Why Study Copyright History?

There are many types of copyright history. All judicial opinions have one, going back to the parties' disputes, inability to resolve the dispute, filing the complaint, discovery, settlement offers, sometimes trials, sometimes a trial court opinion, and sometimes an appellate opinion. We outsiders usually read just the opinions, and they are rarely more than a tiny fragment of the actual dispute, no matter how detailed. Opinions are merely a reflection of what the court chose to record about its thinking: they don't represent the actual thought process of the decision maker and they include only what the court chose to put in recorded form. Some judges, like Judge Rakoff in the SDNY, issue opinions so abbreviated and opaque that they are largely unintelligible to anyone but the parties. But even for more thorough opinions, the real history of the case will remain largely unknown to anyone but the parties. Legislation presents similar issues, as I detailed previously. But we still study legislative history, or at least most of us do, and sometimes it is helpful.

There are other types of copyright history, like the history of fair use, the history of formalities, or more narrowly, the history of the manufacturing clause formality. Then there is the history of all U.S. copyright acts, the history of the UK copyright acts, the history of the Stationers' Company, history of printing and print privileges, and the history of all the above put together. Throughout my career I have studied all of these fairly carefully, and I continue to do so. For the last few weeks I have been studying the printing and print privileges in the era 1470 or so to 1570 or so, mostly in Venice, but also in other countries, as well as those issued by Popes. But why? One answer is because there have been a few really good books published quite recently, all by art historians, that contain excellent scholarship. Another answer is that I am preparing the manuscript of my new treatise for publication and am making one last pass through this stuff before sending it off. But neither of these are complete answers: I could have chosen not to read the material or chosen not to put the material in the book (it may in fact be of interest to a limited group), and certainly the art historians who chose to write their books could have chosen to spend their times doing something else too, maybe on more current topics.

So why so much scholarship on really old, obscure stuff? Do we hope to find something that will help us understand the present better, more fully? Will an understanding (to the degree possible by reading other people's research) of Venetian printing privileges help us understand current copyright problems? Do we expect to find the same problems then as now, and so note wisely the unchanging nature of humanity? Or is it antiquarianism, curiosity, a desire to be complete, a love of the subject matter?

In my case I would add great insecurity, a fear of ignorance, a fear that in writing I am making fundamental, stupid mistakes everyone else knows, and so I will be embarrassed if I don't exhaustively try to track down everything. The issue of why pay attention to the past is hardly unique to copyright, but I do find it interesting that art historians have turned their wonderful skills to the subject. I just wonder why I am so fascinated by it.