The Copyright Wars

The Copyright Wars: Three Centuries of Trans-Atlantic Battle

Peter Baldwin
Copyright Date: 2014
Pages: 552
https://www.jstor.org/stable/j.ctt6wq0z2
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  • Book Info
    The Copyright Wars
    Book Description:

    Today's copyright wars can seem unprecedented. Sparked by the digital revolution that has made copyright-and its violation-a part of everyday life, fights over intellectual property have pitted creators, Hollywood, and governments against consumers, pirates, Silicon Valley, and open-access advocates. But while the digital generation can be forgiven for thinking the dispute between, for example, the publishing industry and Google is completely new, the copyright wars in fact stretch back three centuries-and their history is essential to understanding today's battles.The Copyright Wars-the first major trans-Atlantic history of copyright from its origins to today-tells this important story.

    Peter Baldwin explains why the copyright wars have always been driven by a fundamental tension. Should copyright assure authors and rights holders lasting claims, much like conventional property rights, as in Continental Europe? Or should copyright be primarily concerned with giving consumers cheap and easy access to a shared culture, as in Britain and America?The Copyright Warsdescribes how the Continental approach triumphed, dramatically increasing the claims of rights holders. The book also tells the widely forgotten story of how America went from being a leading copyright opponent and pirate in the eighteenth and nineteenth centuries to become the world's intellectual property policeman in the late twentieth. As it became a net cultural exporter and its content industries saw their advantage in the Continental ideology of strong authors' rights, the United States reversed position on copyright, weakening its commitment to the ideal of universal enlightenment-a history that reveals that today's open-access advocates are heirs of a venerable American tradition.

    Compelling and wide-ranging,The Copyright Warsis indispensable for understanding a crucial economic, cultural, and political conflict that has reignited in our own time.

    eISBN: 978-1-4008-5191-1
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. Introduction: THE AGON OF AUTHOR AND AUDIENCE
    (pp. 1-13)

    In 1948 several Soviet composers, including Dmitri Shostakovich, objected to the use of their music in an American spy film,The Iron Curtain, that was distinctly anti-Communist. These Soviet composers understandably feared the gulag for appearing in Hollywood’s first Cold War effort.¹ Though their music was unchanged, they protested its political use. When Shostakovich sued in the United States, he failed. The works were in the public domain, thus freely available for anyone’s use, the composer had been credited, the film did not claim that he agreed with its views, and the music had not been distorted. How, the court...

  4. 1 The Battle between Anglo-American Copyright and European Authors’ Rights
    (pp. 14-52)

    Works are created by their authors, reproduced and distributed by their disseminators, and enjoyed by the audience. These three actors, each with their own concerns, negotiate a delicate dance. Most generally, all must be kept content: the author productive, the disseminator profitable, and the audience enlightened. Get the balance wrong and things fall out of kilter. If authors become too exacting, the audience suffers. If the disseminators are greedy or the audience miserly, culture and eventually the public domain dessicate. But within these extremes there is much room for adjustment. Will copyright laws take as their first task protecting authors?...

  5. 2 From Royal Privilege to Literary Property: A COMMON START TO COPYRIGHT IN THE EIGHTEENTH CENTURY
    (pp. 53-81)

    By the mid-nineteenth century, copyright and authors’ rights had begun to diverge. But in the eighteenth century Britain, the United States, France, and Germany (which passed laws in that order) shared much the same goals. Everywhere, legislators sought to curb publishers’ privileges and vest rights to works instead in their authors. All regarded works as property justified by natural rights because of the authors’ labor. Authors, all agreed, were entitled to benefit when they sold their works to publishers. To stave off the expropriation of their royal privileges that this threatened, publishers advanced the same logic of natural rights. Since...

  6. 3 The Ways Part: COPYRIGHT AND AUTHORS’ RIGHTS IN THE NINETEENTH CENTURY
    (pp. 82-125)

    Are literary rights a form of property—like a house or a farm—to be enjoyed in perpetuity? That was certainly the argument that nineteenth-century authors and publishers put about. Authors’ property rights in their works were partly embodied in laws passed by the early nineteenth century, first in Britain and then in the United States, France, and Germany. Authors insisted that literary and conventional property were analogous. Rights to their works should thus last forever. Most lawmakers, however, were unconvinced by such special pleading. Their mandate included society as a whole, not just rights holders. The first laws therefore...

