The notion of originality in copyright seems to reinforce an outdated assumption of author as a singular creator. Today, there are a plethora of cases that defy this notion. Most notably is act of collaboration and collective production. The notion of collective production is clearly illustrated in the example of current mainstream popular music production. With increased use of technological tools to record and manufacture sound, the act of writing and performing is but one stage in a much larger, much more intricate and complex process of creation. In fact, the process of production is so multi-layered, that it has become difficult to reduce the work down to its ‘original’ form. Put simply, there is so much of a musical work that is added to, subtracted to and, manipulated throughout the various levels of production that the attempt to ascertain the ‘first mover’ or ‘author’ of a work becomes merely an act of semantics.
Let’s take the example of Britney Spears. Her music is far from being the culmination of work from a singular author. The rough breakdown of the production process is as follows: First her producer, Max Martin, writes or licenses a work from another song writer for Britney to sing. Martin then brings her into the studio and, together with the sound engineer(s), records her voice singing this song. After this stage is completed, both the producer and engineer, take her voice and manipulate the sound, usually to the extent that the actual band will not be able to replicate it live. The question then remains who is the person to which we can attribute the natural title of author? Who deserves the credit for the finished work we consume.
It is my feeling that the fundamental problem with the underlying assumptions of singularity in copyright is that it seems to miss the mark by overlooking the role of ‘external’ contributors in the production process. The notion of individuality and originality of authorship establishes a single route towards ownership and the propertization of creative achievement. The current notion of authorship elevates an idea of genius in originality which necessitates isolation in the inspiration and production process.
The difficulty in enabling this one-dimensional approach to understanding authorship is that in many cases the creative process involves more than just the creator working in the solitary confines of her private quarters. By encasing a notion of creative expression in the language of personal property, both the law and the courts fail to account for other sources of inspiration and contribution that might have been instrumental to the materialization of creative work like the one we looked at above. In the majority of cases, the creative process is a far more textured and nuanced than the simplistic idea of one individual creating in a vacuum. At the heart of the notion of authorship lies an ongoing and arguably inherent contradiction engendered by the initiation of copyright law and its subsequent implementation.
But how could the laws possibly reflect this more nuanced, more textured articulation of the creative process? The change, if any, must be driven by a shift in focus of the law itself. Instead of trying to confine the protection of creative works to a narrow and strict definition of what creation is, we must leave enough room within the laws for a more malleable and more adaptive treatment of the current context of creative expression and distribution. As we saw in the Britney Spears example, a modern understanding of copyright involves a realization that creative works are inter-textual and often involve multiple creators. New legislative efforts could begin responding to this by weakening the test for proving joint or multiple authorship and thereby making it less difficult for rightful stakeholders to claim recognition in a work.
This is but one suggestion. However, whereas the direction of future copyright law remains unclear, what is unequivocal is the fact that the philosophical premises on which current copyright laws are based need adjustment — we can not assume a singular author as a starting point for attribution of title.
2 Responses
According to the Canadian Intellectual Property Office website, specifically the “authorship” section of the guide to copyright registration, the author of a work is the creator. As Devorah has argued, many works are created through a collaborative effort and while this format does create complication in identifying authorship, the CIPO website sets out the relevant factors for determining authorship with respect to different kinds of works and with respect to situations where the context of the creation was such that the identity of the author is unclear.
While I do agree that flexibility in the law would allow for a more nuanced and individual approach, I believe that the problem of indentifying authorship in collaborative works must be dealt with as early as possible. This problem can be avoided altogether through contracting among the many different creators. It is important to note that these kinds of negotiations are unlikely to result in an inequality of bargaining power because the creators would be contracting among themselves and not with a large corporate entity, and thus these kinds of contracts should be encouraged.
Contracting as early as possible would benefit all of the parties in the collaborative effort and could result in a more tailored approach to identifying authorship, an approach that would be created by the creators themselves. Contracting in advance would eliminate disputes among creators and ensure that all parties are compensated and that the author, who will eventually be the copyright owner, is clearly identified.
note: http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_regis-e.html#3
Devorah dealt with the creative process, but I would like to think about the creative outcome: its relationship with the level of copyright protection.
The google search for ‘the shortest English poem’ may result in the following.
Adam
Had ’em
Interestingly, another similarly short poem was said to have been deleted at the request of the copyright owner of the above poem.
If you put a mouse in front of a computer keyboard that only has 26 English alphabet letters, and let it just hit any alphabet, wouldn’t the mouse eventually be able to come up with a poem just like that? Theoretically, it can produce the same poem once every 5,429,503,678,976 times of nine-letter alphabet hit. Do we need to protect this poem with the same level of copyright protection that would be allowed for Harry Potter?
To provide a concrete standard to judge the level of creativity seems difficult, if not impossible. In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, the test for originality was held as: being a work, independently created by the author, and which displays at least a minimal degree of skill, judgement, and labour in its overall selection or arrangement. This test for originality is also not clear, but it provides some direction in assessing originality. As such, even though a legislative definition on creativity may fail, court’s “creativity” would work in differentiating between a low-level and a high-level creativity.
(Kwang Hoon SHIN)
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