Copyright

John Sutherland

  • Copyright: Intellectual Property in the Information Age by Edward Ploman and L. Clark Hamilton
    Routledge, 248 pp, £12.50, September 1980, ISBN 0 7100 0539 3

In his essay on Nikolai Leskov, Walter Benjamin observes, almost in passing, that the novel inevitably brings about the end or storytelling. Like many of Benjamin’s paradoxes, this insight is very unsettling to the received idea – oh dear no, the novel doesn’t tell a story after all. Benjamin’s reasoning runs thus: the story (the only current example would be the dirty joke, I imagine) has no identifiable single author and is transmitted face to face. It rises from the common anonymous stock of oral recitation and intimate social exchanges. Unlike the novel, it is not immutably fixed in form: nor is it a negotiable commodity. Nor, to add to Benjamin’s distinction, does the story go round with a minatory © attached to it as does every novel.

The law of literary copyright is fertile in paradoxes, which Marxists like Benjamin would refer back to the larger contradictions of capitalism. ‘Intellectual property’, as it is awkwardly but necessarily called, is legally formulated by a compromise of materialist and idealist presumptions. A literary work is initially made by being written or otherwise recorded. In the interim between composition and publication (a very tricky passage) the work has only a latent protection, but one which will wait, with infinite patience, until publication, when the various copyright clocks start from zero. Copyright inheres, not in the work’s ideas or techniques, but in the precise form of words which make it up. While it is protected, the copyright work is conceived of platonically as an incorporeal archetype of which any book is only the transitory vehicle. Uniquely in the annals of ownership, intellectual property has a time clause attached to it: fifty years after the author’s death (in Britain and, since 1976, America) the work enters the public domain and ceases to be private property any more. The law is exact about chronology, but definition of the copyright object is a notorious quicksand. Although ‘literary works’ are the primary category, they are not required to have literary value: Lawrence’s handwritten laundry list and the holograph Women in Love are equal before the law. Nor, to be literal, do literary works have to be written or even readable. Key pieces of legislation, such as the Berne Convention, do not even venture to define what ‘work’ may be. ‘Literary work’ in copyright law is thus a semantic convenience of the same order as ‘John Doe’: what it is all depends.

The legal fiction that the literary work has an abstract, single existence which accompanies but mysteriously transcends any book fits in nicely with the academic theory of ‘text’. It is no accident that the century which gave birth to the first copyright law of 1709 also saw the rise of textual scholarship. Lawyer and editor build their systems around the same noumenon. The scholar, however, is the more ambitious of the two. Since 1967, when the MLA hailed its ‘new era’ of CEAA approved texts, a prodigious amount of American academic energy has been invested in the ‘establishment’ or realisation of the elusively ideal. The Laputan excesses which have resulted (appendices of hyphen lists, for instance) were satirised by Edmund Wilson. Within academic circles there have been ferocious, quasi-theological disputes as to whether copy-text be first or last published version in the author’s lifetime, whether it should follow old or new spelling, and what should be done with substantive variants.

Most of the editorial industry’s vexation arises from its faith in the single, pristine pure text, waiting somewhere for the scholar sufficiently rigorous in his principles. The more sceptical British bibliographer, Philip Gaskell, undermines this monist doctrine in From Writer to Reader (1978), where with self-conscious editorial quixotism he sets out to ‘establish’ the text of Stoppard’s Travesties. Using the playwright’s working script, various rehearsal and stage production recordings and the printed text. Gaskell convincingly demonstrates that Stoppard’s drama must exist in a condition of permanent disestablishment. And presumably each variant Travesties which he locates has, in potentia, a separate copyright.

Ploman and Hamilton do not speculate about Stoppardian multiplicities or the curiosities of literary copyright. They offer instead a brief history of its evolution from the first statute of 1709, and a comprehensive survey of how it works nowadays in different countries, and they explain what the law sets out to do. Their axiom is that everywhere and at all times ‘copyright is one method for linking the world of ideas to the world of commerce.’ To forge this link, copyright isolates and privileges in law two main entities, author and work, which transpose in commercial dealing to owner and property. The primacy of the individual author is the basis of literary copyright. In this way, dry legalism collaborates with the romantic cult of egotistic creativity; original, private ownership demands originating, imaginative mind.

