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1 The Copyright Wars T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

2 THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

3 The Copyright Wars T cen rans- lan t i c t at t uri three centuries of trans- atlantic battle b Baldw P Peter Baldwin t o n e princeton university press p a on t e princeton and oxford p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

4 Copyright © 2014 by Princeton University Press C Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock, In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock, 1TW OX20 O Oxfordshire OX20 1TW ton.edu p press.princeton.edu n by Leslie Fl J Jacket design by Leslie Flis A Reserved All Rights Reserved L ongress Cata Library of Congress Cataloging-in-Publication Data B ter, 1956– aut Baldwin, Peter, 1956– author. r Baldwin. ight wars : th The copyright wars : three centuries of trans-Atlantic battle / Peter Baldwin. m pages cm bibliographica Includes bibliographical references and index. 0-691-16182- ISBN 978-0-691-16182-2 (alk. paper) ted States—History. ght—Europe 1. Copyright—Europe—History. 2. Copyright—United States—History. I. Title. 2014 35 9 K1420.5.B359 2014 2 –dc23 3 ƍ 346.404 82–dc23 2013049603 t ion Data is availabl ary Catalogin e B British Library Cataloging- in- Publication Data is available on Next LT Pro and Scala S T as been comp This book has been composed in Sabon Next LT Pro and Scala Sans OT display e ree pap f cid- P Printed on acid- free paper. ∞ a P h e United St Printed in the United States of America 1 3 4 5 2 1 10 9 8 7 6 5 4 3 2 1 THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

5 For To m a m i Jem Jemima l D anie Daniel am S Sam Si i Sigi Lucy Ben d family the ne x the next generation of my unexpected family THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

6 THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

7 Contents C ion: The A 1 Author and Audience Introduction: The Agon of Author and Audience 1 I o- The Battle between Anglo- American Copyright and European ttle betwe 1. - American Copyright and Eu 1 Authors’ Rights 14 ors’ Right 2. Royal Priv 2 From Royal Privilege to Literary Property: A Common Start to Common S Copyright in the Eighteenth Century 53 right in th 3 3. ts in ays Part: C The Ways Part: Copyright and Authors’ Rights in the Nineteenth Century 82 ineteenth 4. nental Dri y 4 e Moves from Property to Pe Continental Drift: Europe Moves from Property to Personality at the Turn of the Century 126 r y 126 u Turn of t 5. The Strange Birth of Moral Rights in Fascist Europe 163 range Birt 5 ral Rights in Fascist The Postwar Apotheosis of Authors’ Rights 199 stwar Apo 6. 6 7. America Turns European: The Battle of the Booksellers Redux : The Battle of the Booksellers Redux a Turns E 7 in the 1990s 262 2 e 1990s ublic: The Copyright Wars Con 8 se of the D The Rise of the Digital Public: The Copyright Wars Continue 8. in the New Millennium 318 e New Mil 8 1 3 m Conclusion: Reclaiming the Spirit of Copyright 383 C on: Reclai A dgments 411 Acknowledgments N Notes 13 413 Index 513 13 In THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

8 THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

9 The Copyright Wars T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

10 THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

11 Introduction I D AUDIENCE T THE AGON OF AUTHOR AND AUDIENCE N OF AUT mitri Shos everal Sov In 1948 several Soviet composers, including Dmitri Shostakovich, In 1948 several Soviet composers, including Dmitri Shostakovich, objected to the use of their music in an American spy film, The Iron n spy film o to the use C - Curtain , that was distinctly anti- Communist. These Soviet compos- hat was d ese Soviet ers understandably feared the gulag for appearing in Hollywood’s aring in Ho ers understandably feared the gulag for appearing in Hollywood’s standably 1 gh their music was unchanged Though their music was unchanged, they pro- - o first Cold War effort. fi War effor tested its political use. When Shostakovich sued in the United States, tested its political use. When Shostakovich sued in the United States, political u n Shostakovich sued in the U n the public domain, thus f The work he failed. The works were in the public domain, thus freely available 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 ne’s use, th oser had been credited 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 dis- claim that he agreed with its views, and the music had not been dis t he agree - torted. How, the court asked, had the artist’s rights been violated? “Is torted. How, the court asked, had the artist’s rights been violated? “Is ow, the co ard to be the standard to be good taste, artistic worth, political beliefs, moral the standard to be good taste, artistic worth, political beliefs, moral 2 2 But in France a court ascertained But in France a court ascertaine concepts, or what is it to be?” or what concepts, or what is it to be?” “moral damage.” The film was banned and the composers amage.” T “moral damage.” The film was banned and the composers were awarded damages. damages. a In 1988 the director John Huston sued to prevent the Asphalt Jun- the direc Huston sued to prevent , which he had filmed in 1950 in black and white, from being gle h he had g shown on television in a colorized version. In the United States, ac- s n televisio cording to the work- for- hire doctrine, the film studio—and not the o the wor c director it employs—is the author. But in France, after Huston’s d t employ s , i h death that year, his children and his screenwriter invoked the con- r d r t year tinuing aesthetic claims, or “moral rights,” that remain with authors t esthetic cl in French law even after they have sold their works. Over the next six law even i n years, five different French courts first prevented screening, then al- different y lowed the film to be broadcast only if the director’s objections were e film to b l o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

12 2 Introduction publicized, and finally levied hefty fines on Tur publicized, and finally levied hefty fines on Turner Entertainment, 3 3 e rr a n t the riz e r s. colo the errant colorizers. Prince Michael of Greece, related through his mother to a Prince Michael of Greece, related through his mother to a family t h at sti ll that still pretends to the long- abolished French throne, writes histo- d s to t h e l ong- abolished French throne, writes hi preten r 982) was ghostwritten (1982) was ghostwritten La nuit du sérail ries and historical novels. contract under w with Anne Bragance, who signed a work- for- hire contract under New York law, renouncing her moral rights, including that of being New York law, renouncing her moral rights, including that of being 4 however, When sales of the book took off, however, hen sales of the book n s coaut a named as a coauthor. a more generous slice of th Bragance sought not only a more generous slice of the proceeds but Bragance sought not only a more generous slice of the proceeds but e sought n also to be named as coauthor—and in typeface larger than the puta- e named a - or—and in typeface larger th also to be named as coauthor—and in typeface larger than the puta tive author. Since in French law the author’s moral rights cannot be h law the author’s moral right or. Since i tive author. Since in French law the author’s moral rights cannot be alienated, a French court set aside her contractual obligations. She d, a French actual obliga alienated, a French court set aside her contractual obligations. She won a place next to the prince on the title page of French editions, e of French won a place next to the prince on the title page of French editions, ace next t 5 though not more of the royalties, nor any font- size favoritism. ze favoriti t not more o b direction Samuel Beckett gave famously precise stage directions. He ob- el Beckett - jected, for example, when directors performed his plays with women, his plays wit jected, for example, when directors performed his plays with women, r example 6 He sued the American Reper- He sued the Ameri er - r r non- white casts, or incidental music. te casts, or n y ater in C nd E g in ame for pla g tory Theater in Cambridge for playing Endgame in an abandoned in an ned t e Boston subway station and the Comedie Française for doing so on a the Comedie Française for Boston subway station and the Comedie Française for doing so on a ubway sta 7 Female Vladimirs and Estragons were pur- r - ere pur r emale Vladimirs and Es set bathed in pink light. s d in pink sued in Paris, Holland, Nashville, and Pontedera. Beckett also quib - sued in Paris, Holland, Nashville, and Pontedera. Beckett also quib- Paris, Holl Godot in Dublin, London, Salzburg, Berlin, bled about stagings of b zburg, Berlin, ut staging 8 8 In A v In Avignon in 1991, d a female cast—as was allowed a female cast—as Godot and Miami. mi. a he estate’s long as the estate’s letter of objection was read aloud at each perfor- long as the estate’s letter of objection was read aloud at each perf 9 ve prostates,” Beckett insisted, allud “Women “Women don’t have prostates,” Beckett insisted, alluding to mance. m 10 10 In Nashville, Avignon, In Nashville, Avignon, and Pont- Vladimir’s constant urination. ’s constan Vladimir’s constant urination. edera, the theaters cravenly argued that, though played by women, e theaters edera, the theaters cravenly argued that, though pl 11 In Australia, with the use of music at the characters remained male. acters rem t issue, the director pushed back more robustly, complaining that “in e director i coming here with its narrow prescriptions, its dead controlling here with c 12 hand, the Beckett estate seems to me to be the enemy of art.” e Beckett e h of these None of these events was earth shattering. Yet each speaks to a view of the position of authors in society—their rights in their the posit v w works, their relationship to their interpreters, performers, and audi- heir relatio e d their po ences, and their power to enforce their claims. As Congress consid- ng Amer ered giving American authors similar claims in 1987, Sydney Pol- e lack, director of Tootsie , Out of Africa , and other popular movies, T ector of l THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

13 The Agon of Author and Audience 3 testified that “this is a debate about the dignity with which society testified that this is a debate about the dignity w regards artists and the value society places on the integr regards artists and the value society places on the integrity of artis- 13 13 tic endeavors.” v ” tic endea ors. More generally, such disputes pose the basic dilemma of intell More generally, such disputes pose the basic dilemma of intellec- tual property. Intellectual works are both the property of their cre tual property. Intellectual works are both the property of their cre- ators and society’s cultural patrimony. How to resolve this inherent ators and society’s cultural patrimony. How to resolve this inherent - tension? The author seeks fame, recognition, and reward. The audi tension? The author seeks fame, recognition, and reward. The audi- d quick access to a cu ence wants easy, cheap, and quick access to a cultural cornucopia ts easy, ch ence wants easy, cheap, and quick access to a cultural cornucopia easuring. e reward and authors are worth treasuring. Too little reward and authors are discouraged. worth treasuring. Too little reward and authors are discouraged. Kept from its culture by too high prices or overly narrow access, the o high prices or overly narrow m its cultu Kept from its culture by too high prices or overly narrow access, the among author, audien i pas de trois audience is stunted. The a he de trois among author, audience, and the s stunte d ators who o is delicate disseminators who mediate between the two is delicate. How to disseminators who mediate between the two is delicate. How to s right bal strike the right balance between rewarding authors to stay produc- - hors to stay tive yet also letting in the audience, whose cultural engagement is, lso letting tive yet also letting in the audience, whose cultural engagement is, ral engage after all, the authors’ presumed goal? The interests have to be after all, the authors’ presumed goal? The interests have to be the auth terests hav weighed against each other. But whether the angle has tilted in the weighed against each other. But whether the angle has tilted in the ngle has tilt against ea authors’ or the audience’s favor has varied, both over the course of favor has varied, both over the or the aud authors’ or the audience’s favor has varied, both over the course of copyright’s development and among nations. c n d amon g nations . t’s develop These anecdotes illustrate two broader points. First, seen historically, ecdotes ill These anecdotes illustrate two broader points. First, seen historically, from the eighteenth century to the present, rights holders—whether from the eighteenth century to the present, rights holders—whether eighteenth authors or disseminators—have won an ever- stronger stake in their r dissemi a onger stake in their works. In certain nations some claims remain with the author and works. In certain nations some claims remain with the author an certain n his estate perpetually. But in all countries rights have been continu- his estate perpetually. But in all countries rights have been con perpetua ally extended on their owners’ behalf. The first British (1710) and nded on t ’ behalf. The first British ( ally extended on their owners’ American (1790) copyright laws gave authors rights over verbatim American (1790) copyright laws gave authors right n (1790) co copies of their writings for fourteen years after publication. As of c their wri 1993 in the European Union and 1998 in the United States, that had 1 e Europe 9 expanded to seventy years after the author’s death, not only for the to sevent e primary work but also for all manner of other works derived from work but p it. Assuming that authors live the same seventy- nine years as the av- ing that a i t erage American, they, their heirs and—most often—their assignees e merican, th now generally own works for well over a century. erally own n Over the past three centuries the single most common complaint he past thr voiced by authors in defense of their prerogatives has been the al- v y authors leged contrast between how conventional property belongs to its ntrast betw le THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

