Authorship Without Ownership: Reconsidering Incentives in a Digital Age
Diane Leenheer Zimmerman
New York University School of Law
DePaul Law Review, Vol. 52, p. 1121, 2003
NYU Law School, Public Law Research Paper No. 55
The internet poses a serious challenge to creators, users and the traditional copyright industries. Because the copying and distribution of works in electronic format are cheap and easy, the tension over how to structure digital rights is acute. On the one hand, lawmakers have passed and proponents championed increasingly draconian regimes to support the tradition of exclusive rights over original works of authorship; on the other, critics of exclusive rights regimes have begun to search for alternatives that might continue to support creators while leaving behind as detritus the framework of ongoing control that copyright has long relied upon.
This article examines some of the proposed alternatives that would radically restructure the relationship between authors and their audiences. These would replace traditional copyright with direct payment by the public to an author. The author in turn would release the work, retaining thereafter few, if any, rights to control future uses or reproduction of the work. In reviewing these proposals - which, in addition to their emphasis on one-shot sales of rights, seem to contemplate a strategy for releasing longer works like books in parts rather than as an entirety - an intriguing similarity emerged. This sounded like the process by which novels were produced in nineteenth century England. Authors at that time were typically paid a lump sum for their work, and gave up any right to control their use or distribution in the future. (Copyright, in the sense of exclusive rights over time, was largely a benefit to publishers, not authors.) Interestingly, too, nineteenth century novels were commonly issued initially in serial form.
The existence of these parallels led to an investigation of history as a source of possible insights into whether a system that dispenses with traditional publishers and with copyright itself, could work. Because authors of novels and their publishers were, in the nineteenth century, were, like the internet authors of the twenty-first century embarked on building new audiences and new ways to distribution of published works, the role of serial publishing was also intriguing. The paper thus explores novel publishing in England two hundred years ago both to learn about the necessary conditions for authors to produce, but also understand something about other circumstances, aside from the presence or absence of intellectual property rights, that might play a role in creating a system under which authors might have a realistic chance of building direct links to a paying audience.
The paper ultimately concludes, using the earlier model, that abandonment by authors of copyright by authors, at least in the context of the internet, may actually be a reasonable alternative that will not damage incentives to create. But the article goes on to suggest that there are other necessary conditions to satisfy if the system is going to work. Although the internet may render many of the traditional functions of the publisher irrelevant, the nineteenth century experience indicates that editorship and branding are likely to continue to be crucial. It also suggests why serialization and content bundling may be important, even essential, components of a successful post-copyright regime, and why with or without copyright, electronic publishing will be complicated to model successfully.
Number of Pages in PDF File: 34
JEL Classification: K0, K29Accepted Paper Series
Date posted: March 7, 2003
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