Copyright and the ‘Profession’ of Authorship
"Copyright and the 'Profession' of Authorship" is extracted from the book "Across Intellectual Property - Essays in Honour of Sam Ricketson", published by Cambridge University Press 2020.
Victor Hugo, the creative colossus of the nineteenth century, was one of the great champions of the rights of the author. Speaking in 1878, Hugo
said: 'All the old monarchical laws denied and still deny literary property. For what purpose? For the purpose of control. The writer-owner is a free writer. To take his property is to take away his independence.'1 Hugo's involvement in the discussions leading to the first international copyright convention is the stuff of legend. His focus on the rights of the author shaped the drafting of the Berne Convention, the subject of such considerable scholarship of Sam Ricketson.2
Likewise, in national legal systems, the notion of authorship is at the heart of copyright, which is ultimately concerned with the protection of copying of the form of expression of an author.3 For instance, the concept is simply framed in section 32 of the Australian Copyright Act 1968 (Cth) (Copyright Act) – copyright subsists in an original work, and in section 35(2) of that Act, which provides that the author of a work is the owner of copyright subsisting in it.4 Yet the term author is barely defined in the Copyright Act, and in practice it is a concept which wears many faces.
In this chapter, drawing on my experience as a practising copyright lawyer,5 I point out, that the recognition of authorship in copyright law runs from the bland to the sublime. A parts list may be protected,6 as might a great work of creative genius. It is an aspect of the 'genius' of copyright that the same regime protects the limitless range of human expression all within the rubric of the concept of 'a copyright work'.
Authorship: Scope and Limits
How does one discern when the moment of authorship commences? Is it, as I am doing, at the time of putting my own words on the page? Does each word and the ordering of the words capture something unique about me as an author? Presumably the formulation of the previous sentence (and indeed this sentence) indicates something about me as the author. Or, by venturing these thoughts (and claiming private ownership in them as expressed pursuant to the Copyright Act), am I here being a mere mouthpiece for the crypto-capitalist quest to enlarge the scope of personal property rights in the limitless empire of intangible private property, which has become so dominant in domestic and international commerce?
And where does authorship end? The concept of author as director is, of course, long and well-established in the making of movies. Alfred Hitchcock, the auteur, is well recognised. There is the much-analysed 'Hitchcock Touch' which distinguishes his movies.7 How do we understand his authorship? Does one become an author by the crafting of the scene of a film written, photographed and performed by others – in the sense of the lending of a veneer across the entirety of the work? And what of the definitive performance of a piece of music, played with the same notes available to any performer? Is there authorship? How is it to be defined? And then there is the orchestra conductor as author or interpreter. It is surely one of the most unusual and enigmatic acts of authorship in the creative arts – his or her back to the audience, and not a single note is played. And yet, the mere mention of a Rattle, Barenboim or Dudamel will draw a full house, and we won't hear peep from them and will barely get to see their faces. We watch their hands in frenzied movement directing the performances of a large group of highly talented performers. One wonders what would happen if Sir Simon did not turn up? Would disaster and embarrassment on stage ensue? It would be unthinkable for the London Symphony to perform on stage without its conductor. The Copyright Act acknowledges the role of a conductor as 'a performer' in s. 191B, and accordingly grants performers' rights protection to conductors with respect to the sounds made in the conducted performance.
As matters stand, authorship of works involving creative endeavour which is not reduced to material form will be excluded from copyright protection, while a vast array of creative endeavours that do result in material forms are accorded the status of an authored work. This is fundamental to the operation of the Copyright Act with respect to works.8 And one has to ask why so much latitude is granted to authored works reduced to material form when other types of authorship may be left outside the scope of copyright protection altogether (or only admitted on the most limited terms).9
To give some more particular examples:
Arts and Crafts
Auguste Rodin’s works continue to be made from moulds presumably produced by the great (and very dead) man. In the art market, works said to be produced by Rodin from the moulds which he made are considered to have a particular special value – and are promoted as Rodin originals. And then there is the controversy of works produced today from the Rodin moulds. Are they genuinely ‘works of Rodin’, or the product of a form of mass production? The issue is particularly highlighted with the capacity to bypass the mould with the potential use of 3D printing.
The glass craftsman Dale Chihuly makes little himself, but directs a process, which results in the production of complex and beautiful glass pieces. He is typically credited as author of these pieces – without his attribution the value of these works would be significantly reduced. Attribution identifies Chihuly, but he may not have laid a finger on any glass in the course of the creative and manufacturing process.
