The Copyright Wars

Three Centuries of Trans-Atlantic Battle

PRINCETON UNIVERSITY PRESS

Contents

The Battle between Anglo-American Copyright and European Authors' Rights

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? Or will they consider the audience and the public domain also as important? Seen historically, that has been the fundamental choice faced as copyright developed in the Anglo-American world and in the major continental European nations, France and Germany. Each position has much to recommend it: public enlightenment for one, nurturing high-quality culture for the other. Neither can exist alone. The choice between them has never been either/or but always a question of emphasis, a positioning along a spectrum. And yet the battle between these views has also been what the Germans call a Kulturkampf, a clash of ideologies and fundamental assumptions, that has stretched back well over two centuries.

The laws governing how artists, writers, musicians, choreographers, directors, and other authors relate to their works are usually called "copyright" in English. But this one word covers two different approaches. The very terms used to designate the European "authors' rights" alternative—Urheberrecht in German and droit d'auteur in French—voice a more encompassing approach. To capture it as we examine how these two approaches arose and evolved, this book will attempt consistently to call the Anglo-American approach "copyright" and the continental European view "authors' rights."

Copyright and authors' rights take very different approaches to authors and their social role. Seen historically over its long development, copyright has focused on the audience and its hopes for an expansive public domain. Authors' rights, in contrast, have targeted creators and their claims to ensure the authenticity of their works. Copyright's defenders see it as imbued with the spirit of the common good. Copyright promotes authors' creativity to benefit the public domain, allowing rights owners to exploit works efficiently. For its detractors copyright is philistine and commercial, treating noble creation as a mere commodity. It regards the creator as an entrepreneur and the work as a product.

The authors' rights tradition, in turn, valiantly protects the creator's vision from commercialization and exploitation. It claims to rest on the eternal verities of natural rights and regards copyright as a utilitarian, man-made creature of statute. For its detractors the authors' rights approach indulges seemingly whimsical artistes at the expense of the public. Its culturally conservative insistence that the creator retain the final say on a work's form hinders collective and collaborative efforts, let alone acknowledgment of the audience's role in determining a work's meaning. From this vantage the authors' rights approach embodies in statute an outmoded Romantic notion of the individual artiste, alone in a garret, dictating how his genius should be venerated. Copyright encourages innovation and promotes dissemination. Authors' rights restrain distribution, inhibiting experimentation and public exposure. Authors' rights speak for creators, while copyright favors disseminators and interpreters and ultimately the audience.

Copyright sees culture as a commodity. Its products can be sold and changed, largely like other property. But the authors' rights, especially their "moral rights," run counter to the market. Inalienable claims, they remain with the creators or their representatives even if they conflict with the commercial ambitions of the rights owners. The authors' rights ideology sees itself speaking for high culture. It is elitist and exclusive, while copyright is democratic and egalitarian. Copyright gives authors a limited economic monopoly over their work to stimulate their creativity, eventually enrich the public domain, and thereby serve the public interest. Private interests are thus subordinated to the public good. Authors' rights, in contrast, make no attempt to serve the public good as such, except tangentially insofar as happy authors better society.

The Continental ideology assumes that the author's and the audience's interests do not contradict each other directly. The public eventually benefits when authors are treated well. But copyright's adherents see a tense negotiation between author and audience. In their utilitarian calculation the public domain is served by protecting authors only as necessary to keep them contented and productive. Rewarding authors is not the goal but only the means to further their productivity. Social goals are preeminent, and the author's and the audience's claims do not always reconcile. "It is somehow typical of the American reasoning regarding copyright," says a French observer, "to oppose the interests of consumers to those of authors and performers."

Authors' rights, in contrast, derive from natural rights. The Continental approach defends creators and their work. In a sense it seeks no other interest—public or otherwise. Authors' rights, says a distinguished French jurist, seek to protect the author, not society. Because it sets the author before all, writes a French law professor, balancing interests, on the model of the copyright systems, is foreign to the French tradition. The author, in the words of a standard French legal textbook, "owes society nothing. He has no more obligations in this respect than the mason who builds or the farmer who ploughs. Quite the contrary, society owes him."

