See Copyright, Moral Rights, and Subjective Authorial Harm: CIPIL Evening Seminar.
A talk by Law Professor David Simon (SSRN). From his Abstract. More analysis below.
Abstract: Copyright law grants authors special non-economic “moral rights” to prevent others from using their works in certain ways. In their strongest “solipsistic” form, moral rights give the author the absolute power to prevent any use that offends her sensibilities. While the solipsistic view of moral rights exists in only a few countries, the sentiment underlying it is pervasive in moral rights theory: an author’s claims are superior to all others because only the author knows when harm occurs, regardless of others’ views. In other words, certain uses of works result in the author experiencing harm that no one else can experience and that does not depend on what others think. This Article asks and evaluates the following question: can harm based only on the author’s subjective experience justify solipsistic moral rights?
It argues that the answer is probably not—and that, if supported, solipsistic moral rights will be tightly limited. Drawing on literature in science fiction and philosophy, this Article. contends that the best justification for the monastic view is also the most implausible: authors have moral rights only when another’s use causes the author to experience an inconsistency between her perceived use of the work and her memories of creating the work. In short, an author’s rights are contingent on her ability to remember creating her work. This is the best justification because the author’s memories of creating the work satisfy all the requirements for authorial harm: it identifies discrete psychological states that are tied directly and only to the author’s acts of creation, independent of others’ perceptions. It is the least plausible, however, because it conditions important rights on one’s ability to remember past actions. Despite its seeming implausibility, the author’s memories of creation provide the best support for grounding monastic moral rights. As a consequence, the case for monastic moral rights, if it can be made, is tightly limited to cases where another’s use of an author’s work causes a negative psychological response directly tied to the author’s memories of creating the work.
See also his paper “Copyright, Moral Rights, and the Social Self,” Yale Journal of Law & the Humanities, Vol. 34 (2024). Abstract:
Moral rights—non-economic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction.
On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the harm they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate questions of whether and to what extent the Investment Theory is justified.
See also Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended on Sept. 28, 1979, art. 6bis, 1161 U.N.T.S. 3 (commonly cited as the Paris Act 1971) (note: The TRIPS Agreement incorporates most substantive Berne provisions but explicitly excludes Article 6bis moral rights obligations for WTO members who are not Berne parties), art. 6bis:
Article 6bis
Moral Rights:
1. To claim authorship; to object to certain modifications and other derogatory actions;
2. After the author’s death; 3. Means of redress(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
This entire presentation and argument shows the utter incoherence of modern legal “intellectual property” theory. I have long condemned the most harmful forms of IP, patent and copyright, as well as the more well known forms, trademark and trade secret, as well as the reputation rights of defamation law. And there are others, including an aspect of copyright called moral rights: inalienable rights to attribution and to the “integrity” of the work, whatever that means. Just listen to the confused pseudophilosophical musings of this guy. It’s almost unbearable to hear him jabber on in this legal positivist way, anchored to nothing, going from metaphor to amateur Total Recall thought experiments. Rambling on about how one’s “memories” of having “created” something is what “matters” to him, and how violating that “thing”s integrity “harms” him, blah blah blah.
The main theories of IP are Lockean—based on Lockean creationism—and utilitarian; a third, more obscure, even more inscrutable one is the Hegelian “personality” argument which this guy, wittingly or not, is partly relying on.
This moral rights argument is bound up in the personality theory stuff, plus a smattering of the Lockean and ontological arguments others throw at the wall: any “thing” that exists “ontologically” was “created” and “has an owner”. Blah blah blah. It also makes the mistake of thinking the law ought to prohibit causing harm instead of prohibiting conflict, use of others’ owned things, trespass: nonconsensual uses of or invasions of others owned resources (erroneously and widely called “their property”).