Without a concept of the single author-owner the book culture-commerce of the West could not function. In the light of this, there is something genuinely anarchic in the recent post-structuralist call to liberate text from the appropriations of authorship. In post-structuralist analysis, the author is commonly reduced to a mere secondary ‘effect’ within the text. ‘What is an author?’ asks Michel Foucault. ‘The author function,’ he replies pejoratively, ‘is the result of a complex operation which constructs a certain rational being that we call “author”. Crities doubtless try to give this intelligible being a realistic status by discerning, in the individual, a “deep” motive, a “creative” power, or a “design” the milieu in which writing originates. Nevertheless, these aspects of an individual which we designate as making him an author are only a projection, in more or less psychologising terms, of the operations that we force texts to undergo.’

If we construct the author with our complex operations, what easier than to deconstruct him and concentrate on the plural system of the happily emancipated text. Roland Barthes takes emancipation a step further: progressive authors must deconstruct themselves: ‘the problem facing modern writing: how breach the wall of writing, the wall of origin, the wall of ownership’. How indeed? Although Barthes gracefully attributes S/Z to the collective of his seminar, the above words from it were owned by him and will be owned by his heirs for the next half-century. (I can quote them only by the very limited permission of ‘fair use’.) And if owner Barthes had chosen, say, owner Robbe-Grillet’s La Jalousie rather than owner Balzac’s out-of-copyright Sarrasine to transcribe and dissect, he would have discovered how impregnable the walls of literary ownership can be and how hollow his à la Bastille. J/L would probably be nothing more than a proscribed samizdat, circulating the advanced student coteries at Vincennes. How then achieve the ownerless, de-authored, copyrightless text? Barthes gives an oblique answer on the back page of S/Z’s French edition, where it is noted that medieval writing was quadripartite. There was the scriptor who copied, the compilator who interpolated commonplaces, the commentator who wove in interpretation and the auctor who ventured some new ideas. If the future holds an electronic global village for us, perhaps it also holds a new monasticism where authors will benignly disintegrate into the communism of pure writing function.

There is, as Barthes’s medieval illustration suggests, something ultimately hopeless in the post-structuralist enterprise. Law, the guarantor of constitutionality, enshrines the ‘realistic status’ of the literary property-holder (particularly, one may note, in France, where the author, unlike his Anglo-American colleague, has a moral right in law). © is thus the index of intransigent and triumphant counter-revolution. Not surprisingly, a nucleus of young British post-structuralists have drifted towards Marxist activism or have addressed themselves to film rather than literature. Film narrative, given its corporate ownership and diffuse studio origins, has no obtrusive author to deal with. (The early Screen contributors had little difficulty in exploding the modish metaphor of ‘auteurism’.) The cinetext is a convenient faute de mieux for Barthes’s utopian authorlessness.

Copyright sections of libraries are not much visited by non-specialists. These sections tend to be made up of legal tomes and handy guides for the layman. Ploman and Hamilton’s book may well be the first to propose copyright as a topic of widespread appeal. Their initiative is timely, for we are witnessing, as the authors point out, ‘the beginning of a break-down, or rather break-up, of the traditional, mainly technology-bound, legal and institutional categories into which systems and services have been fitted’.

When it is working efficiently, copyright regulates the competing interests of creator, producer, consumer and state. In the past it has done so by applying an inert body of essentially 18th-century rationalist law to the dynamic technologies and commerce of later centuries. The law has hitherto shuffled along with change by periodic self-amendment. As the DoT’s Copyright and Designs Law (HMSO, 1977) puts it, more wittily than its title would lead one to expect: ‘The first Copyright Act was enacted in 1709 and dealt only with books. This Act may be likened to a modest Queen Anne house to which there have since been Georgian, Victorian, Edwardian and finally Elizabethan additions, each adding embellishments in the style of the times.’ There are to be no more embellishments. New structures of law have been set up in America and are imminent in Britain.

