Critics of the “romantic author” critique of copyright law are back. As the Dan Hicks song goes, how can I miss the romantic author if she won’t go away?
Three new IP papers on “originality” in copyright law have been posted recently on SSRN, two of which emphasize the idea that copyright law should do more to protect and encourage the production of authentically “creative” work. Gideon Parchomovsky and Alex Stein have a paper titled “Originality,” forthcoming in the Virginia Law Review, which summarizes the long-standing proposition that copyright standards are adjusted in practice to provide greater protection for works of greater creativity. Joe Miller has a more provocative paper titled “Hoisting Originality,” which is the subject of a novel Virtual Symposium now underway at the University of Richmond. Joe suggests that copyright’s “originality” standard might be improved if it were informed by patent’s “non-obviousness” standard, or focused on work that departs from the conventional.
[I am happy to promote the symposium, by the way:Â The inaugural Virtual Workshop at the University of Richmond School of Law ‘s Intellectual Property Institute is now live. The home page is http://blog.richmond.edu/ipi. From there you can read Joe Miller ‘s Hoisting Originality, review extensive comments on the paper from Justin Hughes and Bobbi Kwall , and post your own thoughts.]
The difficulties with making and responding to the “romantic author” critique is that the critique invites a focus on the original or inventive qualities of the “work of authorship” (and, in Joe Miller’s framework, the invention), abstracted from broader concerns. That focus often confuses both the ethical issue and the economic issue.
To take the economic point first, in a blunt and reductive way: Intellectual property rights are intended to offer incentives in connection with creative and inventive things. Individual authors and inventors often do not need economic incentives to be creative and inventive; either they are normally and naturally creative and inventive, or they are contracted to be creative and inventive, or both. Firms and other collectives (which sometimes consist of authors or inventors, wearing different hats) often need economic incentives to collect and distribute information-based things, which include but are not limited to creative and inventive things.  It goes without saying, but it should be said, that society values all of these activities, which gives the legal system a reason to care about the rules.
Modulating the standard for creative and innovative things is therefore mostly a proxy — and a highly imperfect proxy — for modulating those latter incentives. Firms and other collectives often really do need economic incentives to collect and distribute “works of authorship” and “inventions” that have little or no “creative” value. The copyright system and the patent system may or may not be the right mechanisms to implement those incentives, but we shouldn’t forget that economically speaking, collection and distribution are the primary stakes — not the individual authorship or invention. The third recent paper on originality — Bob Brauneis’s “The Transformation of Originality in the Progressive-Era Debate Over Copyright in News” — makes this point, and its connection to debates over the meaning of “originality,” abundantly clear.
On the ethical point, equally bluntly and reductively: For all of the flaws of Lockean-style labor theories of value in copyright law, those theories are right to focus our attention on the ethical dimensions of labor. (Here is a title for a paper that’s waiting to be written: “Locke Was Right.” Or as William Shatner (Kirk) once said to Ricardo Montalban (Kahn), “You’re going to have to come down here.”) Arguments over “creativity” thresholds are really arguments over those ethical dimensions, transposed for historical , cultural, and doctrinal reasons into arguments about the “work of authorship.” Recognizing the philosophical and cultural appeal of labor theories doesn’t mean that they should be imported into IP law. There are good reasons not to do that. But we shouldn’t forget what we’re really arguing about.