The present-day social model of authorship is co-substantive with the normative regime of copyright. Copyright’s avowed role is to triangulate a balance between the rights of authors, cultural industries, and the public. Its legal foundation is in the natural right of the author over the products of intellectual labor. The recurrent claims of the death of the author, disputing the primacy of the author over the work, have failed to do much to displace the dominant understanding of the artwork as an extension of the personality of the author.
The structuralist criticism positing an impersonal structuring structure within which the work operates; the hypertexual criticism dissolving boundaries of work in the arborescent web of referentiality; or the remix culture’s hypostatisation of the collective and re-appropriative nature of all creativity – while changing the meaning we ascribe to the works of culture – have all failed to leave an impact on how the production of works is normativized and regulated.
And yet the nexus author–work–copyright has transformed in fundamental ways, however in ways opposite to what these openings in our social epistemology have suggested. The figure of the creator, with the attendant apotheosis of individual creativity and originality, is nowadays more forcefully than ever before being mobilized and animated by the efforts to expand the exclusive realm of exploitation of the work under copyright. The forcefulness though speaks of a deep-seated neurosis, intimating that the purported balance might not be what it is claimed to be by the copyright advocates. Much is revealed as we descend into the hidden abode of production.
Of Copyright and Authorship
Copyright has principally an economic function: to unambiguously establish individualized property in the products of intellectual labor. Once the legal title is unambiguously assigned, there is a property holder with whose consent the contracting, commodification, and marketing of the work can proceed. In that aspect, copyright is not very different from the requirement of formal freedom that is granted to the laborer to contract out their own labor power as a commodity to capital, allowing then the capital to maximize the productivity and appropriate the products of the worker’s labor – which is in terms of Marx »dead labor.« In fact, the analogy between the contracting of labor force and the contracting of intellectual work does not stop there. They also share a common history.
The liberalism of rights and the commodification of labor have emerged from the context of waning absolutism and incipient capitalism in Europe of the seventeenth and the eighteenth century. Before the publishers and authors could have their monopoly over the exploitation of their publications instituted in the form of copyright, they had to obtain a privilege to print a book from royal censors. First printing privileges granted to publishers, for instance in early seventeenth century Great Britain, came with the burden placed on publishers to facilitate censorship and control over the dissemination of the growing body of printed matter in the aftermath of the invention of movable type printing.
The evolution of regulatory mechanisms of contemporary copyright from the context of absolutism and early capitalism receives its full relief if one considers how peer review emerged as a self-censoring mechanism within the Royal Academy and the Académie des sciences.  The internal peer review process helped the academies maintain the privilege to print the works of their members, which was given to them only under the condition that the works they publish limit themselves to matters of science and make no political statements that could otherwise sour the benevolence of the monarch. Once they expanded to print in their almanacs, journals, and books the works of authors outside of the academy ranks, they both expanded their scientific authority and their regulating function to the entire nascent field of modern science.
The transition from the privilege tied to the publisher to the privilege tied to the natural person of the author would unfold only later. In Great Britain this occurred as the guild of printers, Stationers’ Company, failed to secure the extension of its printing privilege and thus, in order to continue with the business of printing books, decided to advocate a copyright for the authors instead, which resulted in the passing of the Copyright Act of 1709, also known as the Statute of Anne. Thus the author became the central figure in the regulation of literary and scientific production. Not only did the author now receive the exclusive rights to the work, the author was also made – as Foucault has famously analyzed – the identifiable subject of scrutiny, censorship, and political sanction by the absolutist state or the church.
And yet, although the romantic author now took center stage, copyright regulation, the economic compensation for the work, would long remain no more than an honorary one. Until well into the eighteenth century literary writing and creativity in general were regarded as resulting from the divine inspiration and not from the individual genius of the author. Money earned in the growing business with books mostly stayed in the hands of the publishers, while the author received an honorarium, a flat sum that served as a »token of esteem.«  It was only with the increasingly vocal demand by the authors to secure material and political independence from the patronage and authority that they started to make claims for rightful remuneration.
