Academic journal article Proceedings of the American Philosophical Society

The Author's Place in the Future of Copyright1

Academic journal article Proceedings of the American Philosophical Society

The Author's Place in the Future of Copyright1

Article excerpt

"In the beginning was the Reader." And the Reader, in a Pirandello-esque flash of insight, went in search of an Author, for the Reader realized that without an Author, there could be no Readers. But when the Reader met an Author, the Author, anticipating Dr. Johnson, scowled, "No man but a blockhead ever wrote, except for money."2

And the Reader calculated the worth of a free supply of blockheadwritten works against the value of recognizing the Author's economic selfinterest. She concluded that the Author's interest is also her interest, that the "public interest" encompasses both that of authors and of readers. So she looked upon copyright, and saw that it was good.

THIS, in essence, is the philosophy that informs the 1710 English Statute of Anne (the first copyright statute), and the 1787 U.S. Constitution's copyright clause. The latter provides that "Congress shall have Power ... to promote the Progress of Science by securing for limited Times to Authors . . . the exclusive Right to their Writings . . ." (U.S. Const., art. I, § 8, cl. 8). In the Anglo-American system, copyright enabled the public to have what Thomas Babbington Macaulay heralded as "a supply of good books" and other works that promote the progress of learning.3 Copyright did this by assuring authors "the exclusive Right to their . . . Writings" - that is, a property right giving authors sufficient control over and compensation for their works to make it worth their while to be creative.4

Vesting copyright in authors - rather than exploiters - was an innovation in the eighteenth century. It made authorship the functional and moral center of the system. But all too often in fact, authors neither control nor derive substantial benefits from their work. In the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free-speaking users.5 If authors have any role in this scenario, it is at most a walk-on, a cameo appearance as victims of monopolist "content owners." The disappearance of the author moreover justifies disrespect for copyright - after all, those downloading teenagers aren't ripping off the authors and performers; the major record companies have already done that.6

Two encroachments, one long-standing, the other a product of the digital era, cramp the author's place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only challenges traditional revenue models, but also calls into question whatever artistic control the author may retain over her work. I will examine both prongs of the pincers, and then will suggest some reasons for optimism for the future.

I. AUTHORS AND COPYRIGHT OWNERSHIP

Copyright vests in a work's creator as soon as she "fixes" it in any tangible medium of expression.7 But for many authors, ownership is quickly divested, and for some, it never attaches at all. The latter group of creators are "employees for hire," salaried authors who create works in pursuit of their employment, or freelancers who are commissioned to create certain kinds of works, and who sign a contract specifying that the work will be "for hire."8 An author who is not an employee for hire starts out with rights that she may transfer by contract; unlike many continental European laws, the U.S. copyright law places few limitations on the scope of the rights she may transfer.9 Moreover, unlike those foreign laws, the U. …

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