Edited by Mireille van Eechoud

The Work of Authorship

A
The Work of Authorship

Edited by
Mireille van Eechoud

Amsterdam University Press

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 Contents

Voices near and far 7

Introduction
Mireille van Eechoud

Creative work and communicative norms 19

Perspectives from legal philosophy
Laura Biron

Romantic authorship in copyright law and the uses of aesthetics 45

Erlend Lavik

Creativity, autonomy and personal touch 95

A critical appraisal of the CJEU’s originality test for copyright
Stef van Gompel

Adapting the work 145

Mireille van Eechoud

Reassessing the challenge of the digital 175

An empirical perspective on authorship and copyright
Elena Cooper

Creativity and the sense of collective ownershipin theatre and

popular music 215
Jostein Gripsrud

Discontinuities between legal conceptions of authorship and

social practices 237
What, if anything, is to be done?
Lionel Bently and Laura Biron

About the authors 277

 Creative work and communicative
norms
Perspectives from legal philosophy

Laura Biron

In consideration of the application of insights from the humanities to the

interpretation of core legal concepts in copyright, this chapter examines
three questions: first, what is a ‘work of authorship’, and why does copyright
law place such a strong emphasis on originality for determining what counts
as a work? Second, can and should we modify ‘romantic’ conceptions of au-
thorship, to take into account the various ways in which authorial practices
seem to conflict with their highly individualistic and creator-centred focus?
Finally, how might copyright law make sense of the various ways in which
authorship is collaborative, in light of its somewhat restrictive definitions
of co-authorship?
This chapter will consider the contribution that existing philosophical
literature on the justification of copyright might have to these questions. It
begins by outlining three categories that have application to questions about
authorship – labour, personality and communication – and explaining a
deeper distinction between proprietary and non-proprietary accounts of
authorship which underlies these categories. It goes on to illustrate how
these differing approaches to authorship can be applied to the three ques-
tions under consideration. For reasons of space and practicality, the focus of
this chapter will reflect my expertise in Anglo-American copyright theory
and doctrine.

Philosophical accounts of ‘authorship’

Leaving aside utilitarian or consequentialist justifications for copyright,

which tend to focus more on incentivising acts of authorship than the nature
of authorship per se, there are, broadly speaking, three different theories
distinguished in the literature: labour theories, associated with John Locke;
personality theories, often thought to be linked to the writings of Hegel;
and communicative theories, taking inspiration from Kant’s writings on
intellectual property.
20 Laur a Biron

It should be noted at the outset that these justificatory theories are not
usually directly applied to questions about authorship; indeed, the labour
and personality accounts are more conventionally viewed as theories of
property, rather than theories of authorship as such. The Kantian approach
may seem more directly linked to authorship, through its focus on com-
munication and explicit rejection of proprietary language, but it is still at
an early stage of development in the philosophical literature. Thus, a central
question explored by this chapter is the extent to which communicative
accounts of copyright have more direct application to questions about
authorship than labour or personality theories. The chapter argues that
we should not fall into the trap of assuming that one set of theories (based,
for example, on communicative norms) can provide a complete answer to
the complex questions at stake, but rather that we should be aware of the
need to develop ‘hybrid’ theories of authorship, drawing together the key
premises from communicative, labour and personality theories which have
application to the questions at stake.
Before moving on to discuss the three sets of theories in more depth, a
further observation is needed about the role of the concept of authorship
in philosophical discussions. Although it might seem as though authorship
is one of copyright law’s most central concepts, Waldron points out that
policy defences of copyright are ‘seldom cast in purely individualistic terms.
Officially, the justification is supposed to have more to do with the social
good than with the individual rights of authors’ (Waldron, 1993, p. 848).
Why, then, does there seem to be such a strong focus on authors’ rights in
debates about the justification of copyright? Waldron draws attention to
many ways in which social defences of intellectual property become cast
in individualistic terms, and notes that ‘social policy, judicial and scholarly
rhetoric on the topic retains many of the characteristics of natural rights
talk’ (ibid., p. 849). Another explanation is given by Peter Jaszi, who argues
that theorists of copyright have become entranced by a ‘mythologised’
conception of authorship, viewing it as a privileged category of intellectual
activity, tied up with notions of self-ownership, personality and original-
ity (Jaszi, 1991, p. 455). At the same time, Jaszi draws attention to the fact
that authorship is anything but a unified or fixed category of aesthetic
experience, something which could provide a ‘stable foundation for the
structure of copyright doctrine’; rather, he seems to agree with Waldron’s
observation that authors’ rights lie at the centre of a tension between social
and individualistic defences of intellectual property, describing authorship
as ‘the locus of a basic contradiction between public access to and private
control over imaginative creations’ (ibid., p. 457).
Creative work and communicative norms 21

What are the implications of these observations for philosophical concep-

tions of authorship? It seems fair to say that, in the philosophical literature
on authors’ rights, a similar tension exists between individualistic and social
theories of authorship. On the one hand, there is a tendency to assume that
the relationship between an author and their work can be viewed analo-
gously to the relationship between an individual owner and an object of
property. Certainly, this is the assumption underlying most interpretations
of the labour theory of authorship, as we shall see below. This means that
authorship and ownership become intertwined categories, and authorship
is often cast as a matter of individual entitlement. Nonetheless, there are
justificatory theories of copyright that focus less on individual authors (qua
individual owners), and more on the social goals that acts of authorship
can promote – in particular, goals associated with communication and
public knowledge. This distinction between proprietary and non-proprietary
conceptions of authorship will emerge as we unpack some of the different
theories of authorship that have been said to be associated with labour,
personality and communicative theories.

