Rebecca Tushnet

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: 

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.