Copyright and creative social norms

By Michael Birnhack

Copyright law provides a general legal framework intended to encourage creativity in the fields of literature and the arts. However, in certain areas of cultural production, to borrow a term from Pierre Bourdieu, we observe that the actors develop their own frame of reference. These social norms de facto replace formal law. Norms often develop from the bottom up, rather than the top-down rule set. This intersection of formal copyright law and social norms in creative fields requires attention. Contemporary research has so far focused on several creative fields, such as fashion designers, French chefs, American comedians, and the tattoo industry. To better understand the phenomenon, I propose to study the first meeting points of copyright and social norms in each field of cultural production.

Law and social norms have a complex relationship. Lawyers, lawmakers and judges, unsurprisingly, strongly believe in the power of the law to regulate human behavior. Without such a belief much of the law would be meaningless. This belief is rooted in a political theory, which democracies cherish, the idea of ​​the rule of law. When law and social norms clash, lawyers readily opt for the legal side. When the law reflects social norms, it consolidates our cultural practices. Occasionally there are gray areas: social and legal spaces where the law says one thing but it’s social norms that regulate what we do and don’t do, in a different way, but without conflict. Copyright law offers such gray areas.

Copyright law claims to set the playing field for human creativity. The law declares which works of author or art will merit legal protection, under what circumstances, what would be the scope of protection, or its duration, as well as rules concerning ownership, transfer of rights, etc. These rules, taken together, form a legal regime, within which creativity takes place. Of course, the law does not teach sculptors how to cut a stone, writers what to write, or painters what color to use. Nevertheless, the law encourages certain types of works (“original” in the legal sense of the term, or which works can be used without authorization as the raw material of a new work, etc.).

Researchers have argued that the law presupposes certain modes of creative production, with the “romantic author” being the quintessential image behind the law. As Martha Woodmansee, Peter Jaszi, and others have studied, the author’s image is that of a unique character, driven by passion and inspired by a muse, rather than financial gain, let alone financial gain. ‘collaborative work. A structured law with “Shakespeare in Love” in mind, rather than the real Shakespeare, excludes other forms of creative production.

One form of paternity which is excluded by default in this way is that of national author: authors who have a strong sense of belonging to a community, while the community is organized on the basis of a shared nationality. This was the case for many authors around the world during the 19th and 20th centuries, when the British Empire extended its copyright laws to its colonies (autonomous dominions, crown colonies, protectorates and sub-territories. mandate included).

The British were interested in colonial copyright for themselves: to protect British authors throughout the Empire. They ignored the inhabitants. Under the emerging international copyright regime, the Berne Convention of 1886, and after consolidating Britain’s many copyright laws into one cohesive law, the Imperial Copyright Act of 1911, the British Empire imposed its law on its colonies. It was a case of legal transplant, going through a colonial transplant.

Studying the transplant not only from the colonizer’s point of view, but from the colonized’s point of view reveals that the law has often been on the books for a while and has been simply ignored for a while. The first, and for many years the only ones to use the law, were foreign British copyright owners, who sued in the colonies, under British law. This was the case in South Africa, New Zealand and Palestine, for example. The absence of legal cases should not lead one to believe that there was no creative production in the colonies. There were a lot of them in all the colonies. It just didn’t fit the UK model as reflected in the law. In Mandate Palestine (1917-1948), the Hebrew authors define themselves as part of a collective, with a strong national character, Zionist, coupled with a resolutely socialist tone. The authors did not see themselves as individuals acting for themselves, but rather as agents of the community. The gap between the self-image of the authors and the image of the romantic author, as reflected in the Imperial Copyright Law (which was extended to Palestine in 1924) resulted in a set social norms alongside formal law.

Social standards among Hebrew authors in Mandatory Palestine in the 1920s consisted of high standards of originality (higher than the law requires), contracts between publishers and authors that regulated matters left open by the law, and moral rights (which were absent from the law), imposed by public humiliation. These standards were possible under the circumstances of a small, tight-knit community with a shared ideology. Once these conditions were relaxed, the door was open to foreign law to set foot. The process was not completed until decades later, well in the State of Israel.

Michael birnhack is professor of law at Tel Aviv University, Israel. He is fascinated by the way the law deals with information and the interplay between law and culture. His research focuses on copyright, privacy and freedom of expression, which he considers to be different aspects of information. Birnhack is the author of Colonial Copyright: Intellectual Property in Mandate Palestine, published October 2012.

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Image credit: The first page of the Memorandum on the Mandate for Palestine and Transjordan, presented to the British Parliament in December 1922, before it entered into force in 1923. By Her Majesty’s Stationery Office [Public domain via Wikimedia Commons].

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