You are on page 1of 34

CONTRIBUTORSHIP?

— AUTHORSHIP IN A PARTICIPATORY MEDIA AGE &


THE FUTURE OF COPYRIGHT LAW

Brian Fitzgerald Sampsung Xiaoxiang Shi


Project Lead, CCI, Australia Researcher, CCI, Australia
Professor of Law, School of Law, QUT PhD Candidate, QUT, Australia
Barrister, Supreme Court of Qld & High Court of Australia
BA (Griff) LLB (Hons) (QUT) BCL (Oxon.) LLM (Harv.) PhD (Griff) LLB/LLM, ECUPL, China
Email: bf.fitzgerald@qut.edu.au Email: xiaoxiang.shi@qut.edu.au
Website: http://www.law.qut.edu.au/staff/lsstaff/fitzgerald.jsp Website: www.hilaws.com
Introduction
• This presentation will take the Baidupedia authorship as a starting
point to investigate the extent to which the authorship regime
under Chinese copyright law is challenged by the decentralized
creation of knowledge, arts and culture; and furthermore propose
solutions for the future of copyright law. The talk is composed of 5
parts:
• 1. Case Study: Baidupedia & Wikipedia Authorship
• 2. Question: Who is/are author(s) of a Baidupedia article under
Chinese copyright law.
• 3. History: the Birth and Development of Authorship Regime
• 4. Solution: Contributorship,
p, Just a Metaphor?
p
• 5. Conclusion: the Future of Copyright Law
1.
Case Study:
Baidupedia Authorship
1. Case Study: Baidupedia Authorship

▪ A. Baidupedia (Baidu Baike):


▪ Baidupedia (located at baike.baidu.com) is an online
encyclopedia modelled on the US-based website Wikipedia.
▪ Launched in April 2006 by China’s
China s leading search engine Baidu,
Baidupedia has grown up to be the largest online Chinese-
language encyclopedia, containing more articles than any
Wikipedia
p except
p the English-language
g g g Wikipedia.
p
▪ Number of Articles:
◦ exceeded 10,000 in two days of its launch, and reached 40,000 in
six.
◦ 1,107,395 (April 2008)
◦ Compare:
→ English Wikipedia: 2,339,921 (April 2008)
→ Chinese Wikipedia: 173,347 (April 2008)
Example: a Baidupedia article
Example: a Baidupedia article
Example: a Baidupedia article
1. Case Study: Baidupedia Authorship

▪ B. Baidupedia Authorship/ Contributorship (Cont. 1):


▪ Authorship:
→ Baidu Baike Users: Copyright of articles published on Baidu Baike
belongs to the User who publishes it unless the articles are
republished from prior publications.
→ Contributors: All contribution to an article (write, post, write, revise,
revert) is attributed to contributors.
contributors A list of contributors will appear
under a Baidupedia article
1. Case Study: Baidupedia Authorship

▪ B. Baidupedia Authorship/ Contributorship:


▪ Licences: (Neither CC nor GFDL Adopted)

Creative
C ti C Commons Att
Attribution-Noncommercial-
ib ti N i l
No Derivative Works 2.5 China Mainland License
→ GNU
GNU Free Documentation License
▪ Baidupedia is “all rights reserved” rather than “some
rights reserved”.
reserved .
1. Case Study: Baidupedia Authorship

▪ B. Baidupedia Authorship/ Contributorship (Cont. 2):


▪ Authorship (Cont. 1):
→ Contribution History
− A link
li k tto “Editi
“Editing hi
history”
t ” iis on
the top-right of a Baidupedia
article.
− What how
What, how, and when a
contributor ever contributed are
listed in a webpage.
→ Contributions:
− User’s contribution may include
posting the article, editing,
revising, reverting, adding a
paragraph, correcting spellings,
etc..
1. Case Study: Baidupedia Authorship

▪ B Baidupedia Authorship/ Contributorship (Cont.


