ArticlesVolume 41, No. 3 (2018)

Author-Centered Copyright Enforcement?

Kimberlee Weatherall

Professor of Law, The University of Sydney, University of Sydney Law School.

Abstract

This Symposium explores our flexibility within international copyright law to better serve the purposes of copyright and, specifically, to benefit the individual human creators (authors) of our cultural and intellectual heritage.1  Where other contributions consider the potential for a different allocation of rights, here I explore the potential for author-centered copyright enforcement:  could we frame copyright enforcement practices and remedies with the explicit goal of promoting the interests of authors?  Could enforcement reform avoid the zero-sum game that pits homogenous and undifferentiated “copyright interests” (authors and publishers) against the rest of the world (commercial infringers, users, intermediaries, and others)?  The international legal framework governing copyright enforcement is relatively open-textured.  It is worth at least considering whether we could tailor civil enforcement procedures and remedies so that authors can win without ever more draconian enforcement.2

Apart from certain very specific contexts—such as moral rights3—authors are rarely recognised as having interests in enforcement distinct from those of other right holders.  But although authors and cultural intermediaries (publishers, record companies, and other disseminators of content) “do market battle shackled one to another as they do battle with users” with the “prime aim” of “driv[ing] away pirates and freeloaders and [extracting] returns from licensees,”4 their interests when infringement is alleged are not co-extensive.  The division of risks and rewards in litigation can reflect well-known imbalances in bargaining power between authors and disseminators.5  Contracts may allocate significant litigation risk to authors, while allocating litigation decision-making and rewards to the entity that owns copyright.6  Authors have distinct moral claims, and personal interests not likely to be felt with the same intensity by publishers or record companies.7  Further, needs and desires of authors can conflict with those of investors.8

I have argued elsewhere for better recognition of the personhood and interests of defendants in thinking about copyright procedures and remedies9 and, in other earlier work, focused on how we might get better value from the public investment in copyright enforcement.10  So my purpose here is not to advocate for a model, but rather, to demonstrate that there are author-friendly alternatives to the constant upwards ratchet of copyright enforcement reform.

© 2018 Weatherall.  This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction, provided the original author and source are credited.

  1. “Authors” here is used in the copyright law understanding, extending to all human creators of copyright-protected subject matter, including artists, computer programmers, composers, etc.  See Jane Ginsburg, The Concept of Authorship in Comparative Law, 52 DePaul L. Rev. 1063, 1064 (2003) (“in copyright law, an author is (or should be) a human creator who, notwithstanding the constraints of her task, succeeds in exercising minimal personal autonomy in her fashioning of the work”).  I acknowledge that human creators extend beyond this set, to include performers, but am not focused on their potential claims to consideration.  See generally Ruth Towse, The Singer or the Song? Developments in Performers’ Rights from the Perspective of a Cultural Economist, 3 Rev. Law & Econ. 745 (2007).
  2. Copyright infringement is also, in some circumstances, a criminal offence. Whilst more consequential for defendants, in general, criminal enforcement cannot be relied upon by authors:  illegal activity can be brought to the attention of authorities, but pursuit and prosecution is ultimately at the discretion of the state, and in most systems, monetary judgement or penalty flows to the state.  Criminal enforcement is therefore not a focus here.
  3. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised July 24, 1971, and as amended Sept. 28, 1979, S. Treaty Doc. No. 99-27 (1986), https://perma.cc/A8MA-9CGV (hereinafter Berne Convention).
  4. William Cornish, The Author as Risk-Sharer, 26 Colum. J.L. & Arts 1, 2 (2002).
  5. On these imbalances, see generally Richard E. Caves, Creative Industries: Contracts Between Art and Commerce (2000) (outlining reasons for imbalances in negotiating power as between individual creators and the larger investors); Ruth Towse, Copyright and Cultural Policy for the Creative Industries, in Economics, Law and Intellectual Property 427, 427 (Ove Granstrand ed., 2003) (firms in the creative industries are able to “free-ride” on the willingness of artists to create and the structure of artists’ labour markets, characterised by short term working practices and oversupply, making it hard for artists to appropriate rewards.); Ruth Towse, Copyright and Economic Incentives: An Application to Performers’ Rights in the Music Industry, 52 Kyklos 369 (1999) (hereinafter Towse, Performers’ Rights) (discussing the principal/agent relationship between authors and publishers).
  6. Stop Forcing Authors to Take Unlimited Financial Risks, The Authors Guild (Dec. 18, 2015), https://perma.cc/9R86-7L87 (highlighting contracts that require authors to give indemnities to publishers against suits for copyright infringement, defamation/libel/slander etc. . .).
  7. These are generalities, although some publishers are no doubt personally attached to their publications.  Further, not all authors have the same kinds of interests.  See Martin Senftleben, Copyright, Creators and Society’s Need for Autonomous Art–the Blessing and Curse of Monetary Incentives, in What if we could Reimagine Copyright? 25 (Rebecca Giblin & Kimberlee Weatherall eds., 2017) (discussing different interests of the popular artist and the member of the avante garde).  For examples of intra-artist conflicts, see generally Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (appropriation artist against commercial photographer); Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (appropriation artist against anthropologist photographer).
  8. Academic authors’ desire for maximum dissemination is an obvious example, but another would be the potential conflict around the value of scarcity in the visual arts.  See Caves, supra note 5.
  9. Kimberlee Weatherall, Provocations and Challenges Concerning Enforcement and Civil Procedure in IP, in Intellectual Property And General Legal Principles: Is IP a Lex Specialis? 181 (Graeme B. Dinwoodie ed., 2015) (highlighting important substantive concerns and values discussed in the general academic literature on procedures and the justice system such as the need to respect the rights of all participants in legal procedures and facilitate participation by plaintiffs/claimants and defendants/respondents so that they are invested in the result even if adverse to their interests.  I argued that unless we bring this other set of values into our thinking, we risk focusing only on the needs of IP rights holders, and treating defendants as the means to an end.)
  10. Kimberlee Weatherall, A Reimagined Approach to Copyright Enforcement from a Regulator’s Perspective, in What if we could Reimagine Copyright? 281, 294–312 (Rebecca Giblin & Kimberlee Weatherall eds., 2017) (imagining how a public copyright enforcer might act).