Copyright and the Commons: Authorship in the age of the digital era

Running head: COPYRIGHT AND THE COMMONS 1

Copyright and the Commons: Authorship in the age of the digital

era

Manee Olson

University of Wisconsin-Milwaukee

2COPYRIGHT AND THE COMMONS

Born-digital media has changed, already, how copyright and

authorship are seen as the internet has expanded and grown. It

was already shifting due to things such as “fan fiction” in

‘zines, but with the mercurial nature of the internet, it has

become difficult to parse the old idea of copyright with the new

idea of ownership in the digital domain. And that ignores the

fact that copyright and authorship have been two ideas circling

one another since almost the beginning of recognizable writing.

However, the digital domain has brought the issue back into the

spotlight as the argument of how to deal with copyright on the

internet has fairly exploded. Does it need to change, to adapt

to the new realities of the born-digital medium? Is copyright

itself just not as important anymore? And how does one define

authorship in a world that is increasingly going anonymous? This

paper will be examining the history of both authorship and

copyright, and how the internet has changed the way we consider

both.


When was the first writing attributed to an author? The

consensus in a quick Google search appears to be a woman,

Enheduanna, who wrote poems in Sumerian in the 23rd century BC

(Gill, 2014). But what makes her an author, and not simply a

scribe jotting down notes and numbers about the herd of cattle

within a city? Is it because she wrote something that was not

for recording purposes, and was instead writing with the intent

of creative expression? If we call someone an “author,” does the

subject of their writing matter, or is it merely that they put

pen to paper, or stylus to clay, or fingers to the keyboard, and

produce words, no matter what those words may mean? The webpage

cited seems to be specific in saying that Enheduanna (and the

other possible “first,” an Akkadian named Shin-eqi-unninni) are

not merely scribes of numbers and other monetary lists, but that

she is a poet (and Shin-eqi-unnanni the writer of the Epic of

Gilgamesh). So, apparently, authorship is at its base

understanding a specific sort of writer: someone who is creative

in their work, and not merely a glorified note-taker. This is

not unusual; Thomas Carlyle, in an 1840 lecture, specifically

4COPYRIGHT AND THE COMMONSidentifies an author as someone who is original, if not a genius,

in their work (Haynes, 2005). This is, however, a Romantic era

view of the author that supposes the author exists within a

vacuum, and is singularly amazing and talented (Haynes, 2005).

This does not take into account collaboration, ghostwriting, or

the fact that someone may claim to be an author who is not

particularly talented, but might be prolific anyway (an argument

that many make about popular fiction writers). And, of course

the most basic issue: this does not widen the concept of “author”

outside of the literary realm to account for the idea of the

“author” as merely a creator in some form. It ignores the idea

of the author as a musician, or as an artist, or, as the internet

as grown, a webpage publisher e.g. a blogger. (It also ignores

something as arguably ridiculous as a large perfume corporation

managing to copyright a scent, which was collaboratively

synthesized in a lab (Jamison, 2006).) Already we see that

authorship has been a contentious idea even before the advent of

the internet.

Authorship contention is not solely over what it means to be

an author, either. Consider the very public (and often

5COPYRIGHT AND THE COMMONSvitriolic) arguments over Shakespeare and his works: until

mankind finally builds a proper time machine and manages to visit

the man himself, there will exist an ongoing battle to attribute

his writings to someone else. In his case, authorship is not

necessarily mandated by creativity, or genius, but by the fact

many simply do not want to accept creativity or genius from a man

who was neither a prince nor a particularly rich man.

Shakespeare the author is thwarted by Shakespeare the myth: the

fact that he lived in a time that would not have left much in the

way of concrete personal records means that people are fairly

free to make up whatever they want about his life or lack thereof

(McCarter, 2010). This has had the unfortunate effect of also

allowing people to decide that Shakespeare could not possibly be

the “genius” who wrote his plays, because a man with so little to

his name would obviously be too poor, unintelligent, or otherwise

incapable of writing so beautifully. His authorship is in doubt

simply because people cannot accept it; even though it seems

obvious to most people off the street that Shakespeare is the

author (his name is on the cover, after all), there exists a

contingent who would say otherwise. And how can it be proven?