14 4 Introduction owners forever while works of the mind are the author’s and his owners forever while works of the mind are heirs’ for only a limited time before they join the pub heirs’ for only a limited time before they join the public domain, free for all to use. Why, countless authors have demanded to know, free for all to use. Why, countless authors have demanded to do we not own our works perpetually, able to pass them to our de- do we not own our works perpetually, able to pass them to our 14 scendants, just as others can with their houses, factories, or farms? scendants, just as others can with their houses, factories, or farms? But this is authorial bellyaching. Intellectual property has in fact But this is authorial bellyaching. Intellectual property has in fact favorably than its conventional cousins, es- more come to be treated c cousins, es - and foremost, unlike r real prope pecially real property. First and foremost, unlike real estate the value pecially real property. First and foremost, unlike real estate the value 15 15 California (to take jus mple) California (to take just one example) o d. of a copyright is not taxed. yright is n annual pr axes at 1 percent of sales pric assesses annual property taxes at 1 percent of sales prices. The state assesses annual property taxes at 1 percent of sales prices. The state 16 1 6 thus takes your house, or at least its cash value, once every century. t least its cash value, once ever thus takes your house, or at least its cash value, once every century. es your ho In the European Union and the United States, the author’s estate uropean U In the European Union and the United States, the author’s estate tes, the auth loses the work to the public domain seventy years after death. Ex- work to x x - years after loses the work to the public domain seventy years after death. Ex cepting the occasional modern Mozart, dead at thirty- five, authors fiv c s the occasi thirty- thus “own” their works for longer than they do their houses. In the their hous thus “own” their works for longer than they do their houses. In the n” their w nineteenth century it was, in fact, suggested as a reasonable trade- off n a reasonabl ff th century that, if literary property were granted perpetual protection, as many re granted perpetual protectio terary pro that, if literary property were granted perpetual protection, as many 7 17 17 But since it is not, But since it is not, it is hard to d to demanded, it should also be taxed. e taxed d . ed, it shou b spot why its truncated protection is unfair. By contrast, it is certainly spot why its truncated protection is unfair. By contrast, it is certainly y its trunca ection is unfair. By contras easy to see the social benefits of open access and an expansive public ts of open access and an ee the soci easy to see the social benefits of open access and an expansive public domain. d Not only does copyright today last a very long time, it is now also nly does c it is now also granted much more easily, indeed automatically. The first copyright much mo granted much more easily, indeed automatically. The first copyright laws required authors to jump burdensome bureaucratic hoops to uired auth laws required authors to jump burdensome bureaucratic hoops assert their claims: application, registration, deposit, and the like. assert their claims: application, registration, deposit, and the eir claims Yet, as of 1908, all member states of the first international copyright f 1908, all m Yet, as of 1908, all member states of the first international union, the Berne Convention, were obliged to grant copyright with- union, the Berne Convention, were obliged to gran he Berne C out any formalities whatsoever. Every scribble, doodle, and bathtub o formalitie aria was thus a protected work as of its creation. The shopping list a thus a pr on the fridge is as copyrighted as Dan Brown’s latest blockbuster. ridge is as o Previously, all works used to be born into the public domain, except P ly, all wor for those few someone considered worth the trouble of protecting. f few som Today every possible creation—however trivial—is legally protected ery possib T as its creator’s private property. ator’s priv a Nor are we talking only of money. For the last three centuries au- re we talk thors have increasingly been given control over all conceivable ve increa t forms of their works. In the eighteenth century neither translations their wor f THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

15 The Agon of Author and Audience 5 nor abridgments, nor most other derivative uses o nor abridgments, nor most other derivative uses of works, infringed. A translation, for example, was not seen as the same w A translation, for example, was not seen as the same work, nor— thanks to the language difference—as competing in the same mar- thanks to the language difference—as competing in the sam ket. Therefore, it was of no concern to the author. Abridgments were ket. Therefore, it was of no concern to the author. Abridgments w considered socially beneficial, able to enlighten more efficiently considered socially beneficial, able to enlighten more efficiently than lengthy originals. Authors were not thought harmed when than lengthy originals. Authors were not thought harmed when others shortened their works. o In the meantime authors have gained control over the broadest roadest meantim s have gained control possible panoply of different works, as well as largely all derivative nt works, as well as largely possible panoply of different works, as well as largely all derivative panoply o uses thereof. In the words of one witness before the Royal Copyright f one witness before the Roya uses thereof. In the words of one witness before the Royal Copyright eof. In the Commission in 1878, authors were now given “every advantage hors were now given “every ion in 18 Commission in 1878, authors were now given “every advantage which can possibly be derived from that work of art, even indirectly which can possibly be derived from that work of art, even indirectly of art, even n possibly 18 h hout the ni Throughout the nineteenth and by independent exercise of ability.” dependen a 19 In n ems to m German c century German composers could freely set poems to music. c wever, the 1965, however, the poets’ lobby prevailed, ending the composers’ ng the co 1965, however, the poets’ lobby prevailed, ending the composers’ right to accompany their verse musically as they pleased, reprinting ccompany right to accompany their verse musically as they pleased, reprinting ey pleased, r 20 to That alone is perhaps not to That alone is perha their texts along with the music. s along w t blame for the decline of b usi - r the decli r , the once archetypical Ge de Lieder , the once archetypical German musi- be Schubert has to fight with all cal art form. But today any would- - c be Schubert has to rm. But to h all would the other composers who already have rights to Goethe’s Erlkönig rlkönig compose already have rights to t Die schöne Müllerin and negotiate with Wilhelm Müller, author of tiate with Müllerin a and Die Winterreise . W W W interreise a In aesthetic terms, too, American and especially European au- hetic term ially European au - thors have received ever- greater powers over the past two centuries. t ater powers over the past two centurie e received They may decide how their works appear, whether others may make They may decide how their works appear, whether others may y decide h use of them for derivative creations, and if so, under what circum- u creations, and if so, under wha em for de stances. They can prevent changes they do not like, and in some na- stances. They can prevent changes they do not like, hey can p tions they can withdraw works they no longer agree with. In certain y can with t cases such powers of aesthetic control last perpetually. Whether for- c h powers o ever or only seventy years postmortem, authors and their estates e nly seven have not been shy in locking down what was permissible. Beckett h been shy . The Gershwin es- and his heirs prevent women from playing Godot eirs preve a tate specifies that Porgy and Bess be played only by blacks. Mean- t fies that P Carmen Jones , the Otto Preminger while, in 1954 the French banned 1954 the F w Carmen , since Bizet’s heirs found its setting among black filming of men r fi f Ca , 21 And a century and a half after Americans unworthy of the master. ns unwort A great- grandchildren for its publication in 1862, Victor Hugo’s great- ation in 1 i t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

16 6 Introduction years kept the French justice system in knots all years kept the French justice system in knots all the way up to the h h d erin g w Supreme Court, pon et er seque l s to Les Mi were Les Misérables Supreme Court, pondering whether sequels to permissible. permissible. The 1913 statue of the Little Mermaid by Edward Eriksen The 1913 statue of the Little Mermaid by Edward Eriksen is among Copenhagen’s biggest tourist attractions. It prettily embod- among Copenhagen’s biggest tourist attractions. It prettily embod ies the main character of Hans Christian Andersen’s fairy tale and is ies the main character of Hans Christian Andersen’s fairy tale and is helped too by its picturesque location in the harbor. That has not helped too by its picturesque location in the harbor. That has not eirs’ pursuit of their in d the scul tempered the sculptor’s heirs’ pursuit of their interests. They have tempered the sculptor’s heirs’ pursuit of their interests. They have brought or threatened suit against cities that presumed to erect or threat it against cities that pres brought or threatened suit against cities that presumed to erect ncidentally they offer author their own variants. Not coincidentally they offer authorized replicas n variants their own variants. Not coincidentally they offer authorized replicas 22 22 for the fiv ($101,741 for the five- foot version). And they have kept their great- eat- ersion) And they have kept grandfather’s statue under firm aesthetic control. In 2008 they ob- ntrol. In 200 her’s statu - grandfather’s statue under firm aesthetic control. In 2008 they ob the Scand and Drags When jected to the Scandinavian artist duo Elmgreen and Dragset’s j n f a mirror i a Country Falls in Love with Itself , which placed a mirror in front of a y Falls in L the mermaid. Rather than staring wistfully out to sea after her lost to sea afte maid. Rath the mermaid. Rather than staring wistfully out to sea after her lost prince, she now posed before the tourist hordes, admiring her own he now po des, admirin prince, she now posed before the tourist hordes, admiring her own 23 23 reflection. n. r kable aspect of this vast expa ps the mo - au Perhaps the most remarkable aspect of this vast expansion of au- aims to their intellectual p thors’ and rights holders’ claims to their intellectual property is that d rights h thors’ and rights holders’ claims to their intellectual property is that it reversed the course followed at much the same time for conven- ed the cou it reversed the course followed at much the same time for conven - wed at much the same tional forms of property. Regarded suspiciously as the outcome of tional forms of property. Regarded suspiciously as the outcome of rms of pr humanity’s fall from grace by medieval theologians, property was y’s fall fro humanity’s fall from grace by medieval theologians, property was 24 24 elevated to the status of a human right during the Enlightenment. elevated to the status of a human right during the Enlightenment. to the stat The right of property was defined in 1765 by the great British jur t of prope The right of property was defined in 1765 by the great British jurist William Blackstone as “that sole and despotic dominion” exerted by William Blackstone as “that sole and despotic dominion” exert Blackston owners over their belongings “in total exclusion of the right of any over their owners over their belongings “in total exclusion of the ri 25 25 In 1804 the Napo In 1804 the Napoleonic Code em- other individual in the universe.” i d other individual in the universe.” n idual i v bodied this view in statute, describing property as “the right of en- his view i b 26 joying and disposing of things in the most absolute manner.” nd disposi j Despite such bravado, over the following two centuries European, te such br British, and American law leached away at the pretentions to abso- nd Amer B lute dominion entertained by the owners of conventional property. l minion ent Everywhere property has been ever more subjected to restrictions ere prope E imposed by the state as the ultimate regulator. From nuisance laws by the st i to rent regulation, from zoning codes to health- and- safety rules, regulation t from taxation to outright takings, conventional property—the state ation to o f has made clear—is possessed on society’s premises and only insofar e clear—is h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

