Who Owns What Writers Write? American Authors and Intellectual
Property
Richard Fine
Virginia Commonwealth University
I have about a twenty minute paper I thought I would
actually read in a moment, a truncated version of one I gave this summer
at the SHARP conference. I fear, though, that some of you may have come
expecting an answer to the question I asked in the title: Who owns what
writers write? hoping I'd clear the murky waters of copyright for you in
an instant. Fools that you were.
Both statute and case law in copyright are notoriously
complicated, and never more so than today. (Some argue that this ignorance
of copyright fundamentals have left those fundamentals obscured, and that
copyright owners intentional encourage that confusion). All I can tell
you is that there are no simple answers to who owns what writers write
or what "owning" a text actually means. And that most of us,
even as we deal with copyright on a daily basis, harbor many misconceptions
about what copyright actually is.
First of all, it is not a property right (although it
is often interpreted as such by judges). It is, rather, the grant of a
limited monopoly (by the state) on the right to publish a work (it is thus
law in regulation of trade, not property), that grant being based on the
Constitutional mandate for Congress to "promote the Progress of Science
[learning or knowledge] and the Useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries." Thus copyright is the means to three ends, in descending
order of importance: the promotion of learning, the preservation of the
public domain, and the protection of the author. Put another way, the protection
of author from the pilfering of their work is an incidental feature of
copyright; the main feature is to promote the public welfare through the
advancement of knowledge. Ray Patterson, the most eminent legal historian
of copyright, stresses need to view copyright as involving not only authors,
and the entrepreneur's component derived from the authors, but also the
user's rights. And authors, publishers and customers are all users of copyrighted
material. Patterson's argument is compelling, weighted in rich historical
analysis, but has not swayed too many Federal judges.
All this to say there are a range of ways copyright particularly
shapes our activity as writers, readers, and, for some of us, as teachers.
Some of us produce copyrighted works,. But we also consume them-use them
in our work-from photocopying of class materials, to gathering permissions
for a critical monograph or novel, to paraphrasing a letter found in an
archival collection. Hope we might have time at end to talk more about
this if you wish. All this as general preface and on to the paper. When
I started this paper a couple of months ago I referred with alarm at the
proposal I had sent to the program committee. I had written that I would
survey "the work of legal scholars who have recently developed a critique
of conventional assumptions about copyright and assess the ramifications
of this work for the exploration of American authorship. I would then focus
specifically on the work of legal scholar James Boyle. I would then locate
in these reconceptualizations of authorship, of intellectual property and
of copyright might help construct a coherent and historical narrative of
American authorship. Whew. All in twenty minutes. All I can say now is
what in the name of Guttenberg possessed me?
Nonetheless, that is briefly what I proposed to do then and
propose to you now-discuss Critical Legal Studies, or CLS as it is known,
generally and the work of James Boyle specifically, and then indicate some
of the ways I've found this work helpful in thinking about American authorship.
As Meredith McGill pointed out most recently in an article in ALH, the
American experience differs significantly from the British regarding copyright
and authorship, but some of this may also be instructive outside of the
American context.
First, then, what is Critical Legal Studies? CLS is a
movement in legal scholarship during the past twenty years which is defined
chiefly by a dissatisfaction with what are seen as the inconsistencies
of classical liberal legal theory-on liberal notions of impartial justice
and objective legal reasoning CLS challenges some of the most cherished
ideals of modern Western legal and political thought and is also marked,
and often caricatured, by an expressed commitment to a more egalitarian
society. The name most closely associated with CLS is that of Roberto Ungar,
whose two books, Knowledge and Power (1975) and The Critical Legal Studies
Movement (1986) are among its principal texts. Its roots as a movement
are often traced to the Legal Realists of the 1920s and to the New Left
of the 1960s, and more specifically to the first Conference on Critical
Legal Studies at the University of Wisconsin in 1977.
Critical Legal Studies is thus "critical" in
two senses-as a radical leftist critique of the legitimacy of Western legal
institutions, and as part of the more philosophically Postmodern critique
of "text," in this case legal texts, which stresses both their
contingency and their social construction as instruments often deployed
by socially-powerful elites. In this sense, CLS is the wave of postmodern
thought breaking over law schools just as it has so many other corners
of the academy, most obviously English departments, and evidently any number
of bloody tenure battles have raged in law schools over faculty identified
with the CLS movement.
