contributorship? — authorship in a participatory media age & the future of copyright law

CONTRIBUTORSHIP?

— AUTHORSHIP IN A PARTICIPATORY MEDIA AGE & THE FUTURE OF COPYRIGHT LAW

Sampsung Xiaoxiang ShiBrian Fitzgerald

THE FUTURE OF COPYRIGHT LAW

Sampsung Xiaoxiang ShiResearcher, CCI, Australia

PhD Candidate, QUT, Australia

LLB/LLM, ECUPL, China

Brian FitzgeraldProject Lead, CCI, AustraliaProfessor of Law, School of Law, QUTBarrister, Supreme Court of Qld & High Court of AustraliaBA (Griff) LLB (Hons) (QUT) BCL (Oxon.) LLM (Harv.) PhD (Griff)

Email: [email protected]

Website: www.hilaws.com

BA (Griff) LLB (Hons) (QUT) BCL (Oxon.) LLM (Harv.) PhD (Griff)Email: [email protected]: http://www.law.qut.edu.au/staff/lsstaff/fitzgerald.jsp

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 decentralizedunder 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: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, Just a Metaphor?p, p• 5. Conclusion: the Future of Copyright Law

1.1.Case Study:

Baidupedia AuthorshipBaidupedia 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 leading search engine Baidu,Launched in April 2006 by China s leading search engine Baidu,

Baidupedia has grown up to be the largest online Chinese-language encyclopedia, containing more articles than any Wikipedia except the English-language Wikipedia.p p g g g 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)English Wikipedia: 2,339,921 (April 2008)→ Chinese Wikipedia: 173,347 (April 2008)

Example: a Baidupedia article


▪ 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 arebelongs 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 A list of contributors will appearrevert) is attributed to contributors. A list of contributors will appear under a Baidupedia article


▪ B. Baidupedia Authorship/ Contributorship:▪ Licences: (Neither CC nor GFDL Adopted)

→C ti C Att ib ti N i lCreative Commons Attribution-Noncommercial-

No Derivative Works 2.5 China Mainland License→ GNU

GNU Free Documentation License▪ Baidupedia is “all rights reserved” rather than “some

rights reserved”.rights reserved .


▪ B. Baidupedia Authorship/ Contributorship (Cont. 2):▪ Authorship (Cont. 1):→ Contribution History

A li k t “Editi hi t ” i− A link to “Editing history” is on the top-right of a Baidupedia article.

− What how and when aWhat, how, and when a contributor ever contributed are listed in a webpage.

→ Contributions:Contributions:− User’s contribution may include

posting the article, editing, revising, reverting, adding a paragraph, correcting spellings, etc..


▪ B Baidupedia Authorship/ Contributorship (Cont 3):B. Baidupedia Authorship/ Contributorship (Cont. 3):▪ Authorship (Cont. 2):

→ Outstanding Contributor(s): g ( )− Users who contribute articles of high quality are “Outstanding

Contributor(s)” awarded a medal.− Outstanding Contributors are listed on the top-right of aOutstanding Contributors are listed on the top-right of a

Baidupedia article.

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

2.2.Question:

Who is/are the author(s) of a Baidupedia article under Current Copyright Law of China?py g

☻ The first user who posts the article?☺ The secondary user who build on the first user’s version?☺ The secondary user who build on the first user s version?☻ The user who edits the article?☺ The user who is awarded “Outstanding Contributor”?☻ Or someone else?...Baidu company?

☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺ ☻ ☺


▪ A. Authorship in Chinese Copyright Law:▪ Notion of Authorship

→ The historical researches on authorship find that the notions of th hi h b t l l t t h th it dauthorship have been extremely relevant to how the writers and

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 it’s influenced by European Continental tradition (Qu→ However, it s influenced by European Continental tradition. (Qu Sanqian, 2001)


▪ A. Authorship in Chinese Copyright Law (Cont. 1):A th hi R i i C i ht L f Chi▪ Authorship Regime in Copyright Law of China→ 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: (Art 3 Copyright Law of PRC)following forms:… (Art. 3, 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 suchsupervision and responsibility of a legal entity or other 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)→ 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 Law of PRC)( , py g )


▪ B. Who is/are the author(s) of a Baidupedia article?Wh t ib t B id di ti l d H ?▪ Who contributes a Baidupedia article and How?→ 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 authorship (and revision)” (Luca de Alfaro, et al, 2007):p ( ) ( , , )− “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!


▪ Could all contributors be regarded as co-authors?→ Co-authorship regime in Copyright Law of PRC is a little bit different from→ 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.

