Deconstructing Copyright

by Linda Roland Danil | 8 Apr 2013

[Acknowledge] the importance of the desires and fantasms that are at stake in a proper name, a copyright, or a signature. (Jacques Derrida, “Limited Inc a b c …”)

As Elton Fukumoto argues,¹ the concept and ideology of the “author” developed in England during the 18^th century as a product of John Locke’s notions about individualism, English Romanticism, and emerging copyright laws. Of those copyright laws, the most prominent is the Statute of Anne of 1710 (the first copyright law), which at the time utilized the notion of “authorship” (with the consequent Romantic associations of an original,² irreplaceable creator of particular artistic and literary texts,³ and the Lockean individualistic notions of his/her inherent right to the products of his or her own labour) to protect the interests of booksellers.⁴ However, what are the consequences of post-structuralism and the critique of the homogenous, unitary “author”, and specifically within the context of this article, the consequences of Jacques Derrida’s critique of copyright, on copyright laws? Although Derrida’s arguments against copyright have been (mainly briefly) discussed before,⁵ this article will make Derrida’s arguments on copyright its explicit focus, with a concluding reflection on the consequences of Derrida’s arguments on copyright laws.

Derrida has powerfully undermined the notion of an author (let alone an individual) that is in control of language,⁶ and who writes and therefore creates innovative texts. For Derrida, signs, and consequently language, structure human consciousness; accordingly, there is no author who can claim to have created something wholly distinctive with the very language that structures his or her consciousness. As Derrida argues, “From the moment that there is meaning there are nothing but signs. We think only in signs”.⁷ Indeed, as Sean Burke succinctly provides:

Cognition and consciousness arise as intralinguistic effects […] by-products, as it were, of a linguistic order that has evolved for thousands of years before any subject comes to speak. Man can no longer be conceived as the subject of his works, for to be the subject of a text, or of knowledge, is to assume a post ideally exterior to language.⁸

In a footnote⁹ to his article, Fukumoto highlights Derrida’s unapologetic and unsurprising disdain for copyright laws. Not only did Derrida incorporate almost the entire text by John R. Searle (a critique of Derrida’s work)¹⁰ in his reply to Searle, “Limited Inc a b c …”,¹¹ thus violating the US fair use exception;¹² he also openly discussed this infringement, stating that if he was summoned to court because of it, at the very least he would get “to explain to the court all the implications (psychoanalytic, political, juridical, censorial [….] economic, etc.) of this debate, something that I have not been able to do here, the incorporation of the Reply having taken up too much time and space.”¹³

In “Limited Inc a b c …”,¹⁴ Derrida discusses the emergence of copyright by drawing attention to Searle’s insistence to sign the text and seal it with a copyright sign (©) (Derrida worked from a manuscript of Searle’s critique, rather than the text published in Glyph: see footnote n.10). Further, the placement of the word “copyright” and its sign © in Derrida’s manuscript is “On the top, at the left, above the title”¹⁵ and not, as Derrida notes with regards to the text published in Glyph, “in its proper place at the bottom of the first page”.¹⁶ By explicitly imprinting the text with the copyright sign, Searle forcefully identifies himself as the author of the text. Moreover, the copyright sign is also a pre-emptive move against the potential risk of misappropriation. As Robert Smith argues:

Copyright institutes legally the attempt to secure the self-identity of a written text, through the univocal figure of its author and his/her ownership of it. It is only because there is some doubt, some likelihood of infringement of that self-identity, of a contingent adulteration of its essential cohesion, that the law of copyright has come into being. […][Thus][…] a certain infraction of self-identity may be postulated as a necessary possibility, or law of the text’s structure.¹⁷

More profoundly, Derrida challenges Searle’s critique of his work, by highlighting the fact that by copyrighting his work, Searle by proxy undermines his own arguments as constituting viable and trustworthy arguments. As Joseph Hillis Miller argues:

[…] if Searle’s article speaks the truth, then that truth is universal. It belongs to everyone, and it is absurd or even improper to copyright it. Searle should be glad if someone steals it, since that would confirm the truth of what he has said. It would be appropriate to copyright it only if it is fictional […] You do not copyright the multiplication table.¹⁸

