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Copyright

The Deaths and the Survivals of the Author

Tomislav Medak

The present-day social model of authorship is cosubstantive with the normative regime of copyright. Copyright’s intended role is to triangulate a balance between the rights of authors, cultural industries, and the public. Its legal foundation lies in the inalienable natural right of the author to command the products of her intellectual labor. The recurrent claims of the death of the author, disputing the author’s primacy over the work, have failed to do much to displace the dominant understanding of the artwork as an extension of the author’s personality. The structuralist criticism positing an impersonal structuring structure within which the work operates; or the hypertexual criticism dissolving boundaries of work in the arborescent web of referentiality; or the remix culture’s hypostatization of the collective and re-appropriative nature of all creativity – while changing the meaning we ascribe to the works of culture – have all failed to leave an impact on how the production of works is normativized and regulated.

And yet the author–work–copyright nexus has transformed in fundamental ways, but these ways are opposite to what these openings in our social epistemology have suggested. The figure of the creator, with the attendant apotheosis of individual creativity and originality, is nowadays more forceful than ever before, being mobilized by those who wish to expand the exclusive realm of exploitation of work under copyright. Yet this forcefulness speaks of a deeply seated neurosis, intimating that the purported balance between the rights of authors, cultural industries, and the public might not be what it is claimed to be by the copyright advocates. Much is revealed as we descend into the hidden abode of production.


Of Copyright and Authorship
Copyright has a principally economic function: to unambiguously establish individualized property rights in the products of intellectual labor. Once the legal title is unambiguously assigned, there is a property holder with whose consent the contracting, commodification, and marketing of the work can proceed. In that aspect the copyright is not very different from the requirement of formal freedom that is legally granted to a laborer to contract out his or her own labor power as a commodity to the capital, then allowing the capital to maximize the productivity and appropriate the products of the worker’s labor – »dead labor,« in Marxian terms. In fact, the analogy between contracting labor and contracting intellectual work does not stop there. They also share a common history.

The liberalism of rights and the commodification of labor have emerged from the context of waning absolutism and incipient capitalism in Europe in the seventeenth and the eighteenth centuries. Before the publishers and authors could have their monopoly over the exploitation of their publications instituted in the form of copyright, they had to obtain the privilege to print books from royal censors. The first printing privileges granted to publishers, for instance in early seventeenth century Great Britain, came with the burden placed on publishers to facilitate censorship and control over the dissemination of the growing body of printed matter in the aftermath of the invention of movable type printing.

The evolution of regulatory mechanisms of contemporary copyright from the context of absolutism and early capitalism receives its full relief if one considers how peer review emerged as a self-censoring mechanism within the Royal Academy and the Académie des sciences.[1] The internal peer review process helped the academies maintain the privilege to print the works of their members, which was given to them only under the condition that the works they publish limit themselves to matters of science and make no political statements that could otherwise sour the benevolence of the monarch. Once they expanded to print the works of authors outside of the academy ranks in their almanacs, journals, and books, they both expanded their scientific authority and their regulating function to the entire nascent field of modern science.

The transition from the privilege tied to the publisher to the privilege tied to the natural person of the author would unfold only later. In Great Britain this occurred as the guild of printers, Stationers’ Company, failed to secure the extension of its printing privilege and thus, to continue with the business of printing books, decided to advocate a copyright for the authors instead, which resulted in the passing of the Copyright Act of 1709, also known as the Statute of Anne. Thus the author became the central figure in the regulation of literary and scientific production. Not only did the author now receive the exclusive rights to the work, the author was also made – as Foucault has famously analyzed – the identifiable subject of scrutiny, censorship, and political sanction by the absolutist state or the church.


Of Compensation and Exploitation
And yet, although the Romantic author now took center stage, copyright regulation, the economic compensation for the work, would long remain no more than an honorary one. Until well into the eighteenth century, literary writing and creativity in general were regarded as the results of divine inspiration and not the author’s individual genius. Money earned in the growing book business mostly stayed in the hands of the publishers, while the author received a literary honorarium, a flat sum that served as a »token of esteem.«[2] Only with authors’ increasingly vocal demand to secure material and political independence from patronage and authority did they start to make claims for rightful remuneration.

