Rights of Ownership Peter Baldwin traces the myriad lines between intellectual property and public domain.

The Copyright Wars: Three Centuries of Trans-Atlantic Battle

Peter Baldwin (2014, Princeton University Press) 535 pages, including bibliographical references and index

In 1990, on a delayed train from Manchester to London, J.K. Rowling conceived of Harry Potter; in 1995, she finished her manuscript of Harry Potter and the Philosopher’s Stone. Two years later, Bloomsbury published an initial run of 1,000 copies and launched the most successful book series in history. But without a copyright law to protect her work, would Rowling have endured years of penury to write Harry Potter? Would Bloomsbury agree to publish her book? Perhaps. After all, few writers and publishers expect to make money on children’s books. And, while only a “blockhead ever wrote, except for money,” writers, especially great ones, tell stories of writing for compulsion, love of creation, and, of course, recognition.

What makes Rowling’s Harry Potter different from other types of property? For economists, intellectual property like Harry Potter possesses a “public goods” aspect; once a work is written, it can be copied cheaply and enjoyed without diminishing the enjoyment of others. Without copyright protection, artists, writers, musicians, choreographers, directors, and publishers have little financial incentives to create and distribute their works; yet, once created, copyright protection raises the costs of public enjoyment. Thus, copyright law must balance the social benefits from new works against the social costs of accessing existing works. Getting the law right is a non-trivial problem as by one estimate, over 40 percent of the market value of American firms is composed of intellectual capital.

In The Copyright Wars, Peter Baldwin explores the evolution of copyright laws in Europe and the United States over three centuries. In particular, Baldwin explores the nature and the causes of the divergence and convergence of copyright laws between the Anglophone (United Kingdom and United States) and the Continental nations. The book ends with an examination of the impact of the digital revolution on the current copyrights debate.

The origin for modern copyright laws is traced to the invention of the Gutenberg printing press. By significantly lowering the costs of copying and printing, the press created a market for intellectual capital. Everywhere, the Crown and ruling elites had political and economic interests in controlling printed information and sharing its monopoly rents. In Britain, a printer’s guild known as the Stationer’s Company gained royal monopoly privileges. In 1710, however, the Parliament, in an attempt to increase competition, implemented the first modern copyright law—the Statute of Anne. Copyright laws gave authors or their assignees the rights over verbatim copies for 14 years, renewable for another term by a living author. When the rights expired, the works became property of the public domain. Remaining unprotected were derivative works such as translations, abridgments, and use in other media. In the 18th century, according to Baldwin, similar copyright laws emerged in America and elsewhere in Europe.

In the 19th century, copyright laws were extended in length, to derivative works and to additional media such as music, maps, charts, sculptures, paintings, photographs, and dramatic works. But balancing these extensions in Anglo-America were two doctrines, “fair use” and “compulsory licensing,” that lessened the costs of accessing intellectual property. By contrast, on the Continent, according to Baldwin, stronger notions of copyright emerged where these doctrines were seen as violation of authors’ natural rights. Still, Continental copyright remained a property that could be alienated.

The origin for modern copyright laws is traced to the invention of the Gutenberg printing press. By significantly lowering the costs of copying and printing, the press created a market for intellectual capital. Everywhere, the Crown and ruling elites had political and economic interests in controlling printed information and sharing its monopoly rents. … In 1710, however, the Parliament, in an attempt to increase competition, implemented the first modern copyright law—the Statute of Anne. Copyright laws gave authors or their assignees the rights over verbatim copies for 14 years, renewable for another term by a living author.

Complete divergence between Anglo/Continental came in the first half of the 20th century as the Continental nations embraced authors’ moral rights or “droit moral.” Unrelated to morality, moral rights, according to Baldwin, is anti-copyright as it subordinates law of property with author’s aesthetic interests. Under moral rights, author has the sole right to decide when and how his/her work appears and can protect the work from changes without approval. Importantly, moral rights continue even after the author has sold his/her economic right or “droit de suite” and is inheritable even for perpetuity in France and Italy. In the second half of the 20th century, as the UK and US moved closer to the Continental model, international copyright laws converged again. The attack on the public domain of intellectual property was complete.

