Friday, November 18, 2016

Jaszi festschrift: Panel 2 – Authorship

Margaret Chon, What Berne Article 15(4) Tells Us

Decolonization and development: only one country, India, initially designated an authority to facilitate compulsory licensing and even after Berne was amended only two dozen countries have taken advantage of the option.  Non implementation of provision on TRIPS and public health—the story that these development-oriented provisions tell is one of disconnect, not development; asymmetry, not alignment. 

Anonymity/anonymous authorship.  History in which women couldn’t risk being known as writers/having a public identity.  Attention to quilting as quintessential type of anonymous folklore that is gendered female.  As interesting: Woolf’s quote towards the end of her life that “anon is dead.” She was responding to the cult of the romantic author. It was anonymity that appealed to the nostalgia of modernist British writers for balladeers etc.: prizing aesthetic of anonymity.  Individuality in authors and in fragmentation of authorship prevented works from being absorbed into the public as part of their consciousness as ballads were.

Romantic anonymity: not the same as the traditional pool of cultural knowledge that is supposedly the opposite of romantic authorship.  Berne tells us that publisher is representative of published author and the state is the representative of the unknown author/collective. The latter is pressed into the service of building a national identity. But that division ignores the dynamism of the anonymous creator.  Reasons for anonymity: Standing out from the mass; call attention to author’s shame or risk; to promote a cause; expressions for political minorities.  Recent mural by Banksy: will be protected by gov’t of Calais even as it destroys the surrounding “Calais jungle.”  Promoting the state undermines local political authorities who might act as custodians, and erases the need to create further devolution of authority to create space for dissent.

Christine Farley

Jaszi’s lessons: Authorship should not obscure the need for cultural commons; authorship has been a contested concept for a long time. Because of the romantic author, it’s hard to focus on the reality of collective creativity.

AI as a challenge to the concept of authorship. But has there ever been the romantic author? In the heyday of Renaissance art, the artist might not have touched the canvas; Jeff Koons & Andy Warhol; we’ve always had mechanical aids to authorship as well. 16th Century: Vermeer & other artists used camera obscura to help them with their art.

Algorithmic art: poetry can now be created by computers.  Procedurally generating works: signal and noise are the same thing.  Visual art likewise.  If art demands intentionality, that’s not art. But artists have always challenged that requirement: Dada’s art of chance & others.  Still, there is someone pulling the strings/causing something to happen.  Is this new environment different in the sense of shared autonomy?  The singularity is near, focused on intelligence/thought (not directly on art).  A human can take a leap of faith without following an orchestrated pattern.  A human is capable of subtlety and nuance; AI research says these are cliches that we will get beyond; there is no last frontier for the human mind.

New ways of extending authorship metaphor/be on guard for ways in which that might happen.  If we have a corporation generating all of the works and can maintain that control rather than creating a commons of cultural production, this could be a big problem.

Robert Brauneis, How to Fix Copyright Registration: A Proposal to Institute Graduated,
Periodic Registration Fees

Jaszi was involved in the §412 report. Provides incentive to create useful record; also, since statutory damages are exceptional, one ought to have to act in some exceptional but not difficult way to get them.  Is the CO currently providing information about ownership etc. in an optimal way?  No.  The registration records don’t even always contain names of authors of the registered works, making it much  more difficult to determine when the term of © has ended or who holds the power to terminate transfers. 

Why have courts sanctioned this practice? Before electronic registration, it was expensive and error-prone tedium of typing; afterwards, still concerns about system capacity. 12 million records of works potentially still under copyright until 1977 that are not electronically searchable or online through the CO.  1.2 million renewal registrations 1950-1992 not electronically searchable/online. Most registered works are in the public domain but we don’t know easily which ones.  Credit for figures: Zvi Rosen.

Recording documents: Means of submission, paper only; PTO electronic only.  Per year recordings: 11,000, v. 400,000. Staff of 12 v. 10 for PTO recording division. Average time from receipt to online cataloging 225 days v. one day.  Fee: $105 plus $35 per additional titles v. $0 recording costs at PTO. 

Lots of other things to be done: registration system that has API that would allow integration of registration application into authoring software like Photoshop, Pro Tools.  Integration of copyright information into user software (Spotify, Shazam).  Why not enough resources?  Total 2015 budget $48 million, only $28 million from fees.  Library of Congress has to balance its requests w/other asks, around $600 million, with CO only a small part.  PTO’s budget is $3 billion, all from fees. 

Those who benefit more from the PTO pay more. Diachronic differentiation: PTO changes fees over time.  Relatively small application fee going in, $280. But as you get more confident in proceeding, you pay more, $2560 total by issuance.  Maintenance fees at 3.5 years, 7.5 years, 11.5 years, increasing over time to a total of $15160. Also synchronic differentiation: discounts for small/medium enterprises of 50%, 75% for micro enterprises.  The result is a 24:1 ratio between what a micro enterprise pays at issuance versus what a regular enterprise would pay for a full term patent.