B. (Cont 3):
▪ Authorship (Cont. 2):
→ Outstanding
g Contributor(s):
( )
− Users who contribute articles of high quality are “Outstanding
Contributor(s)” awarded a medal.
− Outstanding Contributors are listed on the top-right of a
Baidupedia article.
2. Who are Authors of Baidupedia under Chinese Copyright Law?

2.
Question:

Who is/are the author(s) of a Baidupedia article


under Current Copyright
py g Law of China?
☻ The first user who posts the article?
☺ The secondary user who build on the first user’s
user s version?
☻ The user who edits the article?
☺ The user who is awarded “Outstanding Contributor”?
☻ Or someone else?...Baidu company?

☻☺☻☺☻☺☻☺☻☺☻☺☻☺☻☺☻☺☻☺☻☺
2. Who are Authors of Baidupedia under Chinese Copyright Law?

▪ A. Authorship in Chinese Copyright Law:


▪ Notion of Authorship
→ The historical researches on authorship find that the notions of
authorship
th hi have h b
been extremely
t l relevant
l t tto h
how th
the writers
it and
d
artists (intellectuals) are treated/recognized in a given society.
(discuss later)
→ Chinese law and theory has not systematically developed their
philosophical ground concerning the notion of authorship.
→ However,
However it’sit s influenced by European Continental tradition
tradition. (Qu
Sanqian, 2001)
2. Who are Authors of Baidupedia under Chinese Copyright Law?

▪ A. Authorship in Chinese Copyright Law (Cont. 1):


▪ Authorship
A th hi Regime
R i in
i Copyright
C i ht Law
L off China
Chi
→ Creator = Author
− The author of a work is the citizen who has created the Works. (Art. 11,
Copyright Law of PRC)
− The term "works" includes works of literature, art, natural science, social
science, engineering technology and the like which are expressed in the
following forms:…
forms: (Art.
(Art 33, Copyright Law of PRC)
→ Organization = Author
− Where a work is created according to the intention and under the
supervision and responsibility of a legal entity or other organization,
organization such
legal entity or organization shall be deemed to be the author of the work. (Art.
11, Copyright Law of PRC)
→ Co-author (Joint Author)
− Where a work is created jointly by two or more co-authors…Co-authorship may
not be claimed by anyone who has not participated in the creation of the work.
((Art. 13,, Copyright
py g Law of PRC))
2. Who are Authors of Baidupedia under Chinese Copyright Law?

▪ B. Who is/are the author(s) of a Baidupedia article?


▪ Wh contributes
Who t ib t a Baidupedia
B id di article
ti l and
dHHow?
?
→ Contribution:
− A creates a Baidupedia article
− B edits the article
− C builds on B’s edit (new version)
− D edits C’s version
− E reverts it to C’s version
→ Trustworthiness of a Baidupedia/Wikipedia article “depends on
p ((and revision)”
authorship ) ((Luca de Alfaro,, et al,, 2007):
)
− “Author lends 50% of their reputation (in the wiki circle) to the text they
create.”
− “Thus, even text from high-reputation authors is only medium-reputation
when added: high trust is achieved only via multiple reviews, never via a
single author.”
→ So, all contribute!
2. Who are Authors of Baidupedia under Chinese Copyright Law?

▪ Could all contributors be regarded as co-authors?


→ Co-authorship regime in Copyright Law of PRC is a little bit different from
that in western jurisdictions.
− Firstly, the threshold of being a co-author is very high.
− Secondly,
S dl it provides
id an extremely
t l b
broader
d conceptt off ““co-authored
th d
works”.
→ Elements constituting co-authorship under current Chinese copyright law
− Intention of co-authoring (co-intent)
− Acts of collaboration
→ However, even such a broader definition can hardly accommodate
Baidupedia contributors as authors.
− Acts of Collaboration + Intention of Coauthoring (co-intent)
− Scope of counted contributors
− Term of protection
− Derivative Work?
2. Who are Authors of Baidupedia under Chinese Copyright Law?

