Dissonant harmonization: limitations on 'cash n' carry' creativity.
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"Who is that?" "Nobody. The author." (1)ABSTRACT Even though creativity lies at the heart of present copyright laws, the impulse to create--or more precisely what triggers such creativity--remains largely unexamined. (2) Coinciding with the digital demand for access to information, new standards for "cash 'n' carry" creativity are being urged with little regard to what level of authorial (3) control may be required to ensure continued enrichment of the public domain through the creation of vibrant new works. Scientific, psychological, and sociological studies indicate that "cash 'n' carry" creativity fails to implement the critical triggering mechanisms for the creative impulse. Moreover, such "cash 'n' carry" attitudes toward authors' rights threaten to establish new international harmonization standards that continue the inequality of earlier protection regimes. Instead of freeing works for the public domain, current movements such as "access to knowledge," if not carefully circumscribed in the copyright area, may adversely impact efforts by developing nations and previously excluded voices to protect local creative industries. Dissonances between the roles of culture industries in economic development, and perceived boundaries of the public domain, must be respected. In fact, new international standards for the protection of "authors' rights" should actually be broadened in certain instances to allow protection for those voices whose creative works have been excluded or ignored in previous regimes, including protection for indigenous works of folklore and other traditional cultural expressions, and for works whose intellectual creativity has been previously under appreciated, including traditional "women's arts." Ultimately "cash 'n' carry" creativity as an international standard, without sufficient calibration for cultural and other dissonances, will only continue to marginalize the already-excluded. Effective harmonization requires more. INTRODUCTION There is no question that the latter decades of the twentieth century saw a purported increase in the amount of harmonization activities geared toward the general arena of copyright and its companion neighboring rights. Since the 1990s, we have seen a plethora of harmonization attempts: from the international codification of "Berne plus" standards in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), (4) to the "Internet" treaties--the World Intellectual Property Organization (WIPO) Copyright Treaty (5) and the WIPO Performances and Phonograms Treaty; (6) from the TRIPs Agreement and language of various free trade agreements regarding the role of copyright protection in the digital arena, (7) to the European Union directives regarding Copyright in the Information Society. (8) Although international and regional attempts at harmonization have occasionally stumbled--consider the aborted attempts to establish an audiovisual performances treaty (9) or a broadcast treaty (10) in the past decade--there is little reason to believe that harmonization efforts will not continue apace, at least at the regional level, in the near future. (11) There may be no more significant issue than the present and future debates over the scope of rights to be granted authors for their works. Regardless of the philosophical basis on which copyright protection is granted, (12) the heart of the issue remains the extent to which authors (and other creators) should have the right to control the use of their works by third parties. (13) A significant, and I believe included, corollary to this control right, is the question as to what the scope of any such control should be--is it exclusive? Under what circumstances, if any, does it give way to other interests? What is the value of such control? Compensatory? Hortatory? Prohibitive? Authorship (14) has been at the heart of copyright protection since at least 1710 when the Statute of Anne recognized an exclusive right of authors to control the publication of a limited category of works. (15) While there is a strong historical reason to believe that such authorial control may have initially been the result of a miscalculation by the publishing industry in attempting to reassert their original printer's monopoly over protected works (at least in part) (16) over time the role of the author as the center of rights in his or her work has achieved both domestic and international acceptance. (17) Yet, in the latter decades of the twentieth century and first decade of the twenty-first century, authorship and its correlative creativity have "taken it on the chin," so to speak. The importance of authorship has been questioned; creativity has been largely disconnected from it, and any authorial control under copyright is rapidly devolving into a "cash 'n' carry" compensatory right. (18) reducing the relationship between authorship, copyright, and control to little more than an economic right of compensation. (19) Before we can determine what the contours of copyright protection should be in the twenty-first century, we need to determine what authorship means in connection with the impulse to create new works. Is authorship a value to be cherished and encouraged because it represents some fount of creativity? If so, is creativity encouraged through economic exploitation rights alone? Or does authorship represent more than an economic relationship to one's work? Does it represent a value of personality or individuality that requires some form of legal protection, much as a person's home requires protection against uninvited intruders, regardless of its economic value? What type of legal protection is required? Compensation? Control? Attribution? Is authorship a legal construct which has lost its meaning in today's Digital Age where everyone is a "creator" and new works are created through digital manipulation which any twelve-year-old can accomplish? The questions we face are broad and the answers are critical. There is no doubt that, given today's vibrant reproductive culture, (20) issues about creativity, control, and the limits of the public domain may have changed. At a minimum, the question has to be asked whether a change has occurred to the extent that the "rules" for authorial control need to be rewritten. What I propose to do in this Article is examine the role of authorship through the lens of technology and tradition to determine what values must be included within a harmonized copyright system of the twenty-first century to secure the continued enrichment of the public domain through the creation of new works. In this Article, (21) I have limited my analysis of "creativity" to creative acts that result in works that represent aesthetic (as opposed to innovative) creativity. I make the distinction for several reasons. First, aesthetic creativity--creativity used to create novels, poetry, music, painting, sculpture, and other works based on aesthetics--has been the focus of copyright protection since the Statute of Anne (22) and is, therefore, a more appropriate focus for inquiry regarding authorial control. Second, and even more importantly, aesthetic creativity more clearly reflects the type of creativity whose productive output should be the subject of copyright protection, as opposed to other forms of intellectual property protection. Aesthetic works more clearly contain expressive content whose unique voice may be lost if protection is not provided to encourage the creation of works which embody that voice. (23) In Part II, I examine the checkered history of authorial protection, with particular emphasis on its early history as a censorship device. In Part II, I explore some of the new teachings about the nature of aesthetic creativity according to recent scientific and psychological studies. In Part III, I focus on what I call the "cash 'n' carry" nature of present copyright protection and what is missing from this debate. In Part IV, I consider the concept of the creative act in light of modern technological developments, as well as post-structuralism's deconstruction of the author. In Part V, I examine the nature of authorship as exemplified by non-traditional means of protecting creativity, including through the burgeoning international focus on the protection of traditional knowledge and on moral rights for creative endeavors. Part VI follows with an examination of the rights authors currently possess to determine when and how to share their works with the public for the first time. In Parts VII and VIII, I discuss the approaches of international human rights regimes to intellectual property rights, as well as the impact of "cash 'n' carry" copyright on developing nations and the need for a balance that protects the public domain while assuring the ability of the developing world to partake of the benefits of a growing audience for diverse cultural works. In Part IX, I propose a revised authorial control mechanism that balances both a heightened right of authorial control in certain areas and a reduced level of control in the critical arena of derivative rights. To achieve this balance, further studies on the impulse toward aesthetic creativity need to be conducted to assure that the scope of authorial control is no greater than required to achieve the goal of incentivizing the creation of new works. II. REMOVING THE SCARLET LETTER FROM COPYRIGHT'S TAWDRY PAST There is no debating that copyright has had a checkered past internationally. The first attempts to garner protection for published works of authorship were the notorious printers' guilds monopolies of the sixteenth century. (24) Protection was originally granted in the form of exclusive "patents" granted to stationers for the right to publish a particular manuscript. (25) The publisher, not the author, was given a perpetual monopoly on the publication of such tracts. (26) Behind such exclusive rights, however, was the ugly stepsister of censorships....
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