Authorship in Legal Discourse

The authorship of a particular piece of writing is the identity of the person who made it. Nowadays the question of authorship is really sharp. When the case touches upon the legal discourse, lots of disputes appear. The correlation between authorship and text interested scientists continued all over the last century and continues until today. The most long lasting connection in this regard was coming from the literary text and different philologies. On the other hand, as the Internet develops extremely swiftly, the questions of unique links becomes even sharper than the one with literary works.

If describing authorship abstractedly, it involves the controlled collection or creation of media and the association and outline of that media in a larger arrangement. However, authorship means more than just selection and creation; it is a multifarious construct incorporating concepts of uniqueness, intertextuality and ascription. Authorship can be seen as the mission of making alternatives and selections, relating to the construction and content of media elements within the limitations of a particular standard. Plagiarism has always been the best example of legal contest in authorship. It is also a good example of how both social and legal norms are used to dampen or restrain behavior, surrounding authorship. It is clear that in order to avert potential stigma, an author must work within legal laws and social values; it is also important to operate in accordance with a particular community or culture (Koppel, Messeri & Shler).

Legal constraints represent an influential part of authorship, in terms of what is not or is lawfully acceptable in a society or legal jurisdiction (Lessig). The constraint is compulsory, using castigation as a violation result or by encoding the legal constraint into the software to passively avoid mistreatment. In most countries, the primary mechanism for protecting authors’ property rights is copyright law. Authors must create it in accordance with the law and pay attention to the fact that their use of appropriated material is covered under the fair use clause of their copyright act (United States Copyright Act ). Many aspects of copyright laws are codified and standardized in the international intellectual property treaty (the Berne Convention), and most nations of the world have now signed it. Copyright law is principally used to protect economic interests, but in jurisdictions of some countries the concept of authorial moral rights (droit moral) is embedded in the legal codes. Moral rights are concerned with protecting the self-respect and autonomy of authors and contain the right of disclosure (when to openly disseminate a work), the right of integrity (prohibition of the falsification of an author’s expression), and the right of attribution (being accepted as the author) (Kwall). Moral rights tend to reflect the notion of authorship. They protect the human spirit, contained in an author’s creations. If there are no legal aspects to protect moral rights, other environmental constraints, such as community and social norms can take part in the intervention of such concerns.

Unfortunately, copyright law is not always observed, especially on the Internet. The process of designing in new media consists of selection from different menus of software packages, media assets databases, etc. In the same way, a user is made to feel like an artist by allowing him/her to quickly create a professional work by selecting from a lot of menus. If to take any Search Engine, it is easy to see that, for example, Google’s relationship with links over the last 15 years has changed. There is a beginning of suffering from trust issues that have been discussed for over a decade of the SEO community, manipulating link graph. In software-driven production environments, all the quotations come not from memories of the creators’ of what they saw, read, or heard before, but also directly from these search engines and media assets’ databases, as well as lots of other reasons that in case of the World Wide Web are only a click away. Fortunately, the owners of social networks and other sites make all possible attempts for pages’ verification, blogs’ authorship attribution, etc.

Methods of authorship attribution are assumption based; the assumption is that people have small set of candidate authors. As or law enforcement, however the assumption is violated quite often. There might be no closed set of expectations at all or it might be a closed set, including a lot of suspects. This problem is quite straightforward (Kopper, Messeri & Shler). To define correctly the fact of authorship it is important to pay attention to the following stylistic features:

- Function words: These words are the ancestors of all stylistic features of authorship;

- Syntax: Undoubtedly, different authors use syntax differently, that is why in legal questions and analyses this feature can help to define the authorship of this or that work;

- Syntemic Functional Linguistics trees: These are glorified parts of speech, specific kinds of conjunctions;

- Morphology: The frequent usage of different grammar suffixes and prefixes that can sometimes be useful clues for authorship;

- Complexity measures: This feature historically happened to be explored as possible markers of authorship;

- Idiosyncraisies: Such features as exotic syntax, neologisms, word construction, etc. tend to be the identifiers of anonymous authors (Kopper, Messeri & Shler).

There are also continuous contests about the fact which works should be categorized as those which have unique authorship. In most cases these are tape recordings, computer software, sheet music, records, movies, laser disk games, designs, video disk productions, magazines, cartoons, books and poems. At the same time, book titles, songs and stories; short phrases and slogans; printed forms; tables and lists taken from public documents; complications of facts are not qualified as original works of authorship. The law considers these items as short or lacking originality to qualify for protections of copyright. These items, especially slogans, make a lot of contest in legal discourse. The field of publicity attracts too many people who think their creations are unique. In pursuit of money and fame making these “creators” can just remake famous poems or songs’ lyrics. Such an unfair competition often engenders judicial pleadings which, in their turn, can have very deplorable results.

In particular, there is a concept of authorship’s satisfaction constraint and it is important to provide an understanding of how environmental constraints affect four main components of authorship mentioned before: attribution, authority, originality, and intertextuality. Through the last decade social protections against deceptive authorial attributions were not clearly defined, but they continued their existence under the rubric of trademark law. Along with copyright law there appeared trademark law as a part of the broader law of unfair competition (Diakopoulos, Kurt & Medynskiy).