Authorship and labour

Judges often appeal to labour in intellectual property rulings. A well-known

example is Justice Potter Stewart’s observation that: ‘The immediate effect
of our copyright law is to stimulate a fair return for an author’s creative
labour’ (Twentieth Century Music Corp. v. Aiken, 1975, para. 156). In UK law,
copyright’s originality requirement is even specified by reference to labour
(Bently and Sherman, 2005, p. 94). This has led to discussion about whether
such appeals could be grounded in philosophical theories of property based
on labour, and in particular the work of John Locke, whose account of
property will be considered in this section.
Locke’s theory of property has three central components: an initial com-
mitment to common ownership, arguments for privatising the commons,
and a specification of some provisos that must be in place before ownership
is fully justified. The implications for Lockean accounts of authorship and
author entitlement vary, depending on which component of his theory we
emphasise. Indeed, a brief look at the literature on Lockean theories of
intellectual property reveals a divergence of views about the implications
of Locke’s theory for the justification of authors’ rights. According to Nozick
(1968, pp. 178–181), Hughes (1988, p. 291) and Becker (1993, pp. 610–612), Lock-
ean arguments can be used to support strong intellectual property rights,
assigning authors expansive rights to control uses of their intangible assets
22 Laur a Biron

by others. On the other hand, commentators such as Gordon (1993), Shiffrin

(2001), Damstedt (2003) and Hull (2009) stress the various limitations on
ownership of intellectual property that follow from Locke’s account, arguing
that his justifications for intellectual property would be weaker than his
justifications for tangible property. Although it is not necessary to choose
between these different interpretations, it is important to be aware that
there is no one definitive ‘labour’ account of authorship. In the remainder
of this section, I outline the four most popular interpretations of Locke’s
theory in the literature.
Interpretations of Locke’s account of copyright often begin with Locke’s
famous ‘labour mixing’ argument for the justification of property, according
to which ‘every man has a property in his own person’ and in ‘the labour
of his body and the work of his hands’ (Locke, 1689, book II: sec. 27). When
a person removes a thing from its natural state, he has:

[…] mixed his labour with it and joined it to something that is his own …
and thereby makes it his property … For this labour being the unquestion-
able property of the labourer, no man but he can have a right to what that
is once joined to (ibid., II: sec. 27).

The idea behind this argument is that, through mixing our labour with
what is available in the common for appropriation, we extend our natural
property in our persons to that which is available, thereby grounding
property rights in particular resources. If another person takes what you
have mixed your labour with, that person also takes your labour ‘which
another had no title to’ (Locke, 1689, Book II: sec. 32). Locke describes this
argument as providing the ‘great foundation’ of his theory of property (ibid.,
II: sec. 44). What are its implications for Lockean theories of authorship?
Although some commentators have been sceptical about the application
of labour-based arguments to copyright, arguing that labour ‘generates too
many indeterminacies and problems to provide a justification for intel-
lectual property’ (Drahos, 1996, p. 54), others have been keen to ground
defences of authors’ rights on the basis of Locke’s labour-mixing argu-
ment. The first, most popular description of Locke’s theory is known as the
labour-desert theory. This suggestion is made explicitly by Becker (1993,
p. 620), Hughes (1988, p. 305) and Tavani (2005, p. 88), and even when not
explicitly made it is implied by the comment very often made that Locke’s
theory of intellectual property is a matter of rewarding authors for the
fruits of their labour. And the idea of intellectual property rights being a
‘reward’ for authorial labour has certainly been influential in the courts, for
Creative work and communicative norms 23

example: ‘Sacrificial days devoted to … creative activities deserve rewards

commensurate for the services rendered’ (Mazer v. Stein, 1954, p. 219). But
it is important to note that desert-based interpretations of Locke’s account
of authorship do not fit neatly with the spirit of Locke’s own discussion of
the justification of property through labour.
Indeed, Locke’s discussion of the relationship between a subject and
their labour seems to preclude it being wholly framed in terms of desert.
For example, he admits that the productivity of one’s labour can depend
on luck and other conditions that are independent of the labourer’s ef-
forts whereas, of course, whether or not a person deserves a reward for a
particular action should depend on the effort they put in. The same can
be said – perhaps to an even greater extent – for the case of authors; after
all, authors benefit from talents that are in many respects dependent on
natural endowments (over which they have no control, and hence cannot
be said to deserve) and also on various social factors that reward certain
kinds of talents over others, depending on the context. In Rawlsian terms,
it would be ‘morally arbitrary’ for individuals to be rewarded for the fruits
of their talents because the natural and social factors that determine their
value lie outside of their control (Rawls, 1971, p. 74). It follows that it makes
little sense to ground a labour theory of authorship in a theory of desert.
This means that, whatever emphasis might be placed on the connection
between authorship and desert in judicial settings, such an emphasis cannot
find philosophical support in labour theories of property.
Setting aside desert-based labour theories of authorship, a second ac-
count of Lockean authorship can be termed the creationist account. Taking
its inspiration from interpretations of Lockean labour as God-like, ex nihilo
activity that does not depend on what comes before it (Tully, 1980, pp. 108–9),
the creationist account supports the view that Lockean natural rights to
intellectual property can be easily derived, since ‘it seems as though people
do work to produce ideas and that the value of these ideas … depends solely
upon the individual’s mental work’ (Hughes, 1988, p. 291).
Even though the creationist account of Lockean labour has been
criticised as limited in its application to tangible property (Simmons, 1991,
p. 259; Waldron, 1988, p. 199), it might nonetheless apply to questions about
authorship and intellectual property. After all, when Locke considered the
material common, he was thinking about an expanse of resources that was
‘given’ to mankind by God to be used and enjoyed by all, which makes it
difficult to see how individuals could labour ex nihilo without building
on pre-existing raw materials. But, arguably, the intellectual common is
not always construed as a given set of raw materials, because it depends
24 Laur a Biron

crucially on activities by human beings over time, and this points to a

difference between resources that are given to us by nature and intellectual
resources that are given to us as a result of individuals creating, producing
and inventing them. If such a distinction can be maintained1, it follows that
creationist interpretations of Lockean labour – which focus on labour as
something not dependent on the prior labour of others – lead one toward
strong, creator-centred theories of authorship. The implications of this
account for the broader questions considered by this chapter are made
clear below.
A third interpretation of Lockean labour, which I have termed the intel-
lectualist account, leads to a more balanced picture of Lockean rights of
authorship than is suggested by the creationist account. The first point to
note about this interpretation is that it views Lockean labour not in physical
terms, but as connected to Locke’s remarks on personhood. Indeed, Locke
speaks of an individual having property in their ‘person’, not their body,
which provides reason for thinking that labour should be understood as
fundamentally connected to our nature as persons – rational, reflective
beings capable of choice and self-awareness. This also connects Lockean
labour to the more general right to self-government – a ‘right of freedom
to his person’ (Locke, 1689, Book II: sec. 190) – which underlies his theory
of rights. If we understand Lockean labour as intellectual activity broadly
construed – or, in Simmons’ phrase, ‘purposive activity aimed at satisfying
needs or supplying the conveniences of life’ (Simmons, 1992, p. 273) – it
follows that, when a person mixes their labour with an object they do not
literally change that object, but the object becomes part of their labour
through being brought within their purposes, aims and actions. Provided
such labouring does not encroach upon others’ rights to self-government,
the object cannot be removed from the labourer without interfering with
their labour and thereby violating their right to self-government.
What are the implications of the ‘intellectualist’ account of labour for
Lockean theories of authorship? One interesting observation is that, through
connecting labour to personhood in this way, we actually move towards a
Lockean theory of authorship that has much in common with personality
theories (see below). This makes it possible to discuss ‘hybrid’ theories of au-
thorship that blend elements of both labour and personality theories together,
and may be able to give us a more comprehensive theory of authorship than
when these theories are considered separately. A further, important element
of the Lockean intellectualist account is that, through grounding authors’
rights in rights of self-government, authorship (like ownership) becomes a
category that generates internal constraints on its scope and extent.
Creative work and communicative norms 25