This contrast between copyright and authors' rights has often escalated into a "clash of civilizations" between the Anglophone world and the Continent. As one observer has recently ventured, the European position, represented especially by France, is directly antithetical in almost all respects to that of the United States. Copyright is but the regulation of the entertainment industry's affairs, as a Continental jurist put it in 1990. It ignores the author's personality, on whose protection the essence of civilization rests. "An intimate and mysterious tie binds the work to its author. It is this connection which French law strives to protect. American law is not even aware of its existence."

As the battle between copyright and authors' rights has been fought across the channel and especially across the Atlantic from the late eighteenth century on, such vague cultural confrontations have been increasingly anchored in statute. That copyright speaks mainly for the content industries is a European commonplace. One German observer calls Anglo-American copyright the "producer's copyright," an instrument of industrial policy corresponding to the Americans' fondness for competition. Europeans protect the author's "basic human property rights," another German insists, while the Anglo-Americans aim only at a "simple protection of commercial and technical interests." In the United States and the United Kingdom it is inconceivable that business should be disturbed by an author's scruples. French law, as a legal textbook puts it, specifically repudiates the idea that protecting intellectual property serves to stimulate creativity. Rather, it is a mark of respect to works of the spirit and their creators.

Europeans often insist that copyright is primitive and archaic compared to their refined approach. Recognition of creativity and "establishment of authors' rights is one of the essential features of European culture." The danger, French commentators warn, is letting the Anglo-Saxons gain the upper hand. That way lies the "slow decline of the authors' rights to mere copyright" and the rise of a "mercantilistic Europe" built on the "ruins of humanistic Europe."

When in 1957 the French passed their first comprehensive law on the subject since the 1789 revolution, they invoked the author's moral rights to distinguish themselves from the mercantile Anglo-Saxons. 21 Down to our own day, the French battle for their "cultural exceptionalism." In 2004 a French government report praised the nation for having formulated the principle of the author's personal rights, while the Anglo-Saxons protected merely business investors. As of this writing in 2014, trade negotiations between the European Union and the United States hinge on whether an exception to free trade will be permitted to the French cultural industries. On such issues all French agree, left and right. During recent parliamentary debates Communist and Socialist senators vied with each other in support of France's tradition of moral rights, railing against the "facile logic of copyright à l'américaine."

Such clashes pit against each other not just two legal systems but diametrically opposed philosophies. The French take for granted that there is a contrast, indeed a debate and an antagonism across the Atlantic. A standard French legal textbook from 2005 insists that the individualistic French approach radically differs from the more communitarian line—guided by the public's interest, not the author's—taken by the Communists, Nazis, and Americans (together at last!).

THE STAKES

Why should we care about woolly-headed disputes over authorial rights and the social role of creativity? More is at stake than the amour propre of the creative classes. Fought in a recognizably modern sense for over two centuries, such debates have recently flared up again as intellectual property has become increasingly important to modern economies. The human mind, claims the internet visionary John Perry Barlow, "is replacing sunlight and mineral deposits as the principal source of new wealth." The cost of manufacturing a pair of Nike shoes is 4 percent of its retail price. The rest consists of intangibles: patents, trademarks, brand image, know-how, and the like. In 2010 industries heavily based on intellectual property provided 27 percent of US jobs.

Issues of ownership and its enforcement have extended beyond obvious industries like film, music, publishing, and software also to manufacturers—computers, pharmaceuticals, agricultural chemicals, car parts, and fire alarms. Pirating digital products is far more lucrative than counterfeiting physical items. A knock-off Gucci handbag costs roughly the same in materials as the original, though spared the investment of whatever design genius lies behind it. To develop a semiconductor chip can cost $100 million, to copy it a thousandth of that. With software the disparity is even starker. Digitization has steered the marginal cost of a pirated software program, song, or film toward zero. The laws originally formulated for writers, artists, composers, and publishers have become serious business. Modern economies demand legally clear and enforceable intellectual property rights across a global economy.

