Author-Centered Copyright Enforcement?

This Symposium explores our flexibility within international copyright law to better serve the purposes of copyright and, specifically, to benefit the individual human creators (authors) of our cultural and intellectual heritage. Where other contributions consider the potential for a different allocation of rights, here I explore the potential for author-centered copyright enforcement: could we frame copyright enforcement practices and remedies with the explicit goal of promoting the interests of authors? Could enforcement reform avoid the zero-sum game that pits homogenous and undifferentiated “copyright interests” (authors and publishers) against the rest of the world (commercial infringers, users, intermediaries, and others)? The international legal framework governing copyright enforcement is relatively open-textured. It is worth at least considering whether we could tailor civil enforcement procedures and remedies so that authors can win without ever more draconian enforcement. Apart from certain very specific contexts—such as moral rights—authors are rarely recognised as having interests in enforcement distinct from those of other right holders. But although authors and cultural intermediaries (publishers, record companies, and other disseminators of content) “do market battle shackled one to another as they do battle with users” with the “prime aim” of “driv[ing] away pirates and freeloaders and [extracting] returns from licensees,” their interests when infringement is alleged are not co-extensive. The division of risks and rewards in litigation can reflect well-known imbalances in bargaining power between authors and disseminators. Contracts may allocate significant litigation risk to authors, while allocating litigation decision-making and rewards to the entity that owns copyright. Authors have distinct moral claims, and personal interests not likely to be felt with the same intensity by publishers or record companies. Further, needs and desires of authors can conflict with those of investors. I have argued elsewhere for better recognition of the personhood and interests of defendants in thinking about copyright procedures and remedies and, in other earlier work, focused on how we might get better value from the public investment in copyright enforcement. So my purpose here is not to advocate for a model, but rather, to demonstrate that there are author-friendly alternatives to the constant upwards ratchet of copyright enforcement reform