Monday, November 28, 2005

Copyright Parochialism?

I just finished a very thorough, fascinating book by Catherine Seville on the effort by Thomas Noon Talfourd to extend the term of copyright in England, beginning in 1837. Talfourd actually had far more ambitious goals, namely, a consolidation and revision of the separate British copyright acts. In addition to term extension, among the proposed revisions were ones concerned with how substantial similarity is determined, a fair use defense, and evidentiary issues. If passed, Talfourd's bill would have revolutionized UK copyright law, which instead remained a common law field until the 1911 Act. Whether Talfourd's measure would have had an effect on U.S. copyright is of course counterfactual, but our 1831 law in some substantial measure looked to the 1814 British Act.

Talfourd's efforts were heartfelt and had the support of a number of authors, such as Woodsworth. He met with stiff opposition, however from many quarters, and the public had begun to view copyright with deep suspicion. Regrettably, Talfourd's take it or leave it approach turned many off, most importantly, Thomas Babbington Macaulay, whose eloquent opposition was largely responsible for killing the bill on February 5, 1841. As a widely published author himself, Macaulay was viewed as a traitor by other writers and as a hero by opponents of Talfourd's measure. Talfourd did not run in the 1841 general election, and his bill, stripped down to term extension, passed in his absence in 1842 with a compromise proposed by Macaulay.

When term extension was first proposed in 1995 in the U.S. Congress, I published a three volume book on copyright and put the Talfourd-Macaulay speeches in an Appendix, expressing the hope that they might be looked to by those seeking to review what had been said before. They weren't. Talfourd's views make many of the points content owners make, and with great eloquence and sincerity.

Here is a very useful version of Macaulay's famous February 5, 1841 speech, posted by, made useful by the links embedded to people or concepts that were well-known to his audiences, but less so to ours. The version begins with this preface by the webhost: "The easiest form of parochialism to fall into is to assume that we are smarter than past generations, that our thinking is necessarily more sophisticated. That may be true in science and technology, but no necessarily so in wisdom."

Some evidence of this may be seen in recent legislative initiatives. By 1995, the English Parliament had peetered out in its zest for vigorous debate of the issues. No longer the days long, gallery-filled historic debates on the nature of copyright witnessed in 1774, when the House of Lords was considering Donaldson v. Beckett. Here is the House of Commons "debate" on extending its term another 20 years to comply with the EU Directive. The October 1998 "debate" in the U.S. House of Representatives gives no cause for joy either, being mostly devoted to the Section 110(5) amendment.

Term extension, perhaps more than any other issue, touches a raw nerve in copyright, and I thought and still think reviewing what those who were closer to the birth had to say might be useful. The past may not be a prologue to anything, but it is instructional.

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