That is to say, the intellectualist account of authorship states that authors

should be given opportunities to originate and control their works provided
that they do not violate others’ rights to self-government – by pretending
a work by another author is really the product of their own labour, or by
merely copying another author’s work without investing any new labour of
their own, for example.2 From the perspective of the intellectualist account,
limitations on the extent of appropriation are considered part and parcel
of what it means for an individual to mix their labour with an object, and
not external constraints on the activities of owners (or authors).
The three interpretations of the labour theory of authorship considered
above make use of an analogy between individual owners and individual
authors. The fourth, and final account, found in the work of Seana Shiffrin
(2001), is more radical, and attempts to move away from the proprietary
framework offered by labour theories. The key difference between Shiffrin’s
non-proprietary account and most other interpreters of Locke is that she
does not place a great emphasis on Locke’s argument that private property is
justified through individuals mixing their labour with unowned resources.
In her view, conceptions of authorship which focus on the importance of
labour give authors rights to their works that are too strong to be justified
on other Lockean grounds, such as material survival and subsistence, not to
mention Locke’s basic commitment to equality. Shiffrin argues that access
to intellectual products is not necessary for survival or subsistence and, due
to their non-rivalrous, inexhaustible nature, they can be used by an infinite
number of people without being used up. As she puts it: ‘The fully effective
use of an idea, proposition, concept, expression, invention, melody, picture
or sculpture generally does not require prolonged exclusive use’ (Shiffrin,
2001, p. 156). According to Shiffrin, this feature of intellectual products
precludes their privatisation from the common on Lockean grounds.
Shiffrin’s interpretation seems to give us a highly limited Lockean ac-
count of author entitlement: on her account, many of the property rights
that authors have in their works under the current copyright system are
unjustified. Her interpretation of Locke would favour systems of copyright
that provided very little proprietary protection for authors – authorship
would be seen as a shared endeavour, and most intellectual works would
be viewed as existing in a kind of permanent common, outside the scope
of propertisation. This view might be gaining support in certain ‘Copyleft’
movements, but it is not usually one that is seen as having philosophical
support from Lockean accounts. Shiffrin’s interpretation of Locke goes
against the grain of some standard accounts of Lockean authorship, then,
and this is largely because she chooses not to give Locke’s labour-mixing
26 Laur a Biron

argument for the justification of property much prominence. In Shiffrin’s

view, labour plays a ‘subsidiary’ role in Locke’s account of appropriation,
‘justifying the appropriation by one individual rather than another once
private appropriation of the given sort of property is antecedently valid’
(2001, p. 144). Even if controversial as an interpretation of Locke, it might
nonetheless have interesting implications for copyright law’s definitions of
authorship and, in particular, it provides a way of bringing Lockean insights
into the burgeoning literature on non-proprietary accounts of copyright
(discussed below).

Authorship and personality

A different set of philosophical theories has been developed to support the

proposition that an author’s right to their work is justified on grounds that
it expresses their personality. Applied to tangible property, Radin (1982,
p. 957) has described this as the ‘personhood perspective’, noting that ‘to
achieve proper self-development – to be a person – an individual needs
some control over resources in the external environment’ (in the form of
property rights). In the context of intellectual property, the personality
theory requires that we grant creative works strong legal protection (against
misattribution, for example, or other actions which inhibit the author’s
control over their work). Not only is the personality theory said to be a
creator-centred theory, elevating the importance of the individual author
at the expense of both copiers and the public domain, but it is also assumed
to lead to stronger protection for copyright owners than other justifications
for copyright (Bently and Sherman, 2005, p. 39).
When we look further into the roots of the personality theory, however,
we find a confused and under-analysed picture of its philosophical lineage.
As Fisher notes, personality theories of intellectual property are thought
to be ‘loosely derived from the writings of Kant and Hegel’ (2001, p. 171).
However, such theories may turn out to be very ‘loosely’ derived from the
writings of these philosophers, and there is little scholarly work on personal-
ity theories in Anglo-American philosophical literature on copyright.3 As
Wendy Gordon notes:

[…] for investigation of whether and how the “personal” element [of intel-
lectual property] should be important, we should probably look to sources
such as Kantian and Hegelian philosophy. At least in the English-speaking
world, although some valuable work has been done, application of those
schools of thought to IP is still at an early stage (Gordon, 2003, p. 10).
Creative work and communicative norms 27

