How Europe won the copyright wars

Der folgende Gastbeitrag basiert auf dem Vortrag, den Peter Baldwin vergangene Woche bei der Veranstaltung „The Copyright Wars“ im Rahmen der „neuen Weltbühne“ in Berlin hielt. Peter Baldwin ist Historiker und Professor an der University of California, Los Angeles. Im iRights.info-Interview spricht Peter Baldwin über Open Access.

In the 18th century, battles of the booksellers were fought in England, France and Germany. Publishers supported the idea that works belonged to authors like property, because that way they could buy them from authors and own them forever. Strong authorial rights were supported by both writers and their publishers in a way that would, if successful, have eliminated the public domain altogether.

Half a century later, in the 1830s, came the battle in Britain over how long authors and rights holders should enjoy their claims. A titanic parliamentary struggle was fought over five or six years. The British copyright term then was 28 years after publication, or life. Thomas Talfourd, Member of Parliament, wanted to give authors a juicy extension of that to 60 years postmortem.

Thomas Babington Macaulay, the famous historian, was one of the great orators of all times and carried parliament with him with a series of speeches that remain classics to this day. He charged that long copyright terms were „tax on readers for the purpose of giving a bounty to writers.“ Broadly speaking, his position won.

U.S. ripped European literature off on an industrial scale

In the 19th century, America debated copyright endlessly. First and foremost, the Americans did not have copyright for foreign authors. It was deliberate government policy to pirate European literature. Since they did not extend copyright to foreign authors, books could be made cheaper.

The United States had the world’s largest literate reading public and the biggest publishing industry by far and it ripped European literature off on an industrial scale. It was the China of its day, but even more so, because it made a political virtue of piracy. The Americans claimed that piracy was part of democracy and universal enlightenment, and that what they were doing was socially justified. The Chinese do not pretend that they are doing anything other than making money.

Print runs of books in America were generally four times the size of the British, and they cost only a quarter of the London price. American books were so inexpensive that they were often bought for a railroad journey, then thrown away. Charles Dickens novels were printed on the back of train tables. Entire novels were printed on broadsheets like New World and Brother Jonathan. The cost of a year’s subscription was a dollar, much less than a single novel at British prices.

American piracy didn’t affect just the English. German Americans were able to read Goethe and Schiller in cheaper editions than could Germans in Germany. That might be OK for the classics of the 18th Century, but it held equally for then living authors, who were also being pirated by the Americans.

Johann Dietz, founder of the publishing company, was so frustrated that he said to the Americans, „If we pay for your wheat, then you damn well have to pay for our literature.“ In conclusion: We are not only fighting copyright wars now, we have been doing so from the very beginning of copyright, back in the early 18th century.

Who won the copyright wars?

The first thing to note is that, at the most general level, primary authors and disseminators have been the undisputed victors. If we look at the duration of the protection received by rights holders, authors and disseminators, their claims have gone ever upward.

Copyright terms started as quite modest: 14 years after publication in the first English copyright law of 1710 and the first US law of 1790. But they have increased merrily ever since then. Today in all EU nations and the U.S. they are 70 years postmortem for a normal copyright term. The author owns his work in most cases for well over a century.

The Berne Union as main international copyright union

The most recent leap taken upwards in durations came in the 1990s. The Berne Union is the main international copyright union. Its minimum term is 50 years post mortem. In 1993, the EU decided to extend that by two decades to 70 years, and in 1998 the U.S. followed suit.

In the American debates, it is commonly thought that this was a reform undertaken as part of a nefarious plot by Hollywood to expand its property rights. The bill that extended copyright terms to 70 in the U.S. is the so-called Sonny Bono Act, named after the singer and then Republican congressman and eager defender of long terms. It is often referred to as the Mickey Mouse act, because Disney lobbied extensively on its behalf.

The Bono act: a sad attempt by the Americans to keep up with the EU

The content industries support term extensions. But the Bono act was the sad attempt by the Americans to keep up with the EU. American rights holders eagerly sought the same long terms as the Europeans. The Europeans, in turn, were following the ever upward ratchet effect of increasing protection that in this case had been inaugurated entirely unilaterally by the Germans in 1965.

