Authors’ Rights as a Limit to Copyright Control Leslie Kim Treiger-Bar-Am

“Authors’ Rights as a Limit to Copyright Control”, in Fiona Macmillan (ed.), New Directions in Copyright vol. 6 (Edward Elgar 2007)

While copyright is intended to support the production of creative works, it can be used to restrict that production where the creative works depend upon previous works.

Embracing authors’ rights also can protect creators of so-called ‘secondary’ works.

Current critics of copyright often avoid using the term ‘authors’ with respect to the users of copyright works. These creators are labeled ‘users’, or simply ‘the defendants’. Lawrence Lessig prefers the terms ‘re-mixers’, or ‘re-coders.’ Creators who recode or mix past works, and use those past works in their own creative productivity, are often threatened by authors and exploiters of the copyright of the primary works. Yet re-coders are themselves authors. Giving full recognition to authors’ rights should deepen the protection that must be given to re-coders for their expression.

The Authors’ Rights Tradition
The Anglo-US copyright model is often framed as being about creating incentives for creative production. The idea is that where creators and producers have the incentive of financial rewards, they will continue to produce. The creation and communication of works will increase. Given such incentives to disseminate works, authors and media entrepreneurs are thought to be more likely to maximise the information available to society.

The Statute of Anne in 1709 was titled: ‘An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies’.1

Under the US Constitution copyright bears the same purpose, to promote the Progress of Science and useful Arts.2
United States Constitution Art 1 sect 8 cl 8 (‘The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’)

Authors’ rights can be used by an author in a conflict with a copyright owner. Even once copyright passes out of the author’s hands, the author retains control under moral rights. For example the integrity right allows an author to prevent the distortion of her work. The author can stop a copyright holder or other owner of a work from using it in distortive ways. This right could give protection against copyright holders who use copyright in abusive ways, for instance by commercializing a work against the wishes of its author.

The droit d’auteur tradition in Europe is often viewed with suspicion in this way in the UK and US. It is seen as reflecting an old, burdensome tradition. It would double the actors who can restrict the use of prior works, namely copyright owners but also primary authors even once they have sold the copyright.

An example of authors’ rights being expansive may arguably be seen in the successful restriction of creative reinterpretations of a work of art. For example a French court blocked the performance of the play Waiting for Godot by women, given Samuel Beckett’s instructions that this not be done.TGI Paris, 3e ch, Oct 15, 1992.

Authors’ rights protect authors. Who may be called an author? It must be recalled that the creator, re-mixer, re-coder is also an author. Those creators are rightly labeled so. The term ‘author’ can, and should, be attributed to all such authors. Authors’ rights can, and should, protect them.

Even so-called primary works are remixes of earlier works. The ‘primary author’ is often a user, and in fact a secondary user at some level. Even with a touch of newness in the creation, much will have been influenced by what went before. The reverse is true as well: the user, or so-called secondary author, is a primary author as well. Adaptations are a central means of creativity in all of the art forms. We can see this in each of the art forms: in literature, music, visual arts, and also digital works.

Certainly a court should not be asked to determine the meaning of a work of art. Yet the author’s intent is central. While there is intent to ‘copy’, there is also intent to transform. US law indeed looks to the purpose and character of a use, and UK law to the object and Copyright poses obstacles to creativity when works refer to previous works.

If the images of a former and a later work are substantially similar, there may well be a claim of copyright infringement. If the images in the two works are closely enough related but with distortive differences, there may be a claim of moral rights violation.

A type of creation involving the ‘remixing’ of earlier works that the law is very familiar with is parody.

How can Transforming Authors be Protected?

A tradition of authors’ rights can allow for protection of rights of authors who build on the work of earlier authors. European droit d’auteur doctrines entail certain protections of transformative use.

The EC Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright, allows for the protection of caricature, parody or pastiche, against copyright claims (Article 5(3)(k)).

In the UK, fair dealing enumerates certain situations in which copying does not constitute copyright infringement, for example for the purposes of criticism and review, and news reporting.Copyright, Designs and Patents Act 1988 s.30.

The US copyright statute by its very terms is restrictive: prohibited uses of a copyright work which violate the copyright holder’s exclusive right to ‘derivative’ uses of it, are defined to include uses in which the work is ‘transformed’. Fair use is, however, a defence. Fair use offers protection to transformative works, as the US Supreme Court stated in Campbell v Acuff-Rose Music Inc.

In the US, statutory law enumerates factors for courts to consider to determine if the copying may be defended as fair use: the purpose and character of the allegedly infringing work (including whether it is transformative); nature of the copyrighted work; amount and substantiality of the portion used; and the effect of the market value on the original.

The factors are similar to those considered under fair dealing in UK law: ‘(1) whether the alleged fair dealing is in commercial competition with the owner's exploitation of the work, (2) whether the work has already been published or otherwise exposed to the public and (3) the amount and importance of the work which has been taken.’

What is really interesting is that when dealing with this area, oct consider breach of copyright to take place once the work is complete , but really do not consider the situation when the re-mixing author - active consumer is actually included in the creation of the work of art in question?  DO i infringe copyright when I have been asked by the author creating the work to create a storyline or character that becomes part of the finished work!

Key to transformative work seems to be changing the original , Within the transmedial space the transformative work becomes part of the origina