COPYCENSE

Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).

We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.

Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.

Deconstructing the Myth of Romantic Authorship

Helprin’s views on copyright have been getting a lot of publicity lately. Conveniently, his views on copyright coincide with the release of a new book he has to promote, one that purportedly is about American copyright. The book, entitled Digital Barbarism: A Writer’s Manifesto, has been described by The Wall Street Journal in a review as an argument for copyright’s perpetuity. Interestingly, the WSJ review (written by the executive vice president of News Corp., the Journal‘s publisher) is entitled “Hands Off, It’s Mine.” This title is important, and we’ll return to it in a moment.

Helprin first introduced his view of the American copyright system two years ago, in a New York Times editorial. Entitled (at least in the Times‘ online edition) “A Great Idea Lives Forever. Shouldn’t Its Copyright?”, Helprin argues in favor of endless copyright (or as the late MPAA president Jack Valenti would have put it, at least “forever less a day”):

The genius of the framers in making [the Constitution’s limiting clause “for limited Times”] is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

The argument Helprin makes is consistent with a construct copyright scholars refer to as the “Romantic author,” which itself is related to theories of authorship. Authorship is central to copyright law: the U.S. Constitution grants “to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Authorship also is relevant in contemporary, statutory copyright law: while the current Act fails to define what an author is, other parts of the Act refer to the author as the initial copyright owner. (As a practical matter, ownership of one or more rights in a copyright usually ends up with a person or entity other than the author.)

The Romantic Author theory essentially claims that authorial rights exist in law because authors naturally have a right in their work the moment it is created, that an Author is worthy of such rights, and it is righteous, ethical and just for the Author to have such a connection (creatively and legally) between him and his work. Additionally, the theory claims an author should be allowed a wide (and perhaps even endless) term to earn money from his protected work to the extent that he can claim sole credit for the work’s creation.

The Romantic Author theory focuses intently on the individual for two reasons: first, the Author is considered to be a privileged individual; second, the creative activity of Authorship is considered to be separate, discrete, and solitary instead of collaborative, cumulative, or derivative. To this end, the Author is considered to develop his creations in nearly complete isolation, without any external influences or inspiration. Within his creative cocoon, he is able to (perhaps even entitled to) be known as the ultimate source of text.

Even though a related thread of this narrative involves viewing authors as craftsmen – a characterization that seems to dampen the emphasis on creative and intellectual genius – that thread still allows for a set of circumstances where by hard work melds with tradition and divine inspiration. Even this slightly less glamorous thread of the Romantic Author narrative continues to allow for a direct connection between divine inspiration and the resulting words on the page.

While appealing, however, the construct of the Romantic Author is false. For example, Texas law professor Oren Bracha argues persuasively in a 2008 journal article that ascribing the entirety of the U.S. copyright regime exclusively to a Romantic Authorship narrative not only is too simple, but it is historically inaccurate. Peter Jaszi, both on his own and in collaboration with Martha Woodmansee, has shown that the Romantic Authorship trope – while false – still has become an active and destabilizing force in copyright doctrine and policy.

Northwestern law professor Olufunmilayo Arewa has written extensively about the ethos of collaboration and borrowing in the creative process (including in classical music), and Georgetown law professor Julie Cohen has discussed the dynamic interactions (.pdf) between individual creators and social and cultural patterns as the root of authorship.

Even French philosophers such as Michel Foucault (.pdf) and Roland Barthes (.pdf) essentially have questioned the premise of the author as solitary genius — no insignificant question given that both men come from a country that takes authorship genius (as manifested through the concept of droit moral) to a far greater degree than exists under U.S. law. In the end, the “mine” that Helprin wants to champion really is more like an “ours,” since virtually every creation will be derived from something else. (In fact, one could make a reasonable argument that the default nature of authorship in a digitally networked society is not the mix, but instead the remix.)

