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Friday, 1 March 2013

Where has the "author" gone in Copyright? a Coda

A coda can be a bit repetitive -- but this
Kat isn't Haydn his fresh thoughts from view ...
This Kat was quite overwhelmed by the quantity and, particularly, the profundity, of comments from IPKat readers, either posted on the blog site or received by this Kat in his personal email lair, in response to his blog post of last Friday here, "Where Has the 'Author' Gone in Copyright?" So much so, that Blogmeister Jeremy thought it might be useful for blog readers if this Kat were to address some of the comments received. As such, this Kat wishes to emphasize several points:

First, this Kat takes the point that exploiters, what this Kat prefers to call commercializers (being the historical "publisher") are the third side of the copyright triangle (author, public and the exploiter). Several of the Kat readers correctly and forcefully made this argument. The blog post focused on the views of the late Professor Patterson because they are a (perhaps "the") leading approach to how the interest of the public (read "users") is part and parcel of the legal-constitutional foundation of copyright, at least under the U.S. tradition. Under this view, as this Kat understands it, both the exploiter as well as author are subservient to the interests of the public, without which there would be no constitutional justification for copyright protection.

Staying at the pure legal level, however, this Kat was a bit surprised that his readers largely ignored the proposition that users' rights are not simply a privilege granted to the user under certain circumstances, but are a full-fledged correlative to the rights of authors. We have the European approach of specified exceptions in favour of the user; we also have the fair use/fair dealing approach of the Anglo-American law traditions. The former may not encompass all uses to which users "are entitled", while the latter is potentially overly malleable and therefore perhaps a unsatisfactory way to approach the user's interest in the work. But both these sorts of limitations are matters of degree, not kind. This Kat would still be grateful to see compelling arguments as to why a user is the "owner" of certain rights with respect to the use of a work.

In a related fashion, several Kat readers stressed the power relations between the exploiters and authors, with a disproportionate amount of economic gain going to the former. This Kat is sympathetic to this argument. Digressing for a moment, one of the by-products of the fall of the Soviet Union was the further disrepute of any of part of Marxist thought in discourse. No matter what one's political or ideological position, this was too bad because, as this Kat's graduate student daughter reminds him, considerations of power relations are fundamental to the way that we should look at things. The notion of the exploiter is another way of describing possible distortions in the power relationship between the various actors in the copyright system, whereby the author is clearly holding the short end of the copyright stick. Seen in this way, a consideration of power and how the author fares under such a view is valuable.

That said, there is also a bit of risk in overstating the Darth Vader status of the commercial copyright exploiter. This Kat is also a bit of a writer and, frankly, he is delighted all the more that his publisher enjoys commercial success with his works. It is well known that the publishing industry is struggling with how to find business models that are commercially viable in our online, interconnected world. The ultimate "enemy" here, both for author (and the musician and even the movie studio), on the one hand, and exploiter, on the other, is the challenge of technology. E-publishing and self-publishing are clear alternatives to the relying on the "exploiter", but authors, without commercial publishers, may ultimately usher a less overall favourable copyright regime. "Be careful of what you wish for" was never so true.

When this Kat shared the various comments to the blog post with his long-lost copyright acquaintance, whose comments encouraged him to thing about the topic, she was quite emphatic. In national and international policy and legislative circles, which she often frequents, authors and author's rights are on the defensive and user's rights are on the ascendency, and this is increasingly so. Whether this is a good or a bad thing is open to free and vigorous debate.

7 comments:

Anonymous said...

There is nothing alien in the concept of "user rights". The usage was not uncommon in the 19th century before owners and their proxies captured the rhetoric. Obviously "right" is not used in the same sense as "property right" but in the sense of "entitlement". It's the Declaration of Human Rights and Human Rights Act, isn't it, not the Declaration of Human Privileges or the Human Privileges Act.

Gillian Spraggs said...

The usage was not uncommon in the 19th century

I hope that Anonymous will supply us with some references to support this interesting statement. I have searched eighteenth and nineteenth century law books and other works on Google Books and the Internet Archive, and found nowhere any usage of the phrase "user rights".

There are some references in legal texts to the rights of "users", where "user" seems to be a translation of Latin "usuarius": someone who has rights to make use of something of which they are not the owner: for example, a house or a cow. (There are also, of course, many places where "user" occurs in its distinctive legal usage: see OED, user, n.2.)

So far, I have not, however, found any reference specifically to the "rights of users" in relation to copyright works. There are, of course, examinations of what was deemed to constitute "fair use".

Unknown said...


