17 October 2003

Finally back to defining authors, one can find a lot of other support for the idea that an author is a "natural person" scattered throughout the Copyright Act. The pitiful droit d'auteur in US law extends only to "authors" of visual works, who are referred to as "his or her" (§ 106A(a)). Revocation (termination) rights under § 203 and § 304 assume that authors are natural persons. The tricky bit appears in § 201(b):

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

   This is a Congressional definition of a term used in the Constitution. The Intellectual Property Clause (Art. I, § 8, cl. 8) authorizes Congress to protect "authors and inventors." If one accepts "originalism" as the foundation for interpretation, the key question is this: Would the Founding Fathers have understood a corporation or other collective group to be an "author"? Unfortunately, I have not found any illumination in Madison's notes, nor in the Federalist or Antifederalist papers, that leads me to believe that they might have so believed. Even if one does not accept "originalism" as the foundation for interpretation, this redefinition of who the "author" is reminds one of a good knock-down battle being called "glory" by Humpty-Dumpty. To put the question more baldly: Does Congress have the power to redefine an otherwise nontechnical term to mean something substantially different, when that otherwise nontechnical term is in the Constitution and not just a statute?

   Can you tell that this is another pathetic cliffhanger?