6COPYRIGHT AND THE COMMONSIn this instance, it isn’t so easily done, and it isn’t even a

matter of copyright, it is a matter of opinion. If a man who

lived in the 1600’s cannot be decisively named as an author, what

chance does anyone have to make sure their claims stand the test

of time?

Shakespeare and his contemporaries, however, did have one

problem: actually publishing a book used to take an awful lot of

work, more so before his time. Perhaps it is the invention of

that printing press that really got the gears of contention

rolling; after all, a printing press is nothing more than an

anonymous, prolific machine. Authorship would not matter to the

machine, nor the printer; they would be paid to set up the

letters as directed, not to worry over whether or not the book

they were printing was actually originally written by the person

whose name appeared on the front. And there is the fact still

that even after the printing press began churning out books,

authorship was also arguably a group affair: the writer was only

one cog in the process of creation, not the sole owner. Writing

was collaboration, not solo, and often derivative in some manner

(Woodmansee, 1992). Before the printing press, people (usually

7COPYRIGHT AND THE COMMONSpriests) were hand-writing and drawing books that were arguably

more works of art than simple texts. Even these scribes were

imposing some of their own ideas within the text: though they

were by our reckoning just copying what had been given to them,

oftentimes they were forced to use their own judgment to render

text that had been illegible, wrongly copied, or was unfinished

(Fisher, 2012). This suggests more than mere copying, yet most

people would still not call them authors, nor ascribe to them any

sort of authorship of the texts they corrected. Of course, if

they did that sort of editing on the fly these days they would be

called plagiarists, so perhaps we shouldn’t be so hasty as to

argue that they can reasonably be called “authors.” Perhaps

“editors” would be a better term, though that itself suggests a

sort of collaborative authorship: after all, an editor is someone

who has to look over a work, suggest edits, and very likely see

those edits hit print within a text they did not otherwise write,

but did contribute to. This all adds up to what Woodmansee

suggests is the actual nature of authorship, and that is

collaborative (1992). If we look at authorship in this way, this

can also suggest that people who argue that Shakespeare isn’t the

8COPYRIGHT AND THE COMMONSauthor of his plays may be correct, though not in the way they

intended: his work was collaborative, since, after all, he did

not actually publish them in his lifetime. They exist because

two of his friends took it upon themselves to not only collect

his works for publishing, but to edit them (“Shakespeare’s First

Folio”). Thus, according to Woodmansee, they are just as much

the authors of his work as he is; they were even fellow actors in

his troupe! They even preface the work by stating that “before,

you were abused with diverse, stolen and surreptitious copies,

maimed and deformed by the frauds and stealths of injurious

imposters…(Woodmansee, 1992)” This suggests a personal stake in

the work; their copy is the supreme copy because they knew

Shakespeare personally, had worked with him on the plays, and

knew where to tweak and edit as necessary.

So perhaps already we must assume that what we colloquially

know as “authorship” is wrong, even before we’ve come to the age

of born-digital work, at least in the field of writing. It may

also help with our understanding of how born-digital work may not

be changing authorship at all, but only how we’ve come to

understand it. This can apply to any idea of “authorship” be it

9COPYRIGHT AND THE COMMONSwriting, music—arguably now very collaborative, as many artists

do not write their own songs (“Is Pop Music Fake?” 2012)—or web-

based publishing. When we look at the idea of authorship in this

way, it suggests that perhaps the only “change” is in how we may

need to re-understand the author, and how the creative process

may work to produce what we think of as a solo project.

