Creative work and communicative norms: Perspectives from legal philosophy

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 authorship, 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 questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.