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Compleat World Copyright Website Lionel Bently *
Copyright and the Death of the Author in Literature
and Law Book Review The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee; Peter Jaszi,
Authorship and
Copyright by David Saunders, Modern
Law Review, 57 (6), Nov.
1994, 973-986 |
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In the essay, ‘What is an Author?’
Michel Foucault drew attention to the fact that the notion of the ‘author’ is socially constructed. [1]
Foucault claimed that the literary author was invented during the
eighteenth century and isolated ‘ownership of the text’ as one of the characteristics of the relationship between
the text and the author. Foucault
urged us to imagine a culture where discourse would circulate without any need for an author, a world where it
did not matter who was speaking. [2] Roland Barthes went one step further and declared the ‘death
of the author’. [3] Barthes argued that, once published, the text is no longer under the control of
the author and that the author is
irrelevant. [4] Instead, Barthes asserted that the text
is merely a product of other texts and can only be understood through
those other texts. Individual authorship
of works is to be replaced by intertextuality. [5] Although this
radical questioning of the role of the author has not been universally accepted, [6] it has proved extremely
influential within literary *Lecturer
in Law, King’s College, My
thanks go to Anne Barron, Adam Tomkins and the Copyright Reading Group at 1. Lambropoulos and Miller (eds),
Twentieth Century Literary Theory: An Introductory Anthology (Albany: SUNY, 1987) pp 124 - 142.
Moreover, Foucault described the
emergence of the modern concept of authorship as ‘the privileged moment of individualization in
the history of ideas, knowledge,
literature, philosophy and the sciences.’ 2. ibid p 139. 3. Heath (ed), Image, Music, Text (London: Fontana, 1977) pp
142 - 148. 4. ibid p 142. 5.
‘Any text is a new tissue of past citations. Bits of code, formulae, rhythmic models,
fragments of social languages, etc pass into the text and are redistributed
within it, for there is always language before and around the text. Intertextuality, the condition of any text whatsoever,
cannot, of course, be reduced to a problem of sources or influences; the
intertext is a general field of anonymous formulae whose origin can scarcely
ever be located; of unconscious or automatic quotations, given without
quotation marks’: Barthes, ‘Theory of the
Text’ (trans MacLeod) in Young (ed), Untying the Text: A Poststructuralist Reader
(London: Routledge, 1981) 31, p 39. 6.
Masten, ‘Beaumont and/or Fletcher: Collaboration and the Interpretation of
Renaissance Drama’ in Woodmansee and Jaszi (eds), The Construction of Authorship (Durham, NC:
Duke UP, 1994) 361, p 371. (‘Like bibliography, much of the more
self-consciously interpretive “literary criticism” continues to rely
implicitly on the assumption that texts are the products of a singular and
sovereign authorial consciousness.’) For a modern defence of authorship, see
Hirsch, ‘In Defense of the Author’ in Validity in Interpretation (New
Haven: Yale University Press, 1967) pp 1- 23. In fact, it has been [observed
that, no matter what Barthes or Foucault may have wished, their texts are still
attributed to them and probably their
estates still reap royalties on their copyrights. See, for example, Miller, Authors (Oxford:
Oxford University Press, 1989) p 173.
Equally, the notion of authorship has come increasingly to dominate
other discourses, such as film, where the idea of the film director as author (‘auteurism’) has taken a firm hold. Naremore, ‘Authorship and the Cultural
Politics of Film Criticism’ (1990) Film Quarterly 20: ‘Even
though the generation of ‘68 produced some of the most valuable and brilliantly
iconoclastic writing in the history of film, they never really dispensed with authorship,’ cited by D’Lugo, ‘Authorship and the
Concept of National Cinema in Spain’ in Woodmansee and Jaszi (eds), n 6
above, p 327.] HHC: [bracketed] reproduced
on page 974 of original. 973 scholarship and clearly has potential
significance for law in general, and copyright law in particular. After all, copyright law is a legal
institution which declares itself as
designed to recognise the ‘rights’ of authors - indeed, the French equivalent
of copyright is called ‘droit d’auteur.’ Copyright law is a system to which the
notion of the author appears to be central - in defining the right owner, in
defining the work, in defining infringement. The critique of authorship in literature thus
raises a number of questions for copyright
law: what is the relationship between law and literature? Is the legal conception of authorship related
to that which has operated in literary theory? If so, must law recognise the death of the
author? Has it done so? Even if copyright need not recognise that
death, could it or should it do so? Different
and often conflicting answers to these questions are offered by David Saunders’ Authorship and Copyright (hereafter
AC) and many of the essays in The Construction of Authorship (hereafter
TCA) .[7]
B. The Historical Connection Between
Copyright and Authorship The claim that the concept of authorship
in literature is intimately related to that which
operates in law is principally an historical claim that copyright law, romantic
authorship and the overpowering significance of the author were ‘born together’.
[8] That is,
the link established in law between an author and a work, and the romantic
conceptualisation of the work as the organic emanation from an individual author, [9] emerged simultaneously at
the end of the eighteenth century. [10] The consequence of this, it is claimed (by
Rose, for example), is that the literary
critique of authorship threatens the intellectual foundations of copyright law. If the legal walls establishing ownership of
the text were built on the same intellectual foundations as romantic authorship, and those premises turn out to be sand rather
than rock, copyright will sooner or later come tumbling down. Recently, these historical claims have
received some support from the researches 7.
These essays were delivered at a conference at 8.