Legal discussions of the personality theory so far have looked more to Hegel’s
theory of property for support and clarification than to Kant’s (Hughes, 1988;
Fisher, 2001; Netanel, 1993; Palmer, 1990). In this section, I consider whether
Hegel’s discussion of intellectual property justifies such a connection.
The personality theory of intellectual property is often said to apply
particularly well to the legal protection of artistic work. Indeed, it seems
especially well suited to support systems of ‘moral rights’ which include
artists’ rights to ‘control the public disclosure of their works, to withdraw
their works from public circulation, to receive appropriate credit for their
creations, and above all to protect their works against mutilation or destruc-
tion’ (Fisher, 2001, p. 174). These rights are said to be ‘perpetual, inalienable
and imprescriptible’, as is stated in Article L121-1 of the French Act on intel-
lectual property (Code de la propriété intellectuelle). The personality theory
that underlies these legal protections, then, has two features: first, it gives
philosophical grounding to copyright law’s acknowledgement that some
intellectual property rights are inalienable. Second, it is a creator-centred
justification for intellectual property (Spence, 2007, p. 45). That is, the theory
is used to justify legislation that protects creators of intellectual works
against those who use, copy or modify their works.
Let us consider the first feature of personality theories – their focus on
the inalienability of an author’s personality. Hegel’s account offers a nu-
anced and complex perspective on this issue. His discussion of Entaußerung
(‘alienation’) at paragraphs 65-71 in the Philosophy of Right contains his most
extensive remarks on intellectual property. On the one hand, his comments
on the status of personality and mental traits such as ideas supports the view
that they are inalienable: ‘… those goods, or rather substantive characteris-
tics which constitute my own private personality and the universal essence
of my self-consciousness are inalienable’ (§ 66). This seems to align closely
with the personality theory’s recognition of inalienable authors’ rights. On
the other hand, Hegel was prepared to view authors’ works as alienable
‘things’, despite the ‘internal’ or mental nature of intellectual production:

The distinctive quality of intellectual production may, by virtue of

the way in which it is expressed, be immediately transformed into the
external quality of a thing [Sache], which may in turn be produced by
others (§ 68).

Although it might seem that alienation of an author’s work is ‘alienation

of personality – a prohibited act in Hegel’s system’ (Hughes, 1988, p. 347),
Hegel goes on to argue that the author nonetheless remains the ‘owner of
28 Laur a Biron

the universal ways and means of reproducing such products and things’ (§
68) suggesting that the author has a stronger right than the person to whom
they have alienated the external use of the object – a right to control the
various external uses of the work by others, in keeping with the personality
theory’s support of moral rights. This means that there is some support for
the notion of inalienable moral rights within Hegel’s account; however,
this is not because there is anything internal to the work which ‘embodies’
the author’s personality – the work is external, alienable property, unlike
personality which is inalienable – but rather because the author’s personal-
ity is inalienably connected to the work through the author’s control and
choice over the way it is used by others. The implications of this view for
copyright’s notion of the work are considered in more detail later below.
As regards the second feature of the personality theory – its creator-
centred focus – Hegel’s discussion begins by focusing on the legal protection
intellectual property offers to individual authors or creators:

The purely negative, but most basic, means of furthering the sciences and
arts is to protect those who work in them against theft and to provide
them with security for their property …(§ 69).

This suggests that Hegel viewed intellectual property as a system that

secured individual creators rights to their property; in keeping with the
standard personality theory, he viewed its purpose and goals from the
perspective of individual creators. Nonetheless, it soon becomes clear that
the central focus of Hegel’s account is the social nature of authorship:

The purpose of a product of the intellect is to be apprehended by other

individuals and appropriated by their representational thinking, memory,
thought, etc. Hence the mode of expression whereby these individu-
als in turn make what they have learned (for learning means not just
memorising or learning words by heart – the thoughts of others can be
apprehended only by thinking, and rethinking is also a kind of learning)
into an alienable thing, will always tend to have some distinctive form, so
that they can regard the resources which flow from it as their property,
and may assert their right to reproduce it (§ 69).

Hegel is implying here that individuals who ‘apprehend’ or ‘appropriate’

existing intellectual products can build upon them in such a way that it
might become very difficult to determine when repetition of ideas becomes
a special property of an individual, rather than part of the common pool of
Creative work and communicative norms 29

ideas. As such, his focus seems more balanced than standard interpretations
of personality theories would allow.
We should not be surprised that Hegel’s discussion moves away from a
purely creator-centred or individualistic account of authorship, since the
need for individuals to supersede or transcend subjectivity is crucial to his
philosophy. Hegel argues that the development of individual personality
involves some sort of ‘transition’ from the inner subjective world to the
external objective world, and that property is an important part of this
transition:

Abstract property contains the arbitrary moment of the particular need of

the single individual; this here is transformed … into care and acquisition
for a communal purpose, i.e. into an ethical quality (§ 179).

More generally, as the Philosophy of Right develops from abstract right to

Sittlichkeit, Hegel ceases to draw any distinction between the collective
interest of a community and the individual interests of the members of that
community. Hegel’s communitarianism and his developmental model of
personality mean that we should be cautious about describing his theory
of authorship as creator-centred and individualistic, along the lines of the
personality theory.

Authorship and communication

Before moving on to address the specific questions about authorship at

stake in this chapter, I shall briefly outline the final set of theories under
consideration: those rooted in a desire to steer discussions of copyright
away from proprietary frameworks, focusing instead on communicative
norms. In recent years, philosophers have engaged with some conceptual
issues raised by the very idea of intellectual ‘property’.4 Although some have
argued that it is perfectly coherent to treat works of authorship as works
of property (Biron, 2010), others have attempted to move the debate in a
more radical direction, seeking alternative (or supplementary) conceptual
frameworks for justifying copyright. Most theories of this sort are united in
the claim that works of authorship should be viewed not as commodities to
be owned but as vehicles of authorial communication. Often taking inspira-
tion from Kant’s writings on copyright and linking them to his discussion of
public reason (Barron, 2012; Biron, 2012; Borghi, 2011; Capurro, 2000; Chiara
Pievatolo, 2008 and Johns, 2010) communicative approaches to copyright
30 Laur a Biron