These people never stop to ask: what are the types of things that exist over which there can be conflict, and to which property rights can apply in the first place. The things we wield physically by manipulating them with our actual hands are scarce means of action—ownable resources. Other “things” “exist” in the world, and “matter”—i.e., the concepts we use to understand this complicated world are useful and have referents—in addition to scarce resources, physical, conflictable things that serve as means of action and that can be owned and are subject to property rights precisely because there can be physical conflict over them, the world is in a sense “ontologically rich” and consists of lots of varied concepts that has as there referents any number of other things: love, pain, time, knowledge and ideas, meaning, beauty, truth, evil, games, sports, contradictions, numbers, actions, leisure, pleasure, language, letters, contemplation…. just because there is a valid concept does not mean the referent of that concept “exists” as the type of thing that can be owned. I have a wife, an age, a child, a country, and my car has a color and age and weight. I don’t own any of these things. I don’t own my actions. I don’t own knowledge. It is useful in action. It is not a scarce means of action. It is the knowledge that guides the use of resources. Of all the types of things that “exist”–that is, for which there is a valid concept having a referent–only conflictable resource can be owned and subject to property rights as only the things have that nature, that they can lead to conflict.
The Lockean creationists and personality theory and pie in the sky “ontologists” make the mistake of thinking that if a concept is valid, if it has a referent, “thing” that can therefore be said to exist, then the question then is: who owns it? The natural answer, in the case of truly “created” things (like ideas, even if all of them are in fact incremental and necessarily build on others). But they skip the first question: can it be owned. The answer is NO to all the things they think can be owned: ideas, reputations; and there is no “right” to “not be harmed.” Now wonder the world is a mess. Normal people, farmers, manual workers, know what it means to deal with real things they can manipulate with their hands. Only statists and intellectuals could come up with something as insane is the idea of personality rights, reputation rights, “intellectual property” rights, etc.
Update: From a libertarian lawyer friend:
Simon’s argument, as summarized in his abstract at least, is so stupid I can hardly believe it’s from a real law professor. Even as I’m well aware of the worthless junk lots of other law professors produce.
Me:
This is what you get when you are unmoored from any principles and just swim around in legal positive muck. But IIRC he ends up sort of rejecting the “strong version” but … it’s not clear what his point is then. He says
This is the best justification because the author’s memories of creating the work satisfy all the requirements for authorial harm: it identifies discrete psychological states that are tied directly and only to the author’s acts of creation, independent of others’ perceptions. It is the least plausible, however …
It’s all just word games to these people. They are advocating fascism.
These are all basically divide by zero problems. If you start with incoherent assumptions, you can get any result you want. Like, for example:
- If you are not for IP, you must be in favor of pedophilia. —Sasha Radeta
- If you oppose IP, you are advocating slavery. —Wildberry
- Song piracy and file-sharing are the cause of stage collapses at concerts. (Insurers blame stage collapse on copyright piracy)
- a confused anarcho-socialist argument that “intellectual ownership” is needed, even though property rights are generally bad, to reward “the individual who laboured to discover,” but not “the owner of the idea itself, being an abstract piece of property”. Hunh? (The Worst Argument for IP Ever?)
- Copyleft advocates are like homophobic, anti-gay marriage bigots (some commentor at Techdirt)
- “To make a distinction between things which are ownable or not ownable with the difference being whether they’re constructed out of molecules or pixels is to create a new kind of apartheid, in which some kinds of property are just niggers.” —J. Neil Schulman
- If IP isn’t legitimate, then it’s okay to steal other people’s babies.
- Without IP you can’t have money: “Cool, so money can’t exist right? Since banks don’t have copyright for the cash they print, anyone can print any form of cash, thus destroying the economy…. cool story bro” —”sunny vegas” on Youtube comments
ALL this confusion is addressed in the following content.
- The Problem with Intellectual Property
- Types of Intellectual Property
- Aggression” versus “Harm” in Libertarianism
- Ontology mistake:
- The “Ontology” Mistake of Libertarian Creationists
- Objectivists: “All Property is Intellectual Property”
- A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”
- Stephan Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part IV.I. In particular, references in notes 75-76 et pass.