Jeffrey Masten is distrustful of the metaphor of birth because it ‘naturalizes
and makes inevitable an event - or rather, set
of events - that were, as I will suggest, contingent and by no means
biological, transcultural, or even uniformly
occurring across discourses and genres within a given culture’ (n 6 above, p 363). Jane Gaines argues that there are structural
similarities between legal and literary discourse and that ‘[t]he two
discourses inform each other because they share the same cultural root buried
deep in the seventeenth century’: Contested Culture: The Image, the Voice
and the Law (London: British Film Institute, 1992) p 23. 9.
Woodmansee, ‘On the Author Effect: Recovery Collectivity’ in Woodmansee and
Jaszi, n 6 above, pp
27-28, argues that ‘[b]oth Anglo-American “copyright” and Continental “authors’
right” achieved their modern form
in this critical ferment, and today a piece of writing or other creative product may claim legal protection only insofar as it is
determined to be a unique, original product of the
intellection of a unique individual (or identifiable individuals).’ 10. Barthes also notes
that the author is a modern figure: n 3 above, pp 142 - 143. 974 of historians such as Mark Rose and
their conclusions underpin many of the essays in The Construction of Authorship.” In ‘The Author in
Court: Pope v Curll’ (TCA, pp 211 - 229), Mark Rose describes how the English Statute of Anne, passed in
1710, which had not been intended to be for
the benefit of authors, came to be used by them. [12] The Statute of Anne was a trade regulation device reinstating
order to the book trade that had been thrown into confusion as a result
of the failure to renew the seventeenth-century printing licensing laws. [13] The Act was
concerned with ‘books’ and their ‘proprietors’ (ie the Stationers), not authors
and their works. Rose reviews Pope’s use of the Statute of Anne to prevent the
publication of letters sent by him to Swift. Rose argues that the legal holding -
that the property in the letter passed to its recipient
but the literary property was retained by the author - represents a critical moment
in the development of intellectual property law. Whereas the Statute of Anne conceived of
property in books as physical objects, in Pope v Curll, Lord
Hardwicke recognised the author’s right as an intangible right in the ‘work,’
as distinct from the book. According to Rose, the idea that the
author is creator of the text was developed further in the second half of the
eighteenth century as part of the sustained legal debate as to whether authors could claim a common law natural right to
property in the literature they produce. [14] This debate, like the Statute of Anne,
was promoted by the 11.
For similar historical accounts, see Woodmansee, “The Genius and the Copyright:
Economic and Legal Conditions of
the Emergence of the ‘Author’” (1984) 17 Eighteenth Century Studies 425;
Woodmansee, The Author, Art and the Market: Rereading the History of
Aesthetics (New York: Columbia University Press, 1993); Carla Hesse, ‘Enlightenment
Epistemology and the Law of Authorship in
Revolutionary France, 1777 - 1793’ (1990) 30 Representations 109; Roger
Chartier, L’Ordres des Livres: Lecteurs,
Auteurs, Bibliothèques en Europe entre XIV et XVIII Siècle (Aix-en-Provence, Paris: Alinea, 1992). His
essay ‘Figures of the Author’ (trans Lydia Cochrane)
appears in Sherman and Strowel (eds), Of Authors and Origins (Oxford:
Oxford University Press, 1994). 12.
Act for the Encouragement of Learning (1710) 8 Anne ch 19. 13. For the century and
a half prior to the lapse of those regulations, the book trade had been in the
control of the guild of Stationers, who had developed their own system of
allocating publishing rights amongst themselves. In effect, the Statute of Anne amounted to a
reluctant acceptance of this monopoly: Lyman Ray
Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt
University Press, 1968). It may be that these propositions are overstated and
the idea of authorship was already of some importance. The 1710 Act refers
to ‘authors’ and makes the continuation of the copyright term from 14 to 28 years dependent upon the author’s survival. Feather’s claim, in ‘From Rights in Copies to Copyright’ in Woodmansee and Jaszi (eds), n 6 above, p 208 that ‘[t]he so-called Copyright Act
of 1710 mentions neither copyright
nor authors’ is wrong. Additionally, the
Stationer’s use of the claims of authors in inducing Parliament to pass
the Statute indicates that authorship also had some rhetorical power: see
Feather, ‘The Book Trade in Politics,’ 8 Publishing History 19, p 45. 14.
The debate is also described by Saunders, Authorship and Copyright (London:
Routledge, 1992) pp 57 — 74. 15. Rose, ‘The Author as Proprietor: Donaldson v Becket
and the Genealogy of Modern Authorship’ (1988)
23 Representations 51, reprinted in Sherman and Strowel (eds), n 11 above; Rose, Authors and Owners: The Invention of Copyright (London and Cambridge, Mass: Harvard University
Press, 1993). See also De Grazia,
‘Sanctioning Voice: Quotation Marks, the Abolition of Torture and the Fifth
Amendment’ in Woodmansee and Jaszi (eds), n 6 above, p
298 (‘copyright legislation privileging the author emerged at the same time as
quotation marks privileging the utterer’). 975 product of an author’s labour to
produce a reinterpretation of existing copyright rules as a statutory recognition (rather than generation) of an author’s
common law right. Fears concerning the
consequential effects of such a right on the public were answered by confining the proprietary right to
those elements of the work in which the author’s personality is
individualised, namely the expression, leaving the underlying ideas free for
public use and criticism. [16] While the House of Lords ultimately
ruled against this common law right, the widespread debate laid a grounding
into which the romantic conception of authorship could be reimported from
C. The Survival of Authorship in Modern Copyright Assuming a
strong historical connection between literary authorship and literary property, a number of attempts have been made to
show that the critique of romantic authorship signified by the notion of
the death of the author implies a necessary
rethinking of the role of
authorship in copyright law. If the two
concepts of authorship and literary property emerged at the same time,
based on common conceptions of individualism,
personality and creativity, then it might be reasonable to expect the
concepts to disappear at the same time. Indeed, it
has been argued that the death of the author in literary theory has already
been paralleled by the demise of copyright and its replacement with trade marks
law. [17] Evidence for this tendency is
said to be found in the proliferation of cases complaining that a person’s
image, look, personality or voice have been misappropriated.
