The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

By Bracha, Oren | The Yale Law Journal, November 2008 | Go to article overview

The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright


Bracha, Oren, The Yale Law Journal


ARTICLE CONTENTS

INTRODUCTION

  I. ORIGINAL AUTHORSHIP AND COPYRIGHT LAW

 II. THE PUBLISHER'S PRIVILEGE IN AUTHORIAL HANDS: AMERICAN
COPYRIGHT AT THE END OF THE EIGHTEENTH CENTURY

III. CREATION EX NIHILO?: ORIGINALITY
  A. The Strange Career of Originality
  B. Originality in Context

 IV. OBJECTS OF PROPERTY: THE WORK
  A. The Rise of the Work
  B. The Rise of the Work in Context

  V. OWNERS OF PROPERTY: THE WORK-FOR-HIRE DOCTRINE
  A. Ownership and the Appearance of the Work-for-Hire Doctrine
  B. Ownership in Context

CONCLUSION: THE IDEOLOGY OF AUTHORSHIP REVISITED

INTRODUCTION

Copyright in the West, we are often told, is deeply entangled with the modern notion of authorship. (1) Authorship is copyright's ghost in the machine. In American culture, too, the author--as the heroic creator of original intellectual works and as their rightful owner--looms large. The author plays an important role in popular understanding of copyright law. He even left his imprint on the U.S. Constitution, which vests in Congress the power of "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (2) Even in this postmodern era during which the "death of the author" has been proclaimed countless times, (3) we often continue to picture solitary authors creating original ideas ex nihilo through their intellectual labors. This picture lies at the normative heart of our vision of copyright.

Over the past few decades, however, legal and literary historians have joined the broader scholarly trend of "deconstructing" the myth of the author. (4) These scholars have analyzed the author as an ideological construct, traced the joint history of this construct and modern copyright, and exposed the many ways in which the myth of authorship as a solitary and individualist production of radically new ideas conflicts with the social realities of creation. They also have argued that modern copyright law and its fundamental structures rest heavily on the social construct of the author.

Is the construct of authorship the key for understanding modern American copyright law and its history? Yes and no! The myth of the author is indeed a central element in modern copyright law, but as a matter of legal doctrine, copyright does not directly rest on and, more importantly, never has directly rested on this myth. The relationship between the law of copyright and the myth of authorship is far more complex and interesting than recent history and theory suggest. The purpose of this Article is to supply a better and richer understanding of the relationship between American copyright and authorship. The Article revises existing accounts of copyright and authorship by describing the ways that concepts of authorship interacted with fundamental copyright doctrines in America within a specific historical and social context--the crucial, formative era of the nineteenth century.

The structure of my argument is as follows. Part I supplies a brief introduction to existing scholarship about the history of authorship and copyright. It argues that, alongside its important insights, this scholarship suffers from several shortcomings. Most importantly, many existing accounts assume that by the end of the late eighteenth century, copyright had become infused with a specific image of creative authorship that still dominates it today. The difficulty with this assumption is highlighted by the obvious discrepancies between many fundamental features of copyright law and the vision of original authorship that supposedly dominates it. I suggest that the difficulty may be resolved and a better understanding of the relationship between copyright and authorship may be gained by a close look at the nineteenth century. During this period, original authorship concepts were gradually embedded in the actual doctrinal structures of copyright in ways that fundamentally transformed both.

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