The very concept of authorship seems to be grounded in the 18th century concept of an author as a unique creative genius and the sole owner of the rights to his/her intellectual product. The Enlightenment era contributed to the conceptualization of authorship as a purely individualized phenomenon that should be evaluated proceeding from the concept of ‘originality’ that became especially prominent in the period of the 19th century “Romantic literary criticism” (qtd. in Jaszi 30). According to Woodmansee, the emergence of modern copyright concept was necessarily connected with the nascent professional writers’ social group that was inherently interested in “redefining the nature of writing”, thus leading to the rise of the proprietary copyright doctrine (Woodmansee 425). Furthermore, the establishment of the permanent copyright legal doctrines may be connected more with the publishers’ campaigns to secure the continuous exercise of the legal rights to the respective literary creations (Rose 51). In France, in particular, the transformation of the author and publisher’s copyright from the royal privilege accorded to specific publishers into the socially acknowledged ‘moral right’ took place at the end of the Enlightenment era but was actually cemented by the Napoleonic Code (Saunders 75-106). However, in Great Britain, these efforts were originally doomed to failure, and it was not earlier than the 19th century when the installation of perpetual copyright law as the key concept of the Common Law authorship provisions eventually took place (Jaszi).

In the USA, the development of the copyright law from the very outset became one of the important preoccupations of the Federal government. Saunders notes that the Founding Fathers exerted significant efforts to assist in the formation of the modern concept of the sole authorship-based copyright law. For instance, the provision of Article 1, Section 8 of the U.S. Constitution specifically provides for the Congress “to promote the Progress of Science and Useful Arts, by securing for limited times to Authors and Investors the exclusive Right to their respective Writings and Discoveries” (U.S. Constitution art. I, sec. 8). In so doing, the U.S. Constitution laid the foundations for the development and entrenchment of the specifically modern interpretation of the copyright law as conducive to the facilitation of both individual and societal progress. It may be easily understood that this provision proceeded from the assumption of the existence of the sole author or discoverer who was assumed to exercise his unique talents for the betterment or enlightenment of the whole mankind. Such opinion was exemplified by the 1834 Supreme Court ruling in Wheaton v. Peters case:

The great principle on which the author’s right rests, is, that is the fruit or production of his own labour, and which may, by the labour of the faculties of mind, establish a right of property, as well as by the faculties of the bodies… It is founded upon the soundest principles of justice, equity and public policy. (Wheaton v. Peters 669-670)

Such affirmation of the right of perpetual copyright would sit especially well with the Lockean concept of natural rights that was propounded by the majority of the early American legal and political thinkers (Saunders 152). However, the use of the sole proprietorship notion of the copyright law may be taken as limiting the capacity of both lawmakers and the other legal actors to deal with the problem of collective creative work, while imposing significant restrictions upon the proliferation of the work in question.

From the beginning of the 20th century to its end, the relationship between creators and law was as much an effort to negotiate the ways they would be recognized for their work and whether or how they would be considered by this or that public, as it was about whether they would own to copyright in their work. A copyright was usually managed, if not owned by others. However, in many cases a reputation was something that seemed more important. Yet it became difficult to control the proportion to the value of controlling it.

As described by Posner, “the concept of personality is central to the copyright laws” (42). Subsequently, the act of copying may be deemed “impairing or appropriating personality” of a maker of the respective intellectual product (Posner 42). As it was already mentioned, the sole proprietorship concept of copyright law leads to increasingly narrow conceptualization of the relationship between the “copyrighted entity” and “collective creativity” (Zemer 1). The modern concept of the copyright would thus ignore the problem of social nature of the creative process. This may strike one as especially strange, for the very production of the artistic or literary work that is then considered to constitute an object of exclusive authorial ownership “”depends on the consumption of cultural and social properties” that enable the author him/herself to engage in creative activity (Zemer 2).

While this critique of the concept of the unique authorial capacity to hold right to the ‘original’ product may have direct relevance from the viewpoint of post-modernist cultural criticism, it may be questioned as having no relation to the purely legal issues of copyright law. However, Rahmatian attempted to review and analyze some intricacies of the copyright law that would make the concept of authorship problematic from the juridical perspective. In particular, he turns the reader’s attention to the problem of divergence between the authorship rights of the person employed at the corporation or another legal entity that would be legally entitled to copyrights for all works produced by this person (Rahmatian 172). This very formulation would make the authorship concept practically redundant from the viewpoint of the U.S. copyright law. In Rahmatian’s opinion, the “vague” definition of an author in the American legislation “does not expressly stand against the juridical person”, as might be evident from the example of computer-generated copyrighted products (Rahmatian 172). The author observes that in this case, “an author has to be defined artificially by law,” (172) leading to the situation controversial for those who would try to associate the copyright law with the notion of guaranteeing one’s creativity against plagiarism or other usurpation.

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The same situation would arise if the issue of entrepreneurial works might be considered. Here the investors are enabled to receive the copyright law’s benefits by “virtue of…investment,” alienating the authorship rights from the makers or devisers of the actual products. The “producer of sound recordings, the maker of broadcasts and…the publisher” are legally considered to be ‘authors’, even though technically they are none (Rahmatian 173). As such state of affairs is increasingly prevalent in contemporary societies, one can no longer speak with certainty of the positive role of the copyright law in safeguarding “the author’s right”, as it was expressed under Wheaton v. Peters legal doctrine.

To summarize, the main bulk of modern copyright law bears no causal relationship with the need to guarantee the author’s right to the product of one’s labor, as it would be under the Lockean doctrine of intellectual property established in the 19th century USA. The main beneficiaries of the copyright laws are thus not the direct authors themselves but the copyright-holding legal entities that are then considered ‘authors’ in the legal discourse. Such situation necessarily leads to the erosion of the original idea of authentic and original authorial works that motivated the lawmakers in devising the copyright law in the era of Enlightenment and the American Revolution. Thus, the actual law would seem to diverge from the original intents of its creators.

Furthermore, the very idea of ‘author’ as a unique creator of the work of art or literature would bear no relationship to the empirical reality of the creative activity, for the generation of creative product in general strongly depends on the socio-cultural framework within which the ‘author’ would carry out his/her working process. Hence, the legal idea of ‘authorship’ would appear to be ahistorical and unrelated to the corresponding social reality.

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