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.

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