42.5% of patent office budget is maintenance fees.  Substantial percentage of filing, search and examination fees are 31.3%.  Differentiation in copyright registration is $55 for standard, $35 for single work, single claimant who is also the author.  1.5:1 ratio, and so the movie Avatar with $2.8 billion in revenue is paying 1.5 as much as the author of the Let’s Go Crazy video of her kid, Stephanie Lenz, with no revenue.

So we should pursue periodic registration fees & graduated registration fees.  Maintenance fees are prohibited for non-US works by Berne Convention & TRIPS.  [How many registered works are non-US works?]  However, periodic fees to maintain the additional benefits of registration are not: statutory damages and attorneys’ fees across the life of the ©.  Since they’re extraordinary, one should have to do something extra to receive them—and it shouldn’t necessarily be just once.  For US works, ability to file infringement suit could be added.  We could also extend the enterprise size differentiation of the PTO.  More radically: that has always correlated badly with the value of the work. Thought experiment: graduated fees for graduated statory remedy, attorney’s fee ceilings.  For $0, could give you actual damages.  $50: $200-$10,000; $200 gets more, and $800 gets $750 up to maximum.  [Might have to integrate that with small claims proposal.]

Graduated fees lead applicants to value their own works and evaluate their own desire to monetize those works. [Could you change over time and step up for subsequent infringements if infringement became common/the work became valuable? As long as there was no retroactive applicability, that could make sense.]

Is this a political nonstarter? Maintenance fees and SME discount came in 1985, and 2013 created the micro discount.  Odd crossing of paths: patent got more formality oriented as copyright entered Berne era.

Marc Perlman, How to Do Things With Romantic Ideology

First mentioned by Umbreit 1938, taken up by Benjamin Kaplan in 1967, who saw Romantic ideology as still influential.  Jaszi in 1981 followed Kaplan but suggested that the Romantic fever had broken b/c imitation was widespread in serious literature.  Litman (1990): romantic model of authorship was still alive. Influence of poststructuralist literary theory in 1990s made intertextuality part of critiques of © expansion. 

Most appeals to history advance a causal thesis about how literary theory influences law.  Called into question: may be implausible or at least overstated.  I argue that even if the causal thesis is correct, that wouldn’t itself delegitimize Romantic authorship, which might be a good/correct idea, like the conservation of energy.  There is no simple relationship between law and social norms; law is a site of struggle. Customary law: it can be hard to determine exact contents of norm except in the smallest groups. Literary imitation and borrowing was affirmed as legit by many in pre-Romantic literary circles, but there were also constant accusations of plagiarism in pre-Romantic literature.  Gap between aesthetics in the books and aesthetics as lived.  Cries of plagiarism were raised both for literal copying and for tenuous similarities.

Is Romantic authorship normative in our society today?  Kaplan and Litman thought so, but Jaszi thought imitation had lost its stigma.

Seeing how differently ancestors thought can unfreeze our minds, contemplate radical reform. It was the search for such inspiration that motivated Kaplan.  As things were different in the past, they probably need not be as they are. But there are problems w/this view: it is not easy to get from “things have been otherwise” to “things could be otherwise.”  Have been = often informal norms. As jurists, when we posit “could be” we usually posit revision of formal laws.  Difficult enough to read laws from practices; equally difficult to turn practices into laws. We need historical interpretations that are highly contextualized.  Trap of exoticism, others.

Anecdote about 15th c. Chinese painter used to support © minimalism by Lewis Hyde.  In ancient China creativity was an act of reverence toward earlier generations; to copy the work of those who came before was respect and not theft. Quotes Shen Zhou: if my poems and paintings should prove to be some aid to forgers, what is there for me to grudge about?  From Wen Fong 1962, used to demonstrate tolerance by painters towards forging of their own works.  But the full quote is about signing forgeries; someone asked the master to stop.  “When people beg me for my paintings, do you suppose they merely want them for enjoyment … they merely want them for making profit for them.”  Shen Zhou & colleagues were prominent intellectual/social leaders; as gentleman painters, they weren’t supposed to accept any fee, and demands were often a nuisance. They would thus be willing to lend their names to imitations. Not a purely selfless display, but highly contextualized. He wasn’t supposed to earn money; those who clamored for his paintings had found a way to profit that he couldn’t use.  He looks less like a defender of the commons and more like a sly critic of the venality of his “admirers.”

What then?  Romantic ideology thesis is a polemical weapon.  Weapons are inherently disloyal tools, don’t care about uses to which they’re put. Historical examples can also turn against their masters. The only sure way to prevent betrayal is to avoid historical examples entirely.  Scholar asks what is; jurist asks what ought to be. Scholar has no special expertise in ought, but may enable jurist to liberate her imagination.

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