Reading List: The Copyright Wars

Peter Baldwin, The Copyright Wars: Three Centuries of Trans-Atlantic Battle (2014)

Baldwin’s basic proposition is that there has been a long history of struggles between creators, distributors and the public, and a related struggle between the idea of Continental authors’ rights (fundamentally moral) and UK/US copyrights (fundamentally economic).  The book is full of tidbits about copyright and authors’ rights.  For example, I did not know that the French word for ghostwriters is “nègres,” which is amazing.  More detail, from JakeLamar at The Root: 

The French started calling ghost writers nègres back in the 1700s, just as colonialism and the slave trade were gaining momentum. The idea was that writing under someone else’s name, erasing your own identity, was thankless servitude on a par with the labor of colonialism’s black subjects and victims.  

Speaking of slavery, the US was a pirate nation for a long time, refusing to grant rights to foreign authors, and during the Civil War the South found time to enact a more protective copyright law, “[t]o distinguish itself from the North, cultivate an aristocratic and nonmercantile national identity, and appeal to the British.”  It didn’t work.

I liked Baldwin’s argument that, if, as some authors claim, the ability to own Blackacre in perpetuity justifies the ability to own Black Beauty in perpetuity, then authors should also have to pay property tax every year. He’s trying to understand what might seem to be a perplexing phenomenon: While authors gained more rights over the past few centuries, our commitment to absolutism in real property rights has declined with the acceptance of the social aspects of private property, operationalized in zoning, rent control, health and safety regulation, etc.

Other things I didn’t know: German composers were free to set poems to music until 1965, when the poets’ lobby achieved a law preventing this, perhaps connected to the decline of Lieder, “the once archetypical German musical art form.”  The US’s refusal to protect foreign authors made American edition print runs as big or bigger than British print runs even when the US had only half Britain’s population.  In 1775, almost as many copies of Blackstone’s Commentaries had been sold in America as in England, and Dickens was later serialized on the back of railroad times tables.  Baldwin suggests that higher prices in the UK were somewhat offset by its lending libraries, whereas the greater distances separating people in the US meant that books had to be bought rather than borrowed.  I loved the statement of Senator John Daniel of Virginia, opposing international copyright in 1891: “It is a bastile [sic] of letters which is here constructed, and not a republic.”  Separately, but not unrelatedly, Wordsworth insisted that his friends not lend copies of his books to anyone who could afford to buy them.

Moral rights, Baldwin shows, emerged in fascist Europe, part of the self-contradictory conception fascists had of authors as cultural icons of the state, both worth protecting (when they produced the right stuff) and ultimately subordinate to the needs of the community.  Authors’ honor deserved protection, but honor was defined by the community rather than by the individual.  Baldwin doesn’t consider this a knockout strike against moral rights; after all, he notes, Germany outlawed the death penalty at the prompting of a far-right party hoping to spare Nazis.  Moral rights were in part a response to technological change, holding out hope for the author to fix meaning.  They were also, especially in France, a response to specific legal issues, like divorce and inheritance—surely a child, an ex-wife, or a creditor shouldn’t just get to change an artist’s work to make it more marketable!  This relatively autonomous legal character may be connected to the fact that the authors’ rights/copyright conflict doesn’t map well onto any traditional left/right divide: copyright loves the ideology of the market, but also the public domain; authors’ rights sneer at the market but support cultural conservatism.

But perpetual moral rights lead to bizarre situations.  “In 1988 the sole lineal descendant of the painter Achille Deveria (died 1857) secured a court decision against the French magazine L’Express for printing a portrait of Franz Liszt from 1832, removing its bottom part and adding some color.”  Also, the Danish director Jens Jørgen Thorsen made a film on the life of Christ, enhanced “in the tediously predictable way of would-be provocateurs—with brothels and orgies, Mao and Uncle Sam.”  Result? “The Danish parliament and public asked whether the project was blasphemous and if it violated the moral rights of the authors of the gospels of Matthew, Mark, Luke, and John (whoever they were).”

This leads Baldwin to a more significant theoretical point: moral rights begin as highly individualistic, reinforcing “the author’s claim to enforce the singularity of his vision even after death.”  But time marches on, despite the claims of descendants and heirs.  Ultimately, some representative of the broader society steps in “to preserve what by now—if he remained of interest—had become the author’s position in a canon.… [C]ultural bureaucrats safeguarded not his individual vision, but a socialized understanding of where he fit in the pantheon.”  Authors’ rights hardened in Europe in the 1950s and 60s, when “France and Germany sought to distinguish their nascent postwar democracies both from their totalitarian predecessors and from what they and their facist forbears alike saw as the Anglophone world’s crass commercialization of culture.”  They abandoned the fascists’ populism and embraced a moral rights of elitism, preventing any debate on balancing the interests of the author and the audience for a long time after WWII. 

