‘The Copyright Wars’ Rage on After 300 Years

To those who think that the “copyright wars” are a product of the modern era — of Hollywood and Google and digital downloading — Peter Baldwin’s exhaustive new study may come as a surprise. The Copyright Wars: Three Centuries of Trans-Atlantic Battle charts what is not a recent phenomenon at all, but a centuries-old struggle between fundamental principles, one in which a divide has developed between continental Europe and what can roughly be delineated as the “Anglosphere” (the UK and US).

Is the work of writers, artists, musicians “property?” And by that, what is actually meant is: can an artist separate their work from themselves and sell it to somebody else, the way a potter can sell a pot, or the way an auto company can sell a car? Or is it something greater, something more intangible? What does it mean to “own” a work of art, or a book? Does the new “owner” have the right to change it? To destroy it? To make a profit off of it? Does the original creator retain any rights over it? Are those rights surrendered when they sell it? Do they even have the right to surrender their work and their own rights to it? Or does creative work retain an inseparable tie with the creator and their distinct personality and ideas, regardless of what a contract might say?

And if creative work is indeed property, whose property is it? Is a book the property of its author? But if no one is an island, no author is an island, either. They grow up in society; they’re influenced and shaped by the schools they attend, the entertainment they absorb, the books they read, the things they see around them. They go to libraries and listen to music. All their creative ideas, in other words, are built on the creative and material work of the people and society around them. So who are they to suddenly declare that they should be the sole proprietors of the things they produce? Don’t they owe something to the society that made it possible for them to produce in the first place?

These are the sort of heady questions that have absorbed creators, policymakers, and the legal and commercial establishment for centuries. Such questions always existed, but took on a new urgency with the development of the printing press and the sudden flourishing of widely accessible, mass-produced books. Property law was well established by this point. But were books, art, and ideas the same as other conventional property? Or were, are, they something else?

Such questions are debated with equal ferocity today. And while we’re enmeshed in a particular set of widely accepted conventions, those widely accepted conventions have shifted dramatically over time, between privileging the artist over the public, and vice versa. Adopting a historical perspective allows one to see this.

That’s the real value of a work such as The Copyright Wars. Baldwin’s detailed scholarship is second to none, and he offers a meticulously researched summary and synthesis of these debates that manages to make sense out of three centuries of legal and political struggle. The work manages to make this struggle accessible and comprehensible to a broad audience, without sacrificing any of the important nuance and context that an understanding of the issues requires. Baldwin, a history professor in the US, has a knack for tackling comparative social policy in historical perspective. His previous book The Narcissism of Minor Differences: How America and Europe Are Alike also compared these two geopolitical regions, arguing they are in fact quite similar when it comes to the things that count. In his latest book however, he dwells on some of their fundamental differences.

The basic crux of these debates lay in whether to place the artist or society/public, at the centre. Broadly speaking, what emerged following decades of debate on the “Continental” side (Germany, France, other European countries) was a consensus on the side of the artist, what Baldwin describes as the “author’s rights” tradition. (Baldwin here distinguishes it from “copyright”, by which he refers to the very different Anglo-American tradition, even though current popular usage tends to lump it all under the term “copyright.”) The Romantic movement in Europe contributed greatly to the author’s rights tradition; underlying it was the image of the romantic struggling artist; of “high culture”, of the notion that great people with their great ideas must be cultivated and given the space, power and ability to nurture the talent on which society’s great expressions of culture were based. Mass ownership of ideas risks polluting and devaluing high culture.

On the other side was the more populist approach of the “Anglosphere”; that is, Britain and, to an even greater extreme, the United States, which is described as the “copyright” tradition. Here the focus lay in minimal protection for intellectual property: mass dissemination and quick entry of works into the public domain was encouraged in this market mentality. In the US particularly, ideas were seen as playing a democratizing and social function. For this fledgling democracy, as for modern democracies, it was essential for everybody to have full and free access to as much knowledge as possible. Even if it deprived the creators of lucrative profits, the well-being of society was more important.

US law and legislators implicitly (and sometimes explicitly) encouraged what the Europeans considered ‘piracy’: cheap mass-produced reprints of European works. During international debates, Americans argued the size of their country meant they could not enjoy the dense and sophisticated urban environment of Europe with its many libraries; they must have cheap books in order to spread knowledge and educate their broadly distributed population.

