Oren Bracha is a law professor at the University of Texas Law School, an Israeli who clerked for the famous Israeli Supreme Court Justice אהרן ברק (Aharon Barak). He recently completed an SJD dissertation at Harvard, called "Owning Ideas: The History of Anglo-American Intellectual Property," a thorough analysis of early British and American copyright legislation that takes a welcome positive law approach to the origins of copyright. The other day, Professor Bracha sent me a 131 page draft of an article called "The Ideology of Authorship Revisited." Like his SJD dissertation, it is a thorough look at issues that have been pored over by many others, but never as freshly or as innovatively.
It is, of course, impossible to review or encapsulate a 131 page scholarly work in a blog, so I won't even try; indeed, I am only beginning to process superficially the issues Professor Bracha has so carefully analyzed. Instead, I want to question whether there is an ideology of copyright in a functional sense.
By "functional" Professor Bracha means "a methodological approach under which law is understood to be a mere function of 'other' social developments. In our case, the social developments are the ideology of authorship, assumed to emerge 'outside' of the legal field. The law, in turn, is conceived of as changing and assuming forms that reflect or are determined by those ideological developments happening 'elsewhere.'" Professor Bracha's article is about the ideology of authorship, with authorship standing in to some, and perhaps, a very large extent, for all of copyright. Hence, he asserts: "Copyright law is the ideology of authorship not just because that ideology was developed and elaborated within it, rather than the law being reflective of social developments that happened elsewhere." Part of this is based on a belief that copyright underwent a metamorphosis during the 19th century.
As a self-professed non-ideologue (accurately or not), I do not dispute that others have developed healthy ideologies of copyright. What I do question is whether those ideologies have ever had any impact, at least of the kind that can be empirically demonstrated. For starters, I don't see any big transformation in copyright law in the 19th century, if by transformation we mean a fundamental change from one thing to another. That includes how authorship was viewed, as well as what constituted infringement and the rights granted. Fair use, for example, developed gradually and not as part of an Athena-like doctrine, along with fair abridgment, the latter being legislatively eliminated in the U.S. not until 1909.
What did occur in the 19th century was an increase in rhetoric about authorship and originality, usually employed in furtherance of lobbying for increased term of protection, as in the 1842 British Talfourd Act. But to assume that rhetoric employed for lobbying has an actual impact on the ideological make-up of the law needs a lot of empirical work that has not been done or at least published. Let me give a few examples of how hard it can be to make positive law when you do have an ideology. When I worked for the U.S. House of Representatives IP subcommittee, the chair, William Hughes, and his staff had a clear ideology of wanting to rely on the free market and of having no formalities. To that end, we tried to eliminate compulsory licenses - directly through repeal of the cable compulsory license and the Section 115 mechanical compulsory license, and a number of formalities. While there were isolated successes (automatic renewal) we otherwise failed miserably.
Some companies, like Disney had grown comfortable with the cable compulsory license and the broadcasters, who previously were its biggest critics, suddenly changed course 180% because of their efforts to obtain retransmission consent. In connection with the efforts to obtain a public performance right for sound recordings, we got record companies to agree to the repeal of Section 115, only to have music publishers, who were its biggest critics balk, in part because record companies had agreed to repeal. There are now more and more complicated compulsory licenses than ever.
As for formalities, well, we eliminated some in 1988 when we joined the Berne Convention, only to turn around two years later in VARA and impose formalities on the exercise of moral rights, a breathtaking incongruence if there ever was one. Did Berne adherence signal an end to the ideology of non-formalities? I doubt it. And, when we tried to eliminate the Section 412 formality, we ran in to vicious opposition from book publishers, who had also previously been a critic of that section.
One of the harsh lessons I learned in working for Congress was that exposing a past inconsistent position (and I have given examples of three above), mattered not at all. Members of Congress could care less what someone said in the past, because they themselves didn't want to be bound by what they had said in the past. All that matters is the reality on the ground now.
I doubt things were so different with legislatures in the past, but would be thrilled to be wrong. Until then, though, to me ideology is rhetoric not reality.