Tuesday, December 27, 2005

Augustine Birrell and Benjamin Kaplan

There have been, since the 17th century, many different types of works written about copyright: partisan petitions to Parliament, copyright treatises, and much later, law review articles and popular books. It is the extended lectures series I want to focus on, though, and two in particular. The first is Augustine Birrell's Seven Lectures on the Law and History of Copyright in Books, a selection from 18 lectures he delivered as a professor of law at University College, London in 1898 and then published as a book in 1899 (The link is to a 1971 reprinting by Fred B. Rothman).

Birrell (1850-1933), is a fascinating figure. He was called to the bar in 1875, and became a Queen’s Counsel in 1885. He was a member of Parliament beginning in 1889, representing West Fife, Scotland, as a Liberal. In the general election of 1900, his party made a strategic mistake by insisting he run from a district in the northeast of Manchester, resulting in his defeat. In 1906, he returned to Parliament, representing North Bristol, and also served as Minister of Education. In January 1907, he was became Chief Secretary of Ireland. That role was fraught with intense controversy, given Home Rule initiatives and tensions raised in the aftermath of World War I. Birrell put forth a number of initiatives, some of which were received well, others not. He was regarded as quite personally charming, but spent most of his time in London, and even when in Ireland, he was accused of “masterly inactivity,” particulary as regards the arming by Irish nationalists, and the events leading to the Easter Uprising that began on April 24, 1916. Birrell resigned right after the rebellion, and retired from public life. See generally Leon O’Brion, The Chief Secretary: Augustine Birrell in Ireland (Chatto & Windos, publishers, London 1969).

Aside from his political career, Birrell is best known not for his copyright lectures (and there is no evidence he had a long-standing or deep professional connection with the field), but for his widely published essays on literature. He was a witty, stylish writer, and his style quickly garnered him a wide audience. His first collection of essays, Obiter Dicta, was self-published in 1884, and much to his surprise went through six printings in the first year; his light touch of humor and irony gave rise to a new word “birrelling.” Of his legal writing, it has been said that his analysis was so clear that “solicitors complained that making the law so intellegible jeopardized their profession.” Among his admirers was Virginia Woolf, who called him a “born writer,” and who in 1930 published a favorable review of his work, “The Essays of Augustine Birrell.” Birell's son, Francis, was a member of the Bloomsbury Group. Birrell’s relationship with the Suffragette movement was much less favorable than his relationship with Woolf: on November 22, 1910, as a minister of the Government, he was attacked by a number of suffragettes, prompting Prime Minister Herbert Asquith to send Winston Churchill a letter requesting that legal action be taken against Birrell’s attackers.

The second lecture series I want to dicuss is Benjamin Kaplan's 1966 Carpentier Lectures at Columbia University, published in 1967 as An Unhurried View of Copyright. Professor Kaplan served as an illustrious professor of law at Harvard University, teaching many distinguished members of the bar, including Justice Breyer, whose views on copyright seem heavily influenced by his former professor. Kaplan later served on the Massachusetts Supreme Judicial Court.

There are currently annual copyright lectures, but these are one-offs, modern day speeches followed by a reception, and rarely of any impact beyond the event, if then (although there have been notable exceptions). The modern audience and perhaps modern lecturer, weaned on television, are not up for multiple nights of solid substance. Birrell and Kaplan's lectures were different, delivered as Professor Lloyd Weinreb has written, when "there was time not to be in a hurry." Both sets of lectures have had enduring influence, although in this country, Birrell is much less known, which is a shame. He is a witty, insightful writer who brought to bear on his subject the practical experience of a barrister and as a member of Parliament. Anyone who wants a clear-eyed look at early English copyright should start with Birrell.

Kaplan's book is well-known in this country but rarely read, in part because it has been out of print, in part because of a fondness of quoting favorite snippets without going through the trouble of reading the whole work. The out-of-print part has now blessedly been cured with the publication of a new edition by LexisNexis/Matthew Bender with the cooperation of the Suffolk University Law School Intellectual Property Law Concentration. Reading the whole work is still left up to the individual and is highly recommended: there has been a lamentable tendency among those favoring what is sometimes described as "thin" copyright to enlist Kaplan in the cause, just as Lord Macaulay's 1841 and 1842 speeches are similarly enlisted for the same purpose by the slightly more historically-inclined. Such snap-shots given a misleading impression of very full-rounded individuals. In Macaulay's case, he was one of the leading authors of his day and supportive of copyright as a system: he was merely opposed to Talfourd's life plus 60 term proposal, and offered a shorter one: life plus 7 years or 42 years from publication. His speeches do contain expressions of what he viewed as the dangers of copyright but always with the recognition that, like democracy, it is the best alternative. Professor Kaplan may have had unease about some of the details, but not about the enterprise.

