Tuesday, October 03, 2006

Technological Determinism

Copyright is frequently described in technologically determinist ways: its inception was allegedly a direct reaction to the threats posed by the printing press. Later provisions were supposedly a response to radio, television, cable, the digital revolution, or the World Wide Web. Examples can be found where copyright has responded to technological changes, and rightly so, but as a construct explaining either the origins of copyright or any appreciable number of later statutes, technological determinism is historically inaccurate.

If copyright is technologically determinant, why in the United States was protection for paintings and other works of fine art not extended until 1870, while photographs were protected in 1865? Why was pantomime (and choreography at least expressly) not protected until the 1976 Act, architecture until 1990? The 1831 term extension was the result solely of efforts by Noah Webster's son-in-law, Congressman Ellsworth, to benefit his family and himself.

Rights too have little relationship to technological advances: a right of translation was not granted until 1870, a display right until the 1976 Act, a right of public performance for sound recordings not until 1995. The right of public performance for works besides sound recordings provides other illustrations. The right was parcelled out subject matter by subject matter for decades: dramatic compositions in 1856, musical compositions in 1897, and a more general right (but limited to for profit performances for some works) in 1909.

Copyright legislation is the result of political, not technological forces. Zvi Rosen has just written a 69 page article about the 53 year effort to enact a music public performance right, beginning in 1844 and the culminating with the 1897 Act. The article, "The Twilight of the Opera Pirates: A Prehistory of the Exclusive Right of Public Performance for Musical Compositions," is to be published next year in the Cardozo Arts & Entertainment Law Journal, but is available here in a Berkeley Electronic Press version. Mr. Rosen's article reflects exemplary scholarship, a goldmine of original sources and behind the scenes looks at the personalities involved in the effort, initially those of Charles Jared Ingersoll, a Philadelphia Congressman, as well as the later efforts of Representative William Treolar, a one-term Congressman from Missouri who was a composer, music teacher, and music publisher.

The article is an excellent read and an important historical resource.

1 comment:

Ryland said...

Dear Bill,

I have not read the paper, but your introduction to the paper is not accurate:

“Copyright legislation is the result of political, not technological forces.”

The US is notorious for delaying in the implementation of copyright laws to keep up with technology and other countries. But that does not mean the copyright laws were not driven by technology. Even the example you give of pantomime, even if delayed, the reason for adding it to the list of protected works was because of technology, this type of creative work or method of copying did not exist on May 31, 1790, at that time is was just it was just maps, books and charts. After this print engraving became very popular and was added as a protective work in 1802. Who had even heard of a photograph at that time, photographs were added in 1865 after they had been invented in 1839 I believe and the technology of it had developed. Motion pictures were invented in 1890 and were being protected copyright wise by registering each frame as a photograph and as the technology developed for motion pictures, they were added to the protected works in 1912. Not really quick off the mark, but certainly the reason they were added. Tape recorders becoming popular in the 1960s (this one is from rough memory), there was the Sound Recording Act of 1971.

And yes, it is pretty certain that the origins of copyright were driven by the development of printing. Before Gutenberg, one person reading while 30 scribes wrote down a copy is all there was. Giving us roughly the number of books in Europe in the thousands before Gutenberg and number of books in the millions after. (Note: you make this similar analogy in your essays on copyright history, by the way).

The US Supreme Court summed it up well in Sony v. Universal: “From its beginning, the law of Copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copyright equipment – the printing press – that gave rise to the original need for copyright protection.”

Copyright law has also been driven by foreign commerce and harmonization with other countries as well, even if slow, like the US joining Berne 90 years after the fact. But this leads to the 1831 extension of terms of protection. Yes, it is true that after Webster was in Europe and found how far behind the US was in terms of protection and brought this to Congress’ attention that started it all. Webster truly wanted a lot of copyright protection and rightfully so. But you say:

“The 1831 term extension was the result solely of efforts by Noah Webster's son-in-law, Congressman Ellsworth, to benefit his family and himself.”

The Judiciary Committee’s report noted how far the US was behind Europe that this law was to “enlarge the period for the enjoyment of copyright, and thereby to place authors in the country more nearly upon an equality with authors in other countries . . . we ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science.” It was passed by majority of vote and signed by the President—not likely would this have occurred if it were just for the benefit of Ellsworth and his family.