3 Dualities in Copyright Law

I’m reading Copyrights and Copywrongs by Siva Vaidhyanathan right now, and I’ve found some lovely abstract concepts to play with. Here are 3 dualities.

Idea vs Expression.

This first duality reminds me of T.S. Elliot’s The Hollow Men, where it goes:

Between the idea
And the reality
Between the motion
And the act
Falls the Shadow

This is particularly true in copyright law–Vaidhyanathan argues that the dichotomy between ideas (which, theoretically, mostly, cannot be copyrighted) and expressions (which, always, can) has collapsed under modern copyright law, when it was a core principal in the 19th century. For me, that is the place where fanfiction and most other derivative works fall. Think of the idea of a nameless time-traveling hero or a sexy warrior queen in ancient times, and the reality of H. G. Wells’s Time Traveler in The Time Machine or Vergil’s Dido from the Aenead*. There is such a distance between them; there is nothing between them. It is grey; it is shadowed.

*Did you think I meant Dr Who and Xena: Warrior Princess. See what I mean about ideas and expressions?

Piracy vs Plagiarism.

My sophomore year I had a class with Dr Scott Sandage called “American Political Humor.” Therein, we read Huckleberry Finn from a political context, and so, of course, read a few essays by great Twain scholar, Shelley Fisher Fishkin. And guess who was on Vaidhyanathan’s thesis committee? Ms Fishkin! Her excitement for Twain was clearly contagious, because Vaidhyanathan uses Mark Twain (ok, Samuel Clemens)’s changing views of copyright to frame this analysis of mid-19th to early 20th century legal changes in that sphere.

One of the most helpful dualities Vaidhyanathan introduces is that between Piracy and Plagiarism. To Mark Twain, Piracy was when Canadian publishers copied his books and sold them in Canada without giving him royalties (possible because of a lack of reciprocal copyright treaties between the U.S., Canada and the U.K.). Plagiarism was a professional violation, and a much slipier concept.

My favorite quote by Twain so far, which probably does not represent his views of unauthorized uses of his own work, comes from a letter he wrote to his friend Helen Keller:

Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that “plagiarism” farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernal, the soul — let us go further and say the substance, the bulk, the actual and valuable material of all human utterances’— is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men — but we call it his speech, and really some exceedingly smail portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington’s battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite — that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.

I love how he characterizes the manner in which creators draw from the creative commons: “When a great orator makes a great speech you are listening to ten centuries and ten thousand men — but we call it his speech.” Delightful!

To Clemens, piracy was a business problem and plagiarism more of a professional one.

Romantic Conception of the Author vs Realistic Author.

This is a trick I will be sure to bring out at parties (though this probably says more about me and my kind of parties than it does the theory). Vaidhyanathan makes an argument, which appears to be common to academics dealing with copyright, that there has been an orchestrated shift towards a more romantic conception of the author. That is, that copyright law has begun to see “the author” less as a workman and more as a romantic figure with moral rights to his work.

This romantic conception of authorship is a tool for expanding copyright. By moving copyright from its initial conception as an extremely limited trespassing of the private owner on the public domain, according to Vaidhyanathan, to a moral right which is nearly perpetual, as Twain wished for, established authors can control the output of developing authors. The romantic conception of the author is part of that.

While I must admit, I initially thought my adviser had assigned me to read theoretical works on copyright and authorship just to stop me from talking about copyright, I love having these tools to analyze these very modern discussions of the future of copyright.

And believe me, I will use them at parties.

Inspirational Quote:

“For some of us, books are as important as almost anything else on earth. What a miracle it is that out of these small, flat, rigid squares of paper unfolds world after world after world, worlds that sing to you, comfort and quiet or excite you. Books help us understand who we are and how we are to behave. They show us what community and friendship mean; they show us how to live and die.” — Anne Lamott (Bird by Bird: Some Instructions on Writing and Life)

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