You Do Not Have A Right To Be Credited, Part I

People often think that if they create a work, they automatically have a right to be credited as that work’s author. And people often think that if they reproduce someone else’s work (say by placing a photo in a blog), then the way to comply with copyright law is to give that person credit.

These are misconceptions. In general, there is no rule of law in America that says that authors must be credited for their works. And that has been the state of affairs in the United States and Britain ever since Queen Anne, whose Statute of Anne was enacted in 1710 to protect authors from the printers and booksellers who were publishing and reprinting books without the authors’ permission, to the authors’ “very great Detriment, and too often to the Ruin of them and their Families.” This was a statute about giving authors exclusive control over the dissemination of their works, so that printers would have to pay authors for the privilege of publishing books. The idea was that these economic rewards would provide sufficient incentive for authors to write books. And since lofty things like authorial attribution have little to do with hard cash, the Statute of Anne leaves them alone. Copyright law was, and still is to a great degree, concerned with providing economic incentives to creativity: art is a commodity.

Things developed very differently on the European continent, most notably France. There, maybe because writers were the ones making up the law in the aftermath of the French Revolution, the right of attribution is just one of many so-called “moral rights” that authors enjoy. Protection for these non-economic rights is so strong in Europe that someone once got into trouble for placing his business cards next to a collection of art book covers, possibly causing one or two people to mistakenly think that he was the author of those book covers (the one-sentence judgment of France's Cour de Cassation is here).

If you are a creative artist working in the United States, however, all is not lost. In an effort to bring its protection of artistic works into line with international standards, the United States does provide for a right of attribution in the case of certain works of visual art. Also, you can include a provision requiring proper attribution in any license agreements you enter into. I will discuss these possibilities in Part II of this entry.

Enclosing the Commons of the Mind

Did you know that we have scores of films crumbling to dust in libraries all over the country because transferring such works to more durable media would require the permission of the copyright owners – who are nowhere to be found?

Did you know that IBM makes twice as much money from its non-copyright protected software than its patent portfolio (which is, ahem, the biggest patent portfolio in the world)?

If you didn’t know these things, you might enjoy downloading a lecture by James Boyle, the witty and urbane author of The Public Domain: Enclosing the Commons of the Mind. His topic is the vitality of the public domain to creativity. Copyright policymakers often make their decisions based on an assumption that since the purpose of copyright is to incentivize authors to create, enhanced copyright protections must lead to more creation. But, Boyle argues, this assumption is made in the absence of empirical data. He notes that the World Intellectual Property Organization (WIPO) had until recently no economists on staff, apparently because copyright policymakers have scant regard for actual data on how their own policies might affect creative output.

The problem in Boyle’s view is that we all (copyright policymakers included) have a bias against openness. This bias is not based in reality. Who would have thought that Wikipedia would be more reliable than Britannica? Who would have thought that open-source software would be so successful (see IBM example above)? These are examples of Internet-based creative works that have flourished in the absence of conventional copyright protections. They are also creative works that have been immeasurably beneficial to humanity.

In Boyle’s words, “we built the Web for science and make it work [only] for porn, shoes and books.” That is because, although the Internet is uniquely capable of gathering together stores of information from an infinite number of inputs, we have a copyright system that often inhibits access to such information in ways that are of little benefit to authors. For example, the films crumbling to dust that I cited at the beginning of this post. Most books published after 1923 are both copyright protected and out-of-print and have outlived their economic use to their authors (many of whom are actually dead). Think of the knowledge that would be at our fingertips if we could make all this commercially unviable work available on the Internet.

Boyle’s lecture is available here. You can also go to iTunes and download it as a podcast. My synopsis does no justice to how engaging a speaker he is. You should take a listen.

PS. Appropriately, you can either buy his book on Amazon or download it for free.