The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo. This Article remedies two common shortcomings of this scholarship: implying that the process of embedding original authorship in copyright law was complete by the end of the eighteenth century, and presenting the relation between the ideology of authorship and copyright law as an exact correlation. These two shortcomings neglect the complexity of the interaction between authorship and copyright law and attract the criticism that much of modern copyright doctrine seems diametrically opposed to the presuppositions of original authorship. This Article focuses on copyright law and discourse in nineteenth-century America. It argues that much of the weaving of the ideology of authorship into copyright law took place during this later period and in three main contexts: originality doctrine, the emergence of the notion of copyright as ownership of an intellectual work, and the rules that allocate initial copyright ownership. The result was the modern structure of copyright-authorship discourse as a motivated distortion. Various parts of this discourse incorporate conflicting images and assumptions about authorship, which often stand in tension with the legal doctrines of copyright and their actual effects. These patterns, which still dominate copyright law today, are traceable to the history of the power struggles, economic interest motivations, and the ideological constraints that produced them.