17 The Agon of Author and Audience 7 as private ownership is compatible with broader social objectives. as private ownership is compatible with broade The social determinants of private property became The social determinants of private property became ever more prominent. prominent. For intellectual property, in contrast, developments went in the For intellectual property, in contrast, developments went in t opposite direction. Owners—whether authors themselves or their opposite direction. Owners—whether authors themselves or their . Their owner - r r assignees—gained ever- firmer control over their works. Their owner- a ship not only approximated that of conventional property, in many ship not only approximated that of conventional property, in many t exceeded art, such unleashing of respects it exceeded it. In part, such unleashing of the claims staked respects it exceeded it. In part, such unleashing of the claims staked rs of intan ollowed developments in by owners of intangibles followed developments in the history of by owners of intangibles followed developments in the history of property more generally. Land was the ultimate source of power and nd was the ultimate source o property more generally. Land was the ultimate source of power and more gene prestige in the Middle Ages. But the French Revolution’s expropria- n the Mid - . But the French Revolution’s prestige in the Middle Ages. But the French Revolution’s expropria nowhere to monstrated tions demonstrated that, as immovable, it had nowhere to hide and tions demonstrated that, as immovable, it had nowhere to hide and ances. For was vulnerable to changing political circumstances. For a while erable to was vulnerable to changing political circumstances. For a while growing c - operty sup urban property supplanted it in importance as growing cities con- u centrated wealth in the hands of a new landlord bourgeoisie. But as bourgeois centrated wealth in the hands of a new landlord bourgeoisie. But as wealth in new democratic governments—facing housing shortages early in ng shortages mocratic g new democratic governments—facing housing shortages early in the twentieth century—responded to their voters and imposed rent ieth centu ponded to their voters and im the twentieth century—responded to their voters and imposed rent moratoria and controls and otherwise restricted rights, urban prop moratoria and controls and otherwise restricted rights, urban prop- a and con - otherwise restricted rights, u 27 erty owners too discovered the limits of their free control. e ers too dis the limits of their free cont d, intangib t t invest Instead, intangible forms of property became the preferred invest- of property became the - ment. Because he appreciated their flexibility, John Wemmick, the ment. Because he appreciated their flexibility, John Wemmick, the cause he , was obsessed with “por- Great Expectations bill collector in Dickens’ r r b ed with “por ctor in Di - table property,” small objects of value easily convertible to cash. In- table property,” small objects of value easily convertible to cash. In perty,” sm - tangible property took such advantages further. Government debt tangible property took such advantages further. Government de property t has been marketed since the late thirteenth century, nor are bonds, marketed has been marketed since the late thirteenth century, nor are b stocks, securities, and other financial instruments recent inventions. curities, an stocks, securities, and other financial instruments recent in Yet their importance has mushroomed in recent centuries compared mportanc Yet their importance has mushroomed in recent cen to real property. Both more liquid and fungible—“more fluid than operty. Bo t water and less steady than the air,” as the German poet Heinrich w d less stea Heine said—they were also harder for governments to clamp down H d—they w 28 our own d In our own day, with the globalization of financial markets, on. o capital’s transnational mobility and its outmaneuvering of the tax- c transnatio man has become a leitmotif. become a m The growing heft of intellectual property is thus part of a larger owing he secular shift from ownership of immovables to movables and from hift from o s tangibles to intangibles. Intellectual and other immaterial property g intan to t has become an increasingly dominant element of modern econo- me an inc h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

18 8 Introduction mies. Already in 1863 the Scottish economist He mies. Already in 1863 the Scottish economist Henry Dunning Mac- leod classified most wealth as incorporeal: the franchi leod classified most wealth as incorporeal: the franchises of ferry, railway, telegraph and telephone companies, as well as patents, trade- railway, telegraph and telephone companies, as well as patents 29 29 In one Pennsylvania county intan- In one Pennsylvania county int marks, goodwill, and annuities. marks, goodwill, and annuities. gible assets in probated estates grew from 10 percent in the colonia gible assets in probated estates grew from 10 percent in the colonial 30 30 In In p th century. period to over two- thirds by the end of the nineteenth century. tandem, the concept of property expanded enormously from land tandem, the concept of property expanded enormously from land and movables to encompass almost everything under the sun, in- ass almost everything vables to and movables to encompass almost everything under the sun, in - cluding such entirely dematerialized “things” as business goodwill, such entir aterialized “things” as bus cluding such entirely dematerialized “things” as business goodwill, 31 31 x x - Property is “everything which has ex- Property is “everything w s ex trade secrets, and personality. t rets, and p ty. changeable value,” Supreme Court Justice Noah H. Swayne declared e Court Justice Noah H. Sway changeable value,” Supreme Court Justice Noah H. Swayne declared ble value,” 32 32 Today, over 40 percent of the market value of Amer- o - market valu T er r r already in 1873. n 1873. a 33 mpanies is i ican companies is intellectual capital. ver much d However much some may still strike the pose of misunderstood e of misun c artists in Romantic artists in their garrets, authors have become economically ecome eco Romantic artists in their garrets, authors have become economically and socially more powerful than ever before. What used to be a call- What used to ally more - and socially more powerful than ever before. What used to be a call ing, pursued only by those motivated by more than material reward, ued only b ing, pursued only by those motivated by more than material reward, motivated by more than mater has become a profession like any other. Most authors are today sala- ke any other. Most authors ar has become a profession like any other. Most authors are today sala me a prof - ried employees, not the independent intellectual entrepreneurs for ployees, no ried employees, not the independent intellectual entrepreneurs for dependent intellectual ent whom the copyright and patent systems were first designed. Their patent systems were fir whom the copyright and patent systems were first designed. Their he copyrig rights are usually surrendered to corporate employers in return for e usually rights are usually surrendered to corporate employers in return for wages, health insurance, vacation time, and pensions. Nonetheless, wages, health insurance, vacation time, and pensions. Nonetheless, ealth insu there are more of them than ever before, and their output underpins there are more of them than ever before, and their output underpins more of t modern economies. m economie Yet that is only half the story. The second point our starting anec- is only ha Yet that is only half the story. The second point o dotes illustrate is that, while intellectual property has become ever d ustrate is t more economically important across the globe, it has also been onomicall m treated differently among nations. Sticking to those aspects of intel- t ifferently lectual property dealt with by copyright, authors’ rights over their roperty d l works have—quite simply—been stronger in some nations than in ave—quite w others. In particular, authors have enjoyed a stronger legal position o n particul in continental Europe than in the Anglophone world. Britain and nental Eur i America’s copyright systems draw clear distinctions between au- s copyrig A thors and rights owners. The two may overlap. But once the author d rights ow t has assigned rights to his work, they usually diverge. When Anglo- ned right h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

19 The Agon of Author and Audience 9 phone authors sell rights to publishers, producers phone authors sell rights to publishers, producers, and other dissem- inators, they lose almost all control, while the new owners inators, they lose almost all control, while the new owners are largely free to do as they please. Work- for- hire, a core doctrine of Anglo- free to do as they please. Work- for - hire, a core doctrine of A American copyright, transforms the employer into not only the American copyright, transforms the employer into not only t owner but also the legal author of his employees’ work. ees’ work. o Continental Europe, in contrast, has respected the personal con- - personal con nection between author and work even after economic rights were nection between author and work even after economic rights were alienated. What are known as authors’ “moral rights” continue their as authors’ “moral righ alienated. What are known as authors’ “moral rights” continue their What are control over works even after sale, ensuring that they are not altered ver works er sale, ensuring that they control over works even after sale, ensuring that they are not altered against their wishes. In Europe, more than in the Anglophone world, eir wishes ope, more than in the Anglop against their wishes. In Europe, more than in the Anglophone world, authors have thus retained aesthetic control even as they surrender authors have thus retained aesthetic control even as they surrender aesthetic control even as they ave thus economic rights. Though they may no longer be rights holders, they economic rights. Though they may no longer be rights holders, they c rights. Th be rights hol retain sway as authors. Two quite different approaches—Anglo- retain sway as authors. Two quite different approaches—Anglo- pproaches way as au American copyright and continental European authors’ rights— n copyrigh American copyright and continental European authors’ rights— authors’ thus have voiced divergent views of intellectual property. Copyright t property. C t voiced di was intended to give authors sufficient encouragement to remain nded to g uragement t was intended to give authors sufficient encouragement to remain fruitful, thus enriching the public domain and serving useful social public domain and serving us fruitful, thus enriching the public domain and serving useful social hus enrich functions—to enlighten, entertain, and educate. In authors’ rights functions—to enlighten, entertain, and educate. In authors’ rights ntertain, and educate. In aut —to enli systems, in contrast, the creator was the focus, not the public do- - systems, in contrast, the creator was the focus, not the public do eator was the focus, not t n contras main nor the audience. Thanks to his investment of labor and cre- the audie anks to his investment - main nor the audience. Thanks to his investment of labor and cre ativity, the author owned his works like other forms of property. To e author o ativity, the author owned his works like other forms of property. To guarantee his just desserts when he sold them in the marketplace e his just guarantee his just desserts when he sold them in the marketplace was the point of the Continental approach. w oint of th How have the owners of intellectual property massively enhanced e the own How have the owners of intellectual property massively their rights over the past three centuries? And how did trans- Atlantic their rights over the past three centuries? And how d ts over the differences arise over the claims that authors could stake to their es arise ov d works and the access that audiences could demand to their patri- w d the acc mony? Those are the questions this book asks. As we will see, the hose are t m basic dispute between these two approaches to intellectual prop- b pute betw erty—one giving priority to authors, the other to their audience— e e giving p has been with us for almost three centuries and continues into the h with us fo digital age. Positions first adopted already in the eighteenth century e. Position d remain surprisingly unchanged today. urprisingly r When authors were first granted statutory rights to their works authors w three centuries ago, both the civil law nations of France and Ger- turies ago t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

