The ideology of authorship revisited: authors, markets, and liberal values in early American copyright.

• Author: Bracha, Oren

ARTICLE CONTENTS INTRODUCTION I. ORIGINAL AUTHORSHIP AND COPYRIGHT LAW II. THE PUBLISHER'S PRIVILEGE IN AUTHORIAL HANDS: AMERICAN COPYRIGHT AT THE END OF THE EIGHTEENTH CENTURY III. CREATION EX NIHILO?: ORIGINALITY A. The Strange Career of Originality B. Originality in Context IV. OBJECTS OF PROPERTY: THE WORK A. The Rise of the Work B. The Rise of the Work in Context V. OWNERS OF PROPERTY: THE WORK-FOR-HIRE DOCTRINE A. Ownership and the Appearance of the Work-for-Hire Doctrine B. Ownership in Context CONCLUSION: THE IDEOLOGY OF AUTHORSHIP REVISITED INTRODUCTION

Copyright in the West, we are often told, is deeply entangled with the modern notion of authorship. (1) Authorship is copyright's ghost in the machine. In American culture, too, the author--as the heroic creator of original intellectual works and as their rightful owner--looms large. The author plays an important role in popular understanding of copyright law. He even left his imprint on the U.S. Constitution, which vests in Congress the power of "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (2) Even in this postmodern era during which the "death of the author" has been proclaimed countless times, (3) we often continue to picture solitary authors creating original ideas ex nihilo through their intellectual labors. This picture lies at the normative heart of our vision of copyright.

Over the past few decades, however, legal and literary historians have joined the broader scholarly trend of "deconstructing" the myth of the author. (4) These scholars have analyzed the author as an ideological construct, traced the joint history of this construct and modern copyright, and exposed the many ways in which the myth of authorship as a solitary and individualist production of radically new ideas conflicts with the social realities of creation. They also have argued that modern copyright law and its fundamental structures rest heavily on the social construct of the author.

Is the construct of authorship the key for understanding modern American copyright law and its history? Yes and no! The myth of the author is indeed a central element in modern copyright law, but as a matter of legal doctrine, copyright does not directly rest on and, more importantly, never has directly rested on this myth. The relationship between the law of copyright and the myth of authorship is far more complex and interesting than recent history and theory suggest. The purpose of this Article is to supply a better and richer understanding of the relationship between American copyright and authorship. The Article revises existing accounts of copyright and authorship by describing the ways that concepts of authorship interacted with fundamental copyright doctrines in America within a specific historical and social context--the crucial, formative era of the nineteenth century.

The structure of my argument is as follows. Part I supplies a brief introduction to existing scholarship about the history of authorship and copyright. It argues that, alongside its important insights, this scholarship suffers from several shortcomings. Most importantly, many existing accounts assume that by the end of the late eighteenth century, copyright had become infused with a specific image of creative authorship that still dominates it today. The difficulty with this assumption is highlighted by the obvious discrepancies between many fundamental features of copyright law and the vision of original authorship that supposedly dominates it. I suggest that the difficulty may be resolved and a better understanding of the relationship between copyright and authorship may be gained by a close look at the nineteenth century. During this period, original authorship concepts were gradually embedded in the actual doctrinal structures of copyright in ways that fundamentally transformed both.

Turning to the account of copyright and authorship in nineteenth-century America, Part II begins by describing late eighteenth-century American copyright as in transition from being a publisher's privilege to being an author's right in her intellectual product. By the turn of the century copyright was formally bestowed on authors rather than publishers or printers. Copyright rhetoric flaunted original authorship and elevated it to the status of a fundamental principle and ultimate justification. Yet the basic institutional form of copyright remained unchanged. It was still the same limited economic privilege of malting and selling reproductions of printed texts as it was in its days as a publisher's privilege. During the nineteenth century, however, copyright underwent a fundamental transformation. It was gradually reshaped into a general right of ownership of creative works. While concepts of authorship played an important role in this process, it was by no means the unfolding or implementation of a preexisting theory of original authorship in copyright doctrine. The intellectual and doctrinal constructs that emerged during the nineteenth century were completely new.

The following Parts provide a detailed account of the development of three central areas of copyright during the nineteenth century and their interaction with the ideology of authorship. These Parts also explain the social context of these developments, including economic, ideological, and cultural changes characteristic of the emerging mass-market society.

Part III discusses the doctrine of originality. The legal requirement of originality first appeared in American copyright law during the 1820s. From the outset, competing understandings of the requirement appeared. In one line of cases, judges took originality seriously by imposing relatively demanding and meaningful requirements of novelty or aesthetic merit as a precondition for copyright protection. Another line of cases constructed originality quite differently as a very minimal and narrow requirement. By the late nineteenth century, two developments had occurred. The second line of cases was clearly triumphant, and an extreme version of the minimalist understanding of originality became the conventional wisdom among judges and commentators. At the same time, however, originality was elevated to an unprecedented rhetorical and formal status. Originality came to be seen as a defining principle of the field and as a constitutional requirement. The result was the paradoxical character of the modern originality requirement: the lower its practical bite as a substantive threshold for protection sank, the more dominant its status as a fundamental principle became.

Part IV describes the development of doctrines that define the character and scope of copyright ownership as well as the overarching concept of the intellectual work underlying them. It argues that at the end of the eighteenth century copyright was a very limited exclusive entitlement to making verbatim or near-verbatim reproductions in print. Gradually, the scope of protection was abstracted and expanded to encompass a growing sphere of uses. Complementing the expanded scope, a growing number of exclusive entitlements such as translation and dramatization were added during the second half of the nineteenth century. A new concept of copyright as general control of an intellectual work that could take a variety of concrete forms drove this process and in turn was fueled by it. As the traditional self-restrictive character of copyright dissolved, new, more limited, boundary-setting mechanisms appeared. In a society deeply committed to a political and moral ideal of uninhibited access to information, these mechanisms--most importantly the fair use doctrine and the idea/expression dichotomy--purported to ensure the free flow of knowledge in society. Ironically, the broader and stronger copyright protection became, the more vocal grew the insistence that copyright left all knowledge free as the air.

Part V explores the development of rules that allocate initial copyright ownership. In contrast with the two other doctrinal contexts, the pattern here was closer to that of gradual erosion. A regime that initially expressed rather coherently the new eighteenth-century principle of the author's ownership of his intellectual product came under increasing strain from economic interests and the growing complexity of production patterns during the nineteenth century. The early American copyright regime was consistent with its new grounding in authorship in one basic but important way: authors were the original owners of the rights protected by copyright. The creators of texts were either the actual owners of legal rights in them or the source from which these rights were transferred to others. During the second half of the nineteenth century, the principle of authorial ownership gradually eroded. New precedents involving production in hierarchical or collaborative settings gradually allocated ownership away from the hands of actual creators. At the turn of the century, this process culminated in two developments. In the absence of an express contract to the contrary, a new judge-made default rule placed ownership in the hands of an employer or a commissioning entity, and the 1909 Copyright Act's work-for-hire doctrine explicitly vested ownership of employees' works in their employers. When this process was complete, the most basic imperative of the authorship-based understanding of copyright was clearly abandoned as an inadequate anachronism or was left as an empty rhetorical shell. In numerous cases, authors were no longer the owners of their intellectual product, not even as a formal matter. Still, even in this context there were some remnants of the dominant representation of copyright in terms of authorship. In some cases, individualist authorship tropes were applied to the corporate employer in order to justify its ownership. In others, authorial ownership was identified as a...