- KOL483 | The Economics and Ethics of Intellectual Property, Loyola University—New Orleans
- On the term “property” referring not to owned things: Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”
- On Conflictability and Conflictable Resources; Voluntaryism and Voluntarism
- On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession
- Janich and one’s hands:
- Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession
- It is impossible to own ideas
See this Grok summary of the argument for moral rights and Grok’s proposed Kinsella response:
Summary of the Speaker’s Argument for Moral Rights Based on Creation
In the relevant sections of the talk, the speaker (David A. Simon) presents a personality theory of moral rights (drawing especially from the robust French conception). The core idea is that when an author creates a work (a book, painting, etc.), they invest part of themselves into it—establishing a special, non-economic connection he labels “Relation A.” This relation arises because the creator has literally put something of their personality, effort, or identity into the work.
Moral rights (primarily the right of integrity and attribution) are justified as protecting this personal bond. Any distortion, mutilation, or derogatory use of the work that causes subjective, personal, and independent harm to the author’s feelings (not merely external reputation or honor as in the Berne Convention’s standard) violates that bond. The speaker explores four requirements any justifying theory must meet, with the fourth being this subjective harm tied to the author’s unique psychological connection (memories of creation being the most plausible mechanism he identifies). In the paradigmatic one-author/one-work case, this special relation persists at least for the author’s lifetime, giving the creator a right to control certain uses of “their” work that go beyond ordinary economic copyright. The argument ultimately rests on the intuition that creation forges an inalienable personal link that the law should recognize and protect from harm.
Concise Kinsella Response
Stephan Kinsella would dismiss this entire line of reasoning as incoherent pseudophilosophy and a classic example of the deeper errors underlying all intellectual property (IP) theory, including the “more obscure” Hegelian personality argument that Simon partly relies on (wittingly or not). Kinsella has long condemned moral rights—inalienable rights to attribution and “integrity” of the work—as one of the most harmful aspects of copyright, calling the presentation’s rambling thought experiments (brain transplants, Total Recall memory swaps, Step Brothers analogies) “almost unbearable” legal-positivist musings anchored to nothing.
Key Kinsella Counterpoints
- Creation does not generate property rights: Creation is a source of wealth (by transforming already-owned scarce resources), not a source of ownership. You do not own what you create simply because you “invested yourself” in it—Lockean/labor/creationist theories fail here. A sculptor owns the statue because they homesteaded or contracted for the marble, not because they carved it. The same applies to writings or art: the physical copy is owned by whoever owns the paper/ink/computer; the “work” or pattern is not a separate ownable thing.
- Ontology mistake / reification error: Just because we have a valid concept (“the work,” “integrity,” “my creation,” “part of myself”) with a referent does not mean that referent exists as a scarce, conflictable resource that can be owned. Ideas, expressions, patterns, memories of creation, personality extensions, reputations, and subjective feelings are non-scarce and non-rivalrous. Two people can use the exact same idea, copy, or pattern simultaneously without conflict. Property rights exist only to allocate scarce means of action where physical conflict is possible; they do not apply to knowledge, which guides action but is not itself a means subject to ownership.
- Aggression, not mere harm: Libertarian rights protect against aggression (trespass on owned scarce resources/body), not against subjective “harm” to feelings, honor, reputation, or psychological states. Modifying or copying someone’s work (even in ways the author finds distressing) does not invade the author’s body or tangible property. Enforcing moral rights would impose non-consensual negative servitudes on other people’s legitimately owned resources (paper, printers, computers, etc.), which is itself aggression. There is no libertarian “right not to be harmed” in this sense.
- Personality theory is especially confused: The Hegelian/personality view—that the work embodies or extends the author’s self, creating inalienable rights—is murky and incompatible with self-ownership and homesteading. Kinsella rejects any claim that “part of me is in the work” justifies control over how others use their own property. Moral rights are just another statist monopoly that distorts markets and violates real property rights.
