From: "The Construction of Authorship" Peter Jaszi

Abstract
Beginning by briefly noting the seminal articles, What is the Author? by Michel Foucault and Benjamin Kaplan in An Unhurried View of Copyright examines the modern idea of ‘authorship and postulates his most recent work in tracing some “of the specific linkages between the ideology of authorship and the formation of particular doctrinal structures in the law of copyright” and argues that how “the persistence of authorship in American copyright law makes it difficult for any new legal synthesis, which would focus on the reality of collective creativity, to emerge (31)”. Jaszi points out that disputes over copyright law in the United States were by firms or individuals who have a commercial investment at stake in the work and that historically issues of “authorship” were products that arrived from outside the United States. Jaszi references the landmark case, Feist Publications, Inc. v. Rural Telephone Service, in which the Supreme Court, according to Jaszi, stirred more confusion regarding authorship and creativity rather than clarify its role. The court ruled the data compiled in the phonebook did not constitute enough creativity for it to be protected by copyright. Jaszi also references the Rogers vs. Koon case where the court decided the originality of a work over a slight reproduction claiming that Jeff Koon’s wooden sculpture of Art Roger’s photograph of German Shepherd puppies was indicative of Koon’s role as a businessman rather than artist, and favored on the side of Rogers who filed the infringement claim, because the decision, according to Judge Cardamore, came down to the expression of the idea or fact in which Koons overstepped with an “identical expression” of the original. Jaszi is not formulating an argument for fair use, but excavating how claims of the author rule out over the former claims and uphold a romantic notion of author. Jaszi concludes the article warning that, “that the ideology of Romantic ‘authorship’, however, has greater potential to mislead than to guide the decision-makers who will shape the legal regime for this new and promising communications technology” (56).



Relevance
A few years after the publication of this article the CTEA was enacted in memory of the late musician and senator Sonny Bono, who believed that copyright “should last forever”. This law seems to favor this Romantic notion of “authorship”, that Jaszi warns against, in a period where critical theory is taking a hard examination of this role of the author within the larger society. In my research of the most recent extension terms I have been suprised and intrigued by the number of moves within law that seem to be swinging towards the author, rather than limited protection for the good of the public. It seems that the movement towards the romantic notion of authorship seem to be swinging in the opposite direction the constitution desired. This article is incredibly commendable for it’s insight regarding fair use, and collaboration at the dawn of the internet, in it’s ability to foresee the problems that may arise with the commons of the web, which can be seen in Jaszi recent work with the Center for Social Media. However, I am more interested in this notion of authorship because it seems to me taking a more “substantial similarity” based upon Romantic notions of authorship approach when it comes to decisions is not only contrary to the constitution (as I’ve stated before) but also, is fuel and maybe explanation behind the motivation for the recent copyright extensions that have perplexed me.

Copyrights and Copywrongs, Siva Vaidhynathan
Chapter 1: Copyright and American Culture: Ideas, Expressions and Democracy

Abstract
Beginning with a baseball analogy Vaidhynathan comments that the, “the public generally has more rights than networks, publishers, and record companies want to concede”.  The chapter distinguishes between the three main branches of “intellectual property”, patent, trademark and copyright. Vaidhynathan clearly defines the purpose and role of copyright along with a brief yet concise history of copyright law and it’s intentions and benefits for the public. He does a suburb job describing the intial intentions of copyright law from the perspective of the framers of the constitution. He illuminated that the

“framers and later jurists concluded that creativity depends on the use, criticism, supplementation and consideration of previous works. Therefore, they argued, authors should enjoy this monopoly just long enough to provide an incentive to create more, but the work should live afterward in “public domain” as common property of the reading public.” (21)

The purpose of copyright was to protect the work of the author for a limited period, so he can be compensated and encouraged to continue creating. The emphasis is placed on limited because the framers saw copyright as a form of monopoly, and one that should be granted for a short period of time, because they believed strongly in an accessible public domain. George Washington believed, according to Vaidhynathan, “that only through free and easy access to information could the public educate itself to be strong enough to resist tyranny and maintain a state that did not exceed its charges. Copyright encouraged learning, so it would benefit the republic, Washington reasoned“ (22). The Copyright Act of 1790 followed. The stated object of the act was the "encouragement of learning," and it achieved this by securing authors the "sole right and liberty of printing, reprinting, publishing and vending" the copies of their "maps, charts, and books" for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive.” Vaidhynathan also discusses the dichotomy of the idea/expression within copyright and some of its inherent fallacies and contradictions in the attempt to excavate where the ‘meaning’ of a work comes from.

