|Collaborative Literary Creation and Control: A Socio-Historic, Technological and Legal Analysis|
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I have established in the previous sections that particular systems of control reflect particular systems of authorship and facilitate and reflect a particular climate of collaboration. As a result, wide variety of collaboration requires a wide degree of flexibility in how we define control, be it technically, socially and legally. In the following section, I describe four attempts that have been made to alter or augment copyright to facilitate creation collaborative work. Paired with collaborative technology described in Chapter 3 and collaborative notions of authorship alluded to in Chapter 2, a successful legal systems is the final piece in defining an environment of control supportive of collaborative literature.
The first two sections, the Section called Joint Authorship and the Section called The Works Made for Hire Doctrine, describe partial solutions that already exist within the systems of copyright. For reasons I describe in more depth, I feel that neither are particularly well suited to the facilitation of collaboration. The final two sections, the Section called Limit the Terms and Reach of Copyright and the Section called Free Licensing, stand in opposition to recent trends in copyright law but, in my estimation, hold more promise. In evaluating each of these alternatives, I attempt to distinguish between control by groups of individuals and control by groups which are, in and of themselves, a non-individualistic collaborative entity representative of the will and decisions of the collaborators as a group.
The most simple method for the facilitation of collaborative writing and control within the existing copyright regime is joint authorship of a single document. Joint authorship requires no modification to existing copyright and is a mature and tested concept both in the writing communities and in the laws that help define it. Unfortunately it is also the least constructive and the most problematic of potential "solutions" offered in this essay.
Joint authorship automatically occurs when two authors collaborate on a document outside of a stated contract, license, or agreement. Joint authorship requires that the collaboration be preconcerted and will not apply to many of the most historically influential and important forms of appropriate or serial forms of collaboration. Secondly, the individual contributions of each author must be both distinct from each other and copyrightable in and of themselves. For example, if one authors invents a character, plot, or idea and the other author executes it in text, only the person writing the words and expressing the idea could claim authorship and ownership over the final product.
Peter Jaszi describes the nature of joint authorship by stating that, "in effect, a 'joint work' has several individual 'authors:' Each 'joint author' must possess the legal attributes and should retain the legal prerogatives associated with solitary, original 'authorship'" ([Jaszi1994]). Quoted in a article on the impact of the Romantic conception of authorship in American copyright law and jurisprudence, Jaszi's description touches on the fact that copyright treats joint authorship not as joint control of a joint work, but as individual control of two distinct copyrighted works that happen to share the same page or paragraph. Jaszi goes on to argue that the consequences of classifying a work as one of joint authorship "reflect the individualistic bias of American copyright doctrine" ([Jaszi1994] 51). Imbued with bias and set in restrictive terms, the flexibility needed for many of the most useful and meaningful types of collaboration is fully absent. In fact, because each author technically "owns" or controls their portions of the joint text, each author has the ability to control their sections as they see fit without regard to their collaborator. Erecting fixed barriers between what is one author's and what is another's in a text is, at best, counterproductive to collaborative writing.
In this way, the legal concept of joint authorship facilitates meaningful literary collaboration less effectively than it represents the influence of copyright's inability to deal with de-individualized mechanisms of control. Peter Jaszi describes how in this way "copyright law thus tends to treat 'joint authorship' as a deviant form of individual 'authorship.' Indeed, in many particular instances copyright refuses to acknowledge the existence of 'joint authorship,' or does so only grudgingly." In support this argument, Jaszi cites the major 1976 revision to the copyright act that added the requirement of face-to-face meetings "at the time the writing is done" to the definitions of what copyright law would recognize as an example of joint authorship ([Jaszi1994]). Jaszi's point is well taken and this aspect of the 1976 copyright act revision is only one example of copyright's increasing embodiment of the Romantic and highly individualized conception of authorship and its growing hostility toward collaborative writing processes.
Even before the amendment in 1976, copyright's support for joint authorship existed as a kludge fully deserving of every negative connotation associated with the term. Joint authorship is an attempt to support collaborative writing through joint individualized control and—when described as such—its poor track record in supporting or encouraging a meaningful environment for collaborative writing and a large number of collaboratively authored texts is hardly mysterious.
