Authorship, incentives for creation, and copyright in the digital 21 st century

Abstract

Copyright in the United States is under enormous stress in the digital age. The cause of this stress is often described in technological terms, yet there are deeper systemic policy and legal factors at play. Specifically, there is an ever-increasing, and increasingly obvious, disconnect between the constitutionally based justification for copyright, and copyright's lived out implementation. That is particularly true regarding two key justifications for the expansions of copyright protection that have occurred since 1790: the concept of the author, and the necessity of providing a high level of control and financial incentives to authors to encourage the production of socially valuable works. This paper examines both of these justifications for expanded copyright protection and finds them unproven and, in fact, significantly lacking force under both philosophical and empirical analysis. We suggest that the U.S. abandon those justifications for copyright in today's digital world. We offer eight principles upon which a more integrated and relevant copyright system could be based, one in which policy, law, and practice could be brought into coherence so that today's stresses on copyright would be minimized, and the Constitutional charge to promote "the Progress of Science and useful Arts" would be maximized for society as a whole. Prologue Copyright, in a word, is about authorship. Copyright is about sustaining the conditions of creativity that enable an individual to craft out of thin air, and intense, devouring labor, an Appalachian Spring, a Sun Also Rises, a Citizen Kane. Paul Goldstein The process of authorship, however, is more equivocal than that romantic model admits. To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliché, invoked but not examined. But the very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea. Jessica Litman.