Friday, June 03, 2011

Reading list: the Statute of Anne

Parts of a very interesting article by Oren Bracha, The Statute of Anne: An American Mythology, 47 Houston L. Rev. 877 (2010) (full symposium here), resonated with some other reading I’ve been doing. Bracha traces the role of natural rights theories of property in breaking down a variety of initial copyright rules—unsuccessfully with respect to the limited term, but successfully in most other areas. He discusses a set of 19th-century arguments about extending copyright protection to foreigners. Proponents of the natural rights/property theory of copyright said it was simple: if copyright is property, then it must be recognized no matter the country of origin. Sample quote: “If a foreigner brings into the country any material product of his labor, wherever produced, and whether he hail from the rising sun or the setting; whatever his nation, his color, or his product, we receive him hospitably, and extend protection to his person and his property. Why, then, if he brings an immaterial product, a literary work, shall we rob him?”

The reason I found this so fascinating was that there was, simultaneously with these arguments, a vicious debate over the treatment of property in slaves across jurisdictions: was a slave brought into a free jurisdiction thereby freed? What obligation of return or compensation did free polities owe slaveowners from slave polities? In fact, bringing a slave into certain jurisdictions did immediately convert him or her from property to a person, which slaveowners characterized as robbery.

Obviously, the free polity had determined that it was wrongful to own slaves, which was not the case with domestic copyrights. (Though there is also the precedent of banning the slave trade while allowing continued domestic slavery.) But it strikes me that a historian might write a really interesting book about intellectual property theory in the context of property theory overall in the 19th century, with specific reference to what kinds of property are acceptable. Especially given the long rhetorical linkage of works of the intellect with children, I think there could be some fruitful comparisons. The US could not survive half free and half slave, and eventually it couldn’t sustain denying foreigners copyrights either.

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