In two sections of An Act to Amend and Consolidate the Acts Respecting the Copyright passed and put into effect during 1909, the United States Congress created a legal reality of corporate authorship through what is referred to as the "Works Made for Hire Doctrine." The new law, aimed primarily at publishers of periodicals, encyclopedias, and other complex aggregations of multiple authors' works, allowed an author to transfer all ownership and control over their work to an employer or proprietor. Through contracts and agreements, copyright became a commodity. Siva Vaidhyanathan calls the birth of works for hire "the real 'death of the author,'" and the point where copyright became demonstrably "a construct of convenience, malleable by contract" ([Vaidhyanathan2001] 102).
Since 1909, the doctrine has provided the legal backbone for the motion picture and recording industries and helped the publishing industry reinvent itself as well as paving the way for other copyright-based industries. While often used as a legal mechanism for the transfer of authorship from individuals to publishers or distributors, its intended role as a legal umbrella for the aggregation of multiple creative works has been equally influential and provides the most impressive contemporary demonstrations of the effectiveness of creative collaboration.
Using the works made for hire doctrine, the richest and largest copyright holders—corporations with household names like Disney and AOL/Time Warner—appear to have become poster children for the power and effectiveness of creative collaboration. Hollywood movies, complex musical recordings and mainstream book and newspaper publishers stand out as paragons of how working together facilitates the creation of large, high quality creative works in a quick and consistent fashion. Disney's feature-length animated films and the World Book Encyclopedia are profit driven endeavors that would clearly be impossible for individuals working alone. Corporate creative work as practiced under copyright's works made for hire doctrine is successful for the reasons implied in this essay; it creates a system where individual control of work by authors in systemically minimized.
While this corporate model for creative collaboration has been conspicuously missing from my discussion so far, its omission is fully considered and fully intentional. While authorial control over works is eliminated under the works made for hire doctrine, it is replaced with individualized control by a new—usually corporate—actor. The doctrine is effective in dethroning the Romantic author but the system of individualized control rooted in the concept of romantic authorship is left fully intact; it is merely transfered to a different individual. With the systems of social and legal control unchallenged, an owner under the works made for hire doctrine has the full power to control, change, alter, or reform the work for her own goals in the highly individualized manner granted by copyright as well the assurance that this control is not legally available to other entities, including the work's authors. In this way, it represents a merging of collaboration creation with individualized control.
Works made for hire is clearly an effective legal mechanism for the creation of high quality and complex texts. However, while this collaboration leads to larger, more complex, and higher quality creative works than can achieved through individualized authorship, the nature of copyright's strong systems of individualized control mediate the power of the collaborative process. While to some degree, power dynamics play a role in every collaborative project, works for hire is particularly ill-suited to meaningful collaboration. Individualized control is left fully intact and is often fully transfered to an non-authorial entity.
While works for hire are often highly creative works, their creativity is highly constrained. Even a work's authors have no ability to write, alter, or borrow from the work in a way that the owner disagrees with. In a high profile court case, John Fogerty's former record label, which owned the rights to music he had written and preformed earlier in his musical career, sued him for copyright infringement of songs that Fogerty had written; the owner accused Fogerty of sounding too much like himself at an earlier point in his career ([USDC1987], [FedAppeals1993]). Additionally, the collaborative process, while effective during the production of the work, is limited to the creation of that particular work. Collaboration by borrowing, synthesis, or rewriting is impossible without the unusual and unlikely permission of the owner.
Through the adoption of the corporate model by collaborating authors, it seems plausible that the works made for hire model could be harnessed to secure control within groups of authors. Collaborators might create corporations, directed and controlled by themselves, which control the works created by the group. Of course, these corporations would need bylaws that described the process in eventualities that include the addition, dismissal, or withdrawal of a collaborator, the division of monetary and non-monetary compensation as well systems for resolving disagreements within the group. In addition to being prohibitively difficult to implement and maintain in many, even most, cases, the doctrine, by simply creating a new type of individualized control by the group, sets up strict limits to the scope of the collaborative process for the life of the works copyright—it can only facilitate one voice.
With this awkward exception considered, the works made for hire doctrine cannot solve the the problem of systemic and individualized control. Rather, it harnesses some part of the power of collaboration by transferring control away from those who are creating the work. Authors are not merely dethroned, they are disempowered and disenfranchised.