The boundaries of copyright law, built
on the concept of authorship, no longer correspond to our ideas of what
should be protected and the more flexible actions in privacy, personality and
passing off have been employed instead. Indeed, the failings of copyright have
resulted in a strengthening of the actions
which have been developed to fill the gap - which, in turn, make copyright
law increasingly insignificant. [18] This argument that ‘copyright is dead’
is, however, unconvincing. Although it
is true that copyright law has failed to be
the prime legal mechanism for the expression of the needs or interests
of those involved in character or personality merchandising,
it is difficult to see how this failing represents the death of copyright law. Indeed, the history of copyright is the
history of its expansions into new
domains - photography, sound recordings, films, computer programs. [19] Only from a very limited viewpoint can its failure to
expand into the domain of 16.
Rose’s use of Hargrave’s An Argument in Defence of Literary Property (1774)
is somewhat problematic. The other tracts Rose cites appear to base
their claims to literary property on Lockean theory,
but Hargrave’s is unusual in emphasising that the text bears the imprint of the
author’s personality. It is
therefore something of an overstatement to treat Hargrave as representative of
late eighteenth-century legal thought. 17.
Gaines, n 8 above, p 25. See also Lury, Cultural
Rights: Technology, Legality and Personality (London:
Routledge, 1993). 18.
In the UK, eg, by Mirage Studios v Counter-Feat Clothing [1991]
FSR 145; in US, see Coombes, ‘Author/izing the
Celebrity: Publicity Rights, Postmodern Politics and Unauthorized Genders’ in
Woodmansee and Jaszi (eds), n 6 above, pp 101-131. 19.
Recognised respectively by the Fine Arts Copyright Act 1862 (photographs),
Copyright Act 1911 (sound recordings),
Copyright Act 1956 (films) and Copyright (Amendment) Act 1985 (computer
programs). 976 protecting personality rights be
seen as signalling copyright’s (or the author-in-copyright’s) demise. Copyright
remains a stronger and preferable form of protection for creators and proprietors in the considerable area to
which it extends. In fact, as
is clear from the essays in The Construction of Authorship, there is plenty of evidence that copyright law continues to
employ the rhetoric and conceptual
underpinnings of authorship, in both the judicial and legislative arenas. The United States Supreme Court’s
decision in Feist v Rural Telephones, [20] to the effect that a telephone directory is not a
work of authorship, has been treated as demonstrating the power of romantic
preconceptions which continue to inform judicial interpretation of the
copyright statute. In that decision,
Justice O’Connor declared that it was a constitutional requirement that a work
must have some creativity to be protected by copyright and that an
alphabetically arranged list of names did not bear the stamp of such
creativity. For the Supreme Court, then,
authorship in law required some expression of personality rather than mere
sweat of the brow. [21] At a
legislative level, the continuing prominence of romantic conceptions of
authorship can be seen in the recent recognition, in both the The poststructuralist critique of authorship appears so far to have had
no significant
influence on copyright law which has continued to employ romantic images of
authorship, at least in some contexts. This immunity of copyright law’s notion of authorship to the radical
destabilisation of the same notion in the literary field seems less
surprising, given the historical insights of some of the essays in The
Construction of Authorship and the more general insights proffered by David
Saunders’ Authorship and Copyright. [24] Some of the
contributions to The Construction of Authorship indicate that the historical connection between authorship in law
and literature, suggested by Foucault and maintained by Rose, is
strongly in need of qualification. [25] In truth, it 20. 113 L Ed 358; 111 S Ct
1282 (1991). 21.
‘What is important about Feist, for our purposes, is the gap that it
discloses between the legal and the literary debate over the
notion of the author.’ Price and
Pollack, ‘The Author in Copyright: Notes for the Literary Critic’ in Woodmansee
and Jaszi (eds), n 6 above, p 441. 22. Copyright, Designs and Patents Act 1988, Ch IV ( 23. Jaszi, ‘On the
Author Effect: Contemporary Copyright and Collective Creativity’ in Woodmansee
and Jaszi (eds), n
6 above, p 35. Kernan, The Death of Literature (New Haven: Yale
University Press, 1990) p 950. Gaines,
n 8 above, argues that the author is dying in copyright and that moral rights
are ‘symptoms of the displacement of the author.’ 24.
