THE NEW ECONOMY OF CREATIVITY:
AUTHORS, LITERARY PROPERTY, AND DIGITAL PUBLISHING
An Honors Thesis
Presented by
Caitlin Gebhard
Completion Date:
May 2013
Approved By:
_______________________________
Donna Le Court, English
_______________________________
Janine Solberg, English
ABSTRACT
Title:
The New Economy of Creativity: Authors, Literary Property, and
Digital Publishing
Author:
Caitlin Gebhard, English
Thesis/Project Type: Independent Honors Thesis
Approved By:
Donna Le Court, English
Approved By:
Janine Solberg, English
The controversies surrounding intellectual property rights and digital technologies have become
a popular topic for debate in both analog and digital culture, especially as the Internet becomes
more and more integrated into our culture and economy. The Internet has changed the way in
which literary property is produced, distributed, and valued. Unfortunately, copyright is unsuited
to the literary market that has emerged on the Web. By tracing the conceptual history of literary
property, this paper demonstrates the influence of publishing technologies on the author,
audience, and publisher relations with literary property and the subsequent development of
copyright law. An exploration of the new functions of authorship and readership on the Internet
reveal not only the ways in which copyright falls short; but it reveals the development of a
cultural economy within the digital literary marketplace.
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
CHAPTER ONE: THE HISTORY OF COPYRIGHT LAW ......................................................... 5
Introduction ................................................................................................................................. 5
The Transition from Oral to Written Culture.............................................................................. 8
The Church, the University, and Manuscript Culture ............................................................... 13
The Printing Press and the Stationers' Company ...................................................................... 20
The Statute of Anne .................................................................................................................. 25
The Rise of U.S. Copyright Law .............................................................................................. 31
Conclusion ................................................................................................................................ 36
CHAPTER TWO: THE DIGITAL ECONOMY OF CREATIVITY ........................................... 42
Introduction ............................................................................................................................... 42
The New Authorship ................................................................................................................. 49
The New Readership ................................................................................................................. 61
Accruing Value ......................................................................................................................... 69
Conclusion ................................................................................................................................ 81
CONCLUSION ............................................................................................................................. 84
BIBLIOGRAPHY ......................................................................................................................... 96
INTRODUCTION
The role of storytellers in the development and enrichment of society has always
intrigued me. Through their words and their voice, storytellers can command a fleet of ideas,
change the course of tradition, or simply observe as history unfolds herself. They can hide in
shadows or start a sudden revolution. Despite their power, storytellers have been labeled, valued,
and regulated by society time and time again. The medium of their power has been categorized
both as art and as property, and its perceived value has fluctuated as various other powers
exercised their influence in society. Whether poem, essay, web post, or magic spell, literary
property has undergone several conceptual revolutions, each change signaling a new value and
new definition of ownership for the storyteller and his story.
Copyright is the intangible wall surrounding a storyteller’s literary property. Erected soon
after stories became fixed in print, modern copyright was designed to encourage creativity and
innovation by rewarding creators with exclusive rights to their intellectual property. Keeping a
careful balance between strong and weak, the wall protects the economic value and integrity of
the creative property while ensuring that the public will eventually have access to it. Recently,
however, the digital revolution has changed not only the nature of literary property but the role
of storytellers in the production and protection of culture.
The Internet has revolutionized the way in which many of us live our lives, from
economic ventures to social relationships. It is no surprise that the vast array of Web
technologies have also changed the way in which authors, readers, and publishers interact with
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literary property and each other. In much the same way I am interested in the power of
storytelling, I am very excited to see how the creative potential of the Internet will shape the
future of the literary marketplace. I see the digital revolution as the beginning of the
decentralization of cultural power, the start of a new generation of stories and storytellers.
Unfortunately, copyright law may pose an obstacle to this bright future. After a storm of
copyright infringement cases and a backlash of stronger intellectual property legislation, the
controversy surrounding copyright’s place in the landscape of the Internet has become a popular
topic for debate in both the analog and digital worlds. While many theorists are concerned with
identifying a solution to this issue, I have concerned myself with the reason for this disconnect
between copyright and the Internet, especially as it pertains to the literary market.
At first, I wanted to investigate the differences between the practice of copyright in print
and digital mediums and more importantly, whether this difference affects the process of writing
and publishing. In trying to answer how the practice of copyright changed, I realized the
importance of the bigger question: why has copyright changed?
By tracing the conceptual development of literary property, I demonstrate the ways in
which technological advances in publishing influenced the evolution of the literary market,
particularly in the ways author, audience, and mediator interacted with and assigned value to
literary property. As the relationships between these players became more complex, the
definition and protection of literary property emerged as an important economic and social issue.
By the time the United States became a nation, copyright law had emerged as a means to balance
the interests of literary property owners and the public.
I continue to demonstrate the importance of technological innovation to the development
of literary property and copyright as I move away from the past and towards the most important
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literary invention since the printing press: the Internet. It is clear that the nature of Cyberspace
fosters an open-access culture that refutes the traditional notions of copyright, particularly those
based on the Capitalist and Romantic notions of literary property left over from the eighteenth
century. After exploring the ways in which the Internet shifts the relationships between author,
reader, and text, I argue that these new relationships reject the traditional roles defined by
copyright law. The Romantic notion of authorship that serves as a foundation for copyright is
replaced by a more dynamic and, I argue, social author whose literary works are characterized by
collectivity and intertextuality. Furthermore, the passive reader is replaced by an active
participant in not only the construction of meaning, but the production, distribution, and
valuation of digital texts. I argue that not only do digital authorship and readership complicate
the practice of traditional copyright law online, but they foster a new economy within the digital
literary market.
While many theorists support the Gift Economy as a model for the exchange of what they
consider “non-rival” information goods in Cyberspace, I find that it does not take into account
the complex ways in which digital authorship and readership generate value. Instead, I argue that
a better model for the digital literary market is what I call a cultural economy. Existing between
the traditional economy of copyright and social economy of gift culture, the cultural economy
consists of a co-dependency between social and economic value. The cultural economy of the
Web is based on the transmission of cultural capital, or social assets, that promote social mobility
and influence the gain of economic capital. By exploring the ways in which the interactions
between digital authors, readers, and text generate and transmit cultural capital, I demonstrate the
importance of such interaction to the success of digital authors in both the digital and analog
publishing communities.
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Various solutions to the digital copyright controversy deal with the changing
relationships between authorship and readership in various ways; however, I argue that none of
them fully address either the importance of each in the development of cultural capital or ways in
which this value can be protected.
The role of storytellers in the production of culture, it seems, is influenced by the role of
technology. As the Internet changes the way in which authors produce and distribute their texts,
the traditional roles of author and reader are shifted; the distinction between the two is reduced.
While all Internet users have the potential to become storytellers, I find that it is readers who
have greater influence in the cultural economy of the Web. As readers contribute to, interact
with, and share digital literary property, they influence the ways in which those texts are valued
by both the digital and analog worlds. By exploring the ways in which the Internet has shaped
authorship, readership, and the literary market in which they function, I suggest that copyright
must be redefined in order to better protect the interests and cultural power of not only
storytellers, but readers as well.
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CHAPTER ONE: THE HISTORY OF COPYRIGHT LAW
Introduction
It is only in the last few hundred years that intellectual property laws have evolved into
the recognized institutions so powerful in today’s market. Print technology has progressed at an
astonishing rate in comparison to modern copyright laws, often influencing the role of literary
property in society. As print technology and literary culture became more complex, however, the
concept of literary property, and more specifically copyright, emerged as an important economic
and social issue.
Oral cultures viewed literature as public goods. Although it was impractical to regulate
the production or distribution of oral literature, authors benefitted from the social value of the
dissemination of their ideas; the worth of their work was in the content. During the transition to
written culture, authors could and sometimes did benefit from the publication of their work on
the developing literary market, but they were still more likely to encounter piracy than monetary
compensation. Due to the difficulty and cost of creating manuscripts at the time, public
accessibility to literary property was more important than author compensation to society’s
economic and social advancement.
The process of producing and distributing manuscripts fell under the control of two
powerful institutions during the Middle Ages: first the Christian Church and then secular
universities. Acting as mediators between author and audience, these institutions exploited the
social value associated with literary property. While the concept of “author” expanded to include
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a sense of literary “authority” over the contents of the manuscripts, the author had all but no
control over his literary property once it was published. Rather, the mediators retained private
control of both the production and distribution of manuscripts, subsequently controlling public
access to those works. In this way, the mediators of manuscript culture expanded their power and
undermined the author's role as original creator.
With the invention of the printing press, literary property became a commodity whose
worth came from its economic value on the market. As works of literature became more easily
reproduced and distributed, privately controlling the market of printed material became a
valuable economic endeavor. The government saw a need to regulate the production and
distribution of literature in response to this expanded market, and the first copyright law was
born. Printers and publishers policed the market for treasonous and seditious material, and in
exchange, they were given exclusive licenses to print. Printers and publishers formed guilds to
maximize their monopolies and protect their economic interests. While authors were, once again,
at a significant disadvantage to these powerful mediators, the economic value of their literary
property was higher than ever. The private control of copyright—literally the right to copy—
became unalterably tied to capitalistic power.
In response to changing ideas surrounding authorship, labor-based property, and
possessive individualism, the importance of public accessibility became once more connected to
literary property. The printing monopolies were deemed a detriment to the production of original
works of literature as well as to the distribution of those works to the public. Replacing the
licensing laws, the Statute of Anne regulated the power historically held by the mediators
between author and audience. The Statute attempted to protect both the economic and social
value of literary property by allowing private control of as well as public access to that property.
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Considered the first modern copyright law, the Statute would heavily influence U.S. copyright
law.
Conceptions of literary property evolved as the importance of regulation and accessibility
ebbed and flowed throughout literary history. At each epoch, the mediating powers between the
author and his audience would have asserted that their system of regulation was the most
effective at protecting the interests of society. We usually find, however, that these systems were
the most benefit to those in charge, rather than either party between which they were supposed to
mediate. It was only when the importance of authorship began to rival that of accessibility that
the philosophy of copyright law attempted to cater to the needs of the author as well as of the
public. What we consider modern copyright law straddles the divide between public access to
and private control of literary property. At least according to the U.S. Constitution, we believe
that this balance is the best way to promote the creation of creative arts and protect the interests
of both current and future authors. And, like societies before us, we have not questioned the
current philosophy because it simultaneously validates and protects what we currently consider
valuable. Technology, however, changes our perception of value, especially when what was once
intangible becomes more than simply physical property; it becomes a commodity. And, like
societies before us, we are facing new technology that is changing how we define literary
property, how we regulate literary commodities, and how we value the products of creative
thinking. The Internet has changed everything. The divide between author and audience—
between private control and public access—that sets the foundation for current copyright law
developed throughout literary history; with the advent of the Internet, that divide is no longer
accurate, and the foundation upon which we have based modern copyright law is no longer
relevant. In order to understand how the Internet has affected the current notion of literary
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property, we must first understand where our current beliefs come from. We must understand
what the patterns and trends are before we can appreciate the current copyright revolution.
The Transition from Oral to Written Culture
Before the literary arts were captured in written or printed form, oral societies viewed
information and literature as public goods. Ideas were valued more in oral form, even when
society had developed the means to turn those ideas into tangible forms. Oral literary property at
this time, due to the nature of orality, could not be privately owned or controlled as we
understand it. The author had “ownership” over his work in the sense that he was the unique
creator of the content, but he could not control how his work was used once it was performed.
The content, however, gained great social value through the creator’s ownership and through
public access to the material. The passage of ideas increased societal knowledge as well as the
prestige of the author. When the market for tangible literary works began to take root in the
Roman Empire, those works took on an additional economic value to match the costly materials
that were required to make them. Although literary property was important and valuable in
Greek and Roman society, it was more common for authors to see piracy and plagiarism than
monetary profit. In the transition from oral to written culture, it was more important to societies
to disseminate ideas and information contained in the works to its citizens than regulate the
ownership of a work that was already difficult to control.
A written alphabet had taken root in Greece as far back as the eighth century BCE, so by
the fifth and fourth century BCE, the classical Greeks had already put forth a substantial amount
of writing. The city-state governments used a variety of written documents, inscriptions, and
archives—many of which have influenced modern society. Although a large part of their society
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could read and write, explains Rosalind Thomas of Oxford University, "...ancient Greece was in
many ways an oral society in which the written word took second place to the spoken. Far more
was heard or spoken, rather than written and read, than we can easily envisage” (3). Expected to
present themselves and their ideas well, as well as to understand the intricacies of another’s
speech, Greek citizens learned rhetoric—the art of speaking—as a formal part of their education.
(Thomas 3). Thomas continues to describe politics and law as having been primarily conducted
orally before an audience. In legal trials, citizens of the democratic city-state of Athens attended
debates and trials in the Assembly, listening in person to the presentations of politicians and then
voting on them immediately after. Written documents were not even considered proper evidence
until much later in the fourth century B.C.E. Although written material was used in governing
the city-states, very little was written down in comparison to the abundance of oral presentations.
As Thomas explains, “...the nearest Greek word for ‘politician’ was ‘orator’ (rhetor)” (3).
Like the works of political orators, most Greek literature was meant to be heard rather
than read. In a society where much of the population was literate, this mode of presentation
might be interpreted as backwards; however, ancient Grecians of all levels of literacy seemed to
prefer oral presentations. Thomas explains,
Certainly there was an extraordinarily sophisticated range of literary and
intellectual activity in the classical centuries. Yet most Greek literature was meant
to be heard or even sung – thus transmitted orally – and there was a strong current
of distaste for the written word even among the highly literate… (3).
This distaste is similar to the thoughts surrounding written proof in the Assembly; written word
seems to have been considered a less legitimate form of communication. Most forms of literature
were performed in a theater in the form of a play, speech, or poetry (Thomas 3). Even when a
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written form of the material existed, says Thomas, it was read aloud to the audience. The fifthcentury historian Herodotus was said to have given huge public readings of his work rather than
distribute expensive and time-consuming written copies. Thomas explains,
In the second century AD the Sophist and philosopher Lucian could take it for
granted, even in that learned age, that of course Herodotus had recited his
Histories to the huge audiences at Olympia—rather than separately in different
places—simply because that was the most rapid and economical way of
propagating his work. (4)
Like many other Grecian authors, Herodotus was more concerned with disseminating his ideas
rather than earning a living from them.
While Greek authors wrote, for the most part, without a commercial motive, literary
prestige still had its place in their society; the question of plagiarism was already being raised
amongst their community (Masterson 621). While evidence of direct payments made to authors
in exchange for use of their works only exists in scattered tatters and scraps of references
(Masterson 620), it seems that some dramatists and orators were not unaccustomed to receiving
compensation for speeches prepared for the requester; thus begins the concept of profitable
property created by creativity (Masterson 621). Evidence of recorded law, however, is sadly
lacking. As Paul Edward Geller explains in his “Copyright History,” “The Classical Greeks,
foreshadowing most Occidental ideas, did conceive of intellectual property, but only
exceptionally. Among the myriad Greek city-states, only one left us with a recorded instance of a
law clearly instituting such property” (212). While performed literature could be and was pirated
by other authors, ideas about intellectual property did not extend far beyond the social sphere of
authors and orators. Unrecorded oral performances do not lend themselves well to an economic
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or political copyright concern; the state didn’t care who the owner of the work was. It was more
important to the oral society to disseminate ideas and information to its citizens than regulate the
ownership of a work that was already difficult to control. Rather than economic benefits which
were difficult to secure, the creators of literary works could benefit more greatly from
recognition and attribution to their original ideas.
After the conquest of Greece by the Romans at the start of the first millennium, the
concept of literary property further developed as the Roman book trade boomed in response to a
desire for societal improvement. Up until this time, manuscripts and the multiplication of texts
were prepared by hand, and as a result, individual texts were considered rare luxuries. Because of
the expense, most works of literature were performed orally rather than published in written
manuscripts. Under the encouragement of Ptolemy Philadelphus, collections of expensive
manuscripts and copies of texts were brought to Alexandria through wholesale purchases, and a
great number of scribes migrated to the future cultural center of the Empire. Preparing their own
stock for trade, these scribes would become the earliest publishers and booksellers (Masterson
621). The concentration of luxurious manuscripts and the prospect of new works were destined
to increase the economic and cultural worth of the Empire. With increased availability of
publishing means, the expense of producing a written manuscript decreased, allowing more
authors to publish their works in writing. Authors soon flocked to Rome from all parts of the
civilized world, hoping to make their fortunes in a society that valued the literature they
produced (Masterson 622).
In much the same way an author’s decision to perform or print his work depended largely
on the cost of the medium, Rome’s early conception of literary property was driven by
economics. As the desire for public access to literary works increased, authors could more easily
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turn their works into valuable investments. The philosopher and statesman Marcus Tullius
Cicero, for example, was able to treat his works of literature as property and earn a profit.