What factors account for the divergence and convergence of copyright laws over time and across nations? To his credit, Baldwin explores the roles of technological innovations (printing, phonograph, movies, TV, Internet), culture (Romanticism, cultural pessimism), political and legal institutions (democracy, socialism, fascism), globalization, and the economic incentives of writers, publishers and the audience. On the other hand, Baldwin’s analysis is not always consistent and rigorous. Additionally, despite a large notes section, it is difficult to decipher what aspects of his book are original or derivative, especially for a non-expert reviewer.

How did differences in political and legal institutions affect copyright laws? Baldwin’s analysis tends to be case-specific rather than systematic. First, he writes that the political fragmentation of the Italian and German state systems effectively ruled out literary property before their unifications. Second, he believes that the US and UK passed utilitarian copyright laws because they were more democratic, which caused their leaders to cater to the needs and demand of the expanding literate public. France, with its limited suffrage, promoted authors’ rights in support of the desires of authors and publishers. Third, Baldwin notes that moral rights emerged from German and French legal system rather than British common law.

Fourth, Baldwin emphasizes that the fascist regimes during the interwar years were the first to pass statute laws for moral rights. Mussolini’s Italy was at the forefront of the moral rights campaign. When it placed moral rights on the agenda of 1928 Berne Convention held in Rome, the Continental moral rights law spread internationally. The position of Nazi Germany, however, was more nuanced as it supported the rhetoric of moral rights but ultimately favored the primacy of the collective audience. In fact, according to Baldwin, the true Nazi position was closer to Anglo-American copyrights. In large measure, Baldwin argues that the post-war European democracies, France and Germany, adopted strong moral rights laws as a reaction to the policies of Nazi Germany.

Culture also played a role in the march toward stronger authors’/moral rights. In the 19th century, Romanticism that viewed authors as individual geniuses led to expansion of copyrights and the emergence of authors’ rights. In the interwar years, Baldwin argues that moral rights emerged to defend the rights of intelligence and sensibility and to combat the rise of the malaise of “moral pessimism” that many felt characterized modern life. As Western Europe felt culturally overshadowed by the new East Bloc’s resemblance to fascism and West European/American glitzy Hollywood, it sought to protect and preserve its own culture through moral right protection of its authors.

However, Baldwin argues that the most compelling factor for understanding the three centuries of copyright laws is the divergent interests of writers/publishers and the public. Since the public faces considerable “collective-action” problem as compared to publishers in the political market, the evolution of copyright laws is more likely to reflect the changing interests of authors/publishers. For example, in the 19th century, when US publishers mainly pirated and printed British works, they had few incentives to adopt strong copyright laws; however, when the US became a cultural exporter in the 20th century, its position reversed.

Today, the digital revolution and internationalization of intellectual property has renewed the debate over the costs and benefits of copyright laws. The stakes of the debate are high. For Baldwin, the Anglophone copyright laws promoted authors’ creativity as well as innovation and dissemination of intellectual property for the benefit the public domain. By contrast, the Continental author’s/moral rights protect the creator’s vision from commercialization and exploitation by restraining distribution, inhibiting experimentation and public exposure. Anglophone copyright is a utilitarian, man-made statute; Continental author’s right is a basic natural right regardless of economic costs to authors and the public.

Baldwin’s Copyright Wars is an interesting and readable account of the evolution of international copyright laws. Baldwin presents both a sweeping theoretical account for the divergence and convergence of copyright laws between the Anglo-Saxon and the Continental nations as well as presentation of numerous interesting cases that sometimes undercut those generalizations. Yet, as a scholarly work, the author needs to provide a more rigorous evidence for his hypotheses and a greater discussion on how the work fits into the large existing literature on copyright.

