Why is the notion of the copyright "author" held in such low regard? And why is the notion of "users' rights" so ascendant? At the risk of sounding banal, there is no work to consume, much less to protect, if there is no author to create it. True, books were written long before there was copyright protection. True, as well, copyright protection is also about distribution of content and the various commercial interests that are involved. Still, there must be an author for there to be a work. But to read many an account of current thinking about copyright, the author is at best an afterthought. Increasingly, it is the right of the user to the content, rather than the right of the author in creating the content, that is paramount. This Kat was reminded of this issue during a meeting, after a nearly a one -decade absence, with a long-time acquaintance with an extraordinary research record in the copyright field. As ebullient and passionate about copyright as ever, one issue troubled her deeply—the rise of the notion of users' rights as a (the?) central component of our current understanding of copyright. "Whatever happened to the notion of the 'author'?", she dejectedly asked.
This Kat has often wondered about the same question. After all, we have always been taught that the great breakthrough in the development of the copyright system came about with the enactment of the Statute of Anne in 1709 (1710). For the first time, instead of a system based on the grant of a publishing monopoly in favor of the Stationers, augmented by the ability to censor, we had an arrangement which put the author front and centre. The authors received a limited term of exclusive protection (and the legal ability to transfer rights to publishers so commercialization could take place), after which the content entered the public domain. In so doing, the public presumably benefited twice: first by encouraging the creation of content and second providing that the content ultimately ended up in the public domain for all to use. As best this Kat's sense of feline smell can determine, there was not a whiff of users' rights in this arrangement. And yet, by 2013, "users' rights" have become a staple in copyright discourse and education. So this Kat reached out for some further guidance – whence the centrality of "users' rights"?
There can be no better source than the thoughts of the late Professor L. Ray Patterson
here, one of the earliest and most vigorous proponents of the notion (witness his book of over two decades ago—
The Nature of Copyright: A Law of Users' Rights). A useful way to understand the gist of Professor Patterson's thinking can be found in the transcript of an interview that he gave for the American Library Association
here before his death in 2003. For Patterson, copyright was not primarily a matter of international norms (after all, the U.S. joined the Berne Convention only in 1989) but rather a creature of U.S. jurisprudence, especially the Constitution and the Supreme Court. On that basis, Patterson was adamant-—the purpose of the copyright system is not to reward authors but to promote the societal interest through the advancement of knowledge. In his words, "the three constitutional policies of copyright [are] the promotion of learning, the protection of the public domain and the right of public access." The author (and obviously the publisher) are nowhere to be found.
For Patterson, "copyright is a limited statutory monopoly of information for a public purpose and that purpose is not to make a commodity of information and facts so that learning will be subject to licensing by publishers as in Elizabethan and Jacobean England." Under such a view, the Statute of Anne comes out as merely a poor-man's version of the maligned 17th century Licensing Acts. It was the U.S. Constitution that conferred upon copyright its proper role in an enlightened society. Fair use is the ultimate expression of this view. In Patterson's view, fair use is not simply a legal privilege (as defined by
West's Encyclopedia of American Law, a power of exemption that " one from the performance of a duty, obligation, or liability") but a full-fledged right, presumably as integral to the copyright system as the author's right of reproduction and distribution
This Kat would like to think of himself as not naïve when it comes to copyright. He is aware that technology, and the ways by which contents are distributed and consumed, continue to pose a challenge to whether the copyright system can continue to be relevant. On a daily basis, this Kat both creates content as well as consumes it. In so doing, however, he simply cannot accept the proposition that the copyright system should put the author and user in some correlative balance with respect to rights. Reasonable people can debate how to best enable users to use the works of authors. Maybe the academic world, with its emphasis on articles and recognition, should have different operative rules than book publishers of full-length contents, many of which derive from settings other than the Academy. But in so doing, to cast all of copyright with the broad brush of an ever-expanding notion of users' rights goes beyond the pale of that debate.