Derrida then proceeds to deconstruct the very concept of copyright. To begin with, and with some humour, Derrida directly questions whether he can be sure that it was, indeed, John R. Searle that wrote the text, even if it is signed by him and copyrighted accordingly. As Derrida argues:

[…] how can I be absolutely sure that John R. Searle himself (who is it?) is in fact the author? Perhaps it is a member of his family, his secretary, his lawyer, his financial advisor, the ‘managing editor’ of the journal, a joker or a namesake?¹⁹

Derrida highlights the fact that Searle acknowledged his indebtedness to a couple of individuals in producing the work (D. Searle and H. Dreyfus); accordingly, the “true” copyright belongs not to Searle as a coherent, individual author, but to a Searle who is already, by virtue of his acknowledgements, “[…] divided, multiplied, conjugated, shared.”²⁰ Further, the second acknowledgement of debt Searle concedes to is Dreyfus, one of Derrida’s old friends; if, Derrida argues, the two Searles gained an understanding of Derrida partly through Dreyfus, with whom Derrida collaborated and exchanged ideas with, then Derrida also has a stake in Searle’s acknowledgements. As Derrida argues: “[…] I, too, can claim a stake in the ‘action’ or ‘obligation’, the stocks and bonds, of this holding company, the Copyright Trust.”²¹

Derrida’s further disrupts this supposedly unitary author known as John. R Searle when he refers to him as “three + n authors”,²² that is to say, John R. Searle, D. Searle, H. Dreyfus, and Derrida himself. Derrida argues that this is a consequence of being unable to identify the “definite origin, the true person responsible”²³ for the article in question, not only because of Searle’s acknowledgements, but also because of the entire historical agglomeration of arguments from which both Searle and Derrida draw upon generally as writers, not to mention the shared symbolic code that they are both indebted to. Thus, this new conglomerate of (three+ n) under the Copyright Trust takes on the new name of “Sarl”, which is the acronym for Société à responsabilité limitée, the equivalent of which in Britain would be the Limited (Ltd) company.²⁴

Beyond the Searle dispute, “Limited Inc a b c …” exemplifies post-structuralism’s overall critique of an original, unitary “author”. Although Derrida was not, strictly-speaking, an advocate of the “death of the author” in a Barthesian sense,²⁵ Derrida did critique the “metaphysics of presence”, which privileges presence over absence, and the related critique of the unified subject as the author of a text.²⁶ Hence Derrida’s inversion of the logocentric privileging of speech over writing, or the privileging of supposed presence (speech) over absence (writing). According to Derrida, within the paradigm of Western philosophical thought since Plato, speech has been privileged because it indicates presence; however, it is actually writing that lives beyond the death of the author. The very act of recording or writing down speech is the ultimate act that indicates that speech is a poor substitute for presence; the “author”, a fragmentary subject to begin with, will eventually die: his or her writing, if he or she is fortunate, will live on.

Further, the nature of the iterability of language (its ability to function in the absence of its instigator and its referent)²⁷ allows it to dissociate itself permanently from its “father”.²⁸ Moreover, there was never even a father to begin with, given that “[…] there never was an originary consciousness that produced the text. There never was any such consciousness that was not always already written.”²⁹ In addition, différance, or the condition of the infinite deferral of the sign due to the unremitting play of differences that characterizes a sign, ensures the impossibility of ever being able to encounter the unmitigated, enclosed sign.³⁰ This also leads to the subject’s perpetual shifting in the symbolic order that structures his/her subjectivity and consciousness.

Post-structuralist thought consequently radically destabilizes the foundations of copyright laws. Copyright laws, generally speaking, are fundamentally based upon locating a discreetly identifiable initial creator(s) for the physical manifestation of “original” ideas. Moreover, copyright laws, beyond protecting the author’s exclusive rights to the work (and the resulting economic benefits that may accrue), may also be the manner in which that author gains a stable sense of self and an identity that he or she can corroborate by identifying and claiming ownership to an authored text(s).

However, as Derrida has implied, copyright may just be another ploy in order to uphold the ontotheological project of the history of metaphysics, by advocating an (illusory) presence, whereas more accurately there is only fragmentation, division, differences, and ultimately, absence. Nonetheless, copyright laws in and of themselves are not entirely a bad thing, and indeed, protect the revenue and foster the practice of artists. However, once considered through Derrida’s arguments, they are a useful and overt reminder that the law, itself a construction, premises itself on the myth of a homogenous, unitary subject. Thus, the whole legal edifice and the subjects it encompasses are nothing more than a conglomerate of historical, cultural, and social fictions, albeit with powerful, material effects.