Relevance
Vaidhynathan does an excellent job in describing and unearthing the initial intentions of copyright from the framers of the constitution. The emphasis of limited monopoly is of most interest to me under the current climate of copyright law and the ever-increasing terms of extensions. The framers never had any intention of leaving any room for ‘moral rights’ or any kind of extensive copyright protection, they had a greater appreciation for the public and had the vision to see how these creations benefited the public and encouraged education.  They wanted to uphold the interests of the commercial value of a work and thought the limited monopoly of an initial fourteen year term followed by an additional renewal would balance the author’s interest and the public’s right to have access to these works. The assertion of the encouragement of learning is a foundation to which I build my argument that media archives, such as Ubu Web, greatest function is offering free information and works to the public that help build a greater awareness and knowledge of culture. The constitution guarantees only a limited protection for the ‘author’, anything further would be a detriment to the public good.

Chapter 10: Intellectual Property

Abstract
In this chapter Lessig focuses on how law protects copyright. Lessig begins the chapter by summarizing how law, norms, architecture and the market protect property. There is no constant variable as certain factors are constantly changing and imposing new or different challenges on each, however, for the most part, a balance of the four is how property is protected. Because copyright protects the right of copying a work without permission, Lessig points out, copyright has always been at war with technology. From sound recording, radios, video recordings to the Xerox machine law’s response to these changes, Lessig argues, “has been slow and gradual”, and piracy has been a favorite chant of copyright holders from the beginning. However, the digital age is changing everything. Digital copies “enabled perfect copies of an original work” and made content “available wildly on the internet”. The Intellectual Property and the National Informational Infrastructure and Digital Millennium Copyright Act (DMCA) “made changes in law, some support for changing norms, and lots of support for changing code of cyberspace to make it better able to protect intellectual property”(175). In other words recent legislation has begun a trend of heavily regulating the new technology. Code has become a private fence around a once public park. Code, Lessig regrettably remarks, replaces contracts. Lessig clarifies the difference of ordinary property and intellectual property, as postulated by Thomas Jefferson, which was a limited period to “promote the progress” of the arts and sciences with limited rights to the authors and scientists. Lessig argues the balance that is achieved in this vision “gives the creator, significant, but not perfect, control over the use of what he produces” however code inherently clashes with the framers vision in it’s quest to establish a more permission culture. He ends the chapter laying the groundwork for what would become the creative commons, which aims to use private law to build an effective public domain (commons).

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The chapter builds a road that leads to the creative commons, an answer to this ever-increasing restrictive copyright culture. What is most interesting about this chapter is the ways in which other aspects of culture, other than law itself, (law, norms, the market, architecture) influence how we protect and change rights within the law. Places like Wikipedia and the creative commons have thousands of volunteers who are stepping up to the plate and swinging madly to make a difference with their various efforts to build a more effective commons. It is easy for me to become shortsighted, and blame the law solely for the increasing issues with copyright, however this chapter reminded me there are more factors involved than just the law and provided hope for change. In my research this chapter has helped me see that there are other elements to focus on than just a single law, and attempt to excavate how those elements influence the current culture.

“Digital Copyright”, Jessica Litman
Chapter 3: Copyright and Compromise

Abstract
Litman states that, “the pressures of put by new technologies on the current copyright statute have sparked disputes over whether the current copyright statute can adjust to the climate of rapid technological change” (35) When these situations present themselves, Litman points out that interested parties from sides emerge and “raise familiar arguments”, one side agues for the grave difference of the technology and copyright laws inability to cope and the other argues for the similarities with existing technologies and the structure within the current law that can support the change in technology. Litman argues that although the technology has rapidly changed, the “disputes and rhetoric in which they are cast are much the same”. She follows the assertion with an analysis of the first conferences from 1900 to 1909 just prior to the Copyright Act of 1909, and the meetings in 1950 to 1961 just prior to Congress’ recent trend of the slew of copyright extension acts. Through a series of meetings the Copyright office produces a draft bill which generates arguments, revisions, and additions until finally it is amended into law. A long such process was the case how the Copyright Act of 1976 was passed.

