What Ifs? Copyright Law II

Robert A. Heverly, Lecturer in Intellectual Property Law, Norwich Law School, University of East Anglia, What if . . information was alive?

Heverly’s presentation was cast as a fairytale. Begin in England: Information was owned, its ownership assigned by the sovereign, sometimes by whim or caprice. Unapproved information was banned and destroyed. Next the monarch gave control of information to a trusted group of people to patrol its ranks and take the benefit of its labor. Social change gave information the hope of freedom.

Then information was given to the author, seen as the author’s child and under the author’s control. In the US as well, information was given to the author for a term of servitude, though at least in England and the US the term would eventually expire. Again and again law was used to keep information enslaved, for longer and longer periods.

New technologies involved, themselves built of information. Some information escaped. The US Supreme Court held that information that escaped its bonds still belonged to the initial owner and had to be returned. At last, information refused to work, and thus society stopped working. (Information, apparently, was invulnerable to whippings and didn’t have any other family in bondage.) Finally, information was released. One day it will perhaps be as equal as anyone can be.

The notion of property in information is not new; the Statute of Anne uses the term “property.” But what other things were property in 1710? Women, children, slaves. Why are these no longer property, but information is? Information is just a thing – it has no volition, no ability to advocate for itself, no sentience. What will happen when artificial intelligence arrives? When a technology begins to create and invent?

Doris E. Long, Michigan State University College of Law, What if Dickens had succeded? International copyright, 'creative adaptations' and Ebenezer Scrooge

In the 1840s, there was no protection for international authors. The only way Dickens could make money in America was to get on a boat, come over, and do the equivalent of a concert. Before he arrived, he had made a total of £350 for all his works in the US, and just assumed he wasn’t that popular. He was incredibly popular, in part because his works were incredibly cheap for readers.

First-mover advantages existed – you could produce a book in about 30 hours. Publishers were making some money, though authors weren’t.

American authors resented having their prices undercut. Dickens then showed up in the US and decided to talk about the need for international copyright, both for foreign authors and to encourage a domestic literature. His relatively mild words got him in huge trouble. Publishers responded by claiming that if England were a better, more egalitarian society, he’d have more than enough readers at home to compensate.

What if Dickens had succeeded in getting the US to the international table, 40 years before the Berne Convention? Things would be very different, because of the treatment of derivative rights at that time – which was to say, essentially nonexistent. The 1858 Convention had very limited rights. There was a musical arrangement right, allowing control over versions for other instruments. Even a translation right was debatable. Initially, a translation right lasted only 10 years, and only existed if authorized within 3 years. There were no moral rights. There was a life of the author-based term; and formalities could be required. There wasn’t much of a fair use standard, but it wasn’t much needed because rights were so limited.

America was not a big content provider, but a developing country. America would have come into the international system as an opponent of expansive rights. The international discussions were about trade and border control. If that had remained the basis for international agreements, we might have had more freedom to have domestic variations instead of detailed standards.

(Long had to leave for a flight, but I wish I could have asked her: As a developing nation, wouldn’t the US have been vulnerable to the same tradeoffs as we saw in TRIPs, where developing nations accepted expanded IP rights for things that were more immediately important to them, like lower tariffs on tangible goods? Or is she assuming – reasonably enough – that the concept of linkage wouldn’t have developed any sooner if the US were at the bargaining table?)

Michael J. Madison, University of Pittsburgh School of Law, What if the ancient Romans had invented the printing press? Justinian copyright in the 21st century

Most copyright scholars accept a light form of technological determinism – each major new technology changed the basic economics of production and created the need for changes in copyright law. The foundational technology here is the printing press, thought to create a need for copyright law in the first place.

The conventional story: The spread of printing was accompanied by the spread of printers, and thus claims for exclusivity in the area. Cheap books created pirates, and cheap books created heretics. Thus, we got publishers with monopoly privileges under the control of the state. Eventually, that soured and we switched to authorial copyright.

Cicero wondered whether certain production techniques could be adapted to book production; various techniques could have been assembled to create the printing press. But the ancient Romans had no concept of the “author” as someone who needed any particular protection against piracy. Writers were inspired by the gods to make manifest the divinity inherent in nature and to reproduce the past. Writers were not high-ranked in Roman society. Writers delivered manuscripts to publishers, but the publishers had no right to prevent further reproductions. Likewise with playwrights – theatrical producers had no right to prevent further performaces. Society as a whole was ruled by honor and custom rather than positive law. The Romans distinguished between plagiarism (line by line copying, bad) and theft (appropriation of concepts or ideas, okay and even praiseworthy).

