Columbia Public Law & Legal Theory Working Papers

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Forthcoming in, EVOLUTION AND EQUILIBRIUM: COPYRIGHT THIS CENTURY (Susy Frankel and Daniel Gervais, eds. 2013)

Abstract

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship have needed the flexibility with which these kinds of exceptions temper exclusive rights.

Next I will examine the bolder proposition that, compared with their need for limitations on copyright, authors today neither desire nor require exclusive rights. The claim suggests that today’s authors do not (or should not) seek to make a living from or control the exploitation of their creations. Behind the belittling of exclusive rights there loom significant business interests built on the expansion of copyright exceptions. The exceptions in question do not foster creativity, they redistribute the fruits of creativity. They are authorship-undermining exceptions because their justification increasingly relies on the denigration of proprietary authorship.

It has long been popular to point out that the romantic author has long been a front for unromantic, unlovable copyright industries, from the booksellers of the eighteenth century to the MPAA and RIAA of today. I would like to suggest that today’s counterpart – or antidote? – to the romantic author, the techno postmodernist participant, is also a shill for big industry. The instrumentalization of the author, or of the anti-author, still serves big business, it’s just that the business consumes copyrighted works, rather than produces them.

Date of Authorship for this Version

Winter 2-19-2013

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