Linda Roland Danil is a Doctoral Candidate, Teaching Assistant, and Researcher at the University of Leeds, UK.

1
Fukumoto, E. (1997): “The Author Effect after the ‘Death of the Author’: Copyright in a Postmodern Age”, Washington Law Review 72: 903 – 934.
2
As Fukomoto argues (ibid), the ideology of originality had its roots even prior to the Romantic Movement, and emerged in the early to mid-18th century.
3
Haynes, C. (2005): “Reassessing ‘Genius’ in Studies of Authorship: The State of the Discipline”, Book History, 8: 287 – 320.
4
Supra. n.1.
5
See, for example, Spivak. G. C. (1980): “Revolutions That as Yet Have No Model: Derrida’s Limited Inc”, Diacritics 10(4): 29 – 49; Smith, R. (1995): “Derrida and Autobiography”, Cambridge: Cambridge University Press; Fukumoto, E. (1997): “The Author Effect after the ‘Death of the Author’: Copyright in a Postmodern Age”, Washington Law Review 72: 903 – 934; Hillis Miller, J. (2001): “Speech Acts in Literature”, Stanford: Stanford University Press; Dasenbrock, R.W. (2001)“Truth and Consequences: Intentions, Conventions, and the New Thematics”, University Park, PA: Pennsylvania State University; Norris, C. (2003): “Deconstruction: Theory and Practice”, London: Routledge.
6
“… the writer writes in a language and in a logic whose proper system, laws, and life his discourse by definition cannot dominate absolutely. He uses them only by letting himself, after a fashion and up to a point, be governed by the system.” Derrida, J. (1997): “Of Grammatology”, John Hopkins University Press: Baltimore: p. 158 (emphasis in the original).
7
Ibid: p. 50 (emphasis in the original).
8
Burke, S. (1998): “The death and return of the author: criticism and subjectivity in Barthes, Foucault and Derrida”, Edinburgh University Press: Edinburgh: p. 15.
9
Supra, n.1: p.916.
10
Searle, J. R. (1977): “Reiterating the Differences: A Reply to Derrida”, Glyph 1(1): 198 – 208.
11
Derrida, J. (1997): “Limited Inc a b c …” in Graff, G. (ed.) “Limited Inc” , Evanston: Northwestern University Press: 29 – 110.
12
Supra, n.1: p.916.
13
Supra, n.11: p.101.
14
Supra, n.11.
15
Ibid, p.30.
16
Ibid (emphasis in the original).
17
Smith, R. (1995): “Derrida and Autobiography”, Cambridge: Cambridge University Press: p.32.
18
Hillis Miller, J. (2001): “Speech Acts in Literature”, Stanford: Stanford University Press: p. 70.
19
Supra, n.11: p. 31.
20
Ibid.
21
Ibid.
22
Ibid, p. 36.
23
Ibid.
24
Ibid.
25
Royle, N. (2003): “Jacques Derrida”, London: Routledge.
26
“… My own metaphysics of presence, not only cannot be accomplished, (meets its limit), but should not be accomplished, because the accomplishment, the fulfilment of the desire of presence, would be death itself … Necessity … teaches me, in a very violent way, to admit that my desire cannot be fulfilled, that there is no presence. Presence is always divided, split, marked by differences, by spacing, etc.”: Derrida, J. (1997) “Deconstruction and Necessity”, audio clip. (Online) Available: http://www.youtube.com/watch?v=J1IScOonGMQ (31 March 2013).
27
Margaroni, M. (2001): “Metaphysics of presence”, in Taylor, V.E. and Vinquist, C.E (eds.) “Encyclopaedia of Postmodernism”, Routledge: London: 245 – 246.
28
Derrida, J. (1997): “Signature Event Context”, in Graff. G (ed.) “Limited Inc”, Evanston: Northwestern University Press: 1 – 24: p.8.
29
Supra, n. 1: p. 916.
30
Derrida, J. (2004): “Semiology and Grammatology: Interview with Julia Kristeva”, in Derrida, J. “Positions”, London: Continuum: 15 – 34.