S dl it id t l b d t f “ th d− Secondly, it provides an extremely broader concept of “co-authored 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 accommodateHowever, even such a broader definition can hardly accommodate Baidupedia contributors as authors.− Acts of Collaboration + Intention of Coauthoring (co-intent)− Scope of counted contributors− Scope of counted contributors− Term of protection− Derivative Work?


▪ 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.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 creativity?line with human s creativity?→ And how?

3.3.History:

The Birth & Development ofThe 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 aestheticsof 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 d hil h Th l i ti f thliterature and philosophy. These early associations of the “authorship” concept helped to establish its place and ensure its persistence in the copyright doctrine.’ (Peter Jaszi, 1991)


→ From ‘Writer’ to ‘Author’: Literary DefinitionsB f th l 18th t th t ‘ it ’ th d i t• Before the early 18th century, the term ‘writer’ was the dominant 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 and foremost a craftsman’many ) and was first and foremost a 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 d d it) i f f th l t f i i ti d thdiscarded it) in favor of the element of inspiration, and 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 ’ (Woodmansee 1984)but from within the writer himself. (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)1996)


→ ‘Author’ as intellectual labor: Legal DefinitionsThi ti ti th i th ti i di t l• This romantic notion on author in aesthetics was immediately 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 increasinglypublic 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• To justify and accomplish their pursuit of legal rights in the writings, the writers and booksellers employed the following theories:• John Locke’s notion of the origins of property in acts of

i ti f th l t t f tappropriation from the general state of nature.• Only works of original authorship are protected by copyright law.• Further limitations on copyright: Idea/expression dichotomy,

tangible fixation, term of protection


▪ B. The Development of Notions on Authors/AuthorshipB. 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 only as a function of a written work, a part of its y , p

structure, but not necessarily part of the interpretive process.− Emerging notions of “hypertext” & “intertextuality”: it testifies to the

evolutionary, modifiable, and open nature of the text. (Roland y, , p (Barthes, 1986; Jean Luc Nancy, 1991)


▪ Literary definition of author changed; however, legal notion of th / th hi h t tauthor/authorship has not, yet.

→ 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 movement: “From open source to art, a radically new view of py p , ycreation 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”; “In fact, copyleft may be a better translation of the g py ypostmodern space of creation than copyright”. (Severine Dusollier, 2003)

→ The traditional concept of authorship with its implications of individualism and authority over the interpretation of textual meaning has been y p goverthrown 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)growth of public literacy and digital literacy)


▪ 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 accepted rule that every writer had the right of attributing his writings to his p y g g gname.

→ Feudal China (by late 18th): Confucianism philosophy concerning intellectual knowledge - ‘I transmit rather than create; I believe in and love g ;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 theinnovation, 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, 2002)p , ( , )


→ From late Qing Dynasty to KMT: the emerging notions on authorship and the introduction of copyright lawauthorship 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?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?


▪ Authorship in current Chinese copyright law and theoryTh Chi l i b ilt ti ti f th hi→ The Chinese law is built upon a romantic notion of authorship. − 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 economyinvestment 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?

4.4.Solution:

Contributorship, just a Metaphor?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 hasbecome 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' contribution. (Gastel, 2002)only list authors but also specify individual authors contribution. (Gastel, 2002)

▪ Contributorship→ “Instead, we would have a descriptive system something like film credits and

talk about contributors rather than authors.” (Richard Smith, 1997)talk about contributors rather than 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)


▪ 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 artdirector to film 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 otherwork, 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?


▪ 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→ 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.

5.5.Conclusion:

The Future of CopyrightThe Future of Copyright

5.Conclusion: the Future of Copyright

▪ Some propositions▪ Ultimate mission of copyright law▪ 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 knowledge & information should be recognized.g 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 processdissemination. 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 conductive use of conducersexample, recoding rights of users, conductive use of conducers

5.Conclusion: the Future of Copyright

▪ Theorizing “Contributorship”Definition▪ 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’t be necessary to replace the term ‘authors’ with→ It won t be necessary to replace the term authors with

‘Contributorship’; however it copyright law should be re-configured at lease bases on the notion of contributorship.

C t ib t hi d O hi▪ Contributorship and Ownership→ Contributor as copyright owner→ Transfer of copyright

▪ Credit, responsibility and liability→ Should a contributor be responsible for contributions made by other

contributor(s)?contributor(s)?

The End

Thank You!

• X shi and B Fitzgerald ‘Authorship Authorship in a Participatory Media Age &• X. shi and B. Fitzgerald, Authorship — Authorship in a Participatory Media Age & the Future of Copyright Law’ (forthcoming 2008)

• See further and download the slides at www.hilaws.com

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