Slavery even became embroiled in the debate. Legal theorists attempted to draw clumsy parallels with slavery (in an era where Europe was increasingly critical of the slave trade and America still fully engaged in it). America, they wrote at the time, was built by stealing the bodies of Africans and the brains of Europeans. Yet the parallel worked both ways: if human beings ought to be free and could not be owned, then ideas ought to be free and could not be owned either.

When the American Civil War broke out, the Confederacy took the unlikely turn of embracing continental European copyright policy and the moral rights of authors, as a way of seeking the political support of European nations in its struggles against the [pro-piracy] Yankee North. It worked, after a fashion. Even Charles Dickens, while opposed to slavery, became sympathetic to the Confederacy; he had long been bitter about the lost revenue from pirated copies of his books in the US. In a fitting denouement, it was Harriet Beecher Stowe’s novel Uncle Tom’s Cabin, an unparalleled bestseller in both North America and Europe, that became a pivot for international copyright battles.

The rise of fascism in the early and mid-20th century also left its imprint on copyright debates. The Berne Convention has become the preeminent forum for copyright policy debates (which the Anglosphere resisted participating in, the US until 1989), and was for a period dominated by the fascist governments of Mussolini’s Italy and Nazi Germany, among others. The conflicting tendencies of 20th century fascism were aptly reflected in their approach to copyright. On the one hand, they exalted artists (Wagner, Strauss) and spoke in lofty terms about granting rights and recognition to artists, who they romanticized as embodying the cultural greatness of the race and nation. They strove to distinguish themselves as protectors and patrons of “high culture”, resisting the appropriation of their cultural traditions for crass commercial purposes.

On the other hand, they were driven by populist and collectivist tendencies which conceptualized artists as serving society, and held artists responsible for upholding the principles of fascism and the ‘greatness’ of their racialized cultures. Yet this too was inflected with pecuniary motive: the fascists needed to temper their ideological fanaticism with the practical reality that they required the support, both financial and political, of the capitalist elites in order to seize and maintain power.

A complex web of interests, indeed, which manifested in shifts to copyright norms under the Berne Convention. This gave the Americans another good reason to stay out of it, especially given the blind eye other Berne members turned to the fascists’ legislated persecution of Jewish creators. Fascist influence lingered after the war too: as Europe struggled to reconstruct, parties on both sides of the copyright debate sought to exploit fascist policy gains that worked in their interest, while at the same time endeavoring to publicly distance themselves from the taint of fascist policy heritage.

Such is just a glimpse at some of the fascinating moments which comprise the history of copyright struggles, ably and eloquently chronicled and analyzed in Baldwin’s masterful and comprehensive text.

Of course, beneath all the high-sounding ideas lurk, inevitably, more base motives of greed and profit. Publishers initially sided with artists in their struggle for the right to sell their work as property, largely because publishers expected the artists to sell it to them (rights and all) for profit. Likewise, the American legislators who argued for mass, popular access to cheap books and art were also influenced by the fledgling American publishers who wanted the right to continue publishing pirated copies of European works. Indeed, early copyright law in the US first protected the rights of domestic creators, ignoring the rights of international creators. Later, the US would also extend copyright to international authors, but only on condition that they printed and bound their books in America. Authors’ rights again came in a clear second-place to broader social goods, in this case American jobs.

Even the eventual shift in attitude was motivated by profit. Books were so cheap in the US that publishers enviously eyed their European counterparts and argued that cheap European books meant American writers would never get the recognition or support they deserved.

Such debates, grounded in both the highest and lowest of ideals, are complex, but some patterns emerge. The US was strongly opposed to the Continental approach of protecting creators and their work until the US eventually became a primary producer of such works. Once the US began to rival and even surpass its European counterparts, particularly in the film and music industries, it developed a greater appreciation for protecting such works. Likewise, Asia, and China, in particular, has come under fire for the widespread piracy of Euro-American works that occurs there. Yet in recent years, as China moves to rival both America and Europe by becoming the world’s third-largest patenter, it, too, is beginning to take a greater interest in protecting the creations of its people — and the financial value these accrue.

What is common to all these cases is a pattern whereby a vibrant creative culture is founded on free and easy access to creative works, “piracy”, in other words. Yet once creative industries reach a certain level, the embrace of “piracy” shifts to a focus on “policing”. Countries that are “net importers” of culture have tended to resist or not enforce intellectual property laws. In contrast countries that rely on exporting culture tend to demand stronger protection in order to secure profits abroad. There is, of course, a certain self-interested hypocrisy underlying such attitude toward copyright, which again emerges most clearly when viewed through the lens of historical perspective.

