A paradox is highlighted by the pioneering way this important collection of essays on the history of copyright is published. Open Book Publishers offer the whole text of the book free to read onlineFootnote 1, as well as, for a tiny fee, facilities to download. The reader, or librarian, can also purchase the book in traditional printed book format either as a hardback or a paperback. The book is linked to the recent publication online of an invaluable corpus of original texts documenting the history of copyright in Italy, Germany, France, Britain and the United States.
Current work on copyright history, according to the editors of these essaysFootnote 2, should be seen as an ‘urgent contribution to knowledge’, having for much of the 20th century been the pursuit of individual and often isolated scholars. Why is it an urgent contribution? Because, as well as being an excellent work of comparative legal history, the book evidences over several centuries and in key publishing countries that, dependent on how it is configured, copyright law has reasonably predictable effects in critical areas of the political economy. The project has clearly excited the authors and collectively I think they bring us to a new understanding of the ramifications of copyright law. I propose in the rest of this review to explore two or three examples raised by the authors of the radical certainty in action, before touching on how copyright, like economics, is better understood if we clear away the smokescreen of rhetoric and metaphor that envelops it.
My first example concerns the length of the copyright. Two basic questions inform the Anglo-American copyright regime, according to Karl-Nikolaus Peifer, in The Return of the Commons: To what extent will copyright legislation incentivise the creation of new work and so benefit the public? To what extent will the monopoly be detrimental to the public? How long should the copyright be? The first copyright law to give authors a monopoly on reproducing their own work was the Statute of Anne in 1710. Previously the state granted, or more usually sold, monopoly privileges on printing certain works, but the author's position was not specially recognised.
The Statute of Anne, which was entitled “for the encouragement of learning”, settled the author's copyright at 14 years and for a further 14 years if the author was still alive at the end of the first period. This remained the position for over a hundred years and under challenge from a cartel of London booksellers, who claimed a longer copyright at common law, was affirmed in unequivocal terms by the House of Lords in Donaldson v. Becket in 1774. The judgement of the court endorsed the Statute of Anne as striking a proper balance between the granting of monopoly privileges to authors to encourage creativity, but not making it too long.
How different things appear in 2010, 300 years after the Statute of Anne. The commons or material not under copyright has been encroached on, with the copyright period extended again and again in Europe and the US. The promoters of the legislation are multi-media corporations and their political protégés. The Copyright Extension Act, known colloquially as the Mickey Mouse Protection Act, was passed by the Congress in 1998. It extended copyright terms in the United States by 20 years to the life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever is earlier. The Act also effectively 'froze' the advancement date of the public domain for works covered by the older fixed term copyright rules. Disney said the extension had the support of "a broad coalition from the creative community", and when in 2003 it was challenged in the Supreme Court, the justices sided with the corporations. They rejected the argument that the Copyright Clause in the Constitution allowing limited period copyrights never contemplated durations that were tantamount to perpetual copyright. Given that the justices accepted that the extended periods were excessive, that the Act would stifle creativity and could even conflict with freedom of speech, it was not perhaps their finest hour.
The English poet John Milton is the hero of Mark Rose's provocative essay “The Public Sphere and the Emergence of Copyright: Areopagitica, the Stationers' Company, and the Statute of Anne”. Developing ideas of the German philosopher Jürgen Habermas, of the emergence in the 18th century of a public sphere, located conceptually between the private sphere of the family and the authoritative sphere of the state, Rose stresses the critical influence of the Areopagitica, in which Milton rails against the licensing of printers and argues for the dignity of the author and the importance of the free circulation of ideas, ‘Truth and understanding are not such wares as to be monopolised and traded in by tickets and statutes and standards. We must not think to make a staple commodity of all the knowledge in the land, to mark and licence it like our broadcloth and our woolpacks’. Rose sees the hard won arena for the dialectic of ideas as under threat. Habermas talked about the ‘hollowing out of the public sphere’, or even ‘refeudalisation’, and Rose takes up the theme arguing that modern media conglomerates like Viacom collapse the dialectic of ideas. On a pessimistic note, he ends his essay suggesting the conglomerates raise “serious questions about whether the kind of dynamic public sphere that Milton portrayed in 1644 can be sustained for the future”.
Despite the hollowing out of the public sphere and the commercialisation of culture, the book identifies limits on the power of the media moguls – new public spheres emerging on the internet and pirating on a heroic scale. The language that copyright has been wrapped in of authors' rights, theft, pirates etc is increasingly seen as largely propaganda designed to deflect attention from the truth that copyright is not a property right, like owning a car, but a state backed monopoly to sell unique non-interchangeable wares, exactly like the licensed printers of Milton's day and if anyone doubts the obfuscatory nature of the language, the last essay in the book provides a comprehensive taxonomy of the metaphors, images and tropes that have been used over the years by owners of copyrights and entertainingly deconstructs them.
This book is an ambitious and successful project and its claim is not overstated that it should provide essential reading for anybody interested in copyright, intellectual history and current public policy choices in intellectual property, but it is not without flaws. The index is only just adequate for a book of such length and depth and some of the writing is short on electricity. But these are minor quibbles. One final point, the publishers not only offer the whole text free online, they have somehow managed to get the price of the hardback and paperback editions down to a fraction of the normal price of an academic book let alone a legal book, without any diminution of quality.