There is also an irony in the authorship construct that Helprin promotes. If one assumes that an individual’s creativity is king, then it would play a larger role in contemporary copyright law than it actually does. A person’s work qualifies to receive copyright protection once he creates something original, then fixes it in some recording that can be perceived by another person. The level of original creativity that U.S. law requires, however, is relatively slight. Helprin suggests every piece of writing is a War and Peace in the making, and thus the law should go to the extreme to protect such creative epics. But the fact is that American law does not require the proverbial opus: according to the U.S. Supreme Court’s opinion in Feist v. Rural, 499 U.S. 340 (1991), “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

Influencing Copyright Law & Policy

Helprin’s views about a certain class of copyright lobbyists are more easily dismissed. In the May 11 WSJ editorial, Helprin sharply attacks organizations he considers to be anti-copyright (and by extension, perhaps also against creativity):

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call “content.” The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

The opponents of copyright are no more disinterested than its defenders, although they do a good job of pretending, and their theories have become the window dressing for the piracy of software, music, movies — and soon the written word. They may claim that they are not against copyright per se. But if, as they repeatedly assert, copyright is an unjustifiable tax, a monopoly, and a bar to creativity, why wouldn’t they or anyone else be against it, as in fact they are?

Specifically as to Creative Commons, we have said before that our problem with the entire CC concept is that it moves copyright issues into the realm of contract law instead repairing their federal statutory and political bases. The flip side is that if the current copyright system was in its proper, Constitutionally-mandated balance, it is possible there would be no need for organizations like Creative Commons, or Electronic Frontier Foundation, or Public Knowledge.

To this end, Helprin’s argument sounds suspiciously like Republicans who now whine they have no political organizations to represent their views like the Democratic-oriented Center for American Progress, all the while forgetting they spent years building and funding organizations like the Heritage Foundation.

Since Helprin apparently is new to the copyright game, perhaps we can forgive his ignorance for not realizing that RIAA, MPAA, BSA, IIPA and lobbyists for various other corporate copyright portfolio owners not only are well-funded and organized, but long have been the exclusive arbiters of U.S. and international copyright law and policy, as both Jessica Litman and William Patry have noted. Interestingly, none of those lobbying organizations have authors’ or creators’ best interests in mind. Sure, their marketing and political rhetoric is quick to mention the author (in all her Romantic glory) and their protection of her art. In actuality, however, those lobbyists mention the author or creator merely to humanize their true clients: multinational corporations whose revenues, profits, expense account sizes, and share prices all depend on licensing one or more of the six rights a copyright owner receives under the 1976 Act.

Of course, the only way the corporations can do this is to actually own the rights in the first place, thereby divesting that same author or creator of the legal or economic power that arises from her creation. In reality, copyright ownership in the U.S. is often a zero-sum game: the authors get zero, and corporate owners get the sum. Helprin cannot reasonably refute this.

Again, we can excuse Helprin’s ignorance of the industrial and legal realities: copyright, unfortunately and after all, is complicated. There is no excuse, however, for patently misrepresenting the policy positions or the missions of the organizations he has chosen to attack. Some of us at Copycense have been involved in copyright matters going back more than a decade from the legal and political standpoint, and for more than 30 years from the creative standpoint. At no point have we heard or read anything from EFF, Public Knowledge, Creative Commons, or a similarly situated organization that serves as “the window dressing for ‘piracy.'”

Do we agree with everything these organizations promote? Certainly not, and regular readers know we have said so. But even a cursory glance at their positions would reveal all are in favor of balanced copyright legislation. None of these organizations, however, give any credence to Helprin’s tight embrace of the Romantic Authorship construct. Unfortunately for him, neither does the history of copyright law, either in the U.S. or in England.

We have no problem with accepting new voices into the copyright debate. Indeed, it is the absence of new voices and new ideas that has led us to the imbalance that exists. But all new voices should be required to perform some basic research and due diligence before opining so publicly about the state of the copyright world. At least based upon his editorials, Helprin clearly has not.

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