Thursday, April 19, 2007

Catherine Seville's New Book

Catherine Seville is Vice-Principal and Director of Studies in Law at Newnham College, as well as being the Herchel Smith College Lecturer in Intellectual Property at the Faculty of Law, University of Cambridge. I have previously used with great satisfaction her 1999 book Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act. She has recently published a new book, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century. The new work builds on "Literary Copyright Reform in Early Victorian England" and particularly the efforts of Serjeant Talfourd in the later 1830s to enact a reform bill containing both domestic and international elements. Talfourd is best known for his fervent belief in a longer term of copyright, and for having, as we Yanks would say, having had his butt kicked by Lord Macaulay in what is the most famous copyright speech in history. (Macaulay actually addressed the topic on the floor of the House of Commons twice). As Professor Seville points out in both books, Talfourd's interests went well beyond term and into a synthetic solution to the myriad problems of the time. He failed and died a death that all judges must fear: on the bench after giving jury instructions.

Professor Seville is at her best when she integrates domestic and international concerns in the 19th century, especially the triangular relationship among England, Canada, and the U.S., a troubled relationship largely due to the U.S.'s staying outside the Berne Convention and its refusal to grant rights to works of foreign origin until 1891, and then only on compliance with the manufacturing clause. Her book contains copious and rich inquiries into the cast of characters, as well as the economic and legal regimes that played off of and frequently against each other. Hers is the most extensive look yet at this fascinating time. One senses that she sees many lost opportunities from the lack of passage of Talfourd's initiative, as imperfect as it may have been in particulars. (Politics has, after all, been described as the "Art of the Possible," and never "The Art of the Perfect").

Professor Seville's brief, though, is "not simply to describe the evolution of copyright law in the nineteenth century, fascinating though this is. I also argue that what the history discloses can be of help as intellectual property negotiates what is often described as its latest 'crisis' in the shape of the digital revolution," (p. 18). I think not, and not because I ascribe to the view that "digital changes everything." On that last point I lean more toward Judge Easterbrook's "Law of the Horse" skepticism.

My problems are larger. First, I would question there has been an evolution in copyright law in the sense of an organic entity that can be understood as having innate attributes that exist through all time, even as they may change. I view the various statutes as felt responses to the exigencies at hand. I have never heard a legislator talk about his or her job as other than problem solving. Legislators are not theorists, nor for that matter am I. I cannot grasp the field of jurisprudence, as it emanated from Cambridge in the era of H.L.A. Hart, his successor to the chair (and frequent foil), Ronald Dworkin , and the many American deep thinkers of the philosophy of law. This reflects entirely, of course, my own considerable shortcomings and prejudices, but I also have a nagging suspicion that it is not worth the candle to understand it, even as I try: After all, neither Hart nor Dworkin, Raz, or anyone else for that matter claim, as far as I know, that theory has ever directly impacted the law. So, I doubt greatly that a study of the 19th century copyright will reveal anything about how a legislator or court today will address any issue of copyright involving digital uses.

My second reservation about the goal Professor Seville has set for herself is that the subject matter of the book, and many such studies is exceedingly narrow: the book trade. Literary works do not encompass all of copyright law, and the one-sided emphasis on them has led, I believe, to theorizing off of too small a sample. The study of protection for music, paintings, architecture, choreography, and motion pictures is in sorely in need of attention, and until it gets that attention, we cannot say much about "copyright law" and even less about its "evolution."

That said, I am very happy enjoying Professor Seville's outstanding book as an historical effort to understand what happened in the past. Indeed, I think that is all any of us can ultimately do, and thus the above should not be taken in the least bit criticism of her actual research, which is uniformly insightful and thorough. I recommend the book highly to others.


Anonymous said...

A comment on not being a theorist: one can be a theorist without necessarily engaging in the abstract jurisrudential debates that occupied Raz, Hart, and Dworkin. In fact, some theorizing is necessary to engage in even very simple "problem-solving" legisation.

Even "problem-solving" legislators adopt positions that must be rationally defensible when advocating for legislative change (in copyright or otherwise). To be rationally defensible, one must inevitably resort to principles and policies that require justification, articulable in general, publicly acceptable terms that can be subject to scrutiny.

