Around ten years ago, I wrote a little book called Creating Selves, a kind of cautionary tale in which I looked at the relationship between intellectual property as a system not only of law but also of cultural value. I noted the way in which copyright presents a kind of archive of creativity, a measure of the creative process, signalling that which is creative within the letter of the law and creating a kind of contrived aristocracy of ‘genuine’ works.
Around ten days ago, Advocate General Szpunar issued a startling Opinion (C-469/17 Funke Medien, EU:C:2018:870) which appears to articulate just such a hierarchy of low imitation and high art through the interpretation of copyright. In emphasizing ‘personal creative activity’ as something entirely different from other reasons to create, the Advocate General appears to be limiting copyright to those creations created only for genuine artistic purposes; that is, only for the purposes of art. And indeed, only for the purposes of copyright? In speaking of drafters preparing their work in the context of professional obligations, the Advocate General is reluctant to appreciate such intentions as relevant to copyright. And without the right intentions, ‘those documents have no real author within the meaning of that term under copyright law, with the result that there can be no question of protecting the author's link with the work’.
In extrapolating this approach, what is created is a hierarchy of ‘folk’ or collective projects on the one hand and the loftiness of personal intellectual work on the other. Potentially, this creates a division of labour, as it were, and makes the ‘originality’ of many kinds of creativity so remote as to become an utter mystery to the law. Michel Foucault, in his famous essay, ‘What Is an Author?’, wrote, ‘The author is the principle of thrift in the proliferation of meaning’. In other words, a kind of stable and coherent ‘author’ functions to focus and curtail any flights of meaning. In the limitations he places on the qualification of ‘author’, it appears that, according to the Advocate General, the author is not only the principle of thrift in the proliferation of meaning, but also the principle of thrift in the proliferation of copyright.
Describing the copyright of the Federal Republic of Germany as ‘a sort of legal fiction’, the Opinion would also dethrone Crown copyright in the UK and unseat similar systems throughout the EU. According to the Opinion, civil servants are simply discharging their professional obligations. That is, they are working without the relevant intention, so to speak, and as a consequence ‘those documents have no real author within the meaning of that term under copyright law’. That is, without the relevant intention, the author is not an author. While this is an Advocate General's Opinion, and the Court ultimately may not go so far, it is certainly remarkable within a broader discussion of directions in copyright and authorship. From mandarins to macaques, it is all about the author.
The Opinion rejected the use of copyright as a means by which to protect the sensitive or confidential nature of documents. However, is the intention relevant? Is it relevant why a copyright holder may seek to stop the publication of copyright material? Nevertheless, the Advocate General recruits a pretence of intention as a limit upon the scope of copyright: ‘[T]he Federal Republic of Germany decided to achieve the same result by invoking its copyright over those documents, despite the fact that copyright pursues completely different aims and it is not even established that those documents are works for the purpose of copyright’. The most striking part of this paragraph is the notion of ‘works for the purpose of copyright’, as though copyright materializes the creative process, as though copyright is itself the reason to create. It would seem to describe a situation of copyright for art's sake becoming art for copyright's sake.
The Opinion appears to reinvigorate the mythology of the romantic author, the creative genius, the genuine creator. Copyright becomes not merely a narration of objects, but a sensation of distinction and taste. If you are not creating it for the purposes of copyright, it is not copyright. If you are not creating it for the purposes of art, then it is not art. But as Marcel Duchamp famously said, ‘I don't believe in art. I believe in the artist’.
To return to the question of the author, Foucault asked, what difference does it make who is speaking?
Perhaps more pertinent today, what difference does it make why?