Copyright was a hot topic at this year's Frankfurt Book Fair, especially as the U.S. Congress has undertaken a series of hearings on copyright reform for the digital age. PW recently caught up with UCLA history professor Peter Baldwin, whose new book, The Copyright Wars: Three Centuries of TransAtlantic Battle, (which earned a starred review from PW) looks at copyright's complex past, and offers a primer on what’s at stake as copyright's legislative future is debated.
Why the title: Copyright Wars? Has copyright historically been a war zone?
The historical war, which the book as a work of history deals with is the war between opposing visions of authors' rights. Should copyright be seen as a temporary monopoly granted authors in order to stimulate them to further creativity? Or should copyright be seen as a form of property, much like more conventional property, that belongs to its owner wholly and perpetually. That war was largely won by the mid-20th Century the U.S. adopted the European position of strong authorial rights, and the British, as founding members of the Berne Convention, were pulled along by their international obligations in the same direction. But as digital technologies became widespread, the battle has erupted anew. Digital has made it possible to reproduce and distribute almost for free. So how are authors and owners going to assert claims to their works, now that they are no longer protected by the sheer physical inconvenience of the old analogue techniques of reproduction and distribution?
On that point, how closely has copyright law been tied to analog expression, and can it keep up in a rapidly changing digital world?
If you mean, has copyright been closely tied to the technologies of expressing content, then, yes, that’s absolutely true. Books were the first works covered, closely followed in the early 19th Century by engravings. Then followed the whole panoply of cultural production—sheet music, photography, painting, film, sound recordings and so forth. Copyright law is constantly driven by technological developments.
One of the most striking examples comes from the late 19th Century when mechanical music reproduction first developed—music boxes, wax cylinders, Victrolas, phonographs. At the time, the copyright law protected only sheet music. Which meant that the new technologies could therefore do what they wanted with content, reproducing it at will without having to pay royalties. And by the time legislators got around to passing new laws, some 20 years later, a huge new music industry existed that could not be ignored. Interestingly, it is that new music industry, which profited from the gutting of sheet music publishers’ copyrights—that is now the loudest in lamenting its loss of control over content to downloaders.
the existence of so-called "Moral Rights" is a big difference between U.S. and European copyright law. Can you talk about difference?
Moral rights are effectively the author's claim to retain aesthetic control even after he has assigned his exploitation rights. So, even after a book has been published, or a film released, the author can intervene to insist that it not be used or changed in ways he does not approve—in a new, cheaper, abridged edition, perhaps, or a novel turned into a film or an opera.
Moral rights are a product of the Romantic era, when the individual author was seen as creating alone and thus deserving absolute control over his work. Whatever we may think of postmodernism, some of its central tenets have become second nature in our own day. The Romantic view of creativity is accordingly discounted in favor of one that emphasizes the social nature of cultural production: authors are products of their time and place, and they work with a large cultural baggage produced by others. Thus, nothing of the outcome is singularly theirs, but belongs instead broadly to society.
Is our culture better off without moral rights? I'll answer with the a question. A century and a half after the original was published, Victor Hugo's great-great grandchildren tried to prevent sequels to Les Miserables—what, really, is the point of such faux cultural piety?
You write about the “Europeanization” of copyright—explain that for our readers?
Though the first copyright laws were broadly similar in most nations, the continental Europeans quickly began to expand authorial rights in ways that were resisted in the Anglophone world. Most obviously, the copyright term was lengthened dramatically in France, reaching 50 years postmortem by the 1860s. On the whole, the Europeans developed a system of copyright that focused more on the authors' and rights owners' claims than on the audience and its access, while the Anglophones took the opposite approach.
The reasons for this are clear. European authors and publishers at the time were exporters. Without strong laws to protect them, their products were pirated abroad. The U.S. on the other hand, especially, was an importer and a copyright rogue—the U.S. pirated European literature to its heart’s content because it saw its national interests as a fledgling country best served by being allowed to pile up its plate at the world's cultural smorgasbord. The U.S. was the China of the 19th Century.
That dramatically changed in the 20th Century. The Americans, who had imported European culture and used it to build a strong culture of our own, became exporters, and eventually they came to have the same attitude as the Europeans, craving stronger protection. By the late 20the Century, the U.S. was had become the global policeman of intellectual property.
Can you talk about the ways international treaties have changed the way copyright functions?
Copyright is governed by a series of international treaties, since protection in one nation does not help rights owners much if their property can be pirated abroad. The first of these was the Berne Union, from 1886, which the U.S. refused to join it until a century later, and even then in only a grudging manner. In the 1990s, the U.S., along with the Europeans and the Japanese came up with the idea of coupling trade and intellectual property (IP) enforcement. The so-called TRIPs agreement meant that the developing world now had to enforce protection of Western IP at home if it hoped to sell its products in first world markets. In effect, the first world nations which had themselves been pirates during the early phases of their development had now ruled out this low road to prosperity for the up-and-coming economies.
All this was simply a reflection of how important IP had become to the economies of the developed world. But since the late 20th Century, the route towards stricter enforcement of IP rights has hit some bumps, as important business interests have emerged that are not aligned with the content industries: Google, Facebook, Amazon, even Microsoft and Apple, have tended to be against further strengthening of copyright. As a result, the SOPA and PIPA bills were withdrawn from Congress in 2012. And ACTA failed too, when the European parliament voted it down. Notably, the votes for that defeat came largely from the new EU nations of the former Eastern Bloc and younger Western MEPs—in other words, from constituencies more favorably inclined towards the Internet, and its possibilities of vast and easy dissemination.
As a copyright historian, what would you say to the U.S. Congress as it approaches a digital overhaul of copyright?
First, do not be misled by the historical precedent of copyright, which was created to defend the rights of independent authors. Authors are inspired to be creative by many more motives than just royalties—so do not fixate on the profit motive alone. And remember that the publishing industry flourished in the U.S. when copyright was short and only partly enforced. We don't need to go back to the 14-year terms of 1790, but cutting current terms in half would be good start. Looking forward, a system of universal licensing, coupled to a workable micropayment mechanism, is probably the best way of reconciling authors' and rights owners' justifiable desire to be rewarded with the audience’s clamor for access. Setting the legal parameters for that to emerge and flourish would be a big step forward.