But into this we then have to introduce the matter of

copyright, which has had a long, confusing, and contentious

relationship with the people it is supposed to both protect and

attack. Copyright may legally be defined as one thing, but

different people, when asked about copyright, will give you

different answers:

“Ask the question of a United States trade official and

she will tell you that copyright is one of the strongest net

contributors to the nation’s balance of trade. Ask the

question of a school teacher in Thailand and he will tell

you that copyright is what stands in the way of getting

textbooks into the hands of his students. Ask the question

of an anthropologist digging through the remains of the 1976


Copyright Act a century from now and she might tell you that

copyright is the symbol of a nation’s cultural aspirations.

Ask the same question today of a manufacturer of novelty

knickknacks and he will tell you that copyright is simply

what enables him to meet his payroll at the end of the

week.” (Goldstein, 1992).

Already, much like the concept of the author, copyright is a

prickly subject. And it isn’t surprising, considering the fact

that copyright can be both a help and a hindrance to the creation

and production of one’s own work. Consider the previous example

of Shakespeare’s first folio; one of the reasons that his friends

had done it was to preserve his plays in what they claimed to be

the best, and original, forms. But it was also to make sure that

the badly-copied versions that were filtering around at the time

did not become the standard of his work; in their own way, they

were exercising copyright before it even existed by using the

idea of personal control. That way, they could claim sovereignty

roughly two centuries before the first laws allowing authorial

control instead of royal control over an author’s work

(Goldstein, 1992). Of course, this does skip quite merrily past

11COPYRIGHT AND THE COMMONSthe little fact that Shakespeare was no longer alive to

appreciate these efforts, and for all of his friends’ claims that

they were preserving his work in his name, they would be the ones

reaping the benefits as editors and publishers. And so we swing

right back around to a fundamental issue of copyright and

authorship: is copyright to protect the author, or is copyright

to protect the publisher? It is an argument that has raged

practically since authors were given control over their own work.

Copyright law arguments had a good start in the 18th

century, especially in the United States, a dark maw into which

many authors and critics of the day readily jump into. What may

seem strange to us that opponents of copyright law were not

arguing necessarily that authors should not have a right to their

own work, but that the laws persisted a monopoly for publishers

and encouraged censorship and ignorance (Buinicki, 2014).

Speaking as a writer in the 21st century, the author finds this

to be a very strange argument indeed: if copyright is used by the

author to make sure that someone else does not take their work,

copy it off, and sell it for a profit themselves, how is it

censorship? Censorship suggests something else entirely to the

12COPYRIGHT AND THE COMMONS21st century mind, which is in opposition to copyright; the idea

that a country or a school or a television show will not allow

something to be seen because it is offensive, not because they

want to make money. But apparently, the argument of censorship

for those in the 19th century was that authors were simply plying

a trade, and were not anymore beholden to their work, really,

than a person who was part of the process of producing the work.

It is, again, the idea of the author as creator, as original, that

really secures the idea of copyright as a viable process to one

person alone. Joel Barlow, an author who was among the first to

benefit from author’s copyright in the United States, wrote

“there is certainly no kind of property, in the nature of things

so much his own, as the works which a person originates from his

own creative imagination” (As cited in Bracha, 2008, p. 118).

The 1790 Copyright Act in the United States thus began the

relationship between author as the sole creative process, and the

right of ownership given to those single creators in lieu of

publishers. Publishers were not creative; they therefore were

not seen as the ones who needed protection under the new

copyright laws. They were simply means to an end to getting the

13COPYRIGHT AND THE COMMONSwork out to the audience, not the ones who should have had

control over its dissemination. And it also meant that authors

were now able to actually become businesspeople in their own

right, making a profit on their work instead of self-publishing

at a loss. Again, one must look to the current idea of ownership

and authorship and ask, why was this a bad thing to do?

Shouldn’t someone who worked to write the book be given the right

to profit from it, instead of pointing the finger at a larger

publishing house and giving them the exclusivity?

