Authors Alliance Executive Director Michael Wolfe
When Authors Alliance launched two years ago with its Principles and Proposals for Copyright Reform, one of the reforms we endorsed was support for a formal “moral right” of attribution. In that document, we said:
The law should recognize the right of authors to be acknowledged as creators of our works. This is especially important for those of us who create in order to contribute to knowledge and culture. Attribution serves not only our interests as authors, but also the reading public’s interest in knowing whose works they are consuming and society’s interest in an accurate record of the intellectual heritage of humankind.
A fitting way for Authors Alliance to celebrate its second birthday was to serve as an invited speaker at Authors, Attribution, and Integrity: Examining Moral Rights in the United States, a symposium organized by the U.S. Copyright Office in Washington, D.C. on April 18.
Although you might expect otherwise, copyright law in the United States does not provide authors with the right to be acknowledged as the creator of their works. The United States has long resisted adoption of so-called “moral rights,” including the right of attribution, mostly because of objections from copyright industry firms, not from authors. However, there has been increasing momentum in particular around our adoption of a right of attribution. The Symposium reflected this renewed energy, and a building consensus toward the idea that a right of attribution could work here, to the benefit of our creative economy.
The Copyright Office announced that it will be seeking public comments on moral rights issues very soon. Authors Alliance plans to submit formal comments, but below is a summary of some of the discussion at the April 18 symposium.
On the topic of attribution, two central themes were explored. First, what would an American attribution right look like? Second, what do authors and the public stand to gain from an attribution right?
What would an attribution right look like?
While many attendees had the chance to discuss how other countries structure their moral rights laws, envisioning an American approach was largely left to Columbia University’s Jane Ginsburg in her keynote address. The trick lies in crafting a right that upholds traditional U.S. copyright values (the public interest, freedom of contract, and freedom of speech), while meaningfully advancing creators’ right and ability to be properly associated with their work. Professor Ginsburg’s outline seemed to strike this balance well, envisioning a time-limited, waivable right, flexible enough to allow for circumstance-dependent attribution norms. Her approach, to be detailed more thoroughly in a forthcoming paper, should be a good starting point for discussions on the future of an American attribution right.
What would we gain?
While being properly named as the author of creative work is rightly important to most creators, authors have other means of protecting this association with their work. Many, if not most, fields and communities have strong norms and policies against plagiarism (the unattributed use of another’s work). Just as importantly, creators can use contracts to require that others provide attribution when using their works. Finally, many unattributed uses of copyrighted work are also infringing, and author-rightsholders will often have recourse through traditional infringement actions.
So what would we gain?
Many attendees at the Symposium focused first on compliance with international treaty obligations. It is true that the United States is an outlier in its treatment of moral rights, and it is possible that our “patchwork” approach falls short of international standards. But it is not readily apparent that international compliance is of real moment to creators or the public. Much more important is the real benefits an attribution right would provide.
First and foremost among these would be a significant change in the default rules around authorship. Even where authors are able to waive their rights, defaults are incredibly powerful. Today, authors have to ask publishers and other intermediaries to provide proper attribution as part of negotiating their contracts. And they might forget to ask, or they might not ask for sufficiently broad protection, or they might not feel comfortable negotiating the point.
In a world with attribution rights, authors would know when a publisher or other intermediary is asking them to sign away the right to be associated with their work simply because the intermediary would have to ask.
And the reality of our creative economy is that many authors sign away rights to their work in order to realize their dissemination goals. While this model is not necessary—authors can and should keep more of their rights—it interferes with authors’ ability to ensure they receive the attribution they might need. With a right of attribution, authors could better police plagiarisms of their work, regardless of whether they remained copyright owners.
While these changes won’t affect all authors—those who already negotiate well and keep their copyrights might not see any real change—they stand to be a boon to those without representation or experience. And very often it’s just these authors who write in order to build the kind of recognition attribution rights protect.
For Congress to endorse an authorial right of attribution would be an important sign of its recognition of the societal value that authors contribute to the public good. But copyright reform is a slow process. It is heartening to see serious thought being given to incorporating a right of attribution into revisions of the law, but we have a long ways to go before then. And, ultimately, with any legislation the devil will be in the details: Authors Alliance is eager to see the law back authors in receiving proper credit for their contributions, but it’s important that reform efforts get it right from day one. We’re committed to working with stakeholders, regulators, and legislators to ensure that this effort stays on the right track.