By contrast, Britain and America had an audience focus; “[r]ights of aesthetic control were shunned as fanciful and needless concessions to foppish artistes.”  Only when the US became such a major content producer that economic realities drove us to accede to Berne did we pretend to recognize moral rights.  Hollywood enthusiastically embraced the strong rights and long terms of Europe, without moral rights.  But, though expansive copyright is often considered an American export, it can also be seen as a Europeanization of rights, just as the U.S. ultimately adopted the European first-to-file patent regime (and, though he doesn’t mention it, a more registration-based trademark system).  As Baldwin points out, American positions actually lost out in GATT on performers’ rights (included) and favoritism for local cultural productions (preserved, as a bastion against American media intrusion).  Meanwhile, the magpie/collaborative nature of film forced Europe to adjust its former model of the individual author and the printer, bringing Continental and Anglo approaches closer together.  And then digitization unsettled balances all over—including on the Continent, where skeptics such as the Pirate Party have finally asked whether authors’ rights have gone too far.

Baldwin takes the long view, arguing that technological disruptions have occurred before, as has the democratization of media, often to the same laments/predictions of utopia just around the corner.  Washington Irving’s “The Mutability of Literature” announced the age of “excessive multiplication,” where freedom from parchment and quill made “every one a writer, and enabled every mind to pour itself into print, and diffuse itself over the whole intellectual world”—in 1819.  In 1933, a French observer lamented that recorded music was omnipresent, yet authors hadn’t been “rewarded in proportion to this enormous expansion of consumption.” Truly, there is nothing new under the sun.

Baldwin sees the aim of Google Books as Dionysian—to dissolve all books into a greater carnival of knowledge, and he’s a bit suspicious, though not condemnatory.  In fact, he’s suspicious of all sides, who generally look out for their own interests as readers, authors, publishers, intermediaries, etc. and not for the overall good.  And watch out, Twilight and Fifty Shades critics: “At no moment do we more date our selves than when we draw the line between culture and barbarism. Your artistic abuses are your children’s classics.”

One nit to pick when he gets to American academics, whose generally restrictionist views he attributes to not needing to sell books to make a living—Carol Rose is not, as he strongly implies, a “retooled humanities PhD[], refugee[] from the academic downturn of the 1980s and ‘90s,” nor would I consider her “heavily influenced by literary theories from English and comparative literature departments.”  She’s one of our most eminent property scholars and as hard-nosed a realist as one might hope to find.  

In Baldwin’s view, the lack of elite/academic support for less expansive authors’ rights regimes in Europe meant that resistance, when it did come, was even more populist, in the form of Pirate Parties.  Of course, the U.S. also got Google arguing in more corporatist terms in favor of “balanced” copyright.  To Baldwin, the Anglo perspective is not just that of crass commerce, but also populist/democratic; both of those  features lead to pressure to limit authors’ rights and see copyright as an economic bargain.  I’m reminded of the time I heard proud expansionist Hugh Hansen decry the expansion of the franchise from white male property owners because the rest of us were more likely to want to limit IP rights. 

Somewhat inexplicably to my mind, Baldwin claims that in the U.S., “it was the salaried intelligentsia which dominated the airwaves” in discourse about copyright, since “[n]o well-organized class of literati had sprung forth in nineteenth-century America.”  But that’s only true if you only focus on writers of texts, as opposed to performers, directors, etc., who do very well for themselves in arguing for more rights.  And, as he later points out, most authors can’t survive on royalties in any Western country, no matter how strongly it protects authors’ rights; patronage and self-patronage is the usual name of the game, so that can’t really explain the Anglo/Continental divide in academic perspectives.  His conclusion that only the salaried can advocate for freedom misses voices like Cory Doctorow and Becky Boop, and appears tied to his apparent belief that self-interest underlies everyone’s positions.  (Because claims about the economic impact of copyright are so common, I did like his point that “American colleges and universities employ ten times as many people as the motion picture and recording industries.”)

I also liked Baldwin’s point that, in fighting English hegemony online, the French turned to claims for “diversity” rather than claims for the preeminence of French language and culture. Ironically, American films fund French ones because the French government taxes media, then subsidizes French media; that intertwines the two cultures in a very practical way.  In another irony, French objections to Google Books meant that the project became even more English-heavy, rather than more evenhanded—German books make up more than 12% of Harvard’s collection, and if fully digitized would match the entire University of Heidelberg library.  But French and German books were removed because of publishers’ objections.  Google’s project violates French law because its short quotation exception didn’t apply to random snippets, and presenting excerpts violated the moral right of integrity; in a bit of hypocrisy, the French court determined that publishers, not authors, held the rights to digital dissemination and thus could sue even though such blanket transfers are generally not approved in European law.  

Baldwin reserves his greatest condemnation for the greediness of the big publishers, mostly European, who monopolize scientific publishing, with profit margins of 35-40%, as well as for the German publishers who charge large amounts to publish Ph.D dissertations, since publication is required to make the dissertation official.  He doesn’t have very nice words for the French version of orphan works legislation, either; the stringent requirements make the provision essentially useless, since it’s limited to certain institutions, who must first conduct a diligent search, and must still pay writers and publishers (somebody else’s money, by definition).  Authors could refuse permission to digitize, and a senator explained that an author who’d written something regrettable during the occupation by the Nazis should be able to prevent it from reappearing.  “Rarely had the unappetizing aspects of moral rights been so baldly stated.” Ultimately, he concludes rather mildly that there’s room for more pro-public reform, but the real value here is in the journey.