Copyright has thus since existed since the 1790 law as a

sort of agreement that authorship means creativity, and

authorship also means one. Both have existed in a symbiotic

relationship of sorts that the internet has given a bit of a

shock to as it has opened the floodgates, in a manner of

speaking, to the idea of collaboration and the changing idea of

what it may mean to be an author as the century has aged. What

has helped this process along has been the slow nature of the law

to change and adapt to this new reality of the internet, fair use

laws, and other exemptions that copyright has not shifted to

really cope with. And of course, the fact that piracy has become

14COPYRIGHT AND THE COMMONSthe boogeyman upon which the slow sea change has been based, a

fact quite recently (as of December 2014) dangled back into the

spotlight with the takedown of The Pirate Bay website (again).

The fact is, is that the change is coming, and has actually been

here for quite a while; but there have been many factors that

have kept copyright and authorship from changing along with these

technological factors much in the same way things had been slow

to change after the creation of the printing press.

Almost immediately, we can point the finger at piracy as

being a factor in why copyright does not want to change. If

copyright exists to protect the Romantic notion of the author as

the owner of their original and unique work, than piracy exists

to counter it, in an ironic way harkening back to pre-1790

Copyright Law. Many people who pirate things such as music are

not, they argue, doing it because they want to starve the artists

—though there are some who would likely say that—they do it

because it disseminates content more freely, and not because they

simply want to avoid buying it. Quite a lot those pirates are

actual purchasers of legal music, and many support a monthly free

for unlimited access to digital content that they are otherwise

15COPYRIGHT AND THE COMMONSpirating or buying separately (Mick, 2013). In this instance,

copyright immediately looks at piracy and screams “Theft!

Property theft!” while the pirate is screaming back “Borrowing!

I’ll buy if I like it!” Authorship is not in question; what is

in question is how the money is made, not who actually still owns

the intellectual and creative rights. No one is arguing that

Taylor Swift, for example, is no longer the author of “Shake It

Off” once someone illegally downloads it; copyright merely steps

in and tries to protect her monetary right to the music. Even

with attempts to change copyright to deal with digital mediums,

this problem of profit v. dissemination and ownership has run

into a legal wall; one need only look at copying DVD or CD for

one’s personal use. The DMCA of 1998, for example, does not care

what DVD decryption software does for the personal owner; it

merely cares that it exists to decrypt the CSS security on the

disc (“Copyright Law. District Court Holds That Website's Posting

of and Linking to Code That Decrypts DVD Copyright Protection

Technology Violate Digital Millennium Copyright Act. Universal

City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S. D. N. Y.

2000), Appeal Docketed, No. 00-9185,” 2000). Even though fair

16COPYRIGHT AND THE COMMONSuse doctrine should allow for a person who owns a copy of, say,

The Matrix on DVD to be allowed to play it on a different device,

or make a copy of it, the fact that the DVD needs to be decrypted

first is what the DMCA claims is illegal. This means an archive

that may want to make a copy of a DVD, or copies of unpublished

manuscripts for a newsletter, can run into quite a lot of

trouble, even if it is merely meant in the spirit of preservation

(Crawford, 1983). So you can own the product, but you can’t do

anything with it! Again, this is not changing authorship, or

taking away the creator’s intellectual rights; but it is still

treated as such.

It is the definition of “fair use” that is quite possibly

the problem in this whole scenario; fair use is itself such an

ambiguous term, and not very well quantified, that attempts to

use it as an excuse means one can run into the same situation

that the DVD decrypter programmers did. If a professor at a

university wishes to use, say, a clip from a film to illustrate a

particular point in class—as the author has seen quite

extensively in a recent class about popular culture—a Hollywood

film studio can cite copyright law and the DMCA and sue over two

17COPYRIGHT AND THE COMMONSminutes (Decherney, 2007). “Fair Use” is not the burden of the

copyright holder to prove, it is the burden of the school to

fight for it. If a single person uses the decryption program to

rip their DVD for personal use, the DMCA is likely to never

notice. If they upload it onto the internet for people to find,

the DMCA still may not notice, depending on how many other people

download it. But if a library or a university make copies of a

software program they’ve purchased to give to their students

without having bought a proper license, the DMCA is likely to

come down hard, because “fair use” arguments fail when a large

corporation argues they’re losing a lot of money (Band, 2001).