20 10 Introduction many and the Anglophone common law world many and the Anglophone common law world sought to balance between the new powers thus granted creators and the between the new powers thus granted creators and the public’s de- mand for access. Starting in the eighteenth century, authors were mand for access. Starting in the eighteenth century, author made only the interim masters of their works. After these rights ex- made only the interim masters of their works. After these rights pired, their creations were quickly added to the public domain, soci- pired, their creations were quickly added to the public domain, soci ety’s store of common knowledge. During the nineteenth century, ety’s store of common knowledge. During the nineteenth century, authors’ rights expanded both in Europe and in the Anglophone authors’ rights expanded both in Europe and in the Anglophone world: to new works beyond books, plays, and engravings and to ond books, plays, and o new wo world: to new works beyond books, plays, and engravings and to ever- lengthier terms of authorial control. Additionally, in Europe a e horial control. Additional thier term ope a novel ideology of authors’ rights emerged that went well beyond the novel ideology of authors’ rights emerged that went well beyond the rights emerged that went wel eology of a limited scope of mere copyright. At first it founded creators’ claims l yright. At first it founded cr ms ea cope of m on the allegedly natural right to property, extended now to include legedly n ended now on the allegedly natural right to property, extended now to include also literary property. In the nineteenth century, however, it ex- ury, howe rary prop - x x also literary property. In the nineteenth century, however, it ex panded further to embrace the idea that, since works inherently ex- x x works inhe further to panded further to embrace the idea that, since works inherently ex - pressed the personalities of their authors, they could never be wholly pressed the personalities of their authors, they could never be wholly he person uld never separated from them. d from the s Both tacks of the European authors’ rights ideology—natural ral tacks of opean authors’ rights ideolog rights of property and of personality—strengthened the creators’ personality—strengthened rights of property and of personality—strengthened the creators’ f property sway. Their purchase over works was won at the expense of dissemi- - sway. Their purchase over works was won at the expense of dissemi works was won at the expe eir purcha nators, of other authors, and of the audience. Disseminators no lon- d of the audience. Diss f other au - nators, of other authors, and of the audience. Disseminators no lon ger owned works outright, able to do as they pleased. Authors of ger owned works outright, able to do as they pleased. Authors of ed works derivative works, as well as performers and interpreters, found their derivative works, as well as performers and interpreters, found their e works, a own artistic freedom curtailed by primary creators. And the panoply own artistic freedom curtailed by primary creators. And the panoply stic freedo of culture otherwise available to audiences was circumscribed as au- of culture otherwise available to audiences was circumscribed as a e otherwi thors asserted their control over the uses that works could be put to. erted thei thors asserted their control over the uses that works could be p In late nineteenth- century France and Germany authors were e ninetee ury France and Germany aut thus given expansive new powers, including moral rights of aesthetic thus given expansive new powers, including moral r n expansi control that lasted even after they had sold their works. Unexpect- hat lasted c edly for a reform that so favored authors, moral rights were strength- e a reform th ened by the fascist regimes of the interwar years, claiming to vener- the fascist e ate authors even as they brutally subordinated them to the alleged ors even a a will of the people. But the high point of the Continental ideology of he people. w authors’ rights came with the legislative incarnation of moral rights a rights cam during the 1950s and ’60s. France and Germany sought to distin- d he 1950s a guish their nascent postwar democracies both from their totalitar- g eir nascen ian predecessors and from what they and their fascist forebears alike ecessors an i saw as the Anglophone world’s crass commercialization of culture. e Anglop s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

21 The Agon of Author and Audience 11 In contrast, during the nineteenth century Bri In contrast, during the nineteenth century Britain and especially America maintained the Enlightenment ideal of an expa America maintained the Enlightenment ideal of an expansive pub- lic domain. Authors were to be empowered not—as in Europe— lic domain. Authors were to be empowered not—as in Eur because they were owners of their works and therefore deserved re- because they were owners of their works and therefore deserved ward but because—and only insofar as—productive creators en- ward but because—and only insofar as—productive creators en riched the public domain. The social utility of enhancing the com- riched the public domain. The social utility of enhancing the com - mon store of culture, not natural rights to property and certainly mon store of culture, not natural rights to property and certainly not personality rights to works, spoke for protecting authors. Anglo- rks, spoke for protectin nality righ not personality rights to works, spoke for protecting authors. Anglo - phone authors received few of the perks of creatorship granted their of the perks of creatorship e c thors re p their colleagues on the European continent. Terms were extended only n continent. Terms were ex colleagues on the European continent. Terms were extended only s on the grudgingly. Rights of aesthetic control were shunned as fanciful and ly. Rights tic control were shunned as fa grudgingly. Rights of aesthetic control were shunned as fanciful and needless concessions to foppish artistes. Employers retained the concessio needless concessions to foppish artistes. Employers retained the mployers reta upper hand over their employees’ creativity. nd over th u In 1886, after decades of lobbying by writers and other authors, 6, after de and other , supported by France and other major European powers, the Berne d by Fran powers, t supported by France and other major European powers, the Berne Union was founded to coordinate authors’ rights internationally. Union was founded to coordinate authors’ rights internationally. as founde ights intern With it, the Continental ideology of long and strong protection for he Contin With it, the Continental ideology of long and strong protection for eology of long and strong pro authors began its global march. Fearing isolation, Britain joined march. Fearing isolation, Br began its authors began its global march. Fearing isolation, Britain joined from the outset but then defended its own approach to copyright outset bu from the outset but then defended its own approach to copyright defended its own approach from within. The United States, however, refused to recognize copy- - ates, however, refused t from within. The United States, however, refused to recognize copy hin. The U right for foreign authors until 1891, and then for the next hundred right for foreign authors until 1891, and then for the next hundred foreign au years it kept a wary distance from Berne. Only when its policymak- - k k ept a wary years it kept a wary distance from Berne. Only when its policymak ers switched camps did America finally join Berne, in 1989. Once a hed camps ers switched camps did America finally join Berne, in 1989. Once a culture importer and therefore a copyright pirate, the United States culture importer and therefore a copyright pirate, the United Stat mporter an had since become the world’s largest exporter of content. Impelled become had since become the world’s largest exporter of content. Imp by its content industries—emblematically represented by Holly- ntent ind by its content industries—emblematically represented b wood—America now crept to the cross of the Berne ideology. While wood—America now crept to the cross of the Berne America no it never gave up work- for- hire and refused to implement moral gave up w t i rights in any but a pro forma fashion, it abandoned its traditional any but a r view of copyright as a temporary monopoly to encourage authors. v opyright Instead, it adopted the European view of works as a form of prop- t adopted I erty, entitled by natural right to long and strong protection. Even in e led by nat the United States, the author and his assignees came to reign su- ed States, t preme over the public. er the pub p The massive expansion of literary and artistic property rights of assive exp the late twentieth century is often blamed on Hollywood alone— wentieth t and especially everyone’s favorite whipping boy, Disney. Doubtless, cially ever a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

22 12 Introduction the American content industries stood to gain fro the American content industries stood to gain from strong authorial rights, assigned by creators to their corporate masters. B rights, assigned by creators to their corporate masters. But seen in a longer, transnational accounting, Hollywood had merely discovered longer, transnational accounting, Hollywood had merely disc that its interests, as a content exporter, now coincided with what had that its interests, as a content exporter, now coincided with what h . Where all along been the position of the European Kulturnationen a . Wher Kulturnationen Europe led, Hollywood eagerly followed. E In our own era, however, the digital revolution has derailed what railed what recently seemed to be a developing international consensus on the recently seemed to be a developing international consensus on the seemed to eveloping internationa Berne principles of strong rights for authors and their assignees. rinciples o g rights for authors and t Berne principles of strong rights for authors and their assignees. Digital technologies have both promised universal accessibility to both promised universal ac echnologi Digital technologies have both promised universal accessibility to the- board lockdown of intellectual property and threatened across- i of ual proper t h e - board lo hreatened across- it. They sparked new versions of the copyright battles fought during parked ne it. They sparked new versions of the copyright battles fought during t battles foug the eighteenth and nineteenth centuries. In the United States propo- the eighteenth and nineteenth centuries. In the United States propo United Stat eenth and - nents of the Anglo- American copyright tradition, concerned for the n, concern e the Anglo n public, have sought to reassert old verities against fifth columnists nst fifth c public, have sought to reassert old verities against fifth columnists ave sough from the now Europeanized content industries. During the 1990s 0s e now Eu ries. During f film and music corporations fought consumers over open access, ons fought consumers over o film and music corporations fought consumers over open access, music co peer- to- peer downloading, and digital rights management, sound- und and digital rights managem p eer down - ing themes familiar from earlier debates. Meanwhile, consumer elec- arlier debates. Meanwhile, - ing themes familiar from earlier debates. Meanwhile, consumer elec mes familia tronics, internet, and new media enterprises have developed a stake a stake media enterprises have nternet, a t in the free flow of web content, adding economic muscle to the for- in the free flow of web content, adding economic muscle to the for - r r ee flow of merly marginal hacker and open access communities. Together, they arginal ha merly marginal hacker and open access communities. Together, they have begun to stand up to the demands for digital control advanced un to stan have begun to stand up to the demands for digital control advanced by the content industries. When, in January 2012, Congress sought to ntent ind by the content industries. When, in January 2012, Congress sought pass new laws forcing internet providers to police infringing con- w laws for pass new laws forcing internet providers to police infringing tent on their networks, Wikipedia shut down in solidarity for a day, tent on their networks, Wikipedia shut down in solidarity heir netw disrupting homework worldwide. disrupting homework worldwide. ng homew Even in Europe, where strongly protecting authors has been in Europ dogma since the nineteenth century, the digital age upended inher- ince the n d ited assumptions. Authors and rights holders have so far retained mptions. i their ascendancy in legislation. But, for the first time in almost two endancy i t centuries, Continental skeptics asked whether authorial privileges c , Contine had not reached, and possibly breached, the necessary maximum. reached, h Early in the new millennium anarchistic pirate parties in Sweden E the new and Germany challenged the authorities’ authorphilia. They found many cha a soul mates among the citizens of the former East Bloc, who were es among s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

23 The Agon of Author and Audience 13 also impatient with the inherited pieties of the Western European also impatient with the inherited pieties of the h is bl esta l tura l cu gh i h ment. high cultural establishment. History books sensibly shy away from predictions. How this most History books sensibly shy away from predictions. How thi recent formulation of long- standing battles will eventually end is - standing battles will eventually end recent formulation of long unforeseeable. But we can note that today’s struggles are fought in unforeseeable. But we can note that today’s struggles are fought in terms that would have been eminently comprehensible to those terms that would have been eminently comprehensible to those nineteenth- century reformers who battled over how broadly to ex- n adly to ex x - x tend rights and powers to authors and even to the disputants of the tend rights and powers to authors and even to the disputants of the uthors and even to the ts and pow eighteenth century. The copyright wars of our own era are only the h century e pyright wars of our own e y the latest iteration of a long- fought struggle. They can therefore not be ught struggle. They can ther be a ation of a l grasped without understanding its history. Chronologically blink- ding its history. Chronologic k without u k - grasped without understanding its history. Chronologically blink ered as we all are, the digital generation thinks it is fighting for the ks it is fightin e all are, t , e e first time a battle that, in fact, stretches back three centuries. ee centurie a battle th fi THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

24 1 1 T Copyright The Battle between Anglo- American Copyright uropea hors Rights a and European Authors’ Rights ed and distr Works are created by their authors, reproduced and distributed by Works are created by their authors, reproduced and distributed by re created eminator their disseminators, and enjoyed by the audience. These three actors, e. These th their disseminators, and enjoyed by the audience. These three actors, h their ow te dance. M - each with their own concerns, negotiate a delicate dance. Most gen each with their own concerns, negotiate a delicate dance. Most gen- ductive, th erally, all must be kept content: the author productive, the dissemi - erally, all must be kept content: the author productive, the dissemi- must be nator profitable, and the audience enlightened. Get the balance ofitable, a nator profitable, and the audience enlightened. Get the balance ned. Get th nd things of kilter. If authors become to wrong and things fall out of kilter. If authors become too exacting, wrong and things fall out of kilter. If authors become too exacting, disseminators are greedy or ence suffe the audience suffers. If the disseminators are greedy or the audience the audience suffers. If the disseminators are greedy or the audience tually the public domain miserly, culture and eventually the public domain dessicate. But culture an miserly, culture and eventually the public domain dessicate. But hese extre ere is much room for within these extremes there is much room for adjustment. Will within these extremes there is much room for adjustment. Will t laws tak copyright laws take as their first task protecting authors? Or will copyright laws take as their first task protecting authors? Or will they consider the audience and the public domain also as impor - r r sider the they consider the audience and the public domain also as impor- n historic tant? Seen historically, that has been the fundamental choice faced tant? Seen historically, that has been the fundamental choice faced ight deve - as copyright developed in the Anglo- as copyright developed in the Anglo- American world and in the American world and in t major continental European nations, France and Germany. Each po- ntinental major continental European nations, France and Germany. Ea sition has much to recommend it: public enlightenment for one, sition has much to recommend it: public enlightenmen as much t nurturing high- quality culture for the other. Neither can exist alone. g high- n ture for the other. Neithe q u The choice between them has never been either/or but always a T ice betwe question of emphasis, a positioning along a spectrum. And yet the q of emph battle between these views has also been what the Germans call a tween the b Kulturkampf , a clash of ideologies and fundamental assumptions, f f K , a cla mpf that has stretched back well over two centuries. stretched t The laws governing how artists, writers, musicians, choreographers, governin T directors, and other authors relate to their works are usually called , and othe d “copyright” in English. But this one word covers two different ap- ht” in Eng “ THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

