It is a common thread that the writing of history is concerned not so much with setting forth an accurate description of the past, as it is an effort to shape the present. In this thread, history merely serves as the justification for one's present position. Evidence of this is seen in much copyright scholarship, and in judicial opinions. One example is the infamous battle of the booksellers in England, following the expiration of the 21 year term of protection for existing works granted in the 1710 Statute of Anne, and culminating in Millar v. Taylor and Donaldson v. Beckett. These cases brought forth a formidable array of arguments about the existence or non-existence of a common law right in published works. It is fitting that, as with most efforts to use history for partisan purposes, the exact holding in Donaldson v. Beckett continues to be debated.
Another use of history during the same time period was the battle between the Stationers Company and royal patentees. The Stationers Company challenged the legitimacy of the royal patents, which continued to be granted even after the Statute of Anne was enacted. This fight was fought on the odd ground of the true origin of printing in England: was printing introduced by the King (in which case he was authorized to regulate it, including granting royal patents), or was it introduced by other means (in which case Parliament could regulate it, including granting a monopoly to the Stationers)?
A considerable amount of scholarship is still being published about this era, indeed, I assert that the best scholarship is the most recent. Some will be familiar with the late Lyman Ray Patterson's 1968 "Copyright in Historical Perspective." In U.S. scholarship, Professor Patterson was one of the first to discuss the Stationers Company at length. His citations to Arber's compilations of records of the Stationers Company gave his work a patina of historical legitimacy. But Patterson was, in my opinion (an opinion formed through a debate with him and from reading a vast amount about the period), an incomplete scholar. His brief was simple: copyright thwarts the desires of those who wish to use copyrighted works without permission. It is a form of censorhip. So, an historical pedigree had to be invented for copyright. For Patterson, the Stationers Company, especially in league with the Star Chamber, served this purpose admirably, and so his trope was that copyright arose from the loins of censorship and, like Cain's mark, will bear that origin forever. Hogwash.
Another, more recent trope is the idea of copyright arising out of a Romantic view of authorship. The scholarship on this is highly selective, and is limited to a few authors in a few countries. It ignores vast amounts of contrary evidence, and in any event suffers fatally from historical determinism: copyright developed as it did allegedly because authors, legislatures, and society evolved to the point of finally recognizing that no work is as much a man's or woman's as the fruits of his or her own mind. A variant on this, much beloved by some law professors, is a Lockean view of property, in which copyright came to be analogically with its real property cousin. At least one academic career was made on this theory, a theory which UK scholars have effectively debunked on many grounds, not the least of which is that when it came to intellectual property, Locke was not a Lockean.
But such is the nature of academic legal scholarship in the U.S., which contains a unique facet that has doomed it from engaging in serious historical work. That facet is how academic legal scholarship is rewarded. Academic careers at top tier (and those who aspire to be top tier)schools are made by publishing in the most prestigious law reviews. Those law reviews are run by law students. In a 2004 article in Legal Affairs (link here), Judge Posner, who knows a thing or two about legal scholarship, issued a scathing indictment of the process: "Welcome to a world where inexperienced editors make articles about the wrong topics worse." Judge Posner also refers to the heavy emphasis on fields outside of law in much law review writing, done of course, by law professors almost none of whom have training in the fields of non-law they are supposedly analyzing. One can hardly blame law students for the results: it is law schools and law professors who run the prison and if they want to place their future careers in the inmates' hands, inmates everywhere will jump at the chance.
But the consequences are easy to see: serious works of doctrine and history are devalued, treatises and books rarely count toward tenure: it is only publication in a prestigiously ranked law review that matters, and to get published there one must be trendy indeed. Enter UK scholarship: unburdened by such a system, the UK (and Australia) have produced a series of stunning works of historical scholarship. I want to mention one, just released, Ronan Deazley's "Rethinking Copyright: History, Theory, Language." Professor Deazley (who is Irish), teaches at the School of Law at the University of Birmingham, England. In 2004, he published "On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britian 1695-1775." That work was a fantastic romp through original sources and provided the best explanation yet of the vote in Donaldson v. Beckett (except perhaps the discussion in his new book). Professor Deazley also did a magisterial job of placing the Statute of Anne in context, including a thorough review of the period after Anne; indeed, his focus post-Anne is seen in the dates given in the title. Far too much scholarship on the Statute of Anne has focused on the Stationers Company as if that Company's efforts were the sole reason for and sum of the parts of the Statute of Anne; that certainly is Patterson's approach, because it served his purpose to do so: the Stationers were censors, that censorship led to Anne, and copyright has been infected ever since. Deazley blows such nonsense out of the water.
In his new book, Professor Deazley builds on his previous work, which he revisits a bit, but principally as a way to asking questions about the nature of copyright, a task that dominates most of the book, and which takes Professor Deazley into the 20th and 21st centuries. Professor Deazley is open about the relationship between our reconstruction of the past for present purposes. But it is the depth of his historical research, of the kind that very, very few American legal academicians do, that is the most radical; radical because it make impossible the many non-positivist views of copyright one encounters, especially among those who do not openly state their natural rights views. Natural rights advocates don't regard their views as advocacy, and not surprisingly so: their views are natural. To such advocates, it is Professor Deazley's work that is a manifesto, or rhetoric, or a "trend." Such terms of belittlement are merely an embarrassed admission that his research is a profound stake through the heart of a view of copyright that has dominated European copyright theory for a century or so. But it is only a pet theory, not history, as Professor Deazley is rude enough to point out. He will never be forgiven by them, but he warrants our heartiest thanks.