New legislation is news, but hardly front-page material. What has made copyright of immediate public interest is the crime wave associated with it. Just as universal car ownership turned a whole population into traffic offenders, so the toys of new technology have universalised copyright infringement. Illicit taping of records, together with bootlegging, are major causes of the disastrous slump in LP sales. In America, home video screening of movies is a main grievance in the long-running actors’ strike. In Britain, possession of video apparatus practically puts one under a moral obligation to pirate, since recordings are not commercially available. (Conscientious archivists will also remember from the Simon Gray furore of five years ago that the BBC does not keep copies of even its most distinguished television drama.) Photocopying violations have notoriously injured educational and scientific publishers. All in all, there is probably no one of the professional classes who has not transgressed the copyright law, strictly conceived, over the last ten years.

In the same period the conglomerate-owned entertainments industries have made nonsense of the classic author/work model and rendered much of our legal-cultural vocabulary obsolete. In 1976, for instance, the best-selling work of fiction in America, and now one of the best-selling novels ever, was The Omen. I say ‘novel’, but in fact The Omen is the novelisation of a tie-in film. The same noveliser’s The Prophecy (1979) is © Paramount Pictures Corporation, who are the work’s legal author. The noveliser is David Seltzer.

Corporate authorship and versatile commercial exploitation are more systematic in the case of Star Wars. The film originated with George Lucas, credited on the title page with authorship of the novelisation (subsequent adventures of Luke Skywalker are by Alan Dean Foster, with Seltzer the leading noveliser of our times). But the copyright of the book is © Star Wars Corporation. The title, and all the dramatis personae, are covered by r or TM registrations. (They are enforced, too: the Star Wars people are currently suing the Battlestar Galactica people over robot plagiarism.) A whole thematic industry has been built around Star Wars, spanning everything from LPs to Darth Vader ice lollies. The starting-point of this industry was not an author-originated form of words on a page, but a product-merchandising campaign. Similar campaigns originated The Black Hole (Foster’s novelisation is © Walt Disney Productions) and the other SF blockbusters.

As I understand Ploman and Hamilton, this kind of corporate authorship is strongly encouraged by the new American law (‘the employer is considered to be the author of the work under the “work made for hire doctrine” ’). It would, however, seem to be illegal under the older-fashioned laws of Germany and France (‘under several provisions of French law the right to claim copyright is limited to physical persons [not] corporate entities’). The present unrevised British law is closer to the American than the European model. And much will depend on whether future legislation borrows from the French the concept of authors’ moral right.

We are used in this country to grindingly slow and undramatic changes in the laws affecting literature. PLR, for instance, took thirty years and will yield, next year sometime never, a few pence per registered author. In the future, copyright law is likely to change drastically, with increasing frequency and with vast sums at stake. There are clear dangers to traditional literary activities. The law does not trouble to distinguish between good books and bad books, the literary, the sub-literary and the non-literary. Its provisions are devised as blankets to cover a maximum of cases. Future redrafting of copyright law, designed principally to deal with the information explosion and new technology, may not retain a privileged niche for the creative writer and his book. As old legislation tended to cast all communicators as authors, so new legislation will tend to cast all authors as communicators. Ploman and Hamilton quote a relevant protest by the novelist John Hersey. As a member of the National Commission on the New Technological Uses of Copyrighted Works, Hersey argued vehemently against the lumping together of computer programs and artistic writing: ‘The mechanical and commercial nature of computer programs will pollute other legitimate artistic work if programs are awarded copyrights.’

Change in copyright law does not create the same stir or provoke the same rhetoric as change in obscenity law. Nonetheless the consequence may well be as culturally polluting as anything Mrs Whitehouse fears from the Williams Commission on obscenity. This book is a very valuable manual for the complex legislation coming our way.