Masterson explains, “Cicero had a direct business interest in the sale of his books, his publishing
arrangements were on a royalty basis. After his death, there is evidence that his works and the
right to their continued publication were bought by a bookseller” (622). The right to publish and
distribute is implicitly attached to the literary property aspect of Cicero’s writing. Although
intangible, this property right could be exchanged for royalties—a transaction before its time—or
bought by potential distributors of the work. This right could be stolen or misused as well. In her
article, “Invention, Authorship, ‘Intellectual Property,’ and the Origin of Patents,” Pamela Long
describes some of the misfortunes to befall an author's work:
...once the first copy of a book had been made and distributed, its fate was beyond
the author's control. There was no legal or practical way to safeguard the integrity
of a text or limit the number of copies. Moreover, it was impossible to insure that
an author's corrected or amended edition of a book would supersede the first
distributed version. After its first distribution, it was not unusual for parts of a
book to be excerpted into anthologies. It might also suffer adulteration in various
other ways, including distribution under the name of a new 'author.' (854)
Plagiarism was still a great concern amongst authors at this time. While in Greece, plagiarism of
an oral work meant potentially injuring an author’s reputation or literary prestige, plagiarism at
this time might cause damage to an author’s purse (Masterson 622). If someone were to publish,
distribute, and collect compensation for an author’s work without his knowing, the original
author would lose that potential compensation as well as lose value in his work; the more copies
are available, the less value an individual copy possesses.
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Although the concept of literary property existed in Roman culture, there was no legal way
to prevent plagiarism; no such law existed in Imperial Rome (Masterson 623). Geller explains
the state of the Roman Empire legal system at this time: “Legal documents became increasingly
sophisticated in the Roman Empire, so that no great theoretical obstacles would have stopped the
Romans from instituting copyright-like entitlements to protect the return on investments that
publishers made in introducing works into the book trade” (213). The concept of literary
property existed in the culture, but its impact on the economy did not warrant any real action by
the Senate. Geller continues, “The practical reason they did not, it is submitted, was that any
pirate would have had to pay as much as other publishers to buy and maintain skilled slaves to
recopy texts marketed in this trade” (214). Piracy was discouraged by the sheer cost of
publishing and distributing a stolen manuscript. In addition to this, although those that were able
to afford plagiarism might have slighted the economic standing of an individual author, the
production of a text—legal or not—only served to help the economy by increasing the supply of
manuscripts. Although authors benefited from the value they could place on their literary works,
private control and ownership of literary property had very little impact on the economy and did
not warrant the Empire's efforts to monitor a market that was impractical to regulate. In terms of
the economy and societal advancement, it was more important for the public to have access to
great literary works, pirated or otherwise.
The Church, the University, and Manuscript Culture
The relationship between public access of literary works and societal advancement
changed drastically during the Middle Ages when private control of those works became
associated with power. The production and preservation of literary property fell into the hands of
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one of the most powerful institutions at the time: the Christian Church. Due to the means of
production and the role of the author in medieval society, the concept of literary property was
considerably more fragile. In his essay on the history of copyright, Ronald Bettig explains,
“Turning to the European medieval period, we again find a conception of literary property
lacking due to several factors: the general relations of production, the specific organization of
literary production [...] and the role of culture in society” (135). The Church controlled the
means of manuscript production—which in itself affected the solidity of the literary property—
while the author was considered a fluid figure unconnected to the publication or future
productions of the work. Although the economic worth of a manuscript was equal to the costly
materials that made it, greater worth came from the social value of regulating public access to the
content contained in the pages through the institutional control of literary property. Even after
the control of manuscript culture passed into the hands of the secular universities, their strict
regulations did little more than regulate accessibility and ensure the institution’s dominion in
society. By retaining private control of the production and distribution of manuscripts and
subsequently controlling public access to those works, the mediators of manuscript culture
expanded their power and undermined the author's role as original creator.
For seven centuries after the decline of the Roman Empire, the production of literature
was contained in the monasteries. Scribes copied and translated original as well as ancient
manuscripts by hand in the often dark and dank scriptorium halls or in their own monastery cells.
The monks performed such tedious work not for power or the favors of a patron or bookseller,
but for the glory of God and mankind and for the service of the Church (Masterson 623). The
service of the church, however, meant continuing the power of the institution. Bettig explains,
“The Church held a monopoly on knowledge, especially in the early Middle Ages, through its
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control of manuscripts and their reproduction, and through control of education, and
consequently, literacy” (135). By controlling the production of manuscripts, the Church also
controlled the distribution and subsequent consumption of literature. The Church could regulate
the religious material they did want transmitted as well as the secular material they wanted to
remain hidden in their vaults.
In addition to the power they gave the Church, manuscripts were also valuable items to
be carefully guarded by the monasteries. Manuscripts were created through a great abundance of
resources—paper or vellum and ink for both the text and illuminations—and were very costly.
These luxury items were often given to nobles who in exchange bestowed gifts, money, and
privileges on the monasteries (Jackson 420). Although they were considered highly prized
properties, Masterson explains, “This, however, was not a concept of property in the creation of
literature itself but rather in a reliable text which represented expensive materials and laborious
hours. The property was the manuscript and not the form of ideas it contained” (624). Thus the
Church was able to retain their monopoly of the literary market by controlling the production and
retaining the profits of the literary works. Private control of literary property at this time meant
both the ownership of valuable tangible property and the control of public access to intangible
ideas; it meant power for those who already had the means to control rather than the actual
creators of the work.
The medieval conception of intellectual property was characterized by the realization that
knowledge meant power. While the Church retained much power in controlling the production
and distribution of manuscripts, authors were voices of authority in their own way. The notion of
authorship, at this time, was complicated by the parallel tradition of open sharing and compiling
of human skill and knowledge in order to further societal advancement (Long 869). In
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acknowledging both the original creator of a text and society's claim on the work, scholars in the
Middle Ages regarded authorship as having less to do with the writer's originality and ownership
of the work and more to do with his established authority in regard to the written subject matter.
In her essay on “Textual Appropriation and Scribal (Re)Performance,” Joyce Tally Lionarons
explains, “Writer’s gained auctoritas (both ‘authority’ and the distinction of ‘authorship’) by
writing works that were considered authoritative because they were manifestly true; conversely,
works were authoritative if they were written by auctores or ‘authors’” (68). Because an
“author” was one who writes with an authoritative understanding of his subject matter, that
which was written by an author was considered to be an authoritative body of work. By signing
his name, an author both took responsibility for and authorized his work as an authentic
compilation of information (De Looze 164). Many medieval authors augmented the textual
authority associated with their name by highlighting their credentials and referencing the sources
from which they borrowed information (Davenport 38). An “author” can then be simply
understood as one who both creates and has command of the written content associated with his
name. The command over his own work, however, did not extend to an ownership of literary
property. Lionarons eloquently explains, “The relationship between author and work in the
Middle Ages did not resemble that between a parent and child, as modern metaphors describe it,
but was circular, merging author with text to create an interdependent identity” (69). The role of
the author was little more than a signal of authority for the text; he was too fluid to be considered
a physical owner of the literary work. He had little to no control over whether or how the Church
reproduced his work; the only profit an author could expect was a potential compensation or
reward from a wealthy patron who may have been praised in the work or who commissioned the
work itself (Masterson 625). While the author retained some authority as a literary figure, his
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authority did not rival that of the Church, which had the means and motivation to increase its
power through private control of public access to the author's works.
In addition to the Church’s regulatory power, the author's control over his own literary
property was undermined by the fluidity of the medieval conception of authorship. The value of
the intangible literary property was tied to the authority of the author, and this authority was
often undermined through the process of reproduction and publication of that property. Common
to the system of manuscript production is the idea that hand-written copies easily fall prey to
human error. Through an inability to correctly interpret their exemplar, or through inattention, or
through fatigue, or through any and all combinations of scriptorium stress, scribes sometimes
made mistakes and produced inaccurate versions of what they were supposed to be transcribing;
while often a letter or word would be misconstrued or dropped, sometimes entire lines or
passages were forgotten (Scattergood 21). Raymond Clemens and Timothy Graham continue to
describe this phenomenon in their Introduction to Manuscript Studies:
Occasionally, a scribe would misconstrue an interlinear or marginal gloss as a
correction or addition to the text and would then erroneously copy the gloss into
the main text of the manuscript he was writing. Once such an error had occurred,
it could be transmitted from one manuscript to another over several generations,
until someone realized that the phrase in question did not belong to the text proper
(39).
If the error were to go unnoticed indefinitely, the scribal intrusion could evolve into a legitimate
amendment to the body of literature; in this way, a scribe could inadvertently influence the future
publication and versions of a text. Not all scribal intrusions, however, were the result of error.
Although scribes were expected to do no more than accurately copy the text they were assigned,
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it was not uncommon for a scribe to purposefully make changes to a body of literature in order to
keep up with the changing culture or to simply “improve” upon a piece of literature. In his essay,
“Philology in a Manuscript Culture,” Stephen Nichols explains that while scribes may have
changed words or shortened sections simply in order to keep up with the changing tastes and
styles of the period, “the scribe's 'improvements' imply a sense of superior judgment of
understanding vis-a-vis the original poet” (8). These improvements often opposed the choices of
the original writer; in this way, scribes refused to acknowledge the authority of the writer and his
sense of control over his intellectual property.
Throughout the Middle Ages, the value of literary property derived from the financial
worth of the physical manuscripts as well as the control of public access to knowledge. While the
property rights of the author did not emerge as a solid body of law until the eighteenth century,
the concept of intellectual property seemed to gain more value as the demand for greater access
to knowledge increased towards the end of the Middle Ages. By the twelfth century,
communities had grown in size and in wealth. Literacy amongst the populace increased, and as a
result, it became more and more common for people to want to own books themselves rather
than borrow from their local monasteries. In addition to this increase in demand, a large number
of original manuscripts appeared (Yu 8-9). A market for manuscripts began to develop as the
value of private control began to rival that of public access to the developing capitalist economy.
Because of the amount of resources and time it took to reproduce each manuscript,
monastic libraries found it increasingly difficult to keep their collections up to date. The Church
began to employ non-clerical scribes and illuminators to augment their book production (Yu 8).
Soon, a secular trade in manuscripts emerged, first in Paris and then in other highly literate
university towns. Book production shifted from the scriptorium halls of the monasteries to
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commercial copyists and booksellers, who, according to Masterson, “were looking for
compensation more immediate than a heavenly reward” (624). For a fee, stationers – a
combination of publisher and bookseller – would organize the reproduction of particular
manuscripts on behalf of buyers of the finished copies. The first stationers were initially
organized and regulated by the universities, who brought them much of their business (Betting
137). This business consisted primarily of manuscript loans; as Matt Jackson explains, “The
universities authorized booksellers to rent manuscripts to students and professors with the
understanding that students would copy the manuscripts” (420). The copying of manuscripts was
still costly and time-consuming for members of the school, and students could easily waste time
and resources copying procured manuscripts that were incomplete or inaccurate. Therefore,
stationers were made to follow strict regulations set by the universities, whose authorities
checked both the quality and marketing of book production. University officials checked works
for textual correctness, regulated the number of lines to a page and the material to be used, and
governed the prices of the finished reproductions (Betting 137; Masterson 624). Although these
regulations might have resulted in higher quality manuscripts and the scholarly study thereof,
they did not benefit the authors of these literary works. Masterson explains, “In fact some of the
regulations of the universities were of such a character as to destroy the author's rights in an
original work, it being generally provided that manuscript dealers could not refuse to loan a copy
for hire to a member of the university even though the purpose of the member was the producing
of copies” (624).
As far as the powerful universities were concerned, public access to knowledge was far
more valuable to society than the financial benefits of private control of individual works.
Because the system forbade exclusivity of distribution, the original owners or authors of a text
19
could not prevent their work from being reproduced without their permission nor could they
demand compensation for the availability of their work. Whoever wished to reproduce the
manuscript was able to do so without any recognition of the author's literary property rights. The
author retained his medieval status as authorial voice, but once his ideas were set on paper, they
were no longer under his control. In a society where public access to knowledge was more
valuable than private control of it, the creator had much less power than the distributors. To the
Stationers, who themselves had barely more control than the authors, literary property beyond
the physical manuscript had little to no value. Explains Masterson, “The price paid [to the
stationers] was for the manual labor of reproducing and not for the creative labor of originating”
(624). As far as the author was concerned, the product of his intellect was worth far less than the
paper and ink used in its publication.
The Printing Press and the Stationers' Company
The idea of literary property and copyright evolved dramatically when arguably the most
important invention changed the meaning, as well as value, of the concept of “copy.” The
printing press, invented around 1440 by the German goldsmith Johannes Gutenberg, made
possible the rapid creation of movable type and lead to the mass production of books. Coinciding
with the development of capitalism, its invention signaled a change in the perceived value of
literary property. Previously, the value of literary property was found in its content, and
institutions took care to regulate public accessibility. As works of literature became more easily
reproduced and distributed, privately controlling the market of the printed material became a
valuable economic endeavor. Literature became a commodity to be regulated and protected. The
beneficiaries of this regulation, however, were the printers, not the writers. Although the
20
technology allowed greater access to information, it simultaneously turned private control of
literary works into a politically and economically viable enterprise.
Print technology reached England in 1476 when William Caxton set up a printing press at
Westminster Abbey (Bettig 139). Caxton's position in society as a successful merchant capitalist
is indicative of the fundamental role economics would have in copyright. It was around this time
that capitalism began to appear in Europe, as Jackson explains:
This was also an age of exploration, when trade became increasingly important to
the emerging city-states of Europe. Capital slowly began to replace land as the
primary source of wealth, and trade guilds and merchants gained political power
to coincide with their newly found importance. (420)
Even before the invention of the printing press, the manuscript trade had already evolved outside
of the church and the universities and was gaining importance throughout Europe. In particular,
the English book trade was flourishing in London, the cultural hub of the country. With the
means to reproduce texts becoming easier and less costly, and the demand for books still
increasing, it was not long before the profit that was to be made from copying and distributing
books soon became apparent; and those whose job this was quickly gained power (Yu 10). Bettig
explains this eloquently: “...the midwives of the birth of printing were the stationers, who as
merchant capitalists laid the foundation for the transformation of the book trade by using their
accumulated capital to invest in print technology and manuscripts and by organizing the book
trade along capitalistic lines” (137). Printers and booksellers organized into guilds in order to
protect themselves from competition as well as to consolidate their new capitalistic power, the
most famous being the Stationers Company of London which formed seventy years before the
introduction of the printing press in England (Masterson 625). With the development of the
21
printing press, these guilds enjoyed privileges allotted by a new, more complex system of
copyright.
With the capitalist market for books growing larger and more affluent, the need for
regulation became more apparent. Private control of book production and distribution meant
power in a society which was rapidly becoming more literate, especially when the ease of
production and distribution made that control more politically and economically viable than it
had ever been. A system of patents and copyright laws were developed to support the expanding
“realm of creative human activities that could be commoditized” as well as to protect the
economic interests of the publishers and printers creating the commodity (Bettig 138). As Bettig
explains, “Copyright, in particular, reflected the existence of a newly developed print technology
that allowed the 'fixing' of literary works in a tangible medium – books – that could be mass
produced on an unprecedented scale and then sold in the marketplace” (138). Where in Ancient
Greece, human literary achievements were presented orally and almost completely “unfixed,” the
printing press enabled literary works to become tangible commodities that needed to be protected
from the political and economic threats of piracy and abuse.
Early protection and regulation first appeared as economic privileges for publishers and
stationers in order to encourage the development of the book trade. Such government regulation
included monopolies over individual titles or classes of books, licensing of printing presses, and
censorship (Bettig 139). The many economic privileges that the Stationers' Company received
arose jointly out of the printers' desire for profit and the government's desire for power. In the
sixteenth century, the reigning Philip and Mary granted a charter for the incorporation of the
Stationers' Company, which gave the guild policing powers to prevent the publishing of heretical
and seditious texts (Bettig 139; Geller 216). These policing powers existed in the form of
22
licensing. Licenses to operate a printing press were given only to members of the Company, and
in exchange, the guild would monitor the texts being printed for “treasonous” material (Bettig
139). In addition to this monopoly on printing licenses, the Company also retained what is called
the “Stationers' copyright.” According to the regulations of the guild, once a member registered a
work for publication for the first time, the Company would stop others from publishing copies of
that work, decreasing competition between printers (Geller 217). Essentially, members of the
Company could register the work in exchange for the exclusive right to copy the material. This
right could be transmitted between Stationers, “and it reverted to the Company upon a member's
death or his widow's remarriage outside the Company” (Geller 217). The right to copy was
transferred as an intangible piece of property with, much like under modern copyright laws, a
fixed term of private ownership. However, this arrangement was not fixed by law; rather, it
existed merely by “the virtue of 'trade recognition'” amongst the stationers (Geller 217). Such
regulation of private control helped to establish a competitive print trade within the Company.
Through the combination of this new system of copyright and the rights afforded to the
Company by the government, the Stationers' Company retained a monopoly over printing and
publishing in England for the next 150 years; this power and prestige did not transfer to the
creators of the works being printed (Bettig 139). Private control of literary property was still held
by those who already held power within the system of printing and distribution. While it is true
that authors owned the original manuscript, they had very little control over its publication.
Authors have always sold handmade copies of their works for the value of the labor invested in
writing them, but, as Geller points out, “authors were rarely themselves legally empowered to
control the printing and sales of copies of their manuscripts” for public consumption (218). This
control rested in the Stationers' Company, whose relationship to public access of works was
23
much closer than the original creators of those works. British law protected the economic rights
of members of the guild, preventing unlicensed prints and booksellers from distributing copies of
manuscripts. Nothing in the law referred to the authors' rights to their literary works. Because
only licensed printers could legally print and distribute copies, explains Bettig, “authors were in
a weak position to bargain when seeking publication of their works. Consequently, the economic
rewards generated by the commoditization of literature flower to printers, publishers, and
booksellers, not to authors” (140). The stationers were in such a superior bargaining position
when it came time to draw up a printing contract that they paid for the author's manuscript as
they saw fit; lacking the means the publish the works themselves, it was difficult for an author to
disagree.
