Dissonant harmonization: limitations on 'cash n' carry' creativity.

Albany Law ReviewVol. 70 Nbr. 4, September 2007

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Symposium: Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property

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Dissonant harmonization: limitations on 'cash n' carry' creativity.

"Who is that?" "Nobody. The author." (1)


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.


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 compensati...

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