The 1965 copyright law passed in the Federal Republic was based on a bill drawn up during the Nazi regime in 1939. This, the postwar Germans now tweaked and finally passed. Hitler’s regime had adopted the 50 year term in 1934. Richard Strauss, head of the Reichskulturkammer, had been an enthusiastic supporter of long terms.

Now, after the war, reformers wanted to demonstrate that the Federal Republic had turned its back on the Third Reich’s totalitarian populism and show how supportive they were of high culture. They adopted an extra 20 years for authors in part to dampen down eager opinion in Germany that was still lobbying for perpetual authorial rights. 70 year terms were meant as a compromise for everlasting terms.

The longest term within the EU became the norm

Once this had passed, no nation in the EU could stomach the prospect of facing down German authors and especially the powerful German publishing industry to get shorter terms. Thus the longest term then in effect within the EU became the norm for all EU nations, and from there also for the U.S.

The length and duration of copyright is only the most convenient way of looking at the increasing claims that have been granted authors and rights owners. In all other respects, too, these have become ever stronger. Copyright has also broadened to all sorts of new works. It began by covering mainly books. But it was extended also to engravings, paintings, maps, sculptures, photos, speeches, musical compositions, architecture, and then eventually in the past century, to sound recordings, films, computer programs, databases.

At the same time, authors’ claims also deepened. Not only was each kind of work protected against verbatim copies, but variations and derivations of works were also increasingly covered. In the beginning only verbatim, exact copies of printed works were protected. Thus in the beginning, translations were permitted. They were considered new and separate works.

But starting already in the early 19th century, translations fell under the author’s control as derivative variations of his original. That expansion then continued so that the author received protection for largely all derivations: etchings of paintings or sculptures, dramatizations and filmatizations of novels.

Which issues are contemporary battles fought over?

So rights over intellectual property lengthened, broadened and deepened. In these respects primary authors and disseminators have agreed: both liked ever stronger and more expansive rights to works. But in another respect, authors alone have also won, in ways that annoyed disseminators.

Primary authors wanted aesthetic control that remained with them even after they had assigned the economic rights to their works. This aesthetic control they received starting in the late 19th century, when authors were given what came to be known as moral rights to works.

Moral rights were powers granted only to the author, not to the rights holder that he sold his work to. They cannot generally be transferred to disseminators. That means that they curb the author’s ability to fully alienate his work. He is simply forbidden by law to transfer all his rights to assignees.

There are four main moral rights: disclosure, attribution, withdrawal and integrity. The overall thrust of moral rights is to continue aesthetic control over works even after the author has sold them. Not only does he retain them, but in some nations, like France, he and then his estate and his heirs, retain the moral rights perpetually.

Anglo-Saxon copyright vs. authors’ rights in Europe

Historically seen, there have been two basic approaches to authors and their intellectual property. First, the copyright system of the Anglo-Saxon nations, and second, the authors’ rights approach in the major continental nations, especially France and Germany. Traditionally, the copyright systems have not given authors much control over their works.

Copyright has emphasized the efficient exploitation of works, their complete alienation out of the author’s control and into the hands of disseminators and their quick transfer to the public domain. In contrast, the authors rights’ systems have taken the author as their focus, and they have given them broad and extensive powers both of ownership and control. They have accordingly discounted the demands of the public.

The long history of copyright over the past two centuries has been the gradual erosion of the Anglo-Saxon copyright system and the triumph of European authors rights. The usual view is of European victimhood to American cultural hegemony. But in this case, the opposite is more the case. Four instances of how this is so: moral rights, duration, formalities, fair use.

Moral rights

Moral rights were part of the post-war reform of French and German legislation that was intended explicitly to show how different the continental nations were from the Anglo-Saxons and their mercantilist view of culture. In the meantime they were hotly resisted in the Britain and the U.S. as a needless concession to vain artists that hobbled the efficient exploitation of works. But in the end, as part of membership of the Berne Union, moral rights were grudgingly adopted also in the Anglo-Saxon nations in the 1980s, kicking and screaming the whole way.

