At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium
In his celebrated essay, "What is an Author?," Michel Foucault suggested:"It would be pure romanticism . . . to imagine a culture in which the fictive would operate in an absolutely free state, in which fiction would be put at the disposal of everyone and would develop without passing through something like a necessary or constraining figure." In this essay I offer just such an exercise in pure romance. I consider some of the ways in which intellectual property doctrines, prompted into existence by the emergence of the printed word in the fifteenth century, have accommodated the ends of Western culture by enabling authority to authorize authorship in "fiction"--by which I mean, with Foucault (and, for that matter, Freud, Gadamer and Derrida, among others), creative play. I observe how new technologies, the most significant among them still essentially beyond imagining as Foucault wrote, are undermining the efficacy of intellectual property as "a constraining figure" in the evolving embodiments of creative play. I imagine a culture of precisely the sort Foucault thought "pure romanticism": a culture, that is to say, in which creative play is beyond the reach of constraint. Indeed, I argue that such a culture is in fact at hand--that we see it now, and that we know it for exactly what it is: the marvelous, if fearful,proliferation of meaning (to paraphrase Foucault) awaiting us in the post-literate, post modern, post structuralist, antiformalist, surfictive millennium that lies ahead. And finally I welcome the advent of such a culture, in which, at last, all are free to play in the fields of the word.
David L. Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, 55 Law and Contemporary Problems 139-151 (1992)