attempt to put forward principles of communication that can be drawn on

to distinguish an author’s legitimate communication ‘in their own name’
from their derivative communication in another’s name.
I have engaged with Kant’s writings on copyright, autonomy and public
reason in depth in previous work, so for the purposes of this piece I shall
provide only a brief summary of the communicative approach I  have
defended elsewhere (Biron, 2012). Kant puts forward three principles of
communication in the Critique of Judgement (Guyer, ed., 2000, p. 173) –
principles I have termed authority, intelligibility and consistency – and they
can be applied to questions about authors’ rights in the following ways. First,
the principle of authority – to ‘think for oneself’ – points to the need for an
author’s speech to be non-derivative: the authority of the author’s speech
must not be derived from another person’s speech; rather, it must be carried
out in their own name. Second, the principle of intelligibility – to think from
the standpoint of everyone else – can be read as a necessary condition for
authorship that aims at public communication, not just self-expression.
Third, the principle ‘always to think consistently’ can be read as a demand
that authors adjust their communications to meet the requirements of
intelligibility consistently, depending on the interaction with and also the
scope of their possible audiences. As Garrath Williams puts it, this condition
entails ‘regarding oneself, first, as the genuine author of one’s judgments,
and second, as [epistemically] accountable to others’ (Williams, 2009, sec.
3:2). If principle [3] is in some sense regulative of [1] and [2], we can see that
public reasoning is not static but, just like all communication, dependent on
its audience, its interlocutors and the willingness of authors to reconsider
and re-evaluate their communications in light of the testing and mutual
questioning of their writings.
The above principles of public reason provide a way for copyright scholars
to engage with questions about the relationship between authorship, copy-
right and freedom of expression, but with some important modifications.
Indeed, Kant’s approach does not really warrant the label ‘expressive au-
tonomy’ or ‘autonomy of expression’ (Treiger-Bar-Am, 2008, p. 1075), at least
to the extent that such labels emphasise a somewhat individualistic and
creator-centred approach to authorship. When we focus not on individual
acts of expression but more broadly on principles of communication – such
as intelligibility or consistency – we appreciate Onora O’Neill’s point that
‘freedom of expression can provide only one part of an adequate ethics of
communication’ (O’Neill, 2007, p. 169), because rights of self-expression
can be exercised without meeting other important principles of public
communication.
Creative work and communicative norms 31

We have now outlined three philosophical accounts of the justification

of copyright: based on labour, personality and communication respectively.
Interestingly, the extensive literature on labour theories has provided
room for a discussion of non-proprietary Lockean accounts of copyright;
the literature on the personality theory is at a less developed stage, in the
Anglo-American sphere at least, and still seems firmly rooted in a propri-
etary framework even if, as we have seen, Hegel’s writings do not support
the creator-centred standpoint that it is often taken to justify. Finally, a
Kantian approached based on principles of communication is explicitly
non-proprietary, and may seem to have more direct relevance to questions
about authorship; however, to fully appreciate the implications of these
theories, we can now apply them to the questions under consideration in
this chapter.

Author, work and originality

Let us begin with the question about originality and the ‘work’. Taking
the overarching distinction between proprietary and non-proprietary
conceptions of authorship, it has been argued that proprietary conceptions
of authorship are more committed to a notion of a ‘fixed’ work of author-
ship, understood analogously to a tangible object of property, and with
the concept of originality invoked to draw boundaries around it (Litman,
1990). Non-proprietary conceptions of authorship seem less focused on the
work as a fixed object and more focused on viewing the work as a process
of communication or a means to promote valuable social goals.
Let us now consider the above theories in more depth, starting with
Lockean conceptions of authorship. It is interesting that Shiffrin’s non-
proprietary theory is the most ‘work-centred’ Lockean account, because
she begins her analysis with a discussion of possible objects of ownership
(or authorship), and then considers whether their nature is such as to justify
rights of ownership on Lockean grounds. Since she severs the connection
between labourer and product, she also seems to sever the connection
(important as it is to copyright law) between authorial originality (under-
stood as origination) and the work. Once ‘the work’ is allowed to float free
of any connotations of authorial labour, Shiffrin is able to consider it more
in terms of its social value – the ways in which works of authorship might
stimulate others, be read or accessed by a range of different individuals and,
thereby, transformed and used in a variety of ways that promote valuable
social goals such as freedom of speech.
32 Laur a Biron

The creationist labour account of authorship, on the other hand, would

seem to support a strong and intimate connection between authorial origi-
nality and the work. Indeed, it would support attempts to define originality
in value-laden ways – viewing works of authorship as shot through with
creativity and novelty. Of course, viewing originality in terms of ‘novelty’
is not at all in keeping with how copyright law defines the term: a work
of authorship ‘… need not be … novel or unique’ (CCH Canadian Ltd. v.
Law Society of Upper Canada, 2004, SCC 13) to count as original and thus
protected by copyright. But there have been some recent attempts in US
courts to specify copyright law’s originality requirement in terms of creativ-
ity as opposed to mere ‘sweat of the brow’ (most notably, the ruling in
Feist v. Rural Publications Inc., 1991). It might be argued that such appeals
to creativity have shifted the focus of copyright’s originality requirement
towards ‘the gospel of Romantic “authorship”’ (Jaszi, 1994, p. 34).5 That is
to say, appeals to creativity move beyond a fairly neutral specification of
originality in terms of origination and towards a more normatively loaded
conception of originality which could imply artistic merit, even genius,
thereby elevating the status of individual authors, and according them
stronger rights to control their works. Creationist conceptions of Lockean
authorship might indeed be invoked to support these more value-laden
conceptions of originality, though it must be noted that they offer just one
particular interpretation of Locke, and are by no means fully representative.
Finally, on the intellectualist labour account of authorship, there does
not seem to be a presumption that works of authorship are original in the
sense of being ‘novel or ‘creative’, even though there is still an important
connection to be drawn between an author’s labour and their work (unlike
Shiffrin’s non-proprietary account, which severs this connection). Accord-
ing to the intellectualist account, we should look at the author’s intellectual
input – such as judgement or choice in bringing raw materials within their
plans and purposes6 – to determine what counts as a work, and thus leave
room for a definition of originality that is more neutral than the creationist
focus on ‘novelty’ or ‘creativity’. How expansive this definition of originality
should be – and hence how extensively we might grant rights over works
of authorship – would be determined by considerations of the contours of
more general rights to self-government, held equally by authors and users
of works. Overall, then, labour theories of authorship offer a variety of
answers to the question of how copyright law could understand the ‘work’
and ‘originality’, and the most promising theories for addressing questions
about internal constraints on the scope of authorship are Shiffrin’s non-
proprietary account and the intellectualist account outlined above.
Creative work and communicative norms 33

