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.