Of Compensation and Exploitation
The moment of full-blown affirmation of romantic author-function marks a historic moment of redistribution and establishment of compromise between the right of publishers to economic exploitation of the works and the right of authors to rightful compensation for their works. Economically this was made possible by the expanding market for printed books in the eighteenth and the nineteenth century, while politically this was catalyzed by the growing desire for autonomy of scientific and literary production from the system of feudal patronage and censorship in gradually liberalizing modern capitalist societies. The autonomy of production was substantially coupled to the production for the market. However, the irenic balance could not last unobstructed. Once the production of culture and science was subsumed under the exigencies of the market, it had to follow the laws of commodification and competition that no commodity production can escape.
With the development of big corporation and monopoly capitalism,  the purported balance between the author and the publisher, the innovator or scientist and the company, the labor and the capital, the public circulation and the pressures of monetization has become unhinged. While the legislative expansions of protections, court decisions, and multilateral treaties are legitimated on basis of the rights of creators, they have become the economic basis for the monopolies dominating the commanding heights of the global economy to protect their dominant position in the world market. The levels of concentration in the industries with large portfolios of various forms of intellectual property rights is staggering. The film industry is a US$88 billion industry dominated by six major studios. The recorded music industry is an almost US$20 billion industry dominated by three major labels. The publishing industry is a US$120 billion industry, where the leading ten earn in revenues more than the next 40 largest publishing groups. Among patent holding industries, the situation is a little more diversified, but big patent portfolios in general dictate the dynamics of market power.
Academic publishing in particular draws a stark relief of the state of play. It is a US$10 billion industry dominated by five publishers, financed up to 75% from the subscriptions of libraries. It is notorious for achieving extreme year on year profit margins – in the case of Reed Elsevier regularly well over 20%, with Taylor & Francis, Springer, and Wiley-Blackwell only just lagging behind.  Given that the work of contributing authors is not paid, but financed by their institutions (provided they are employed at an institution) and that the publications nowadays come mostly in the form of electronic articles licensed under subscription for temporary use to libraries and no longer sold as printed copies, the public interest could be served at a much lower cost by leaving commercial closed-access publishers out of the equation. However, given the entrenched position of these publishers and their control over the moral economy of reputation in academia, the public disservice that they do cannot be addressed within the historic ambit of copyright. It requires politicization.
Of Law and Politics
When we look back on the history of copyright, before there was legality there was legitimacy. In the context of an almost completely naturalized and harmonized global regulation of copyright the political question of legitimacy seems to be no longer on the table. An illegal copy is an object of exchange that unsettles the existing economies of cultural production. And yet, copyright nowadays marks a production model that serves the power of appropriation from the author and market power of the publishers much more than the labor of cultural producers. Hence the illegal copy is again an object begging the question as to what do we do at a rare juncture when a historic opening presents itself to reorganize how a good, such as knowledge and culture, is produced and distributed in a society. We are at such a juncture, a juncture where the regime regulating legality and illegality might be opened to the questioning of its legitimacy or illegitimacy.
- For a more detailed account of this development, as well as for the history of printing privilege in Great Britain, see Mario Biagioli: »From Book Censorship to Academic Peer Review,« in: Emergences: Journal for the Study of Media & Composite Cultures 12, no. 1 , pp. 11–45.
- The transition of authorship from honorific to professional is traced back in Martha Woodmansee: The Author, Art, and the Market: Rereading the History of Aesthetics. New York 1996.
- When referencing monopoly markets, we do not imply purely monopolistic markets, where one company is the only enterprise selling a product, but rather markets where a small number of companies hold most of the market. In monopolistic competition, oligopolies profit from not competing on prices. Rather »all the main players are large enough to survive a price war, and all it would do is shrink the size of the industry revenue pie that the firms are fighting over. Indeed, the price in an oligopolistic industry will tend to gravitate toward what it would be in a pure monopoly, so the contenders are fighting for slices of the largest possible revenue pie.« Robert W. McChesney: Digital Disconnect: How Capitalism Is Turning the Internet Against Democracy. New York 2013, pp. 37f. The immediate effect of monopolistic competition in culture is that the consumption is shaped to conform to the needs of the large enterprise, i.e. to accommodate the economies of scale, narrowing the range of styles, expressions, and artists published and promoted in the public.
- Vincent Larivière, Stefanie Haustein, and Philippe Mongeon: »The Oligopoly of Academic Publishers in the Digital Era,« in: PLoS ONE 10, no. 6 [June 2015]: e0127502, doi:10.1371/journal.pone.0127502.