▪ Thus, a Baidupedia article is a new form of works?


→ No!
− The form of literary works does not change.
− However, how the literary works are created does change.
− Moreover, the relationship between literary works and those who
created them also does change. (A work is not always the extension
of creators’ personality; Information relationship law?)
▪ Any Solution?
→ Should authorship regime be re-configured to keep copyright law in
line with human’s
human s creativity?
→ And how?
3.
History:
The Birth & Development of
Authorship Regime
3. History: the Birth & Development of Authorship Regime

▪ A. The Invention of Author & Authorship in Western


world:
▪ Literary definitions of “author” (Romantic Aesthetics): In the case
of authorship, the interfaces between law (legal theory) and aesthetics
(literary theory) are extremely vague.

• ‘“Authorship” first entered the domain of law in 1709, with the


passage of the first copyright statute, the English Statute of Anne.
While new to law at this time, however, the terminology of
“authorship” had already acquired meaning in the realms of
lit t
literature and
d philosophy.
hil h ThThese early
l associations
i ti off th
the
“authorship” concept helped to establish its place and ensure its
persistence in the copyright doctrine.’ (Peter Jaszi, 1991)
3. History: the Birth & Development of Authorship Regime

→ From ‘Writer’ to ‘Author’: Literary Definitions


• Before
B f the
th earlyl 18th century,t th
the term
t ‘writer’
‘ it ’ was th the d
dominant
i t
appellation of the producer of writings. A ‘writer’ was a mere
translator of God and a channel for truth (merely ‘one mouth among
many’ ) and was ‘first
many first and foremost a craftsman’
craftsman .
• Since the early 18th century, Then the eighteenth century witnessed a
decline of the craft-inspiration model of writing
• ‘Eighteenth-century theorists departed from this compound
model of writing in to significant ways. They minimized the
elements of craftsmanship (in some instances they simply
di
discarded
d d it) iin ffavor off th
the element
l t off iinspiration,
i ti and
d th
they
internalized the source of that inspiration. That is, inspiration
came to be regarded as emanating not from outside or above,
but from within the writer himself.
himself ’ (Woodmansee,
(Woodmansee 1984)
• As a result, by the middle of the eighteenth century this romantic
notion on authors had become a ‘universal truth about art’. (Boyle,
1996)
3. History: the Birth & Development of Authorship Regime

→ ‘Author’ as intellectual labor: Legal Definitions


• This romantic
Thi ti notion
ti on author
th iin aesthetics
th ti was iimmediately
di t l
introduced into the law when a group of writers who sought to live on
their pens instead of their patrons. Meanwhile, the rapid growth of
public literacy during the Renaissance generated an increasingly
expanding reading public, which turned out to be the fuel of the
writers’ independence movement.
• To justify and accomplish their pursuit of legal rights in the writings
writings,
the writers and booksellers employed the following theories:
• John Locke’s notion of the origins of property in acts of
appropriation
i ti ffrom th
the generall state
t t off nature.
t
• Only works of original authorship are protected by copyright law.
• Further limitations on copyright: Idea/expression dichotomy,
tangible fixation, term of protection
3. History: the Birth & Development of Authorship Regime

▪ B. The Development of Notions on Authors/Authorship


▪ Since the Romantic movement, literary definitions of “author”
has changed a lot.
→ ‘The Death of the Author’ and the Poststructuralism
− Roland Barthes (1968): a text can not be attributed to any single
author. It is language which speak, not the author.
− Michel (1969) : ‘What is an author?’
− All authors are writers, but not all writers are authors.
− An author exists onlyy as a function of a written work,, a part
p of its
structure, but not necessarily part of the interpretive process.
− Emerging notions of “hypertext” & “intertextuality”: it testifies to the
evolutionary,
y, modifiable,, and open
p nature of the text. (Roland
(
Barthes, 1986; Jean Luc Nancy, 1991)
3. History: the Birth & Development of Authorship Regime