What are the implications of Hegel’s personality theory for copyright

law’s category of ‘the work’? We have seen that, far from there being an
intimate connection between an author’s personality and the work in which
personality is expressed, Hegel seems to sever the connection between
‘personality’ and ‘work’. As Netanel puts it: ‘Hegel regarded intellectual
works as external things rather than as extensions of personality’ (Netanel,
1993, p. 377). This goes against copyright law’s suggestion that works of
authorship can be delineated by looking for a ‘stamp of personality’ or
individuality as evidence for authorial originality. Hegel’s focus seems to
be not on the work itself, and the extent to which it displays the author’s
personality, but rather on the ways in which an author’s personality can
be expressed through various aspects of control and choice over how their
work is used. This means, of course, that Hegel’s account supports the idea
that authors’ works should be protected from mutilation, destruction or
misattribution, if so desired by the author. But that is not to say that there
is anything inherent to ‘the work’ that need display or contain the author’s
personality, and that personality is somehow ontologically built into a work
of authorship; personality, rather, is a category associated with choice and
control over how a work is used by others.
Finally, as I have argued elsewhere, copyright law’s originality require-
ment harmonises with the first principle of Kantian public reason outlined
above – the principle of authority. Copyright’s originality requirement applies
to both new and transformative work and, in both cases, the key to determin-
ing originality rests on the question of the source of the work: to count as
original for the purposes of copyright it ‘… must not be copied from another
work … it should originate from the author’.7 Understanding originality in
this sense as origination, we can revisit the distinction between derivative
and non-derivative forms of communication, which underlies the principle
of authority. A transformative work of authorship whose authority is actually
derived from a primary work cannot be classed as having ‘originated’ from
the transformative author – in this sense, works of authorship that count
as ‘derivative’ under the principle of authority would likewise not count
as ‘original’ for the purposes of copyright protection. On the other hand,
provided the transformative work’s authority is derived from the transforma-
tive author’s own communication, the transformative work would count as
‘non-derivative’ under the principle of authority – and, for the purposes of
copyright protection, it would count as original. Although a lot more needs
to be said about exactly how the contours of originality might be drawn, this
approach indicates that copyright need not base its conception of authorial
originality on a proprietary model, as is so often assumed to be the case.
34 Laur a Biron

Romantic authorship

Let us now turn to some questions about romantic authorship, and the
extent to which the theories outlined above either reinforce or challenge it.
Exactly what copyright scholars mean by ‘romantic authorship’ is, of course,
a complex question to address. As Erlend Lavik notes in his contribution to
this book, the so-called ‘myth’ of romantic authorship, and its impact on
copyright law, requires detailed examination and is by no means settled.
For the purposes of this section, I draw on the interpretation of romantic
authorship offered by Martha Woodmansee, according to which authors
are solitary geniuses who, ‘blessed with unique insight, bring forth new
and original works of art into the world’ (Woodmansee, 1984, pp. 429–31).
There has been a tendency to view some Lockean accounts of property as
giving support to theories of this sort. As Netanel puts it, ‘drawing upon
a combination of Lockean labor-desert theory and nineteenth-century
romanticism … [it is argued that] copyright should be immune from excep-
tions and limitations’ (Netanel, 2008, p. 21). However, we have already seen
that the labour-desert theory of property, let alone authorship, is conceptu-
ally confused. And Shiffrin’s account – focused as it is on the maximal
use of intellectual products or works, rather than the labour of individual
authors – seems far removed from anything like a romantic conception
of authorship. Might the other interpretations of Locke – the creationist
or the intellectualist accounts – nonetheless be connected to romantic
conceptions of authorship?
To answer this question, we must return to the issue of the extent to
which we might view an author’s labour as dependent upon the prior labour
of others; according to the definition of romantic authorship outlined above,
a strong emphasis is placed on the input of the author as having created
something new and unique, unencumbered by external influences. And
this sort of view is not uncommon in discussions of authorship. Lawrence
Becker, for example, defines authorship as an activity in which the author’s
labour is ‘the beginning of the causal account of the product’ (Becker, 1993,
p. 614). Jeremy Waldron also makes a similar point:

What copyright appears to uphold are rights of pure agency, rights in

something that literally did not exist in any form before the author put
his mind to work (Waldron, 1993, p. 879).

The idea behind both of these claims is that holders of intellectual property
rights have rights to objects that might not have come into existence at
Creative work and communicative norms 35

all without their efforts. And this means that we can ask various ques-
tions about the ways in which they were invented or created, and imagine
that they might never have existed in the first place. If we simply left our
analysis of authorial labour at this, the most suitable Lockean theory of
authorship to support it might be the creationist accounts which focuses
on unencumbered acts of authorial creative labour, harmonising well with
romantic conceptions of authorship.
However, although the above interpretation of authorial labour as
essential to the formation of intellectual products might be an accurate
description of the ways in which authors labour to produce their works,
this is not to say that we should leave our analysis at that. Indeed, the two
quotations by Becker and Waldron leave open the (highly likely) possibility
that authors often mix their labour in ways that are dependent upon the
prior labour of others. Thus, we can acknowledge that authors do indeed
exercise ‘agency’ in producing their works, without sliding into a seemingly
strong proposition that they do so entirely unencumbered by external
influences. As Hettinger argues:

Invention, writing and thought in general do not operate in a vacuum;

intellectual creation is not creation ex nihilo. Given this vital depend-
ence of a person’s thoughts on the ideas of those who came before her,
intellectual products are fundamentally social products (Hettinger, 1989,
p. 38).

Even so-called ‘primary’ authors are said to be transformative authors of a

kind, on this view, because their writings are nonetheless dependent on a
number of different background conditions, including works of authorship
that might have inspired and influenced them in their writing. It is still
important to have some way of recognising the extent to which a particular
act of labouring has transformed some previously existing idea or ideas
into something different – thereby enabling us to give recognition to that
author’s effort – but this is not to say that even the labour of primary authors
can be separated entirely from the prior labour of others. The intellectualist
account, as opposed to the creationist account, can leave room for this sense
of the ‘intertextuality’ of authorship, since it does not focus on the nature of
the work – i.e. whether it was created from nothing or from some previously
existing thing – but focuses instead on the author’s use of the work, and the
author’s labouring on it in the sense of bringing it within their legitimate
plans and purposes. As such, the intellectualist account can fit a wider range
of cases of authorship, and does not automatically support the questionable
36 Laur a Biron