The growth of copyright and the proportional elimination of support for collaborative writing implies the common-sensical idea that strong systems of legal control prove more hostile to collaborative work than less strong systems. To more effectively support collaborative writing, one only needs reduce the strength of systemic legal controls. In advocating "thin" rather than "thick" copyright, Siva Vaidhyanathan engages in such an argument ([Vaidhyanathan2001]). His calls echo and are echoed by those of a increasingly wide variety of individuals and organizations. The list of authors and supporters of amicus briefs in Eldred v. Ashcroft stands in as a recent snapshot of the most high profile members of this chorus. This diverse group united major American library associations, the Intel Corporation, and the National Writers Union, and a diverse group of lawyers, economists, software developers and non-profit organizations. They stood together behind Eric Eldred's call to establish real limits to the reach and duration of copyright ([Eldred2003]).
Their's was not a call for the destruction of copyright—many of these groups' livelihood is dependent on income from copyrighted works. But the National Writers Union and others were aware that the continued extension of copyright benefited writers minimally while dramatically limiting their ability to borrow and share with their contemporaries and predecessors. These groups were united in their opposition to copyright's standardization of control in ways that are counterproductive for anything other than a highly individualized model of authorship. Through continued extensions of copyright, the public domains is frozen in a way that restricts serial collaborative unions. Of additional offense is the fact that of the 425,000 works whose expiration was postponed by the most recent extensions of copyright, only 77,00 are profitable ([Lessig2002] 7). Through continued extensions of copyright, the government is hurting the public ability to collaborate for the benefit of a a handful of rich copyright holders. Since the steady advance of copyright has created the crisis in which contemporary collaborators have found themselves, stopping and reversing copyright's advance comes to the forefront as a potential solution.
In Stewart v. Abend, the Supreme Court affirmed that "the copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors" ([SCOTUS1990]). However, since, in the previous century, copyright has been retroactively extended each time the passage of copyrighted work into the public domain becomes imminent, many have begun to question the nature of these "limits." Still, the difference between "effectively" and "actually" unlimited is inconsequential to those seeking to use, reuse or access copyrighted works. Of consequence is the fact that copyright, originally set at 14 years, was better at supporting collaborative writing two hundred years ago than it is today. Since copyright's expansion has aggravated the problems associated with its codification of highly individualized authorship through highly individualized control, limiting its scope, reach, and duration may in fact serve as an effective way of helping to promote collaborative authorship.
The petitioners in Eldred v. Ashcroft asked the Supreme Court to strike down the most recent twenty-year extension on copyright for many of the reasons I have presented so far. In a amicus brief written on behalf of fifteen library associations including the American Library Association, Arnold P. Lutzker argued the importance of shorter limits for copyright:
Citing numerous egregious example of how extended copyright had blocked meaningful educational, scholarly, or democratic discourse and collaborations, Lutzker presents strong argument for limits on copyright and the test by which Congress must hold copyright to. When limits are extended and freedom and the creation of new collaborative works are limited, an argument that ignores the importance and benefit of greater access to existing works, Congress must be able to demonstrate that the extended copyright maintains a balance between the rewards given to copyright holders and the net benefit to the public. By scaling back copyright, petitioners and amici feel that scaling back copyright is one way to reclaim the balance present in early copyright that is now clearly missing.
As the time of protection becomes progressively less and less limited, Congress should be required to have a progressively greater foundation for determining that enlarged protection is necessary to promote the progress of science and useful arts ([Lutzker2002]).
The return to real limits for copyright is clearly a step toward an environment more supportive of collaborative writing. On the other hand, major copyright holders demonstrate their ignorance of collaborative production's power and potential by arguing that because compensation of authors prompts the promotion of new works, there is no conflict between the interest in promoting new works and the interest of copyright holders ([OTA1989]). Their philosophy leaves no room for collaborative work, borrowing, appropriate forms, or anything outside of the extremely narrow conception of highly individualized Romantic creativity. Reflective of heavy lobbying by these groups, the government's argument in Eldred v. Ashcroft took this position. However, it was not primarily concerned with debunking the petitioners arguments that contemporary extensions to copyright are poorly suited to encouraging the the promotion of science and the useful arts. Instead, the state argued that regardless of the effect, it was Congress that was mandated to decide the terms of copyright. Congress, the subject of political pressure by well funded interest groups and corporations like Disney, Time Warner and Sony, has been unresponsive to the less profitable needs of collaborative writing's practitioners.
