Confining Cultural Expression: How the Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion

I.Introduction"In the end, we will conserve only what we love. We will love only what we understand." - Baba DioumNowhere in the legal world do these words ring more true than in the area of copyright. Providing ownership rights in the cultural creations of society helps to ensure their preservation and survival for generations to come. However, when the very basis for those rights is predicated on antiquated values that exclude certain groups and types of cultural creation, then we run the risk of creating a narrowed view of what culture is and how it is reflected in the things we produce. Copyright was not-and is not- explicitly concerned with who could produce cultural creations and who could not, though the implications of copyright protection affect the opportunities of different groups for cultural production. A legal regime that confines protection to the particular creative endeavors of a particular group of people excludes the valuable contributions of those on the outside. Though these exclusions may be unintentional, they are just as harmful as if they had been expressly written into the law.This article takes a critical look at modern copyright law in light of the values and conceptions highlighted in its early development. From its initial emergence as a means of protecting rights in the written word to the rise of the author as a vital hero to the creation of cultural works, copyright continues to espouse certain assumptions and value judgments about cultural creation. By examining these assumptions and values through a critical lens, with the aid of critical race, feminist, and queer theory in particular, I aim to expose the ways in which these assumptions continue to work to the exclusion of the creative works of already marginalized groups of people. As one critical legal scholar has already noted, "[Intellectual property law contributes to determining and maintaining a pervasive set of power relationships in society."1 It is essential that we critique those relationships and deconstruct the ways in which they imbue this area of the law.II.Birth of Copyright and the Importance of the AuthorFrom its very inception into the canon of legal thought, copyright has dealt primarily with the protection of the cultural creations of literate, white, heterosexual males, and this focus continues to color copyright law today. From the first copyright legislation arising out of the early 18th century to the succeeding rise of the Romantic author, the value principles behind providing ownership rights in cultural work have been rooted in the protection of a certain clearly defined cultural creator and his creation.A. Cultural Control and the Statute of AnneThe British Statute of Anne of 1710 emerged in the midst of political, social, and religious upheaval as the very first formal existence of copyright legislation and served a key function in providing control of the majority over cultural output.2 The statute was created to provide protection to authors who were discovering increasing instances of illegitimate printing and copying of their work.3 The printed word had long since emerged from the sole province of clerics and religious leaders to become more accessible to the average person, and printing presses and booksellers were capitalizing off of the increased demand for printed material.4Thus, the Statue of Anne provided for ownership rights to attach to published written material to permit authors to control the dissemination and distribution of their work:Whereas printers Booksellers and other persons have of late frequently taken the liberty of printing reprinting and publishing or causing to be printed reprinted and published Books and other writings without the consent of the authors or proprietors of such books and writings . . . [may it be enacted that] the Author of any Book or books already printed who hath not transferred to any other the copy or copies of such Book or Books share or shares thereof or the Bookseller or Booksellers printer or printers or other person or persons who hath or have purchased or acquired the copy or copies of any Book or Books in order to print or reprint the same shall have the sole right and liberty of printing such Book and Books . …