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.
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A short note from the author (this last term should be a pun, at least if you’ve read the paper and if you believe that there is something to the notion of “ideology”).
There are too many interesting and important things in Bill’s comment to respond to meaningfully. Let me take just a few of them, not necessarily in the order of importance:
1. “Functionalism “
Among legal historians this became a term of art (coined by Bob Gordon in a Stanford L. Rev. piece called “Critical Legal Histories”). It roughly means, the assumption that law is completely reflective of other social fields, that it is 100% shaped by external forces, whether “material” or “ideological” ones. In the piece I reject functionalist explanations of copyright and rely instead on a model based on the two following propositions:
a. Interaction- all relevant factors—economic, technological, legal, ideological—constantly interact with each other. They partially shape each other. So in any given moment copyright law is not just an outcome of other social factors like economic interest, it is also an active factor that shapes those other fields.
b. Blurring of lines- At some point the lines between these various social fields becomes murky. Thus, for example, our concepts of “authorship” are not just an external body of knowledge that helps to shape copyright law. To some extent, it is embedded in the concepts and structures of copyright law. Where ideology ends and law starts becomes hard and probably unnecessary to say.
Some less abstract reactions about the history of copyright:
> “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. “
We have to distinguish between “transformation” (a radical change over time) and “rupture” (an abrupt change taking place in a very short time). During the 19th century copyright had undergone a transformation but did not expreince a rupture. In other words, when comparing points suffciently remote from each other (e.g. 1790 and 1900) the change is no less than radical. At the late 18th century copyright was in many respects still the traditional publisher’s privilige to print. By the end of the 19th century it changed in many respects and became, much closer to what we would recgonize as copyright. The changes, however, was very gradual and over short periods of time also subtle. There is no abrupt move over night from one paradigm to the other.
> “Fair use, for example, developed gradually and not as part of an Athena-like doctrine”
Fair use and the scope of protection/infringement is an excellent example. Indeed, the development was very gradual and conceptually subtle. When a long enough period is examined, however, the change is enrmous both conceptually and practically. To over-simplfy: in 1800 copyright protection extended to verbatim reproduction of texts with a thin penumbra of reproduction with minor changes, designed to circumvent the prhobition; by contrast, in 1900 the rule became: any use of the intellectual work, in any form or variation, unless “fair use” is an infringement. The change was conceptually subtle: when Justice Story first introduced the notion of fair use he cited all the old rules, but he was injecting new content into them as he did! It was also gradual: the old rules that protected many “derivative uses” eroded and fell one by one (through both statutory and case law developments). But when one compares 1800 and 1900, the scope of copyright protection and the concepts on which it was based are dazzingly different. Fair use is also interesting for another reason, that demonstrates the magnitude of the change. While fair use is considered today the main restriction on the scope of copyright protection, when it was first introduced and developed in American law it served as a major doctrinal vehicle for a substantial expansion of the scope of copyright protection.
> “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”
Yes, but there were, two, only occasionaly overlapping, tracks:
1. Use of the theoretical and abstract notion of the romantic genius, as described, mainly in lobbying and in introductory sections.
2. Attempts, within actual legal fora and texts to convert that abstract ideology into real, concrete and operative legal rules and concepts.
To my mind the more interesting part is (2).
> “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.”
My basic position about (2) is a mid-ground between: a. the ideolgy of romantic authorship determined outcomes; and b. it was just meaningless rhetoric. I think, that what happened in relaity was that many of the historical actors cared little in a direct way about authorship. They were much more concerned about their interests or other ideological commitments. When, they came, however, to make a legal argument using authorship terms and concepts was the right way to talk, and the conceptual world within which they had to make their claim (in the 17th century, by contrast, the right way to talk was in terms of censorship and “order” in the trade). When that happened, the forms that actors had to use, and the pre-assumpsions they were making structred and channeled, to some extent the law they produced. The end result was neither enacting “romantic authorship” into law, nor ignoring it altoghether. Rather, it was a rather odd and tension-riddled amglam.