In short, Kinsella would say the speaker’s elaborate psychological scaffolding (memories, subjective harm, French intuition) is unnecessary and misguided because the fundamental question was never asked: Can this “thing” (the work’s integrity, the creator’s feelings about it) even be owned in the first place? The answer is no. Only conflictable, scarce resources can be property; everything else—including the supposed personal bond created by authorship—is free for all to use, copy, modify, or criticize without committing aggression. This is why Kinsella advocates abolishing copyright and its moral-rights appendage entirely.
For deeper reading, see Kinsella’s linked works on creationism, the ontology mistake, aggression vs. harm, and the structural unity of “real” and “intellectual” property errors.
TRANSCRIPT
Here is the corrected and polished version of the transcription with topical headings, grouped into paragraphs of maximum 7 sentences each, and original timestamps displayed after every topic header (using the earliest timestamp in that section for reference).
Introduction by Speaker 1
00:00
Good evening. Normally when I say it gives me great pleasure to introduce the speaker, I don’t really mean it, but I actually mean it tonight.
I’m super pleased because it is our privilege to introduce David Simon. David did his PhD here, receiving his PhD in 2019. Before that, he studied first at the University of Michigan, then did a JD at Chicago-Kent, then an LLM elsewhere, and finally came here for the PhD.
Subsequently, he held positions at Kansas, then at the Petrie-Flom Center at Harvard and Georgetown, and is now Associate Professor at Northeastern. Yeah, I was confused—Northeastern or Northeastern. Or was it George Washington? Well, you know, it’s okay. I’m sorry, what did I say? You upgraded me? Yeah, George—what did I say? American. I don’t remember that.
So that summarizes his amazing career. He now works mainly in medical products liability and astoundingly on drugs. But when he was here, he came with this idea. I had no influence on the topic while he was here, but he was a prodigious worker. He came to work on moral rights and, in particular, the relationship between moral rights and psychological theory or current understandings of psychology. And it is from that work that he is going to present tonight’s talk. Looking forward to it. Thank you.
David Simon:
Response and Paper Overview
01:37
Thanks for coming. That was a very kind introduction. I’ll say my experience could have been a lot worse if I had a different supervisor. So I felt very lucky that he was my supervisor. It was a large reason why I finished my PhD.
And this paper is actually almost 20 years old. So I started working on it almost 20 years ago and still I’m not sure if I’ve got it right. But the paper is about copyright. And in particular, it is about moral rights. So you have two sets of rights in copyright. You have the economic rights. Those are supposed to enable the author to recoup their investments and help disseminate the work.
And then you have the personal or the non-economic rights—the moral rights. And those are not supposed to compensate the author for any of the work that they’ve done, but they are supposed to serve some other purpose. And so this paper is sort of about what is that other purpose. And I’ll tell you more about that in a second.
Examples of Moral Rights Cases
02:38
But here are some examples from cases where moral rights were at issue. So we have Snow versus the Eaton Centre. This was a Canadian artist who was commissioned to produce this installation of geese at a shopping center. And the owner of the shopping center wanted to, I think, hang some ribbons during Christmas time and the artist objected. He said, no, you know, that offends my moral rights. That violates my moral rights.
The other two cases that are pictured here involve art installations. One took place in Massachusetts. It was an outdoor art installation. The other was an indoor art installation. But it was kind of the same thing. They wanted to move things around or take things away. And the artist said, well, wait a second. I don’t agree with that. So that’s what this is about.
Personal Background and Skeptical Approach
03:26
So in particular, I want to give you a sense of where I was coming from with this project. My overall view coming into the project was highly skeptical of moral rights. But my aim was to try and figure out—at least throughout the course of my PhD, not necessarily in this paper—what kind of account could we give to support the common accounts of moral rights? What are some reasons we might give to support those theories?
And the most robust theory of moral rights, the most robust conception of the theory, comes from France. And the point of this paper is to take that French ideal and see: Are there any good reasons why we might believe in that French ideal? Or are there any good reasons for thinking we should adopt it as part of our law? And hopefully it will become clear.
The reason for this is that I think the French intuition, if not the French theory, animates pretty much all of the people who support moral rights or think moral rights are a good idea. So even though I’m going to be talking about a highly idealized version of moral rights, I think the intuition and the sentiment are captured by most moral rights scholarship and are indeed the reason why we have moral rights in the first place.
