The Development of Copyright Law: Wars or Evolution?

By Mark A. FischerNovember 30, 2014

The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin

THE HISTORY OF COPYRIGHT HAS BEEN as much the story of technology as anything else. From Gutenberg to the 78 r.p.m. record to the internet, the scope and provisions of copyright law have been chasing after technological developments. In Peter Baldwin’s new book, The Copyright Wars, copyright is seen as a series of contentious battles within each European country and between the US and Europe. The battles (or perhaps wars) that Mr. Baldwin cites have been over issues including protection (or the lack thereof) of moral rights in the integrity of authorship and attribution, fair use, the term of copyright protection, and, increasingly, the effect of digitization and our fascinating recent companion: the internet.

Baldwin quite ably and thoroughly illuminates the history of copyright developments in Europe and the US. One longstanding distinction between the US and Continental Europe is their treatment of moral rights. Moral rights, or droit moral, are the rights of an author and his or her heirs to protect the integrity of an author’s works and authorship from distortion (by, for example, significant changes to the text or appearance of a work or its false attribution). The book illuminates the differences well, showing how Europe protects such rights and the US does so only to a very limited degree. He offers waves of anecdotes about European developments largely unknown to US readers, such as copyright in the Third Reich. For example, the Fascist Nazis were quite interested in copyright law, including copyright term extension (they favored it) and moral rights (it was a complicated question).

However, the book might have more profitably focused on the role of profit as a motive for copyright law’s development. Whether inspired by the US/British view of incentivizing creativity by providing economic reward via copyright or the Continental European natural rights approach, money has a strong gravitational influence on copyright, regardless of one’s choice of philosophical underpinnings. Money matters in copyright law on both sides of the Atlantic, and the fundamental changes brought by the internet make those developments even more important and apparent. In fact, within some media and some channels of commerce, advances in technology and markets may be even more influential in affecting change than any particular copyright law’s strengths or weaknesses. For example, are bookstores disappearing because of diminished copyright protection or because of The music industry may be a different story, where the erosion of copyright protection played a very big role in the restructuring of the music business right before our eyes and ears.

Surprisingly, Baldwin asserts that, for a time, the established wisdom was that “copyright’s evolution is often told as a story of American cultural hegemony,” but that this isn’t really “plausible.” Instead, the “Continental approach triumphed: the abolition of formalities, the extension of terms, and most fundamentally, the shift of copyright’s philosophical underpinnings from statute back toward natural rights.” Deftly presented, but I’d follow the money as much as the statutes in order to understand how and why copyright has evolved as it has, especially in the US. The US saw real economic benefit by adhering (a bit grudgingly) to the Berne Convention.

The Anglo-American imperative that copyright incentivizes creativity was undoubtedly a factor in the rise of American popular culture around the world. American motion pictures, recordings, and books to a considerable extent ruled the transatlantic (and transpacific) waves. That heyday was made possible by at least two factors. First, unlike today, large-scale piracy was a hard thing to do. It took printing presses or record plants (and a distribution network) to pirate effectively on a large scale. Second, copyright law was strong and copyright policy and practice were inherently dominated by the copyright community of publishers, production companies, and creators. The copyright consumer and the notion of user-generated content weren’t yet part of the copyright conversation.

Like it or not, copyright is as much for popular culture as it is for high culture. Mr. Baldwin can’t resist anecdotes about serious culture, but almost entirely resists mentioning anything more lowbrow than Leonard Bernstein and Stephen Sondheim’s West Side Story. The copyright implications for Pharrell Williams and Miley Cyrus are for other people to analyze. In one paragraph, Mr. Baldwin manages to reference all of Longfellow, Lowell, Hawthorne, Poe, Thoreau, Eliot, William Carlos Williams, Faulkner, Nathanael West, Wallace Stevens, and Charles Ives. Yet, while the literary base of the copyright world may (or may not be) more aesthetically enriching, the economic base that largely drives the copyright industries is popular entertainment and more and more blockbusters at that. (The book Blockbusters: Hit-making, Risk-taking, and the Big Business of Entertainment by Anita Elberse does a good job of capturing those themes and placing them in the context of practical economic copyright theory.)

The internet fundamentally changed the distribution of works of authorship more than anything else. Never before was it possible to instantaneously reproduce and distribute copyrighted works.

Mr. Baldwin correctly acknowledges that “digital techniques of reproduction changed everything,” but does not peer much beyond the present. In his discussion of open source/open access, he does capture a point some others miss when he says:

The open access activists in all nations position themselves as enemies of rights owners and especially the content industries, which seek to make private property of something that should, in their view, rightly belong to all. The strength of the open access movement in the universities reflects not just a general ideological penchant for widespread enlightenment (undergirded, of course, by salaries, benefits, and tenure) but also bitter experience with the grasping overreach of academic periodical publishers.