Gradually, the importance of authorship began to increase as printers and publishers
began to turn their attention away from the classics and towards new works of literature. The
demand of the public for greater access to literary works forced the printers to reevaluate their
position in the book market. As the amount of unpublished works in the public domain from
classical and medieval periods began to dwindle, printers and publishers “began seeking new and
'original' works to keep the presses running and to meet the demands of the expanding reading
public” (Bettig 140). It was only then that language in contracts between author and publisher
began to include language that “alienated any entitlements of 'copy'” rather than language that
strictly sold the manuscript to the publisher (Geller 218). While the Stationers' vainly tried to
retain their publishing monopoly as the Licensing Laws expired, the importance of original
authorship soon gave way to a rising sentiment in favor of literary property rights for the creator
of original works of literature that would continue throughout history.
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The Statute of Anne
The birth of modern copyright and its association with the rights of the author can be
generally attributed to an eighteenth-century shift in public thought surrounding the creative
laborer. Previously, the printers were seen as the rightful owners of copyright because of their
role in fulfilling public access to literary works and the knowledge therein. It soon became
apparent, however, that the creator of those works and knowledge deserved to retain ownership
and control of the products of his own intellect. The difference between public access and private
control would become greater and more inseparable in the eyes of society than ever.
The book trade monopolies of the Stationers' Company were falling under attack as both
a detriment to the production of original literature and as an exhausted means to promote the
book industry. The English Parliament enacted a statute in 1624 to limit monopolies, although
not initially in the field of publishing. As their faith in monopolies to promote industry
weakened, "lawmakers had to face the challenge of fashioning a new regime in response to
piracy in dynamic media markets," including the publishing industry (Geller 220). The
increasingly literate middle-class likewise demanded a change in market regime, protesting
against the censors and monopolies and demanding more affordable and original works of
literature to replace the limited and expensive classics. When printers were thus forced to
negotiate more with authors over publishing contracts, the role of "author" appeared as a
profitable career rather than a hobby of the wealthy (Bettig 140). By the time Licensing Laws
expired, the concept of "authorship" had gained authority through its "association with the theme
of 'possessive individualism' in general social thought" (Jaszi 469), expounded by voices like
John Locke. Authors hoping to establish some authority over their published works as well as
printers trying to recreate their monopolies "latched on to popular notions" such as the natural
25
rights of the author to promote their own definition and practice of copyright (Bettig 141). By the
time the Statute of Anne was enacted in 1710, the public had a new concept of literary property:
"authors had natural rights to control the communication of their thoughts to the public and to
profit from the fruits of their own mental labors" (Geller 225). Encompassing this idea, the
Statute of Anne is considered the first modern copyright law.
England in the seventeenth and eighteenth centuries was in the throes of the
Enlightenment, a cultural movement (some say another result of the burgeoning book market) of
intellectuals promoting skepticism, science, and intellectual interchange. In 1689, John Locke, a
prominent Enlightenment thinker, anonymously published The Two Treatises of Government.
The First Treatise criticizes patriarchies while the Second Treatise outlines Locke's theories for
natural rights and contracts. Although the extent of Locke's intentions regarding the relationship
between his natural rights theory and intellectual property is highly suspect, Locke greatly
impacted the shift towards authors' rights and continues to influence modern copyright law.
When studying copyright law, the most important section of Locke's publication is what is
commonly called the Labor Theory of Property. In her essay, "Locke, Labour and Limiting the
Author's Right," Carys J. Craig succinctly summarizes the first premise:
According to Locke, the right to acquire private property can be derived from
natural law principles. All persons have the liberty to use the commons, given to
mankind by God for their support and comfort. Men have the right of selfpreservation, and because things cannot be of any use until they are appropriated,
without private appropriation the Earth cannot serve the purpose for which it was
given. (9)
26
In other words, the good of the world must first be appropriated as private property before it can
be used or "at all beneficial to any particular man" (Locke §26, 107). According to Locke, this
appropriation occurs through labor. Man naturally possesses ownership over his own person, so
"the labour of his body, and the work of his hands...are properly his." Whenever man touches or
joins a thing with his proper labor, "something that is his own," that thing is annexed from the
common and becomes his property (Locke §27, 107). Although Locke's Labor Theory of
Property explicitly discusses the production of only tangible goods, it is often assumed that the
mental labor involved in the creation of literary work likewise entitles the author to the product
of his own intellect.
While many classic texts on the origins of copyright law attribute the development of
authors' rights to Locke and his Treatises, more recent studies doubt whether Locke had
intellectual property in mind at all when he was creating his Labor Theory of Property. Not only
is intellectual creativity not specifically addressed in the central text, but Locke's career reveals
very little recognition that his own theory could be applied to literary property. Because The Two
Treatises were published anonymously, Bettig suggests that "Locke did not prioritize claims to
ownership over political expediency" (142), valuing political motions to his created, intangible,
property. Locke did not seem to recognize the connection between literary property and his
conception of property. Locke was, however, very interested in the debates surrounding the
renewal of the Licensing Act, although he was more concerned with the consequences of the
monopoly on the market than on authors' rights. In 1694, Locke sent an eighteen-point
memorandum protesting the renewal of the Act. One of those points questioned the principle of
censorship while thirteen others criticized the Act for maintaining the Stationers' book trade
monopoly; the author as natural owner of literary property is not mentioned (Bettig 142). While
27
Locke was most likely unaware of the implications of his Labor Theory of Property on authors'
rights, his interest in increasing the quality of the book market helped to expedite the enactment
of a better copyright regime.
In addition to helping to prevent the renewal of the Licensing Acts, Locke—albeit
unintentionally—influenced the evolution of authorship as a possessive concept. The Labor
Theory of Property was part of a shift in social thought towards "possessive individualism," in
which an individual is the sole proprietor of his skills and intellect and any product created by
them. As literary and artistic works were progressively commoditized and given property value,
this thought began to characterize the relationship between writers and their works (Bettig 140).
Authors began to view their work as valuable products of their intellectual labor and as such
were the rightful property of them, the creators. As society began to see authors more as creative
laborers, authors began to receive more individual recognition and reward for their original
literary works. This transition of the individual creator from tradesman to privileged genius
appeared during the Enlightenment period for several reasons. As Geller explains,
Different historians highlight different trends: some stress how books prompted
the inward cast of the mind that we now associate with individual creators
working in isolation; others point out how print allowed authors to promote
themselves as heroic, individual creators. (222)
The shift in thought towards possessive individualism prompted authors to view their creative
projects as their own genius property, a notion they were able to communicate in publications to
greater masses at this time. By the time the Licensing Act was being renewed, "the vocabulary of
'authorship' was, quite literally, a vocabulary of 'author-ity,' and the word 'author' was a word of
28
power" (Jaszi 470). Society began to embrace the idea of authorship as individual control over
the created environment, and therefore as individual ownership over the creative property.
The new thought surrounding possessive individualism and authorship greatly influenced
the argument for the first modern copyright law, although the acceleration came not from the
authors but from the monopolists. When the Licensing Laws, which had for so long secured the
Stationers' Company's printing monopoly, were denied renewal in 1694, the Stationers fervently
tried to preserve its exclusive control over the valuable literary properties and printing regime.
For ten years, the guild repeatedly advocated bills to re-authorize the old licensing system, and
their monopoly, but it was only when they began to use the new argument for the author's natural
rights that they saw any success. Arguing that since the authors had a natural copyright in their
literary works, "the transfer of the right to copy a work gave the publisher a license in perpetuity"
(Bettig 144). With this new emphasis on the author as copyright holder, the Stationers succeeded
in getting Parliament to pass a new bill in 1710: An Act for the Encouragement of Learning, by
vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the
Time Therein mentioned, also known as the Statute of Anne. The strategy of the Stationers was
both a success and, to a certain extent, a failure. The new law and its emphasis on the author
undermined the exclusive privileges previously enjoyed by the Company. However, as Jaszi
explains:
Publishers who pressed for legislation to recognize the right of 'authors' may have
miscalculated where the long-term interests of the book trade lay. Although the
vesting of rights in 'authors' under the Act of 1710 has been characterized as a
mere oversight, it is clear that the booksellers' short-term goals were well served
by the choice. In fact, no other strategy would have allowed them to apply as
29
much rhetorical leverage to back up their novel project of obtaining control over
literary texts through the elaboration of portable legal rights in texts as 'things'.
(469)
With the combined influences of the Stationers' desire to control literary property as commercial
objects and the blossoming natural right of the author, the Statute of Anne was enacted as
arguably the first modern copyright law.
To prevent the former monopolistic practices of the printers and to encourage "learned
men to compose and write useful books" (Parliament), the Statute of Anne granted rights to
authors that could then be contractually transferred on the open market (Geller 226). The law
granted copyright protection for twenty-one years to existing titles already printed and listed in
the Stationers' Register, and fourteen years for any titles printed after the Act took place with a
possibility of a fourteen year extension (Bettig 144). During this time, only the author and the
printers they chose to license their works could publish the author's literary works. After the
copyright expired, however, the material fell into the public domain. In this way, the Statute
attempted to balance what were essentially contradictory goals: the regulation of private control
for authors and the insurance of public access to intellectual works.
The impact of the new notion of "authorship" on copyright did not stop at the passing of
the Statute of Anne. According to Jaszi, the concept of "authorship" creates the contradiction
between control and access that is so fundamental to modern copyright law: "A stress on the
interests of past 'authors' could generate arguments for broad copyright protection, while an
emphasis on the interests of future 'authors' could generate equally compelling arguments for
strict limitations on the scope of copyright protection" (472). Copyright law was tasked with
balancing both the author's and public's desires and needs, which are often at odds. This central
30
dichotomy first appears as contradictory in a series of court cases concerning adaptations
following the passage of the Statute. The first case, Miller v. Taylor (1769), was brought by the
major copyright holders still seeking to perpetuate their monopoly. The House of Lords
recognized the common law of authors and concluded that the Statute simply provided extra
protection for the creator's natural right upon publication of the creation. This conclusion fixed
the idea of copyright as an author's right to private control while simultaneously supporting the
publishers' claim to perpetual copyrights, preserving their monopolies (Bettig 144). Five years
later, the House of Lords again recognized in Donaldson v. Beckett (1774) that the author's
natural copyright was common law; however, they also concluded that the Statute of Anne
supplanted this right with a statutory right (Bettig 145). As a result, protection for an author's
natural copyright was limited by the word of copyright law. Once a work was published, the law
was to protect "only the 'author's' verbatim text in its original form" (Jaszi 472). In this way,
private control was given to authors without hindering public access to and eventual use of those
works. Established in the name of the public and its future authors, this limitation set the
standards for the Anglo-American copyright tradition that was to follow.
The Rise of U.S. Copyright Law
The theory and practice of England's Statute of Anne set the stage for the evolution of
copyright protection in the United States. Traditionally, the accelerated incorporation of
copyright law in the American colonies is attributed to "'the intellectual quality of the leaders of
the day' and 'the intellectual ferment that characterized the young United States'" (quoted in
Bettig 145). This is, of course, an example of falsely romanticized intellectualism. Rather,
according to Bettig, "the early history of U.S. copyright law making is a classic demonstration of
31
the instrumental role of the state in advancing the interests of capital and aligned elites" (145).
Private control of property by the elites was perhaps seen as beneficial to the developing
capitalist society. U.S. copyright laws reflected the balance between public access and private
control that the Statute of Anne hoped to achieve. Accessibility and regulation were both seen as
necessary to the new nation’s social and economic development.
The first recorded copyright in the colonies was granted by the General Court of the
Massachusetts Bay Colony in 1672 in response to a bookseller's petition to forbid other printers
from copying and selling his new publication. While this legislation demonstrates the colonies',
and later states', power and desire to support capitalist ventures, it is the only "private" copyright
recorded in the first hundred years of the colonial era (Bettig 145). Although some colonies
established copyright laws, there was almost no colonial practice of it. After the Revolution,
however, intellectual property quickly became an important part of the nation's legislation.
Aware of the British precedent of natural copyright and copyright law, authors, printers,
and other members of the literary class began to voice the importance of copyright to the
developing country. Beginning in the 1780s, literary men such as Thomas Paine and Noah
Webster launched the crusade for literary property protection. Thomas Paine, noted political
activist and author during the Revolution, wrote the following in a letter to the Abbe Reynal in
1782:
It may, with propriety, be remarked, that in all countries where literature is
protected, (and it never can flourish where it is not), the works of an author are his
legal property; and to treat letters in any other light than this, is to banish them
from the country, or strangle them at birth. (quoted in Bettig 145)
32
Setting the rhetorical tone for the rest of the campaign, Paine stresses the connection between the
protection of author's property rights and the development of a national literature. Paine was
already a successful author by this time, and he would have benefited greatly from copyright.
After successfully petitioning for copyright protection in several states, the American "literati"
shifted their attention to the Continental Congress.
Although national copyright legislation could not exist prior to the ratification the
Constitution, the United States was convinced of its importance. Under the Articles of
Confederation, each state retained every power and right which was not expressly delegated to
the Continental Congress; the right to grant intellectual property protection was not included
(Waltersheid 2). Persuaded that copyright was in the nation's best interest, Congress passed a
resolution in March 1783 recommending that each individual state secure to authors and
publishers copyright protection. Between 1783 and 1786, twelve of the original thirteen U.S.
states (all except Delaware) enacted copyright statutes, the goals of which, "in order of
importance, were to secure the author's right, to promote learning, to provide order in the book
trade, and to prevent monopoly" (Bettig 146). These state laws reflected more than the language
and form of their predecessor, the Statute of Anne. Rewarding authors with the right to private
control of their works was seen as just as important as public access to the works in the
development of a national economy and culture. The committee which recommended the
resolution reported that it firmly believed in the Lockean idea that "'nothing is more properly a
man's own than the fruit of his study,'" and by the same extension made by the British
Parliament, "'that the protection and security of literary property would greatly tend to encourage
genius, to promote useful discoveries and to the general extension of arts and commerce'"
(quoted in Waltersheid 20). The underlying assumption in this latter belief is that, in order to be
33
intellectually or artistically creative, human beings must be economically rewarded for their
work; economic rationalism is assumed to be a natural human trait (Bettig 146). While the new
state laws seemed rational and beneficial in theory, it has been suggested that none of these laws
were practiced in any real sense. This is partly because of the impracticality of individual state
copyright laws. States could only legislate within their own territory, and it was highly
impractical and often frustrating to secure copyright in multiple states (Waltersheid 22). A
growing interstate economy required a standardized code of law to regulate commerce, including
intellectual property, and to unify the country's interests.
After the dissolution of the Articles of Confederation, the creation of a new body of
government provided the opportunity to include intellectual property in the nation's constitution.
With the understanding that a national system of copyright was necessary to foster a national
book trade, James Madison, statesmen and political theorist, championed the inclusion of the
copyright and patent clause in the U.S. Constitution (Bettig 147). Article I, Section 8, Clause 8 of
the Constitution reads, "The Congress shall have the power...to promote the progress of science
and useful arts, by securing for limited time to authors and inventors the exclusive right to their
respective writings and discoveries" (U.S). The Intellectual Property Clause is unique, as it is
"the only enumerated power granted to Congress that explicitly defines the mechanism for
exercising power" (Waltersheid 54). The justification for intellectual property protection as a
congressional power is included directly in the clause, revealing the principle's importance to the
Framers of the Constitution. The promotion of creative endeavors is often hailed as the essential
justification for copyright law; however, perhaps the support of competitive capitalism remained
a more important factor. As Bettig points out, "Madison recognized that the concentration of
intellectual property could thwart the very creativity it was supposed to encourage, but he also
34
recognized that it was an essential foundation for a private property-based economic system"
(148). The contradiction between private control and public access had been passed on from the
Statute of Anne, and balance between the two was essential to fostering both the creativity and
economics needed in the national literary market.
Securing the power to "promote the progress of science and useful arts," U.S. Congress
passed the first federal copyright law in May, 1790. Following the English precedent of the
Statute of Anne, the Copyright Act granted the U.S. author or his assignees the exclusive right to
print, reprint, publish, and sell created works for a term of fourteen years, with the right to renew
for one additional fourteen-year term should the copyright holder still be alive. The Act also
protected only works originating in the United States, explicitly stating that "it did not intend to
prohibit publication and sale of works in the United States that were first written, printed, or
published abroad" (Bettig 149). While creating a competitive national economy and book trade,
the U.S. had no interest in protecting the works of its competition.
Following the footsteps of the Statute of Anne, the U.S. Copyright Act (1790) did not
explicitly identify the author's right to copyright as common-law or statutory law. It was not until
1834 that the Supreme Court addressed this issue, sixty years after England made its decision.