Reading these works in their full glory should restore them to the position they richly deserve. The reprint of Kaplan's work is with the same pagination as the original, and I pray it is produced by a photocopy-like process because the add-ons to the volume have a number of typos and editorial errors. The add-ons consist of a helpful glossary of terms, names, or cases referred to by Kaplan that might not be familiar to modern readers. Yet, for all their assistance, one encounters entries like this one, for Macaulay: "English historian and writer who proposed a tax on readers in order to give money to authors." This is an embarrassing faux pas: Macaulay was speaking, of course, metaphorically.

There are also a number of "Contributions by Friends," in a kind of appended Festschrift. I confess to a bias against such enterprises. They are rarely insightful about either the target of the Fest and tend heavily to more about the Schrifter. At best, they should be privately printed and distributed. In this case, the description of "Friends" is largely a misdecription: only a few of the contributors knew Kaplan or were students of his. An article about the DMCA appears to have been a recycled earlier effort with no effort at relevance to the task at hand. There are nice pieces by Kaplan's colleagues Arthur Miller and Lloyd Weinreb, and a piece by Roger Zissu of Fross Zelnick in New York City entitled: "Funny is Fair: The Case for According Increased Value to Humor in Copyright Fair Use Analysis," is excellent. Surprisingly, there is no biography of Professor Kaplan, an unfortunate omission. Some may not know he is still alive and active in his 90s. I could have done without an article or two (or more) in favor of some information about Kaplan himself. Maybe even an article that discusses, directly, the influence of his work through judicial opinions or prominent jurists like Justice Breyer; but alas, it is on the whole typical Festschrift fare; Chinese food without the flavor.

Yet, one can still be thankful for the reprinting of such a wonderful work, and I am. Highly recommended!


Timothy Phillips said...

I have read at least some of Kaplan's Unhurried View. Whatever you mean by "thin" copyright, Kaplan's lecture certainly can't be cited faithfully in support of the position of the "forever less one day" school of thought. I recall he wrote that if a man has any natural rights at all, one such right is the right to imitate his fellows. At the very end of the lectures (if I recall aright) he mentions the question of copyright duration in passing, and while he declines to make any hard-and-fast recommendation, he states he thinks that the 56-year term which was then in force was already inappropriately long for some classes of works.

And yes, I was unaware that he was still alive. How fortunate for him and for us.

From Augustine Birrell's lectures, which I encounterd in 1998 or thereabouts, I remember an argument for the duration of copyright depending on the lifetime of the author (rather than being a fixed term of publication) going approximately as follows: So-and-so's historical treatise goes through several revisions. If the copyright on the first edition expires before the copyright on the last edition, the first edition will be offered cheaply in the free market as "So-and-so's book" even though So-and-so's thought evolved far beyond the contents of that first edition. Poor So-and-so will be misrepresented by the easy availability of his early works.

I find this argument interesting but unconvincing. Astute readers will be, or will be able to become, aware that an author's thought evolves and to take it into account when evaluating the early edition. The usefulness of the early edition to the public, however, does not lie only in its ability to represent the author's developed thought. To some extent it might be precisely because of the differences between the early and later works, differences that the author might suppress if he could, that makes the early work interesting or useful.

William Patry said...

The quote from Kaplan that Timothy was referring to was in the context of discussing Hand's Sheldon case and goes:

"Now I could see why copying a work word-for-word might be a legal wrong; and no doubt one must go further and punish copying with merely colorable variations. That liability should extend to so indefinite a use of appropriation as seemed to me involved in the Sheldon case, however, was not at all natural or obvious or self-proving. I reflected that if man has any 'natural' rights, not the least must be a right to imitate his fellows, and thus to reap where he has not sown. Education, after all, proceeds from a kind of mimicry, and 'progress,' if it is not entirely an illusion, depends on generous indulgence of copying. Thus for me it became a matter of some interest to discover how our law attained to such a result as the Sheldon case."

Kaplan was explaining here his first interest in copyright, and it is off to the races from there, totalling 128 pages of wry observations. I agree with Timothy that Kaplan was definitely not of the "forever less than a day school," but his comments are more like well-deserved and affectionate balloon-bursting, not savage pillaging.

Valerie L. Horowitz said...

I enjoyed your post about Birrell and Kaplan. Along with the new edition of Kaplan by LexisNexis/Matthew Bender, I am pleased to report that my company, The Lawbook Exchange, Ltd. offers an unabridged reprint of the first edition, which was published in 1967 by Columbia University Press.

The hardcover is $60.00:

The paperback is $29.95:

Valerie L. Horowitz, Managing Editor,
The Lawbook Exchange, Ltd.
33 Terminal Avenue,
Clark, NJ 07066
Tel: 732-382-1800
Toll Free: 800-422-6686
Web site: www.lawbookexchange.com