My friend Tim Wu, a legal scholar at Columbia U, has finally posted his paper "Copyright's Authorship Policy," which I read some years ago in draft. I've been assigning drafts of this paper to my students all year, because I think that Tim's captured something here that I'd never heard articulated before in all the papers about copyright I've read.
Tim's point is that copyright ends up choosing what kind of authors are allowed to make art, and which ones aren't. For example, extending copyright over sampling — but not over reproducing distinctive licks or melodic snippets — means that mashup artists' music is illegal, but the white skiffle and R&B artists who adapted black music for their own (the Rolling Stones, Elvis and the Beatles, for example) get to make all the music they want.
Tim goes on to suggest a simple and cunning mechanism for minimizing copyright's impact on authorship, a method that will allow the largest variety in art and expression. This is great stuff, and has been the basis of some great discussions in my classes.
For that reason, the paper introduces a new justification for authorial ownership of copyright–both the vesting of the initial copyright in authors, and for providing ways for the right to find its way back to authors.1 The argument relies on the concept of authors as agents of decentralization in the copyright system. Vesting rights in authors, the argument goes, provides new ways to seed the development of both new forms of distribution, and also support for changing modes and forms of creation. Centuries ago in England, authorial copyright helped introduce competition into bookselling, beyond an centralized publisher's cartel. Today, there are lessons for copyright's authorship policy in the more than five million items under Creative Commons licenses,2 the proliferation of Open Access licensing in academia, and the use of open source licenses by commercial entities like IBM and Apple. These experiments show the potential of a decentralized copyright system for promoting a full range of production modes.
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