Author
The »Author Effect« Revisited – Synopsis
Martha Woodmansee
The title I announced, The »Author Effect« Revisited, references an essay of mine included in a volume I co-edited on The Construction of Authorship back in 1994. The developments that have since transpired in creative production across the arts and humanities could only just be imagined then, but it was already apparent that our legal infrastructure would not be able to accommodate them and that a key impediment would be the concept of creative production – or »authorship« – at the law’s center. Hence my applause to the conveners of this symposium devoted to re-constructing authorship, and my thanks to them for including me.
»Authorship« is the term of art for the diverse modes of creative production that it is the function of Anglo copyright and European author’s rights to promote. These bodies of law cover painting, sculpture, music, film, literature – the whole spectrum of literary works from poems, plays, and novels, to the kind of scholarly writing that I do – and even computer software programs. As soon as we give some tangible expression to an idea, the law considers this a work of authorship and protects it from unauthorized reproduction by others for the author’s life plus 70 years.
»Authorship« acquired its legal meaning in the rich interdisciplinary – perhaps more precisely, predisciplinary – theoretical milieu of eighteenth and early nineteenth-century Europe. But as the disciplines specialized, conversation among them waned. So for more than a century they – law and literature particularly – have grappled more or less independently with the same body of ideas.
My aim here is to contribute to the revival announced by the symposium conveners of interdisciplinary reflection on the nature of »authorship« – and to support their aim to make reflection more cross-cultural. This is important because as those present are aware, copyright is increasingly misfiring – it is distributing property in ideas, information, and knowledge in really unacceptable ways. It can do this in large measure because of the antiquated Eurocentric understanding of authorship at its center. So my plan is to historically describe this understanding and then show you how it operates in several contemporary legal cases.
One may lay legal claim to ownership of ideas only insofar as one is an »author.« What is an author? In the usage that has been absorbed into the law an »author« is the individual responsible for the production of a unique »original« work. Its originality warrants the work’s legal protection both in Anglo copyright and in European author’s rights. And under pressure from the US and the EU, this body of law is being adopted by nations around the world to create a uniform legal infrastructure for global trade in ideas, information, and knowledge.
While the law’s way of defining authorship – as the production of a unique »original« work – seems straightforward and unproblematic to many lawyers and legal scholars, in the arts and humanities in the wake of structuralism and poststructuralism we view our creative work in more »intertextual« terms – we view it as more dependent on the work of others than such a definition suggests. We may work with stone, in oils on canvas, with pen and paper, or pixels – whatever our medium of preference, we invariably draw on the work of others in our creative activities, if not contemporaries working in close proximity, then those working at some temporal remove whom we may or may not acknowledge as »influences.« In other words, our creative work is largely derivative, it is in an important sense collective, corporate, and collaborative.
For most of human history this derivative aspect of new work was believed to contribute to, if not virtually to constitute the work’s value. Writers, for example, like other artisans, considered their task to lie in reworking traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics. It was only in the course of the eighteenth century, and then chiefly in Western Europe, that an alternative vision of creative production focusing on the endowments and accomplishments of the individual genius emerged. In a sharp departure from the self-understanding of writers of previous generations, authors in the new »Romantic« mode began to view their task to lie in innovation – to lie in breaking with inherited tradition to create something utterly new, unique – in a word, »original.« Their heroic vision caught on and it mystified the creative process, obscuring the reliance of these writers on the work of others.
In my subsequent remarks, I first analyzed the key elements of the Romantic vision of authorship by examining with the audience a selection of texts from the English literary tradition in which this individualistic vision was elaborated. I then turned to its operation in the adjudication of intellectual property controversies today. Several copyright cases, including the US case of Rogers v. Koons (1992) and the Australian case of Bulun Bulun v. R&T Textiles (1989), were examined to show concretely the mischief this antiquated, Romantic vision of creative production is doing. It is at once too broad and too narrow, I argued. »Even as it impedes the kinds of re-working of preexisting texts that we know to be essential to the creation of new knowledge, this individualistic vision permits all manner of re-uses, especially commercial re-uses of texts that we cannot condone.«
A much expanded version of Martha Woodmansee’s remarks has since appeared under the title »The ›Romantic‹ Author,« in: Isabella Alexander, H. Tomás Gómez-Arostegui (ed.): Research Handbook on the History of Copyright Law. Northampton/Cheltenham 2016, pp. 53–77.