  7. 4 Continental Drift: EUROPE MOVES FROM PROPERTY TO PERSONALITY AT THE TURN OF THE CENTURY
    (pp. 126-162)

    The stakes rose in the nineteenth century as authors and their assignees were given increasingly extensive rights to ever more different kinds of works, as well as the derivations shaped by others out of their primary creations. Earlier, authors had controlled only verbatim copies of their writings. Anything else—translations or abridgements, for example—did not infringe. As they gained power also over derivative works, it was no longer just the authors’ expression of their ideas that was safeguarded. The work’s protected essence now had to be defined also across its incarnation in various media. Authors thus gained rights over...

  8. 5 The Strange Birth of Moral Rights in Fascist Europe
    (pp. 163-198)

    The author’s moral rights were formulated in case law and jurisprudence during the latter half of the nineteenth century. But only during the years between the two world wars were they embodied in statute. Fascist Italy put them on the books in 1925. At the instigation of Mussolini’s government, they became part of the Berne Convention in 1928. The Nazi regime in Germany discussed authors’ rights extensively, but its only major reform was extending protection from thirty to fifty years postmortem. The totalitarian regimes of the 1930s were curiously ambivalent. As part of their vitalist political ideologies, the fascists prided...

  9. 6 The Postwar Apotheosis of Authors’ Rights
    (pp. 199-261)

    Moral rights and their veneration of the author had a long and complex history. Kant and Fichte’s concept of a personalist connection between artist and work, not beholden to property, had dovetailed with the Romantic view of the artist. Yet such an individualized approach to authors’ rights was legislated only when populist politics turned to totalitarian excess during the interwar years. The Italian Fascists made moral rights part of the Berne Convention. The Nazis, too, folded moral rights into their fluid ideology and opportunistic policies to support the heroic creative personality they considered exemplary of their new regime. Yet—rhetoric...

  10. 7 America Turns European: THE BATTLE OF THE BOOKSELLERS REDUX IN THE 1990s
    (pp. 262-317)

    In the postwar era the idea that intellectual property was a variant of conventional property, therefore to be extensively protected, achieved its epitome. And yet at the same time, the shift to a personalist interpretation of authors’ rights had partly supplanted this property-based view. Inalienable moral rights of the kind passed in France and Germany in the 1950s and ’60s stayed with authors even after their work was sold, thus contradicting market logic. Nonetheless, in a broader sense personality-based rights rested on the same logic of natural rights as property. Thanks to authors’ efforts, their works belonged firmly to them...

  11. 8 The Rise of the Digital Public: THE COPYRIGHT WARS CONTINUE IN THE NEW MILLENNIUM
    (pp. 318-382)

    In our new millennium we are once again caught in the crossfire between rights owners—authors and assignees—and the audience. Digitality has both promised untrammeled access and strengthened the grip of owners on their property. At the extremes digital millennialists do battle with copyright fundamentalists. Binary technologies have changed the game, claim the millennialists. Allowing universal and largely costless access to all knowledge, they transform creativity into a collective endeavor, expose how all works are ultimately derivative, and outmode private ownership and individual control. Poppycock, retort the fundamentalists. No system has stimulated creativity more than individual property rights traded...

  12. Conclusion: RECLAIMING THE SPIRIT OF COPYRIGHT
    (pp. 383-410)

    Anglo-American copyright and European authors’ rights have dealt in distinctly different ways with the social role of creators, their control over works, and the audience’s demands for access. Seen historically, authors submitted to the dictates of social utility more in the copyright systems, alienating their works largely to disseminators and losing them earlier to the public domain. On the Continent they retained stronger and more expansive rights for longer, indeed sometimes perpetually.

    The cultural assumptions that underlay such distinctions also varied. Both the natural rights idea of property and Romanticism’s veneration of the solitary artist had firmer roots on the...

  13. Acknowledgments
    (pp. 411-412)
  14. Notes
    (pp. 413-512)
  15. Index
    (pp. 513-536)