view – associated with some forms of romantic authorship – that authors

work in a kind of a vacuum, independently of the labour of others.
Turning now to personality theories, much of the literature assumes that
they are closely allied with romantic conceptions of authorship. Palmer,
for example, suggests that the traditional personality theory errs in its
excessive focus on the personality of the author and in its appeal to romantic
notions of creativity, which stress subjective experience and its expres-
sion, emphasising the sublime experience of the artist as opposed to the
experience of the user or copier (Palmer, 1990). However, our above outline
of Hegel’s theory revealed a more complex picture: although Hegel argued
that personality is an inalienable part of the self, he also thought that acts
of expression could transform inner personality into external, alienable
property. Moreover, he viewed the alienation of property as crucial for the
development of personality. This has the result that Hegel’s own account of
authorship is not individualistic or creator-centred, but thoroughly com-
munitarian in its outlook. As noted above, Hegel argued that ‘the purpose
[Bestimmung] of a product of the intellect is to be apprehended by other
individuals and appropriated by their representation, thinking, memory,
thought, etc.’ (§ 69), expressing concern for the common pool of ideas,
not the legal protection of any one particular author or creator. As such,
the conception of authorship we should associate with Hegel is neither
‘romantic’ nor ‘individualistic’, but leaves room for the various senses in
which we might speak of authorship as collective, even when understood
within some kind of personality-based framework. It should be clear, then,
that Hegel’s writings cannot be used to give strong philosophical support to
romantic conceptions of authorship. This is a view echoed by Schroeder, who
argues that ‘the personality theory of intellectual property that dominates
American intellectual property scholarship is imbued by a romanticism
that is completely antithetical to Hegel’s project’ (Schroeder, 2005, p. 454).
A closer reading of Hegel’s account of intellectual property might also
challenge scholars to rethink the ways in which the personality theory
should be applied as a theory of authorship. Returning to Waldron and
Jaszi’s separate observations about authorship being at the nexus between
individual and social defences of copyright, Hegel makes some important
observations about the social goals that copyright can promote – for
example, his comment that legitimate copying can be a way of learning
or acquiring knowledge brings out a connection between copyright and
valuable social goals such as education. As Hegel notes, the ‘purpose
[Bestimmung] of a product of the intellect is to be apprehended by other
individuals … for learning means not just memorising or learning words by
Creative work and communicative norms 37

heart – the thoughts of others can be apprehended only by thinking, and

rethinking is also a kind of learning’ (§ 69). And Stillman points out that
people take possession of themselves, on Hegel’s account, through Bildung
(education), ‘acquiring the capacity to think of ourselves as persons by
regarding ourselves as members of a community of persons, a universal self-
consciousness’ (Stillman, 1991, p. 219). Theorists looking to strengthen the
connection between promoting authorship and encouraging desirable social
goals such as education might therefore find support in Hegel’s writings.
Finally, does a Kantian approach help to unpack and challenge copyright’s
alleged appeal to romantic conceptions of authorship? Kant’s writings on
copyright illustrate that he was committed to the view that the creative
process is in fact transformative; authors often use, copy and transform
existing materials in order to exercise their own communicative abilities.
This seems quite a different conception of authorship from the romantic
conception considered above. Moreover, in contrast to the emphasis on
‘authorial genius’ we often find connected to romantic accounts of author-
ship, Kant mentions the role of genius in his work on public reason as an
example of how genius must be independently governed and constrained
by the norms of reason. Rather than being a solitary exercise of individual
expression, that is, even the operations of genius must be constrained by
standards and principles. This is a far cry from the traditional ideal of the
romantic author-genius, sometimes thought to be responsible for so much
of the rhetoric surrounding the expansion of authors’ rights. Thus, neither
personality nor communicative approaches to copyright provide support
for romantic conceptions of authorship, and only one particular and limited
interpretation of the labour theory does so.

Collective authorship

Finally, we can turn to some questions about collective authorship. It is

important to keep in mind three different models of collective authorship
as we reflect on the extent to which these different justificatory frameworks
might be relevant to questions about multiple authorship:
i. transformative authorship, where an author or composer takes an exist-
ing work and transforms it into something else;
ii. multiple authorship, where a work might be divided into separate but
multiple contributions by different authors (such as an encyclopaedia,
classified in copyright law as a ‘collective work’); and
38 Laur a Biron

iii. collaborative authorship, where it is not possible to distinguish ‘isolated’

contributions, and there is joint collaboration between authors towards
some shared end (in copyright law terms, a work of ‘co-authorship’).

The discussion of romantic authorship above has already addressed ques-

tions about transformative authorship; the focus in this section will be on
collective authorship as either ‘multiple’ or ‘collaborative’ authorship.
At first sight, it might seem that non-proprietary accounts of authorship
would apply well to collective models of authorship. But it would be a
mistake to equate ‘single author’ with ‘proprietary author’. After all, prop-
erty rights can be held by groups and collectives – such as corporations
or co-operatives – as well as by individuals. In the case of a collaborative
work of authorship, why should we assume the authors in question would
be any less likely than single authors to view their efforts as requiring some
kind of proprietary protection? And there may be even more of a case for
allocating proprietary rights to multiple authors of the same work, since
boundaries would need to be drawn up making clear which elements of
the work belonged to whom, to ensure certain authors were not given
undue credit, or vice versa. With cases of transformative authorship, we
could see Shiffrin’s non-proprietary account having some application, but
it would still be important to analyse the sort of transformation involved,
and the challenge is to offer an appropriate theoretical framework for
doing this, if we assume that the primary author is not the ‘owner’ of the
primary work.
On the creationist account of labour, it would seem that any attempt to
make sense of collective authorship would be done with a strong presump-
tion of proprietary control to the primary author. However, with the case of
a collaborative work, there is a sense in which the different authors of the
work together form one ‘single’ author. It is conceivable that such a group
of this kind could be viewed under the lens of romantic authorship – after
all, we might describe their work as creative, and we might assume that as
a group they worked together in a solitary way, in the sense that they were
unencumbered by the influences of others except themselves. With cases
of multiple authorship, however, the creationist account would analyse
the distinct contributions of each author in a particularly slanted way:
it would be unlikely to allocate a share of proprietary protection to each
author equally, but would instead look to give priority to the ‘star’ or ‘lead’
author, understood as having had the truly original idea which the other
contributors were merely embellishing or developing in some way. The
same would apply for cases of transformative authorship, as we have seen.
Creative work and communicative norms 39

