Peter Jaszi
Washington College of Law
American University

The SCE's Project on Intellectual Property and the Construction of Authorship

Do not cite without permission of the author.

It originated in 1989 in the aftermath of the annual meeting of the International Association for Philosophy and Literature in Atlanta . Having issued a call for papers on “Legal Stories and Social Discourse,” Martha Woodmansee had consulted James Boyle for help identifying legal scholars for the panel she was organizing, and Jamie suggested my name. Martha recalls that despite Jamie's prodding she was skeptical when we first spoke because she was envisioning a panel with a relatively formal focus on story, narrative, and discourse – until I told her how seminal her 1984 essay on “The Genius and the Copyright” had been in my thinking about the history of copyright. I explained that in my view the Romantic author ideology she identified in the essay has remained at the very center of intellectual property law – its linchpin, as it were -- to define the kind of creative production that will be rewarded or ignored, or even punished. I added that many of the contemporary pathologies of copyright doctrine could be laid, in some degree, at the foot of the authorship construct.

We remained in contact, and after the SCE moved to Cleveland in 1990 we began to discuss the prospect of convening scholars from diverse disciplines, especially Law and Literary Studies, to “explore all aspects of the social and cultural construction of authorship in relation to the evolution of proprietary rights in ideas.” Out of this discussion came the first SCE conference on the “Construction of Authorship,” held in April 1991 in Cleveland . Martha and I have warm memories of the months leading up to this conference. In those days logistics – such as how to circulate close to 100 different papers in advance of a conference – still produced high drama. Not only did we have some difficulty extracting advance papers from scholars unfamiliar with SCE tradition, but reproduction and mailing taxed even law school resources. The best stories from this now legendary conference – such as the fortunate “academic traffic accident” precipitated by Monroe Price -- must be left for another time or venue. Many of the themes that emerged in 1991 were captured in the volume published by the Cardozo Arts & Entertainment Law Journal (1992) and reprinted by Duke University Press (1994). Details of the many subsequent conferences and publications developing the diverse themes that have emerged since 1991 may be found on the SCE website ( http://www.case.edu/affil/sce/IPCA_main.html ). The last 15 years have seen a gathering stream – in music, art history, and the history of science, for example, as well as in the law and in literary and composition studies, where Authorship Studies has established itself as a widely recognized research focus. Indeed, a systematic study of the impact of this first Cleveland conference – tracing its impact through citations -- would make a valuable chapter in the sociology of knowledge.

Most of those attending the anniversary celebration in Philadelphia are aware of this SCE project's impact on teaching and research in literary and composition studies, so I will turn, shortly, to give my estimation of the impact it has exerted in the law. But not before making mention of the conference we convened in Cleveland this past spring – probably the last under Case sponsorship -- to further extend and deepen this project's inquiry into the diverse implications of our modern Euro-American way of conceptualizing creative production, or “authorship.”

This time Martha and I brought historian of science Mario Biagioli on board to collaborate in the planning. Mario has done important work on concepts of authorship in science, and he co-edited (with Peter Galison) a collection on scientific authorship to which we had contributed, so we knew that he would be able to help identify historians of science and technology inclined to carry the critique of authorship into the as yet unreconstructed sphere of rhetorics associated with scientific discovery and technological innovation – the domain, that is, of the “inventor.” The University of Chicago Press will publish a selection of the papers presented at this conference, “Con/texts of Invention” late next year. In the meantime I hope you will visit the conference website ( http://www.case.edu/affil/sce/Contexts_of_Invention.html ) and listen to the iPodcasts of selected conference sessions ( http://www.law.case.edu/centers/lta/content.asp?content_id=89 ).

In planning this recent conference, as we have throughout our IPCA work, we tried to be attentive to the real world consequences of the metaphors we were identifying for critique. Copyright and patent provide the legal infrastructure of world trade in intangibles, and the romanticized Euro-American conception of creative production – of “authorship” and “invention” – at the center of this body of law assigns property rights inequitably and inefficiently, favoring the Northern hemisphere over the South as well as media conglomerates and pharmaceuticals over individual “users.”

Martha has especially valued the IPCA project as an opportunity – unique in her experience – to witness the potential of humanistic research to make a difference in the “real world.” Her notion, to put it simply, is that by enabling literary and cultural historians like herself, long accustomed to being voices in the wilderness, to radicalize scholars more (and less) directly involved in the making (and breaking) of intellectual property law – by, as it were, “reminding” copyright and patent scholars of the historicity, the contingency of our intellectual property norms – this SCE project has initiated a special kind of interdisciplinary collaboration. Or, perhaps more accurately, it has revived a collaboration between law and literature that flourished in the 18 th and early 19 th centuries, when the contours of modern intellectual property law were being shaped.

The “critique of authorship” pursued in the IPCA project has affected the law in various ways – some of which might have been foreseen, and others not. After 15 years, however, it's clearly demonstrable that the basic insights of the project (that “authorship” is an ideologically charged metaphor rather than a factually-based category, and that invocations of authorship generally serve to promote restrictive or protectionist visions of copyright law) have now been accepted as non-controversial – even foundational – principles in copyright scholarship. It is a closer question whether anything has changed in the sphere of copyright policy-making by virtue of the fact that the critique of authorship has become a generalized climate of opinion (if not a new orthodoxy) among those who think and write about the subject. These are objectively difficult times for copyright in the Congress and the courts, as the public domain shrinks and restrictions on the use of protected material expand. So it is worth knowing whether a new way of thinking about the rhetorics of privatization has helped in the struggle against enclosure. We're convinced that this work has had a useful effect, although we acknowledge that conclusive evidence is hard to come by.

