Return to the Statute of Anne of needing registration and 14+14 years of duration and almost none will talk about user right.

Andy J said...

I agree with anonymous (@16.26)that the contenders here are not users vs authors, but rather a struggle between exploiters (his word, of which I approve) vs users which leaves authors poorly served.
When the major industry bodies such as the MPAA or RIAA start lobbying governments around the world for longer copyright terms, or stronger sanctions against illegal downloaders etc, it is the plight of the poor struggling author which touted as the main justification for such actions, (note that the Sonny Bono Term Extension Act and the Cliff Richard Law use the names of artists to reinforce the point of whom these changes are intended to aid) whereas the same authors invariably receive the minor share of any disbursement of the profits obtained. This discrepancy is justified by the exploiters because they say they have to support and nurture the next generation of authors or else the whole system will collapse. In other words, by this argument the remuneration from copyright works is doubly important, first to encourage authors to create in the first place, and secondly to allow the exploiters to further encourage those seen worthy of greater promotion to higher levels.
It is interesting to note that (different) exploiters are on the opposite side of the debate over orphan works, leaving authors (albeit unknown or untraceable ones) with virtually no allies save for known authors (such as photographers) who recognise the vulnerability of their works to be 'orphaned' by rapacious organisations intent on exploitation of this body of works. Needless to say since there is no prospect of financial gain for bodies like the MPAA or RIAA etc from the orphan work issue, they are conspicuously silent when it comes to supporting authors in danger of losing many of their rights.

Sakkarai Nilave said...
This comment has been removed by the author.
Diego Aranda Teixeira said...

I have to admit that the first comment correctly identifies the dearth of analysis on the difficulties authors face in regards of the distributors/contractual partners (referred to as exploiters, above). Landes & Posner's Economic Structure of IP Law gives an extremely thin coverage of this dynamic, overall, in the copyright section.

Nevertheless, the point of copyright and patent law is to correct the market distortion of having a product with high creation costs and low copying costs, to ensure the continued supply of creative works and inventions, respectively. Users' rights are logical to the debate, given that the point is to ensure users have works to consume in the first place (there are lots of industries that won't work without intervention - say coal in newcastle - but society does not benefit from such legal help, unlike with the perceived need for creative works and inventions).

Since provision of works to users is the key purpose of copyright law, occasions where access to works is denied in situations we value (say education, criticism or parody) are key intersections of the debate on the scope of these doctrines.

More simply, in any case, copyright law is a series of 'don't's. Users want to 'do'. This predetermines the battleground for the bulk of the debate (much as an expansion of the discussion of authors and publishers needs to be greatly expanded).

Andreas Rahmatian said...

I do not think that the author has necessarily disappeared from copyright debate, for example certainly not in the fourth chapter of my book:

http://www.e-elgar.com/bookentry_main.lasso?id=13383

So there may be some consolation.

Andreas Rahmatian, University of Glasgow

Anonymous said...

Don't forget that the title of the Statute of Anne was not "Protection of the Rights of Authors," but "The Encouragement of Learning." And it wasn't the "learning" of authors that needed encouragement, but rather the learning of users. Copyright exists to benefit users: by increasing the amount of creative work available to them and by ensuring that the work will eventually return to the public domain from which it has been plucked and given a limited monopoly. If copyright didn't benefit users, there would be no reason to have it.

Hans Sachs said...

With respect, this plea for a more purrfect copyright system that would give authors their just rewards is naive and uncharacteristically divorced from historical reality.

Sadly, authors, composers, artists, poets and other creators including performers have rarely been more than cannon fodder for the intermediaries that truly “exploit” them in every good but mostly bad sense. The odd one makes a lot of money and/or a lot of noise and puts on a good show. They receive awards at fancy galas – such as the Oscars. But the rest wait on tables, drive taxis, teach at universities, and otherwise tend to their day jobs.

Anonymous said...

The answer to this question is that the debate is being driven by two powerful business lobbies, and their fully paid-up media megaphones, without hardly any regard to, you know, authors.
To the left-hand corner, we have the defending champion, the entertainment industry, packing a mighty punch, but fat and complacent after a string of victories against weak opposition: successive extensions of copyright terms, tough international anti-piracy legislation, etc. It has something of a glass jaw in the moral area, since its remuneration of the authors who create its added value has never been known to be particularly munificent.
To the right-hand corner, we have the contender, the telecommunications industry and internet companies. Keen to package unlimited consumption of cultural goods as part of what it provides, but without actually having to foot the bill for creating those goods, it has grabbed the banner of "user rights" as a populist slogan to attract popular support. Agile, nimble and above all flush with cash, it can buy itself the best PR people and communication consultants, professionals of mind manipulation who have successfully managed to extract that inconvenient character, the "author", from the popular discourse. For this purpose, they have gone so far as to recover some of the most dubious brainf*rts of postmodern philosophy, according to which there's no such thing as an original creation, but only "mashups" of existing memes. Above all, though, they have entirely erased the word "author" from their talking points. Even in languages where the law talks of "authour's rights" (French: "droits d'auteur", Spanish: "derechos de autor", German: "Urheberrechte"), they always use the English term "copyright" instead, preferably imbuing it with connotations of cultural imperialism. These people are good. They are very good.
Who will win this battle? I don't know, but I somehow suspect that it certainly won't be the authors...

David said...

The United States federal Constitution is not the sole basis of copyright law, even in the United States. This is from the Preamble to the Massachusetts statute on copyright of 1783:

'As the principal encouragement such persons [persons learned and ingenious in the various arts and sciences] can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man's own than that which is produced by the labour of his mind'.