I have a few comments.

First, in assessing the impact of copyright laws, it may not be enough to examine the written law over time and space. Differences in political/legal institutions, technology, and market structure may significantly affect the actual costs and benefits of copyright laws. Indeed, this is one source of contradiction in Baldwin’s work. For example, what does it mean for fascist regimes to pass statute law giving moral rights to authors? Does it truly mean that authors have legal rights even if their views diverge from the state? Or, were these laws a rhetorical device with a large bark and little bite? The problem appears in Baldwin’s writing: “The Nazi pogroms and terror quickly turned Germany into a cultural desert. Yet, the regime was convinced that it had managed to balance the interests of authors and their audience.”

Enforcement costs of copyright laws may vary between common law and civil law nations. And, even between the US and UK, despite their similarities, the actual costs and benefits of copyright laws may vary because of their diverging market structures. For example, in the 19th century, the printer’s market was highly competitive in the US, but in the UK, the Stationer’s Company continued to enjoy considerable market power over registration.

Second, can moral rights be explained by economic incentives of authors and publishers? Who gains and who loses under moral rights? Unless it provides incentives for new works, the public is certain worse off. Do authors and publishers benefit? Because a work is not alienable, it is less valuable for a publisher who will, in turn, offer a lesser price to the author. Thus, under moral rights, everyone may be worse off. Then why did nations adopt moral rights?

Catherine Seville in The Internationalisation of Copyright Law: Books, Buccaneers, and the Black Flag in the Nineteenth Century (2006)offers an alternative view that might explain why nations adopted moral rights. Seville contends that international piracy played a major role in shaping both domestic and international copyright laws. In the 19th century, French authors suffered from pirated and smuggled copies of their works from Switzerland, Germany, Holland and Belgium. By invoking natural or moral rights, Seville argues that France unilaterally provided protection to all foreign works regardless of national boundaries and it did so to pressure other nations to adopt similar laws.

… is intellectual capital in the public domain socially productive? Do countries with better copyright laws grow faster? Or produce a more artistically and culturally dynamic society? Unfortunately, we have far more theories and conjectures than systematic data analysis …

Finally, Baldwin’s assessment of the costs and benefits of copyright laws is largely based on anecdotal evidence. While reading famous cases from Stravinsky to Joyce is entertaining and interesting, the debate over intellectual property deserves a serious examination of systematic and comprehensive empirical evidence. Sadly, there seems to be a dearth of credible empirical works on copyright laws.

There is some evidence that lengthening copyright laws raises prices of intellectual property such as literary works. But do these laws increase the quantity and quality of new works? Copyright laws tend to be uniform and cover a variety of different types of intellectual property such as literary works, textbooks, movies, photos, and software codes. What are the costs and benefits of a uniform law? And, most importantly, is intellectual capital in the public domain socially productive? Do countries with better copyright laws grow faster? Or produce a more artistically and culturally dynamic society? Unfortunately, we have far more theories and conjectures than systematic data analysis as in Zorina Kahn’s The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920 (2005).

To be sure, Harry Potter is not great literature, not Ulysses nor Infinite Jest. But as I bond with my daughter, reading and watching Harry Potter, one cannot help feeling that the world is immeasurably better for J.K. Rowling’s creation, especially for children who may have lost one or both parents. Without copyrights, one can hardly imagine the creation of the entire Harry Potter series and their movies. Yet, the suspicion that copyright laws are socially costly may also prove to be true especially if intellectual capital in the public domain fosters invention and creativity. Can societies pass better copyright laws? I am not so optimistic. Yet, a blueprint for a solution might exist. Our greatest creators of intellectual capital, our colleges and universities, were founded and continue to operate with the help of private giving. If intellectual capital in the public domain is socially productive, then perhaps individuals and foundations can purchase important copyrights and share them freely with the public.

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