International trade too has become more focused on intellectual property. During the 1990s the United States, Europe, and Japan faced the developing world and the rising Asian nations in disputes over copyrights and patents. Threatened with being cut-off from access to first-world markets for their—mainly agricultural and commodity—export goods, poor countries now had to impose regulations against counterfeiting and infringement formulated in Washington and Brussels. Arguably, this strict global enforcement of intellectual property rights introduced late in the twentieth century prevented emerging nations from following the same low road of piracy that the currently industrialized ones—none more shamelessly than the United States—had themselves travelled during the previous two centuries. Today, the US shakes its fist at China's pirates, as Europe did at America's a century ago. But China is already the third largest patentor in the world, trailing only the United States and Japan, and it joined the Berne Convention (the first international copyright union) in 1992, only three years after the Americans. At some point soon, if it has not already happened, China too—like the US in the 1980s and '90s—will switch from pirate to policeman.

THE BATTLE IS JOINED

Inherent in the clash between copyright and authors' rights are strikingly divergent attitudes toward the creation and dissemination of culture, the reciprocal obligations and interests of creators and society, and the nature and social function of art, literature, and music. While authors' rights have many defenders in the English-speaking world, few Europeans believe in the Anglo-Saxon system. European criticism of copyright as sacrificing culture on the altar of commodity is therefore commonly known on both sides of the Atlantic. But defenders of copyright are scarce on the Continent. Europeans are unfamiliar with the idea that the copyright ideology could be something more than support of the content industries' self-interest. The traditional copyright approach's defense of the public interest and of a balance between the competing claims of audience and author are rarely heard there. But in the English-speaking world, copyright's social purpose was widely debated up until the late twentieth century, when the United States changed course and largely adopted the Continental position of strong intellectual property rights.

The dichotomy between the two ideologies has not always been equally pronounced. Early in the eighteenth century both Anglo-Saxon and Continental nations deprived booksellers of their royal publishing privileges, instead giving authors property rights in their works, based on natural rights. But during the nineteenth century the seas parted. In Britain and America the fiction of a natural right to works was largely abandoned, replaced instead with claims founded merely on statute. On the Continent, however, the idea of authors' strong property claims, anchored in natural rights, continued. Late in the nineteenth century it was reinforced by an allegedly equally natural claim based no longer on property, but on personality. The work was not just the author's possession. It was part of his very being. The Anglosphere received such ideas skeptically.

Formed in 1886, the Berne Union was long the foremost international venue for propagating the authors' rights ideology. Britain joined from the start, but grudgingly. To this day its allegiance to crucial Berne tenets has been partial at best. As the most radical interpreter of the copyright tradition, the United States long resisted Berne, joining only in 1989. But during the 1990s the US swung around, and the erstwhile copyright outlaw became intellectual property's international policeman. Spurred on by its now powerful content exporters, it began championing strong property rights for authors and their assignees. For other aspects of the Continental ideology, especially the pesky nuisance of the author's moral rights, the United States and Britain were eventually compelled to don legal fig leaves just big enough to render modesty its due.

The digital era's debates over intellectual property echo these battles of the past two centuries. Will the internet be a free and open forum? Or will it be a turbo-charged but traditional form of dissemination, restrained by inherited property rights? In the 1990s public opinion was whipped to a froth as the recording industry sued its downloading customers for seven-figure sums, while lawmakers were deluged by e-mails from irate music fans. Shadowy bands of digital hackers shut down corporate websites. Current disputes are heavily colored by inherited positions. The digital millennialists, so prominent in the United States, dream of a dramatically expanded public domain. They formulate what is arguably a modern version of the now-embattled US copyright tradition. In Europe, in contrast, inherited concepts of intellectual property continue to dominate. The internet is seen more as a threat to authors than a promise for the public. Until recently, digital visionaries have been marginalized. Shunned by the establishment, their views have been advocated mainly by a radical fringe of pirate parties in nations like Sweden and Germany.