Justine Pila (University of Oxford), Creation, Publication, and Moral Rights: An Illocutionary Account, The Journal of Aesthetics and Art Criticism (forthcoming) on SSRN. Here is the abstract:
The existence and legal recognition of authors’ moral rights are generally ascribed to a Hegelian conception of works as extensions of their creator’s personality. I argue that this conception ignores the dialectical nature of works, as creative and intellectual expressions of a person which nevertheless claim a certain autonomy essential for their recognition and perception as the being-for-itself artefacts they are intended and regarded to be. Reconceiving works accordingly invites consideration of their creation and first-publication, and the illocutionary acts which each entail. The result is a new account of moral rights as expressing the local norms which those acts generate; tracking the changing deontic positions of authors and others through the moments of work-creation and first-publication respectively, and supporting the moral principle of autonomy, and rights of creative and intellectual self-determination specifically. A feature of this account is the insight it affords regarding the impact of artificial intelligence (AI) on the normativity of authorship. By impeding the identification of works, the use of AI to generate content undermines the social recognition conditions essential for authors’ illocutionary acts to succeed, preventing the realization of their intended perlocutionary effects. The result is a novel form of systematic illocutionary silencing “by design”, which thrives in environments skeptical of authorial claims and threatens the existence of a differentiated normative space of creative and intellectual activity.
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Lawrence Solum