By the early nineteenth century, "the notion of natural rights in inventive and intellectual
creativity was losing its resonance" (Bettig 149). The Supreme Court made its first ruling on
copyright in Wheaton v. Peters (1834). Drawing heavily from Donaldson v. Beckett, the Court
concluded that copyright was a statutory right created by Congress, essentially supplanting the
author's common-law copyright. This ruling was created within the context of the central
contradiction in intellectual property law. Bettig explains, "In reaching this decision the Court
framed copyright litigation as a matter involving two protections: of the copyright owner's
35
exclusive rights to exploit and profit from effort and risk put into the work, and of the public's
access to literary creativity" (149). In order to balance the interests of private owners and the
public, the law could not grant the unlimited monopoly that the natural copyright of authors
implied. The Court ruled, however, that the author retained a common-law copyright as long as
the work was unpublished. According to Bettig, "This fact again highlights the central role of
capital in bringing a work to the public, a process through which the publisher takes control of
and benefits the most form the author's copyright privileges" (149). The author retained complete
and exclusive control over his work but did not gain economic benefits from that control until the
work was published and passed into the market. Only then could the law regulate private
property protection and public access to creative works, all while promoting market competition.
Fixing copyright as statutory law, the ruling in Wheaton v. Peters was to set the terms for U.S.
copyright protection for the next 150 years.
Conclusion
The notion of literary property and its protection has greatly evolved since poetry was
first performed. From oral cultures that placed more social value on the intangible spoken word
than the written, to the English guilds that monopolized the printed book trade, the institutions
with power to mediate between author and audience influenced how literary property was treated
in society. As social, political, and economic thought surrounding literature evolved alongside
new publishing technologies, the social and economic values of public access to and private
control of literary property evolved too. As the literary and publishing world changed, so did the
idea of copyright.
36
The transition from oral to written culture demonstrates the parallel shift from valuing
public access to literature as socially important to recognizing that access as economically
relevant. Oral societies viewed information and literature as public goods. Because of the great
expense of producing written versions, a speech or performance was the easiest method of
publishing ideas. The nature of oral performances meant that a mediating power between creator
and consumer was all but useless. As the sole power over their own creative works and
presentation, authors determined how they published their works and what benefits they
received. With very little economic motive to publish their works, they were mainly concerned
with their prestige as a credible and known author. The value of public access to the author’s
work was understood as a social benefit to both the rising creator and the learned audience.
When the number of ideas fixed on paper increased, the value of literary property shifted from
social to economic. The value of manuscripts as physical objects was equal to the value of the
materials and labor to produce it. The growing concentration of literary property in Rome
increased not only the wealth of the empire, but also started the literary marketplace. Authors
and publishers migrated to Rome to produce works that would make them rich and famous. The
increasing number of works available to the public redefined public access to those works as not
only useful for the development of a literate population but beneficial to the economics of the
literary market.
A growing market for tangible literary property during the Middle Ages opened the
possibility of literary works as social, political, and economic tools. Those in power could
regulate what the public could access in order to protect their own interests. Securing the market
for manuscript production and distribution, the Christian Church acted as mediator between the
author and his audience. While the Church benefitted from the economic value of their
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manuscripts, the Church retained even more power through its regulation – and often limitation –
of public access. Due to the medieval conception of authorship, the author also benefitted more
from the social value of their literary property than the economic value. His position as authorial
voice profited from greater access and greater re-use of his works. While the author benefitted
from public access, the Church retained its power through the private control of both the physical
manuscripts and the ideas they contained. As the market for manuscripts increased, however, the
production and distribution of manuscripts fell under the control of the universities. As
educational institutions, the universities benefitted more from increasing rather than limiting the
quantity and quality of manuscripts to which the public had access. Their private control of the
culture materialized in the regulation of the stationers. Acting as mediators, the Church and the
universities were able to apply their own values to how literary property was treated during the
Middle Ages.
With the arrival of the printing press in the early Renaissance, literary property became a
commodity whose newfound economic, political, and social value irreversibly heightened the
relationship between publishing and Capitalism. The printing press allowed texts to be
reproduced and distributed to the increasingly literate market more easily and less costly; the
merchant capitalist stationers, whose job this was, formed the Stationers’ Company and quickly
gained profit and power. As the literary market increased, the need for regulation became more
apparent. New copyright laws were enacted to encourage the development of the book trade as
well as to enforce regulation of book production, effectively protecting the interests of the
Stationers as well as those in absolute power: the Church and the Crown. As the population
became increasingly literate, printed material became greater social and political tools, or threats
to those opposed to changes in the system. In exchange for exclusive licenses to print and
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distribute literary works, the Stationers policed the works for treasonous or seditious material.
The parallel developments of censorship and monopolies highlight the dual nature of the newly
intangible copyright that emerges at this time. The mediators between the author and his
audience benefitted from the socio-political value of controlling public access to literary works
as well as the economic value of private control over the literary market. Although the Church
and the government were able to protect their socio-political power by regulating the influence of
the literary market, the merchant capitalist Stationers redefined literary property as a powerfully
valuable economic asset to control, and copyright law would become irreversibly intertwined
with capitalism.
The commoditization of literary property and the subsequent need to regulate and protect
the literary market established copyright as an intangible property with socio-political and
economic value. The benefits of copyright, however, were almost solely enjoyed by those
mediating between the author and his audience rather than either of the two separated parties.
The censors and licenses of the Licensing Laws which gave the Stationers' Company their
monopoly were deemed a detriment to the production of original works of literature as well as to
the distribution of those works to the public. After the Licensing Laws were refused renewal,
emerging ideas of labor-based property, possessive individualism, and authorship collectively
influenced the new concept of copyright as embodied in the Statute of Anne. The author was
redefined as "creative genius" and individual owner of his own work rather than tradesman at the
mercy of the historically powerful mediators. If the author retained too much control over his
work, however, the public might suffer from limited access. In order to prevent any monopolies
over literary property, the Statute of Anne was designed to balance the public's and authors'
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needs, which were often at odds. By rewarding authors with a limited private ownership, this
Statute hoped to encourage the creation, and consumption, of creative works.
When the United States began to draft its Constitution, ideas surrounding literary
property were beginning to shift. Although drawn extensively from the Statute of Anne, the new
nation’s copyright law reflected the growing competitive capitalism and diminishing skepticism
for “natural” rights at the time. The contradictions between private control and public access so
idealistically "balanced" under the Statute of Anne began to appear, however, when the statutes
were put into practice. Both the U.S. and England revised their laws to redefine the author's
idealistic natural right to private control over his own works to a more limited statutory law. By
limiting the author's exclusive control of publications to only the text verbatim in its original
form, copyright law gave private control to authors without hindering public access to and
eventual use of those works. The concept of copyright crystallized into a statutory right that
would owe its future existence and development to legislative initiative, rather than the whims of
publishers.
Current copyright law is a careful balance of the dualities found throughout the history of
literary property and its protection: economic value and social value; authorship and capitalism;
private control and public access. The last pair, while often contradictory, is the key to
understanding the purpose of copyright. The exclusive control of literary works given to authors
acts as an incentive to continue producing and distributing their works to the public. In order to
avoid monopolies of control, the laws grant limited rights to authors that insure public access to
and eventual use of those works. By balancing the needs of producers (authors) and consumers
(the public), copyright law is designed to promote the creative arts and competition within the
market; copyright law seems fundamental to protecting the economy of creative arts.
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In 1940, Masterson concluded his essay on the history of copyright as follows: “The
struggle has changed from the exciting one of securing recognition of a fundamental right to the
more prosaic business of enforcing that right in practical affairs" (632). The advent of new
technologies, however, is radically altering the creation of literary property and its protection.
Digital platforms are increasingly removing the mediator from the publishing equation, so it is
the values of the producers and consumers that matter more. However, the difference between
producer and consumer (and therefore public and private) is increasingly difficult to define. This
divide is the concept upon which we base copyright law. As this foundation crumbles, we must
look to new solutions for authorship and literary property protection. The debates surrounding
the internet and modern copyright law would be anything but prosaic.
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CHAPTER TWO: THE DIGITAL ECONOMY OF CREATIVITY
Introduction
Modern copyright law is based on the idea that, in order to promote the interests of
society, the interests of the author and the public must be equally valued and protected.
Throughout the history of literary property, private control of literary works and public access to
those works took turns being the most important facet of the literary market. For those who had
the power to control the market, effectively acting as mediators between the creative producer
and consumer, each facet carried either economic value, social value, or both. With the invention
of the printing press and the adoption of a "possessive individualist" definition of authorship,
copyright came to be understood as a necessary balance between economic value in possession
and social value in accessibility within a capitalist market. By rewarding authors with limited,
exclusive ownership of their works and simultaneously ensuring that those works were
accessible to the public, copyright law would promote the creative arts and protect the creative
economy. This foundation has stood strong for over three hundred years; it may not stand much
longer.
With the advent of the Internet, the most important invention in literary history since the
printing press, the world in which we live has changed faster than society’s regulations can cope.
Copyright lawmakers have much to consider when facing the World Wide Web. The Internet,
briefly defined, is a worldwide network of networks, an ephemeral anthology of websites,
archives, and applications. According to the daily estimation at WorldWideWebSize.com, there
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are at least 14.71 billion web pages on the indexed web, as of March 30th, 2013 (De Kunder). A
several-billion-page anthology is an almost incomprehensible read. Fortunately, search engines
like Google help us find what we are searching for, and database sites help us find information
we didn't even know we wanted to find. Internet technologies are revolutionizing
communication, data-gathering, and information distribution.
From the beginning, the purpose of the Web was to promote the efficient and open
exchange of data. As Kathleen Fitzpatrick explains in her essay, "The Future of Authorship:
Rethinking Originality," "...the technologies that support Internet-based writing and
communication developed in a milieu--among scientific researchers--in which a higher value
was placed on the sharing of information than of the individual authorship or ownership of
particular texts" (5). In fact, the Internet would not have developed as rapidly as it did without
the free exchange of code and program data needed to generate, repurpose, and improve web
technologies. The ability to access and share content across networks and across the world more
easily promotes the kind of learning and innovation that copyright is supposed to encourage.
Unfortunately, the Web’s seeming inability to discern between the copyrighted and
uncopyrighted material that it distributes causes great concern amongst copyright holders. While
this party would like to protect the market interests associated with their copyright, the Web
transcends the traditional economics of intellectual property and shifts towards favoring the
social value of accessibility. Although there has been a great increase in regulatory and
restrictive technologies since its inception, Internet culture still fosters the value of open access
that is central to the economy of digital creativity.
Early in the Internet Boom of the 1990s, most of the information on the web was
produced and distributed by organizations and administrators and then accessed by individuals.
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The divide between "author" and "audience," mediated by cultural powers, was similar to that in
traditional print culture and still functioned as a foundation for modern copyright law. By the
end of the boom, however, a rapidly increasing amount of web content began to be produced by
users rather than specialized administrators. Coined "user-generated content," this genre of
Internet not only promotes the social values associated with open access, but reveals the
disconnect between digital culture and contemporary copyright. The 2001 ruling against Napster,
a peer-to-peer file-sharing service, produced a mixed reaction in the public and brought the
controversy of Internet copyright to light. After being sued by the Recording Industry
Association of America (RIAA) for allowing the distribution of copyrighted music, Napster was
found guilty of “two kinds of copyright infringement, [failing] to police its system in an attempt
to stop the spread of copyrighted works, and [doing] substantial harm to record companies”
(Costello). While many people feel that Napster deserved to be shut down, there are many others
who feel that such a ruling could set a precedent that might ruin the resulting creativity of openaccess culture.
File-sharing is not the end of the Internet copyright controversy, however. User-generated
content also exists as literary property and as the basis of the new economy of digital creativity.
More recent Internet technologies foster not only greater user participation and file-sharing
capabilities, but user-based publishing and authoring services on digital platforms. Popular
platforms such as blogs, podcasts, forums, review-sites, social networking and media sites, and
wikis contribute to what is called Web 2.0. The architecture of the new web allows “more
interactive forms of publishing…participation, and networking” (Warschauer) and fosters greater
user involvement in the production and dissemination of digital texts. While administrators of
websites and such platforms will often police inappropriate content or service abuse, the
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mediator, traditionally positioned between producer and consumer, is all but cut out of the
equation. Rather than rely on the middleman, the web author is empowered to produce and
distribute his work on his own terms. While it is becoming increasingly difficult to publish
literary works through mainstream media corporations, the ease with which self-publishing
occurs on the Internet allows for a greater range of user-authors as well as ability to reach a
wider, more global audience. The future of the Internet promises a vastly more diverse market
for digital creativity.
After examining the past, I found that contemporary trends in technology and publishing
follow the pattern of social value and economic value in the historical perception of literary
property and copyright. Internet culture, in particular, seems to be transitioning from economic
value and towards the social value of literary property. Traditionally, the works of authors are
valued by their economic worth on the market; social value exists as the text’s contributions to
culture and society. On the Internet, however, the weight of social value has expanded to replace
financial gain as the direct product of market exchange of information; rather than sell their work
for money, authors are offering and distributing their literary property in exchange for an
audience. Contemporary theorists are examining the ways in which this transitioning culture is
evolving. One of the more popular models is the Gift Economy, a system of non-monetary
exchange that has been demonstrated in various communities throughout history. The “low-cost,
mass-publishing, mass-reproductive nature of the Internet” facilitates the gifting and exchange of
information, such as open-source software and blog posts, between individual users or with the
Web community at large (Veale). Citing the rapid growth of the Web as a result of free-exchange
early in its development (Barbrook), theorists examine information as non-rival goods whose
exchange fosters individual as well as community advances. While givers often expect some
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return on their generosity, socialist, rather than capitalist, attitudes seem to characterize models
of the digital Gift Economy.
While many characteristics of the Gift Economy are undeniably present in Internet
communities, the digital market of creativity does not escape capitalism as it exists in the analog
world. The exchange rate of information and social value is not necessarily equal or fair. Rather,
the perceived quality of literary property naturally affects the reader’s response and subsequent
feedback of information and social goods. Reader response helps determine how much value is
assigned to the author’s work and subsequently, how much reader feedback and participation is
exchanged for the gifted literary property. Because reader-assigned social value helps to define
the quality and prestige of the author, digital authors must work to produce literary property that
is more valuable than other works in order to rise in digital society. I will argue that such an
exchange readers and authors fosters a competitive market, rather than gift economy, for the
digital creative arts. As authors and readers exchange information and tokens of recognition,
those “gifts” are compounded in a capitalist system of valuation and social ranking; as authors
receive positive feedback, their position in the creative market is elevated. Furthermore, social
mobility and value is not only accrued through gifting but through reader interpretation and
communication. The role of the audience in creating and compounding cultural value
complicates the theory of the digital Gift Economy; a better model for the creative economy on
the Web is what I call a Cultural Economy, a system based on the production and exchange of
cultural capital.
Originally articulated by Pierre Bourdieu, cultural capital refers to social assets, such as
knowledge, skills, and influence, that promote social mobility and that can, in certain cases,
translate into economic capital. In the context of the digital economy of creativity, social assets
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often materialize as attribution, recognition, user feedback, and peer-sharing. The acquisition of
such social currency translates into symbolic capital, as Bourdieu describes:
Because the social conditions of its transmission and acquisition are more
disguised than those of economic capital, [cultural capital] is predisposed to
function as symbolic capital, i.e., to be unrecognized as capital and recognized as
legitimate competence, as authority exerting an effect or (mis)recognition.
(Bourdieu)
While references and user feedback hardly qualify as economic profit for the authors of digital
literary property, cultural capital translates into symbolic "profits of distinction" (Bourdieu). With
a large amount of cultural capital, the owner acquires recognition, authority, and popularity. As
explained by Pisac, Bourdieu explains cultural capital for the author in terms of the readers’
perception: “A collective judgment of the ‘value and truth of the work’ defines the author and
ascribes them a position in the web of social relations” (Pisac).
This system of valuation based on social relations is especially prevalent in the digital
Web; the work and its creator are valued by their quality and influence in a competition of social
prestige rather than economy. While this might fill the author’s heart, however, symbolic capital
alone will not fill his wallet. The mediators, i.e. publishing companies, recognize great cultural
capital on the web and attempt to turn that into a profitable venture. This practice has become so
popular that new literary awards are given to books that have grown out of blogs. The first
recipient of one such prize, the Blooker Award, was Julie Powell, an amateur cook and food
blogger who used her blog, The Julia/Child Project, to chronicle her attempt to complete every
recipe in Mastering the Art of French Cooking in one year. At the end of her adventure, Powell
had accrued several hundred thousand page views and a book deal with Little, Brown. Although
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the publishing house had initially considered the acquisition a gamble, the risk was worth it;
Powell’s blog made a very successful book and a few years later, a full-length movie (Costello,
“Channeling”). Like Little, Brown, publishing companies are publishing texts that have already
gained an appreciative audience, and therefore value, on the Web. Instead of assigning value to
these works through their own power as cultural brokers, publishers are referring to readers in
hopes of selecting a work that will be as commercially successful as Powell’s bestseller. While
these publishing companies and other mediators still retain much of the cultural power they have
had throughout history, they no longer control valuation in the literary market. That power,
thanks to the Web, is now in the hands of the reading public. In what I describe as the creative
economy of the Internet, cultural capitalism emerges out of the new systems of authorship and
readership created by the World Wide Web.