The final quarter of the book is, predictably, devoted to the digital era. Yet Baldwin emphasizes that the debates of the digital era are really not much different from the debates that went on before. The theme is ultimately the same: who ought to take precedence, the creator or the public? Take the subtle issues of the book, such as the fear of quality being undermined by uncontrollable mass production and the beauty of universal access to humanity’s store of knowledge at virtually no cost weighed against the impossibility of creators earning a livelihood through content creation in such a world, unless salaried by the state or some institution.

Both of these issues were already hashed over long before people started wiring together computers. Presciently, 19th century legal minds even rendered their debates in the abstract terms of some (then-fictional) new form of media that would enable instantaneous universal access around the world for virtually no cost. Bloggers are really no different from the countless pamphleteers and authors of the penny press in 19th century Europe. As Baldwin notes, many of the “new” ideas today of creators as socially embedded and building on the work of others “would not have surprised the Renaissance”. Remixing, sampling, mash-ups and the like “represent a return to the participatory culture of the era when music was played and not just listened to”.

What has changed are the terms of engagement of the key legislative players. The US government is attacked by digital activists who argue restrictive copyright stifles the creative potential of the digital era, but in fact the US for most of its history resisted strong intellectual property rights. Its grudging acceptance of European conventions that privilege the author/creator is a very recent and radical shift that dates from the ’90s. Meanwhile, even Europe finds itself torn by the rise of open access activists — the Pirate Party, for example — demanding a revisiting of traditional positions on authors’ rights. The ultimate trajectory of intellectual property debates is far from clear, and the future promises to be every bit as exciting as the past 300 years.

This is certainly not a book for everyone. While Baldwin does an incredible job at rendering arcane legal debates accessible for those with no legal background, 300 years of copyright history is still a heavy and intellectually complex sea of material to wade through. But for those who have the interest, it’s an invaluable text. It’s the sort of rare text that could be equally useful for a member of the public who wants to gain a fuller understanding of the history of intellectual property law, or for those in the legal profession who want a quick and handy reference. The attention to detail and meticulous research is first-rate; forming a comprehensible narrative out of literally thousands of legal cases and pieces of legislation from around the western world is a prodigious accomplishment. Baldwin’s style, while erudite, is clear and comprehensible, with a wry wit that emerges periodically (and to the reader’s great delight).

While the future development of copyright law and the outcome of the digital struggles currently underway is far from certain, the book closes with some potent observations. First, suggests Baldwin, a growing problem in the debate is the fact it subsumes both creative work — fiction, music, film — under the same laws and principles as academic research. We often think of the powerful entertainment industry as a daunting lobby, but in fact it is dwarfed by the immensely larger academic industries.

More importantly, however, the world of academic research undermines the very premise of copyright and author’s rights: the idea of a content creator as a struggling independent entrepreneur. Academics are salaried and paid for their work, supported by universities, governments, and private institutes. In many ways, academia is a return to the era of patronage which copyright and authors’ rights were thought to mark the end of. Moreover, academic research is largely funded one way or another through taxpayers’ dollars – so why should taxpayers have to pay again to access the work once it’s produced? “We live in a new era of patronage,” Baldwin writes. “Whatever the rules for the commercial market, academic research must be treated separately.”

Intellectual property law is the outcome of a complex dance between three parties: the content creators (authors, musicians), the commercial disseminators (the publishers), and the audience, or public. Shifts in intellectual property law are often the result of shifting alliances between these parties, none of which are ever uniform in their positions. Even in California, Hollywood fights for stronger intellectual property law while digital companies like Google champion open access. Government, too, has shifted in its allegiances: sensitive to public opinion, it’s also sensitive to industrial lobbies and international trade implications.

And where will these debates lead in the years to come? It’s difficult to say, but Baldwin concludes by emphasizing that the debates are political and ideological. Dismissive of the natural rights argument, he observes that there is clear precedent for entire groups of rights owners to have their rights expropriated, either because greater commercial interests prevailed or because it was no longer feasible or desirable to protect those rights (composers and publishers of sheet-music are an example). The law, ultimately, is a political judgement, he writes, and while we ought to support creators and help them to keep producing, it’s not clear “why rights holders’ claims to intellectual property should expand indefinitely, while those of other owners are ever more restricted by social concerns.”

Finally, there is a bigger picture to bear in mind, a note on which he ends stirringly: “And that a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity – that is little short of grotesque.”