25 Anglo-America vs. Europe 15 proaches. The very terms used to designate the European “authors’ proaches. The very terms used to designate the E Urheberrecht ri gh droit t in German and ts” a ternative— l Urheberrecht in droit d’auteur in German and rights” alternative— French—voice a more encompassing approach. To capture it as we French—voice a more encompassing approach. To capture it examine how these two approaches arose and evolved, this book will examine how these two approaches arose and evolved, this book w attempt consistently to call the Anglo- American approach “copy- ican approach “copy a 1 1 right” and the continental European view “authors’ rights.” right” and the continental European view “authors’ rights.” Copyright and authors’ rights take very different approaches to roaches to - authors and their social role. Seen historically over its long develop authors and their social role. Seen historically over its long develop- e. Seen historically ove nd their s ment, copyright has focused on the audience and its hopes for an ment, copyright has focused on the audience and its hopes for an d on the audience and it pyright ha expansive public domain. Authors’ rights, in contrast, have targeted Authors’ rights, in contrast, h public do expansive public domain. Authors’ rights, in contrast, have targeted creators and their claims to ensure the authenticity of their works. nd their c o ensure the authenticity of th creators and their claims to ensure the authenticity of their works. Copyright’s defenders see it as imbued with the spirit of the com- t’s defend Copyright’s defenders see it as imbued with the spirit of the com - the spirit of mon good. Copyright promotes authors’ creativity to benefit the mon good. Copyright promotes authors’ creativity to benefit the ivity to be d. Copyr public domain, allowing rights owners to exploit works efficiently. t works e public domain, allowing rights owners to exploit works efficiently. omain, allo For its detractors copyright is philistine and commercial, treating ommercial For its detractors copyright is philistine and commercial, treating etractors c noble creation as a mere commodity. It regards the creator as an en- ation as a s the creator - noble creation as a mere commodity. It regards the creator as an en 2 trepreneur and the work as a product. r and the p t uthors’ rig cre - tion, in turn, valiantly prote The authors’ rights tradition, in turn, valiantly protects the cre- on from cialization and exploitatio ator’s vision from commercialization and exploitation. It claims to ator’s vision from commercialization and exploitation. It claims to rest on the eternal verities of natural rights and regards copyright as e eternal of natural rights and reg rest on the eternal verities of natural rights and regards copyright as 3 For its detractors the au- - rs the au a utilitarian, man- made creature of statute. a an, man- m thors’ rights approach indulges seemingly whimsical artistes at the e h t at rtistes t hts appro 4 Its culturally conservative insistence that the insistence that the expense of the public. e of the pub creator retain the final say on a work’s form hinders collective an tain the fi creator retain the final say on a work’s form hinders collective and collaborative efforts, let alone acknowledgment of the audience’s collaborative efforts, let alone acknowledgment of the audie tive effort role in determining a work’s meaning. From this vantage the au- role in determining a work’s meaning. From this vantag eterminin thors’ rights approach embodies in statute an outmoded Romantic thors’ rights approach embodies in statute an outm hts approa artiste notion of the individual , alone in a garret, dictating how his n f the indiv genius should be venerated. Copyright encourages innovation and g ould be v promotes dissemination. Authors’ rights restrain distribution, inhib- p dissemin iting experimentation and public exposure. Authors’ rights speak i t erimentat for creators, while copyright favors disseminators and interpreters ors, while fo 5 and ultimately the audience. mately the a ght sees c Copyright sees culture as a commodity. Its products can be sold ged, large and changed, largely like other property. But the authors’ rights, es- a heir “mor p pecially their “moral rights,” run counter to the market. Inalienable ey remain c claims, they remain with the creators or their representatives even if THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

26 16 Chapter 1 they conflict with the commercial ambitions of they conflict with the commercial ambitions of the rights owners. The authors’ rights ideology sees itself speaking for high c The authors’ rights ideology sees itself speaking for high culture. It is 6 elitist and exclusive, while copyright is democratic and egalitarian. elitist and exclusive, while copyright is democratic and egalit Copyright gives authors a limited economic monopoly over th Copyright gives authors a limited economic monopoly over their work to stimulate their creativity, eventually enrich the public do work to stimulate their creativity, eventually enrich the public do- main, and thereby serve the public interest. Private interests are thus main, and thereby serve the public interest. Private interests are thus subordinated to the public good. Authors’ rights, in contrast, make subordinated to the public good. Authors’ rights, in contrast, make no attempt to serve the public good as such, except tangentially in blic good as such, exc mpt to serv - no attempt to serve the public good as such, except tangentially in- happy auth s er society. sofar as happy authors better society. ontinenta - gy assumes that the author’s a udi The Continental ideology assumes that the author’s and the audi- ence’s interests do not contradict each other directly. The public terests do ntradict each other directly. ence’s interests do not contradict each other directly. The public d well. But c ly benefit eventually benefits when authors are treated well. But copyright’s eventually benefits when authors are treated well. But copyright’s a s see a ten hor and au adherents see a tense negotiation between author and audience. In n their utilitarian calculation the public domain is served by protect - their utilitarian calculation the public domain is served by protect- s served b t itarian ca t ing authors only as necessary to keep them contented and produc- - ing authors only as necessary to keep them contented and produc ntented an ors only a arding a w nly the mea r r - r t u tive. Rewarding authors is not the goal but only the means to fur- ther their productivity. Social goals are preeminent, and the author’s ther their productivity. Social goals are preeminent, and the author’s r producti ial goals are preeminent, and t and the audience’s claims do not always reconcile. “It is somehow do not always reconcile. “It audience’ and the audience’s claims do not always reconcile. “It is somehow typical of the American reasoning regarding copyright,” says a French soning regarding copyright f the Ame typical of the American reasoning regarding copyright,” says a French observer, “to oppose the interests of consumers to those of authors “to oppo observer, “to oppose the interests of consumers to those of authors nterests of consumers to 7 7 and performers.” ormers.” a hts. The Con rs’ rights, Authors’ rights, in contrast, derive from natural rights. The Con- - tinental approach defends creators and their work. In a sense it tinental approach defends creators and their work. In a sense it approach seeks no other interest—public or otherwise. Authors’ rights, says a other int seeks no other interest—public or otherwise. Authors’ rights, say 8 distinguished French jurist, seek to protect the author, not society. distinguished French jurist, seek to protect the author, not so shed Fren it sets the Because it sets the author before all, writes a French law Because it sets the author before all, writes a French law professor, balancing interests, on the model of the copyright systems, is for- g interest balancing interests, on the model of the copyrigh 9 e The author, in the words of a standard he French eign to the French tradition. French legal textbook, “owes society nothing. He has no more obli- F egal textb n this res g gations in this respect than the mason who builds or the farmer 10 who ploughs. Quite the contrary, society owes him.” w ughs. Qui This contrast between copyright and authors’ rights has often es- ontrast be calated into a “clash of civilizations” between the Anglophone world nto a “clas c 11 As one observer has recently ventured, the Eu- and the Continent. Continen a position, r r ropean position, represented especially by France, is directly anti- 12 Copy- n almost t thetical in almost all respects to that of the United States. right is but the regulation of the entertainment industry’s affairs, as but the reg r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

27 Anglo-America vs. Europe 17 a Continental jurist put it in 1990. It ignores the author’s personality, a Continental jurist put it in 1990. It ignores the au on whose protection the essence of civilization rests. “A on whose protection the essence of civilization rests. “An intimate and mysterious tie binds the work to its author. It is this connection and mysterious tie binds the work to its author. It is this conn which French law strives to protect. American law is not even aware which French law strives to protect. American law is not even aw 13 of its existence.” o ghts has been As the battle between copyright and authors’ rights has been fought across the channel and especially across the Atlantic from fought across the channel and especially across the Atlantic from the late eighteenth century on, such vague cultural confrontations on, such vague cultu the late eighteenth century on, such vague cultural confrontations ighteenth have been increasingly anchored in statute. That copyright speaks n increasi hored in statute. That co have been increasingly anchored in statute. That copyright speaks industries is a European commonplace. One mainly for the content r the con ustries is a European commo One m German observer calls Anglo- American copyright the “producer’s G glo observer c American copyright the “ r’s copyright,” an instrument of industrial policy corresponding to the correspondi ,” an instr copyright,” an instrument of industrial policy corresponding to the 14 - Europeans protect the au- ans protec Americans’ fondness for competition. ns’ fondne A rman insi thor’s “basic human property rights,” another German insists, while sic huma thor’s “basic human property rights,” another German insists, while the Anglo- Americans aim only at a “simple protection of commer- tection of o- America - - t 15 tates and th In the United States and the United d cial and technical interests.” c t l nica h ec it is incon Kingdom it is inconceivable that business should be disturbed by an Kingdom it is inconceivable that business should be disturbed by an e that business should be distu 6 16 1 French law, as a legal textbook puts it, specifically aw, as a legal textbook puts it ally author’s scruples. cruples. a s the idea rotecting intellectual prop repudiates the idea that protecting intellectual property serves to repudiates the idea that protecting intellectual property serves to stimulate creativity. Rather, it is a mark of respect to works of the creativity stimulate creativity. Rather, it is a mark of respect to works of the it is a mark of respec 17 spirit and their creators. their crea s eans often and archaic Europeans often insist that copyright is primitive and archaic 18 on of creativity and Recognition of creativity and compared to their refined approach. d to their c “establishment of authors’ rights is one of the essential features ment of a “establishment of authors’ rights is one of the essential features of 19 The danger, French commentators warn, is let- nger, French commentators warn, European culture.” E n culture.” ting the Anglo- Saxons gain the upper hand. That way lies the “slow the upper hand. That way lies x a S t Anglo- decline of the authors’ rights to mere copyright” and the rise of a decline of the authors’ rights to mere copyright” a f the auth 20 “mercantilistic Europe” built on the “ruins of humanistic Europe.” ilistic Eur “ When in 1957 the French passed their first comprehensive law on in 1957 th the subject since the 1789 revolution, they invoked the author’s ct since t moral rights to distinguish themselves from the mercantile Anglo- m hts to dis 21 Down to our own day, the French battle for their “cultural Down to Saxons. S exceptionalism.” In 2004 a French government report praised the na- e alism.” In tion for having formulated the principle of the author’s personal having for t 22 rights, while the Anglo- Saxons protected merely business investors. r hile the An writing i As of this writing in 2014, trade negotiations between the European A d the Uni U Union and the United States hinge on whether an exception to free THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