With the digital revolution, literary property has evolved into a concept that escapes the
traditional dichotomy between private control and public access. Internet publishing tilts the
balance in favor of public consumption, seemingly at the expense of the copyright owner's
benefit. Under the current copyright tradition, the creative economy is an economic capitalist
system, wherein the value of the work and therefore the benefit to the owner is almost purely
monetary. This system, however, has no place in the "unbalanced" digital landscape. By
investigating the ways in which the Internet shapes digital authorship and readership, I suggest
that contemporary copyright is not suited to protecting digital texts. First, I explore how the lack
of textual fixity in digital texts complicates the definition of literary property as a fixed product
of creativity in addition to fostering the connection between author, text, and authority. I also
explore the intertextuality and collectivity that exists in digital authorship and how this departure
from Romantic authorship complicates the process of assigning copyright ownership and
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supports the transmission of cultural capital. By exploring how the nature of authorship and
value has been changed by Web technologies, I reveal the ways in which Romanticism can no
longer function as a foundation for copyright law as well as the ways in which digital authorship
supports a cultural economy. Furthermore, I explore the ways in which the participation of digital
readers in the production, marketing, and distribution of digital texts creates and disseminates the
social currency at the heart of the digital literary market. In addition to revealing how reader
participation continues to complicate traditional copyright, I suggest that digital readership is
shaping the literary market both on- and off-line. Because copyright is designed to protect the
economic value of intellectual property, I argue that it is unable to account for the new role of
readership in generating cultural capital. Where the current copyright regime was born into a
monetary economy, a new system of protection must be designed to address the emergence of the
Cultural Economy of creativity on the Web.
The New Authorship
The role of the author has changed throughout his existence, even as the essential
characteristics of his nature have not. The author is always connected to his text, and in many
ways, is in constant conversation with it. The author is also always in conversation with the
works of his predecessors by borrowing ideas and characteristics of past works. Current
copyright law, however, continues to base its definition of literary property on the Romantic
notion of authorship: the “lone creative genius” as individual creator, and thus owner, of a unique
text. Despite the continuing popularity of Romantic authorship, the Internet highlights the
realities of the author as an editor and compiler of culture. By examining the ways in which the
Internet highlights the collectivity and intertextuality in digital texts, I suggest that digital
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authorship complicates and negates assumptions about literary property under the current
copyright regime. Looking at the present revolution, I argue that, just as the printing press
promoted the development of the Romantic author, so has the Internet prompted a more recent
evolution in authorship and literary property, one that returns to the author’s origins as a cultural
conversationalist.
The concept of authorship has been anything but static since he first became a storyteller.
The Greek and Roman author was a creator who drew from the works of previous creators. Once
his individual creative contribution was performed, any control he might have had over the work
slipped away, and the work fell into the same public pool from which he drew inspiration.
Without a practical commercial motive for individuals, authorial prestige and cultural influence
were enough to encourage the creation of literary goods. As these works became more and more
fixed in the form of manuscripts, the concept of authorship became complicated, existing as both
static and dynamic. The medieval author strived to assert his authority over the ideas and
knowledge contained within his text, but this authority often stemmed from his self-declared
appropriation of previous works. Even as “authorship” became synonymous with “authority,” the
other players in manuscript culture undermined this literary authority through their control of the
production and distribution of manuscript copies. The invention of the printing press encouraged
the economic market of literary property, but as authors continued to be at a disadvantage to
those in charge of printing and distributing their works, authors held very little power or prestige.
Gradually, as the literate public became more interested in original literary works, authors were
seen less as craftsmen or hobbyists and more as creative geniuses. By the development of
modern copyright laws at the end of the 18th century, the author had evolved into a creative
genius who held a natural right of ownership over his unique intellectual property. Romanticism
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at this time conceived of the author as an individual artist whose creative gifts gave him all but
divine status; the author was essentially a cultural hero whose relationship to his text was equally
unique and divine. The collectivity and collaboration that is naturally a part of creation and that
wound itself around historical concepts of authorship fell away, leaving the author as sole
creator, and thus copyright owner, of his unique literary property.
Then, around 1967, the author died. In his renowned essay, “The Death of the Author,”
French theorist Roland Barthes celebrates the slow disappearance of the author from literary
interpretation. In the traditional theory of literary criticism, interpretation of the text draws
extensively from the author’s life. Barthes explains, “The image of literature to be found in
contemporary culture is tyrannically centered on the author, his person, his history, his tastes, his
passion; [...] the explanation of the work is always sought in the man who has produced it ” (2).
The assumption is that the author has written himself into the text, hidden his motives and beliefs
behind the guise of fiction, and that it is the critic’s job to find him out. Barthes argues, however,
that in the process of writing, “the voice loses its origins, the author enters his own death” (2). In
other words, the author is first and foremost the writer, translating experience and story into
words that do not necessarily reflect the voice and experience of the author; the author is
removed from his own creation. To interpret a text based solely on the author’s involvement
limits the possible meanings of the work. Text, we know, does not consist of one meaning, or
what Barthes calls the “message” of the Author-God, but is a body of multiple meanings, a
“space of multiple dimensions” that connect the culture creation of the past to the continuing
creation of culture in the present (Barthes 4). With the death of the author comes the
understanding that the author is not an individual genius creator, but a translator and compiler of
culture.
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But it seems that reports of the author’s death were greatly exaggerated. The digital
author, however, is in many ways different from the analog author. If the analog author has
indeed died, then he has been replaced with a very dynamic digital writer. However, this
renewed theory of authorship remains lost in the persisting individualism that characterizes much
of the Western world. Even though the author has all but disappeared from modern literary
criticism, contemporary assumptions about authorship and literary property still carry the weight
of the romanticized, creative genius; as Chesher so blithely remarks, “The Author is alive and
well, and has a blog.” The assumption that creativity is an original act of individual inspiration
pervades the aesthetic as well as legal treatment of literature. A unique body of work not only
carries more value in society than that which is obviously derived, but its value is more carefully
protected by copyright law. Assumed to be the sole creators, authors are assigned exclusive
ownership of their “unique” creations, despite their naturally derivative and collective origins.
Just as the printing press influenced the development of the Romantic author, the immutable
changelessness of the printed book continues to support the idea that an author has created,
published, and owned something solid and identifiably unique, a testament to his identity as an
individual, creative authority.
While the Romantic author has been tied to print culture almost since print culture began,
it is not an accurate representation of digital authorship. The analog author’s relationship to the
bound book is as fixed as the words printed on the page. As a physical, changeless product of the
author’s intellect, the book (and the printed article and essay) are perceived to be the author’s
defined, stable literary property. The stability of the text also fostered the traditional
understanding of author-reader relations by enabling readers to construct a connection between
the text and the author that is practically immutable. At least, we have been led to understand
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print as a stable product. As Fitzgerald explains, “...one of the assumptions that the technologies,
implementations, and organizations surrounding print publishing have produced is that any text
that comes into our hands, whether a book or a journal, is present in its entirety and will be
consistent from copy to copy” (10). We assume that, once the text is published, it is the finished,
final form of the author’s creation. Any subsequent additions or revisions to the text are assumed
to further align the printed text with the author’s intentions. Romanticism has persisted. The
published text is seen as an extension of the author; the creator is practically inseparable from his
creation, as is the owner from his literary property. Just as readers expect “to attribute a text to an
imagined author” (Chesher) in order to determine meaning and value of the literature, lawyers
expect an individual to whom they can affix copyright ownership. In addition to an implied
natural ownership right, the perceived stability of print lends to the author a presumed stability of
voice, identity, and authority.
The persisting romanticized notions of authorship have helped promote economic-valued
conceptions of literary property and copyright since the beginning of Gutenberg’s dynasty of
print. In this second revolution, I trace how the digital author is interrupting these conceptions
and creating a new dynasty of creative cultural capitalism. I suggest, on the Web, the values of
voice, identity, and authority persist, but these translate into social value, or cultural capital.
Internet technologies have decreased the separation between author and text, increased
intertextuality, and all but removed the divide between author and reader. The digital author
cannot pretend to be the lone creative genius that Romantic authorship promoted. Instead, he (or
she) is a social figure, constantly in conversation with his text, with fellow authors, and with his
audience
If the analog author is in a stable relationship with his text, then the digital author is, let’s
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say, a swinger. It isn’t that the digital author is claiming different texts but that the digital text is
always changing. While the printed publication can take several months to several years to
publish a revised edition, digital texts may be reworked and republished easily in a matter of
seconds. In fact, many authoring and publishing platforms on the web feature an “edit post”
option; in this way, digital publications are more often considered “works in progress” rather
than “finished products.” Because digital text can be so easily changed, the stability traditionally
associated with published works is lost. Such stability traditionally signals the transition from a
“work in progress” to literary property. Because of the intangibility of both literary property and
copyright ownership, the scope of copyright is limited by the once-defined content of the literary
work. If the content of the work were to constantly change, then the scope of the owner’s
copyright would alter with it; this would make for some very messy legal cases. However, this is
exactly what Internet authoring allows. The instability of digital texts complicates the definition
of literary property and thus, the current copyright system.
While this instability may not fit into the current copyright system, I find that the
relationship between digital authors and their dynamic texts supports a cultural capitalist market.
In some ways, the relationship between author and text has always supported the work’s social
value. In regards to the Internet, however, some argue that the instability of digital texts damages
the relationship, and thus value, of authors and texts on the Web. Siân Bayne writes, “The
primary characteristic of digital authorship is that it involves an increased separation between the
figure of the author and the text” (Bayne 18). In her study, “Temptation, Trash and Trust: The
Authorship and Authority of Digital Texts,” Bayne argues that Internet publications do not
communicate the credibility that static print publications do, and as such, readers are less willing
to trust digital texts and their authors. This trust--or more often credibility--is one facet of
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cultural capital. Authors who demonstrate credibility and trustworthiness in their texts gain social
value in their authority. Although print may rely on stability as a sign of authority and value, I
believe Bayne and like-minded theorists may be over-exaggerating the disconnect, and thus loss
in value, between digital author and digital text. Instead, I find that digital authorship may be
characterized by a greater connection between the author, his work, and his cultural capital.
This connection seems to be the most pronounced in blogs, whose technologies and
services allow for a more dynamic authoring process. Rather than write once and publish once,
bloggers may revisit and re-publish their texts as many times as they see fit. Because of their
unique publishing scheme, blogs have become popular not only with writers and readers, but
with literary theorists as well. “What made blogs so immediately popular,” explains Kathleen
Fitzpatrick, “...was the very fact that they changed and developed over time, existing not as a
static, complete text but rather as an ongoing series of updates, additions, and revisions" (11).
Although we traditionally equate “static” with “trustworthy” and “credible,” blogs achieve
authority and value through other means. The content of a blog may cover one focus or it may
span a wide assortment of topics; the voice, however, typically remains the same. Blogs are
usually written and managed by a single author whose unique and identifiable voice permeates
the text. In his essay, “Blogs and the Crisis of Authorship,” Chris Chesher explains that the
“consistent and identifiable voice” of the blogger suggests a stable figure through which readers
can attribute authorship; he says, “Over time (and by reading the archive) readers get a sense of a
consistent identity that is the source of this text” (Chesher). Blogs achieve the same stability of
the “author figure” that print does through the author’s consistent voice. Revisions and
amendments to blog posts, then, function in a similar manner to subsequent editions of printed
books: the changes are assumed to further align the text with the author’s intention. The ease in
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which revision takes place in the blogosphere, however, enables the author to continuously
update his text to align with his current knowledge, beliefs, and intentions. The digital text, then,
functions as a more direct and constant expression of the author. Rather than walk away from a
“finished” publication, the digital author is continuously engaged; where the printed author
publishes a monologue, the digital author holds an on-going conversation with his text. However,
because a blog is both an ongoing and changing body of text, the current copyright paradigm has
a difficult time accounting for this undefined literary property. The value of such ephemeral
property carries much greater social worth in the cultural economy than economic worth in this
copyright system. While the instability of digital texts might suggest a lack of authority,
credibility or connection between author and text, the capacity for revisions and re-publications
that digital authoring heightens and emphasizes the conversation the writer has with his writing
and fosters a market of cultural capital.
In addition to holding a conversation with himself, the digital author is also holding a
conversation with other analog and digital authors, albeit a little out of synch; the digital author
is a very social creature. The author has always been a translator, compiler, and conversationalist
of culture, but it was not until the supposed “death” of the Romantic author that we remembered
he is not a genius in isolation. Just as texts are never quite complete, texts are not comprised of
one meaning in unique incarnation. Text is, as Barthes describes, a “space of many dimensions,
in which are wedded and contested various kinds of writing, no one of which is original: the text
is a tissue of citations, resulting from thousands of sources of culture” (4). From the Greek poets
revising and rehearsing the more ancient epics, to the medieval authors appropriating knowledge
from many sources and retelling new tales, the author has always borrowed from the creativity of
others who went before him. Intertextuality, in both print and digital publications, exists as
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complex relationships that elude specifically defined references, either because of the nature of
the repurposing or because the text is borrowing from indefinite sources; such relationships
include revisions, parodies, allusions, translations, or repurposing. Regardless of whether the
“borrowed” content is attributed to their “original” sources, the resulting texts exist in
conversation with those they have touched. However subtle the intertextuality, no text stands
completely alone.
Intertextuality is perhaps nowhere more pronounced than on the Internet. The Web,
appropriately named, is a network of billions of pages of information connected to each other
through hyperlinks. The heart of digital intertextuality is in the hyperlinks, whose structure
“causes every text in the network to become part of every text that links to it, and thus each text
is completed by every other, and becomes raw material for every other” (Fitzpatrick
17). Flooded with complex intertextuality, the Internet is the epitome of what is called remix
culture, a community “that encourages derivative works by combining or modifying existing
media" (Diakopoulos et al. 133). Whether explicitly linked or not, remix texts borrow from a
variety of print and digital cultural sources. Such borrowing seems to complicate the author’s
“natural right” to exclusive ownership of his unique body of work. A lack of defined references
can cause many problems when assigning attribution, recognition, and more importantly,
copyright ownership. Attribution and recognition are implied and often forgotten in digital
publications as the realities of intertextuality are more prevalent. In addition, the overlapping of
content, ideas, and innovation across the Web all but negates the power of originality in the
definition and protection of literary property. By complicating the notion of the unique text,
intertextuality makes the assignment of exclusive copyright over digital creations very difficult.
In my exploration of digital intertextuality, however, I suggest that originality in this blatantly
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remix culture is taking different forms and accruing different forms of cultural capital. While the
Romantic concept of literary property continues to favor the unique creation of an isolated
genius, the culture of the Internet is fostering a creative market that favors the social value
associated with intertextuality.
During the Middle Ages, authors assumed authority through their recognition of the texts
from which they borrowed. Likewise, digital authors negate some of the trust issues associated
with their texts’ instability by making their intertextuality more explicit. Rather than make their
readers leaf through pages and books to follow-up on a cross-reference, authors can simply link
their text to the original material, and the reader can access the original source on their own. By
linking to the original material from which they draw inspiration, authors enable the readers of
their texts to cross-examine and validate the work. Not only does this help generate the author’s
authority, but such attribution may also help avoid a negative presence within a community; as
Diakopoulos and his colleagues explain, “To avoid potential stigma, an author must operate
within the social values and rules regarding attribution in a particular community or culture”
(134). This is especially relevant in academic communities, where the credibility of the author is
heavily influenced by the text’s references. Other scholars can validate the credibility and value
of the scholarly work by reviewing first-hand the texts the author drew from. Furthermore, the
more texts that link back to that scholarly work, the more authority and value that work presents.
Attribution to original sources, then, enables readers to provide further recognition of both the
new and original texts. Attribution, recognition, and other explicit forms of intertextuality
generate credibility, authority, and social value for the digital author and his text. As “attribution
drives the recognition economy” (Diakopoulos et al. 136), recognition drives the cultural
economy of the web.
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The remix culture of the Web, however, very often lacks explicit attribution and
recognition; many digital authors forgo references to the original sources from which they draw
inspiration and material. Diakopoulos and his colleagues explore such remix culture in their
published study, "The Evolution of Authorship in a Remix Society." In their study of Jumpcut, an
online video remixing site, they find that because of "the lack of monetary economy" on the site,
"attribution, explicit intertextuality, and attention are of the utmost importance in providing
authority" (Diakopoulos et al. 136). However, the process of remixing videos tends to undermine
explicit attribution; videos are edited and strung together with few, if any, credits to the original
sources. Similarly, remixed or repurposed texts are often published without crediting the original
authors and material. By "forgetting" to "give credit where credit is due," remix authors might
fall into the dreaded zone of Plagiarism. While protectors of the zone concern themselves with
such concepts as originality and copyright infringement, we must remind ourselves that
"originality" is a false idea; creators have always borrowed and built upon that which came
before them, and almost always without permission. In her book, No Trespassing: Authorship,
Intellectual Property Rights, and the Boundaries of Globalization, Eva Hemmungs Wirtén
eloquently explains this shift in perception:
The praise once bestowed for centuries on those who were able to recast old
traditions and legends into new forms, became overshadowed by a romantic
author and a modernist aesthetic where search for innovation and novelty took
centre stage and any hint of imitation was to be abhorred. (57)
While the Greeks and the Romans and writers of the Middle Ages were titled "authors" because
of their skill in remixing past texts, digital authors would lose their title for “abusing fair use” at
the insistence of some. At this point, I feel I must clarify: plagiarists exist in plentitude as those
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who appropriate texts and claim them as their purely original creations. While remix authors may
not credit their sources, they do not claim pure originality; they do not necessarily hide the fact
that their sources exist. But sometimes their sources are difficult to define. Digital remix texts
can draw from many different sources without knowing exactly which ones. Although texts are
always derived of other sources of culture, it is impossible to know exactly all of the material the
author has borrowed from, consciously or unconsciously, and so it is impossible to reference
every instance of appropriation.
