11 October 2012


'The End of the Work as We Know It' by Michael Madison in 19(1) Journal of Intellectual Property Law (2012) 1-31 -
takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.
Madison concludes -
The goal of this brief Article has been primarily descriptive. The idea of the work in copyright law has been incompletely understood and therefore ineffective because courts, scholars, litigants, and others have spent too much time trying to define the boundaries of the work and not enough time trying to understand the work as boundary. Over the course of the nineteenth century, copyright law evolved the idea of the work as a thing abstracted from material form. That development pressed courts and legislatures to understand the relationship between the work and its boundaries. Modern statutory text is formally unhelpful on that point. Courts have fared little better. The cases described above show that they have used the idea of the work as a boundary, but in inconsistent and sometimes ineffective ways. In this conclusion, I note a handful of possibly prescriptive implications. 
First, I start with Kelley itself and with the idea of gardens - and processes. Kelley’s dicta suggests that gardens cannot be copyrighted. But why not? Think of “garden” and “gardening” as metaphors as well as literal things and practices. Treat a creator as a gardener and a creation as a garden, or as something that has a dynamic existence for a time after its initial production, in the hands of the creator as well as in the hands of third-parties—readers, viewers, interpreters, and archivists. The contours of that follow-on life of the work, both static and dynamic in different parts, are clearly creative in their own right, or at least are of significant interest to the copyright system because of their critical roles in preserving knowledge and creativity for access and use by later generations. I have referred to these processes in their collective sense as “curation.” 
A gardener, too, is a kind of curator. In the contemporary sense, copyright interests in curation are only likely to grow, because no knowledge or creativity curates itself, and digital forms of knowledge require at least as much curation, and perhaps more, than forms that originated on more robust, tangible media. Moreover, when it comes to intersections between the natural and the made, the court in Kelley is clearly unaware of copyright history. Thepolitical movement of the eighteenth and nineteenth centuries that supported recognition of the independent author as a legal character and the intangible work as a legal thing were grounded in a specific conception of the work as an independent, autonomous, and natural product. I do not advocate a repeal of copyright’s prohibition on legal protection for processes or systems. There is no need to recognize a process copyright akin to a process or method patent— though the idea, and the abandonment of the idea of the work, tempts. But the idea of the work should not be used to police a firm boundary between creation and curation. That boundary is much more porous than the court in Kelley is prepared to acknowledge. 
Second, by implication I have critiqued the law’s shift from a more contextual approach to what authors create, linking content and particular forms, to a more abstract, universalized approach that foregrounds content alone. One remedy might be to work the law back toward context, either by recommending that courts interpret the idea of the work with greater sensitivity to the particulars of artistic practice in a given community or by making the definitional characteristics of the work in a particular case, its so-called metes and bounds, more robust. Or both. These strategies have their respective costs and benefits. They risk repeating the error that I identify above—exaggerating the fixity of the work as an abstract thing and under-appreciating the value of the changeable work. Instead, I suggest that further work in this area should pursue the meanings of boundaries themselves. It would be a mistake to invest the idea of boundaries, even as I have referred to them above, with an over- arching sense of rigidity or solidity. It is not only the boundary between the made and the natural that is or should be porous. All of the boundaries that I describe above, all the communicative, functional, and expressive uses to which the work is put in copyright practice, are and should be porous. Their porosity is the point. The work both can and should be flexible. 
Of particular interest here is the scholarship of Leigh Star, with different co-authors, identifying the concept of the boundary object:
This is an analytic concept of those scientific objects which both inhabit several intersecting social worlds (see the list of examples in the previous section) and satisfy the informational requirements of each of them. Boundary objects are objects which are both plastic enough to adapt to local needs and the constraints of the several parties employing them, yet robust enough to maintain a common identity across sites. They are weakly structured in common use, and become strongly structured in individual-site use. These objects may be abstract or concrete. They have different meanings in different social worlds but their structure is common enough to more than one world to make them recognizable, a means of translation. The creation and management of boundary objects is a key process in developing and maintaining coherence across intersecting social worlds. 
It is possible, likely even, that the idea of the work in copyright practice is a boundary object within the above definition: things that bridge communities weakly in abstract terms, that permit adjacent communities to collaborate or cooperate, and whose flexibility allows a degree of coordinated but independent action within each community. Courts’ treatment of the work in different factual and legal settings suggests strongly that the work has a weak abstract character that permits it to translate relationships between nearby communities or practices. I leave further investigation of the performance of works as boundary objects for later research. If that approach is fruitful, then the boundary object analysis may be applied to the patentable invention and to the mark or the sign in trademark law, and beyond that, to the idea of objects and subjects of the law more broadly. 
Third, and finally, if that proposed re-casting of the work bears fruit, then we may see, as my title proposes, the end of the work as we know it. That is, the end of the work as an independent, autonomous, static thing and its rebirth as a fluid, dynamic thing embedded in multiple communities and practices. 
Copyright in action is largely a question of institutional design and operation,  and understanding the work as a boundary object offers one potentially powerful tool for managing both relationships between institutions and relationships between institutions and individuals. Here is an example: I am in many ways a critic of interpretations of copyright law that foreground a romanticized version of the author, but I agree with criticism of the current statutory damages provision that bases damages on the number of works infringed. Courts that apply an “independent economic value” standard to the definition of a work in that context are trying to restore some sense to the logic of markets for copyrighted works—key institutions of copyright law—and not, as some might suggest, trying to protect the author’s perspective on distribution of their works. A preferred solution might be to delete the concept of the work from that part of the statute, and perhaps from others. But for practical reasons the work cannot be deleted entirely. That being the case, in this specific context and in copyright law more broadly, the idea of the work deserves a new beginning.