28 18 Chapter 1 trade will be permitted to the French cultural i trade will be permitted to the French cultural industries. On such issues all French agree, left and right. During recent pa issues all French agree, left and right. During recent parliamentary debates Communist and Socialist senators vied with each other in debates Communist and Socialist senators vied with each o support of France’s tradition of moral rights, railing against the “fac- support of France’s tradition of moral rights, railing against the “ 23 .” à l’américaine ile logic of copyright i Such clashes pit against each other not just two legal systems but gal systems but 24 for granted The French take for granted diametrically opposed philosophies. d that there is a contrast, indeed a debate and an antagonism across the e is a cont eed a debate and an ant that there is a contrast, indeed a debate and an antagonism across the 25 25 s that nch legal textbook from 2 A stan d A standard French legal textbook from 2005 insists that Atlantic. A the individualistic French approach radically differs from the more the individualistic French approach radically differs from the more vidualistic approach radically differs fro communitarian line—guided by the public’s interest, not the au- communitarian line—guided by the public’s interest, not the au nitarian li - ded by the public’s interest, n thor’s—taken by the Communists, Nazis, and Americans (together d Americans aken by t thor’s—taken by the Communists, Nazis, and Americans (together 26 6 at last!). a S KE T THE STAKES u y W orial Why should we care about woolly- headed disputes over authorial t wooll headed disputes ov - ould we c rights and the social role of creativity? More is at stake than the rights and the social role of creativity? More is at stake than the of creativity? More is at nd the soc amour propre of the creative classes. Fought in a recognizably mod- ropre of t ve classes. Fought in a r a y mod - ern sense for over two centuries, such debates have recently flared up e for over t ern sense for over two centuries, such debates have recently flared up again as intellectual property has become increasingly important to intellectu again as intellectual property has become increasingly important to modern economies. The human mind, claims the internet visionary modern economies. The human mind, claims the internet visionary economie John Perry Barlow, “is replacing sunlight and mineral deposits as the John Perry Barlow, “is replacing sunlight and mineral deposits as t ry Barlow 27 7 27 The cost of manufacturing a pair The cost of manufacturing principal source of new wealth.” principal source of new wealth.” source o of Nike shoes is 4 percent of its retail price. The rest consists of in- of Nike shoes is 4 percent of its retail price. The rest con shoes is 4 tangibles: patents, trademarks, brand image, know- how, and the : patents tangibles: patents, trademarks, brand image, kno 28 2010 indu In 2010 industries heavily based on intellectual property pro- like. l 29 vided 27 percent of US jobs. v percent o of owner Issues of ownership and its enforcement have extended beyond obvious industries like film, music, publishing, and software also to o industries manufacturers—computers, pharmaceuticals, agricultural chemicals, turers—co m car parts, and fire alarms. Pirating digital products is far more lucra- and fire a c tive than counterfeiting physical items. A knock- off Gucci handbag t counterfe costs roughly the same in materials as the original, though spared ughly the c the investment of whatever design genius lies behind it. To develop tment of t a semiconductor chip can cost $100 million, to copy it a thousandth nductor c a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

29 Anglo-America vs. Europe 19 30 With software the disparity is even starker. Digitization has that. With software the disparity is even stark of that. of steered the marginal cost of a pirated software program steered the marginal cost of a pirated software program, song, or film toward zero. The laws originally formulated for writers, artists, film toward zero. The laws originally formulated for writers, a composers, and publishers have become serious business. Modern composers, and publishers have become serious business. Mode economies demand legally clear and enforceable intellectual prop- economies demand legally clear and enforceable intellectual prop erty rights across a global economy. e International trade too has become more focused on intellectual ntellectual property. During the 1990s the United States, Europe, and Japan During t s the United States, E property. During the 1990s the United States, Europe, and Japan faced the developing world and the rising Asian nations in disputes and the rising Asian natio faced the developing world and the rising Asian nations in disputes developin over copyrights and patents. Threatened with being cut- off from yrights an om o ts. Threatened with being c access to first- world markets for their—mainly agricultural and - wo a r fir ets for their—mainly agricu st nd commodity—export goods, poor countries now had to impose reg- ow had to im ity—expo - g c ulations against counterfeiting and infringement formulated in against c ment formu ulations against counterfeiting and infringement formulated in 31 t Arguably, this strict global enforcement lobal enfo Washington and Brussels. W on and B o of intellectual property rights introduced late in the twentieth cen- the twent - ctual prop tury prevented emerging nations from following the same low road ented eme ng the same tury prevented emerging nations from following the same low road of piracy that the currently industrialized ones—none more shame- industrialized ones—none mo that the c of piracy that the currently industrialized ones—none more shame - lessly than the United States—had themselves travelled during the lessly than the United States—had themselves travelled during the es—had themselves travelled n the Uni 32 Today, the US shakes its fist at China’s pi- ’s pi - oday, the US shakes its fist previous two centuries. p two centu rates, as Europe did at America’s a century ago. But China is already rica’s a century ago. Bu urope did rates, as Europe did at America’s a century ago. But China is already the third largest patentor in the world, trailing only the United the third largest patentor in the world, trailing only the United largest p States and Japan, and it joined the Berne Convention (the first inter- d Japan, an States and Japan, and it joined the Berne Convention (the first inter - r r national copyright union) in 1992, only three years after the Ameri- - copyright national copyright union) in 1992, only three years after the Ameri 33 , if it has not already happened, Chin some po At some point soon, if it has not already happened, China cans. c too—like the US in the 1980s and ’90s—will switch from pirate to the US i too—like the US in the 1980s and ’90s—will switch from pira policeman. p n. THE BATTLE IS JOINED TLE IS JO T Inherent in the clash between copyright and authors’ rights are I in the cl strikingly divergent attitudes toward the creation and dissemination s divergen of culture, the reciprocal obligations and interests of creators and e, the reci o society, and the nature and social function of art, literature, and nd the na s music. While authors’ rights have many defenders in the English- While auth m Saxon system. speaking world, few Europeans believe in the Anglo- world, few s European criticism of copyright as sacrificing culture on the altar of n criticism E THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

30 20 Chapter 1 commodity is therefore commonly known on b commodity is therefore commonly known on both sides of the At- lantic. But defenders of copyright are scarce on the Conti lantic. But defenders of copyright are scarce on the Continent. Euro- peans are unfamiliar with the idea that the copyright ideology could peans are unfamiliar with the idea that the copyright ideology be something more than support of the content industries’ self- be something more than support of the content industries’ s interest. The traditional copyright approach’s defense of the public interest. The traditional copyright approach’s defense of the public interest and of a balance between the competing claims of audience interest and of a balance between the competing claims of audience speaking world, and author are rarely heard there. But in the English- a king world, copyright’s social purpose was widely debated up until the late e was widely debated copyright’s social purpose was widely debated up until the late t’s social twentieth century, when the United States changed course and twentieth century, when the United States changed course and h century the United States chang largely adopted the Continental position of strong intellectual prop- ental position - l dopted the of strong intel rop erty rights. e ts. The dichotomy between the two ideologies has not always been en ichotomy es has not al equally pronounced. Early in the eighteenth century both Anglo- pronounc equally pronounced. Early in the eighteenth century both Anglo- entury bo Saxon and Continental nations deprived booksellers of their royal ellers of t Saxon and Continental nations deprived booksellers of their royal nd Contin publishing privileges, instead giving authors property rights in their publishing privileges, instead giving authors property rights in their ng privileg perty righ works, based on natural rights. But during the nineteenth century w ry ased on n he nineteent the seas parted. In Britain and America the fiction of a natural right parted. In the seas parted. In Britain and America the fiction of a natural right and America the fiction of a na to works was largely abandoned, replaced instead with claims s was lar andoned, replaced instead to works was largely abandoned, replaced instead with claims founded merely on statute. On the Continent, however, the idea of merely o . On the Continent, howev founded merely on statute. On the Continent, however, the idea of authors’ strong property claims, anchored in natural rights, contin- - authors’ strong property claims, anchored in natural rights, contin aims, anchored in natu strong pro ued. Late in the nineteenth century it was reinforced by an allegedly in the ni ued. Late in the nineteenth century it was reinforced by an allegedly equally natural claim based no longer on property, but on personal- - natural cla equally natural claim based no longer on property, but on personal ity. The work was not just the author’s possession. It was part of his ity. The work was not just the author’s possession. It was part of his work was very being. The Anglosphere received such ideas skeptically. ng. The An very being. The Anglosphere received such ideas skeptically. Formed in 1886, the Berne Union was long the foremost interna- ed in 1886 ne Union was long the foremost in tional venue for propagating the authors’ rights ideology. Britain nue for p tional venue for propagating the authors’ rights ideolog joined from the start, but grudgingly. To this day its allegiance to om the s joined from the start, but grudgingly. To this day crucial Berne tenets has been partial at best. As the most radical in- c erne tene terpreter of the copyright tradition, the United States long resisted t of the co Berne, joining only in 1989. But during the 1990s the US swung oining on B around, and the erstwhile copyright outlaw became intellectual a and the property’s international policeman. Spurred on by its now powerful p ’s internat content exporters, it began championing strong property rights for exporters, c authors and their assignees. For other aspects of the Continental ide- and their a a ology, especially the pesky nuisance of the author’s moral rights, the o pecially th United States and Britain were eventually compelled to don legal fig tates and U leaves just big enough to render modesty its due. st big eno l THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

31 Anglo-America vs. Europe 21 The digital era’s debates over intellectual property echo these bat- The digital era s debates over intellectual prope tles of the past two centuries. Will the internet be a free tles 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 dis- w forum? Or charged but traditional form ill it be a turbo- semination, restrained by inherited property rights? In the 1990s semination, restrained by inherited property rights? In the 199 public opinion was whipped to a froth as the recording industry public opinion was whipped to a froth as the recording industry sued its downloading customers for seven- figure sums, while law- - ms, while law s makers were deluged by e- mails from irate music fans. Shadowy Shadowy m bands of digital hackers shut down corporate websites. Current dis- bands of digital hackers shut down corporate websites. Current dis ut down corporate web - digital ha putes are heavily colored by inherited positions. The digital millen- - illen y inherited positions. The p heavily co nialists, so prominent in the United States, dream of a dramatically o promine nialists, so prominent in the United States, dream of a dramatically e United States, dream of a expanded public domain. They formulate what is arguably a mod- expanded public domain. They formulate what is arguably a mod public d - They formulate what is arguab ern version of the now- embattled US copyright tradition. In Europe, e, t tradition. I e n of the n in contrast, inherited concepts of intellectual property continue to roperty con in contrast, inherited concepts of intellectual property continue to st, inherit dominate. The internet is seen more as a threat to authors than a to autho . The inte dominate. The internet is seen more as a threat to authors than a promise for the public. Until recently, digital visionaries have been sionaries h for the pu p n marginalized. Shunned by the establishment, their views have been zed. Shun their views h marginalized. Shunned by the establishment, their views have been advocated mainly by a radical fringe of pirate parties in nations like advocated mainly by a radical fringe of pirate parties in nations like cal fringe of pirate parties in n d mainly b Sweden and Germany. S nd Germa The dichotomy between copyright and authors’ rights has thus chotomy copyright and authors’ r thus fluctuated. Moderate during the eighteenth century, it became pro- d. Modera g the eighteenth centu fluctuated. Moderate during the eighteenth century, it became pro - nounced in the nineteenth. The postwar American conversion to in the ni nounced in the nineteenth. The postwar American conversion to strong intellectual property rights tempered it again, but in recent tellectual strong intellectual property rights tempered it again, but in recent years the tension has flared up anew. Polemical accounts supporting years the tension has flared up anew. Polemical accounts supporting tension h authorial rights often emphasize the distinction between the two rights oft authorial rights often emphasize the distinction between the tw approaches as they attack Anglo- Saxon cultural mercantilism. Since Saxon cultural mercantilism. approaches as they attack Anglo- es as they they survey the long sweep, historical accounts have done so too. ey the lon they survey the long sweep, historical accounts have don But legal scholars, writing for today’s practitioners, sometimes scholars actition But legal scholars, writing for today’s pr 34 Some differences remain stark: the role downplay the distinction. d y the disti of work- for- hire (where the employer receives the author’s rights) or- hire ( w o and the importance of fair use (exceptions to the author’s exclusive a mportanc rights) are greater in the copyright systems than on the Continent. r e greater But other differences have been effaced as intellectual property regu- differenc B lation globalized. As Berne members most nations now downplay la obalized. A the once- important role of certain formalities that used to be re- t importa n quired for staking authorial claims. Today, the United States and the q r staking a European Union both set the length of protection at seventy years n Union b E postmortem. Given the internationalization of intellectual property em. Given p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