Saunders has many other goals. In
particular, he argues that both literary historians and poststructuralist theorists have been unduly preoccupied
by authorship and subject-centred accounts. For
a more balanced summary, see Review (1993) Entertainment LR 59, and Vanden
Bossche (1993) 36 Victorian Studies 487
(claiming that Saunders misrepresents other historical accounts). 25. Indeed, as the
French literary historian and bibliographer Roger Chartier has pointed out,
Foucault’s historical account, while incomplete, was more sophisticated than is
frequently suggested: ‘in no way does he [ie Foucault] postulate an exclusive
and determinant connection between literary property and the author function’:
see Sherman and Strowel (eds), n 11 above. 977 seems, the author-function has
operated in different contexts at different times and in different ways, all of
which have been layered on top of one another. The emergence of the proprietary author at the
end of the eighteenth century may thus represent
the growth of the powerful, modern, romantic conception of authorship, but the histories fail to establish conclusively
any causative, necessary or determining
link between the legal and the literary. All there is is a complimentary and
reinforcing connection, a parallel development. The first important qualification of Rose’s history is to be found in
the observation that concepts of authorship had long played
some role (if not a critical one) within literary discourse. Masten, for example, has discovered that the
increasing use of the ascription ‘anonymous’ around 1676 ‘begins to signal the
author-ization of a text, the importance that someone, anyone, is
speaking. The author’s emergence is marked by the notice of its
absence’ (TCA, p 362). Furthermore, bibliographers have found
that in the two centuries prior to the eighteenth
century, it became increasingly common for books to contain the works of
single rather than several authors. In
this period, ancient texts were more frequently attributed to a single name
than works in the vernacular where the privilege of being named was reserved
for only a few great literary figures. Moreover, according to Foucault himself, prior to
the eighteenth century, attribution of authorship had been orthodox in
relation to scientific texts but not literary discourse, and the period merely
saw a reversal of that orthodoxy. A second qualification lies in the fact that authorship also operated
as a category within law prior to the ‘literary property debate’
of 1760 - 1775. In the two centuries
before that, in These
qualifications of the assertion of a twin birth of copyright and authorship are
important not because they suggest there is no relationship, but because they
add an element of contingency and complexity to the history. The works suggest, 26. Ross describes how authorship and publication were
used as instruments of social control in the regulatory practices that were derived from royal
proprietorship and directed at the threat of sedition: ‘Authority and Authenticity:
Scribbling Authors and the Genius of Print in Eighteenth Century England’ in Woodmansee and Jaszi
(eds), n 6 above, p 242. Chartier
confirms the view that the author was the fundamental mechanism for the
designation of books and ‘an essential weapon in the struggle waged against the spread and
distribution of texts which were thought to be heterodox’ in sixteenth-century France, but that
liability was in no way greater than publisher, bookseller, hawker or owner: see Sherman and Strowel (eds), n 11 above, p 19. 978 at least, that it has been possible to conceive of
authorship prior to copyright and the
proprietary author prior to romanticism. Authorship in copyright is not, even in
its historical foundations, simply equatable with authorship in literature and,
therefore, a critique of literary
authorship need not necessarily strike at the roots of copyright law. The prehistories of authorship and copyright
make much less surprising the failure of copyright to automatically respond to
developments in literary discourse. This increased
sophistication, however, does not explain how those developments specifically based
on romantic conceptions of authorship are capable of surviving the critique and there can be little
doubt that, since 1800, cultural assumptions
about authorship have informed the development of copyright law. [27] The influence of romantic conceptions of the
relationship between an author and his work can be seen to have operated in the
actions of legislators and judges in extending the duration of the copyright
owner’s monopoly, [28] the narrowing of the fair
use defence, [29] as well as the extension of the copyright owner’s rights to cover
derivative works (such as translations) and other sources of remuneration (such
as performances). [30 Furthermore, romantic conceptions of
creativity have operated to define the
domain of creative works and thus to limit the scope of subject matter protectable by copyright. Bernard Edelman, for example, has argued that the limitation of droit d’auteur protection
in 27.
Streeter, ‘Broadcast Copyright and the Bureaucratization of Property’ in
Woodmansee and Jaszi (eds), n
6 above, p 304. (‘The conceptual system
of copyright relies heavily on this construct. Although the individuality of the author seems
obscured by the commercial concerns of Anglo-American copyright law, the categories associated with this law, such
as originality and the distinction between an idea and its expression,
are derived from the romantic image of authorship as an act of original
creation whose uniqueness springs from and is defined in terms of the
irreducible individuality of the writer.’) 28.
1814 Copyright Act (extending the period to 28 years or life of the author,
whichever was the longer) and
Literary Property Act 1842 (42 years or the life of the author plus seven
years). In fact, Wordsworth
played a significant part in supporting Sergeant Talfourd’s attempts to extend
the duration of copyright which culminated
in the 1842 Act. See Feather, A
History of British Publishing (London: Routledge, 1988) p 171; Woodmansee and Jaszi, ‘Introduction’ in
Woodmansee and Jaszi (eds), n 6 above, pp 4-5. 29.
By the mid-nineteenth century the court no longer looked to see whether the
defendant had produced a new work but looked at what he had taken: what a
derivative user added was, by and large, irrelevant. Compare Sayre v 30.
In the United States, the case of Daly v Palmer (1868) 6 Fed Cas
1132 (CCSDNY) - recognising a right
to perform dramatic compositions under the 1856 Act (11 Stat 138) - has been
called ‘the first great
intellectual leap, auguring copyright’s break from the confines of copies and
the eventual statutory expansion
of derivative rights.’ Goldstein, ‘Derivative
Rights and Derivative Works in Copyright’
(1982) 30 J Copyright Soc’y 31.
Edelman, Ownership of the Image: Elements for a Marxist Theory of Law ( 32.