Relevance
This chapter helped illuminate for me that all the factors (meetings, interest groups, etc) involved in establishing and the enactment of the new copyright laws and extensions. Unfortunately what was confirmed again through this chapter is that corporate interest seems push the most weight around, and is granted its demands more than what may be in the best interest of the public.

Abstract
In his paper James Boyle argues the first enclosure movement, the movement among eighteenth century wealthy businessman to privatize their land and force the agarian poor off the former ‘village commons’, has similarities, to what he describes as the second enclosure act, the expansion of intellectual property. He summarizes Thomas Jefferson’s warning that, “that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, and a warning of the monopolistic dangers that they pose”. Another skeptic of extensive copyright, Thomas Babington Macaulay, who Boyle mentions, feared that “those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture”.  An extended copyright, Boyle argues, concerned the framers of the Constitution who defended the public domain and wanted to prevent or limit an “artificial monopoly”.  The public domain is where works that are no longer protected by copyright dwell. Boyle makes it known that the “The public domain will change its shape according to the hopes it embodies, the fears it tries to lay to rest, and the implicit vision of creativity on which it rests. There is not one public domain, but many”. Boyle argues that the public domain consists of complete works that are completely available and completely free for “appropriation, transfer, redistribution, copying, performance, and even re-bundling into a new creation, itself covered by intellectual property”, however the public domain, Boyle illuminates based upon Lawrence Lessig’s work with the commons, can also include works where payment might be required for liability, rather than a property rule, in order to grant order rather than control.  Boyle summarizes his argument with the analogy that like those who speak out in order to protect the environment from a number of harmful ecological decisions, a similar analogy can be drawn in regards to the public domain and the commons which is to preserve, innovate and develop a sustainable environment of ideas and culture with a healthy and lush public domain.


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In his first argument Boyle outlined the Jefferson, Madison and Macaulay’s criticism of extension on copyright and the dangers of monopolistic control of such. And secondly he argues for a constitutional defense and protection of the public domain, followed by a useful definition of the pubic domain. Boyle also expanded and the notion of public domain with the work of the creative commons. All of which are pertinent to my argument regarding the detriment to the republic when access to information is restricted through excessive copyright extension terms, which I have contrasted with the vision of the framers of the constitution. I’m interested in the radical distribution of information and works, which I argue, can help grow a sustainable environment for learning and creativity, to stifle this growth could be harmful to the future of creativity and the education of the many within the public.

Abstract
The straight forward and easy to use, official copyright office website, attempts to clear the haze from the fog of confusion that can be copyright law. From history of copyright law to licensing and registration for works, the site is written in an understandable language. The frequently asked question page covers general to specific questions regarding copyright law and is useful when searching for a specific area.

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I read a lot about copyright law, with brief summaries of many of the laws themselves, but it was extremely useful to go to the source to find out about the laws themselves. The pdf. and text links helped extract the exact wording and rules among each law. I used the sit to find the necessary information for the Copyright Acts of 1790, 1909, 1976, Copyright Term Extension Act and the No Electronic Theft Act.

Abstract
Bound By Law, authored by Duke IP Law professor James Boyle, Jennifer Jenkins and illustrated by cartoonist turned IP law professor Keith Aoki, is a comic that chronicles, into plain English, the struggle of one documentary filmmaker’s perils into current copyright law. The story begins with a creepy goblin, who seems to be an unfortunate librarian at the Center for the Study of the Public Domain, introducing the audience to two well mannered individuals (could James and Jennifer) who will guide the filmmaker, Akiko, through the confusing world of copyright and filmmaking. Akiko desires to make a documentary capturing all the sights, sounds, social issues and culture of one day in the life of New York. She asks her guides if she will need to clear rights for everything she captures, and that’s where the journey begins. Here she learns of that only works published before 1923 are clearly in the public domain, leaving eighty years of content that may need to be cleared for her film, if she happens to capture it on film. Akiko hesitantly learns of the changes in copyright law, the extensions and increasing amount permission clearances needed for her work, and also a helpful lesson in fair use in how “rights” culture can be changed by “making collective decisions about what’s fair”, and how the intention of fair use mediates between giving incentive to authors to use content to critique on culture. After having explored the world of fair use our hero embarks on the journey through term limits which unfortunately has been subject to some of the most draconian changes, including the most recent copyright extension (CTEA) which protects the works of an author for life plus seventy years after the author’s death and also extended all work currently under copyright for an additional twenty years. The comic beautifully and simple illustrates how this runs counter to the constitutions intentions and how current copyright law is doing harm to the public domain. The guides then bring Akiko to a ledge where the cold, dark, fenced factories and plants of corporate and restrictive control are contrasted with James Boyle’s ecological idea of sustainable development in the balance of copyright and creative works which is illustrated with a lush open landscape of creativity.

