BYU Law Review


Alan L. Durham


Both literary scholars and students of copyright law have challenged the romantic model of authorship, a model emphasizing individual genius and creation ex nihilo. Authorship, they argue, is actually a collaborative effort. Authors assemble their works from the fragments of their cultural environment, transforming as much as creating. Copyright law, however, still champions the rights of authors and it requires a coherent theory of what authorship is. An alternative to the romantic model of authorship can be found in information theory, a branch of mathematics dealing, at a very fundamental level, with all forms of communication. Authorship could be defined simply as the unconstrained selection of one means of expression from an array of alternative means - a definition mirroring how information theorists quantify the information content encoded in a message. That conception of authorship, already suggested by existing parallels between information theory and copyright's doctrine of merger, answers some of the criticism directed at the romantic model, namely its overemphasis on the inspired, meaning-defining, solitary author/genius. On the other hand, this un-romantic model would suggest that a broad array of texts qualify as copyrightable works of authorship, including some in which the means of expression are selected by random or mechanical processes.


© 2004 J. Reuben Clark Law School