Tuesday, November 14, 2006

Why UK Scholars Eat Our Lunch

It is a common thread that the writing of history is concerned not so much with setting forth an accurate description of the past, as it is an effort to shape the present. In this thread, history merely serves as the justification for one's present position. Evidence of this is seen in much copyright scholarship, and in judicial opinions. One example is the infamous battle of the booksellers in England, following the expiration of the 21 year term of protection for existing works granted in the 1710 Statute of Anne, and culminating in Millar v. Taylor and Donaldson v. Beckett. These cases brought forth a formidable array of arguments about the existence or non-existence of a common law right in published works. It is fitting that, as with most efforts to use history for partisan purposes, the exact holding in Donaldson v. Beckett continues to be debated.

Another use of history during the same time period was the battle between the Stationers Company and royal patentees. The Stationers Company challenged the legitimacy of the royal patents, which continued to be granted even after the Statute of Anne was enacted. This fight was fought on the odd ground of the true origin of printing in England: was printing introduced by the King (in which case he was authorized to regulate it, including granting royal patents), or was it introduced by other means (in which case Parliament could regulate it, including granting a monopoly to the Stationers)?

A considerable amount of scholarship is still being published about this era, indeed, I assert that the best scholarship is the most recent. Some will be familiar with the late Lyman Ray Patterson's 1968 "Copyright in Historical Perspective." In U.S. scholarship, Professor Patterson was one of the first to discuss the Stationers Company at length. His citations to Arber's compilations of records of the Stationers Company gave his work a patina of historical legitimacy. But Patterson was, in my opinion (an opinion formed through a debate with him and from reading a vast amount about the period), an incomplete scholar. His brief was simple: copyright thwarts the desires of those who wish to use copyrighted works without permission. It is a form of censorhip. So, an historical pedigree had to be invented for copyright. For Patterson, the Stationers Company, especially in league with the Star Chamber, served this purpose admirably, and so his trope was that copyright arose from the loins of censorship and, like Cain's mark, will bear that origin forever. Hogwash.

Another, more recent trope is the idea of copyright arising out of a Romantic view of authorship. The scholarship on this is highly selective, and is limited to a few authors in a few countries. It ignores vast amounts of contrary evidence, and in any event suffers fatally from historical determinism: copyright developed as it did allegedly because authors, legislatures, and society evolved to the point of finally recognizing that no work is as much a man's or woman's as the fruits of his or her own mind. A variant on this, much beloved by some law professors, is a Lockean view of property, in which copyright came to be analogically with its real property cousin. At least one academic career was made on this theory, a theory which UK scholars have effectively debunked on many grounds, not the least of which is that when it came to intellectual property, Locke was not a Lockean.

But such is the nature of academic legal scholarship in the U.S., which contains a unique facet that has doomed it from engaging in serious historical work. That facet is how academic legal scholarship is rewarded. Academic careers at top tier (and those who aspire to be top tier)schools are made by publishing in the most prestigious law reviews. Those law reviews are run by law students. In a 2004 article in Legal Affairs (link here), Judge Posner, who knows a thing or two about legal scholarship, issued a scathing indictment of the process: "Welcome to a world where inexperienced editors make articles about the wrong topics worse." Judge Posner also refers to the heavy emphasis on fields outside of law in much law review writing, done of course, by law professors almost none of whom have training in the fields of non-law they are supposedly analyzing. One can hardly blame law students for the results: it is law schools and law professors who run the prison and if they want to place their future careers in the inmates' hands, inmates everywhere will jump at the chance.

But the consequences are easy to see: serious works of doctrine and history are devalued, treatises and books rarely count toward tenure: it is only publication in a prestigiously ranked law review that matters, and to get published there one must be trendy indeed. Enter UK scholarship: unburdened by such a system, the UK (and Australia) have produced a series of stunning works of historical scholarship. I want to mention one, just released, Ronan Deazley's "Rethinking Copyright: History, Theory, Language." Professor Deazley (who is Irish), teaches at the School of Law at the University of Birmingham, England. In 2004, he published "On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britian 1695-1775." That work was a fantastic romp through original sources and provided the best explanation yet of the vote in Donaldson v. Beckett (except perhaps the discussion in his new book). Professor Deazley also did a magisterial job of placing the Statute of Anne in context, including a thorough review of the period after Anne; indeed, his focus post-Anne is seen in the dates given in the title. Far too much scholarship on the Statute of Anne has focused on the Stationers Company as if that Company's efforts were the sole reason for and sum of the parts of the Statute of Anne; that certainly is Patterson's approach, because it served his purpose to do so: the Stationers were censors, that censorship led to Anne, and copyright has been infected ever since. Deazley blows such nonsense out of the water.

