This highly original article makes a welcome contribution to a decades-old debate. Although formulated in the esoteric terms of intellectual-property law, it is a debate that seems to expose deep and wide-ranging conceptual divisions in our cultural lives (the individual versus the communal, innovation versus tradition, the Self versus the Other). Martin Fredriksson (MF) makes a genuinely new intervention by drawing attention to a little-noticed provision in the copyright laws of certain countries--what in Sweden is called klassikerskyddet, the protection of classic works.
MF uses this relatively obscure provision to shine new light on a set of familiar notions, especially 'authorship', 'folklore', and the 'commons', as well as making larger points about legal imperialism and the incoherence of normative systems. The central binary he examines is "the dichotomy between commons and authorship--between collective creativity and private appropriation." In developed-world legal systems, because 'works of authorship' are seen as the unique products of individual genius, they are protected by intellectual-property (IP) law, with ownership vested in their creators. However, because the "traditional cultural expressions" (TCE) of indigenous peoples are seen as anonymous and collectively created, international IP law--which ethnocentrically fails to recognize or value communal creativity--offers them no protection. This binary is what makes Sweden's klassikerskyddet so interesting since it seems to be a cultural-property provision embedded in developed-world IP law. Since it is inconsistent with the fundamental principles of the IP system, its presence there exposes that system as incoherent, and questions the dichotomies of individual authorship versus collective creativity and private appropriation versus the commons.
In what follows I'll offer a few scattered thoughts on MF's dichotomies, but I would first like to comment on legal incoherence in general, and its possible usefulness. The internal inconsistency MF uncovers in Swedish copyright law is one example of a broader phenomenon. Incoherence, we might say, is the default condition of law. This is true for at least two reasons.
Legal concepts are elaborated over time by drawing on "legal formants" (Sacco 1991), a disparate set of authorities, not all of which are mutually consistent. Consider, for example, the multiplicity of definitions of 'originality' that frustrate US jurists. This criterion of copyrightability has been both historically inconstant and doctrinally uncertain. Jane Ginsburg argues that there are two de facto originality thresholds: one protecting the creative presence in "high authorship" works like novels, and one protecting the sweat of the brow in "low authorship" works like telephone directories (1990:1870). Hence the enduring tension between creativity and expenditure of labor as the criterion of copyrightability.
Second, the piecemeal, cumulative process of law-making is a potential threat to whatever degree of consistency a statute may possess. Since legislation is the result of a drafting process that often involves compromises--which are not necessarily conceived of as compromises between general principles (Litman 2001:77)--a statute can seem to embody internally inconsistent logic. Indeed, given the trade-offs and log-rolling that drive the legislative process, such inconsistency might be the most likely outcome: "the...