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.
Re: Joe Miller’s paper, I half-jokingly proposed that copyright *already* has a nonobviousness requirement here: http://law.marquette.edu/facultyblog/2008/11/24/copyrighted-works-must-be-novel-and-nonobvious/
I mostly agree, Mike, though, as many have said, the romantic genius gets trotted out every time we see major copyright enactments. If copyright *is* truly mostly about publishers and other intermediaries in the information distribution process, then why, for 300-odd years, have we had such trouble admitting that in the political arena, even in the US? To the extent that copyright isn’t really primarily about authors (incentives or moral rights), then what is it about in the Internet age?
Caveat: At this point, I’ve only skimmed all three of these pieces, so I might be missing the context of some of your comments.
Greg,
I think that the continued focus on authors/authorship reflects (i) strategic use of “authorship” arguments by publishers and other intermediaries (that’s Bob Brauneis’s paper) in tandem with (ii) broader and long-standing cultural anxiety about the ethical dimensions of intermediaries. We worry about Google for many of the same reasons that we (the broad, loose cultural “we”) have long worried about banks. [This point isn’t original to me, but I can’t quickly put my finger on its source.]
My view is that the focus on authors in the Internet age rests largely on an implicit ethical claim, made both by authors themselves and by intermediairies using authorship arguments. This isn’t a “moral rights” claim(that’s a doctrinal claim), but a broader cultural argument concerning the ethical status of individuals and their work (cf., but only cf., Benkler).
On the incentives question, I don’t think that the political arena has been free of debate about the role of intermediaries. We might say that the last five decades of copyright/computer/Internet history have been defined by debates about single, dominant intermediaries: IBM (60s/70s); Microsoft (80s/90s); and Google (2000s). The brief arc of copyright and the Internet could be recapitulated as “good riddance to intermediaries” followed by “damn; they never really went away, and we need them despite ourselves.”
That said, the post (and now this comment) is self-consciously blunt and reductive. A lot of detail complicates my little narrative.
Again, I think I’m in agreement.
It is wrong to see intermediaries as something we can ever move past — they will always be with us simply because when old lines are erased we can always identify new places where new lines are converging — like search.
What Dan & I have said about amateurs is that the relevance of copyright to contemporary intermediaries and producers is fading.
Perhaps this is due to the fact that the current big intermediary, like IBM, has a low-IP strategy. Microsoft displaced IBM primarily by owning DOS as IP. Google swings the pendulum back. It is not an IP company — in fact, like Napster 1.0, it benefits from a lack of IP in the commons. It runs the index to all the stuff that it does not own.
When you combine a low-IP strategy intermediary with a public that operates on norms & ethics, you’ve got a center and endpoints that are both out of touch, by intention or ignorance, with the legalities of copyright.
Oddly, perhaps, the romantic author returns in that situation, largely as a way for the endpoints to make claims on the center. The romantic author lives on because the romantic author is the popular political/ethical avatar of copyright, the only tool many amateur creators know how to use.
I like the argument that builds on a “romantic author as avatar of copyright.”
We’re on the same page, though it might be said that current IBM and Napster 1.0 aren’t/ weren’t out of touch with the legalities of copyright. They leverage(d) what they believe(d) to be a legitimate “no IP” strategy. Copyright remains important and relevant, as a means for determining what *doesn’t* have to be cleared, rather than as a measure of what *does.*
Greg and Mike,
Need the Romantic Author be copyright’s avatar?
Could we transition the Romantic Author into a different role … the attribution right’s avatar?
My intuition, in the Originality paper Mike mentions above, is that our lack of an attribution right is part of what keeps copyright hanging around, even as to very low-creativity works. An attribution right for low-creativity work – perhaps especially for low-creativity work – could help keep the romance alive *while also* preventing mutation into ugly stalking. (Okay, the metaphor may have just fallen apart.)
Greg, your work in particular – Digital Attribution, 87 Boston University Law Review 41 (2007) – helped me make the connection.
Hi Joe — You’re way too kind. I meant to chime in over on your official thread, but I wanted to re-read your paper first. I read it when you posted it to SSRN, actually, but I was fairly tired at the time — so much so that I really need to read it again. But I agree on the desirability of an attribution right that accords with social norms in play here (if not the current scope of copyright).
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