In his new book, Professor Deazley builds on his previous work, which he revisits a bit, but principally as a way to asking questions about the nature of copyright, a task that dominates most of the book, and which takes Professor Deazley into the 20th and 21st centuries. Professor Deazley is open about the relationship between our reconstruction of the past for present purposes. But it is the depth of his historical research, of the kind that very, very few American legal academicians do, that is the most radical; radical because it make impossible the many non-positivist views of copyright one encounters, especially among those who do not openly state their natural rights views. Natural rights advocates don't regard their views as advocacy, and not surprisingly so: their views are natural. To such advocates, it is Professor Deazley's work that is a manifesto, or rhetoric, or a "trend." Such terms of belittlement are merely an embarrassed admission that his research is a profound stake through the heart of a view of copyright that has dominated European copyright theory for a century or so. But it is only a pet theory, not history, as Professor Deazley is rude enough to point out. He will never be forgiven by them, but he warrants our heartiest thanks.


Crosbie Fitch said...

The book sounds very interesting.

Do you think that a copyright abolitionist (such as myself) would sympathise with its conclusions?

Especially as I gather it appears to be calling for a reconceptualisation of copyright as a derogation from the “public’s freedom to engage with” works of authorship. Something I'm dismayed to discover is not self-evident.

Not that I am attempting to evade patronising authors of great works (an inclination I suspect abolitionists are believed to possess), but I wonder if Ronan Deazley's publishers are so peculiar that they have provided a license with this book? It is not unheard of.

Thank you Mr Patry, for your review and bringing this work to my attention.

Anonymous said...

Thanks for bringing it to our attention.

Now, wouldn't it be lovely if this book was priced so those besides research libraries would purchase it?

William Patry said...

The price is breathtakingly steep, but perhaps it is based on a small amount of estimated sales, and estimate I hope is wrong. It is really a great book and reading it one sees why I was so catty about the type of scholarship one sees elsewhere. There are exceptions of course. One is the Israeli copyright schoalr Oren Bracha who is teaching at UT Austin, and Craig Joyce of the University of Houston (a co-author with Patterson on some articles) who has done outstanding historical work on Wheaton v. Peters

Anonymous said...

You might enjoy Justin Hughes' "Copyright and Incomplete Historiographies: of Piracy, Propertization, and Thomas Jefferson", 79 S. Cal. L. Rev. 993 (July 2006). Among other things, it shows that the terms "property" and "piracy" in copyright have long historical pedigrees (and thus are not recent inventions of the content industries). It also does a good job of putting Jefferson's 1813 "taper" letter in context.

William Patry said...

Thanks for the recommendation to Justin's article, which I will read.

Unknown said...

Bill, superb blog. I particularly like the part scorning the scorn that law school nowadays usually cast on treatises. 'Tis a strange world -- one in which the most systematic and throughly-though out and most practical (as well as theoretical) works are consigend to the netherworld! I still remember the era in which both George Priest and Duncan Kennedy proclaimed that legal treatises are non-scholarship. George Priest, perhaps under pressure from some of his Yale colleagues, since repented a bit. Perhaps D. Kenedy did as well -- since, after all, he wrote a sort of treatise of his own. In any case, take solace: Academia may not reward today's treatise writer, but history will. So sayeth this treatise-reviser, compiler of essays, and still-aspiring treatise-writer. Besides, there is much to be said for working for (or with Google) rather than for a law school dean or with a fractious and vainglorious faculty, no?

William Patry said...

Thanks, Peter, you are the best!

Anonymous said...

What do you think of Ginsburg's a Tale of Two Copyrights? I always thought she overstated the natural rights component of american law. She was honest on the evidence, but overstated the conclusions to be drawn from it.

Anonymous said...


First, you (and Judge Posner) are absolutely right about the inmates running the law review-asylums.
Can you imagine the uproar that would happen if medical students took over the editorial positions at medical journals? Medical journals are where much cutting edge research takes place--work that has profound implications for public health and therefore for such matters as long-run economic growth for the whole world. I'm not a lawyer and never went to law school, but this practice in law reviews has always boggled my mind.

