Creativity and Copyright in the Data Age

Does the rise of data-driven authorship change our intuitions about intellectual property? Does it matter?

|The Volokh Conspiracy |

In our previous posts we have detailed how The Second Digital Disruption is transforming many content industries. In particular, it is changing the way content is organized, invested in, and even produced, not merely how it is distributed to the world (which is what the first digital disruption upended).

The evolution of data-driven authorship also raises many interesting questions about the theory and doctrine of intellectual property. In our final post, we offer a brief excerpt from the paper in which we speculate about how the moral intuitions that undergird copyright may shift if—as we believe—this phenomenon grows in importance:

"The traditional account of authorship—and the account that underlies copyright law—is Promethean: that is, the creator is viewed as bringing something from the heavens to man, as Prometheus brought fire, and, again like Prometheus, is envisioned as a lone genius and benefactor of humankind.

This Promethean account underlies the central feature that has characterized copyright systems since the first modern copyright statute, the British Statute of Anne of 1710. Copyright is a system of authors' rights. According to this account, copyright is not for publishers, or sponsors, or (at least primarily) readers. The law's focus is the author, and the author is the holder (at least initially) of the rights that the law creates.

The advent of data-driven authorship is likely to undermine the Promethean allegory. What may rise in its place—or at least alongside it—is something we'll call the "Panoptian" model of creativity. The label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera. And this gets to the heart of how data-driven authorship is likely to change popular impressions of the nature of creativity, and, as a consequence, popular intuitions about the moral standing of creators to claim property rights in their work.

In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth. Instead, they are unsleeping watchers. They are accessories to a system of surveillance—one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless likely to understand as not entirely new and less than entirely beneficent.

Popular intuitions about the connection of authors to their work, the origin of the creative elements of a work, and the role of the community in the creative process are all relevant to public intuitions—however roughly-hewn they may be—about copyright law and policy. Public intuitions founded in a Promethean model of authorship undergird our current system of powerful copyright rights.

A revised set of public intuitions based in a Panoptian model of authorship may nudge us toward a more limited copyright regime. Speaking more specifically, we suspect that the intuition of ordinary people about the strength of authors' ownership claims will weaken; data-driven authorship blurs the association between the work and its "author," and also complicates the question of what the "creative" elements of any particular work are and who is responsible for them.

This isn't to say that people will abandon the idea that there are individual authors, or that works of data-driven authorship are creative, or that the creative elements of a work are linked to an identifiable "author," or that, as a consequence, authors have a justifiable property claim in their works. But the strength of all of these entwined intuitions may well ebb.

First, to the extent that public intuitions about the justification for copyright have focused on the idea that works of authorship are stamped indelibly with the personality of their author, the rise of data-driven authorship blurs this "personality" justification for authorial property rights. Works of data-driven authorship reflect not just the personality of their putative "author". They also reflect the revealed preferences of the audience. While we may be hesitant to equate mere preferences with personality, it's nonetheless true that a work of data-driven authorship is likely to be perceived as reflecting as much about its audience as about its author.

The exact ratio is unlikely to matter. The point is that dat-adriven authorship cannot plausibly be described simply as the author impressing his personality upon the world—a conceit that, frankly, is contestable even for the most traditional works of authorship, but which retains little intuitive traction when a work is deeply shaped by data collection and analysis.

For these works, what we are likely to perceive is not the Promethean author impressing his personality on the world, but rather the watchful Panoptian "author" gathering cues from our preferences, and using those cues to construct a work that, in large part, re-transmits ourselves to ourselves. The difference between Promethean and Panoptian authorship is far from a simple binary—it is always a matter of degree. But the Panoptian model tends to complicate the account of how new works are created."

So this is the world that data-driven authorship might bring us. Is it good, or bad? That hasn't been our primary focus—our paper is partly a description and analysis of the early days of this new phenomenon, and partly a set of predictions about the road toward data-driven authorship that we expect many creative sectors will travel, sooner or later. We don't do much normatively in this paper. But this is your chance to fill in the normative space. Is a world of data-driven creativity something we should welcome? Or fear?

NEXT: Brickbat: Choosy

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  1. Data-driven authorship is precisely why we need stronger IP for people who actually take risks and do not produce data-driven content. Data-driven authorship, based on algorithms, is solely based on the past. By definition, they can only predict what will be from history. When I buy a product, say a car, they show me ads for the same car for months. Maybe I really do want a second car. Maybe I dont. Maybe for Mindgeek, if they’ve established you like goats, perhaps its true that your predilection is unlikely to change. At least for a few months. So predicting what you like based on the past works for them. But truthfully, I am not really sure that in the land of Mindgeek there is anything new under the sun in the last 2000 years. Maybe today its battery powered.

    Outside of Mindgeek and Amazon, coming up with something new and entertaining requires a large degree of risk taking – creating something that has never been done. How is Amazon going to predict sales of a product that has not been invented? Amazon pushed Alexa with no data, risking a lot of money they people would want a digital assistant in their home. They hope you buy things, but everyone I know simply plays music.

    IP needs to continue to incentivize people to take large risks – so that the the time, effort, and capital invested pays off. Otherwise we are going to live in a world where nothing new gets sold, I see the same videos over and over, because the algorithm cannot process new ideas.

    1. “IP needs to continue to incentivize people to take large risks – so that the the time, effort, and capital invested pays off.”

      Another problem is the companies that manage the data-driven authorship approach are solely in it for profit (not saying that’s bad, just stating a fact).

      They will use their vast resources to drown out potential Prometheans thus making ‘pay offs’ that much harder to achieve.

  2. So the upshot of the proposal is this:

    1. Porn should be the model for how intellectual property should operate.

    2. Pandering should be the model for how the law should operate.

    3. The oldest profession the model for how all other professions should operate. It is the model of the future.

    4. If other professions wish to continue to operate differently from the way the oldest one has always operated, they are behind the times and the law should force them to get with it.

    1. In general, you don’t get to be “oldest” anything unless you’re doing something right but that’s not really the point of this series of articles. The closer argument is that you also don’t generally get to be “biggest” anything unless you’re doing something right.

      So maybe the real upshot of this series is that those who are both oldest and biggest might know a thing or two that the rest of us could learn from.

  3. Rats thought this was gonna be about AI inventing something, so does the AI’s inventor thus own the invention?

  4. The Promethean account seems to be in conflict with the idea that there are only seven basic stories and that everything else is just a version of those stories. It’s been turtles all the way down all along.

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