The Australian artist Patricia Piccinini also directs a complex manufacturing process. Her 'out of this world' and yet often life-like creatures are the product of complex planning and fabrication, involving a creative and manufacturing team which she leads. While she supervises all stages in the realisation of her intended imagery, she needs fabricators to give effect to her artistic creations. They are highly expert and she would readily acknowledge that her works would not exist without them.
It would be odd to treat the craftsperson working behind the scenes as 'a mere scribe', in the sense of a transcriber of a speech,10 and yet the 'authorship' of the highly skilled artisan collaborator is invariably not recognised other than in background materials.
Many larger works of Aboriginal art are the product of group processes. Even smaller works have elements depicted by some unknown person with the defining touches done by the attributed author. Often it is impossible to discern the work of the attributed author or authors.
Aboriginal art often involves no statement of authorship recorded by the artist on the work. In fact, it would be unusual to find a signed work of a traditional Aboriginal artist. In the vast array of rock art found throughout Australia, it would be very difficult to identify one instance of authorial attribution.
I suggest that this practice of not signing works is, at least in part, today concerned with the rejection of the idea of private or individual authorship in a cultural sense. The art market demands attribution, but the artists and their communities can often be indifferent to public declarations of attribution.
While authorship of the works of traditional Aboriginal artists in a conventional Western sense (attracting copyright protection) might be uncontroversial, the artist often understands his or her practice as occurring in a communal environment where artistic expression is recorded for, and on behalf of, the community. Senior artists work in an environment of management, permissions and controls. A particular artist may have the exclusive right to depict an image, such as the Magpie Goose (in the case of the Arnhem Land artist and Ganalbingu elder John Bulun Bulun).11 He does so as the delegate of the community with special roles and responsibilities which attach to the exclusive right to depict particular images. He functions under the management of clan leaders and is responsible to them for the proper depiction of the imagery which he is entitled to depict exclusively.
In the Bulun Bulun case,12 Justice von Doussa sought to engage with the gulf in the conceptual approach to the issue of authorship and ownership from a Western perspective compared with the traditional Aboriginal approach, likening the position of the traditional Aboriginal artist to that of fiduciary with obligations to the beneficiaries of the fiduciary relationship to properly protect a permitted artwork from wrongful reproduction by bringing an action for infringement.13 The judge interestingly speculated on the legal standing of the beneficiaries, or tribal owners, in an infringement setting in a case where the fiduciary failed to act:
'had Bulun Bulun merely failed to take action to enforce his copyright, an adequate remedy might be extended in equity to the beneficiaries by allowing them to bring action in their own names against the infringer and the copyright owner, claiming against the former, in the first instance, interlocutory relief to restrain the infringement, and against the latter orders necessary to ensure that the copyright owner enforces the copyright.'14
In an entirely different setting, there is the age-old practice of schools of artists who would work with the great masters, such as in the case of Rembrandt or Caravaggio, with the line being obscured between the work of the master and that of the pupil. Sometimes a work is credited 'of the school', a kind of satellite world in the great universe of the eternal masters of the classical arts. Seemingly never-ending contests are fought out among art experts to determine whether a work was that of the master or a pupil in the style of the master. A determination against attribution in favour of the artist will almost inevitably result in a work being relegated to a lesser place in public exhibition or being removed from public viewing entirely.
Similarly group authorship, even under the command of the master, does not quite carry the same appeal as the unaided hand of the sole genius.
A piece of music of Vivaldi has said to have been 'discovered', which prior to the announcement of the discovery was thought to be the work of a pupil of Vivaldi.15 Music experts declared the work to be a work of Vivaldi. How? Because it was said to bear the distinctive mark of his musical hand – a kind of assumed DNA that only specially trained ears can hear. The attribution instantly raised the profile of the work to a new status, such is the potency of authorial attribution.
Originality versus Creativity
Copyright is, of course, agnostic about creative input. In the case of works, copyright protection essentially requires an act of authorship by reduction to material form in a manner which involves something more than copying. The threshold for originality is low. There is no requirement of intellectual innovation or any contribution to learning in order to satisfy the requirements of protectable authorship, which opens copyright to the protection of a very wide range of works, and well beyond works of any artistic merit. Though linked as subjects (as sub-categories in the study of intellectual property), copyright and patents could not be further removed on the threshold requirements for subsistence.
