Contents:
Introduction
PART 1. Historical Context
PART II: The Court Declares Human Originality in the Urantia Papers
PART III: A Private Law Proposal For Secondary Works
Introduction:
Much of the contention in the Urantia Movement revolves around the copyright claims by the Urantia Foundation (UF) on the Urantia Papers. Some question the propriety of maintaining a copyright at all; while other are primarily concerned with its effects on secondary works and dissemination efforts. And some like myself who are also concerned that the present legal status of the UF's copyright claims implies human contamination of the Revelation. The focus of this essay is on the latter two issues - secondary works, and the muddying of the authorial waters.
One of the more persistent judicial controversies over the last 300 years (in both English and US law) involves the debate over what constitutes an original, hence, copyrightable work of authorship. Competing commercial interests continue to define the terms of the debate, while recently questions have risen about whether computer generated compilations are deserving of copyrights as well. Into this swirling legal vortex are swept the Urantia Papers, perhaps an inevitable consequence of the Urantia Foundation's decision to copyright the Revelation. Having entered this conflicted judicial arena, it's probably time to take a closer look at how the courts view authorship in general, especially since a Federal Appellate Court recently 'found' human selection and arrangement in the text of the Urantia Papers (UP).
In Part I of this essay, I will attempt to briefly summarize the historical legal debate over what constitutes original authorship; in Part II, apply it to the Urantia Papers in particular; and in Part III, conclude with a private law proposal for creating a non-exclusive, voluntary licensing regime for secondary works.
PART 1. Historical Context
Though there are many excellent treatises on copyright law and theory (I've cited the Nimmers and Paty previously), the historical perspective presented here is based largely on Jane C. Ginsburg's "Creation and Commercial Value: Copyright Protection of Works of Information" (90 Columbia Law Review, 1865 (1990)). I do so for two reasons. First, her argument for creating a non-unitary copyright regime (applying different standards of authorship to literary and informational works) could create a *legal* justification for the UF's copyright claim. And second, she offers a number of alternative licensing schemes that, with a little creative adaptation, could serve the unique needs of the Urantia Movement, adding structure, continuity, and community to the process of creating derivative (secondary) works.
Ms. Ginsburg uses the historical record to demonstrate that, previous to the Feist decision (1991), there had always been a dual standard of authorship that distinguished between what she calls works of "high authorship" - manifestly creative, literary works; and works of "low authorship" - compilations of factual materials, sometimes known as "sweat works". Both standards have served the greater purpose of copyright law - the promotion of knowledge, as reflected in successive English and American statutes. See, e.g., the English Statute of Anne of 1710, entitled "An Act For the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies." And the U.S. Constitution, Article I, Section 8, cl.8: "Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries" (1789). The latter was formalized into law in 1790 by the creation of the first federal copyright statute. Subsequent revisions to the US copyright law were made in 1831, 1870, 1909, and 1976.
A legal paradigm that thus fosters the spread of knowledge through the development of the arts and sciences seems ideal for the promulgation of an epochal revelation. (It also appears to be consistent with the Urantia Foundation's Declaration of Trust, 2.1. PRINCIPAL OBJECT: "The object for which this Foundation is created is the promotion, improvement, and expansion among the peoples of the world of the comprehension and understanding of Cosmology...commensurate with Man's intellectual and cultural development.")
As to the role that originality plays in copyright law, the 1976 Act specifically protects "original works of authorship". However, it never defines originality or authorship, generally deferring to the previous centuries of common and statutory law. Prior to the Feist ruling, there was an open split over whether the words "original authorship" referred to a single concept, or whether the two words should be considered separately. Considered separately, originality meant original efforts, industriousness, something not copied; while authorship was reserved for describing creative works containing a quantum of human subjectivity. These two different approaches were alternately applied to the two types of copyrightable works: compilations, which comprised the vast majority of copyrights awarded during the 18th and 19th centuries (mainly surveys, indexes, maps, and the like); and literary works, considered to embody an author's creativity, her individuality, even personality.
Towards the end of the nineteenth century, as the scope of copyright protection for original works was expanded to include related derivations, the scope of protection afforded to independent compilations diminished accordingly. This had the effect of placing greater emphasis on the creative, personality dimension of originality. However, both standards were still applied in varying degrees to both categories of works, producing inconsistent results across the various district courts. Finally, the Supreme Court entered the modern fray with its Feist ruling, resulting in an effective collapse of the two distinct analytical approaches into a one-size-fits-all analytical tool. Factual (even epochal) compilations must now bear the creative mark of the human beast to qualify for copyright protection (however small or seemingly insignificant such creativity might be). Do we really want this camel's nose under the Revelation's tent?
