UC Berkeley

Since the Statute of Anne, the hallmark of Anglo-American copyright law has been its nominal veneration of the author. As generations of copyright scholars have noted, author-centric rhetoric has often been deployed by and for publishers and other non-author copyright owners, sometimes to the ultimate disservice of authors themselves. This article will revisit the issue of authors versus owners in an age in which the roles of both are changing dramatically. Technology empowers authors to disseminate their works without relying on publishers. But technologically-empowered authors are not always legally empowered. In many cases they have assigned away their copyrights. This can be a happy arrangement where authors and publishers share an interest in revenue generation and broad dissemination. But author/owner conflicts often emerge after the initial dissemination of a work, at a time when the author but not necessarily the owner wants to revive a work that is no longer being disseminated, revise a work that the author thinks can be improved, or revisit the substance and/or style of a prior work in a new work. Mechanisms for resolving these conflicts under existing law are insufficient. This essay identifies several ways in which U.S. copyright law could better empower authors who want to revive, revise, and revisit their prior works. My proposals include adjustments to rules about ownership—e.g. rules governing transfers. They include the possibility of a statutory “right to revise.” And they include adjustments to doctrines regarding the scope of copyright protection—e.g. whether it should extend to cover an author’s distinctive style, motifs, and characters. The time is ripe for these reforms to rebalance the interests of authors and owners in the digital age.