The focus for protection in copyright is on form of expression, or the individual voice, which is a very narrow basis for founding protection – that is, based on the particular 'voice' or selection of the author.
The telling of someone else's story can enjoy its own protection under copyright,16 just as the depicting of an artwork based on ideas supplied by another person.17 The telling of the same story can have many different fathers or mothers from a copyright perspective. In the more remote corners of copyright protection, an author can be a compiler of data, such as of a price list for car parts – as long as a process of individual selection is made.
Originality can be expressed in quite unusual ways. For instance, Elwood Clothing Pty Ltd v. Cotton On Clothing Pty Ltd18 involved the issue of authorship by means of the layer of visual expression beneath the conspicuous placement of visual imagery on a garment. In that case, there was the copying of stylistic features of the design of artworks on Elwood garments, based on the placement of words, numbers and graphic images. Cotton On copied the location of the various features of design on their garments, but changed the words, numbers and graphics. For example, where the number '1' was located on the Elwood garment, Cotton On substituted another number in the same position. The question for infringement purposes concerned the proper identification of the original elements of the Elwood design and implicitly whether the Cotton On works constituted new works though stylistically they were copied from the Elwood designs. Elwood failed at trial to prevent the copying conduct, which was considered to be the copying of ideas rather than form of expression due to the changes in the expressed conduct. On appeal, a contrary view was taken which embraced the location of key elements of the garment designs. In argument on appeal, the example was given of the artwork of the famous Australian/New Zealand artist Rosemary Gascoigne, whose work features images showing letters and numbers against road-sign yellow backgrounds. It was argued, by way of analogy, that her work would be infringed by simply changing the numbers and letters but keeping them in the same positions, as occurred in the Cotton On instance. This approach was accepted on appeal.19
One of the most celebrated instances in modern times for the lowthreshold perspective was highlighted by Andy Warhol's famous Campbell's Soup Can paintings – every soup label and can in the range was lovingly depicted in large-format individual panels.
Warhol was depicting the soup can with its label, in a way to convey the can in three dimensions, and then across the homey range of soups – chicken and vegetable as well as hearty beef. By so doing, he was bringing the skills of high art to the forefront of the authorship debate in contemporary art, closely linking high artistic endeavour with the banal, and thus removing the kind of moral authority or superiority one might otherwise associate with creative authorship.
Here we have one of the great modern artists putting his signature to images of the most mundane and uninteresting products (at least to those who could contemplate affording buying one of the panels). The works are defiantly anti-authorial and deliberately challenge the notion of art as a means of unique and often agonised or ingenious self-expression. The artist has facetiously given way to the sterility of the consumer market and as such has divorced himself from the traditional role of the artist standing above the day-to-day discourse of ordinary people.
These works are an expression of rebellion against traditional notions of authorship, raising in turn the interesting and challenging notion of whether the copyright in Campbell's soup labels was infringed. It is almost inconceivable that Campbell's soups would (or could) sue Warhol for infringement, but, of course, why would they even contemplate something so ridiculous in the face of the immortalisation of the most humble soup label? Notions of authorship, as a statement of creative superiority, were turned on their head.
In 2017, the UK artist Damien Hirst challenged notions of fakery with his much-noted exhibition of fake 'lost treasures' displayed in Venice.20 Hirst created his own vast universe of lost treasures supposedly found on a wreck – all of which he created and which he displayed with a litany of deliberately ridiculous attributions to ancient craftsmen. He was clearly the owner of copyright, as author, of a host of works which he falsely attributed to others, raising an interesting issue of what would have happened if one of his so-called ancient finds came to be copied. The pretence of false attribution would no doubt quickly dissipate.
For me, one of the great moments of authorship in contemporary art practice occurred in the remote Australian outback town of Papunya in the early 1970s. The use of the term remote is to understate the isolation of Papunya, situated hundreds of kilometres from Alice Springs in the heart of the central desert of Australia.
The story of Papunya and its art movement is fabled. A school teacher in the early 1970s, Geoffrey Bardon, became interested in the possibilities for Aboriginal artists exploring the ancient skills of body painting and drawing in sand. He bought some acrylic paints and encouraged the artists to experiment with oil painting and the colour range permitted by commercial paints. They painted the walls of the school building and some boards – displaying highly coloured dots and lines, transforming the craft of much more simple drawings in sand or on bodies which had great tribal meaning. The artists had themselves never seen the use of acrylic paints in art before. They had never been to art galleries and had no idea about the evolution of art forms in the contemporary art world. They were not meaning to imitate any external artform and yet were using materials otherwise unknown to them in visionary and brilliant ways.
