The Ideology of Authorship Revisited

This paper reexamines the historical narrative of copyright law and the ideology of authorship. This strand of copyright scholarship that emerged in the 1990s highlighted the ways in which the development of modern copyright law was bundled with the rise of a new ideology of authorship as an individual act of original creation ex nihilo. Despite its important insights, the historical narrative of authorship suffers from two deficiencies. First, with a few important exceptions, scholarship in this vein tends to focus on seventeenth and particularly eighteenth century England. Intended or not, this periodization conveys the impression that the story of original authorship and copyright was completed by the end of the eighteenth century. Second, the relation between the ideology of authorship and copyright law are too often presented as direct exact correlation. This neglects the complexity of the interaction between the two and attracts the criticism that large parts of the actual legal doctrines of modern copyright law seem diametrically opposed to the presuppositions of original authorship. The paper remedies those shortcomings of authorship scholarship by focusing on the development of copyright law and discourse in nineteenth century America. It argues that much of the coming to terms with the new dominant status of original authorship and the weaving of this ideology into the actual doctrines and modes of thought of copyright law took place during this later period. Furthermore, the diffusion of the ideology of authorship into copyright law never created an exact correlation between copyright doctrine and the theoretical notions of original authorship. Instead, the paper argues, the trope of authorship was used in a variety of forms and contexts. Sometimes individual authorship was the direct foundation of significant developments. At other contexts it was explicitly rejected. In yet other cases, the ideology of authorship was used strategically or in a way that created a widening gap between legal rhetoric and actual legal arrangements. The paper explores this complexity of the relationship between copyright and authorship as it consolidated during the nineteenth century by analyzing the emergence of new doctrines and modes of analysis such as: originality doctrine, the invention of the notion of the intellectual work and the work for hire doctrine.