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.