Key Questions and the French Approach
04:50
Now, another thing to mention that’s important before talking about this is that this question about what kind of account could support the French version—which I haven’t told you about yet—is a question prior to the question you will all be considering as I talk, which is: Well, how do we balance the interest of the author against the interest of the audience or interest in free expression? And all of those things are important, but they’re not really about the thing that I’m talking about today.
I’m talking about the prior question, which is: Do we have any good reasons to think that, as an initial matter, authors should have these moral rights? So hopefully that’s clear. And the central issue in French moral rights theory is who decides what constitutes harm? So under the Berne Convention, the right of integrity says the author can object to modifications or mutilations of their work if they are prejudicial to their honor or reputation or something like that.
But the key is honor or reputation, and honor or reputation means that it’s not just up to the author. It has to be that other people think that there’s some negative consequence or negative impact on the author. But the French version isn’t really concerned with that, as I’ll describe in a moment. They’re really concerned with the author’s feelings alone. So the author gets to decide what uses violate their moral rights and what uses are permissible.
Four Requirements for Moral Rights Theories
06:10
So the basic argument I’m going to walk you through goes something like this. First, moral rights have four requirements. So any kind of theory that’s going to justify moral rights has to meet these four requirements. One of those—I think all the first three are relatively uncontroversial. The fourth one is where I think there’s some controversy, and that’s basically the French view. And that the French view is that subjective harm is all that matters. So you might disagree with that—I disagree with that—but I’m trying to just present this argument to you, see if there’s anything to it.
And then we’re going to ask, given the way I’ve described the harm, what does that tell us about the conditions under which a moral right might be violated? And what’s needed for the individual to experience that psychological harm that gives rise to moral rights? And then the last question, which I probably won’t answer or address too much, is: Is this a desirable approach? I think the answer is going to be no. It’s probably not a desirable approach for moral rights theorists. But on the other hand, it may be desirable for people who don’t like moral rights. It’s sort of my ironic conclusion.
And then I’m going to say one final thing just to get some reactions that I don’t think has been said before in the literature. Okay. So first I’m going to talk about these four requirements. Then I’m going to try to say, okay, what are some different ways we could satisfy those four requirements? And I’m going to go through four different views. And I’m going to see which one of these views or which combination of these views is the most plausible account of subjective harm that I’m going to lay out.
Requirement 1: Personality Theory and the Author-Work Relation
07:54
So first requirement is, I think it underpins every kind of what are called personality theories of moral rights. Personality theory is based on the idea that when I create a work—a book, a painting, whatever it is—part of myself is invested in that work. And as a result, there’s this connection between me and the work. And I’m calling that connection Relation A. So there’s a relation between us that’s special, and the specialness arises because I’ve created it.
So this theory, personality theory, is the primary motivating theory for the moral rights that I’m talking about today, the French version. There are other potential theories of moral rights. I’m not really concerned with those.
Requirement 2: The Paradigmatic One-Author, One-Work Case
08:45
The second requirement requires a little bit of explanation, although I think it’s pretty obvious. So I’m concerned with what I’ll call the paradigmatic case of where moral rights might persist or exist. Meaning, if there’s any time where there is such a thing as moral rights, where this relation arises between the author and the work, it’s going to be in a case where there’s one author and one work. I paint the painting.
I’m not really concerned with what happens if there’s multiple authors, or as I’ll talk about at the end, what happens if the author uses artificial intelligence to help make a work. And the reason I’m not concerned with those is because they don’t really matter to understand whether this theory is plausible. All you have to do is think about the most basic case where it could be true. And I think this is the most basic case where it could be true, where there’s a one-to-one relationship between author and a work.
Okay, so if there’s a one-to-one relationship between author and a work, that means that the special relation that I get from creating a book or a painting or whatever, that special relation can only exist between the author and the work. And it has to be held by only one person, and that person has to be the author, so the person who created the work.