Before returning to these “real world” considerations, a few words are in order about the reception of the critique of authorship in legal academia. In this connection, we'd note that the premises of the critique are marbled through the contents of the textbook most widely used by copyright teachers [Joyce et al., Copyright , 7 th ed., Lexis-Nexis (2006)] – thanks, no doubt, to the fact that one of the principles of the SCE project is also a co-author of that text. But we would be remiss not to acknowledge that, early on, our point of view met with some resistance – not from defenders of author-ideology but from scholars who acknowledged the basic correctness of our historical analysis but disputed its importance. A good example of the "push-back" against claims for the explanatory power of the "author-construct" is a book review by Mark Lemley entitled "Romantic Authorship and the Rhetoric of Property," Texas Law Review 75.4 (1997). The early 1990s, when work related to the SCE project began to appear, was also a moment in which many progressive copyright scholars were powerfully drawn to other theoretical frameworks. At that moment, denigrating a culturally-based critique may have seemed a necessary correlate to elevating one that relied on micro-economic analysis. With time, the romance between copyright scholars and economic theory has cooled somewhat, and the stock of our idea-set has risen accordingly.

As of 2006, we can cite literally hundreds of articles and books which take the critique of authorship as a stepping-off point for diagnosing the pathologies of contemporary copyright or proposing new approaches in the field. Notable examples – among many -- include Niva Elkin-Koren's article, "Copyright Law and Social Dialogue on the Information Superhighway," Cardozo Arts & Entertainment Law Journal 13.2 (1995); David Nimmer's "Brains and Other Paraphernalia of the Digital Age," Harvard Journal of Law and Technology 10.1 (1996); Joseph Liu's “Copyright Law's Theory of the Consumer,” Boston College Law Review 44.1 (2003), and Deborah Halbert's “Feminist Interpretations of Intellectual Property,” 14 American University Journal of General, Social Policy and Law , 14:1 (2006). One mark (however dubious) of the project's influence is the fact that in 2001 a student author published an extensive law review note differentiating various versions of the critique of authorship applied to jurisprudence! [Ryan Littrell, “Toward a Stricter Originality Standard for Copyright Law,” Boston College Law Review 43:1].

But so what? While academics fiddle, copyrights continue to grow broader, longer and stronger. There is nothing really surprising here – the process which we're observing with concern today has been at work for 25 years, or 100 years, or 300 years, depending on the historical account we choose, and for some or all of that time it has been abetted by a set of largely uncontested claims of entitlement rooted in the author-construct. What is new is the elaboration, over the last decade or so, of a far-reaching and increasingly influential critique of “maximalist” intellectual property, not in legal academia but in the larger civil society. An argument can be made, in fact, that the SCE's “Bellagio Declaration” ( http://www.case.edu/affil/sce/BellagioDec.html ) was the starting point of this important new stage in the IP stuggle. That said, we should stress that the commentators whose work has caught the public imagination (like Lawrence Lessig, Siva Vaidhyanathan, and James Boyle) do more than repeat the lessons of the SCE authorship project. They – along with legions of less well-known writers, bloggers and others – are developing a way of talking about intellectual property rights and wrongs that avoids conventional legal categories and instead braids together themes of distributional justice, freedom of expression, and personal autonomy. However, we would suggest that but for the critique of authorship and its successful decentering of the most ideological construct in classical copyright theory, the emergence of this new discourse would have been impossible at worst, and incomplete at best. In effect, the critique of authorship has struck the ideological fetters from the ways we think and talk about intellectual property – with some fairly dramatic results. Critics of bad copyright legislation may not always advertise the intellectual influence of the work the SCE has fostered. But that influence is present nonetheless. Similarly, without the work that the SCE has fostered, including especially its stress on the derivative and collaborative character of cultural production, the “Creative Commons” movement would be missing one of its most important conceptual props. Certainly, recent efforts to revitalize the fair use doctrine by encouraging communities of artists and scholars to articulate “best practices” (as represented at www.centerforsocialmedia.org.fair_use/ ) would have been impossible without the foundation that the critique of authorship provides.

Assuming that helping to build such foundations is a legitimate end for engaged scholarship, in what directions might we wish to take the SCE's IPCA project in years to come. A few suggestions follow:

•  There is an urgent need for more fine-grained studies of the ways in which the authorship trope has influenced or abetted the development of legal doctrine over the history of copyright law. Ultimately, it is only this kind of work that will maintain the legitimacy of the critique of authorship.

•  The methodologies that participants in the SCE project have used to explore the influence of authorship rhetoric can be extended to include systematic investigation of the mystique surrounding the figure of the “inventor” in patent.

•  Those same methodologies should be mobilized to inquire into the influence of other powerful tropes that have helped to shape policy in the area, including the complex of terms associated with rights in physical things (“property,” “trespass,” “theft”) that are invoked to justify extensions and expansion of copyright protection.

•  Academics also can be activists in their institutional communities. Thus, for example, teachers and scholars have a role in assuring that their schools do take sensible and appropriately skeptical policies on the disciplining of plagiarism, and that they don't capitulate uncritically to the demands of the content industries.

•  We all should continue to document the ways in which excessive copyright interferes with our own work as teachers and writers. Without this information, it is difficult or impossible to operationalize the critique of authorship in our own domains of practice.

•  Participants in the SCE authorship project should work through their professional membership organizations to develop and publicize “best practices” standards for fair use by teachers and scholars in literary and composition studies, and related disciplines – as part of the general movement to reclaim the use rights that copyright confers. Obviously the MLA would be an ideal organization through which to conduct such a project, and the results could be enormously powerful.