Thank you so much for this excellent deep conversation. I believe that Patterson has the U.S. position exactly right. What he and others call the "right" of fair use derives from the common law right to unfettered use of one's stuff. Common law says that if you purchase an object, then you own it, period; you can do with it whatever you want. "Restrictions upon the uses of chattels once absolutely sold are at least prima facie invalid," as Judge Hand said in RCA v. Whiteman. Copyright is not often seen against this common law background but it should be. Having purchased a book after 1710 in England, you could not reprint it . . . but you could publicly perform it, and translate it, and adapt/abridge it, etc. Why? Because you owned an object that contained it. Today we might call that a generous system of fair use but back then, when Blackstone was touting property owners' "despotic dominion," it was just common-sense. We have lost sight of the old common law against which copyright was first defined. We don't always purchase objects outright anymore; we have grown accustomed to purchasing licenses to use an object; "equitable servitudes on chattels" are no longer repugnant. Patterson and others are standing up to say, "No. Wait. Don't forget your history, don't forget what Donaldson v. Becket and Wheaton v. Peters were really about!" In sum, in the U.S. at least, copyright is a government-granted privilege designed to benefit the public. It gives authors exclusive rights by requiring members of the public to give up their right to unfettered use of their stuff. Set against this much more ancient right, copyright looks strange and (gulp) even a bit tyrannical. Justice Holmes, Jr. called it "a right which could not be recognized or endured for more than a limited time, and . . . one which hardly can be conceived except as a product of statute, as the authorities now agree."

Gillian Spraggs said...

Having purchased a book after 1710 in England, you could not reprint it

This had been true for most of the previous 150 odd years, ever since the Stationers' Company had received its Royal Charter.

when Blackstone was touting property owners' "despotic dominion,"

Later in that same volume Blackstone says: "There is still another species of property, which, being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr Locke, and many others, to be founded on the personal labour of the occupant. And this is the right which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property."

Earlier, and more succinctly, in Tonson v. Collins, 1762, he had said: "The Purchaser of a single Book may make any Use, he pleases, of it; but no Man, without Leave from the Author, has the Right of making new Books, by multiplying Copies of the old." Blackstone argued in this case that there was a common law right of copyright.

Set against this much more ancient right, copyright looks strange and (gulp) even a bit tyrannical.

More tyrannical than (say) the ancient common-law right to hold other human beings in villeinage? I really don't understand this romanticism about 'ancient rights'.

'Unknown': If you wish to own a new book, movie or sound recording outright, with no restrictions on your use of it, you will have to be prepared to pay the full costs of its production, including satisfactory remuneration for the time and skill of those involved in making it. That will make it (gulp) rather expensive. Among the merits of copyright is that it allows the cost of producing a work to be spread among a very large number of purchasers. (And no, Kickstarter is not going to cut it: not as a means of funding mass access to complex cultural products.)

Anonymous said...

In reply to Gillian Spraggs' comment above:

See, eg, Copinger (5th ed 1915 by Easton) p 144, talking about the introduction of the new fair dealing provision into the 1911 Act:

It is not very clear why the provision authorising fair dealing with any work for the purposes above mentioned should have been inserted in the Act, for fair dealing for other purposes has always been, as pointed out above,permitted and, presumably, it was not intended to cut down the rights of fair user previously enjoyed under the old law."

Easton's prophecy that the previous "rights of fair user" would continue alongside the new fair dealing provision did not, as all know, prove true.

Gillian Spraggs said...

Thank you, Anonymous at 02:09 on 4 March, for drawing my attention to the passage in Copinger; I have found it very interesting.

What seems to me to be missing from the current discussion is any attempt to set out in specific terms the "user rights" at issue. It seems to me that each one needs to be weighed up individually on its merits. But that cannot be done unless they are first identified.

Anonymous said...

User rights are fundamentally rights of access. They balance and are corollaries to owner and author rights. The content of any right is a political question, not answerable a priori. This understanding of user rights language has been adopted in Canada by the Supreme Court since its decision in CCH v Law Society 2004 SCC 13 para 48 holding that fair dealing “like other exceptions in the Copyright Act, is a user’s right.” The Court reaffirmed this in two decisions last year (accessible on that court’s website) that continued to give fair dealing a liberal interpretation from a user’s perspective. Just last December the court confirmed the broader usage by holding that the right in the Copyright Act to retransmit broadcasts free or conditionally was a user right of retransmitters that could not be undermined by the broadcasting regulator’s imposition of fees on free retransmission. The regulator’s attempt was inconsistent with the balance of rights established by the Copyright Act and thus ultra vires: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12767/index.do

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