Edelman’s analysis of the history is linked with his account of how law and
other ‘ideologies’ are necessarily connected. In contrast, if Saunders accepted that
romanticism had played a role in these [developments, it would not be because the law had to
take account of cultural assumptions but because it chose to.] HHC: [bracketed] reproduced
on page 980 of original. 979 necessary to redefine cinema around
a single individual author - the director as ‘auteur,’ so that the film could
be seen as a creative product - as art - and be granted copyright protection. [33] In Authorship and Copyright, Saunders blends historical review
with the theoretical insights of systems theory to provide a more
thoroughgoing explanation of why copyright law has proved immune to
poststructuralist questioning of authorship . [34]
Saunders observes from the histories of the development of copyright law in the United Kingdom, United
States, France and Germany that law is
‘an independent and variable phenomenon of culture’ (AC, p 6), the product of a
vast array of legal and cultural
influences (AC, pp 11, 40, 94) which are not reducible to consciousness,
economic, language, etc. Thus, he says
that the ‘book describes the historical
variability, complexity and technicality of law, legal systems and
customary practices concerning literary and artistic property’ (AC, p 246, n
17). For example, when the legislature enacts
a copyright law, many different influences are operating - some legal and some
from outside law. Similarly, when a judge interprets the copyright
law, he or she is likely to be much more
concerned with legal coherence and continuity - with the presentation of the law
as a logical whole - than with literary theory. [35] Given the conclusion that legal forms are a result of a complex interaction
of legal and non-legal influences, Saunders argues that there is no
necessary relationship between law and culture. That is not
to say that cultural discourse never has an impact upon law, [36] but rather
that where culture has influenced law, this influence has been coincidental. More
specifically, the aesthetic persona has less directed copyright than overlapped with it (AC, p 212). In fact, where culture influences law it does
so (and can only do so) in legal terms. This independence of the legal from the
literary notion of authorship can easily be seen in the way in which the
concept of authorship operates within Anglo-American
copyright law. More specifically, the
concept of authorship is sometimes
present and sometimes absent within copyright discourse. According to Streeter, copyright
demonstrates a ‘mixture of indifference and obsession’ with authorship (TCA, p
305). [37] While
copyright may be built on an image of creative authorship, copyright law uses
that image as a point of attachment - a point at which to ascribe a property
right and by which that right can be determined. But the essence of that ascription is that it
is a divestible or alienable right. In
law, 33. ‘Film Authorship in the Changing Audiovisual
Environment’ in Sherman and Strowel (eds), n 11 above. 34.
The use of systems theory is more implicit than explicit, though Saunders cites
Luhmann’s The Differentiation of Society (trans Holmes and Larmore)
(New York: Columbia University Press, 1982) n 14 above, p 6. 35.
This is illustrated by two essays in The Construction of Authorship: Price
and Pollack emphasise the significance of
the analogy between patent law and copyright law in the development of
copyright (Price and Pollack, n 22
above, p 443), while de Grazia emphasises the significance of literary proprietorship
in the Supreme Court’s decision in the defamation case between the
psychoanalyst Paul Masson and The New
Yorker (n 15 above, p 289). Another
significant influence on copyright’s development is the growing
prominence afforded by the law to the idea of restitution and unjust enrichment. See Gordon, ‘On Owning Information:
Intellectual Property and the Restitutionary Impulse’ (1992) 78
Villanova LR 153. 36. Saunders argues that law has become steadily ‘aestheticised’
(n 14 above, p 188) by way of ‘a re-orienting of certain areas of law towards the magnetic
image and ideal of aesthetic personality’ (ibid pp 190, 210). 37.
n 30 above, p 305. 980 authorship is a point of origination of a property right which,
thereafter, like other property rights, will circulate in the market, ending up
in the control of the person who can exploit it most profitably. [38] Since copyright
serves paradoxically to vest authors with property only to enable them to
divest that property, the author is a notion which needs only to be sustainable
for an instant. This means that
copyright law is able to imply and invent authors where there is no corresponding (cultural or other)
‘reality.’ Despite the argument that the
Supreme Court decision in Feist is
a recognition of romantic authorship, it also exemplifies the simultaneous independence of legal
conceptions of authorship. For, despite the rhetoric of Justice O’Connor,
the test of originality recognised was one
of ‘minimal creativity’. [39] There is no requirement that the work
be of any artistic quality. [40[ As Pollack and Price note, few items
are below this level of originality (TCA, p
455). [41] Similarly,
in the At the same time as the law can invent
authors where romantic literary theory would deny them, law can deny authorship
where literary theory might recognise it. Thus, copyright law denies authorship to the
contributor of ideas [45] and, in cases of collaborative works, frequently
refuses to recognise contributors as authors in an attempt to simplify
ownership. [46] Because a single
property owner means that assignments and licences of copyright are easier and
cheaper to effect, copyright law prefers to
minimise the number of authorial contributions it is prepared to acknowledge rather than reflect the ‘realities’
of collaborative authorship. To
simplify ownership in this way may privilege certain contributions over others,
but it provides a property nexus around which contractual 38. ‘It can be argued that copyright as a whole serves
the interests of publishers and distributors more closely than it serves the interests of either authors
or users of copyrighted works’ (n 30 above, p 306). 39. Ginsburg has argued that Anglo-American copyright law
has always protected works of commercial value as well as works of creativity:
see ‘Creation and Commercial Value: Copyright Protection of Works of Information’ (1990) 90 Columbia LR 1865. Indeed, she also demonstrates that early
French copyright law also protected such ‘works
of sweat’: see Ginsburg, ‘A Tale of Two Copyrights: Literary Property in
Revolutionary France and 40. Here law’s instinct of self-preservation causes it to
deny itself the power to discriminate between works of high and low quality, and instead to
identify ‘original literary works’ objectively by determining whether the work was produced by the
author rather than being wholly copied: see Price and Pollack, n 22 above, p 453 (‘trying to determine who is an author has
the general tendency to implicate the aesthetic test, one that has been
so strongly eschewed by American law’). 41.
Price and Pollack, n 22 above, p 455 n 57. 42.
Walter v Lane [1900] AC 539. 43.
