The Concept of Authorship in Comparative Copyright Law
In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocusing discussion on authors – the constitutional subjects of copyright – should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way-station on the road to the public domain. Nor does a view of copyright as a necessary incentive to invest in dissemination of copy-vulnerable productions adequately account for the nature and scope of legal protections. Much of copyright law in the US and abroad makes sense only if one recognizes the centrality of the author, the human creator of the work. Because copyright arises out of the act of creating a work, authors have moral claims that neither corporate intermediaries nor consumer end-users can (straightfacedly) assert. This makes it all the important to attempt to discern just what authorship means in today's copyright systems.
This Article endeavors to explore the concept of authorship in both common law and civil law jurisdictions. It considers legislative, judicial and secondary authorities in the US, the UK, Canada and Australia, as well as in the civil law countries of France, Belgium and the Netherlands. The legal systems here examined appear to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution. But that description may neither fully capture nor exhaust the category of "authors." Contending additional or alternative authorial characteristics range from sweat of the ordinary brow, to highly skilled labor, to intent to be a creative author, to investment. The under- or over-inclusiveness of the subjective judgment criterion depends on which of these other characteristics national laws credit. Despite these variations, I nonetheless conclude that in copyright law, an author is (or should be) a human creator who, notwithstanding the constraints of her task, succeeds in exercising minimal personal autonomy in her fashioning of the work. Because, and to the extent that, she molds the work to her vision (be it even a myopic one), she is entitled not only to recognition and payment, but to exert some artistic control over it. If copyright laws do not derive their authority from human creativity, but instead seek merely to compensate investment, then the scope of protection should be rethought and perhaps reduced.