This was a lecture given in honor of Prof. Jaszi's retirement from teaching, before a festschrift for his work.
New Librarian of Congress said that she’d have the CO serve the interests of authors—assumption that authors are ©’s beneficiaries. Metaphor of authorship/idea that authors’ interests are at the heart of © protection: familiar discourse; can overwhelm more nuanced discussions of © policy. One strong trope: The inspired geniuses of cultural production often turn out to be really poor businesspeople: easily led astray, don’t bother about money; too busy/distracted by the demands of art itself to look after themselves and their poor, destitute families. Specialness, high degree of entitlement plus intense vulnerability: recipe for some kind of protective legal entitlement.
The problem is that often the real circumstances don’t measure up to the archetype, though occasionally they do. VC Andrews: passed away having founded an extremely popular literary genre; left no manuscripts, but representatives of estate surreptitiously hired a ghostwriter to continue the tradition. IRS tried to get them to pay a lot of money, resulting in a great tax case. This is authorship as it is lived, rather than the romantic vision.
Connections between authorship and public interest in IP. Authorship rhetoric is persistent and ubiquitious. Exchange of conceptual DNA: celebration of author-genius that was so profound in literary culture jumped over to © and took hold; dead in literary world but lives on in ©. Inspired authorship as a way to explain, for example, the history of American cinema: bodies of work that bore the individual stamp of an author. Epic v. Killian Shows: auteur theory in court; D accused of infringing rights in DW Griffith’s Birth of a Nation. Our client had only one viable defense, that the renewal in this case hadn’t been validly filed. There was a renewal, but in somebody else’s name. We had to show that Griffith was the author and thus the only one with the right to renew. Our job was literally to take the premises of cinematic auteur theory and translate them into legal theory. WFH doctrine under 1909 Act: © belonged to whoever was in control, and if Griffith was in control there was no one else who had a right to renew.
Won that case, but had an experience that caused him to doubt: Killian—relationship b/t derivative work and source following renewal of © in derivative work. SCt in Stewart v. Abend rejected the theory that one work was as good as the other: the derivative work had as much right to exist as the source work; they should enjoy autonomous and independent lives. Eventually we were taught that the derivative work was a secondary contribution, subservient to and legally subject to the higher claims of the author of the original work. Began to see concept of authorship as containing ideas of hierarchy: earlier have greater claims than later; closer to source material = better claims than those who worked primarily on secondary cultural materials. Became worrying to him. Led him to reader response theory, destablizizing supremacy of author.
If they mention authorship in policy discussions, reach for your wallet—and count your fingers. Element of flimflam, sometimes very pronounced, along with sincere/profound influence on discourse. The idea that © was supposed to provide revenue for author, children, and grandchildren, so life extension justified increased term. This is actuarial nonsense, but also historically just wrong. No discussion of it in Berne etc.; just inserted by WIPO guide to Berne Convention in 1976. That’s the first assertion of the claim that life + 50 was supposed to be for two generations. Because it “fits” our general naïve belief in the idea of authorial entitlement and vulnerability, it went over.
We all contribute to the grip of authorial genius, not just maximalists but minimalists. When we, the latter, make arguments for limits we tend to go back to constitutionalism: © was supposed to encourage authors. We implicitly validate the authorship construct: something about what a special class of people does is particularly important. We can argue about implications of that special importance—great deal of protection or only a little encouragement, but we concede the proposition. Yet: Copyright doesn’t always take authorship seriously. When you actually look at doctrine, issues like the unprotectability of authors’ style, a truism of ©, or how issues of collaboration are handled in ©, you immediately see a misfit. Lack of clear connection b/t conclusions to which a sincere and thoroughgoing conviction of importance of authorship would lead v. the conclusions we have actually arrived at.
Manichean conflict b/t irreconcilable ideological visions: (1) elevates creative process and unique invididuals responsible for it and (2) asserts the paramount value of public access, openness, etc.
Real life “authors” have strong fairness claims. Not metaphorical authors, but Wordsworth and Coleridge but people who labor from day to day to make creative work to sell: something more real/acute than is comfortable for theorists to acknowledge. 1994: strong congressional push to repeal §412 on requiring timely registration for eligibility for statutory damages/fees; professional commission w/lots of industry & academic representation deadlocked and its failure to endorse probably contributed to the proposal’s demise. We have enough incentives to registration to provide the basis for a comprehensive if not complete record of American creativity—and that was Jaszi’s argument: though eliminating §412 might benefit small authors taken by surprise by the fact that their earlier failure to act might subsequently bar them from collecting reasonable compensation for infringement in later years, the interests of the system, especially in having a database for business and research purposes, justified turning away from those interests. He is proud of preserving §412, but also has some regret that it wasn’t possible to accommodate the real interests of individual creators who are sometimes taken by surprise by the persistence of this last real formality for US works. Even though the critique of authorship has made it easy, comfortable, and respectable to take a hard line in some copyright policy situation, to reject the trend towards mystification in favor of policy giving more weight to collective interest of public at large, there is a real costs.
We have a related proposal now for a small claims court. Once again, finds self in position of wondering whether the benefit is worth the cost. Cost here: expedited processing may be inimical to flourishing and continued growth of the idea of user rights, especially fair use.
Authorship isn’t the same as cultural production, but both are more widely distributed than ever. Mystifying concept of authorship v. cultural production as more inclusive, descriptive, and even useful category. Creators’ real problems often don’t have to do with piracy—usually business issues like getting better contracts, even better deals from landlords. Don’t fetishize IP as the heart of their concerns. Indonesia: talked to a lot of practitioners of traditional arts—puppeteers, carvers, singers, etc. They wanted space to show off art; they identified problems w/schooling in the arts & failure to teach about difference b/t traditional and Western music; younger people were too enamored of Western culture to do the slow, difficult work of learning the old forms. Somewhere at the very bottom of that list, a few people said that they might benefit from IP even though they weren’t sure it had meaning for them or what it is. These were struggling custodians of great and important traditions; they had far more urgent things to think about. Remixers, fanfic writers, vidders, are important cultural contributors but they don’t recognize themselves in the romantic genius conception. Perhaps it’s time to focus more on the needs of systems of cultural production and less on the requirements of authorship as classically understood. There are many ways to talk about ©; shouldn’t just fall back on author-talk as a way of avoiding what’s at stake. Interests of users, w/recognition that users are also makers, participants in systems of cultural production, even if not all are people who would be recognized or want to be recognized under rubric of authorship w/a capital A. Authorship, real authorship, is not the gift of the few but the fate of the many. Cultural participation and citizenship are linked; meaningful work may become ever more scarce, and the question is whether we can grasp the options/alternatives offered to us all as culture-makers by new creative tools provided by tech.