If appropriation is a major currency for authority, then what generates value for remix
texts that do not include credits? The understanding that texts are always derivative kills the
Romantic notion of the original writer. As creators of remix culture, digital authors demonstrate
acts of creation that might be understood as explicitly unoriginal; and while we understand that
originality is a false notion, we still place much value in its appearance. Where works are
explicitly derivative, attribution to the original material increases the credibility of the text and
the authority of the author; in turn, future works that credit the text will generate greater
recognition, and thus social value, of the author and his creation. Even without this attribution,
however, the works of digital authors still carry much worth. The value lies in their creativity, the
originality that comes from their specific demonstration of intertextuality. One writer's
manipulation of a text may be viewed as more unique than another author's manipulation of the
same text. The choices the author makes in his repurposing carry the same value as the false
originality. In addition, highly valued innovation in remix cultures may result in new genres of
intertextuality; such innovations would carry much value and would provide social mobility for
their authors. Existing as cultural capital, these instances of authority and innovation provide the
foundation for the new creative economy.
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With the advent of the Internet, the conversational functions of the author are emphasized
as influences on the accrued value of the digital author and his work. This does not sit well with
the current copyright paradigm. The instability of texts complicates the definition and protection
of literary property. Even further, intertextuality confounds the even wider notion of the author as
unique creator, and thus owner, of a unique body of work. The new authorship, a more explicit
form of the author in his naturally conversant state, makes both the theory and the practice of
current copyright law very difficult to defend in the new market of digital creativity. On the other
hand, this new authorship seems to help foster the growing cultural economy within that market.
Because the author can continually update his writing to more accurately reflect his ideas and
intentions, the text is more closely associated with the author’s intentions, despite its lack of
stability. The author’s involvement in his text generates value for the text as a “current”
authority. Digital intertextuality also works to accrue value in a competitive social market.
Hyperlinked references to borrowed source material enable readers to validate the author’s work
and place a more objectively calculated value on the text. In addition, the more explicit
intertextuality involved in remix media highlights the importance of the innovative manipulation
of existing culture in the valuation of text that is, by nature, derivative. As Bourdieu argues, the
value of such texts is generated by the cultural and social expectations of the audience. As
readers interpret digital texts and identify authority and value, the author gains cultural capital
and climbs up the social ladder of digital distinction.
The New Readership
Authors throughout time have not and do not operate in a vacuum; rather, they have
“always been a participant in an ongoing conversation” with culture and culture creators
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(Fitzpatrick 7). They continue the work of others, adding their own knowledge and preferences,
and those of the times, to that which has already been recorded. Collectivity exists in other ways,
however. Working off of Barthes’ claim that original work is a fallacy, Bourdieu argues that the
work is also always collective; the value and definition of the author and his work is generated
through the passive interaction and assessment of the readers. On the Internet, however, the role
of the reader is no longer passive. The authoring and publishing platforms of the Web that enable
digital authors to become more involved in their publications also enables the readers of those
works to become active participants, particularly in the creative economy surrounding digital
text. The mediators between the author and the audience, historically the Church or the printers,
have long carried the power of controlling economic and social value in the literary market. The
assignment of value most often benefitted the mediators rather than either author or reader. While
conceptions of literary property and copyright grew out of this mediator-based market, current
copyright law does not account for the new role of readership in the digital creative economy.
The Internet all but refutes passive interaction. Rather, the digital audience actively participates
in the consumption and subsequent production of literary property. Through their participation in
the text, readers construct meaning and value of the text and its creator. While the feedback that
readers provide lends an “author function” to the reader, feedback in the form of sharing and
promoting links to digital texts increases the circulation and distribution of a text while
simultaneously promoting and increasing its collectively defined value, or cultural capital. The
digital readership, then, functions as supplementary authorship as well as a system of valuation
and marketing for the text. With these new roles, digital readers have taken on a newfound
importance in the cultural economy of digital creativity.
The evolution of the passive reader to the active participant seems to have begun before
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the age of the Internet with hypertext literature. Hypertext literature, or hypertext fiction, is a
genre of digital literature that is characterized by nonlinearity and hypertext links. Through the
use of these hyperlinks, readers -- more aptly called “users” in this environment -- arrange the
story as they move through the parts of the text without any preset order; you can think of
hypertext literature as a digital form of “choose your own adventure” stories. While the first
official hypertext fiction was published in the late 1980s, this electronic genre really took off in
the nineties and begot a storm of new digital theories of reader-author relationships.
Noted as the “new Gutenberg,” Jay David Bolter created an authoring and publishing
platform for hypertext literature called Storyspace. His involvement with the genre also includes
much writing on the impact of hypertext fiction on the literary landscape. In his paper, “Authors
and Readers in an Age of Electronic Texts,” presented at the 1994 Clinic on Library Applications
of Data Processing, Bolter explores the relationship between authors and readers in the context
of hypertext fiction. In an argument that can be applied to all digital texts, he writes that
“hypertext challenges our sense that any book is a complete, separate, and unique expression of
its author” (Bolter 7). The mechanics of digital authoring and publishing of hypertext, whether
on the Web or not, not only enable these texts to break out of their traditionally “static” mode,
but to be revisited, revised, and remade by their authors and readers alike, suggesting a new kind
collective work. Not only does this collectivity complicate the Romantic foundations of
copyright, but it redefines the readership within the digital environment. Bolter continues to
explain the role of hypertext in redefining collectivity and readership:
In hypertext, the reader assumes something of the role of a traditional author, that
is, the reader constitutes the text in the act of reading. In a hypertext of any
significant size, each reading and therefore each text is unique. By participating in
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the creation of the textual structure, the reader becomes both author and audience
at the same time. (10)
As the reader constructs the order and structure of the story in the act of “reading,” he is
embodying the role of author, at least in the sense that the reader is participating in the creation
of the finished text. Rather than subtract the “textual construction” function of the author, we can
view the author as the creator of a family of texts, each unique member of that family completed
by a reader-author. With these various roles that readers and authors adopt in the environment of
hypertext, the distinction between author and reader is complicated. The author continues to be
the author, and the reader continues to be the reader; there remains the distinction between
original (initial, rather than singularly unique) creator and subsequent users of the text. However,
certain aspects of authorship are present in both author and reader roles. In this context, we can
view hypertext as creating levels of authorship. However, while Bolter argues that hypertext
creates these levels “without suggesting that one level is more important or worthy than others”
(11), authors and author-readers carry radically different weight in the current system of
copyright. Arising out of the notion of the Romantic author, the U.S. copyright regime has very
little room for the collectivity that arises out of hypertext. The individual author receives
exclusive control over his original work while readers are limited in their “consumption;” readers
who “repurpose” a text would more often than not be charged with copyright infringement.
While hypertext fiction as it was first conceived of in the nineties did not take off as Bolter might
have imagined, the evolution of the author-reader relationship, as well as the intellectual property
concerns that arise out of that complication, have continued to shape the literary culture and
economy of the Internet.
Hypertext literature spawned a revolution of literary practices in both the creation and
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consumption of text. While the original form and pattern of hypertext fiction has all but fallen
out of popularity, the major components of the genre--hyperlinks, nonlinearity, levels of
authorship--characterize most user-generated content on the Web. The Internet itself is defined
by Bolter as a “physical embodiment of hypertext, with computers serving as nodes and cables or
satellite connections as links” (9). The Internet is one boundless hypertext anthology made up of
countless hypertext chapters and passages. Authoring and publishing platforms enable digital
authors to add to this great anthology and access the entire audience of the Internet. Blogs, in
particular, embody many of the characteristics of traditional hypertext. Where the hypertext
fiction story is broken up into hyperlinked sections or, more aptly, pages, a blog can be
considered a hypertext book, with each blog entry as a hyperlinked chapter. Each individual blog
“chapter” may link to other blog posts by the same author or to content from other blogs or
websites; in this way, the blog is also a prime example of intertextuality. Blog posts are also
published in reverse chronological order; that is, the most recent post appears at the front, or top,
of the blog page, and all others appear after it. While the reader can choose to read the posts
linearly--in either chronological or reverse chronological order--the blog platform does not
enforce linearity like printed text does. Readers have the option of reading any or all of an
author’s blog posts in whatever order they want. While the blogger keeps more control over the
construction of the post or “chapter” content than the hypertext author does of his “story,” the
reader continues to construct his unique reading experience of the digital work as a whole. And,
as the blogger will presumably continue to publish posts, the reader will reconstruct the
“anthology” differently each time he returns to the site. Such ephemeral, dynamic authoring on
the reader’s part is very difficult to fit within the scope of contemporary copyright. Not only does
the collective nature of the work escape the individual assignment of a unique copyright, but the
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redefined difference between author and reader complicates the balance between the copyright
owner and the once-distinct public. Blog readers, like most other digital and hypertext readers,
take on the role of “creator” alongside the primary authors of the text and achieve great
importance in the digital literary market.
In addition to hypertext, another feature of digital writing of blogs in particular, furthers
the interaction between authors and readers as well as between readers and the cultural economy.
Similar to the marginalia that medieval scribes contributed to copies of the author’s manuscript,
the option to leave comments on the digital content increases the reader’s involvement in the
text. Unlike inked comments in the margins, however, comment threads are more than static
content. While the digital author has the option to remove unwanted feedback from the comment
thread, the comment thread contributes to the whole digital work as a dynamic conversation
between the various contributors. In this way, comment threads also serve to connect the
community surrounding the author and the work. Although I like to think of comment threads as
being similar to medieval marginalia, the relationships between the players are very different.
Medieval authors and scribes rarely came into contact, and authors would never know what
“comments” a particular scribe might have left. Scribes were very removed from the author, and
so their feedback and contributions served to undermine the authority of the author. Digital
authors, on the other hand, can and often do read the comments left by their digital readers, who
intend for the author (or other readers) to read them. Even when the feedback is negative, the
reader isn’t simply undermining or refusing the author’s authority over his content. Rather, he is
questioning the author’s ideas, knowledge, opinion, and writing. And the author has the option to
respond. Reader—and author—comments are more than contributions to the text; they are
contributions to the conversation surrounding the text. Readers engage with the author, with the
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text, and with other readers in a way that is all but impossible to replicate outside of the digital
sphere.
The digital sphere is also home to sites that have all but removed the author from the
digital text; in some corners of Web 2.0, the author is dead. Wikis, in particular, demonstrate a
more pure form of the conflation between author and reader by allowing all users to edit its
content. The work of an individual author is almost entirely replaced by the collaboration and
contributions of readers. Wikis often function as collaboratively-constructed reference works for
linked information. In opposition to the Romantic, possessive individualist foundations of
copyright, wiki-communities such as Wikipedia often value information-sharing and
responsibility rather than individuality and originality. Launched in 2001, Wikipedia is one of the
largest and most popular general reference works on the Internet, with 26 million articles in 286
languages and a readership estimated at 365 million users worldwide (“Wikipedia”). Authorized
editors patrol Wikipedia’s vast collection of articles for irresponsible activity from their users; in
other words, they spot and correct inaccurate information or abuse of their free and interactive
services. Despite this regulation, the open, collaborative nature of the reference work often
undermines Wikipedia’s value as an authority; many students are discouraged from using the site
as a credible source. However, the site features an internal system of valuation that indicates
which articles carry more value. Editors review candidate articles for “accuracy, neutrality,
completeness, and style,” and articles that meet the criteria are marked as “featured articles” and
are used as examples for writing other articles (“Wikipedia: Featured Articles”). While the
authority and influence of Wikipedia articles are assigned by mediators rather than the users of
the site, the cultural capital of Wikipedia as a whole is generated by reader-authors as they
continue to interact with and promote the site. Hundreds of thousands of new users register each
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month, and while a minority of users are regularly active, there remain hundreds of thousands of
users who voluntarily make significant contributions to Wikipedia with little or no
acknowledgement (“Wikipedia: Wikipedians”). Despite, and perhaps because of, this huge
number of contributors, an individual author fails to emerge. Instead, every reader has the
potential to become one of many authors, each engaged in a conversation with the text as a
whole and with every other reader-author. Not only has Wikipedia’s free and interactive service
influenced the wiki genre, but the reader-author paradigm that characterizes the site continues to
disrupt the traditional relationships between author, reader, text, and property online.
The reader’s involvement in digital texts, both in the ephemeral construction of the
work’s structure and in feedback contributions, decreases the separation between passive reader
and individual author, between literary property owner and the public. While we still recognize
the original creator(s) of the digital text as the proper author of the text, the new paradigm of the
active audience and the conversations contributed to the text turn the work into a product of
collectivity. Regarding wikis, chatrooms, forums, and I presume blogs, Bayne comments on this
shift from individually to collectively produced texts: “Within such collectively produced texts
authorship is reduced as an issue, subordinated to the rapid murmur of exchange among
cyborgised entities of ambiguous gender, geographical location and social status” (19). While I
do not agree with the tone Bayne uses in her discussion of the “subordinate...cyborgised
entities,” I do agree that the issue of individual authorship online is greatly reduced in favor of
collectivity. While reader-authors usually do not supply much information about their real name,
let alone their location or social status, the lack of defined identity does not seem to lessen the
user’s involvement in and contribution to the text. Collective authorship of intellectual property
already complicates the Romantic basis of our copyright system. The undefined collectivity
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surrounding digital texts such as blogs complicate this issue even more so as ownership of the
work cannot be easily or equally assigned to the potentially vast array of contributors. While
copyright laws currently place more importance on the owner of the work, digital communities
seem to be more concerned with the generation of social value in the literary market.
Accruing Value
In addition to this new consumption-production paradigm of collective digital text, digital
readers simultaneously consume and produce social value, i.e. cultural capital, for the author and
his text; this, again, is nowhere more explicit than in the blogosphere. What I mean by
“consuming” and “producing” value can be most easily explained by the auction scene. While
the seller, or auctioneer, puts forth a base value for the work, the final valuation is up to the
potential buyers. These buyers perceive the value that others place on the item during
conversations about the piece as well as during the bidding wars, and they merge the perceived
value with their own initial valuation of the piece to come to a conclusion about the “true” value
of the work. This “true” value, of course, has been socially constructed by the bidder’s
consumption of others’ valuation and their own production of value. Readers may not be bidding
on the author’s text, but they certainly consume the value that others perceive in the process of
coming to their own conclusions about the work’s value. Instead of listening to the bidding wars
and the conversations of other potential buyers, readers are listening to the conversations that
take place online. These conversations exist in the form of comment threads, “likes,” relinking,
and other forms of user feedback. Popularized by blogs, such feedback and peer interaction
platforms offer readers an outlet for communicating their perceived value of the text to other
readers and potential audiences. While readers will ultimately come to their own conclusions
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about the work, existing positive or negative feedback might influence their enjoyment of and
initial decision to read it. In addition, many authoring and publishing platforms support a ranking
system based on such user feedback. As digital works receive more positive comments or
“likes,” those works rise in the ranks and are displayed more often on the platform’s main page.
This, in turn, generates a greater audience and thus popularity, or cultural capital, for the work.
This is true even for sites whose individual author is absent. The social news site, reddit,
belongs to that category of Web 2.0 that has all but removed the difference between reader and
author. Described as “an engine for creating communities,” reddit enables users to create
“subreddits,” online communities similar to forums or comment threads, each “with its own
purpose, standards, and readership” (chromakode). While a subreddit may be created by a single
post by an individual author, every subsequent reader of that post has the ability to contribute to
the community by commenting and voting on the posted contributions of other users. This voting
system is used to organize the millions of posts and comments on reddit; a post’s rank determines
its position on the subreddits’ pages and on reddit’s front page. Not only is the content created
primarily by readers, but the cultural capital accrued through reddit’s ranking system is generated
and communicated by readers’ interaction with the subreddit communities. As one redditor
writes, “reddit is proof that everyone’s contributions, from creating a community to simply
clicking a vote button, can have a massive effect” (chromakode). Through their interaction with
the work as well as with each other, digital readers produce value and then communicate, or
market, that value to other potential audiences. By communicating the constructed cultural
capital of the work, the audience markets the author and the author’s text.
The sharing of digital texts is another way in which readers promote the work among
wider audiences. Through direct sharing with a targeted group of peers or indirect sharing
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through reposting or reblogging, readers can not only share their appreciation for a work but
directly affect the popularity of a work. By reblogging or republishing an author’s work on their
own sites (and as long as they do not remove the original author’s name from the work in an act
of plagiarism), this increases the dissemination of, and hopefully audience of, the text. This free
distribution of the author’s work continues to function as a form of marketing in the cultural
economy. In addition, the links that are automatically generated from peer-sharing and
reblogging add to the original publication’s Search Engine Optimization, or the site’s visibility in
a search engine’s natural search results, which is often based on the number of such backlinks.
For most search engines, including Google, the greater number of backlinks a site contains
means the earlier and more frequently the site appears in the search results list. This usually also
means a greater number of visitors the site will receive from the search engine’s users. Those
visitors that like what they see might stick around and become part of its value-generating
audience. Popularity, an important currency in the cultural capitalist market, relies on the
perception and action of this audience. Although the huge number of digital publications and
blogs makes it difficult for an individual blog to stand out as valuable, the ease of disseminating
the work and of communicating individually produced value enabled by the Web make this feat
hardly impossible.