As a moment of authorship, the event was unique. Here was an entirely original artform which did not emerge from the canon of world art, but which was entirely original, and was the starting point for an indigenous movement which had not previously engaged with the colour palate of acrylic paints.
It was a remarkable achievement. While it conveyed the hallmarks of being ancient, it was in fact truly contemporary, and inspired a great wave of painting which now defines the desert art movement of Australia. The great canvasses of this movement adorn the most important art galleries of Australia and a number of the great art galleries of the world. They look timeless, but in fact the form of the depiction is relatively contemporary. And once the range of colours became available, the artists did extraordinary things with colour – depicting their desert country in a way which was previously unseen by the general public. The complete originality of the movement, as distinct from a movement which was derivative and responsive to a predecessor movement, puts these developments in a unique class.
It is not surprising that infringers moved in quickly to take advantage of the new artform and the evolving art movements of Aboriginal Australia which emerged at this time.
An initial challenge in managing the problem of infringement focussed on the issue of subsistence. Were the artists genuinely authorial or mere scribes of an ancient practice? The scribe argument has been overwhelmingly rejected as a view that reflected ignorance of the profound Aboriginal art practice which vividly engaged with the remarkable natural environment of our homeland.21
Technical Art and Artificial Intelligence
Climbing down from these heights, the creative neutrality of copyright is a key feature of its universal application. I have mentioned price lists. There is a pantheon of simple works (in the sense of only passing creative interest) which have come to be protected.
In a series of cases, the display home builder Barrett Homes Pty Ltd,22 trading as Porter Davis, established an entitlement to copyright protection in a section of a display home which featured a series of rooms located around an exterior entertainment area, which was promoted as an al fresco dining area. One of the most contentious issues in the cases was the claim of copyright subsistence in the identified part of the house plan, which came to be referred to as the 'Al Fresco Quadrant'. Barrett established authorship of the part of the plan notwithstanding allegations that it must have been copied from earlier iterations of the al fresco dining concept. Notwithstanding extensive attempts to prove the influence of these earlier iterations, the particular expression of the form of the feature could not be found in any variant said to have been available to the author of the particular variant sought to be protected by Barrett. Findings of subsistence in favour of Barrett were made in a series of cases involving different claims of infringement against competing display home builders. The claims were also challenged before Full Courts, which confirmed the subsistence of copyright in favour of Barrett.23
In Telstra Corporation Ltd v. Phone Directories Co Pty Ltd,24 the limits of this creative neutrality were identified in the requirement to at least have a human author at the helm. The issue there concerned a computer generated alphabetic listing of names, addresses and telephone numbers in the white pages telephone directory. While humans contributed individual lines of data, as new telephone connections were made, the compilation (literary work) was produced by a computer ordering the data. The Federal Court denied protection on the basis that a work of authorship, being the compiled list, required human authorship. In essence, the court found that there were human contributors of data but there was no human author of the compilation.
On appeal, Justice Perram stated: 'Whilst humans were ultimately in control of the software which did reduce the information to a material form, their control was over a process of automation and they did not shape or direct the material form themselves (that process being performed by the software). The directories did not, therefore, have an author and copyright cannot subsist in them.'25 His Honour, adopting the metaphor of an autopilot, said of the making of the compilation that it is 'flying itself'.26
This requirement exposed shortcomings in the ambit of the protection of works in an age of automated authorship. In short, works created by artificial intelligence fall outside the notion of authorship as we know it in the Copyright Act. Invariably, there will be a need to address the protection of works of artificial intelligence, but this will require a significant revision of present notions which equate authorship with the 'human hand'.
The UK Copyright, Designs and Patents Act 1988 provides in section 9(3) that: 'In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.27'
It is anticipated that future Australian legislation on this issue will follow this approach and, in a similar manner, the approach which applies to producers of a film, in section 98 of the Copyright Act, where the maker of the film for valuable consideration (i.e., the producer) is deemed to be the owner of copyright in it. In other words, the person who causes the making of an automated compilation (for valuable consideration) will be deemed to be the author or owner of copyright in it, with 'owner' being preferred to the artifice of 'author'. Clearly there is a need to address this issue, and invariably in a manner which departs from the threshold requirement of human authorship, which ordinarily applies when regard is had to subsistence.