According to the intellectualist account of labour, there would be no

problem arguing that intellectual production was a shared enterprise, as
with the case of collaborative authorship: a group could be given similar
rights of self-government to individuals. But there would be no need to
view groups as having produced their works ‘romantically’ or in a solitary
or unencumbered fashion. With the case of multiple authorship, there
would be no obvious need to prioritise the ‘lead’ or ‘parent’ author as with
the creationist account, but each would depend more quantitatively on
the extent of the labour involved. Finally, with regards to transformative
authorship, we would consider the extent to which the transformative
author had brought the (transformed) work within their own legitimate
plans and purposes, rather than merely ‘free-riding’ on the labour of the
primary author, thereby violating their right to self-government.
Turning now to Hegel’s account, it might seem as though the notion of
personality is strongly tied to particular individuals, which makes it difficult
at first sight to see how an individual’s personality could be ‘merged’ with
a group or collective, whilst still retaining its personal quality. However,
Hegel’s own developmental model of personality, which I discussed above,
draws a connection between embodiment of personality in external objects
and the development of individual personality. As Charles Taylor puts it:

[…] personhood involves recognition – that space of evaluation of the

person’s existence is intrinsically and inseparably a public space … The
very struggle to gain recognition is fated to self-frustration because it
can never be properly achieved until we achieve the kind of community
described in the passage which ends this section [§ 195] in the Phenom-
enology: a society where the I is a we and we is an I (Taylor, 1991, p. 68).

Thus, Hegel’s developmental model of personality provides an interesting

basis for personality theories of authorship to be applied to cases of joint
or group communication.
Finally, Kantian standards of public reason might be applied to groups
as well as to individuals – at least, there is no conceptual problem with
the idea of ‘group’ communication, and no obvious bias towards individual
communicators. Indeed, the point of grounding Kantian theories in prin-
ciples of communication rather than individual autonomy is precisely to
guard against ‘individualistic’ readings of communications as ‘expression’.
For example, in cases of contested joint authorship – where one party
claims authorship and another denies it – standards of public reason might
be drawn upon to adjudicate between the claims. After all, copyright
40 Laur a Biron

requires that a contribution of joint authorship be original – and, as we

have seen, this harmonises with the principle of public reason called the
principle of authority. Copyright also requires there to be collaboration in
the sense of a shared purpose of some kind: and this might be spelled out
using the principle of consistency, which focuses on the dynamic nature
of communication, and the need for an author’s communication to be
adjusted in light of input from others. In some cases, individuals who
enable communication to be adjusted might not be ‘authors’ as such but
rather assistants or aids to authorship. But in other cases, the input could
be significant enough that two such individuals share a common design
for the work, and thereby become joint authors. Thus, communicative
models of authorship enable us to broaden our inquiry about authorship
beyond a proprietary focus on the fixed ‘work’ and an exclusive focus on
the ‘creator’s’ role in its production.
Of course, further refinement would be needed to address fully the ques-
tions about which forms of communication are authorial and which are not,
short of very broad principles of public reason, but the brief sketch above
indicates that the communicative approach has resources at its disposal
for such a project.

Conclusion

This chapter has examined some different interpretations of the writings

of Locke, Hegel and Kant, under the headings ‘labour’, ‘personality’ and
‘communication’ respectively. It has considered the extent to which they
have application to three important questions about copyright’s conception
of authorship: originality, the work and collective authorship in copyright
law. We have seen that, under these broad headings, various conceptions
of authorship seem to follow: neither the labour nor personality theories
are unified, complete theories of authorship, but might be interpreted in
a variety of ways; even the communicative account I have outlined is just
one amongst many explanations for how copyright might be grounded in
communicative norms.
Thus, as scholars from law and humanities continue to grapple with
categories of ‘authorship’ and ‘the work’, they should be prepared to
challenge the traditional bifurcations we tend to create in philosophi-
cal accounts of copyright. Indeed, one important overarching question
to consider is whether scholarship on authorship in the humanities has
anything to say about authorship as a category that can generate its own
Creative work and communicative norms 41

internal constraints against so-called copyright ‘expansionism’, rather

than these constraints being imposed from outside (by focusing on user
privileges, for example). This article has argued that certain components
of labour, personality and communication do indeed support the idea of
authorship as an internally constraining process – one that may contain
within its very definition the power to generate limitations on the legal
rights that attach to its products. The next stage forward for researchers
in philosophy is to work through the issue of how we might blend together
these theoretical approaches which are so often wrongly presented as in
theoretical opposition.

Notes

1. The distinction could be challenged on the basis that the material common
is not completely static; people labour on land and raw materials to change
and ‘cultivate’ it. But there does seem to be a difference between resources
that are given to us by nature and intellectual resources that are given to
us as a result of individuals creating, producing and inventing them; the
difference lies, as Shiffrin notes, in the fact that the initial expanse of mate-
rial resources exists ‘independently of human efforts’ (Shiffrin, 2001, p. 158).
Nonetheless, it must still be noted that this construal of the common does
not really explain the shared basis upon which individuals create (such as
linguistic conventions and ideas), and is silent on questions about how to
isolate one person’s labour from the shared basis upon which it depends.
I am grateful to Mireille van Eechoud for clarifying this point.
2. I am aware that these examples only relate to individual acts of authorship:
I discuss the implications for collective authorship further in the section
Collective authorship.
3. Although the personality perspective has obvious application to continen-
tal systems of copyright, here I consider their application to Anglo-Ameri-
can copyright doctrine and their discussion in Anglo-American copyright
theory. I am aware that personality theories have been discussed extensively
outside of the Anglo-American context, and regret that there is not scope in
this chapter to explore this literature.
4. See, for example, the collection of essays in the 2010 edition of The Monist
(93c: 3).
5. It is not clear that courts have in fact adopted this approach (Lavik and Van
Gompel, 2013). See also Lavik’s contribution in this book, especially the sec-
tion entitled ‘A lack of interpretative constraint’. Regardless of its practical
implementation, I mention it here it to illustrate the theoretical possibility
of Lockean accounts being used to support such a position.
42 Laur a Biron

6. For discussion of the ways in which an approach of this kind is adopted by

EU and Dutch Courts, see the chapter on ‘Creativity, Autonomy and Per-
sonal Touch’ elsewhere in this collection by Van Gompel.
7. Peterson, J., University of London Press Ltd v. University Tutorial Press Ltd.
(1916).

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Cases

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).

Mazer v. Stein, 347 U.S. 201 (1954).
CCH Canadian Ltd. v. Law Society of Upper Canada, (2004) 1 S.C.R. 339, 2004 SCC 13.
Feist v. Rural Publications Inc (1991) 499 U.S. 340 (1990).
University of London Press Ltd. v. University Tutorial Press Ltd (1916) 2 Ch. 601, 609-10.