Digital marketing in the form of distribution does not work in the analog world, as the
sharing of printed text disseminates a finite collection of the work. The value of printed media is
based, in part, on the costs to reproduce the product. On top of this, scarcity, perceived as rarity,
of printed media translates into greater economic value per available item. The dissemination of
such works, both in the physical world and online, decreases its market value. While most
private dissemination online has little impact on a company’s financial gain, “a large number of
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users, each using the work individually for personal purposes, can overall displace the
marketability of the copyrighted work” (Elkin-Koren); as the copyrighted and marketed work
becomes more freely available online, consumers are less likely to pay companies for use of the
media. Therefore, media corporations tend to view free distribution more as a negative rather
than positive impact on the market value of their products. Copyright, based on such traditional
economics, works to protect these corporations’ interests by preventing unauthorized distribution
of media, or pirating. What copyright law does not account for, however, is the social value of
abundance. On the Internet, the sharing of digital texts only increases the number of works
available. Because there is practically no cost to reproduce these texts, the value of the work
comes not from an economic standpoint, but from a social one. Not only does this support openaccess movements and community learning and interaction, but it also fosters “abundance
economics in which value is conferred through peer evaluation and gifting” (Diakopoulos et al.
134). Like reputation and gift cultures, the cultural economy of the Web is an adaptation to
abundance economics in which the transfer of social value supports competition within a social
and economic market. While copyright law attempts to protect the economic interests of digital
authors, it does not consider the social value that is conferred through active readership.
The role of readership in the cultural economy is important not only for the marketing of
the digital work, but for the digital author as well. If the individualism and originality of
Romantic authorship has all but disappeared in the digital author, the marketing value of the
author has certainly remained. While we are more aware of the collective and derivative nature
of the author, we still like to think of the author as the “face” of the text. Authors have been using
this thought to achieve distinction since the eighteenth century, when the literary marketplace
became suddenly saturated with printed products. As explained by Pisac, “The authorial aura of
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divinity obscured marketplace realities. Standing out from the crowd became a sign of artistic
quality at a time of rapid literary production” (Pisac). A parallel market, saturated with digital
texts, now exists on the web. Digital authors (usually) do not rely on an “aura of divinity” in
order to stand out, however. Popularity, i.e. distinction, on the Internet seems to rely on reader’s
individual assessment of the author’s work, the communication of the perceived value through
reader-generated-marketing, and the resulting increase in cultural capital.
The cultural capital of the digital author, however, does not stem entirely from the
perceived value of his work. While the “face” of the digital author certainly appears in his text-voice, ideas--the author figure as a marketable brand is created through the reader’s perception of
and interaction with the author as an individual. This is another way in which what I describe as
the cultural economy differs from a gift economy; while the cultural capital of the author can be
communicated amongst the reading public, the value is not part of any explicit exchange as it is
for the product, i.e. the digital text. Rather, cultural capital for the figure of the author is a result
of author-reader interaction. Pisac explains that “in the branding process, authors appear as
authentic personalities and cultural brokers” (Pisac). The casualness of the Internet and the
conversations that exist between writer and reader help to establish the author as an authentic
individual; his digital persona is as real as his audience. In addition, as the collective nature of
authorship becomes more obvious online, the author contributes his authority as a cultural broker
to his “branded” identity. In contrast, analog works do not seem to support this continuous author
branding process. Printed authors and their audience are much removed from each other, the
printed volume being the singular instance of direct communication between them; I hesitate to
call it a conversation, as the reader would be hard-pressed to continue the dialogue. A closed
door, in the form of a static text, exists between the writer and his reader. Authoring and
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publishing platforms online, on the other hand, have opened the doors between the digital
authors and their digital audiences by enabling direct communication in the form of comment
threads, reblogging, and other forms of feedback. This enables the author to continually build his
authentic “face” or his brand through his writing in addition to the branding that takes place in
more traditional forms of marketing; the author has more opportunity to incorporate more of his
persona in the “anthology” or site as a whole. In addition, the reader has more opportunity to
engage with the author and recognize and value him as a figure, rather than simply a name.
In many ways, the digital author can be considered more than a figure, but a figurehead
for the community surrounding his work. Turning to the digital present, Pisac points out that,
although the author still often considered the sole “owner” of the work, “[digital] writers are
increasingly perceived as belonging to and representing their ‘tribe.’ Through online
communication, their texts are not only open for various interpretations but are influenced by
readers’ ideas and intentions” (Pisac). The tribal audience, while recognizing and valuing their
own involvement in the work, perceive the author as the leader of the tribe. This theme can be
found not only among individual blog authors and their followers, but for distinguished authors
within an entire form or genre of digital publishing. For example, blog authors who have gained
a considerable following may be recognized as leaders of a certain blog genre; they are not only
recognized as being the authors of highly valued texts, but they also can influence or even create
the genre of that digital writing. Over ten years after she chronicled her attempt to cook through
Mastering the Art of French Cooking, Powell is still considered one of the leading authorities in
food-blog writing. Believed to be one of the first “cook-through” blogs, The Julie/Julia Project,
is thought to have popularized the sub-genre of chronicled attempts to complete a cookbook.
Powell’s distinctively personable blogging style and focus has influenced thousands of new
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cook-through blogs. Characterized by the combination of cooking adventure story and personal
diary, the cook-through blog has become an immensely popular sub-genre of food blogging in
recent years (Newberry); Saveur, a distinguished cooking magazine, even included a cookthrough blog category in their annual food blog awards (“2011”). As a tribal leader, Powell has
not only gained a massive audience for her blog and later, her book, but has influenced the
development of a new, popular sub-genre of food blogging. The cultural capital that such tribal
leaders carry—recognition, popularity, authority, influence—only increase in symbolic worth as
their tribes continue to provide peer-based marketing for their texts and their author brand. The
social, interactive “tribal leader” has replaced the figure of the “lone creative genius” as an
author rich in cultural capital.
Unfortunately, popularity and authority alone do not satisfy the digital author’s economic
needs.
Bourdieu explains cultural capital as symbolic worth, but I would argue that the real
value in cultural capital is its potential to turn into gold. Although current notions of literary
property and copyright law do not take into account the social value of the author and his text,
cultural capital plays a role in what copyright does protect: the market value. When a digital
author and his work gain enough authority, enough distinction, enough popularity, his combined
cultural capital can be smelt into economic profit.
Writers have the option of transforming their cultural capital into economic capital on
their own through self-publishing. E-books and print-on-demand are quickly becoming very
popular options for digital writers looking to become published, profit-making authors. Aside
from producing a digital text and fixing the price themselves, authors have the option to package
and market their literary property with big-name booksellers without worrying about query
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letters or worse, rejection letters. Amazon, for example, offers two different self-publishing
programs, CreateSpace and Kindle Direct Publishing. Both programs advertise themselves as
free, easy-to-use publishing tools that let the author “maintain complete creative control,”
including copyright ownership, distribute e-books throughout Amazon’s global empire, and earn
a profit from their high royalty rates.
Self-publishing programs and self-publishing itself have experienced a boom in recent
years, producing a flurry of e-book bestsellers and book deals with major publishing houses for
some digital authors. The New York Times bestseller list has seen a rise in self-publishing
success; the bestseller list for the last of week of April 2013 featured three self-published novels
of the top ten print and e-book fiction publications (“Bestsellers”). Hugh C. Howey has made the
New York Times best seller list several times with his self-published novel, Wool (Howey).
Howey first posted his manuscript on his website in July 2011. While he turned his attention to
his other writing projects, digital readers took notice of the then-stand-alone novelette. Word
spread, and “newfound fans clamored for more” (Curran). Six months later, Howey published
the expanded novel through Kindle Direct and CreateSpace. Soon after, Wool and the subsequent
sequels were earning awards and appearing on various bestsellers lists, even reaching the number
one spot on Amazon.com. Despite his continuing financial success through self-publishing,
Howey signed off a book deal with Random House International in 2012 in order to reach a
greater international audience (Curran). His success can be traced back to his continued
awareness of the power of readership; as his initial fandom spread throughout the Web, his
popularity not only prompted his self-publishing feat but continues to influence the financial
success of the e-book series. And Howey is aware of this, attributing his accomplishments to his
audience: “…your demand and support made this happen, not booksellers, not publishers, and
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not me” (Howey). Although self-publishing programs and self-publishing itself have experienced
a boom in recent years, success stories like Howey’s seem few and far between when compared
to the thousands of digital authors still scrambling to find an audience. Those who do achieve
self-publishing greatness often “cash in” their popularity and prestige as online authors and
market their new e-book to their established tribal audience; in other words, they have
successfully turned their cultural capital into economic capital.
However, self-published texts do not carry the same cultural worth as those published by
an established press. Although self-publishing is often a great option for budding authors and
writers, there is very little, if any, selectivity in the process. In lieu of talent or quality of work,
writers can pay a small fee to have their work packaged and distributed. Practically anyone can
become a “published” author, and so for many established authors, the practice “smacks of the
vanity press” (Phillips 53). Because a self-published author has not necessarily met any selective
criteria before publication, the cultural value of self-published text does not necessarily follow
the same exchange rate with analog profit as mainstream publications.
Traditional book publishers have helped to set the exchange rate between cultural capital
and economic potential. And as battered by the Internet as these companies appear in the media,
publishing houses still carry a lot of symbolic, in addition to economic, capital as established
brokers of culture. Phillips quickly traces the origins of their established value:
An established or well-known publisher offers the element of selection, which
provides a mark of quality. Associated with that is the value of the publisher's
brand, developed through its range of authors and products. Given the variable
quality of material available on the Web, these are important influences in the
author's mind. In addition there remain the attractiveness of print publication, with
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the author having a physical object to show for their efforts, and the efforts the
publisher puts into promoting the work. (53)
Publishing houses offer what self-publishing does not: a mark of distinction. While digital
authors can generate a great amount of cultural capital for themselves on the Internet, publishers
can always add more value, particularly in credibility. Perhaps more importantly, publishing
houses can offer the marketing and publicity associated with their often-global empires. In
addition to the credibility and authority gleaned from the publishing house itself, authors also
gain a greater audience, and therefore popularity. This time, of course, a greater audience means
not only increased cultural capital for the text, but also economic profit for the author.
For the academic author, however, the cultural capital gained by traditional publishing is
more important than the little economic value assigned to academic publications. While cultural
capital has little impact on the analog life of the average digital author, the mainstream
perception of publications is especially pressing for scholarly writers and academic authors,
whose publications play a large part in their career. The perhaps-dated perception of the
complete, static text as the valuable product of work still has its hold on much of the academic
community. “Only at the point of completion, after all,” explains Fitzpatrick, “can our projects at
last attain their final purpose: the entry of a new item on the CV. This emphasis on the academic
version of the bottom line--evidence of scholarly ‘productivity’ that must be demonstrated in
order to obtain and maintain a professional appointment” (10). In most cases, scholars must
publish a completed manuscript with a recognized press in order to gain any recognition for the
work in the “real” world. Although an academic’s work may be available and recognized as a
valuable authority online, such cultural capital established on the web has a very weak exchange
rate with cultural capital in the analog academic community. The community assumes that the
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text has met certain criteria before its acceptance by the press and that its publication is a sign of
authority and credibility. Because academic books do not make a lot of money for their authors
or their publishers regardless of any initial value on the Internet, the value that is accrued from
commercially published work is awarded by means recognized by their institutions. While the
average digital writer gains cultural capital primarily through the Net and then seeks economic
gain from traditional publishing, academic writers rely on traditional publishing for success
within their institutions.
Getting picked up a publishing house, however, is hard. Whether because publishers are
more concerned about financial risks, or because there are more titles already published, or
because there are more authors seeking publication, it is ever increasingly difficult for authors to
get their work published commercially. In some ways, publishing companies are not very
different from their eighteenth century predecessors. The Stationers’ Company also retained
much control over the literary marketplace; however, as the literate public demanded a higher
quality of product, the Company was forced to reconsider the author, and specifically the digital
author, as a valuable player in the media market. Modern publishing houses used to operate
within a system of “internal subsidization and long-term investments” (Wirten 81). In other
words, publishers would attempt to publish a book that is guaranteed to be successful in order to
mitigate the potential costs of publishing more “risky” works that, while potentially damaging to
their bottom-line, would positively impact the company’s overall image. The long-term
investment in a best-seller would hopefully balance out any risky publications. Today, however,
publishing companies are sticking with low-risk, mass-produced books that “are by and large
expected to meet much higher profit margins” (Wirten 81). In order to accomplish this,
publishers are again turning to the author as a valuable figure in the marketplace. By embracing
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the existing relationships between author and audience rather than controlling or mediating
between them, publishing companies hope to identify digital texts that have already garnered
much cultural capital. Publishers hope to mitigate the risk of publishing a “doomed” author by
selecting a digital author who already has an established readership online. With an extensive
online presence, the digital author is assumed to have successfully marketed his work and gained
the approval of potential consumers, markers of what publishers hope will be a “bestseller.”
The publishing practice of mining bestsellers from the digital creative market has become
extremely prevalent, and successful, in the last several years. Perhaps one of the more notorious
success stories, the celebrity of Fifty Shades of Grey originated as fanfiction online. Using the
pseudonym “Snowqueen’s Icedragon,” E.L. James quickly gained a large online fan base for her
racy adaptation of Stephanie Meyer’s Twilight series, initially titled Master of the Universe
(Bridle). After distancing the story from the Twilight saga, James published the expanded
version, Fifty Shades of Grey, as an e-book and print-on-demand paperback in 2011 with the
Australian independent press, Writer’s Coffee Shop; the two other books in the series quickly
followed. As noted by The Atlantic,
From what could hardly be a more obscure launch, the books began to gather
momentum on the Internet through blogs and social media so that, by January
2012, chatter among its readers reached places like suburban Connecticut, and a
group called DivaMoms.com on Manhattan's Upper East Side invited James to
make a visit. (Osnos)
By March, Random House had recognized the potential of Fifty Shades and had begun
negotiating a book deal with James that could be valued in the millions. James’s novels would go
on to sell more than 25 million copies in paperback and e-book in the first four months (Osnos).
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While E.L. James is one of the first multi-millionaire authors to have humble beginnings in
Cyberspace, the number of successful blog-to-riches stories is increasing as publishing
companies continue to recognize the fertility of the digital creative economy. The analog literary
market is quickly merging with the digital market in the process of negotiating the new
importance of digital readership. As publishers and other mediators recognize the cultural
economy online as a viable source of economic profit, I believe the influence of digital readers
will grow and shape the global literary market.
Conclusion
Historical trends in the conception of technology and publishing have alternated between
social value and economic value as the driving force behind the definition and protection of
literary property. While Internet culture is leaning away from a focus on economic value and
shifting towards a focus on social value in literary property and publishing, copyright law
continues to situate itself within its original context of the economics of the Romantic author.
The realities of Internet authoring and publishing, however, refuse the fantasy of Romanticism.
Dynamic and changeable digital text has replaced the static text of print that makes defining
literary property and copyright manageable. The explicit intertextuality present in the remix
culture of the Web, in addition to the collectivity that exists in the production of digital texts, are
working to suppress the idea of the author as a unique, isolated genius, an idea that has served as
the foundation for the notion of “natural” copyright ownership. By complicating the Romantic
notion of the individual, naturally unique author as well as the traditional notions of literary
property, Internet publishing transcends the theory and practice of modern copyright. Where
copyright law is designed to regulate and protect the traditional economics of creative work, I
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argue that the design of the Internet instead fosters an economy of social value.
While the gift economy model supports the return of social value in the literary market, I
find that it does not account for market competition and the complex role of readership in
generating both social and economic value. Rather, what I call the cultural economy consists of a
compromise or, perhaps more aptly, a co-dependence between social and economic value. The
cultural economy of the web is based on the generation and exchange of cultural capital, or
social assets such as knowledge, skills, and influence, that promote social mobility and influence
the gain of economic capital. For digital authors and their works, this mostly takes the form of
authority and popularity. Historically, value was assigned to literary property by the mediators of
the literary market, namely the Church, the Stationers, and more recently the publishing houses.
On the Internet, I find that power rests in the hands of the public. Digital readership involves
more than meaning-making; it involves value-making. Social value for digital authors and their
text are generated through readers’ perception of the quality and authority of the creator and his
creation. By communicating their individual assessments in user feedback such as comments,
“likes,” and reblogging, readers compound the generated social value. In addition, by sharing the
literary work itself, readers market the perceived value and the text as a package, increasing the
potential audience and popularity of the author. Through their interaction with the text, the
authors, and with their peers, digital readers have become an important facet in the cultural
economy of the Web.
While cultural capital alone functions as purely symbolic value, I argue that it’s true
worth is in its potential to generate economic profit. Because cultural capital takes the form of
social assets such as authority and popularity, digital authors with great cultural capital are
presumably more successful when it comes to selling their works. With a higher position in the
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digital hierarchy, such an author would be able to market his publications to an already
established and appreciative audience. Publishing companies have picked up on this trend and,
hoping to minimize their risks and maximize their profits, are beginning to pick their next
“bestsellers” from the elite cultural capitalists on the Web. As “real-world” corporations,
publishing houses try to work alongside contemporary copyright legislation in order to protect
their valuable literary assets. When these assets originate in the dynamic, collective environment
of the Internet, however, things become complicated.