PART II: The Court Declares Human Originality in the Urantia Papers
An instructive case of what can go wrong when courts apply the Feistian standard of human originality to works of information can be seen in the case of the Urantia Papers. But before discussing the particulars of that case, some historical sense of how courts operate in the face of conflicting judicial theories should be considered. Take the case of copyrightable originality before us. Some courts have been strong advocates of the sweat doctrine; opposed by those circuits whose championing of the unitary, authorial personality standard was subsequently adopted by the Supreme Court in Feist.
Now, knowing human nature like we do, can we reasonably expect that the losing courts would magically convert 100% to the winning side's ways? Even though Supreme Court decisions are supposed to put an end to these kinds of controversies, individual courts often persist in stretching the equitable arguments of individual cases in ways that conform to their own belief systems. That they go through the motions and apply the formulas handed down by their superiors doesn't mean that they won't interpret and apply given facts in ways that tend to confirm their own biases. (Juries obviously operate much in the same way).
(Note: I am not stating definitively that the 9th Circuit Court of Appeals is a closet contra-creativity court, since I haven't researched its copyright rulings; only that I wouldn't be surprised if it weren't since it uses the expected negative definition technique described below so definitively. This is the same court that was overturned 27 of 28 times in its last session; and serves as a focal point of much dubious media attention, the latest of which was reported this month (5/98) in The NY Times: "...there is some evidence that the Supreme Court's conservative majority considers it as something of a rogue circuit". With respect to the Maherraa ruling, my suspicion is that the 9th Circuit was willing to subordinate the standards of human creativity to the commercial interests of compiled works; and either consciously or unconsciously employed the legal doctrine "interpretatio fienda est ut res magis valeat quam pereat" - such an interpretation is to be adopted that the thing may rather stand than fall - in support of a commercial rationale. Referring to the obvious artifice of finding "creativity" in compiled works, Ginsburg, an outspoken champion of re-instituting a non-creative copyright standard for compilations, comments: "Those courts that do admit low authorship compilations into the company of copyrightable works often swathe their determinations in the rhetoric of high authorship. Thus, many courts will strain to find (or will simply declare the existence of) "selection and arrangement" in such patently nonselective and un-"arranged" compilations..." [Id. at 1893-4]). Sound familiar?)
A Court that truly believes in the necessity of demonstrable human creativity is likely to use a positive standard for measuring that creativity; that is, by defining it as something actual, something that *is*. For instance, by showing how a given case exhibits "authorial personality". Now consider the losing side of the originality debate, a contra-creativity court. It is likely to use a negative standard to find creativity (creativity it doesn't really want to, but is forced to find). It will likely do so in a negative way, as in the Schroeder's courts formulation: "We hold that the human selection and arrangement of the revelations in this case *could not have been so "mechanical or routine as to require no creativity whatsoever*." [quoting Feist].
One can see that the use of such a negative definition does little to clarify the required creativity. In the case of the Urantia Papers, the alleged carriers of this creativity - the questions supplied by the Contact Commission/Forum - are never identified, let alone shown producing measurable results. And it's never explained how the mere input of these alleged questions magically alchemized themselves into the structure and form of the text; let alone produced the text itself! The leap from finding selection and arrangement in *pre-existing materials* to finding it in *materials not even yet in existence* has to count as one of the stranger examples of judicial overreaching. [See the relevant statutory language referencing pre-existing works below]. A more circumspect court could have been expected to refer the matter back to the lower court for evidentiary hearings; and that would have presumably driven a stake through the heart of this alleged human creativity golem once and for all.
However, in all fairness to the courts, Congress is also to blame for creating confusing statutory definitions to begin with. Commenting on the circularity of the language and reasoning of the 1976 Copyright Act, Ginsburg writes: "The 1976 Act...sets forth general criteria of protectability. Under the present Act, "'[c]opyright protection subsists...in original works of authorship.'" These include compilations, defined as "'work[s] formed by the collection and assembling of *preexisting* materials or of data that are selected, co-ordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.'" These provisions are not highly illuminating. Indeed, they are circular; in effect, they say "'original works of authorship include compilations, if the compilation as a whole constitutes an original work of authorship'". [Id. at 1895]
Back to the Schroeder Court, it makes the expected obeisances to the originality standard by citing Feist, which in turn cited the 1976 Act:
"Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), *and* that it possesses at least some minimal degree of creativity." Feist, 499 U.S. at 345 (citation omitted),"
Applying these *conjunctive* standards, does anybody on these lists really believe that the Urantia Papers were "independently created by the [human] author[s]"? That they either creatively selected or arranged the material; or gave final written expression to the resulting text? Or that it is reasonable to assume that a Court could have found same without hearing evidence on the matter; especially if it considered the numerous statements by the Contact Commissioners (CC) and early trustees that vociferously deny such human contributions?
Having placed the 5th Epochal Revelation upon the dual altars of judicial and legislative whim, the UF is now forced to intone various "legal authorship" theories to placate the copyright gods. And, as we have seen, sometimes those gods they must be crazy...