32 22 Chapter 1 legislation, the differences between the two appr legislation, the differences between the two approaches can best be identified through historical analysis. Seen over the longu identified through historical analysis. Seen over the longue durée , for example, terms have invariably been longer, and they have been ex- example, terms have invariably been longer, and they have b tended earlier on the Continent than in the Anglosphere. tended earlier on the Continent than in the Anglosphere. Though waxing and waning, the distinction between the two sys- n between the two sys tems persists to this day. In 2006 the French conducted an extended tems persists to this day. In 2006 the French conducted an extended debate over whether author or audience should take priority. They debate over whether author or audience should take priority. They style ated the o f the divergence betwe now located the origins of the divergence between European- style now located the origins of the divergence between European- authors’ rights and Anglophone copyright not with the world’s first hone copyright not with t authors’ rights and Anglophone copyright not with the world’s first rights and modern copyright law, the British Statute of Anne of 1710. Instead e British Statute of Anne of copyright modern copyright law, the British Statute of Anne of 1710. Instead they regarded the first American national copyright law of 1790 as arded the they regarded the first American national copyright law of 1790 as merican national copyright law 35 the more dangerous precedent. iate enemy h e dangerou ed t The immediate enemy had shifted westward within the Anglosphere, but the fundamental antago- - westward within the Anglosphere, but the fundamental antago d within undamenta thors’ righ s Atlantic spat over authors’ rights is thus nism remained. The trans- n mained. T part of a broader quarrel that has long pitted the Continent against e Contine part of a broader quarrel that has long pitted the Continent against broader q he French a t w o- Saxon world, or more narrowly, the French against the the Anglo- he Saxon A ns. Americans. EEN BET S C PARSING THE DIFFERENCES BETWEEN G THE DI W E C GHT AND COPYRIGHT AND AUTHORS’ RIGHTS ces betwee Differences between copyright and authors’ rights are clear at a gen- Differences between copyright and authors’ rights are clear at a gen eral and philosophical level. But in the hurly- burly of implementa- burly of implemen philosoph eral and philosophical level. But in the hurly- tion and administration, they are frequently obscured by everyday tion and administration, they are frequently obscured by eve administ practical considerations. Outcomes are often dictated by functional considera practical considerations. Outcomes are often dictated by 36 6 3 Courts Courts on both sides of necessity, not philosophical disagreement. n , not philo l disagreement. the Atlantic have sometimes reached similar conclusions, but for dif- ntic have s t 7 37 37 Let us therefore clarify the specific distinctions be- Le ferent reasons. f asons. tween these two systems. How have the ideological differences been t ese two sy expressed in law and jurisprudence? d in law an e Among the concrete ways in which copyright and authors’ rights g the con have differed are these: h ered are th . The Continental systems have historically had 1. Duration of term ation of ter longer terms of protection for authors. Indeed, over three centuries rms of pr l ve always t terms have always been shorter in the United States than in France 38 any, and o o or Germany, and only as of 1998 have they been largely the same. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

33 Anglo-America vs. Europe 23 That holds for the United Kingdom too, except That holds for the United Kingdom too, except between 1911 and 1934 when Britain adopted the Berne fift y- year postmo 1934 when Britain adopted the Berne fifty- year postmortem term before Germany did, and the two years of 1995–1997 until the before Germany did, and the tw o years of 1995–1997 unt French got around to implementing the EU requirement of seventy French got around to implementing the EU requirement of seven years. Anglophone term extensions have almost invariably followed years. Anglophone term extensions have almost invariably followed Continental precedents. Natural rights ideology instinctively dic- Continental precedents. Natural rights ideology instinctively dic - 39 39 tated perpetual rights, using the analogy of conventional property. tated perpetual rights, using the analogy of conventional property. nto statute in Venice rights m Perpetual rights made it into statute in Venice in 1780, in 1814 in Perpetual rights made it into statute in Venice in 1780, in 1814 in Holland, at the end of the nineteenth century in Mexico, Venezuela, Holland, at the end of the nineteenth century in Mexico, Venezuela, nineteenth century in Mex at the end tugal in 1927. But on the who and Guatemala, and in Portugal in 1927. But on the whole they have and Guatemala, and in Portugal in 1927. But on the whole they have emala, an not proven realizable. Yet to this day perpetuity remains a constant o this day perpetuity remains en realizab not proven realizable. Yet to this day perpetuity remains a constant ideal of the Continental rhetoric of strong authorial rights. Recent he Contin ideal of the Continental rhetoric of strong authorial rights. Recent uthorial righ standard French legal textbooks advocate perpetual rights in ways etual right French le standard French legal textbooks advocate perpetual rights in ways 40 4 In con- - t that are inconceivable in their Anglophone equivalents. uivalents. nconceiva trast, the American Constitution prohibits perpetuity, specifically petuity, sp trast, the American Constitution prohibits perpetuity, specifically American - restricting copyright protection to limited times. Perpetual Anglo - g copyrigh restricting copyright protection to limited times. Perpetual Anglo mes. Perpetu sted only as a few rare anom phone copyrights have existed only as a few rare anomalies: the opyrights phone copyrights have existed only as a few rare anomalies: the B ord rown for g James translation of the Bi British Crown for the King James translation of the Bible; Oxford bridge un s for works given them by and Cambridge universities for works given them by their authors; and Cambridge universities for works given them by their authors; eet Hospital for Child Great Orm and the Great Ormond Street Hospital for Children for J. M. Bar- r r - and the Great Ormond Street Hospital for Children for J. M. Bar 1 4 41 Peter Pan r rie’s Pa n . . ean opinio g terms as an European opinion has almost unanimously seen long terms as an unmitigated good. Only the maximum possible protection, as one unmitigated good. Only the maximum possible protection, as one ted good. 42 42 In observer put it, can enhance the full development of culture. put it, can observer put it, can enhance the full development of culture. contrast, the Anglophones have more often worried that the public the Anglo contrast, the Anglophones have more often worried that the p (2003) challenged Eldred v. Ashcroft domain would thus be curbed. domain would thus be curbed. Eldred v. Ashcroft (2003) ch ft would thu the constitutionality of extending terms for existing works after the itutionalit the constitutionality of extending terms for existing United States had stretched them from fifty years postmortem to the U ates had s 43 The Supreme Court, however, ruled that yet EU norm of seventy. E of sevent another retrospective extension of term did not render it unlimited etrospecti a high- and thus unconstitutional. Despite the plaintiffs’ failure, Eldred unconstit a lighted a basic trans- Atlantic difference. Their lawyer, Lawrence Les- li basic tran sig, questioned whether there was a constitutional limit on Ameri- s ioned wh ca’s ability to imitate the Europeans “as they continually expand the c y to imita 44 Eu- term in light of their own vision of what copyright is about.” ight of th t rope had nothing like the American outpouring of legal opinion nothing r 45 g the relen c criticizing the relentless lengthening of copyright’s duration. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

34 24 Chapter 1 The globalization of intellectual property reg The globalization of intellectual property regulation has erased many of the actual differences between copyright an many of the actual differences between copyright and authors’ rights. Most nations now have largely the same lengthy term dura- rights. Most nations now have largely the same lengthy term tions. But their national preferences have been revealed by whether tions. But their national preferences have been revealed by whet they have actively espoused long terms or have reformed only under they have actively espoused long terms or have reformed only unde pressure, with dispute and foot dragging. Seen historically, authors’ pressure, with dispute and foot dragging. Seen historically, authors’ right countries have favored longer terms, while copyright nations right countries have favored longer terms, while copyright nations resisted them. h em . r 2. Formalities of protection . Based on authors’ inherent claims to n . Based on authors’ inh malities of ms to their work, the Continental approach has discounted the formalities rk, the Co their work, the Continental approach has discounted the formalities l approach has discounted th traditionally required to protect works—registering, affixing notice ally requi rotect works—registering, affi traditionally required to protect works—registering, affixing notice to and depositing the work, renewing rights, and the like. Protection and the like. to and depositing the work, renewing rights, and the like. Protection epositing is triggered by the sheer fact of creation. Why should authors lose should au is triggered by the sheer fact of creation. Why should authors lose red by the their claims for having overlooked some paperwork? The work is work? Th ims for h their claims for having overlooked some paperwork? The work is often covered even without being fixed—as for lectures, improvisa- lectures, i vered even - often covered even without being fixed—as for lectures, improvisa 46 On the few occasions where the Continental al here the Co tions, and the like. t e the lik d systems require formalities, neglect of them generally merely delays require fo systems require formalities, neglect of them generally merely delays , neglect of them generally me 47 or curtails protection. o ls protecti n o the Contine w formalities are artificial o In the Continental view formalities are artificial obstacles to the rights. But from copyr natural p author’s natural property rights. But from copyright’s vantage the author’s natural property rights. But from copyright’s vantage the point of formalities was to ensure that only those works worth point of formalities was to ensure that only those works worth formaliti jumping hoops for were kept in private hands and out of the public hoops fo jumping hoops for were kept in private hands and out of the public domain. A 1975 US Senate report’s first reason to support formalities A 1975 US domain. A 1975 US Senate report’s first reason to support formalities was that they placed in the public domain the large body of pub- they plac was that they placed in the public domain the large body of pu 48 48 The opposition The oppo lished material that no one bothered to copyright. lished material that no one bothered to copyright. aterial tha between the two systems can be summed up thus: in authors’ rights the two s between the two systems can be summed up thus: in auth works were born as private property. But in copyright they belonged works were born as private property. But in copyrig ere born a automatically to the public domain unless the author took pains to cally to th a 49 Formalities thus under- register them. “No registration, no right.” hem. “No r lined the copyright thesis that intellectual property was not based l e copyrigh on natural rights but was an artificial creation of statute. o al rights b On this point, too, the two approaches have come to approximate is point, to each other. And yet the antagonism has not wholly vanished. The er. And y e UK followed Berne’s dictate to eliminate formalities in 1911, but it U wed Bern now also requires that authors formally assert their moral rights—a requires n true muddle. Though the US eliminated formalities starting in 1976 ddle. Thou t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

