Chapter 2: Locating the Author

There is a strange irony in the term author. In most usages across the world, the “author” is a common sense and an obvious term. An author is a person who writes something. However, the literary theories sought to address the complex process of creation. Thus, often deeply metaphysical concepts, the positions and discourses around the author have vacillated across centuries and across countries. This discussion attempts to bring together and shape the geographical contours of the term “author” and how the boundaries became enmeshed with the status and nature of copyright law of the land. Much of the discussion here also aims to examine the role that copyright law has played in the genealogy of authorship, in the way in which copyright law puts a stamp of identity on the author as “the author”. Copyright assumes as the subject of its enquiry the rights of the author. Simple as it sounds, this assertion is of great import for our understanding of the conflict over copyright. At the heart of the statement lies the presumption that we can clearly and without any problem make sense of the idea of authorship. To juxtapose this statement with another, ask any person to rattle off the names of the greatest authors, and you will find a varied crowd ranging from Shakespeare, Chaucer, Kalidas, Valmiki to Salman Rushdie and perhaps Jeffrey Archer. This is, quite obviously, a list of authors; it is not difficult to come to that conclusion. However, this commonplace understanding of the author as a category needs to be challenged. The discussion then expands to the territory that perhaps law and culture are not such distinct units of analysis but generate ideas and actions in simultaneity.

Lawrence Liang in his article “Conceptualizing Law and Culture: Rajnikant and the Sign of our Times”,quotes Rosemary Coombe in this regard who says that “an exploration of the nexus of law and culture will not be fruitful unless it can transcend and transform its initial categories. A continuous mutual disruption–the undoing of one term by the other—may be a more productive figuration than the image of relationship or joinder”. According to Liang a new way of thinking and meaning making then emerges on viewing both law and culture as practices that are constantly changing, and in trying to make sense of law as culture and culture as law, and to begin to think about how to talk about and interpret law in cultural terms. His paper then goes on to locate a particular instance of interaction between legality and film cultures.

Before we go on to understand the wider ramifications of this idea, it is perhaps pertinent to start at the beginning and look at the approaches of Roland Barthes and Michel Foucault in discussing the notion of the Western author.

French literary theorist, Roland Barthes in an essay titled “The Death of the Author”, urged a shift in critical attention away from the creator of the text, to the reader who reads and makes meaning of the text. By taking the historical or biographical author out of the text, the reader is liberated from the interpretive tyranny of the text, rendering the author a mere “scriptor” (a word Barthes uses to disrupt the traditional continuity of power between the terms “author” and “authority”) who exists to produce but not to explain the work.

In response to Barthes, philosopher Michel Foucault redefined and thus revived the author as a relevant function of reading, criticism and analysis. He defines the author in his work “What is an author?” as-

The coming in to being of the notion of the “author” constitutes the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy and the sciences.

Even today when we reconstruct the history of a concept, literary genre, or school of philosophy, such categories seem relatively weak, secondary, and superimposed scansions in comparison with the solid and fundamental unit of the author and the work.

Foucault noted that without a legal definition of an “author”, the language of critical discourse would lack its operational vocabulary because without a name to attach to a piece of work, no one could be held responsible for the contents and ramifications of the work. Cultural theorist, Siva Vaidyanathan in his book Copyrights and Copywrongs, The Rise of Intellectual Property and How it Threatens Creativity, discussing the genesis of the author, shows that for Foucault the author is a legally prescribed and described entity, not necessarily a flesh and blood human being and certainly not a brooding romantic “genius”. For him, an author is not just a “writer” but a figure built when the domains of culture and law collapse. And the author functions as a locus for a complex network of activities and judgments that deal with ownership, power, knowledge, expertise, constraints, obligations, penalties, and retribution. The author resides in the legal and cultural function, but what also matters is what he does in a culture and not necessarily whom he represents. This depersonalized “author-function” according to Vaidyanathan has four traits.

  • It is linked to the legal system that regulates discourse within a culture.
  • It operates differently in different cultures.
  • An “author” does not precede a work, but comes in to existence because of the work.
  • Lastly, an author has multiple identities, perhaps even conflicting with or independent of each other.

Vaidyanathan however, goes on to critique the usage of the term “author-function” in Foucault’s analysis, which presupposes that the author, who has a legal and cultural status could not exist before the 18th century, when the first legal codifications of authorship emerged from European courts and Parliaments. This invention has been dubbed “Romantic authorship”, and most scholars ascribe to Foucault’s definition unquestioningly. Vaidyanathan cites the example of Bhagavan Vyasa (author-function of Mahabharata) to show that author- function did precede 1709 and presents a fascinating account in the history of authorship. Vyasa was not an earthly scribe for divine words. Instead, the sage enlisted the help (and four arms) of Lord Ganesha as a scribe for Vyasa’s narration of the story of Mahabharata. Vyasa had and still has tremendous cultural power and matches all of Foucault’s criteria of author-function.