Copyright has traditionally been agnostic on the issue of authorship, and has eschewed notions of creative authorship. While this approach has held good in the context of human authorship, copyright faces enormous challenges with the emergence of artificial intelligence and the notion of machine-originated authorship, potentially transcending even the notion of there being a person who makes the arrangements necessary for the creation of a work (referred to earlier). It is inevitable that this issue will need to be addressed, and possibly outside of the bounds of conventional copyright. Clearly, the Victor Hugo notions of 'the rights of authors', and ideas of providing incentives for authorship which permits protection for many years after the life of the author, become meaningless in this setting.
In many ways the story of copyright has been a story of 'catching-up' as developments in technology raise considerable challenges to the existing body of copyright law, such as in the case of the need for protection of computer-generated data. The emergence of authorship by artificial means unquestionably raises the need for some fundamental rethinking about the nature of copyright and authorship.
1 As quoted in James Boyle, 'Victor Hugo: Guardian of the public domain', The Public Domain: Enclosing the Commons of the Mind, 18 July 2014, retrieved from www.thepublicdomain.org/2014/07/18/victor-hugo-guardian-of-the-public-domain.
2 See Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986 (London: Centre for Commercial Law Studies, Queen Mary College, Kluwer, 1987); Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond, 2nd ed. (Oxford: Oxford University Press, 2006).
3 Walter v. Lane  AC 539, 554; Donoghue v Allied Newspapers Ltd  Ch 106, 110 (cited as Donoghue).
4 See IceTV Pty Ltd v. Nine Network Australia Pty Ltd (2009) 80 IPR 451, , , [47–9],  and .
5 In a number of the cases mentioned in this chapter, I appeared as counsel, and in some of them alongside (or in opposition to) Sam Ricketson who invariably brought considerable authority and scholarship to the approach adopted.
6 Autocaps (Aust) Pty Ltd v. Pro-Kit Pty Ltd (1999) 46 IPR 339.
7 See, e.g., Wieland Schwanebeck (ed.), Reassessing the Hitchcock Touch: Industry, Collaboration, and Filmmaking (Cham, Switzerland: Palgrave Macmillan, 2017).
8 See Copyright Act 1968 (Cth) s. 22(1).
9 See, for instance (re performers’ rights), Copyright Act 1968 (Cth), Part XIA.
10 See Donoghue  Ch. 106.
11 Bulun Bulun v. R & T Textiles Pty Ltd (1998) 41 IPR 513 (cited as Bulun Bulun case).
13 Ibid., 529, 531.
14 Ibid., 531.
15 Dayla Alberge, ‘Vivaldi’s lost masterpiece is found in library archives’, The Guardian,
15 July 2012, retrieved from www.theguardian.com/music/2012/jul/15/orlando-furiosovivaldi-1714-version.
16 Walter v. Lane  AC 539.
17 Thus, for example, Kenrick & Co v. Lawrence & Co (1890) 25 QBD 99.
18 (2008) 80 IPR 566, and on appeal at (2008) 172 FCR 580 (cited as Cotton On).
19 Cotton On (2008) 172 FCR 580 at –.
20 ‘Damien Hirst: Treasures from the wreck of the unbelievable’, Palazzo Grassi, retrieved from https://bit.ly/2khgjga.
21 Milpurrurru v. Indofurn Pty Ltd (1994) 30 IPR 209 at 224.
22 Metricon Homes Pty Ltd v.Barrett Property Group Pty Ltd (2008) 75 IPR 455 (on appeal), Barrett Property Group Pty Ltd v. Dennis Family Homes Pty Ltd (2011) 279 ALR 12.
23 Metricon Homes Pty Ltd v. Barrett Property Group Pty Ltd (2008) 75 IPR 455; Carlisle Homes Pty Ltd v. Barrett Property Group Pty Ltd  FCAFC 31.
24 (2010) 264 ALR 617 at first instance and on appeal at (2010) 194 FCR 142, an application for special leave being refused:  HCA Trans 248 (cited as Telstra Corp).
25 Telstra Corp (2010) 194 FCR 142, 179 .
26 Ibid., 178–9 .
27 Copyright, Designs and Patents Act 1988 (UK) c. 48, s. 9(3).