Unfortunately, if Eldred is to serve as an example, the potential for reversing copyright's consistent and steady growth is doubtful. In the crushing 7-2 opinion, the Supreme Court rejected the Constitutional challenge of the CTEA and afforded only three pages to the First Amendment arguments made by the petitioners. The Court was simply unwilling or unable to interfere in Congress' actions as defined under the Copyright Clause for reasons outlined above.
Eric Eldred and Lawrence Lessig, the Stanford law professor representing Eldred in his Supreme Court case, have since help found the Creative Commons project that attempts to secure a public domain through other means. Creative Commons' first licensing program, the Founders' Copyright aims to reduce the counterproductive aspects of long copyright protection, including the effect on would-be collaborators, by limiting the term of copyright to fourteen years, the length of copyright in the first American copyright act. The description of the Founder's Copyright project reads:
The Creative Commons project realizes that through contractual agreements, they can achieve a more limited form of copyright. Of course, their project is purely voluntary. As a result it will have no effect on those copyright holders who chose not to relicense their work. It will also not affect those copyright holders who retain legal control of the work but are inactive—like the families of Civil War veterans who are in all likelihood oblivious to the fact that they control letters written by their great great grandfather or even to these texts very existence. The estates of many authors have no interest in a particular copyrighted work and, even if they may have no reservations with placing their work in the public domain, are unlikely to take this step.
The Framers of the U.S. Constitution understood that copyright was about balance—a trade-off between public and private gain, society-wide innovation and creative reward. In 1790, the U.S.'s first copyright law granted authors a monopoly right over their creations for 14 years, with the option of renewing that monopoly for another 14 years.
We want to help restore that sense of balance—not through any change to the current laws, but by helping copyright holders who recognize a long copyright term's limited benefit to voluntarily release that right after a shorter period (CreativeCommons2003a).
In this uphill battle to create and foster a vibrant public domain and an environment suitable to the promotion of collaborative literature, at least one large book publisher, O'Reilly and Associates, has already agreed to place a large number of their books under Creative Commons' Founders' Copyright ([CreativeCommons2003a]). O'Reilly realize that in fourteen years, the copyright on their technical manuals will be almost entirely unprofitable—Founders' Copyright will result in little or no lack in revenue. However, ever after this period, the texts, most of which will be long out of print, may still be useful or desirable to a small community of users. O'Reilly aims both to win favor with these users and to convince other publishers to follow suit. They recognize the potential of an environment where authors of technical manuals might freely borrow from a rich public domain. In this commons, better texts can be created more quickly and O'Reilly, and probably other companies along the way, will as a result become more profitable.
The description of Lessig's work on Creative Commons—and the allusion to O'Reilly—presents the perfect transition the final, and perhaps the most exciting and effective, method available for supporting collaborative writing under, or in opposition to, existing systems of copyright. While Creative Commons' Founders' Copyright project is an unique and exciting example of voluntary and extra-legal limitations being placed on works by copyright holders, Creative Commons' mission is to use this type of hybridization of copyright and contract law to promote sharing and collaboration in meaningful ways in a varieties of forms. Their goal, and that of others following similar models, is an exciting attempt to create viable alternatives to highly individualized control.
Creative Commons gains it inspiration from the example of the Richard Stallman, the Free Software Foundation, and the larger free and open source software movements. Popularized by the continuing success of the GNU/Linux operating system, the free software movement uses licenses to, in the words of Peter Jaszi, "approximate a public domain for software" ([Jaszi2002] 12). Free Software is a concept invented started by visionary MacArthur fellow Richard M. Stallman, who quit his job at MIT as a result of the growing proprietization of computer software that eliminated what he saw as a vibrant culture of sharing, borrowing and collaboration in the world of computer programming. Stallman founded the GNU project, an attempt to write an operating system that was completely free (Stallman famously explains that Free Software is "free like free speech, not like free beer"). For software to be "free" under Stallman's definition, users must be able to use the software for any purpose, share the software with their neighbor, change the software, and then share and redistribute those changes freely. Finally, Stallman wanted a method to secure his software's freedom and to keep it from proprietarization—although this was not part of his definition.