▪ Literary definition of author changed; however, legal notion of


author/authorship
th / th hi has
h not, t yet.
t
→ The notions of post-structuralism literary critique has deconstructed the
concepts “author” & “authorship”.
→ Changes in literary definitions have not appreciably influenced economic
and legal definitions. (Martha Woodmansee, 1995)
→ Copyleft
py movement: “From open p source to art,, a radically
y new view of
creation has been mapped out, within which not only the location of the
author, but also the location of the work and of the user, have been shifted
and reconfigured”;
g “In fact, copyleft
py mayy be a better translation of the
postmodern space of creation than copyright”. (Severine Dusollier, 2003)
→ The traditional concept of authorship with its implications of individualism
and authorityy over the interpretation
p of textual meaning g has been
overthrown in theory, if not entirely in practice. (Derrida, 1976)
→ The rise of participatory creativity: writing is not a profession any more (the
growth of public literacy and digital literacy)
3. History: the Birth & Development of Authorship Regime

▪ C. The Introduction of Authorship Regime in China


▪ The Attitude toward Intellectuals and Cultural Creation
→ Warring States Period (around 500 B.C. – 221 B.C.): only a well-known
master or founder of a school of intellectuals had the right of attribution
according to the writing practices.
→ Wei-Jin Period (around A.D. 220—A.D. 589) : it became an universally
p
accepted rule that every
y writer had the right
g of attributingg his writings
g to his
name.
→ Feudal China (by late 18th): Confucianism philosophy concerning
intellectual knowledgeg - ‘I transmit rather than create;; I believe in and love
the Ancients.’
“The measure of the greatness of a Chinese scholar was not to be found in
innovation, but rather in his ability to render or interpret the wisdom of the
ancients, and ultimately God, more fully and faithfully than his fellows.
Wisdom came from the past, and the task of the learned was to unearth,
preserve,, and transmit it.” (Hesse,
p ( , 2002))
3. History: the Birth & Development of Authorship Regime

→ From late Qing Dynasty to KMT: the emerging notions on


authorship and the introduction of copyright law
→ Arising from foreign pressure concerning international trade and
intellectual property;
→ Arising from appealings to the protection of authors’ labor and
publishers investment.
→ Red China: Maoism on intellectuals and cultural creation
− Intellectuals and revolution
− Workers don’t mark his name on the piece of steel made by him,
why should a writer?
→ Modern China
− Confucianism: still influential? – maybe
− Romantic author: how romantic? – unclear
− Social functions of intellectuals – unclear: cultural discourses,
propagandas, or economic organs?
3. History: the Birth & Development of Authorship Regime

▪ Authorship in current Chinese copyright law and theory


→ Th
The Chinese
Chi llaw iis b
built
ilt upon a romantic
ti notion
ti off authorship.
th hi
− Author is the one who created the intellectual work with his/her original
ideation, labor, judgment, skills, inspiration, intelligence and wisdom.
− The work has intrinsic links to personality and embodies the author’s
thoughts, ideas, emotion, personality, and so on
→ A hybrid of continental European tradition and American-Saxon law
− Authors’ right and interests: intellectual labor
− Economic function of copyright law – utilitarian approach: facilitate
investment and market economy
▪ Contradictions: both literary and legal practices and theories
→ What is the spirits of Chinese literature today?
→ What is the ultimate mission of copyright law? – to protect authorial
interests? – to facilitate market economy? – author- or market- oriented?
4.
Solution:
Contributorship, just a Metaphor?
4.Solution: Contributorship, just a Metaphor?