Requirement 3: Duration of the Relation
10:01
The third requirement is also, I think, quite easy to understand. It’s that if this relation does exist, and it exists between the author and the work only, that it lasts at least as long as the author’s life. What happens after the author’s life, we don’t know. It’s not really important. There’s a lot of inconsistencies that arise if you look at actual law, like the French law gives rights to heirs, which isn’t really consistent with some of the things I’m about to say, but it doesn’t matter. At a minimum, the special relationship is going to last from at least creation until the author’s death.
Requirement 4: The Harm Requirement (French Subjective View)
10:34
And then the fourth requirement for any kind of moral rights theory is that there has to be some harm. And I would say that most people don’t think about harm in the way that I’m going to describe. They don’t think that they might conceptualize harm to include honor or reputation. But remember, I’m talking about the French view. And at least as I understand the most orthodox version of the French view, it’s not about what others think. It’s about what you think as the author.
And so this means—I think that I might be wrong and I’m happy to learn that I’m wrong—that there are two conditions that harm has to satisfy for a theory of moral rights. One is that it’s personal so that only the person who has a special relation can experience that. And the other is that it’s independent, meaning it doesn’t depend on what others think. As I just told you, that’s a really important part of the French view. So those are the conditions.
And so what I’m going to do now is talk about this harm requirement and present some views about how to make it true that an author could experience personal and independent harm. And I’m going to walk through some cases, some candidates for how we could understand what makes the author special such that they could experience this harm. So the first view I’m going to present is called the body view. The second view is the view of personal identity. The third is the true beliefs view. And then the last one, which I’m going to foreshadow for you as the winner, or at least partially the winner, is memories of creation. And a lot of this paper grows out of work in analytic philosophy on personal identity. And I still don’t know if I’ve gotten it properly worked in. So we’ll see.
The Body View and Why It Fails
12:42
So the first potential way to satisfy the harm requirement is to say all we have to do to know whether somebody’s harmed and violates their moral rights is to identify the body of the person that created the moral rights. So like if we’re wondering, if I create a painting and we’re wondering 20 years from now, if someone does something with the work, how do we know who has moral rights to that work? We would just point to the body, my body. As long as it’s the same body, then I think we’re pretty much good.
The problem with this view is that it seems to miss the most important part of harm, which is the subjective experience. You imagine that Lionel and I decide that we’ve had enough of our own bodies. We want to try each other’s bodies out. And so we undergo this new experimental procedure called the brain transplant. Right. And so we go under the anesthesia. And when we wake up, Lionel’s brain is in my body and my brain is in Lionel’s body.
And then we would ask, to my painting, suppose somebody wants to throw paint all over my painting and we say okay which of these two people should we privilege—who has the more—who has—who’s experiencing the harm when the paint is spilled on my painting? And I think if you believe that such an example is possible—even if you don’t—you’d want to say that well I would, that is to say my brain in Lionel’s body, be the one experiencing the harm, right? Not my body with Lionel’s brain, because he doesn’t have any of the psychological states associated with creating the work. It doesn’t even seem like that’s the right way to think about it.
So I think we can say the body view of moral rights doesn’t work. And maybe that’s just obvious, but so we can discard that view. So we can’t just look to the same person, the same body and say, okay, that’s going to satisfy all of the requirements I laid out before, because it’s going to miss the last one, the most important one, and probably all four of them, but the subjective harm component.
The Personal Identity View and Its Limitations
14:55
Okay, so then, does anybody know who this guy is? So that’s Derek Parfit, a philosopher of personal identity. And interesting side note, he wrote these books about personal identity, and he developed global amnesia. And so he had no memory of who he was and then came back. And so it’s kind of a weird twist.
So, you know, there might be an easy problem to the moral rights question about how do we know whether the person experiences this personal, independent and personal harm? And you might just say, well, all we have to know is that it’s in the same person. Right. So if David today is the same person as the body that’s here in 20 years and somebody throws paint on my painting, you can say, well, he’s the same person over time. And so he has all of the same psychological states that you would expect him to have. And therefore, we can say he suffers independent and personal harm.
