Baldwin, The Copyright Wars

Intellectual property is an ever growing contributor to the global economy; today, it comprises over 40% of the market value of American companies. With its growth has come the need for legally clear, enforceable intellectual property rights. Drafting and enforcing these rights across a global economy, where emerging nations were understandably inclined to follow “the same low road of piracy that the currently industrialized ones—none more shamelessly than the United States—had themselves travelled during the previous two centuries,” has proved to be a daunting task. (p. 19)

A subset of intellectual property—original works of authorship such as books, art, music, films, and computer software—is ostensibly protected by copyright law, although at times that protection seems to be more the exception than the rule. In the 1990s there was a valiant effort to codify and enforce copyright protection internationally (the Berne Convention), but subsequent advances in digital technology have raised new legal challenges and prompted yet another round in the long-standing battle over just what it is that should be protected.

In The Copyright Wars: Three Centuries of Trans-Atlantic Battle (Princeton University Press, forthcoming September 21) Peter Baldwin meticulously traces out the conflict between the Anglo-American and the continental European traditions. The Anglo-American approach puts the notion of copyright front and center whereas the continental European approach (with France being its most outspoken proponent) stresses authors’ rights.

As Baldwin explains the distinction (and editorializes in the process), “copyright has focused on the audience and its hopes for an expansive public domain. Authors’ rights, in contrast, have targeted creators and their claims to ensure the authenticity of their works. … Copyright sees culture as a commodity. Its products can be sold and changed, largely like other property. But the authors’ rights, especially their ‘moral rights,’ run counter to the market. Inalienable claims, they remain with the creators or their representatives even if they conflict with the commercial ambitions of the rights owners. The authors’ rights ideology sees itself speaking for high culture. It is elitist and exclusive, while copyright is democratic and egalitarian. Copyright gives authors a limited economic monopoly over their work to stimulate their creativity, eventually enrich the public domain, and thereby serve the public interest. Private interests are thus subordinate to the public good. Authors’ rights, in contrast, make no attempt to serve the public good as such, except tangentially insofar as happy authors better society.” (pp. 15-16)

Baldwin describes the conflict between audience and author against the backdrop of intellectual, ideological, political, and legal history. He invokes Kant and Fichte, romanticism, Nazism, Napoleonic and case law. A rich tapestry indeed.

He also shows how this conflict played out in real time. For instance, in nineteenth century America “British writers did not realize the profits of full copyright protection. Both their property and reputations, British authors complained, were injured by cheap knock offs. “ (p. 118) American authors suffered as well. “Given royalty-less British works of proven mettle, why take chances on an unknown local author? Washington Irving struggled to help a young colleague get published. ‘The country is drugged from one end to the other with foreign literature which pays no tax,’ he complained. American writers competed against ‘substantially all the European authors, in editions sold at the price of stolen fruit.’” (p. 120)

Over the past three centuries the Anglo-American and continental European models have traded positions of dominance. In the 1990s victory went to the continental ideology even though “the 1990s spasm of intellectual property legislation may … have testified more to rights owners’ frustrating inability to hold on to their property than to the actual enforceability of their claims.” (p. 317)

Where do we go from here? Baldwin comes down on the side of the audience. Take digital recordings, for instance. He writes: “Ironically, that industry that today most loudly laments digital pilfering on its turf was built a century ago on the legal evisceration of sheet music. But if sheet music was not sacrosanct property in 1909, why should digital recordings be so today? What the law gives, it can take away.” (p. 409)

He concludes: “That we want to keep present and future authors happy and productive is clear. But why rights holders’ claims to intellectual property should expand indefinitely, while those of other owners are ever more restricted by social concerns, is not. 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.” (p. 409)

I agree.