Monday, October 31, 2005

The Contributions of Cultural Historians to Copyright

There has, of late, been some excellent work by academic non-lawyers that throws different lights on the origins of intellectual property rights. Among the non-lawyers doing first rate work on copyright issues are Elizabeth Armstrong, Carla Hesse (I particularly admire her willingness to point out important historical inaccuracies in Foucault's grand pronouncements), Adrian Johns , Nancy A. Mace, Mark Rose, and Christopher Witcombe.

These non-lawyers have in turn, helped produce much better scholarship by copyright lawyers, and I heartily recommend Professor Michael Carroll's 2005 "The Struggle for Music Copyright" as an example of the best of the new scholarship. While it may seem harsh or disrepectful to say so (and neither is my intention), the works of the late L. Ray Patterson, such as his 1968 Copyright in Historical Perspective, fall into an all-too-common pattern found in historical writing on copyright.

Professor Patterson read back into the entire history of copyright what was no more than a pet theory about access and fair use, dressed up as history. His reading back in history began with an inaccurate view of copyright as the stepchild of censorship (based on equating the Stationers Company's licensing acts as the parents of the Statute of Anne), went through a misunderstanding of the 1909 Act, and straight into his conclusion that things had gone very awry in the 1976 Act. I debated him once in the mid 1980s, purely on historically verifiable points, and his lack of knowledge should have been humiliating, but it left him undeterred in continuing to press the same points that were shown to be demonstrably false (e.g., that unpublished television programs weren't protected under the 1909 Act; they were): grand theories aren't easily shaken, or as my late mother (aleha hashalom) would say when backed into a corner: "Don't confuse me with the facts."

Another grand theory places the transition from royal privileges and monopolies (like the Stationers' Company) to Statutes like Anne, our 1790 Act, and the 1791 and 1793 French copyright acts as being the result of the rise of the Romantic author. This is hooha, and to me it marred early interdisciplinary approaches to authorship and originality. Why, for example, were there royal privileges granted to music until the 1770s in England, six decades after the Statute of Anne if the Statute of Anne represented the end of the old order and the dawn of the new, author-centric era? Why did works of great classical beauty like sculpture not receive copyright until the end of the 19th century, and choreography in the United States until the 1950s? Why was there no true copyright law in Germany (the land not the nation) until the 19th century?

Technological determinism is another grand theory: copyright arose out of the printing press and every new technological development brings about a new "paradigm shift"(to use Kuhn's well-known term sarcastically), from photocopy machines, to VCRs, and of course the Internet. A careful review of the historical record, now being done, is beginning to give us a fuller and therefore better picture. And for that, we can largely thank cultural historians, so I do. Thanks and please keep going.


Anonymous said...

I lost my confidence in Hesse in the opening paragraph of her Daedaulus article: "The concept of intellectual property -- the idea that an idea can be owned - is a child of the European Enlightenment. It was only when people began to believe that knowledge came from the human mind working upon the senses - rather than through divine revelation, assisted by the study of ancient texts - that it became possible to imagine humans as creators, and hence owners, of new ideas rather than as mere transmitters of eternal verities."

The Aristotelian tradition that dominated the high middle ages taught explicitly that knowledge was from the senses. Aquinas for example believed that all our natural knowledge preceeded exclusively from sensory information about the world. The resulting Christian scholasticism characteristic of the preenlightenment period emphasized not only the sensory origin of human knowledge but also the independent role of human knowledge as a supplement to divine revelation.

As to their belief in the study of ancient texts, Hesse might learn something from studying more of the ones she wants to comment on.

It is indeed very difficult to make grand historical pronouncements without falling into such errors. As your excellent post points out, historians are always needing to avoid facts to uphold their theories.

Thanks for your blog.


William Patry said...

Anonymous: A point well taken about Hesse and overall in your excellent comment. I guess I was too taken in by her willingness to take on Foucault.

Anonymous said...

I too enjoyed Michael Carroll's paper, and I am indebted to that work for bringing the case of Pyle v. Faulkner to my attention. On the other hand, my first impression is one of disunity between the first part of the paper and the second: the link between the 18th-century cases and his recommendations for the present day might be made a little clearer.

Patterson's view of copyright as the stepchild of the licensing act was not completely wrong. The act of the 8th year of Queen Anne was partly designed as a sop to the stationers' company, since it let some of their old privileges continue for 21 more years.

Nor is it obviously wrong to see the influence of romantic authorship even at the origins of modern copyright. The fully-developed romantic concept of "originality" was still in the future in Queen Anne's day, but it was beginning to take form, as Daniel Defoe's "brat of his brain" apothegm shows. A notion that was popular with 19th-century maximalists, that an author's work was inherently his property because it was marked by his '"proper" writing-style, which could not be mistaken for anyone else's, is already hinted at in the statement in the report of Bach v. Longman "that it was possible to know the musical compositions of any master or composer of musick, who had composed any quantity thereof." And apart from any possible influence, or lack of influence, on copyright's origins, the romantic idea of authorship has arguably had an influence on subsequent generations' understanding of copyright laws, and on extensions of those laws' scope.

William Patry said...

The experiences in other countries, like Venice (as a Republic) and France clearly separated out censorship functions and grants of rights, so we can't say there was ever a relationshp in those countries. In England, we can agree that the Stationers Company was used to enforce censorship at one point and that they didn't get everything they wanted when the Statute of Anne was passed, but the leap Patterson makes is that these two are somehow causally related: because the Stationers once enforced censorship and because the Statute of Anne came about (because of a conflict between the Stationers and royal patentees, not authors as authors), ergo "modern" copyright is a stepchild of censorship. I don't see that supported historically.

I agree there are Romantic justifications made by authors, particularly in the early 19th century, like Woodsworth, but these seemed to be for a longer term of protection. Even MIlton didn't "gainsay" Stationers' the right in their "copies," although I agree Defoe's brat remark is a good one.

My initial point was modest, only that it is dangerous to formulate general theories of copyright from diverse and probably political and economically situated origins.

Anonymous said...

I have not read widely about copyright law, but another nonlawyer book about copyright is Kembrew McLeod's Freedom of Expression . Remarkable more for its discussion of the practical realities of copyright upon itself than the law itself, the book raises lots of artistic questions I haven't seen before.