Cummins v Bond [1927] 1 Ch 167; Leah v Two World
Publishing [1951] Ch 393. 44. Streeter describes how the ‘relatively authorless
medium of television is constituted in part by a set of legal practices that nominally rest on a romantic
notion of literary authorship’ (n 30 above, p 305). 45.
Kenrick v 46.
Wiseman v Wiedenfeld [1985] FSR 525. In the context of property law, this has been
referred to as the agglomerative tendency:
see Donahue, ‘The Future of the Concept of Property’ in Pennock and Chapman
(eds), NOMOS XXII: Property (New York: New York
University Press, 1980) pp 28 - 68. Similar simplifying practices have also operated in
the book trade: see Masten, n 6 above, p 364 (citing Bentley, The Profession of Dramatist in Shakespeare’s Time (Princeton,
NJ: Princeton University Press, 1971) p 199). 981 arrangements can be made recognising
the value of those other contributions. [47] This
independence of copyright law from literature is less obvious in civil law
jurisprudence. In particular, the French
law of ‘droit d’auteur’ appears
to be much more closely aligned with
literary conceptions of authorship than Anglo-American copyright law. In fact, Saunders sees the French law as a ‘limiting
case’ against which to test his thesis that law and literature are independent
systems with no necessary internal
correspondence (AC, pp 75, 80, 194). However,
Saunders chooses a number of examples where French law has granted
protection where there is no ‘creative author’ - in particular to computer
programmers - to demonstrate that the
limits of ‘droit d’auteur’ are
not intrinsically linked with those of literary authorship (AC, pp 198 - 199). Where they have been so linked, Saunders
argues, that is because French law has chosen to do so. In light of
the observation that law is not reducible to culture, Saunders argues that the
poststructuralist critique of authorship has no necessary implication for
copyright law. Even if Barthes were ‘right’ and the author is dead, law does not have to accept
this ‘truth.’ The goals and functions of
copyright law are different from those of literary theory (AC, p 223), and just
because Barthes says that the author is
dead does not mean that the publishers suddenly stop administering their copyrights
or paying authors’ royalties. To believe
that it would have had such an effect was ‘a
sign of naivety or aesthetic arrogance’ (AC, p 233). Barthes’ conclusions may come to
influence copyright law, but if they do come to be incorporated into copyright,
Saunders’ point is that they will be incorporated as legal principles, as ‘law’s
truth’. The fact that there is a gap
between the legal concept of authorship and
the understanding of authorship in literary circles simply does not
matter (AC, p 223). Saunders’
observations concerning the distinctiveness of the literary and legal fields help us to avoid the real problems that
would be faced if the poststructuralist critique had to be incorporated into or
accommodated by law. In so far as
Barthes’ claim is an extension of Saussurean linguistics - that the meaning of
texts derives from a system of ‘signifiers’ and ‘signifieds’ rather than
from the author - it is difficult to see
exactly what this would mean for copyright law. This is because the relationship between
copyright law and ‘meaning’ is extremely troublesome. In some
ways copyright is not about meaning at all, so that the radical critique would fail
to bite. Literary copyright is limited
to the particular arrangement of words in the text and colourable variations
thereupon. [48] The
‘idea-expression dichotomy’ 47.
Furthermore, a variety of conceptions of authorship operate within copyright
law, even if these different
conceptions are frequently presented as unitary and coherent. For example, within existing UK
law, a film director is treated as if he were an author for the purposes of ‘moral
rights,’ but not for the purposes of deciding who is the ‘first owner’ of
copyright in the film: ss 80(1) and 9(2)(a) of the Copyright, Designs and
Patents Act 1988. It will be necessary
to modify this position in the light of EU Directives requiring that the
principal director be recognised as one of the authors of a film for the purposes of determining the duration of protection
and ownership of rental and lending rights. As regards
US law, see also Jaszi, n 24 above, p 49 n 69, arguing that copyright uses
different conceptions of authorship in considering acquisition and
infringement. 48. Although the
definition of literary work includes texts which provide information and
instruction, it confers protection also on those which merely provide pleasure:
see Hollinrake v Truswell [1894] 3 Ch 420. However, in Exxon Corp v
Exxon Insurance [1981] 2 All ER 495, [1981] 3 All ER 241, the Court of Appeal denied copyright protection to a single
invented word on the grounds that it had no meaning. The perceived meaning of a text plays some
role in determining the boundaries of the property right. In deciding whether the appropriation
is substantial, the courts will look at the ‘significance’ of what has been copied. Whether the quality part has been taken may
then depend upon the ‘meaning’ of that part. In
the United States, the question of whether a use of copyright work is ‘fair’
depends in part on whether it is ‘transformative,’ and a use is said to be ‘transformative’
if it changes the ‘meaning’ of what has been appropriated: see Campbell
v Acuff-Rose Music Inc (1994)
127 L Ed 2d 500, 515. 982 - ‘a
tour de force of ideological mediation’ - confines the property in a work to ‘expression’
and leaves ideas freely available to the public. [49] In as much as the poststructuralist critique alerts us to the inevitability of
intertextuality, that is of the penetration of one text by others,
copyright law already acknowledges the needs and rights of others to draw on
copyright work. The ‘idea-expression’
dichotomy operates to permit, excuse and sanction the reuse of ideas which
inevitably seep from work to work, [50] and
defences of fair use and fair dealing allow the reproduction or
appropriation of the text itself. [51] D. The Future of Authorship and Copyright Rather than
viewing law as a reflection of literature, Saunders prefers to see copyright as
constituted more by specific institutional practices established in particular
technological environments. According to
such an account, new technologies pose much
more of a threat to the sustainability of copyright law than do insights
from literary theory. These technologies
operate both to create new subject matter needing protection and to provide new
ways of replicating or distributing existing subject matter. [52] Each deals its own
blow to the integrity of copyright. As a
result of the acceptance of new subject matter, such as sound recording and
films, it has been argued that copyright as ‘author’s rights’ is now dead
(although the institution of copyright remains intact). [53] While recognition of protection for ‘entrepreneurial
works’ has involved changes in copyright and these entrepreneurial works are
now of greater economic significance than traditional authorial works, authorial works still constitute a significant (and
sustainable) part of copyright law. A more serious challenge to copyright is
felt to result from new modes of distribution - such as digitalisation, Internet
and ‘information superhighways’. These technologies change the ‘form’ of works,
so that the boundaries of the properties can no longer be defined by
anachronistic ideas of print and texts. [54] These new technologies of distribution
also threaten copyright because they make it
easier to infringe and more difficult to police infringement. In effect, distribution of works is relocated from the public domain of the
market place, where transactions are visible and easily regulated, to
the private world of the home and 49.