As this and similar provisions in other states shows, around the time of the foundation of the United States it was widely held that copyright was a 'natural right'. Why the federal constitution mentioned only the benefits to society is unknown. I would just hazard a guess that to save space the framers wanted a single clause to cover both copyright and patents, and a 'natural right' approach was less applicable to patents (since patents protect patent holders against independent discovery and not just copying).

Anonymous said...

Anonymous of 09:23 puts it very well (and very colourfully!)

I think the author has always been a bit of a figurehead in copyright legislation - as I understand it, even from the first the main aim was to give rights to publishers. Indeed, actually reading the Copyright Act always seems a bit surreal - not only is the author supposedly in the driving seat, but he/she is supposedly worried about copies being made of his/her work. Most authors want there to be lots of copies of their works - pop stars boast about how many albums they have sold, and are delighted to get to number 1. Obviously they want to be paid for it, and have some control over the presentation of their work, but the idea that they dislike the idea of copies per se is very strange.

With regard to users’ rights, I think the increase in mention of these is down to technology. In the early days of printed books, if you bought a book the only way you could copy it was to write it out again longhand - it would probably be quicker to earn the money to buy a second copy of the book. It’s only as copying technologies have become more available that the question of whether users are allowed to use them has come into focus.

Pekka Gronow said...

One should remember that there is a major difference here between UK and continental copyright law. UK was the first to allow publishers to be copyright owners. Over the years, copyright has been expanded to cover the rights of producers, performers, etc.
On the other hand, from the viewpoint of copyright law, the rights of users (or consumers) are only seen as "limitations" of the rights of copyright owners. MOst copyright laws lack a concept of "fair use" and instead rely in a detailed list of limitations which tends to be out of date. I think there is a real need for a doctrine of the "rights of users" in copyright law.
Having said this, there is also a need to balance the rights of authors vis-a-vis publishers and producers.

Gillian Spraggs said...

Thank you, Dr Wilkof, for raising this important topic. I look forward to your further thoughts, as promised on the 1709 blog.

With regard to the debate on the purpose of copyright, I'd like to call attention to some of the excellent posts on this topic by US lawyer Terry Hart on his Copyhype blog. A good starting point (since on the web the topic tends to be discussed from a US-centric standpoint) are his posts Myths from the Birth of US Copyright and Myths from the Birth of US Copyright: Part 2.But all his posts tagged Copyright history are worth reading.

Hart also recently published a refutation of the glib claim that copyright is a monopoly: Three Reasons Copyright is Not a Monopoly.

We are all creators, of course. One of the things that has changed in the age of the Web is that far greater numbers of us have made work public. Creators' legal rights are not irrelevant to this; rather they are an indispensable underpinning of the whole enterprise. If anyone imagines that people who post on the Web are indifferent to their rights, let them consider the recent Instagram affair: when the site tried to grab rights to make commercial use of its users' photos it lost half its most active users in a month.

One of the anonymous commenters above thinks that 'the author has always been a bit of a figurehead in copyright legislation'. Let me refer that person to the Parliamentary debate relating to the 1842 Copyright Act: among the authors who lobbied in its support were Charles Dickens, Thomas Carlyle, Leigh Hunt, Thomas Campbell, Harriet Martineau and Joanna Baillie.

Professional authors today are no less aware of the crucial importance of copyright to their business model than their predecessors in the reign of Victoria. This is equally true whether they license their work to a publisher in the traditional way or take up the new opportunities provided by the Web to self-publish for profit.

Whether one regards copyright from a Lockean or a Utilitarian point of view, it remains the case that that no one has yet devised a more efficient and democratic way either to reward authors for their labour on those works of theirs that are in demand or encourage them to continue to present their works for the edification of a mass public than a market system founded on copyright.

Gillian Spraggs said...

As for the 'exploiters': by way of rebalancing the debate a little, I'd like to direct attention to a thought-provoking blog post by 'Faza' (Krzysztof Wiszniewski), a rock musician with a postgraduate degree in economics: Reasons to Love the Labels or the False Hope of Kickstarter. Faza argues that publishers, record labels, movie studios, etc, 'have a ... vital function in the creative ecosystem' because 'they perpetuate the cycle of value creation'.

This noted, I certainly agree with Professor Gronow when he says in his comment above that 'there is ... a need to balance the rights of authors vis-a-vis publishers and producers'. An obvious starting point would be legislation to prevent the imposition of unfair terms in contracts involving copyrights. For a concise and persuasive statement of the case see the submission by the Creators' Rights Alliance to the Gowers Review (pdf). That is not strictly an IP matter, of course. The CRA submission to Gowers also calls for strengthened moral rights and UK creators have continued to press the case for this through subsequent public consultations. Automatic reversion of rights under certain conditions, such as when a company goes out of business, would also be helpful; and would, among other things, do much to prevent the creation of 'orphans' of uncertain ownership.

Anonymous said...

The funny thing is, Google is the greatest copyright infringer/thief on the planet with YouTube, and funding Mozilla to have all files downloaded behind everyone's backs using Video DownloadHelper in Firefox.

In addition, "DMCA Take Down Notices" do not bring back all the money stolen by these guys from the time content was "uploaded" on a cloned subdirectory of the same URL, not "a specific URL knowledge" of safe harbor protection.

And since Google lied in the Viacom case about no downloads, I'm laughing at all of the complaints with no one mentioning these facts that I just wrote above.

Then again, even this article is on a blog hosted by Google. So how about suing them rather than using "Google's services" that were created as inventions funded by theft for "innovation".

Read the book HR-2281: And then the DMCA Didn't Apply on the Earth (Viacom vs. Google) is anyone wants a lesson about copyrights (and Trademarks).

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