The library and the university in this scenario are a much easier

(and wealthier) target than the average solo consumer. Much like

the publishing oligarchy before the Romantic notion of the

“author as one,” massive media corporations are twisting the use

of “authorship” to protect their bottom line, not their creative

process. But with sites such as YouTube popping up, people can

very easily upload movies for everyone to immediately see, as

well as other forms of visual media; in some ways, is this not

18COPYRIGHT AND THE COMMONSmerely a different form of television? And copyright and

authorship has dealt with that particular medium swimmingly.

There is, however, one place where the idea of the author-

as-writer is particularly relevant to change, as well as the

nature of copyright; the fanfic. It is not an exclusive

creation, but it does have its current main house there; it has,

however, been around in some fashion or another since before

copyright really got its hooks in. Consider Shakespeare again;

what are his plays but in some fashion derivative of other

stories? A Midsummer Night’s Dream, for example, uses characters

that are not Shakespeare’s original creations, such as Oberon,

Titania, and Robin Goodfellow; but not many, if asked, would call

the play fanfiction. Macbeth is a fictional re-telling of the

fall of the real king; again, not considered fanfiction, but

merely fantasy. These stories do of course come from a time when

the notion of authorship was, one recalls, not that of

originality, but of collaboration. Nowadays, people would argue,

it’s different; you can really hurt someone by borrowing someone

else’s characters and writing a different story with them!


Except that these horror scenarios have not actually

happened. Fandoms have existed around Star Trek since the original

series aired in the 60’s, and fanfiction (especially “slash,” or

male/male pairings) has existed along with them, even if they

were printed in newsletters instead of immediately published to

the internet. No one would argue that Gene Rodenberry has

somehow been stripped of his authorship of the characters because

someone wrote “The Ring of Soshern;” indeed, no money was really

ever made off of it, past what may have been charged for postage

of the printed copy. It was a slash fic that has circulated

privately for years, written before 1976, and while it does not

change the authorship of Star Trek overall from Gene Rodenberry, it

does challenge the idea of authorship over fanfiction itself

(Penley, 1994). After all, if authorship denotes originality,

fanfiction—based off someone else’s work—is not entirely original

at all. A fanfiction writer is using the characters someone else

has created in an entirely different story, so while the story

premise itself may be original, the people involved are not. The

internet has made fanfiction much easier to access and create,

and so this has definitely brought the issue right up into

20COPYRIGHT AND THE COMMONScopyright author’s faces, sometimes with ugly results; authors

such as Anne Rice and Laurell K. Hamilton have tried to block

people from writing fanfiction, asking websites to not post

stories, and essentially arguing that fanfiction harmed their

positions as authors themselves, that it diluted their original

work (“In the beginning, there was fanfiction: from the four

gospels to Fifty Shades,” 2012). In these scenarios, copyright

can be difficult to wield as a weapon, since copyright is at its

core a protection of monetary compensation, and fanfiction is not

(in almost all cases) not creating a profit. But even that is

changing; the very recent example we can look to is E.L. James

and her Fifty Shades of Grey trilogy, which started life as Twilight

fanfiction. The rapid rise of its popularity in the Twilight

fandom and her decision to self-publish it via Amazon (and by

merely rubbing off the numbers, so to speak, by changing names

and not much else) represents a change in how authorship and

copyright can be undermined by the born-digital medium quite

smartly (“In the beginning, there was fanfiction: from the four

gospels to Fifty Shades,” 2012). Although not all published

authors are wary of fanfiction, there have been many who have

21COPYRIGHT AND THE COMMONSbeen tolerant of it as long as it does not turn a profit, or, at

