Copyright law and creative social norms

By Michael Birnhack

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

Law and social norms have a complex relationship. Lawyers, legislators and judges, not surprisingly, firmly believe in the power of the law to regulate human behaviour. Without such a belief, much of the law would be meaningless. This belief is anchored in a political theory, one that democracies cherish, the idea of the rule of law. When law and social norms conflict, jurists opt without hesitation for the law’s side. When the law reflects social norms it consolidates our cultural practices. On occasion, there are grey areas: social and legal spaces where the law says one thing but it is social norms that regulate what we do and don’t do, in a different way, but without a conflict. Copyright law offers such grey areas.

Copyright law purports to set the rules of the game for human creativity. The law declares which authorial or artistic works will deserve legal protection, under which circumstances, what would be the scope of the protection, or its duration, as well as rules about ownership, transfer of rights, and more. These rules, taken together, form a legal regime, within which creativity takes place. Of course, the law does not instruct sculptors how to carve a stone, authors what to write, or painters which colour to use. Nevertheless, the law does encourage some kinds of works (“original”, in the legal meaning of the term, or which works one can use without permission as the raw material for a new work, etc.).

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

One form of authorship that is excluded by default in this manner, is that of the national author: authors that have a strong sense of being part of a community, whereas the community is organized on the basis of a shared nationality. This was the case with many authors around the globe during the 19th and 20th centuries, when the British Empire extended its copyright laws to its colonies (self-governing dominions, crown colonies, protectorates and mandate territories included).

The British were interested in colonial copyright for their own sake: to protect British authors throughout the Empire. They disregarded the locals. Under the emerging international regime of copyright law, the 1886 Berne Convention, and after consolidating the many British copyright laws into one coherent law, the 1911 Imperial Copyright Act, the British Empire imposed its law onto its colonies. This was a case of legal transplant, by way of a colonial transplant.

Studying the transplant not only from the colonizer’s point of view, but from the colonized perspective reveals that the law often stayed in the books for quite a while, and was simply ignored for some time. The first, and for many years the only ones to use the law, were foreign, British copyright owners, who brought lawsuits in the colonies, under the British law. This was the case in South Africa, New Zealand, and Palestine, for example. The absence of legal cases should not mislead one to think that there was no creative production in the colonies. There was much, in all colonies. It just did not fit the British model, as reflected in the law. In Mandate Palestine (1917-48), Hebrew authors defined themselves as part of a collective, with a strong national character—a Zionist one, coupled with firm socialist tones. Authors did not consider themselves individuals acting for their own sake, but rather as agents of the community. The gap between the authors’ self-image 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 of social norms alongside the formal law.

The social norms among Hebrew authors in Mandate Palestine in the 1920s consisted of high standards of originality (higher than the law requires), contracts between publishers and authors that regulated elements that were left undecided by the law, and moral rights (which were absent from the law), enforced by public shaming. These norms were possible under circumstances of a small, close-knit community with a shared ideology. Once these conditions loosened, the door was open to the foreign law to set foot. The process was completed only decades later, well into the state of Israel.

Michael Birnhack is a professor of law at Tel-Aviv University, Israel. He is fascinated by the way the law treats information and the interaction between law and culture. His research focuses on copyright, privacy, and freedom of expression, which he views as different aspects of information. Birnhack is the author of Colonial Copyright: Intellectual Property in Mandate Palestine which published in October 2012.

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Image credit: The front page of the Mandate for Palestine and Transjordan memorandum, presented to UK Parliament in December 1922, prior to it coming in to force in 1923. By Her Majesty’s Stationery Office [Public domain via Wikimedia Commons].