Toward a Theory of Copyright: The Metamorphoses of "Authorship"

Abstract

This Article is about "authorship," which is arguably the most central, and certainly the most resonant, of the foundational concepts associated with Anglo-American copyright doctrine. But discussions of copyright doctrine tend to assume the importance of "authorship" as a privileged category of human enterprise, rather than to examine where this notion arose or how it has influenced the law. In what follows, I try to show how copyright received a constructed idea of "authorship" from literary and artistic culture and to explore ways-sometimes peculiar and even perverse ways-in which this "authorship construct" has been mobilized in legal discourse. The "author" has been the main character in a drama played out on the parallel stages of literary and legal culture. By the mid-seventeenth century, well before the English enacted the 1709 Statute of Anne', writers began to assert claims to special status by designating themselves as "authors." During the eighteenth century, "authorship" became intimately associated with the Romantic movement in literature and art, expressing "an extreme assertion of the self and the value of individual experience.., together with the sense of the infinite and the transcendental. ' '2 Until very recently, the position of the "author" as a category in literary criticism was: central not only in theory but in practice: in the way single-figure studies dominate criticism; in the organization of texts in "complete editions"; in biographies; and above all, in the idea of style, of a marked writing characteristically the "expression" of a person's

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