De Grazia, n 15 above, p 300 (citing Boyle, ‘A Theory of Law and Information:
Copyright, Spleens, Blackmail and Insider Trading’ (1992) 80 California LR
1413). 50.
Litman, ‘The Public Domain’ (1990) 39 Emory LJ 965. See more generally Yen, ‘The Interdisciplinary Future of Copyright Theory’ in
Woodmansee and Jaszi (eds), n 6 above, pp
159 - 173. 51.
For a startling example, see Swan, ‘Touching Words: Helen Keller, Plagiarism,
Authorship’ in Woodmansee and Jaszi (eds), n 6 above, pp 57-100. 52.
For example, the Fine Art Copyright Act 1862 granted protection to photographs
and protection to existing
copyright works from being reproduced by photographic means. Equally, digitalisation presents
opportunities for new methods of appropriation and new works claiming
protection: see eg Sanjek, “‘Don’t Have to
DJ No More”: Sampling and the “Autonomous” Creator’ in Woodmansee and
Jaszi (eds), n 6 above, pp 343-360. 53. Turkewitz, ‘Authors’ Rights are Dead’ (1990) 38 J
Copyright Soc’y 54. Such changes will
require that the text be reconceived and that new ways of identifying the
boundary between what is mine and what
is yours be established. The
reformulation of the ways in which works are identified, their boundaries ascertained and remunerations allocated
are likely to rely increasingly on
statistical approximations, while users are much more likely to be charged by
reference to ‘time’ rather than numbers of pages. 983 office. [55] However important all these threats are
for the future of copyright, for Saunders they are interesting only in so far
as they see crisis of copyright in technological changes, rather than changes
in the literary notion of authorship. Although technology may require the development
of new practices if copyright is to
be sustained, it is technology - not the death of the author - that poses the
chief threat to copyright. David Saunders’
observation that copyright law and literature are distinct domains is a useful antidote to
those who would have us believe that copyright and literature mirror each other. What Saunders does not do, which he might have
considered, is to go further and examine
when, why and by what methods copyright law has come to adopt concepts
drawn from cultural discourse and (in particular) how those concepts operate in
law. For example, Saunders offers no
explanation as to why, suddenly, the Supreme Court of the Saunders also fails to indicate how
copyright law could, or indeed whether it should, accommodate the
poststructuralist critique of authorship. In contrast, a 55. De Grazia, n 15
above, pp 301 - 302 (‘Photography, tapes, videos and xerography have blurred,
if not dissolved, proprietary boundaries,
allowing for the ready appropriation of materials… In the context of
such technologies, the strict upholding of quotation marks might appear quaint
and outmoded, an anxious gesture against an onrushing future’). In such environments, instrumentalist
techniques of regulation tend to be both
practically ineffective and politically incompatible with values such as privacy.
More specifically, identifying use of a
protected work for which a person would be liable will become as problematic as those faced in relation to, for example,
reprography or home-taping. It seems likely that new modes of regulation and
especially self-policing may prove necessary. Production costs could be recouped
through the grant of blanket licences, one-off charges to those who enter works
into a distribution system, coupled with possible extraction charges for users.
It might well be that the technologies
which provide new modes of distribution can also produce new techniques of
identifying and monitoring uses of works, through, for example, electronic
coded tags or coding of complete works or through auditing the computer’s
memory. 56. Saunders explains
the recent recognition of moral rights in the 57.
In contrast with Saunders, Gaines’ Contested Culture tries to provide
some analysis of when, why and how
law acknowledges literature. Using
insights drawn from the work of Gramsci and Althusser, Gaines
attempts to meet ‘the theoretical challenge of relative autonomy,’ namely, how
to represent political, social, economic, legal and cultural forms as connected
and yet disconnected. Noting that ‘ideology works through us, often with our own
enthusiastic cooperation’, Gaines argues that connections between law
and culture can be found explicitly where law refers to custom, and implicitly where law is ‘mixed with pithy sayings, homely
analogies, personal judgments and frank characterisations’, that is, ‘common sense’ drawn directly out of shared
knowledge in the culture: see n 8 above. 58.
