Document Type

Book Chapter

Publication Date

2014

DOI

https://doi.org/10.1017/CBO9781107477179.004

Abstract

A lawyer for an immense copyright-exploiting corporation, casting himself as a defender of authors’ rights, challenged his interlocutor’s incredulity with the following assertion: given today’s diversity of authors, ‘more of them depend on limitations and exceptions than on exclusive rights’. Some might cringe at the resemblance of this credo to Orwell’s ‘Freedom Is Slavery!’ Nonetheless, I would like to take seriously the proposition that today’s authors need copyright exceptions and limitations more than they need exclusive rights.

First, I will 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 US fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors tomake 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. Or, in the words of the same Orwellian advocate, ‘[c]opyright is not interested in people making a living, it’s interested in promoting creativity’ – as if creations will spontaneously sprout in even the most nutrient-starved soil. Of course, the Internet did not inaugurate the celebration of altruistic or amateur authorship. Genteel contempt for professional (that is, money-grubbing) authors predates the Statute of Anne. But today’s variation on the theme betrays more than social snobbery. 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.

Disciplines

Intellectual Property Law | Law

Comments

This material has been published in "The Evolution and Equilibrium of Copyright in the Digital Age", edited by Susy Frankel and Daniel Gervais. This version is free to view and download for private research and study only. Not for re-distribution or re-use.

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