What makes CLS such a radical critique of the law is
that it challenges the very philosophical premises of Western jurisprudence-its
formalism and objectivism. As Unger himself writes: "The critical
legal studies movement has undermined the central ideas of modern legal
thought and put another conception of law in their place." Much of
the scholarship in CLS has concerned broader issues of social justice,
distribution of resources, or has deconstructed notions of legal rationality,
impartiality and "fairness." However, a number of legal scholars
affiliated with the CLS movement or sympathetic to it have focused their
investigations into the ways the law considers information broadly and
intellectual property issues in particular. It is this work which I find
most intriguing and most relevant to our work as historians of reading,
publishing and authorship.
Let me turn for a moment to the work of James Boyle,
the most impressive thinker of this group to my mind. Boyle has been a
major figure in the attempt by a fairly large cadre of literary theorists,
legal scholars and copyright lawyers (organized by the Society for Critical
exchange) to sound an alarm about the public policy implications of current
copyright legislation (including international copyright issues, etc.).
One particularly comfy conference in Italy resulted in the self-named "Bellagio
Declaration," I suspect much of it authored by Boyle, which declares,
among other things, that "contemporary intellectual property law is
constructed around the notion of the author, the individual, solitary,
and original creator, and it is for this figure that its protections are
reserved. Those who do not fit this model-custodians of tribal culture
and medical knowledge, collectives practicing traditional artistic and
musical forms, or peasant cultivators of valuable seed varieties, for example-are
denied intellectual property protection. Such a system, the Bellagio-istas
insist, has strongly negative consequences, including that it tends to
obscure or undervalue the importance of the public domain, the intellectual
and cultural commons of the future.
Boyle's recent book, Shamans, Software and Spleens: Law
and the Construction of the Information Society, is an attempt to construct
a social theory of information which could then inform a new and--to Boyle's
mind--a more democratic and equitable intellectual property regime. This
is no mere polemic; Boyle's analysis is acute, at times forensically devastating,
as well as informed by admirable erudition and lively, witty writing. Boyle
examines four puzzles in seemingly disparate realms of information-copyright,
blackmail, insider trading, and genetic research. Each dramatizes the complex
ways in which our ideas about information are socially constructed, and
just how that construction includes a number of crucial conceptual tensions
and aporias, a favorite Boyle word (i.e. personal versus public realms
of interest in information, how much or little to regulate trade in information
and to what ends, among others).
In the case of copyright, Boyle identifies the fundamental
paradox of copyright law that we grant a private protection in order to
achieve a public end-the promotion of knowledge. Boyle sees the conflict
between public and private spheres as particularly crucial here-in part
because, in his words, "copyright ¼forces us to confront the
fact that property rights are not absolute, despite the popular-and occasionally
the legal-insistence to the contrary. You 'own' a book for some purposes
and not for others." Boyle reminds us that "Copyright is a fence
to keep the public out as well as a scaffolding for the billboards displayed
in the marketplace of ideas; it can be used to deny biographers the ability
to quote from or to paraphrase letters; to silence parody; to control the
packaging, context, and presentation of information." In the case
of blackmail, Boyle sees similar quandaries regarding the ownership of
information at work. Why is blackmail illegal? One can understand when
blackmail is accompanied by threats to do physical harm, but what about
the case, Boyle asks, "where a private individual asks another private
individual for money as the price of not revealing legally obtained information
about activities perfectly legal themselves. 'If you do not pay me $100,
I will reveal to your boyfriend the fact that I saw you coming out of another
man's house at two o'clock in the morning." Tell me why that is illegal.
And how does it differ from a baseball team threatening to move cities
if a new stadium is not built, a perfectly legal gambit? Boyle sees the
same kind of typing of information as public and private at work here as
in copyright and he uses legal scholars' inability to grapple in a meaningful
way with this very issue-why blackmail is illegal-as exploding in some
sense the objectivist view of information, the notion that it can neatly
be categorized into public and private realms; blackmail issues can be
sliced like so much salami.
The case of insider trading provides the reverse puzzle-why
is insider trading illegal (certain individuals can't trade in stocks based
on certain kinds of nonpublic information). We live in a system which distributes
wealth through a market system built on inequality of economic power and
which normally exalts an individual who is able to convert some temporary
advantage of information or economic leverage into a position of market
advantage. Why not here?
In the case of genetic information, Boyle focuses on
the truly bizarre case of one John Moore, who in 1976 started treatment
for leukemia at the University of California Medical Center. His doctors
soon became aware that some of his blood products were potentially of great
commercial value. They performed a variety of tests without informing Moore
of their commercial interest, and eventually removed Moore's spleen, a
procedure for which there was medical justification. However, instead of
disposing of it, they took part of it to their research lab, without Moore's
knowledge or consent. In 1981, a cell line established from Moore's T-lymphocyte
cells was patented by the University of California, with Moore's doctors
listed as the inventors. When Moore got wind of this, he sued. Can you
guess who won? Who "owned" Moore's spleen, or more precisely,
the genetic information encoded in it?