Second, thanks for bringing these books and ideas to our attention.
I read a swathe of Deazley's 2004 book today in the NYPL and will read the rest soon. If I understand him correctly, he doesn't deny the early link between censorship and copyright, referring to the "censorial state" several times. I can accept his criticism of Patterson--that LRP put too much emphasis on the book trade, the Stationers' Company, and the state during the 150 years leading up to the Statute of Anne. But your use of the H word in dismissing Patterson seems overly harsh, unless I'm really out to lunch (always a possibility). Have I misunderstood your criticism? Or is the debate (new debate?) about how important the role of censorship was in the development of the book trade and authorship?

Finally, I would note that Deazley injects a myth of his own making when he writes (p. 46) that, "It was the free market of ideas, not the marketplace of the bookseller, which provided the central focus for the Statute of Anne."

Saying that the Statute of Anne--the first copyright law--was pro-free market is like saying the first income tax was a free market event. While the 1710 Act was more free market than, say, the Sonny Bono CTEA, just as the early income tax was more free market than the monstrosity the tax code has become, to say it was consistent with a free market is bizarre.

Bill Stepp
(the other Bill, or maybe the other other Bill)

Anonymous said...

These book recommendations are fabulous; I'll be sure to ask my school's (Penn) research library to order the new Deazley book.

I'm wondering if you have any recommendations for books (or articles) that apply policy systems theory to the political history of copyright. Of course, Jessica Litman does so informally in Digital Copyright, but I am as yet unaware of anybody who does so in a formal, hypothesis-testing project.

I would love to learn whether my perception of a gap is mistaken.

Anonymous said...

To shoutingoutloudly,

I'm not sure what policy systems theory is, but there is a forthcoming (I hope) book by two economists, Michele Boldrin and David K. Levine, Against Intellectual Monopoly, which applies economic theory to the history of copyright (and patents).
You can read the manuscript at their homepages. Levine's seems to be easier to access, google David K. Levine and click on the link to the book. They also have a blog.

Anonymous said...

Bill (Stepp),

Thanks! Another great book to read. It is not a policy systems treatise, but it is useful nonetheless.

Policy systems theories attempt to explain how laws and administrative policies get made. Is it all about the money or other forms of "utility"? (Institutional Rational Choice Theory, which is also built on microeconomic theory) Is it all about the cycle of policymakers' and the public's attention? (Punctuated-Equilibrium Theory) Is it all about core policy beliefs? (Advocacy Coalition Framework)

For an introduction to these and many other such theories, see Theories of the Policy Process, by Paul A. Sabatier.

In my dissertation, I'm applying a blend of political science theory and media theory to explain the development of copyright law over time. (I don't claim to be the kind of scholar that Patry makes Deazley out to be; my date range is from Sony to the present, I only look at the US, etc.) Of course, I also care about the law's impacts, but this project tracks its development.

I want to make sure I haven't missed any other work that does this or anything similar. This is different (especially: hypothesis-testing in a way that speaks to other policy areas) from the informal, if still valuable, political explanations by Litman. (Nimmer also contributes similarly, of course, but his eye is more toward interpretation-supporting legislative history.)

Of course, I also look forward to reading the many useful books referenced in this pair of posts and the comments.

Anonymous said...

I don't know, I have read some of Boldrin and Levine, and have some reservations about their work. I'd read Posner for the mainstream view, and then Richard Nelson and Robert Merges for the 'pro-innovation' view.

But I think what you want is more Elinor Olstrom et al - public choice and all that? I think Scotchmer has written an article or 2 about political economy in IP, as well.

William Patry said...

Bill S:

I used the H word to describe the assertion that copyright as we refer to it today sprang from the loins of censorship. I do think that is hogwash. I don't deny, nor does Ronan Deazley, that there was censorship and the Stationers were knee deep in it. My objection is to Patterson's eliding of the Stationer's agenda with copyright in the modern sense. That Patterson did so I think is clear. I think it also clear that he did so for polemical reasons. I also don't deny that today copyright owners use copyright to try and censor things they don't like. But I think the equation with 17th century licensing acts and an inherent attribute of modern copyright is way off base, historically.