Relevance
The comic beautifully illustrated the ins and outs of copyright law and made the plethora of literature, prior to discovering this text, a bit more simple to understand. It balances the restrictions, and purpose of copyright law with the freedom a creator inherently is given. There is a considerable amount of content covering fair use, but the section on the copyright term extension is most applicable to my research.  The comic wonderfully shows the frustration regarding the increasing amount of extensions and there affects and on the public domain. The work itself is a testament to the balance of creativity and law, and it’s endeavor to make these issues and rights known in plain English is a wonderful experiment, that I’m better informed after reviewing.

Abstract
At the digital poetry conference in 2002 at the University of Iowa, Kenneth Goldsmith presented the aforementioned paper regarding the vision and history of UBUWeb to the present date. He also talked about the process and adventure these avant-garde files and work proceed once they have been digitized, stripped bare, and copied or reworked in new fashions. He even mentions the avant-garde’s fortunate journey into popular culture with rock band Sonic Youth’s 1999 release Goodbye to the Twentieth Century.  Goldsmith begins his talk sharing his favorite email from Meredith who wrote: : “i really enjoyed your site. it made me think about different cultures other than the ones i experience daily living in a small Texas town”. Goldsmith then went to ruminate on the rich fulfillment he received by noting that Meredith’s note,

succinctly summed up everything that I had wished to achieve with UbuWeb: that of a distribution point for out of print, hard-to-find, small run, obscure materials, available at no cost from any point on the globe. Although the technologies of the web are continually developing in terms of sophistication, UbuWeb embraces the distributive possibilities inherent in the web's original technologies: call it radical forms of distribution.

This radical form of distribution is UBU web’s calling card. UbUWeb was launched in November of 1996, and quickly has become a “clearing house of the avant-garde art on the web”. UBUWeb is comprised of the most comprehensive archive of sound and concrete poetry on the web, but also offers an extensive amount of avant-garde film, and recordings from a plethora of avant-garde artists from Samuel Beckett to Marcel Duchamp. It’s humble beginnings began with Kenneth’s own impressive collection of sound and concrete poetry, and from day one he has desired to stay committed to making these resources “available and free” to all. UBUWeb is in existence to keep the avant-garde contemporary with culture with its accessibility on the web.

Relevance
I first came across UBUWeb about two years ago, and since I have had to limit my time spent on the site if I desire to be any kind of productive student/ human being outside of my poetic and artistic interests. It is easy to become lost, like a toddler in Toys ‘R’ US, on UBUWeb. Its clean, and manageable interface gets deeper and deeper in the plethora of seemingly endless works. It is true that many of the works posted on UBUWeb cannot be found in your local library (even University library), and its accessibility is something to fight for and cherish. The ability to preserve and offer such a vast and free library is what excites me most about the web. This “radical form of distribution” is not only fascinating to me, but something I have come to believe is necessary for the education and preservation of culture. Many of the works found on the site are frozen due to the CTEA (Copyright Term Extension Act), meaning they are not scheduled to enter the public domain at the earliest until 2019. Kenneth’s defiance in his conduct of posting the content and eschewing the normal means of being granted permission for most works, is of interest to my research of copyright law, and how UBUWeb is an example of artistic culture  that can be preserved for the good of the general public without harmful exploitation to the copyright holder. The “utopoian-cyber landscape” of UbuWeb is of particular interest, because I argue it is a beacon of the good that comes from media archiving and any laws that could hinder or impede upon this construction are detrimental to the public good.