I think the issue with this approach is that it may be true that I suffer personal harm, that only I could experience that harm because I’m the same person. But it’s not entirely clear why the harm would necessarily be independent. That is to say, it wouldn’t depend on others’ views. It’s still possible that the harm that I experienced would be relative to my reputation. And so what this suggests is that there’s some other psychological feature of my brain that generates some independent harm. It has to be something about what’s going on in my brain that makes my harm independent.
The True Beliefs View and Its Shortcomings
16:50
Okay, so one view would be that the thing that’s the psychological thing that’s needed is my true belief that I created the work. So if I have the true belief that I created the work, that explains why I could experience some fully independent and personal harm. It explains why I could, first of all, being a person as the author means that I’ll experience the harm in a way that nobody else could. And the fact that I know that I’m the author and that belief is true means that the harm that I experienced doesn’t have to depend on what other people think.
Because remember, if it’s just some non-author who believes that they created the work, they might have what they think is an independent reason to believe, independent harm, but they don’t actually have one. So maybe I can try to give an example of why I think this view might be problematic. So has anybody seen the movie Step Brothers? This is an American movie, right? With, you know, who Will Ferrell is. So Will Ferrell and John C. Reilly.
So Will Ferrell and John C. Reilly, their parents get married. So they become stepbrothers, but they’re both adults. And they both obviously have some challenges. So this is a scene from the movie where they both wake up in the middle of the night and start to sleepwalk. [Movie clip audio omitted.] Okay, so imagine that instead of sleepwalking and destroying the kitchen, Will Ferrell sleepwalks and paints a masterpiece. And in the morning, he comes down and says, Wow, who did this? They say, you did. You made this.
Suppose he’s never created anything before in his life, never painted, never touched a paintbrush. And suppose that maybe they even have it on video and he can see the video and say, oh, wow, I did create that. And you ask, OK, well, now he’s got this true belief that he created the work. And he did, in fact, create the work. And he’s one and the same person that created the work. Is there something missing from this account? Something that would explain why he may not suffer some kind of independent harm. Something that happens internal to him.
And I think there is. I think that if you asked him why he experiences whatever emotion he gets when someone decides to destroy that work, for example, you couldn’t differentiate his response from what I’ve said so far from John C. Reilly, who didn’t create the work. And I think what’s missing is that he has no recollection. He has no memory that he created the work. And it seems to me that if he’s going to have some emotional connection to the work, if he can’t remember creating it, literally doesn’t remember anything about it, can’t even conceive of how he would have done it, it’s not clear how he has a relationship to the work in the first place.
The Memories of Creation View
21:02
So that suggests that what’s really important for experiencing this personal and independent harm is some kind of memory about creating the work. What matters is that you can remember the emotions or the feelings or the act of creating or something about it that gives rise to this personal and independent harm.
Now, we can kind of see this. I’m not going to play this because it’s on YouTube. But there’s a movie called Total Recall that kind of illustrates why I think this might be important—illustrates why I think we can say that the memories are one of the key ingredients to this kind of harm. So in Total Recall Arnold Schwarzenegger goes to a place where you can go on vacation by getting memories put in your brain. And so the rest of the movie is not that important.
But instead of a place where they give you some false memories, instead assume we have two people. We have Arnold and we have his friend Sharon. And Sharon has just created a beautiful sculpture. But she hates it. And she says, I’d like nothing more than this sculpture to be melted on live TV in front of the world audience. And Arnold says, that’s just terrible. This is so beautiful. How could you ever think such a thing? And she says, well, I want you to know how I feel. So what I’m going to do is I’m going to donate my memories to you. So instead of going to this machine and getting fake memories, she said, I’m going to—they’re going to take them out of my brain and they’re going to put them in your brain. He says, OK, that’s fine.
So they undergo the memory implantation and they both come out of the procedure. And there’s an announcement that the sculpture that Sharon created is going to be melted in front of a live national audience. And there. Suppose that Arnold says, well, that would be terrific. You know, that would be the best thing that ever happened to me. Why? Because I remember how I created this work and it was such torture and I hated it and it was terrible. And Sharon says, why would you do that? That’s the most beautiful thing I’ve ever seen, right?