▪ Authorship in Science
▪ “Producing a scientific article is completely different” from literary creation:
→ A scientific paper usually contains commitments and endeavors of groups of
people. And, “Often the powerful will be authors and the powerless ignored or
simply acknowledged. We need to scrap the notion of authorship in science
and try something else” (Richard Smith, 1997).
→ “The system of authorship, while appropriate for articles with only 1 author, has
become inappropriate as the average number of authors of an article has
increased..” (Rennie D., 1997)
→ Increasingly in recent years, biomedical journals have required that papers not
only list authors but also specify individual authors'
authors contribution. (Gastel, 2002)
▪ Contributorship
→ “Instead, we would have a descriptive system something like film credits and
talk about contributors rather than authors.
authors.” (Richard Smith, 1997)
→ We propose dropping the outmoded notion of author in favor of the more useful
and realistic one of contributor…certain named contributors take on the role of
guarantor for the integrity of the entire work. (Rennie D., 1997)
4.Solution: Contributorship, just a Metaphor?

▪ Film Credits (Film Authorship)


▪ Auteur Theory and Authorship:
→ Film at its best constitutes the kind of inspired personal expression from a
director that we expect to find in a major author. Therefore, we can treat
great directors who develop a signature style as auteurs, and we can speak
of film history as a history of auteurs. (Andrew Sarris, 1960s)
→ Controversy: Auteur theory understated the contributions of everyone but the
director to film art
art.
→ The copyright in a cinematographic work and any work created by an
analogous method of film production shall be enjoyed by the producer of the
work, but the scriptwriter, director, cameraman, lyricist, composer, and other
authors thereof shall enjoy the right of authorship in the work, … (Art. 15,
Copyright Law of PRC)
→ Challenge: Relatively inexpensive filmmaking technologies have emerged
recently.
▪ What the Film Authorship really is?
→ Compound authorship? Co-authorship? Contributorship?
4.Solution: Contributorship, just a Metaphor?

▪ Is “Contributorship” just a metaphor?


▪ Yes. – Just a metaphor.
→ The concept ‘contributor’ can’t replace ‘author’.
→ Contributorship is just a metaphor describing the very emerging new
nature of multi-authorship.
▪ No. More than a metaphor.
→ The definition ‘author’ is only suitable where merely one person
create the whole work.
→ Contributorship is the very nature of relationship between works
(information, knowledge, literature, arts, science) and those who
create them.
→ Copyright should be re-built on contributors.
5.
Conclusion:
The Future of Copyright
5.Conclusion: the Future of Copyright

▪ Some propositions
▪ Ultimate mission of copyright law
→ Authors? – when the reader become author…
→ Market (economy): networked information economy & the long tail market
→ Both?...how? (individual contribution – creativity – innovation –
Schumpeterism)
▪ All contributions to knowledgeg & information should be recognized.
g
→ All contributions should be recognized and protected by the copyright law
although not all of them are of original nature. (Originality test – failed
already)y)
→ Some contributions are of no original or creative nature; however they are
critical to the modern knowledge & information production and
dissemination. For example, the trustworthiness of wikis; Decision process
in social networks
▪ Copyright control and the exclusive right regime should be re-configured. For
example recoding rights of users
example, users, conductive use of conducers
5.Conclusion: the Future of Copyright

▪ Theorizing “Contributorship”
▪ Definition
→ What is “contributor” (“author”) in the context of copyright law?
→ What constitutes “contribution”? – all contribute! And all counted!
→ What is about “originality”? – It’s dead already.
▪ Contributorship and Copyright
→ It won
won’tt be necessary to replace the term ‘authors’
authors with
‘Contributorship’; however it copyright law should be re-configured at
lease bases on the notion of contributorship.
▪ C t ib t
Contributorship
hi and
d Ownership
O hi
→ Contributor as copyright owner
→ Transfer of copyright
▪ Credit, responsibility and liability
→ Should a contributor be responsible for contributions made by other
contributor(s)?
The End

Thank You!

• X. shi and B.
X B Fitzgerald,
Fitzgerald ‘Authorship
Authorship — Authorship in a Participatory Media Age &
the Future of Copyright Law’ (forthcoming 2008)
• See further and download the slides at www.hilaws.com

Related Interests