The central strand of Boyle's argument is the extent
to which Western legal scholars, including judges, have resorted to the
figure of the author as an original, autonomous creator to resolve (or
at least attempt to) such paradoxes in the treatment of information. In
this Boyle draws on the work of Martha Woodmansee and others, familiar
to many of us here, who have located in the Romantic era the historical
moment when the author was elevated from one of any number of book makers
to the status of the original creative genius-and how that both shaped
and was shaped by the commodification of literature occurring at the same
time. The originality of the author, the novelty which he or she adds to
the raw materials provided by the culture "justifies" the property
right, and also helps resolve the conceptual conflict at the heart of copyright-why
private ownership is inappropriate for ideas but appropriate for their
expression.
This language of romantic, original authorship Boyle
sees pop up time and again in discussions of the treatment of information
in law-in copyright itself, in blackmail, in insider trading, and nowhere
more strikingly than in Moore vs. the University of California-the spleen
case. To quote from the court's decision, "Human cell lines are patentable
because long-term adaptation and growth of human tissues and cells in culture
is difficult-often considered an art-and the probability of success is
low. …It is the inventive effort that patent law rewards, not the discovery
of naturally-occurring raw materials." There is something astonishing
in the way that Moore becomes a "naturally occurring raw material"
whose "unoriginal" raw material is rendered unique and valuable
by the "inventive effort," "ingenuity," and "artistry"
of his doctors. The tendency to view questions of information through the
lens of romantic authorship led these judges, as so many others, to cast
around until they found the people who most resemble authors, whereupon
they confer property rights on them.
Boyle stresses that this conferring of property rights
on those who come closest to the image of the romantic author, indeed the
image of the romantic author itself, is bad social policy, bad because
for a variety of reasons it is both inefficient and unjust. It leads us
to have too many such property rights conferred on the wrong people, and
also undervalues the interest of both sources and audiences for the information
we commodify, thus stifling the intent of intellectual property protection-the
creation of new knowledge. For Boyle, it is most often the institutional
or corporate concerns which employ the actual creators of information,
that most benefit and that, ironically, often justify their own derivative
intellectual property rights through the rhetoric of individualism and
original genius. In short, the rhetoric of romantic authorship is used
to support sweeping intellectual property rights for large corporate entities
rather than individual creators. "Sony, Pfizer and Microsoft,"
Boyle wryly observes, "tend to lack the appeal of Byron and Alexander
Fleming." Moreover, actual authors-writers, inventors and software
engineers-often lose out under the existing intellectual property regime,
as such expansive rights are claimed that they make it harder for future
independent creators actually to create. This is particularly true regarding
software, where the very languages have been copyrighted. The public domain,
our shared intellectual commons, is shrinking-or at least is under threat.
So, finally, what is the relevance of this argument to the
history of American authorship? I've argued on other occasions that whatever
the many merits of the many studies of American authorship that have appeared
in the thirty years since William Charvat began plowing this ground, we
have yet to come close to a master narrative or unified theory if you will
of American authorship. I won't rehearse that argument here, but merely
say that most of these studies, my own included, tend a bit toward the
myopic, focusing on the literary marketplace at a particular time, or on
a specific author's negotiation of that marketplace. One clue to how limited
the view of such studies can be is that they invariably describe the historical
moment under scrutiny as one of great or sweeping change, often technologically
driven. If one were to assemble a narrative of American authorship from
these combined studies it would be one marked at every instant by turbulent,
paradigm-shifting change in the literary marketplace. Yet-and this is the
first corrective insight I gleaned from Boyle and the other CLS scholars
who've treated this issue-it is precisely the persistence, the stability
of the figure of the romantic author as original transformative genius,
which defines authorship over the past 200-plus years. Technological change,
or change in specific commercial practice, seems less striking, less important
in this light.
I would add as an aside that Boyle's book and other CLS
work exploring this conceptual territory also challenges other assumptions
often made, or at least made by me, about authorship. For example, we have
tended to compartmentalize copyright, to view it too discretely and not
place it within the broader context of how American society has viewed
and dealt with information more broadly.