Yet, paradoxically, he seems to be against copyright controls when he later says in the same paragraph that “complacency” about the current access of content and data “ignores the data sluice gates that could today be opened for the Third World — were it not for rights owners’ prerogatives.”

Surely open source, open access, remixing, and the blurring of the traditionally defined roles of author and publisher, artist, and company have changed the copyright conversation more than anything else to date. Whether opportunity or challenge, the rules of the copyright world are being shaken, stirred, and remixed right in front of our eyes. The challenge, which Mr. Baldwin evades, is thus more acute than ever. How can individual creators in any medium earn enough money to be full-time creators if they are not also academics, trust fund babies, supported by princes or other patrons, or lawyers? There have always been (and there will always be) the Bohemian Rodolfos who end up burning their unknown works for the warmth of the fire or out of frustration. I’ll argue that artists had their financial heyday in the mid- and late 20th century when a broad base of creators could receive revenue in many fields. Still, with the ability of technology to convey works of creativity to virtually everyone on the planet, the potential to create a new system to reward and incentivize creativity can be greater than ever if we can properly guide the evolution of the worldwide copyright system.

Baldwin is better as a compiler of historical details (and he is very good at that task) than as a philosopher or prognosticator of copyright. One really can’t tell what Baldwin thinks a creator, an author, or a publisher is to do, other than to take part (and to observe) what may be full-scale wars or just a series of free-for-alls across the Atlantic — and perhaps to await the increasingly important influence of China, Japan, and others across the Pacific.

What do the wars that Baldwin cites teach us? First, that the historical roots of copyright dogma and philosophy in both the US and Continental Europe still inform the differing positions that arise as copyright debates rage. Second, it’s easy to feel adrift amid the changing waters, and this book charts where we’ve been and where we are. Third, anyone who is angry about copyright law will find company, because Baldwin surely has a sense of outrage.

Copyright policy and outrage are in the news. Taylor Swift’s July Wall Street Journal pro-copyright op-ed piece emphasizing the value of art and her recent decision to pull all her tracks off the streaming service Spotify — and the resulting howls of protest — illustrate that copyright law touches nerves. Despite the criticism she is taking from some bloggers, Ms. Swift’s opinion and control over her works are entirely compatible with both US and Continental copyright policies. She has every right to control when and where her works appear and to protect her revenue stream as she sees fit. That spirit is also at the core of open source — creators decide whether to make their copyright works freely available or maintain them as proprietary. That’s what control over copyright means.

At the end of his book, Mr. Baldwin expresses his own outrage and calls for an end to the expansion of intellectual property rights, saying 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.”

It’s a book I wanted to love, because its premise is original and Mr. Baldwin obviously knows his copyright history. The book is somehow unsatisfying in its effort to tie together the themes of geography, politics, and creativity.

What is the answer to his call for a new battle, even a war, on these perceived copyright ills? That part is unclear. Some may call the development of copyright in various places in the world “wars,” because there are people on opposing sides in the debate with opposing points of view. But to a large extent, it’s much more like an evolution. I submit that society benefits when the best creative spirits can be full-time creators and not part-timers doing whatever else (other than writing, composing, painting, etc.) they have to do to pay the rent. Self-publishing can guarantee that hundreds of thousands of authors can self-publish, but it cannot come close to promising that the best books and readers have much of a chance to find each other across the country and across the oceans. That’s always been a challenge, but it is more daunting today than ever. All things are possible now, but one of the biggest questions is: will creativity, technology, and copyright work in harmony to promote not only the distribution of content, but also the cultural enrichment of us all? How can we take part in helping the system evolve to make that happen?


Mark A. Fischer is a Partner in the Boston and New York offices of Duane Morris LLP and teaches Advanced Copyright at Suffolk University Law School.

LARB Contributor

Mark A. Fischer is a Partner in the Boston and New York offices of Duane Morris LLP. His law practice is focused on solving problems and making deals for innovative companies, institutions, and individuals. He has particular experience in US and international copyright, entertainment law, licensing, celebrity representation, copyright litigation, arbitration, patent licensing, open source, privacy, and trademarks. Mr. Fischer co-teaches Advanced Copyright at Suffolk University Law School and has previously served as an adjunct faculty member, teaching intellectual property and entertainment law courses, at Berklee College of Music, Boston College Law School, Northeastern University School of Law, and New England School of Law. He is editor of the Duane Morris New Media and Entertainment Law blog. He is the co-author of Perle, Williams & Fischer on Publishing Law (4th Edition), published by Wolters Kluwer Law & Business. You can read his professional biography here:


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