Duration terms

Duration terms have increased relentlessly and nations have adopted long terms at different speeds. Britain and the US have had shorter terms than France and Germany and have adopted longer ones only after pressure from Europe and always following the European example. The U.S. has always had a shorter term than the European nations, until it caught up at each extension. Britain had a longer term than the French or the Germans only on a few very short occasions.

Formalities

The Anglo-Saxon copyright systems traditionally imposed formalities of various sorts before the author was allowed to claim copyright: registering the work, affixing notice of copyright, depositing the work, and the like. In the Anglo-Saxon systems, the point of formalities was to ensure that only those works worth jumping hoops for were kept in private hands and out of the public domain. In the European systems, in contrast, formalities were an abomination. They were an artificial hurdle that stood between authors and their ability to claim their natural rights to their works.

In Anglo-Saxon copyright, in effect, the work was born in the public domain and only those works worth protecting were in fact copyrighted. In the European authors rights systems, all works are born as the private property of the author and become public domain only when protection finally expires.

Here too, the European approach has triumphed. As of 1908, the Berne Convention required that all works be protected from the moment of their creation, without any formalities. That means that today every doodle, scribble and bathtub aria is now protected from the moment of its inspiration without further ado. The UK fell into line already in 1911. The U.S. did so starting in 1976, as it was slowly preparing for membership of the Berne Union.

Fair use

Finally, and most briefly, fair use: Fair use are the exceptions to their exclusive rights that are forced on authors and that they have to tolerate. Thus, for example, special editions of works are allowed for the handicapped, in braille or large letters, or nowadays in audio versions. Or excerpts can be made for teaching and research purposes.

The general rule is that fair use is much more extensive in the US and to some extent also in the UK than it is in France or Germany. Thus, for example, editions for the handicapped are written into the core of US copyright law. In France, in contrast, the handicapped are allowed to „consult“ works designed for their use only for strictly private purposes and only on the premises of authorized publicly accessible establishments like libraries, museums and archives. The handicapped wishing to use such works have to prove their entitlement through elaborate procedures and the institutions that facilitate their access were closely monitored – a very restricted right.

Victory of the European approach

In most respects, then, the European approach has won out: long durations, no formalities, moral rights, a very limited application of fair use.

The victory of the European approach was nailed fast when the Americans broadly adopted it. That happened in the 1990s, under the Clinton administration. And it did so thanks to the conversion of the content industries. Bill Clinton had been elected with strong support from Hollywood and it was now the film and music industry’s interests which triumphed.

It was precisely the passage of the American legislation of the 1990s that sparked the latest wave of the copyright wars. Because the new legislation went against the grain of the US copyright tradition, with its emphasis on the public domain, the battles were furious in America. Content corporations fought downloaders and tried to pass laws that would secure their rights.

At the same time this battle was being fought out in America, in Europe, the digital age had not yet not prompted official opinion to change much, if at all. It still remained government policy in France and Germany to support the inherited authors rights tradition and to emphasize strong rights for authors and their assignees. That is why the copyright wars in Europe have come later than they did in the U.S. And it is why they have prompted the rise of Pirate parties to fight the battle from outside the establishment.

Why today’s wars?

The protection in law of intellectual property grew both longer, stronger and more expansive over the three centuries from the first copyright law in 1710. Authors and their allies in the content industries would have us believe that this is a perfectly normal development that we should not object to. But precisely how bizarre this development is can be seen by comparing the treatment of intellectual property with conventional property. Intellectual property has been treated very differently, indeed oppositely, to what occurred with conventional, tangible property, especially real property.

During the Enlightenment, conventional property was heralded as a natural right. The point of the state was to preserve it. But since then it has been massively subordinated to society’s strictures, starting at the latest in the 20th century. Taxation, eminent domain, health and safety regulation, rent control and the like have all cut into the rights of owners of conventional property. There is very little left of the natural right understanding of conventional property. Nothing remotely like this has happened to owners of intellectual property.

Today’s copyright wars are saying, enough. Things have gone too far. Rights holders do not need even stronger or longer property claims. They have plenty already. And seen historically, they are right.