For example, Copyright term extension advocates have a (implicit) theories about the fair compensation deserved by copyright owners, and so do term-extension opponents. Both sides need to be able to rationally defend their positions, and need "theory" in this sense.

Yet I agree that one can be a theoretically sophisticated advocate for a statute without engaging in the debate about the purposes of "law as such" or legal practice abstracted away from particular legal sub-domains, like contract law or copyright law. (Dworkin seems less likely to agree with this, and Raz and Hart seem more likely.)

But in any event, it seems mistaken to imply that by theorizing about IP law you are somehow engaging in the same kind of inquiry as Raz, Hart, Dworkin. Theorizing about IP law is likely to help you understand the context of even ad-hoc legislation, and why the legislation is to be considered ad hoc in the first place.

I agree, though, to the extent that understanding Raz will not likely be helpful in understanding the DMCA.

William Patry said...

At the legislative level, I would distinguish between theorizing and rhetoric. One witnesses a great deal of rhetoric in justifying legislation, but little beyond that, and even this will fall by the wayside when push gets to shove. let me give an ilustration: Once, as copyright counsel to the House of Representatives, I and the chief counsel of the subcommittee attempted to convince a member of the subcommittee that amendments he was insisting on were not necessary. He was pushing them on behalf of constituents. After we had painted him into a corner, he pulled out the ultimate trump card, telling us: "I'm a politician not a legislator, put the amendments in." We did.

Anonymous said...

Illuminating story! Kudos on pushing back, at least. And I agree on the rhetoric/theory distinction -- even "sophisticated" legal academics aren't immune from rhetorical sleight of hand.

Still not convinced that theory -- at a relatively low level of abstraction at least -- is as unhelpful as you suggest, even if theorizing comes into play as post hoc rationalization of existing legal practice, w/ all its oddities.

Then again, pork barrel politics is real, and provides a good reality check on the limitations of grand theorizing!

Dean C. Rowan said...

There's theory and theory. Stanley Fish is perhaps the most visible proponent of the "'theory has [n]ever directly impacted' anything" position (I won't call it a theory). See Theory's Hope, for instance, for a brief iteration. I'm not convinced that the example of the stubborn subcommittee member illustrates a theory-free position. He at least appears to have been working along the lines of a tacit theory of political roles (such as politician vs. legislator). Such a theory may be "rationally defensible" at a general level, even if, as appears to be the case here, it is propelled by cynicism.

William Patry said...

Dean, thanks for the Fish reference. I have a fair amount of discussion of Fish and his "theories" in chapter 2 of my treatise, and I met him a few times when he came to Cardozo while I was teaching there.

I wouldn't describe the subcommittee members remarks to us as cynical. What he was telling us was that the legislative process wasn't about theory or the justification for the proposals in question. His job was to satisfy a constituent, and in that he was entirely correct. That is precisely what he meant by drawing a distinction between being a legislator and a politician. He wasn't the committee chair and so did not answer to larger concerns, like did the

My issue with Professor Seville's larger goal (which in no way detracts from her actual text I hasten to add, is that there are thousands of examples like the ones I gave. And members are persuaded by rhetoric, especially rheteroci wrapped up as a methaphor, like "digital changes everything" or "copyright involves a balance. Those messages are a powerful ways that the ordinary thought process is bypassed. Such metaphors are used by those who want Congress to do certain things for them, and the things they want aren't motivated by theory either.

This doesn't mean for myself I am opposed to theory; I enjoy it, but mostly as a mental exercise, a way to try and order my thoughts. The political exercise of power is a very different beast, and properly so. It is proper that Congress seeks to solve problems and not theoretical debates; that's why we elect them and that's why Plato's philosopher kings have never come to pass.

Anonymous said...

Regarding the review of Seville's book, I think that the history of international copyright is strongly related to the history of literary copyright. Therefore artistic copyright, for instance, were supplemented and they did not have such importance as we can perceive today. Moreover, if we consider the wide definition of "book", for example, it is possible to perceive how some of the categories that today we include in artistic copyright were already there but under the heading of literary copyright.

William Patry said...

I agree that the push for international copyright was largely a largely a literary affair. The question of whether other forms of creativity, like music, could be considered a book was much in doubt, and settled by Lord Mansfield's decision in a 1777 case invoving J.C. Bach.