If you can imagine that such a case could exist, then I think you’ll start to see why I think memories play an important role in generating the kind of negative response that might justify someone saying, I’ve been harmed. I think the difference between Sharon and Arnold in this example is that when Sharon wakes up from the procedure and she compares the melting of the statue to her own psychological state, she’s missing the thing that generates the harm. She’s missing whatever negative reaction she would have had with those memories. She’s missing that.
Well, meanwhile, Arnold, on the other hand, he has those memories. He has those feelings. He has that understanding. And so when he compares the use to his internal psychological state, there’s a negative response.
Implications and Ironic Conclusion
24:15
So if that’s true, that means that all sorts of weird things follow. That means that if it’s true that what distinguishes authors from non-authors is that the author is the same person that created the work and they have these memories of creation, it really limits the scope of moral rights pretty significantly. It means that you’ll only have moral rights, if we’re talking about practically, if you can remember something about creating the work. That’s workable. How would we figure it out? It just means we forget about all kinds of stuff. I don’t even remember what I wrote in my PhD, right? And that was how many years ago?
So if I can’t remember that, or I can’t remember the experience of doing it, then I don’t have moral rights. So I think it limits the scope significantly. And I think that’s kind of the opposite of what the French view is meant to do. And I think the main point I want to drive home is that this whole thing is so bizarre, that trying to figure out this process is so bizarre that it just suggests that our animating intuition is probably misguided in some way, or maybe the paper is misguided in some way. That’s more probable. But I think it suggests that this intuition that the author is the sole determinant—sort of the Blackstonian view of property, but with respect to works—is mistaken.
Okay, so that’s kind of the paper. And then I want to just raise one final issue. And I don’t think this has been raised before.
AI and the Personality Tradition (Closing Remarks)
26:00
So I have on the screen something I was thinking about as I was writing the last portion of the paper. I found these authors who published books and they kept a very loyal fan base. And it turned out that they had just been using AI to generate everything. And so they’d forgotten to take out their instructions to AI or AI’s responses. And people went crazy and they said, oh my God, I can’t believe they’re using this. They’re not even writing their own books. And I was thinking about it from the personality tradition. It raises kind of an interesting question that hasn’t been raised before.
Justin Hughes, who wrote about this a long time ago, tried to say the difference why authors have special moral rights and say plumbers don’t is because they’re operating within different creative constraints. Or you’re an engineer, you’re there to solve a problem, but the artist isn’t there to solve a problem. They’re there to express their whatever. This got me thinking that actually there’s something else in the personality tradition that is problematic for moral rights that nobody seems to have grappled with too much. And I try to bring this home with these four scenarios that I have.
So in scenario one, you do what we all do and you put your paper into AI. You say, find the typos, find the grammar problems and tell me what they are and then you fix them. That seems like not to be a significant act of creativity or anything. The second scenario, you ask AI to create an outline for you of a topic. So you’re asking it to do a little bit more creative labor. The third, you use AI, you write an entire chapter of your book. So now we’ve edged closer to what is the author actually doing? Let’s say you wrote four of the chapters, but AI wrote one.
And then the last is the author uses AI to write the entire book. Then you’ve clearly not done anything. And you just say, write a book about something. Okay, so what’s the point of this example? Well, in the first case, it seems like there’s no problem. In the last case, there seems like there’s a big problem. And in between, it might be a little bit mushy. And the reason it’s mushy is because what we’re really thinking about is what is the amount and quality, the quantity and qualitative nature of the creative labor required to generate this special relation between the author and the work?
So I just raise that as a closing remark to say, I’m not sure that anybody has—maybe I’ve been wrong in a while since I looked—I’m not sure anybody has articulated this problem within the personality tradition. We always assumed that the author has this relation by virtue of creation, but there is a question, almost an originality question about how much labor is enough and what kind counts. Thank you.
