Monday, October 03, 2005

Why Study Copyright History?

There are many types of copyright history. All judicial opinions have one, going back to the parties' disputes, inability to resolve the dispute, filing the complaint, discovery, settlement offers, sometimes trials, sometimes a trial court opinion, and sometimes an appellate opinion. We outsiders usually read just the opinions, and they are rarely more than a tiny fragment of the actual dispute, no matter how detailed. Opinions are merely a reflection of what the court chose to record about its thinking: they don't represent the actual thought process of the decision maker and they include only what the court chose to put in recorded form. Some judges, like Judge Rakoff in the SDNY, issue opinions so abbreviated and opaque that they are largely unintelligible to anyone but the parties. But even for more thorough opinions, the real history of the case will remain largely unknown to anyone but the parties. Legislation presents similar issues, as I detailed previously. But we still study legislative history, or at least most of us do, and sometimes it is helpful.

There are other types of copyright history, like the history of fair use, the history of formalities, or more narrowly, the history of the manufacturing clause formality. Then there is the history of all U.S. copyright acts, the history of the UK copyright acts, the history of the Stationers' Company, history of printing and print privileges, and the history of all the above put together. Throughout my career I have studied all of these fairly carefully, and I continue to do so. For the last few weeks I have been studying the printing and print privileges in the era 1470 or so to 1570 or so, mostly in Venice, but also in other countries, as well as those issued by Popes. But why? One answer is because there have been a few really good books published quite recently, all by art historians, that contain excellent scholarship. Another answer is that I am preparing the manuscript of my new treatise for publication and am making one last pass through this stuff before sending it off. But neither of these are complete answers: I could have chosen not to read the material or chosen not to put the material in the book (it may in fact be of interest to a limited group), and certainly the art historians who chose to write their books could have chosen to spend their times doing something else too, maybe on more current topics.

So why so much scholarship on really old, obscure stuff? Do we hope to find something that will help us understand the present better, more fully? Will an understanding (to the degree possible by reading other people's research) of Venetian printing privileges help us understand current copyright problems? Do we expect to find the same problems then as now, and so note wisely the unchanging nature of humanity? Or is it antiquarianism, curiosity, a desire to be complete, a love of the subject matter?

In my case I would add great insecurity, a fear of ignorance, a fear that in writing I am making fundamental, stupid mistakes everyone else knows, and so I will be embarrassed if I don't exhaustively try to track down everything. The issue of why pay attention to the past is hardly unique to copyright, but I do find it interesting that art historians have turned their wonderful skills to the subject. I just wonder why I am so fascinated by it.


Anonymous said...

I was once a Free Software junkie ( Now I'm more firmly in the Open Source camp ( But my days w/ the Free Software people led me to believe that copyright did not exist before the Statute of Anne in Great Britain.

That concept of history meant that, as a purely legislative issue, copyright and the DMCA in particular weren't on the same moral ground as say theft, murder, or rape.

So the simple fact that copyright practices date back farther than the Statute of Anne is important to me.

William Patry said...

Free and open as adjectives sound alot alike to me, but seriously, the pre-Statute of Anne stuff, especially the 16th century Venetian material is very interesting. Protection was based on sweat-of-the brow or investment, despite the existence of very famous Renaissance artists.

Anonymous said...

The stated difference between the two movements is that the Free Software Foundation would love to see the whole IP regime rethought as it applies to computer software. In other words, the free software guys believe that the current system is immoral when applied to software.

As an open source guy, I believe the market for ideas is such that it *may* *sometimes* make sense to release things "some rights reserved" as compared to "all rights reserved."

Specifically, with software, peer review is a good reason to release under "some rights" compared to "all rights."

Anonymous said...

I have always suspected that the business history of the troubadours and even earlier court performers would hold important lessons for the music industries and teach a great deal about the evolution of the protection of music outside of the rules developed for printing. Some day, and certainly if I were paid to be a professor, I might get to look into it further. I suspect and admittedly pre-judge this that the historical context would help explain at least conceptually why music is so frequently set apart and why its rules so frequently conflict with the IP rules in play for other media. History rocks!

Anonymous said...

L'shawnaw tovaw, Professor.

In mid-15th century England, I find bishop Pecock concerned with inaccurate copies of his works. He doesn't want to be heard, in his discussions of the contentious religious issues of the day, to be saying something he didn't say. Modern copyright's motivations and structure are mainly economic, but in its effects it overlaps with these concerns about authorship and accuracy, and perhaps it always has reached to these issues.

Here, from about the same era, is John Lydgate on the author's privilege toward earlier writers' works:

Artificeres having exercise
may change and turne by good discretion
shappes, formes, and newly hem devise,
make and unmake in many sundry wise,
as potteres, which to that craft endtende,
breake and renewe their vesseles to amende.

Thus men of craft may of due right
that been inventiv and han experience,
fantasien in their inward sight
devices newe thorough their excellence;
expert maistres han therto license
fro good to better for to change a thing
and semblably these clerkes in writing,

thing that was maad of auctors hem beforn,
they may of newe finde and fantasie,
out of old chaff trye out full cleane corn,
make it more fresh and lusty to the eye,
their subtil wit and their labor applye,
with their colors agreable of hue,
make olde thinges for to seeme newe.

(This poem was earlier posted here).

Anonymous said...

I couldn't agree more about the importance of studying the history. I've been doing this with a focus on the distinct features of the development of music copyright.

For those who are interested, my first article examines the pre-copyright era to identify when and why composers and publishers began to relate to music as a form of property. See Carroll, Michael W., "Whose Music is it Anyway? How we Came to View Musical Expression as a Form of Property" . University of Cincinnati Law Review, Vol. 72, 2004

The second piece examines when, how, and why the Statute of Anne was first applied to musical compositions. Interestingly, music publishers resisted application of the Act. See Carroll, Michael W., "The Struggle for Music Copyright" . Florida Law Review, Vol. 57, 2005

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Anonymous said...

Prof. Patry,

Given your interests, I thought I'd mention this new title I ran across:

Loewenstein, Joseph, The Author's Due: Printing and the Prehistory of Copyright, University of Chicago Press, 2002, 360 p.

The Author's Due offers an institutional and cultural history of books, the book trade, and the bibliographic ego. Joseph Loewenstein traces the emergence of possessive authorship from the establishment of a printing industry in England to the passage of the 1710 Statute of Anne, which provided the legal underpinnings for modern copyright. Along the way he demonstrates that the culture of books, including the idea of the author, is intimately tied to the practical trade of publishing those books.

Anonymous said...

I read Mr. Carroll's second article on the Statute of Anne and its very useful and informative. I look forward to reading his other article now.

Anonymous said...

I've always thought the best place to start is Kaplan's "An Unhurried View of Copyright." While sometimes its a bit hard to find, it's great for putting modern U.S. copyright law in a long term perspective, especially for young practitioners who otherwise are exposed to only the "copyright maximalist" and "free software" schools of IP thought with nary a middle-ground.