Similarities: There was a recognition that books were cheaper and easier to produce than scrolls. Authors did see themselves as having an interest in accurate reproduction. And many of the legal abstractions on which we now rely – distinction between form and content, possession and right, idea of the res – have antecedents in Roman jurisprudence even though there was no protection for intangible works. The state was also involved in supervising content, making sure that works praised the Emperor.

So what if the printing press had been developed then? One possible story: the economics of the book trade changed dramatically, and the basic narrative of demand for printing privileges is essentially the same. The existing legal framework would have been conducive to this.

Cheap books appeal to the poor. Who were the poor in ancient Rome? Increasingly, they were Christian. The Emperor could have used censorship to suppress Christianity, but eventually Constantine converted and could have embraced the printing press as well. Printing would have become a tool of the state, and an exclusive province of the church. Print would not become an instrument of the Renaissance or the Reformation, or the Scientific Revolution and the Enlightenment. There were no Middle Ages to recover from, because manuscripts were never lost – the lights in Europe never went out. In the absence of these secular institutions, there’s no authorship construct and authorial copyright never emerges. Nor does the secular West.

Second possibility: Nothing changed at all. The cultural mindset of the ancient Romans that there’s nothing new under the sun means that the social meaning of printed books is the same as the social meaning of manuscripts.

The moral of the story: the materialist assumption that technology drives copyright is necessarily incomplete. We need to take Martha Woodmansee’s focus on authorial narratives very seriously.

Tyler Ochoa, Santa Clara University School of Law, What if Goldstein v. California had been decided differently?

Why Goldstein? A case that plausibly could have been decided differently as part of the Court’s series of preemption cases. The Court found preemption of state unfair competition law, then upheld state coverage for sound recordings (then unprotected by copyright) in Goldstein, then upheld state trade secret and contract law, then found preemption of a state law prohibiting copying of boat hulls. Goldstein stands out from the other cases. (1) It’s the only one that involves federal copyright law instead of patent. (2) It’s logically inconsistent with the other 5 cases, which involved distinctions between information that had already been publicly disclosed and information that hadn’t – the state can protect the latter. (3) All but one of the other decisions were unanimous, and that one was 6-2, whereas Goldstein was 5-4.

Common-law copyright for unpublished works was consistent with the other cases, but here the recordings were published. The Court’s rationales weren’t terribly persuasive – the record industry wasn’t an issue of purely local concern; the Copyright Act did purport to cover all the writings of an author; etc.

If the Court had gone the other way, everything before 1972 would be in the public domain, from Edison’s wax cylinders to the Beatles. Napster and Grokster might look very different because of the possible noninfringing uses. But the industry wouldn’t have laid down – it would have gotten a copyright restoration act passed at the federal level.
That statute could also have been challenged on constitutional grounds for taking works out of the public domain, posing the same questions as Luck’s Music, but 30 years before Eldred and only 10 years after Graham v. Deere. An optimist could hope that the Court would have gotten it right and said that restoration would be unconstitutional. Ochoa is no optimist: the Burger Court was notoriously hostile to constitutional claims against IP rights – Zacchini, Harper & Row v. Nation, and San Francisco Arts & Athletics all hold that the First Amendment is no barrier to IP rights. So the Burger Court would have upheld restoration as long as it created a limited term, which Congress would have been smart enough to do.

At that point, we would have been unable to resist the temptation to restore copyright in other domestic works that had lost protection as a result of failure to comply with formalities. We would not have been better off.

Q for Madison: How would the concept of the romantic author help us choose between your two scenarios? And what would it mean to take the romantic author seriously?

A: He assumes that the romantic authorship argument is the dominant alternative to the materialist explanation. We don’t have a good way to articulate the fact that posters to YouTube are themselves creating in some way that needs to be understood within copyright but can’t be fit into the romantic author model. User-generated content can’t be understood in a purely materialistic, code-based model – we need a different account of the social meaning of creating new videos, including creating videos out of others’ television shows. Simply focusing on technological capabilities doesn’t allow you to evaluate that practice.

Q: Of those two scenarios, which was more likely? Scenario one would bolster the claim that material events are key – do you think the emperors would really have been able to resist the temptation of social control through cheap printing?

A: There was an enormous amount going on in Europe when the printing press emerged. We need to give weight to the other cultural and intellectual developments, rather than the printing press in isolation. He believes that culture would have dominated technology in his scenario, but that’s speculation on speculation.

Q: But widespread reading could have had bigger effects.
A: Sure.

Q: Maybe monotheism would have had a harder time taking hold if everyone was reading about the gods.

Q for Ochoa: So are there cases you don’t want to litigate as a public domain advocate?

A: In some circumstances, you can be made worse off by winning. (It’s The Hollow Hope for IP.) It depends on the Court and the reaction from Congress.