The moment of full-blown affirmation of the Romantic author function marks a historic moment of redistribution and establishment of compromise between the right of authors to rightful compensation for their works and the right of publishers to economic exploitation of those works. Economically this was made possible by the expanding market for printed books in the eighteenth and the nineteenth centuries, while politically this was catalyzed by the growing desire for autonomy of scientific and literary production from the system of feudal patronage and censorship in gradually liberalizing modern capitalist societies. The autonomy of production was substantially coupled to the production for the market. However, the irenic balance could not last unobstructed. Once the production of culture and science was subsumed under the market’s exigencies, it had to follow the laws of commodification and competition that no commodity production can escape.

With the development of big corporations and monopoly capitalism,[3] the purported balance between the author and the publisher, the techno-scientific innovator and the company, labor and capital, public circulation and the pressures of monetization has become unhinged. While the legislative expansions of protections, court decisions, and multilateral treaties are legitimized based of creators’ rights, they have become the basis of economic power for the monopolies dominating the commanding heights of the global economy to protect their dominant position in the world market. The levels of concentration in the industries with large portfolios of various forms of intellectual property rights is staggering. Film is a 88 billion-dollar industry dominated by six major studios. Recorded music is an almost 20 billion-dollar industry dominated by three major labels. Publishing is a 120 billion-dollar industry where the leading ten publishers earn more revenues than the next 40 largest publishing groups. Among patent-holding industries, the situation is a little more diversified, but big patent portfolios in general dictate the dynamics of market power.

Academic publishing in particular draws a stark relief of the state of play. It is a 10 billion-dollar industry dominated by five publishers, financed up to 75 percent by library subscriptions. It is notorious for achieving extreme year-on-year profit margins – in the case of Reed Elsevier regularly well over 20 percent, with Taylor & Francis, Springer and Wiley-Blackwell barely lagging behind.[4] Given that the work of contributing authors is not paid by the publishers, but financed by their institutions (provided they are employed at an institution), and that the publications nowadays come mostly in the form of electronic articles licensed under subscription for temporary use to libraries and no longer sold as printed copies, the public interest could be served at a much lower cost by leaving commercial closed-access publishers out of the equation. However, given the entrenched position of these publishers and their control over the moral economy of reputation in academia, the public disservice that they do cannot be addressed within the historic ambit of copyright. It requires politicization.

Of Law and Politics
When we look back to the history of copyright, there was legitimacy before legality. In the context of an almost completely naturalized and harmonized global regulation of copyright, the political question of legitimacy as to how the copyright operates seems to no longer be on the table. And yet, today’s copyright marks a production model that serves the power of appropriation from the author and the market power of publishers much more than the labor of cultural producers. Hence illegal copying, after having once served as a vector of revolutionary ideas under the ancien regime of royal censorship, is again a practice that begs the question of what we do, at a rare juncture when a historic opening presents itself, to reorganize how a good, such as knowledge and culture, is produced and distributed in a society. We are at such a juncture, a crossroad in which the regime regulating legality and illegality might be opened to question its legitimacy or illegitimacy.


Notes
[1] For a more detailed account of this development, as well as for the history of printing privilege in Great Britain, see Mario Biagioli: »From Book Censorship to Academic Peer Review,« in: Emergences: Journal for the Study of Media & Composite Cultures 12, no. 1 (2002), pp. 11–45.

[2] The transition of authorship from honorific to professional is traced in Martha Woodmansee: The Author, Art, and the Market: Rereading the History of Aesthetics. New York 1996.

[3] When referencing monopoly markets, we do not imply purely monopolistic markets, in which one company is the only enterprise selling a product, but rather markets in which a small number of companies hold most of the market. In monopolistic competition, oligopolies profit from not competing on prices. Rather »all the main players are large enough to survive a price war, and all it would do is shrink the size of the industry revenue pie that the firms are fighting over. Indeed, the price in an oligopolistic industry will tend to gravitate toward what it would be in a pure monopoly, so the contenders are fighting for slices of the largest possible revenue pie.« Robert W. McChesney: Digital Disconnect: How Capitalism Is Turning the Internet Against Democracy. New York 2013, pp. 37f.

[4] Vincent Larivière et al: »The Oligopoly of Academic Publishers in the Digital Era,« in: PLoS ONE 10, no. 6 (June 2015): e0127502, doi:10.1371/journal.pone.0127502 (accessed on August 20, 2016).