Take originality doctrine, for example. Originality was one of the fundamentals of the abstract notion of authorship-based copyright. But strong economic and ideological forces were pulling against a robust originality criterion. Thus when originality was first introduced to American copyright law, it was already in a dilutted form, which kept eroding almost to nothing. But originality was never deserted! We never went to “sweat of the brow.” Moreover, in a parellel development in the case law originality was eleveted to an unprecedented status rhetorically, and constitutionally. Originality became both very important in copyright law and almost meaningless. It was this entire mess, rahter than just one part of it, that exemplifies what happened to the abstract rhetoric of authorship when it met legal-practical reality.
“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.”
That’s right! But how do you think about now, define your interests or your proposed solutions, without relying, in part, on what people said or did in the past? The point is not about conssistency, but rather about the way past concepts, views, assumpsions and structres partially channel the present, whether we intend that or not. Thus when at the dawn of the 20th century Congress or the courts kept adding entitlments and expanding the scope of copyright protection, they could simply assume, take for granted, or think in terms that would have been completely foreign a century beforehand.
So, I would argue that line between “rhetoric” and “reality” is far from being brighlined and that it is exactly in that twilight zone that “authorship” operates.
e.g. Hopefully, it is not too much of a shameless self-promotion to mention to those interested that the full (131 pages) paper is available here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=869446
I am very happy Oren posted a link to his article and took the trouble to make such extensive comments. I have learned and continue to learn an enormous amount from him and when I dig deeper into his article, I imagine (having very carefully read his entire dissertation), that the differences between will diminsh. (I am happy to do all of his promotion, by the way).
But on one point, perhaps the central one, I remain skeptical for now.
Before I state that disagreement, I want to state an agreement, with this passage:
"I think, that what happened in relaity was that many of the historical actors cared little in a direct way about authorship. They were much more concerned about their interests or other ideological commitments. When, they came, however, to make a legal argument using authorship terms and concepts was the right way to talk, and the conceptual world within which they had to make their claim (in the 17th century, by contrast, the right way to talk was in terms of censorship and “order” in the trade."
I agree with this because I think it states in a different form a point I was making. There are fads in rhetoric, and it is not surprising that many people will speak in the latest fad, or put differently, in the language that Congress or the courts seem to be receptive to. This is a very common form of advocacy, but it doesn't mean the advocate buys into the ideology of the rhetoric, only that it is believed to be the best way to win.
My disagreement stems from Oren's position that the rhetoric du jour must somehow depend upon previous rhetoric. Hence Oren states that the present is influenced by "the way past concepts, views, assumpsions and structres partially channel the present, whether we intend that or not."
I am skeptical, at least empirically. One of the most thrilling things about being a congressional staffer is the indifference you can regard the past with. Then was then and now is now, to paraphrase Jerry Brown. Statutes are just stuff other people did and you can repeal them, undo them, change them however you think best, so long as you can get a present majority. Sometimes in looking at what was done in the past, I gained new respect, but that was only because I thought it worked well now and I admired the thought that went into the drafting. When Lamar Smith shoved the Family Home Viewer Act down the MPAA's throat was he thinking about the ideology of authorship or the ideology of Conservative Republicans? The answer is obvious.
I'm eager to read the full piece, for which I'm grateful for the SSRN URL. A couple remarks at the outset, though: There's an odd metaphysical strain to Prof. Bracha's neo-CLS take on matters, illustrated for example by "Where ideology ends and law starts becomes hard and probably unnecessary to say." Yes, it's hard, but Gordon et al. arguably felt the effort was necessary. Second, isn't it at least mildly contradictory to urge a view of blurred interaction between external and internal factors while blithely comparing contours of "the law" as it stood in 1800 and 1900?
I have only just started reading Bracha's draft article, but it is already very interesting reading.
As a former art major undergraduate and a copyright lawyer, the distinction between the way artists and lawyers talk about authorship has always struck me. Artists (at least the humble ones) often freely admit the cumulative nature of creation. Yet, artists themselves have clearly been affected by the romantic idea of original authorship. I have often seen writer's block spring from this conflict, as a believer in the romantic author hits the depression that follows his/hers realization that nothing they have created is "original." Hence, they lament that all the good or important art has already been created and everything since has been nothing but cheap copies.
I just thought I would point out that I have seen a destructive side to artists that have bought into these romantic notions of authorship as they realize they can not live up to them.
P.S., Bracha, love the article (so far) but the dates on footnote 42 are messed up I think. I tried to resist pointing this out but I just couldn't.
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