Secondly, and perhaps more crucially, most scholars of
American authorship (and again I include myself) have generally conceived
of the development of copyright as a contestation between authors (who
deserve such protection in the form of a property right) and publishers
and others who market the writer's work and who want to grasp such rights
for themselves. To the extent that such protections were strengthened,
tant mieux, so much the better for authors. We're always rooting for the
writers. If anyone else should lose out, tant pis. In Boyle's conception,
increased copyright protection may not be such a boon to authors and authorship
as we have presumed, neither in increased return on their investment of
inspiration and labor (which has often gone to the publisher) nor as a
spur to the increased promotion of knowledge (as increasing areas of information
are roped off from public use). In other words, we have been too "authoro-centric."
Again, if we to attempt to tease out a dominant narrative
of American authorship from extant studies, it would-with notable exceptions,
describe the writer as a passive victim of changes in the literary marketplace,
or at best as struggling to accommodate changes which tended to erode authorial
autonomy. Boyle and others suggest that we may at best have missed the
point or at worst got it precisely backwards. Rather than being done in
by others, or having been shaped by the external pressures of a marketplace
not of their own making, authors have indeed been active agents in shaping
that marketplace to the extent that they have embraced-even perpetuated-the
figure of the author as the transformative, original genius. There is indeed
a double irony here in that rather than the culturally-marginalized figures
we have often portrayed them to be, reluctant actors on the commercial
stage, authors have been actively engaged in constructing an image of the
author-the romantic figure-which has powerfully shaped the very basis upon
which public conceptions of information and intellectual property far beyond
the realm of pen and paper. To close, CLS scholars suggest that American
writers may have more powerfully and actively shaped the literary marketplace
than they, or we, have realized.
Reference List--Copyright and Critical Legal Studies
Altman, Andrew. Critical Legal Studies: A Liberal Critique.
Princeton: Princeton UP, 1990.
Boyle, James, ed. Critical Legal Studies. NY: NYU Press,
1992.
Boyle, James. Shamans, Software and Spleens: Law and the
Construction of the Information Society. Cambridge: Harvard UP, 1996.
Coombe, Rosemary. "Authorial Carthographies; Mapping
Proprietary Borders in a Less-Than-Brave New World." Stanford Law
Review 48(1996): 1357-66.
Jaszi, Peter. "Toward a Theory of Copyright: The
Metamorphoses of 'Authorship.'" 41 Duke Law Journal 455 (1991).
Patterson, L. Ray and Stanley W. Lindberg. The Nature
of Copyright: A Law of User's Rights. Athens, GA: U Georgia P, 1991.
Ungar, Roberto. Knowledge and Politics. NY: Free Press,
1975.
-------------------. The Critical Legal Studies Movement.
Cambridge: Harvard UP, 1986.
Woodmansee, Martha. "The Genius and the Copyright:
Economic and Legal Conditions of the Emergence of the 'Author'." Eighteenth-Century
Studies 17.4 (1984): 425-448.
Woodmansee, Martha and Peter Jaszi, eds. The Construction
of Authorship: Textual Appropriation in Law and Literature. Durham: Duke
UP, 1994.
Studies in American Authorship
Borus, Daniel J. Writing Realism: Howells, James and Norris
in the Mass Market. Chapel Hill: University of North Carolina Press, 1989.
(over) Charvat, William. Literary Publishing in America, 1790-1850. Philadelphia:
University of Pennsylvania Press, 1959.
-----. The Profession of Authorship in the United States.
Edited by Matthew J. Bruccoli. Columbus: Ohio State University Press, 1968.
Coultrap-McQuin, Susan. Doing Literary Business: American
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Carolina Press, 1990.
Davidson, Cathy N. Revolution and the Word: The Rise of
the Novel in America. NY: Oxford University Press, 1986.
Fine, Richard. James M. Cain and the American Authors
Authority. Austin: University of Texas Press, 1992.
-------. West of Eden: Writers in Hollywood, 1928-1940.
Washington: Smithsonian Institution Press, 1993.
Fink, Stephen. Prophet in the Marketplace: Thoreau's development
as a Professional Writer. Princeton: Princeton University Press, 1992.
Jacobson, Marcia Ann. Henry James and the Mass Market.
University, Al: University of Alabama Press, 1983.
Kaplan, Amy. The Social Construction of American Realism.
Chicago: University of Chicago Press, 1988.
West, James L. W. III. American Authors and the Literary
Marketplace since 1900. Philadelphia: University of Pennsylvania Press,
1988.
Wilson, Christopher P. The Labor of Words: Literary Professionalism
in the Progressive Era. Athens: University of Georgia Press, 1985.
Wilson, R. Jackson. Figures of Speech: American Writers
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New York: Alfred A. Knopf, 1989.