Of course, this model runs counter to the highly individualized control described by copyright. As a result, Stallman used software licenses, the same contractual agreements that clarified, limited, or eliminated those scaled-back freedoms guaranteed under copyright to increase users freedom rather than to restrict it. In the conceptualization and creation of the GNU General Public License, he went a step further codifying a concept he called "copyleft" that not only secured the types of freedoms listed above but added a clause requiring that derivative versions also be licensed under the GNU GPL. The result, of course, is that any piece of software using any GPL licensed code must also be licensed under the GPL. Bryan Pfaffenberger calls this "the most important achievement of the free software movement," and argues that it "provides a meaningful alternative to the prevailing copyright regime" ([Pfaffenberger2001]).
In providing this alternative, the Free Software movement has facilitated a meaningful space for the promotion of collaborative work on software. The results of the experiment are fully in line with my wildest claims about the effectiveness of collaborative work. Almost solely through volunteerism, tens of thousands of programmers have contributed to the the GNU/Linux operating system which IBM and HP have chosen over internally written alternatives programmed and maintained over decades by paid workers. There is a three in four chance that a given web page was served using a Free Software web-server. In the Cathedral and the Bazaar, Open Source proponent Eric S. Raymond places the success of the Free and Open Source Software movements in their power to facilitate meaningful collaboration. Raymond claims that Linux's success can be traced back to the simple axiom he calls "Linus' Law": "Given enough eyeballs, all bugs are shallow " ([Raymond1999] 41); bugs, or errors in computer software, are found and resolved more quickly and more effectively with more collaborators on a given a project. In essays on the gnu project and a speech on Free Software: Freedom and Cooperation, Stallman echos the same point ([Stallman2002]).
Gaining inspiration from the Free and Open Source Software movement's philosophy, methods, and success, Creative Commons' adopted Free Software and GPL-like licensing of artistic work as their primary method. Toward this end, Creative Commons has published a list of licenses for use in securing free and open access to websites, scholarship, music, film, photography, literature, courseware and other copyrightable forms. Their website allow users to dynamically select licenses that allow them to place their work in the public domain while requiring others to attribute their work or to share-alike (the viral—all derivative versions share the license of its predecessor—or "copyleft" quality of the GNU GPL) or to bar commercial use or derivative works.
Through clear instructions and a simple interface, Creative Commons encourages authors and artists to open their work to access, distribution, or improvement by others. Like the Free Software movement, Creative Commons is poised to recreate a vibrant public domain where meaningful collaboration can occur. By placing their work under a Creative Commons license, collaborators are able to effectively free their work from the power and scope of copyright. Only a year old, it remains to be seen if the Creative Commons initiative will be as successful in creating a real alternative to mainstream publishing in ways that mirror the free software movement's success.
Of course, copyright holders argue that copyrights ability to support the creation of creative works has increased through continued extensions that provide added incentive. In the context of retroactive extension, this argument seems dubious—no additional control can prompt a dead author to produce new work. In the case of the proactive extension granting an addition of twenty years fifty years after the death of the author, both common sense and empirical evidence seems to imply that the the net effect is negligible ([Jaszi2002], [Lessig2002]).
Free Software is often confused with Open Source. While subtle, the difference between the two movements are largely philosophical. The more pragmatic Open Source movement has its root squarely in free software and the text of the first version of the Open Source Definition is an almost verbatim copy of the Debian Free Software Guidelines. The camps collaborate on many projects and can claim joint responsibility for the success of most free/open source software projects. Richard Stillman's' Why "Free Software" is better than "Open Source" presents the split between the two camps clearly (Stallman2002).
It became clear in the beginning of Free Software's life that software itself was copyrightable although, given the nature of copyright and the nature of software, this is not necessarily obvious. Recently, software has increasingly been the subject of patents. The Free Software movement is currently attempting to respond to and mobilize against this very different form of proprietization.