Copyright law is designed to protect the economic value of a unique work belonging to
an individual entity. However, the digital literary market that I have explored supports neither the
idea of a unique body of text nor an individual owner. Above all, the economic interests of digital
authors exist as potentials. The valued asset online, I have argued, is cultural capital. In this
cultural economy, the divide between private ownership of and private access to literary property
is becoming more than unbalanced; it is disintegrating. Where copyright law fails to address the
new-found power of readership, digital authors must find new ways to protect their creative work
and their accrued social assets in the cultural economy of the Internet.
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CONCLUSION
The Internet has revolutionized the way in which many of us live our lives, from business
and commerce to education and communication. It is no surprise that the vast array of Web
technologies have also changed the way authors and readers interact with literary property and
with each other. Unfortunately, legislation does not always keep up with the world it is assigned
to regulate and protect. I find that contemporary copyright, in particular, has very little place in
Cyberspace.
With a renewed focus on the social value of literary property, the nature and structure of
the Internet seems to support a culture of open-access, which is often at odds with contemporary
copyright. By exploring the ways in which Web technologies allow greater user participation in
the production and publication of digital literary works, I found that the traditional roles of
author, reader, and mediator are being rewritten within the context of Cyberspace. The
accessibility of authoring and publishing platforms online has produced a new generation of
authors whose relationships with their texts and audience are signaling an end to the Romantic
notion of authorship. I argue that this traditional notion of authorship as “naturally” individual
ownership of unique literary property is being replaced by a new theory of digital authorship.
Not only does the digital author have a more influential position in the literary market than he
has historically, but the intertextuality and collectivity evident in digital authorship complicates
the Romantic foundation of contemporary copyright. In addition to investigating the changing
relationship between author and text, I explored the many ways in which Internet technologies
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affect the relationships that digital readers have with authors, texts, and other readers. I found
that the passive reader of the past has been replaced by an active participant in the construction
and distribution of literary property. Digital readership has not only a stronger connection with
digital authorship; but it plays a vital role in the digital literary market.
While the digital literary market evolved from the economic capitalist system that
supports copyright, I argue that the new relationships between digital author, reader, and text
foster a new economic system of creative works. In what I describe as the cultural economy of
the Web, this new system of valuation is based on the social relations and interactions between
author, reader, and text. In this cultural economy, the literary work and its creator are valued by
their authority and popularity. As digital readers participate in the production and distribution of
literary works, their assessment of the author’s authority and popularity turns into cultural
capital—the currency in a competition of social influence. Although the acquisition of cultural
capital is based on social relations and the exchange of social value on the Web, the importance
of cultural capital on the literary market relies on its potential as economic value; literary works
that are rich in cultural capital have a greater potential for financial success as a self- or
mainstream publication. I also argue that although publishing houses, as historical mediators,
still retain much of their cultural power, the functions of digital authorship and readership have
much greater influence on the literary market than ever before. The Internet has not only
redefined authorship and readership; but it has fostered a new system of social and economic
value within the literary market. Contemporary copyright can account for neither these new
author-reader relationships nor the emergence of a cultural economy of creativity on the Web. I
believe a new system of regulation and protection must be designed to address the needs of the
digital literary market.
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The inability of current copyright law to fit into the landscape of the Internet has not gone
unaddressed. One of the leading voices in the crusade for a better system of copyright is
Lawrence Lessig, Harvard professor, political activist, and founder of Creative Commons. Lessig
has published several books, essays, and speeches criticizing the scope and practice of
contemporary copyright law, especially in regards to the Internet. In Free Culture, Lessig
explains the need for copyright reform in response to the extreme backlash of corporations
against the prevalence of digital copyright infringement. He explains that the Internet’s “initial
architecture effectively tilted in the ‘no rights reserved’ direction,” and as a result, “rights could
not be easily controlled” (276). Commercial and legislative responses to this issue provide the
foundation for Lessig’s anxiety; He worries that changes in legislation and protection measures
will produce a permission culture: “The ‘cut and paste’ world that defines the Internet today will
become a ‘get permission to cut and paste’ world that is a creator’s nightmare” (Lessig 277).
Despite his criticisms of the current copyright regime, Lessig asserts that he is neither antilawyer (“at least when they’re kept in their proper place” (192) nor against intellectual property
rights protection. Recognizing a necessity in its function, he writes that copyright law “is a
regulation that benefits some and harms others. When done right, it benefits creators and harms
leeches. When done wrong, it is regulation the powerful use to defeat competitors” (194). In
order to address both the need to protect author’s rights and support innovation, Lessig suggests
that a happy medium can be reached by reducing the scope of copyright law.
The solution outlined in Free Culture falls into the last of the three categories Lessig
suggests are the primary arguments in the digital copyright controversy. He claims that “the
debate so far has been framed at the extremes—as a grand either/or: either property or anarchy,
either total control or artists won’t be paid” (Lessig 276). The two ends of the spectrum argue
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either for “all rights reserved” or “no rights reserved” codes of copyright. Corporations and U.S.
legislation support the expansion of copyright law, believing that “all rights reserved” poses a
possible solution to the prevalence of digital copyright infringement. Others, such as the
Copyleft movement, argue for the opposite: the retirement of copyright law to develop an openaccess, “no rights reserved” culture. Lessig and the Creative Commons pioneer the third option:
the belief in “some rights reserved” being the happy medium between ownership and access.
“All rights reserved,” “no rights reserved,” and “some rights reserved” arguments outline the
ways in which copyright might play a role online, each with different benefits and consequences
for the online community. In particular, I explore the ways in which the primary solution of each
argument supports or suppresses the cultural economy as a successful model for the digital
literary market. While each argument deals with the changing relationship between author and
reader in different ways, I argue that none of them fully address the importance of readership in
the social as well as economy value of digital literary property.
The biggest and most immediate backlash to the controversial shifts in the theory and
practice of copyright on the Web is the “all rights reserved” approach currently supported by
U.S. copyright law. The Internet as a publishing and distributing medium does not distinguish
between copyrighted work and that which belongs in the public domain. This has caused a lot of
anxiety for the owners of copyrighted material, media corporations in particular, who fear the
effects of piracy and copyright infringement on the market value of their intellectual property.
Lessig argues that, “threatened by the potential of the Internet to change the way both
commercial and noncommercial culture are made and shared,” many corporations, record
companies in particular, united in an effort to induce lawmakers to revise the scope of copyright
law as a way to protect their interests (9). In 1993, President Clinton formed the Information
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Infrastructure Task Force (IITF) to examine the implications of intellectual property on the
Internet. The task force reported in 1995 that “although technology had gotten too far ahead of
copyright law, there is no need for a new law” (Elkin-Koren). Instead, their report suggested
several revisions that would more closely align copyright law with the desires of major copyright
holders by restricting public access. In particular, the report broadly interpreted the definition of
the right to copy. Although the transmission and viewing of information through an Internet
browser requires the copying and saving of the information file, the report suggests that the
“unlicensed creation of any digital copy, even if ‘fixed’ only in RAM, constitutes a copyright
infringement” (Elkin-Koren). With the belief that this copy may be easily viewed, reproduced, or
shared without consent of the copyright owner, congress revised the scope of copyright in the
Digital Millennium Copyright Act (DMCA) of 1998. Addressing recommendations from both
IITF and the World Intellectual Property Organization (WIPO), the DMCA criminalizes the
circumvention of copyright management and protection technologies designed to prevent access
to and copying of digital material, such as Digital Rights Management (DRM) software (U.S.
Copyright Office 3). Because of the “unlicensed copies” made during digital transmission, any
use of digital material that circumvents DRM locks would infringe the copyright. This
amendment has sparked controversy between those who feel it is necessary to prevent copyright
infringement and piracy online and those who feel it wrongly expands the scope of copyright
law.
While the DMCA has supposedly done little to stop Internet piracy, the anticircumvention provisions have dramatically shifted the power relations between copyright owner
and the public. Due to the copies made during digital transmission, circumventing any DRM
locks, even for non-infringing fair use, falls under the scope of copyright infringement. Lessig
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argues, in other words, that “because of this single, arbitrary feature of the design of a digital
network…each use is now subject to the copyright, because each use also makes a copy” (143).
This is a large leap from the traditional copyright of print materials. While copyright law
regulates the first sale or transmission of a book, any subsequent exchange or use of the book
falls outside the scope of copyright; reading a printed book does not require reproduction of the
text and therefore is not regulated by copyright owners. Due to the process of digital
transmission, however, the process of reading an e-book does fall under copyright law. As a
result, copyright owners are provided with the right to control every transmission and use of their
protected works across the Web (Elkin-Koren). The “all rights reserved” response not only
provides copyright owners with near-absolute control of their literary property; it severely limits
public accessibility to the pool of creative works online. While authors, still defined as individual
creators of unique works, have greater control and protection over their literary property, reader
participation in the construction and valuation of digital texts is severely limited. By expanding
the scope of traditional copyright, I believe recent amendments to U.S. copyright law ignore the
changing relationships between author, reader, and text as well as the importance of readership in
the digital creative economy. Strictly enforced, I believe that such forms of “all rights reserved”
limitations would cripple the cultural economy of the Web.
The other end of the Internet copyright controversy is the “no rights reserved” party.
Favoring open-access culture, this approach supports the retention of all but the most crucial
aspects of the scope of copyright, particularly the granting of modification and redistribution
rights. Creative groups seem to support this reduction in copyright as a way to negotiate the new
roles of authors online while fostering a creative environment. Copyright rhetoric supporting the
“no rights reserved” solution draw similar conclusions to what I found in exploring digital
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authorship: “Copyright is a consequence of the romantic conception of authorship; romantic
authorship is dead; therefore, copyright is (or should be) dead, too” (Ginsberg 151). In other
words, the recognized death of the romantic author has produced a demand for a new basis
literary property protection. Recognizing that a complete absence of copyright would leave the
creative economy in disarray, “no rights reserved” solutions attempt to remove all but the most
crucial elements of copyright in order to support an open-access culture while simultaneously
protecting the rights of creators and users. Leading the “no rights reserved” crusade is the
copyleft movement. A play on the word “copyright,” copyleft licenses enable authors to place
their works in the public domain while requiring that all modified versions of the work remain
free and accessible as well. In other words, “anyone who redistributes the [work], with or
without changes, must pass along the freedom to further copy and change it” (“What is”).
Authors have the option of giving up all ownership rights and placing their work directly in the
public domain; while this allows others to share and modify the work, this also allows others to
strip the original freedoms of use and redistribute the work as a commercial product. By
requiring continued accessibility to the work in all modifications, copyleft licenses work to
guarantee “that every user has freedom” (“What is”).
The “no rights reserved” basis for copyleft supports the extension of open-access culture
online by recognizing the importance of accessibility to the creative economy. The guaranteed
accessibility of both redistributed and modified versions of creative works supports innovation
and creativity as it is found in the remix culture of the Web; users are free to reuse and distribute
creative works without fear of copyright infringement. I believe this also fosters greater
accessibility to and interaction with literary property which are essential to the roles of
readership in the digital creative economy.
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Although copyleft supports the idealist world of open-access, not all authors find the lack
of control appealing. Some may not want their works to enter into the unregulated public domain
as a continuously collaborative project but would prefer “credit for their creations” (Ginsberg
156). While copyleft supports the generation of social value for author and text as it is accrued
through reader engagement and communication, I believe the lack of defined limitations of use
and ownership under “no rights reserved” licenses suppresses the potential financial gain that
ultimately defines the value of cultural capital. Copyleft requires freedom of accessibility but
does not limit the ways in which derivative authors reuse the material or reassign authority.
Without the reserved rights of attribution or original ownership, authors lose the ability to protect
their work from plagiarism. Plagiarism harms both the potential social and economic value of an
author’s cultural capital by introducing copies or derivatives of works without attributing them to
the original author; the connection between reader-generated value of the text and the author is
damaged. The “no rights reserved” approach to licensing creative works may support the
development of open-access culture, but I find that copyleft suppresses the potential of economic
profit for authors that results from reader-generated social value. Lessig declares that “a world
without formalities harms the creator” (250); this is especially true in the cultural economy of the
Web.
Lessig’s approach to reforming digital copyright law falls between the “all rights
reserved” and “no rights reserved” solutions posed by current copyright law and the copyleft
movement. In 2001, Lessig co-founded Creative Commons (CC), a nonprofit organization that
provides a “some rights reserved” option for creators seeking to license their works. According
to Lessig, “Its aim is to build a layer of reasonable copyright on top of the extremes that now
reign… by making it easy for people to build upon other people’s work, by making it simple for
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creators to express the freedom of others to take and build upon their work” (282). The ease with
which creators can express these freedoms is supported by the unique “three layer design” of CC
licenses. Incorporating traditional legal code, a user-friendly or “human readable” Commons
Deed, and “machine readable” code, the complete license “isn’t just a legal concept. It’s
something that the creators of works can understand, their users can understand, and even the
Web itself can understand” (Creative Commons). In other words, the CC license functions within
the context of legal and everyday use as well as within the architecture of the Internet.
In addition to developing a copyright solution that is tailored to fit within the structure of
Cyberspace, CC allows users to customize the scope of their license. Rather than rely on or
denounce the packaged rights afforded by copyright law, CC works alongside copyright by
enabling users to modify the terms of their license to fit their needs. While users have the option
to waive all rights by placing their work directly in the public domain, the more popular licenses
mix and match rights concerning attribution, distribution, derivatives, and commercial use. The
most accommodating license “lets others distribute, remix, tweak, and build upon your work,
even commercially, as long as they credit [the licensor] for the original creation,” while the most
restrictive license only allows the noncommercial use and distribution of the work as long as
credit is given to the original owner (Creative Commons). Lessig argues that “these choices thus
establish a range of freedom beyond the default of copyright law” (283). CC encourages the
responsible use of copyright within the digital framework by giving creators the opportunity to
modify the scope of their license without relying on lawyers and middlemen. In addition, CC
licenses support the open-sharing and innovation within the digital commons by enabling
“freedoms that go beyond traditional fair use,” such as the commercial derivative use of licensed
material with attribution (Lessig 283). The “some rights reserved” approach of Creative
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Commons allows creators and users greater flexibility within the framework of copyright in
hopes of “[maximizing] digital creativity, sharing, and innovation” (Creative Commons).
Of the three approaches to digital copyright law, I believe the “some rights reserved”
solution posed by Lessig and Creative Commons provides the most support to the cultural
economy of the creative Web. Digital authors can use CC licenses to limit or expand the scope
of their copyright and provide a greater range of “free use” permissions. In doing so, authors can
encourage the engagement with and distribution of text that provides the basis for readergenerated social value. In addition, all non-public domain CC licenses include an attribution
clause that require credit to be given to the original creator (Creative Commons). Such
attribution is essential in the cultural economy, as it connects reader-generated value of the work
with the author. In addition, required attribution may help reduce the damages that plagiarism
cause to the economic potential of the author’s cultural capital. In much the same way the
traditional copyright acknowledges romantic authorship, however, I find that the attribution
clause of CC licenses does not support the complexity of the digital authorship. The collectivity
and intertextuality that exists in remix culture and in reader-author interaction transcends even
the most accommodating of CC licenses. Furthermore, I believe the incompatibility between the
freedoms afforded by CC licenses and the restrictive needs of published authors and publishing
companies might complicate the translation of cultural capital into economic profit. In other
words, while the freedom to share and remix digital works fosters innovation and learning within
the context of open-access on the Internet, the proliferation of derivative works may limit the
value of the original creation and hinder the author’s ability to publish his unique text outside of
Cyberspace. Lessig’s “some rights reserved” service supplies a popular alternative to traditional
copyright, but while the Internet-friendly, customizable licenses support innovation and social
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value within the creative market of the Web, Creative Commons fails to address the complex
ways in which the values of digital and analog markets interact to foster a cultural economy of
digital creativity.
In our attempts to realign copyright with the changing landscape of Internet publishing,
we must remember to ask the big questions. Why do we have copyright laws? Who do they
benefit? How can we protect the interests of everyone involved? This last question seems to
cause the most trouble when we consider how the Internet has changed not only who is involved,
but also what their interests are. The players in the literary market are the same as they have
always been: author, public, and mediator or publisher. However, the Internet is changing how
these players relate to each other and is breaking down the differences between them; the ability
of Web users to be author, reader, and publisher simultaneously complicates the assignment of
copyright ownership and protection. Furthermore, the Internet is changing how these hybrid
players are involved in the production, distribution, and perhaps most importantly, marketing of
digital literary property. While the economic interests of publishers is essentially unchanged,
their control of the market has taken a backseat to readership in what I propose is a cultural
economy of creativity. In this market, authors require protection not only for the economic value
of their literary property, but the cultural capital that is generated by their audience. The public,
then, not only requires accessibility to literary works as a means to promote innovation and
learning; they also require protection for the value they contribute to literary works.
But the Internet is only the most recent shift in publishing technologies in the history of
literary property and copyright. The distinction between author and reader and publisher may
become even more superficial as new technologies increase the decentralization of cultural
power even more. As the digital world continues to transform our analog world, we must
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evaluate the social and economic power of authors, readers, and publishers before we attempt to
regulate the world in which they live. As the cultural economy of the Web demonstrates, the
potential for creativity and cultural influence lies not only with the storytellers but with those
who listen and respond.
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