Clearly, the post-Feistian formulation of creative authorship is not conducive to a simultaneous claim of human copyright in the text and the unadulterated superhuman authenticity of its content. However, under the prior dual-standard of authorship that allowed for copyright to be obtained under a theory of industriousness, the original copyright could have been maintained without the human contamination factor creeping in. Thus, the notion of a collaborative effort between the Revelators and the CC/Forum, producing a joint work copyrightable by the humans involved on the basis of their hard work and *not* their creative selection and arrangement of the content or the text, could have been possible (in some circuits, anyway).
Tracking the effects that our present highly materialistic society as had on the original Constitutional purpose of copyright law to promote the arts and sciences, we see what the reasonable financial incentives offered to authors has produced: a highly commercialized regime of statutory and case law shaped by competing commercial interests, ever-changing judicial fashions, forum shopping, biased judges and logically challenged legislators. At the very least, such experience with the vagaries of Caesar's laws should lead us to conclude that, with respect to secondary works, we at least investigate the insularly benefits of a private law solution.
PART III: A Private Law Proposal For Secondary Works
Currently, the ability to produce derivative works based on the primary work of the Urantia Papers is enjoying an unprecedented freedom. A liberalized licensing policy seems to be in effect. My proposal attempts to give this positive turn of events a bit more structure; infuse it with a multi-generational component; and use it as a vehicle in part to help mitigate the human authorship contamination factor resulting from the 9th Circuit's decision.
(As far as I can see, this new secondary works policy is a direct result of the Maherraa ruling. The millions of dollars in legal fees spent by the Foundation dragging the Revelation through the courts; the significant loss of copyright protection that resulted thereby; the probable loss of donor funds attributable to the litigation and its effects; the consequent expansion of Constitutionally protected fair use opportunities for creating derivative works without permission from anyone - all make me skeptical that we have witnessed a genuine epiphany on the part of those trustees who initiated it. The old saying comes to mind - "Having power means never having to say you are sorry." I note that we haven't heard any apologies in all of this. So be it. However, one can at least derive some small comfort from the fact that at least a measure of rationality has returned to the UF. If nothing else, they seem to appreciate that such "liberalization" is in their own best interests, and hopefully the Revelation's as well).
Thus far I have described such a licensing proposal as a non-exclusive, voluntary, private law regime. Basically, this means a collective, not unlike the Copyright Clearance Committee (CCC) which is composed of publishers of technical books and scientific journals. The CCC, which began in 1983 with 7,200 articles and by 1989 had over one million, makes available to its members scientific research, photos, and articles. Members submitting their copyrighted works to the CCC are required to make them available on a nonexclusive basis to the other members for copying purposes (for which fees are collected and royalties paid; however, we need not consider this relevant to our purposes).
Going beyond mere copying rights, a secondary works collective based on the UP could make available to all members the individual works of each (i.e. each member would automatically give and receive *derivative rights* in their own and other's works). This has some interesting synergistic possibilities. Say someone creates an exhaustive index of the words in the Papers. Someone else bootstraps that work into a conceptual index. Someone digitally hyperlinks those concepts together. A programmer creates a customized interface for data retrieval. Someone refines all of this further by using a special-case indexing system that combines certain words and concepts in unique ways, and cross-references those with other scholarly works. Someone else supplies the human sources for the 1,000 plus seminal concepts used by the Revelators, etc.
Other features of such a collective could include: a mission statement containing a definitive acknowledgment of the true authors of the Revelation (with affirmation of same by each subscribing member); a review committee responsible for maintaining agreed upon standards of scholarship and accuracy; and a low key administration responsible for negotiating licenses with the Urantia Foundation for its members as a whole; arranging publishing and marketing contracts; and keeping members informed of new projects, needs, and contributions.
Some of these components may already be in existence in various forms, relative to the UF's secondary works review committee. I believe that the larger Urantia community would profit from creating a grass roots organization that is independent of the UF trustees and/or the Fellowship - a practical guild of Revelation inspired artists and writers cooperating with each other to produce useful secondary works. But whatever form such a group ultimately takes, whatever products it ultimately produces, its real value might be in the sense of community that its members evolve. A creative community working on a collaborative, trans-generational project (perhaps a 5th Epochal equivalent of Herman Hesse's Glass Bead Game) could knit together successive generations of reader/believers, and help insure the long-term success of the Revelation.
In close, consider how such a guild, working with the greatest compilation of facts and ideas ever recorded on Urantia, could mirror the function of its presumptive cosmic counterpart, the Recorder-Teachers:
"There is an artistry in the intelligent assembly and co-ordination of related data, and this art is heightened in collaboration with the celestial artisans, and even the ascending mortals become thus affiliated with the recording seraphim." [554]
Phil Geiger