the very least, it turns a profit for the author, such as the

Extended Universe from Star Wars. Now, however, instead of being

quick to throw copyright and authorship at a fanfiction writer,

the publishers may be quick to snap up a derivative work if they

think it could be the next Fifty Shades phenomenon, creativity or

originality be damned. Already, thanks to self-publication via

Amazon, fanfiction authors can make a profit by circumventing

copyright entirely, which is a prime example of how fanfiction

itself works; already Fifty Shades has spawned eBook fanfic of its

own on Amazon (“In the beginning, there was fanfiction: from the

four gospels to Fifty Shades,” 2012). So how does copyright even

work in such a scenario, if the original work it cribbed from is

in of itself a derivative of someone else’s copyright?

And this extends even further past fanfiction into what is

called “modding” or “remixing” in general: as technology has

become easier to gain access to, people online have not been

content to simply be consumers of copyrighted works. Instead,

many people have done to video games, music, and video what

writers have done to books; they take them and produce their own

22COPYRIGHT AND THE COMMONSspin on the idea. Overclocked Remix is a website that exists simply

to allow people to—both singularly and collaboratively—re-arrange

video game music, and not only have they been allowed to exist

and thrive, they’ve produced music for the actual copyright

holders such as the soundtrack to Super Street Fighter II Turbo HD. All

of them are considered part of the authorship of the album, even

if the copyright holders are still Capcom. Others have found

themselves hired into the video game industry based on their mods

of copyrighted material, or have sold their mods to said

companies (De Kosnik, 2009). Instead of arguing for fair use, or

trying to legally change the definition of authorship, fan

creators have simply gone and done it themselves, perhaps

audaciously, by simply deciding that they were going to do it,

and damn the consequences. And as we can see, in many

situations, it is the fan creator who has won. E.L. James did

not get sued; she became a creator of content. And this is an

example that is likely to repeat itself as copyright holders turn

to the internet, perhaps in the spirit of “if you can’t beat ‘em,

join ‘em,” realizing they may not be able to win this battle

anymore than the movie studies have won the fight against piracy.


So what does this mean for our understanding of authorship

and its relationship to copyright? In the short run, it appears

that we’ve simply gone around in a sort of a loop, from the idea

of collaboration to the Romantic idea of the solo artist back to

collaboration and derivation again. Authorship has not changed,

it has merely gone through several phases of understanding and

adaptation to the current market. And that really is what the

heart of copyright and authorship is, when viewed together: money

policy. If the market clamors for derivation, the creator will

provide. Already there is a time limit on copyright: an author

or creator’s lifetime, plus seventy years (Shaw & Shaw, 2003).

(The company, on the other hand, gets 120 flat.) Once that time

limit is up, what was once considered the sole ownership of an

author is up for grabs (currently the case for the majority of

Sherlock Holmes stories, most of which is now in the public domain

(“Sherlock Holmes is really, really in the public domain—really,”

2014), and copyright is no longer an issue. Authorship, then, is

back to being not that of the person who created the original

work (although they’re still the original author), but to

everyone who wants to use the work for their own. It is back to

24COPYRIGHT AND THE COMMONSthe spirit of collaboration. And if the internet has given us

anything, it is maybe this: the idea that authorship does not

have to exist in a vacuum. Solo musicians can continue to sing

someone else’s written song and still be considered an author of

their own work; actors can act from someone else’s script and

still be creative; and writers can borrow someone else’s

characters. None of it changes the authorship of the song, or

the film, or the original book; arguably, all of it can really

only enhance. And copyright should change to reflect our return

to collaboration and understanding, instead of trying to prevent

anyone from being creative.


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Copyright and the Commons: Authorship in the age of the digital era

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