![handle is hein.journals/qmjip9 and id is 1 raw text is:
Queen Mary Journal of Intellectual Property, Vol. 9 No. 1, pp. 1-2
An aristocracy of authors
Around ten years ago, I wrote a little book called Creating Selves, a kind of cautionary
tale in which I looked at the relationship between intellectual property as a system not
only of law but also of cultural value. I noted the way in which copyright presents a
kind of archive of creativity, a measure of the creative process, signalling that which is
creative within the letter of the law and creating a kind of contrived aristocracy of
'genuine' works.
Around ten days ago, Advocate General Szpunar issued a startling Opinion (C-469/17
Funke Medien, EU:C:2018:870) which appears to articulate just such a hierarchy of low
imitation and high art through the interpretation of copyright. In emphasizing 'personal
creative activity' as something entirely different from other reasons to create, the
Advocate General appears to be limiting copyright to those creations created only for
genuine artistic purposes; that is, only for the purposes of art. And indeed, only for
the purposes of copyright? In speaking of drafters preparing their work in the context
of professional obligations, the Advocate General is reluctant to appreciate such inten-
tions as relevant to copyright. And without the right intentions, 'those documents have
no real author within the meaning of that term under copyright law, with the result that
there can be no question of protecting the author's link with the work'.
In extrapolating this approach, what is created is a hierarchy of 'folk' or collective
projects on the one hand and the loftiness of personal intellectual work on the other.
Potentially, this creates a division of labour, as it were, and makes the 'originality' of
many kinds of creativity so remote as to become an utter mystery to the law. Michel
Foucault, in his famous essay, 'What Is an Author?', wrote, 'The author is the principle
of thrift in the proliferation of meaning'. In other words, a kind of stable and coherent
'author' functions to focus and curtail any flights of meaning. In the limitations he places
on the qualification of 'author', it appears that, according to the Advocate General,
the author is not only the principle of thrift in the proliferation of meaning, but also
the principle of thrift in the proliferation of copyright.
Describing the copyright of the Federal Republic of Germany as 'a sort of legal fiction',
the Opinion would also dethrone Crown copyright in the UK and unseat similar systems
throughout the EU. According to the Opinion, civil servants are simply discharging their
professional obligations. That is, they are working without the relevant intention, so to
speak, and as a consequence 'those documents have no real author within the meaning
of that term under copyright law'. That is, without the relevant intention, the author is
not an author. While this is an Advocate General's Opinion, and the Court ultimately
may not go so far, it is certainly remarkable within a broader discussion of directions in
copyright and authorship. From mandarins to macaques, it is all about the author.
The Opinion rejected the use of copyright as a means by which to protect the sen-
sitive or confidential nature of documents. However, is the intention relevant? Is it
relevant why a copyright holder may seek to stop the publication of copyright mate-
rial? Nevertheless, the Advocate General recruits a pretence of intention as a limit
upon the scope of copyright: '[T]he Federal Republic of Germany decided to achieve
the same result by invoking its copyright over those documents, despite the fact that
copyright pursues completely different aims and it is not even established that those
documents are works for the purpose of copyright'. The most striking part of this
paragraph is the notion of 'works for the purpose of copyright', as though copyright
© 2019 The Author Journal compilation © 2019 Edward Elgar Publishing Ltd
The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK
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