Vaidyanathan suggests that instead of looking purely at the dimensions of “romantic” authorship, which neither explains the development of copyright laws, nor provides an insight on to the concentration of content, ownership and control. He defines the “author” primarily as a cultural entity: a “producer”, the “unromantic author” who might be a young rapper or a corporation like Disney.

Author and Copyright: 3 problematic assumptions

1. Every Author is a Genius and Only Produces Works of Genius

This isn’t something that the law says explicitly, but in fact ends up meaning. The idea of a creative genius – the free and autonomous human being who creates unique works of art unhindered by external influences – is a product of the humanist ideas of the Enlightenment period in Europe. Martha Woodmansee traces the process by which in the 18th century, the element of “inspiration” or the genius in writing came to be regarded as something internal, personal, rather than external. In her view, this change was necessary to secure the writer whose arena had, over the course of the 18th century, shifted to the marketplace. For writing to be seen as an economic activity, it had to be regarded as the product of the individual mind, which was achieved by the notion of the genius.

In the specific context of the Indian Copyright Act, this notion plays itself out in, say, the way that all works of an author enjoy a uniform copyright of lifetime of the author plus sixty years. The author is presumed to be always expressing himself. Additionally, in the way that the law couches the requirement of originality in negative terms (original = “not copied”), every work of every author is immediately created on an equal footing. Mark Rose points out that this loose standard is concomitant to a law that bases its protection on the uniqueness of the identity of the individual who is its apparent source. This could either mean that all works of an author are equally protectable because each carries her/his imprint, or that some authors are devoid of personality. The law prefers the former approach.

2. The Author is the Originator of Meaning

This is, again, an assumption implicit in the romantic humanist tradition outlined above. In the new theory of genius and originality, as William Wimsatt in Literary Criticism: A Short History puts it, “the only way to be sure of having any worth was to be in on the threshold of literary history, to get there first, even if with the least. “.It is not hard to see how this concept has been imported into contemporary copyright law. For instance, the way in which the author retains control over derivative works – translations and adaptations – or the exception in an infringement action where the work has been independently produced. Advances in literary theory in the previous century, however, rebut these assertions of the humanist tradition. Structuralist literary theory, for instance, argues that any piece of writing or any signifying system has no origin and that authors merely inhabit pre-existing structures that enable them to make any particular sentence. Hence the idea that ‘language speaks to us’ rather than us speaking language. So what we mis-perceive as our originality is simply our recombination of some elements in the pre-existing system. Hence every text we write and sentence we speak is made up of the already written.

3. The Author is a Constant Entrepreneur, Rationally Interested in Maximising Reward

This attitude of the law is best summed up in statements such as the following passage from a Ministry of Human Resources and Development report on piracy. “The basic idea behind such protection is the premise that innovations require incentives. Copyright recognizes this need and gives it a legal sanction. Moreover, commercial exploitation of copyright yields income to the creators and thus making pecuniary rewards to individual’s creativity.”

The law delineates in painstaking detail each of the rights the author has, it gives them a term of lifetime-plus-sixty and then makes the rights wholly assignable. What is more, it places inconvenient obstacles to renunciation that prevents those who disagree with the system from opting out.

One criticism of this approach is that it leads to, in NYU law professor Rochelle Dreyfuss’ words, the “if value, then right” theory of creative property — If there is value, then someone must have a right to that value. One may observe this principle in operation in such actions as those by a composers’ rights organization, ASCAP, which sued the Girl
Scouts for failing to pay for the songs that girls sang around campfires. More recently J.K. Rowling’s publishers instituted legal proceedings to prevent “unauthorized” cardboard installations of Hogwarts from being erected during celebrations of a popular festival in India.

At a basic level, however, this approach also obscures the distinction between the incentives required to create a work and those that are required to disseminate the works to the public. So not only is the author’s behavior expected to be entrepreneurial in her creative endeavors, she is also supposed to be entrepreneurial in terms of business acumen. Having secured for her works an assignable right, the law expects the author to show so much prudence as to determine the right price at which to sell his wares in the open market. Even if we are coaxed into believing that authors are instinctively entrepreneurial when they create, it is intuitively evident that they may not exhibit the same sharpness while negotiating business deals that precede the publication and distribution of a work. In India, in most cases, royalty to authors varies from six percent to a maximum of 10 percent of the book’s price. By contrast, as much as 40-50 percent of the price goes to retailers. In some cases, authors are offered a bulk amount in return for the transfer of the “copyright” itself (as opposed only to the right to reproduce/publish). Some agreements have clauses which bear no connection with the rights granted under traditional copyright law, for instance, a “right of first refusal” clause, by the terms of which an author would be obliged to offer her/his subsequent works exclusively to the same publisher for publication, who would retain the right to decline to publish. Instances of publishers incorporating works of smaller authors into the works of “big name” authors without permission are not uncommon.

This shows up copyright as an instrument that does not do much to aid the author-in need, but rather facilitates the easier appropriation of works by publishers and other rentiers of the IP system.

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