Author Autonomy and Atomism in Copyright Law

Molly Shaffer Van HouwelingUC Berkeley School of Law

June 4, 2009Law and New Institutional Economics Workshop

University of Colorado Law School

User GeneratedContent

User GeneratedCopyright

Technology-empowered speakers as copyright casualties

• Complexity– E.g. musical composition vs. sound recording,

unpredictability of fair use, difficulty of rights clearance

• Expense– E.g. license fees for small webcasters

Full promise of technology to enable individual expression may not be realized

calls to limit and simplify copyrighte.g. Jessica Litman, Lawrence Lessig

Technology-empowered authors as autonomous copyright owners

• Their ubiquitous works of authorship are protected by copyright (automatically)

• They are increasingly retaining and managing those rights…

Technology-empowered authors as autonomous copyright owners

• Their ubiquitous works of authorship are protected by copyright (automatically)

• They are increasingly retaining and managing those rights…

– Is copyright too easy for users?

Is Copyright Too Easy?• Millions of individual copyright holders, increasingly retaining

their rights and/or dividing them in idiosyncratic ways

• =“Copyright atomism”information and transaction costs may inhibit reuse

Full potential of technology to disseminate and expression may not be realized.

E.g. how to reuse Wikipedia?

An Alternative to Atomism?

An Alternative to Atomism?

“Upload a remix and George Lucas, and only Lucas, is free to include it on his Web site or in his next movie. . . . The remixer becomes the sharecropper of the digital age.”

-Lawrence Lessig, Lucasfilm’s Phantom Menace, The Washington Post (July 12, 2007).

An Alternative to Atomism?“This trend away from artists owning their creations is

not new. It has long been part of commercial creativity. In America, for example, the ‘work-for-hire’ doctrine strips the creator of any rights in a creative work made for a corporation, vesting the copyright instead in that corporation.”

“This is an awful trend, fundamentally distorting the copyright system by vesting copyrights in entities that effectively live forever.”

– Lawrence Lessig, Remix (2008)

An Alternative to Atomism?“This trend away from artists owning their creations is

not new. It has long been part of commercial creativity. In America, for example, the ‘work-for-hire’ doctrine strips the creator of any rights in a creative work made for a corporation, vesting the copyright instead in that corporation.”

“This is an awful trend, fundamentally distorting the copyright system by vesting copyrights in entities that effectively live forever.”

– Lawrence Lessig, Remix (2008)

The Autonomy/Atomism Project

• Tracing atomism and responses to it through copyright history

• Noting types of solutions, their strengths and shortcomings

– Especially with regard to countervailing concern with authorial autonomy and• Competition/decentralization/diversity • Distributive justice

Dimensions of Atomism

• Proliferation– How many works are subject to copyright

ownership?

• Distribution– How many different people own copyrights?

• Fragmentation– Among how many people is each work divided?

HIGH

PROLIFERATION: how many works are subject to ownership?

LOW

DISTRIBUTION: how many people own copyrights?

LOW HIGH

HIGH

Many owned works = high proliferation

Many owners = high distribution

Many separate rights = high fragmentation

FRAGMENTATION: among how many people is each work divided?

LOW

HIGH

HIGH

Many owned works = high proliferation

Many owners = high distribution

The Evolution of Atomism

• Stationers’ Company Era– Guild with state-sanctioned printing monopoly.– Rights allocated to limited pool of publishers and

only transferred among them.– Fragmentation was common, but:• Only among limited pool of owners, identified in

register.• Extreme cases led to new institutions for unified

management, e.g. the “English Stock”

The Evolution of Atomism

• Statute of Anne and 18th C. England– Initial copyrights allocated to authors.– But authors initially assigned copyrights to same

publishers as before.– Increasing competition in late 18th C. allowed more

authorial copyright.

The Evolution of Atomism

• Copyright Act of 1790– Authorial copyright like Statute of Anne– Assignment to publishers still common– Increased authorial bargaining power over course

of 19th C.– 19th C. rise of highly collaborative works (e.g.

encyclopedias) with many authors– Subject matter and rights (e.g. to adapt) expanded

by end of 19th C.

The Evolution of Atomism

• Anxiety about atomism at the turn of the 20th C.

– Work for hire doctrine developed and codified in 1909

– Joint works subject to undivided rights

– “Indivisibility” doctrine

– First sale

– Rise of performing rights societies

The Evolution of Atomism

• 1976-1998: The Age of the Author

– Work for hire and joint works doctrines limited

– “Indivisibility” abandoned

– Formality requirements gradually eliminated

The Evolution of Atomism

• The Internet Age

– Proliferation: inclusive subject matter and no formalities

– Distribution: ubiquitous authorship and retention of copyrights

– Fragmentation: massive collaboration outside of work for hire and joint authorship paradigms

Lessons from/contributions to NIE?

• Limited impact of revolutionary changes in legal rules.

• Importance of private ordering and institutions for managing information and transaction costs.

• Interaction with norm of authorial autonomy—may limit which types of legal and institutional solutions are feasible today.

Consolidation• Rights could be held by consolidators—e.g. record

companies, Web 2.0 platforms, etc.– E.g. Lucasfilm (exclusive license), Facebook (non-exclusive),

Google?

• Reduces distribution and fragmentation

• But, inconsistent with author autonomy and competition?– charge of “digital sharecropping”– competitive concerns with GBS settlement

Public Licensing• Adoption of public licenses by individual users (e.g.

Creative Commons) can ease reuse without individualized negotiations.

• But license proliferation – Confusion– Incompatibility

• Community coordinators (e.g. Wikipedia) can help with intra-community compatibility, but inter-community compatibility problems remain.

Standardization

• Officially sanctioned public license terms could reduce confusion and incompatibility

• Standards could simply channel preferences or preempt idiosyncratic alternatives – Cf. Merrill & Smith, Optimal Standardization

• See, e.g., – Robert Merges, New Dynamism in the Public Domain

Registration/Notice• More information about license terms and rights

holders could reduce confusion and transaction costs

– See, e.g., proposals considered in Copyright Office’s Orphan Works report

– Compare history of land recording in the U.S.• Better information made more complicated forms of ownership

possible

– Information could be centralized (registration) or de-centralized (labels). Technology may improve labels.