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Vesting copyright in Authors – rather than exploiters – was an innovation in the 18th century. It made authorship the functional and moral center of the system. But all too often in fact, authors neither control nor derive substantial benefits from their work. In the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free-speaking users. If authors have any role in this scenario, it is at most a walk-on, a cameo appearance as victims of monopolist “content owners.” The disappearance of the author moreover justifies disrespect for copyright – after all, those downloading teenagers aren’t ripping off the authors and performers, the major record companies have already done that.

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral lustre it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only challenges traditional revenue models, but also calls into question whatever artistic control the author may retain over her work. I will examine both prongs of the pincers, and then will suggest some reasons for optimism for the future.


Intellectual Property Law | Law