Woodmansee (1984) n 11 above, p 440. 984 number of essays in The Construction of Authorship appear
to advocate that copyright law should be
more sceptical about the role of authorship. These normative claims are based on the
perception that the preoccupation of copyright with a romantic conception of authorship is unsatisfactory. It is unsatisfactory, first, because it
does not correspond to or accord with ‘reality’. [59] While a number of the essays in The
Construction of Authorship explore collaborative writings in history, [60]
others suggest that collaboration is still a very common form of writing practice. For example, Andrea Lunsford and Lisa Ede, in ‘Collaborative
Authorship and the Teaching of Writing’ (TCA, p 418), found that ‘much
or most of the writing produced in
professional settings in America is done collaboratively, and that, in
fact, much of what we call creative writing is collaborative as well, though it
almost always flies under the banner of single authorship’. However, according
to Jaszi and Woodmansee, copyright law - based on romantic authorship -
presumes a solitary author. For Jaszi
and Woodmansee, copyright law should ‘correspond’
with ‘the realities of contemporary polyvocal writing practice - which
increasingly is collective, corporate and collaborative’ (TCA, p 38), rather
than shoehorn different writing practices into a single inflexible legal
conception of authorship. In ignoring these
realities, copyright law is not only dishonest but marginalises or denies these
practices. For Jaszi and Woodmansee, however, a
further reason as to why copyright law should pay more attention to literary
discourse is that romantic preoccupations operate
to exclude many deserving works from protection. [61] For example, ideas of individual
creativity result in denials of ‘protection to folklore and items of cultural heritage that are valued chiefly for
their fidelity to tradition rather than their deviations from it’ (TCA,
p 11). [62] Furthermore, the requirement of
fixation denies protection to improvised
works and works of oral tradition. [63] Another reason to ‘reestablish
communication between the two disciplines’ (TCA, p 28) is that technological
developments will make the romantic conception of authorship 59.
Jaszi, n 24 above, p 50. 60.
Masten, n 6 above; Thomas, ‘Reading and Writing the Renaissance Commonplace
Book’ in Woodmansee and Jaszi (eds),
n 6 above, pp 401 - 415; Gere, ‘Common Properties of Pleasure: Texts in
Nineteenth Century Women’s Clubs’ in Woodmansee and Jaszi (eds), ibid pp
383 - 399. 61. A further reason why
copyright law might helpfully reconsider ideas such as ‘authorship,’ ‘originality’
and the ‘idea-expression dichotomy’ is so that it can better accommodate
postmodern artistic practices which
deliberately set out to challenge notions such as authorship and originality by
appropriating from others in the construction of their works. See Carlin, ‘Culture Vulture: Artistic
Appropriation and Intellectual Property Law’ (1988) 13 62.
Jaszi and Woodmansee, ‘Introduction’ in Woodmansee and Jaszi (eds), n 6 above, p 11. Sherman’s essay, ‘From the Non-Original to the Aboriginal: A
History’ in Sherman and Strowel, n 11 above, ch 6, alerts us to the way in which copyright’s concept
of ‘originality’ has been used as a political tool to deny copyright recognition to aboriginal art. Aboriginal art, rather than being treated as
created, was by and large treated as ancient and ‘ab-original’
- always existing. The works were treated
as ethnographic museum pieces, not art gallery exhibits. Further, the art works were conceived not as
original but as the product of tradition. 63.
The requirement that a work be recorded is, however, more common in copyright
systems than droit d’auteur regimes. It is difficult to see, then, why or how it is
a consequence of romantic conceptions of authorship:
see Gendreau, ‘The Criteria of Fixation in Copyright Law’ (1994) 159 Revue Internationale
de Droit d’Auteur 110. 985 an even less appropriate model
than it is now. In particular, the
worldwide linking of
computer terminals, known commonly as Internet, offers ever greater opportunities for interactive and collaborative
writing. ‘Copyright’s recursive
insistence on forcing all writing into the Procrustean doctrinal model, shaped
by the individualistic, Romantic concept of authorship’ will have, Jaszi
argues, ‘real, adverse consequences’ for electronic technology (TCA, p 55). While a number of the essays in The
Construction of Authorship suggest that it would be desirable to remove
romantic conceptions of authorship from copyright law, none of the essays
suggest what the legal landscape would look like without authors. [64] In fact, the criticism that copyright’s
emphasis on ‘solitary authorship’ ignores collaborative writing practices
appears not to be motivated by a desire to abandon ‘authorship’ completely but
merely by a desire that copyright employ a different
conception of authorship. As such, it
uses Foucault’s observations that the author is constructed, but does
not go so far as to advocate abandoning totally the concept of authorship. Instead, what is advocated is a more
pluralistic concept of literary production
which can accommodate a wide variety of writing practices. These conclusions leave one with a
sense of disappointment. The audacious beginning - the use of the poststructuralist critique
as a point of inspiration from which to
rethink copyright law - results merely in an appeal for a more sophisticated legal acceptance of joint
authorship. A more radical alternative would be to recast copyright law in materialist
terms, recognising authorship merely as the investment of labour power
and entitling the contributor not to ‘proprietorship’
but to remuneration. [65] Couched in such terms, a copyright system
might, as Woodmansee and Jaszi wish, be more accommodating of collaborative
contributions. Aided by bureaucracy,
statistics and technology, such contributions of labour power may be more
accurately defined within structures which
could transform author’s rights into remunerative rather than property rights. 64.
A small cadre of liberal economists would see a world without authors as a
world without copyright law in which the market
could control the circulation of texts and readers their meanings. However, even in a world without authors, some
kind of incentive to produce and disseminate texts, some kind of system of
attribution and identification, some kind of ‘order,’ might well be thought
desirable. 65.
Frow has attempted to recast copyright in such materialist rather than romantic
terms. He sees copyright
law as concerned with the investment of labour and copyright as a recognition
of labour expended by, amongst others, ‘writers’.
Such a reconceptualisation would not
necessarily involve radical revision of the law, since authorship is, in the 986
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