Pirates, surfers and a sea of filth

Of Authors and Origins:
March 3, 1995

Copyright is again, as it was in 1710 and 1890, a burning issue. Next July, the United Kingdom is obliged to harmonise its national copyright law with that of Europe. The most obvious change will be an extension of post-mortem protection from 50 to 70 years. But just as unsettling will be the forced assimilation of Anglo-Saxon legal formulation to that of the Continent - whose traditions on copyright are, if anything, stranger to us than their culinary preference for immature beef or their habit of driving on the wrong side of the road.

A trade war - potentially the largest the world has known - is meanwhile looming between the United States and China. The casus belli is China's indifference to the originator's sacred right in such mass-produced articles as compact discs and computer software. The Chinese do not understand why REM or Bill Gates -obscenely wealthy already - should enrich themselves even further from workers sweating 5,000 miles away for coolie wages. In the 1950s, the US suppressed the Taiwanese piracy that was ruining their lucrative college textbook market. The trade sanction weapon worked then, but it may not against the emergent superpower of the 1990s.

These are short and medium-term crises. In the long term, the Information Superhighway (to whose implementation the US Congress has been pledged since 1990) will demolish existing copyright control, based as it is on the physicalities of print, paper and retail sale. In a recent article in the Spectator, Simon Winchester, a regular surfer on the Internet, discovered to his alarm that pornography, of the most revolting kind, is freely available to any linked user. This filth costs nothing to produce, and the identity of the originators is protected by US data protection law. E-mail users (of whom there are tens of thousands more every week) will have noticed that when you communicate with an American address it does not have a national id-suffix (such as "ac.uk") like those in other countries. This is because America owns the net. They invented it as a backup for their military communications in the event of nuclear war and the net's inexorable international expansion can be seen as covert Yankee imperialism of a kind that even the evil empire never dared contemplate. This realisation induced in Winchester a diatribe that would not have been out of place in the Beijing People's Daily. "A computer-owner in Islington or Islamabad can have easy and inexpensive access to material over the net which would be illegal for him or her to read or buy on any British or Pakistani street . . . The Internet, we smugly say, has become a means of circumventing restrictive codes of tyrannies. But the reverse of the coin is less attractive: it also allows an almost exclusively American contagion to ooze outwards, unstoppable, like an oil spill, contaminating everyone and everything in its path."

Copyright - based as it is on the mysterious idea of immaterial property - is an inherently complex department of law. And, as academics have recently apprehended, it can be usefully illuminated by conceptual tools that have been specifically developed for the exegesis of literary texts. Roger Chartier notes in his introduction to Of Authors and Origins that useful recent cogitation on copyright has been inspired by two seminal works of literary theory, Roland Barthes' The Death of the Author and Michel Foucault's What is an Author? Both essays annihilate the "creator", reducing him/her to the status of an "effect" within the ensemble of devices that make up the literary text which, by this critical operation, is liberated into a condition of pure linguisticity.

One of the fruitful aspects of this symposium is that, although sponsored by Chartier, an eminent historian of the early book, it recruits contributors with wide-ranging disciplinary specialisms (legal, historical, philological) and from countries with divergent copyright traditions (Britain, France, America, Holland, Belgium, Australia, Finland). The essays themselves are not expository but casuistic. Each contributor discusses a "hard case" that casts light on the complexities of copyright. Chartier himself points to discordances between the Anglo-Saxon tradition (with its reverence for books as commodity) and the French tradition (with its ancien regime system of royal privilege, and its post-revolutionary exaltation of the author as sovereign over his text). This opposition is elaborated in a subsequent essay by Jane C. Ginsburg.

Mark Rose reprints an essay that is rapidly becoming as influential in copyright studies as Foucault's - "The author as proprietor: Donaldson v. Becket and the genealogy of modern authorship". It is a virtue in this collection that it encourages cross-talk. Rose's thesis that authorship is a specifically historical construct (currently being deconstructed again by post-structuralist theory) is controverted by David Saunders in a later chapter, "Dropping the subject: an argument for a positive history of authorship and the law of copyright". Saunders goes on usefully to explore the differences between a priori ideas of copyright law (those that generally favour the author's pre-existing rights) and "consequential" arguments (those, for instance, that start from the position that copyright is an instrument for regulating the market).

Marjut Salokonnel meditates on the tricky issues raised by the corporate creativities of "film authorship". Bernard Edelman, in the most adventurous piece in the collection, questions whether "nature" can be copyrighted. (It can; use a mouse to advertise your product and Walt Disney's lawyers will bankrupt you.) In a similarly zesty think-piece, "Paradigms in copyright law", F. Willem Grosheide kicks off from an 1986 report that French chefs are hopeful of copyrighting their recipes - not, that is, the written instructions but the dish itself ("I've seen my own invention, fried celery, in several places," one three-star cuisinier complains).

Brad Sherman traces the interactions of Australian copyright law and Aboriginal art--a concept that has only recently evolved from colonial formulations that conceived native Australians capable of nothing higher than ethnographic artefacts.

The introduction to Of Authors and Origins notes that in the UK "until very recently, copyright was excluded from the range of subjects which could legitimately be offered on the law school syllabus". It is now a very hot topic. Those devising syllabuses for the interdisciplinary courses that are springing up in universities will find this book essential reading.

John Sutherland is Lord Northcliffe professor of English literature, University College London.

Of Authors and Origins:: Essays on Copyright Law

Editor - Brad Sherman and Alain Strowel
ISBN - 0 19 825792 9
Publisher - Clarendon Press
Price - £30.00
Pages - 260pp

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