35 Anglo-America vs. Europe 25 as it edged toward joining Berne, American crit as it edged toward joining Berne, American critics to this day still lament the sacrifice and have attempted to challenge it lament the sacrifice and have attempted to challenge its constitu- tionality, arguing that automatically protecting most works impedes tionality, arguing that automatically protecting most works im 50 0 5 the progress of science and the useful arts. . the progress of science and the useful arts 3. Alienability . Eighteenth- century reforms aimed to give authors aimed to give authors property rights in their works to sell on the market. Unless the works property rights in their works to sell on the market. Unless the works were entirely theirs to alienate, they would receive less than full w than full 51 n this resp In this respect, copyright regarded the work as akin to other right regarded the wo o other v value. property. forms of property. After alienation the creator and creation had lienation the creator and forms of property. After alienation the creator and creation had parted. In authors’ rights systems, in contrast, works can never be ystems, in contrast, works c parted. In authors’ rights systems, in contrast, works can never be n authors’ wholly divorced from their creators. They retain significant control, wholly divorced from their creators. They retain significant control, vorced fro creators. They retain significa even after having assigned economic rights. As a free man cannot even after having assigned economic rights. As a free man cannot As a free ma r having a sell himself into slavery, so the author cannot alienate his work. In sell himself into slavery, so the author cannot alienate his work. In lienate his elf into sl German law authors quite simply cannot assign or transfer the work aw autho r transfer German law authors quite simply cannot assign or transfer the work as such but only limited use rights. In France today moral rights (to ut only lim day moral as such but only limited use rights. In France today moral rights (to which we come shortly) are inherently inalienable. As shown in the able. As show come sho which we come shortly) are inherently inalienable. As shown in the case of Prince Michael of Greece, discussed in the introduction, even case of Prince Michael of Greece, discussed in the introduction, even ince Mich reece, discussed in the introduc if alienated by contract, moral rights remain with the author. By if alienated by contract, moral rights remain with the author. By oral rights remain with the ed by con contrast, in the Anglophone world rights (including those moral ne world rights (including contrast, in the Anglophone world rights (including those moral in the An rights recognized in statute) are largely assignable. Indeed, as we will rights recognized in statute) are largely assignable. Indeed, as we will are largely assignable. ognized in see with the work- for- hire doctrine, in legal terms owners are re- the work rs are re - s garded as authors. authors. g Contracts . Since copyright allows fuller alienability of works, 4. enability of works, tracts . Sin contracts in the Anglosphere have usually been freer than in au- ere have usually been freer than in a in the A c 52 ntinental nations often regulate how Continental nations often regulate how au- thors’ rights countries. hts countr t 53 3 5 The French law o The French law of 1957, for thors can transfer rights to future works. transfer r thors can transfer rights to future works. example, forbade all blanket transfers of future works and then spec- example, forbade all blanket transfers of future work forbade al ified allowable transfers in numbing detail. Only five future works fi wable tran i in any given genre within five years were legal. The publisher had to ven genre i n decide to accept each work within three months after submission. d accept ea The author was able to revoke the agreement if the publisher re- or was ab T jected two successive works in one genre, and so forth. The author je o successi was assumed to be the weaker party, in need of protection against med to be w 54 We want to defend the author against rapacious disseminators. dissemin r himself, explained Jean Zay, minister of education in the French explained h 55 Authors were helpless, P Front gove Popular Front government of the late 1930s. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

36 26 Chapter 1 Luftmenschen , unable to defend the Luftmenschen , unable to defend themselves—or so the unworldly unworldly French argued during their campaign to insert stron French argued during their campaign to insert strong authorial 56 56 rights into the U.N. Declaration of Human Rights in 1948. rights into the U.N. Declaration of Human Rights in 1948. Copyright nations, on the other hand, have generally considered Copyright nations, on the other hand, have generally conside authors able to manage their own affairs. Authors are seen as free authors able to manage their own affairs. Authors are seen as free agents in the marketplace, knowing the value of their works and agents in the marketplace, knowing the value of their works and s en systems selling them only for a fair price. But even market- driven systems hem. The 1976 US Cop have sometimes cosseted them. The 1976 US Copyright Act allowed metimes co have sometimes cosseted them. The 1976 US Copyright Act allowed could a second b five y a e apple. After thirty- authors a second bite of the apple. After thirty- five years they could - renegotiate terms (termination of transfer) since the “unequal bar ate terms renegotiate terms (termination of transfer) since the “unequal bar- ation of transfer) since the “ r r gaining position of authors” meant they could not know the value s” meant they could not know gaining position of authors” meant they could not know the value position o 57 US But only rare But only rarely did US o of their work until it had been exploited. work unti l law allow copyright law to trump contract. w copyrigh 5. Identity of the Author and Work- for- Hire . Work for an employer rk for an tity of the r (work- for- hire) or by corporate or collective entities has been closely ties has be ire) or h r- y b connected to alienability. The Continental systems have recognized connected to alienability. The Continental systems have recognized tems have r d to alien mainly flesh- and- blood creators, not legal entities nor anyone other ators, not legal entities nor an b - and m esh- her than the actual author. There are exceptions to this generalization. ere are exceptions to this ge actual au than the actual author. There are exceptions to this generalization. For collective works with many individual contributors, authorship y an m F indi v ctive work idual contributo rship 58 58 In 1 vested In 1985 France vested is sometimes vested in corporate entities. imes vest orate entities i r p . rights for software in the corporate employer of the programmers. rights for software in the corporate employer of the programmers. r software But, as a rule, even work done for hire in the French and German rule, even But, as a rule, even work done for hire in the French and German systems entitles employee authors to similar rights in their creations entitles em systems entitles employee authors to similar rights in their creations as their self- employed peers. o elf- empl s. a ystems have routinely vested autho In contrast, copyright systems have routinely vested authorship ntrast, cop in corporate entities, attributed work- hire to the spon rate entiti in corporate entities, attributed work- for- hire to the sponsoring en- or f - resolved tity, and resolved issues surrounding collective, collaborative, and tity, and resolved issues surrounding collective, co 59 c e works b corporate works by contract. Not only is the corporate entity be- h work the hind the work the first owner of copyright, it is often regarded as 0 6 60 Who was the author of , Milos For- Citizen Kane W the author too. . o t r too man asked rhetorically in 1994? And who is it today? RKO Pictures ed rhetori m in 1941 and now Turner Broadcasting were the—in his eyes—ludi- i nd now T 61 61 swers. c crous answers. The 1909 US Copyright Act founded corporate au- T h thorship by including employers as authors of work- by inclu t for- hire. The 1 Copyright 1911 UK Copyright Act introduced work- for- hire too and vested au- thorship of photo graphs and musical recordings in the corporate of photo t he 1976 U owner. The 1976 US Copyright Act deemed the employer of the cre- o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

37 Anglo-America vs. Europe 27 ator not only the owner of all of the rights com ator not only the owner of “all of the rights comprised in the copy- 62 62 ight” but also the author of the work. Work- for- hire demonstrated W o r k- f o r - hire de r right” but also the author of the work. how copyright resisted Romantic ideas of individual autho how copyright resisted Romantic ideas of individual authorship 63 6 3 even as the Continent remained indebted to them. It remains per- en as the Continent remained indebted to them. ev It remains p haps the most important divergence between the two systems, espe haps the most important divergence between the two systems, espe- cially considering the large fraction of all content that is produced cially considering the large fraction of all content that is produced s work- a for- hire in the Anglo- Saxon nations. a . As we 6. Exceptions to the author’s exclusive rights ’s exclusive rights . As we would expect, the ect, the ptions to th Anglophone nations have generally accepted broader exceptions to Anglophone nations have generally accepted broader exceptions to generally accepted broader one nation authorial rights, allowing other authors, interpreters, and the audi- authorial rights, allowing other authors, interpreters, and the audi - rights, al ther authors, interpreters, an ence to make use of works without the permission of rights holders. without the permission of righ ence to make use of works without the permission of rights holders. make use o The US “fair use” doctrine has allowed use of protected works with- The US “fair use” doctrine has allowed use of protected works with fair use” d - protected wo out permission or compensation for broad, socially beneficial pur- - o ially benefi ission or poses. American practices have been more expansive than the “fair nsive than poses. American practices have been more expansive than the “fair merican pr dealing” of other Anglophone nations. That in turn has tended to be dealing” of other Anglophone nations. That in turn has tended to be of other A rn has ten more inclusive than the Continental counterparts, with their spe- more inclusive than the Continental counterparts, with their spe lusive tha parts, with - cific excepted uses enumerated in statute. Here too, international rated in statute. Here too, int pted uses cific excepted uses enumerated in statute. Here too, international standardization has scrubbed away stark differences. But, as we will ed away stark differences. Bu zation has standardization has scrubbed away stark differences. But, as we will see, the issue has reappeared in recent years as France and Germany sue has re d in recent years as France see, the issue has reappeared in recent years as France and Germany were pushed to expand their otherwise miserly exceptions to autho- - were pushed to expand their otherwise miserly exceptions to autho hed to exp r otherwise miserly exc rial rights. . r Compulsory licensing 7. . Compulsory licensing (sometimes known pulsory lice times known as equitable remuneration) allows works to be reproduced without ble remun as equitable remuneration) allows works to be reproduced without the author’s permission so long as certain criteria—usually royalty or’s permi the author’s permission so long as certain criteria—usually royal payment—are met. It has been used to bring works efficiently to the payment—are met. It has been used to bring works efficiently t —are met. public without much regard for the author’s rights, other than that thout mu public without much regard for the author’s rights, other of being paid. It has meshed more naturally with copyright practices of being paid. It has meshed more naturally with cop paid. It ha than the Continental approach and was adopted earlier and with Continen t 64 Licensing violated the core less fuss in the Anglophone world. in the An e l Continental principle of the author’s exclusive rights since, in effect, tal princi C it legalized infringement in return for automatically paid fines. Li- i d infring t censing destroyed his power of bargaining, George Bernard Shaw c destroyed complained to a parliamentary committee in 1909. If competitors ed to a p c could issue their own editions at rates determined by law, the first ue their o c 65 Compulsory publisher would offer less than for exclusive rights. would o p thus spok licensing thus spoke to the interests of the public and disseminators. l i S ocates hav Some advocates have seen it as a way to overcome the perennial con- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

38 28 Chapter 1 flict between authors property rights and society flict between authors’ property rights and society’s insistence on ac- cess. Squaring the circle, compulsory licensing granted au cess. Squaring the circle, compulsory licensing granted authors their (pecuniary) due, perhaps even perpetually, while throwing open the (pecuniary) due, perhaps even perpetually, while throwing op doors to any royalty- paying disseminator. Both Mark Twain and doors to any royalty paying disseminator. Both Mark Twain a - Ezra Pound proposed systems of perpetual authorial rights, tem- Ezra Pound proposed systems of perpetual authorial rights, tem 66 pered by compulsory licensing to reprint. p authors’ at - t t Compulsory licensing has also been used to override authors’ at- - altogether. Most natio o suppres tempts to suppress works altogether. Most nations allow new edi tempts to suppress works altogether. Most nations allow new edi- tions, even against the rights holder’s will. The British 1842 Copy- en against - tions, even against the rights holder’s will. The British 1842 Copy hts holder’s will. The Brit right Act permitted the Privy Council to grant compulsory licenses. right Act permitted the Privy Council to grant compulsory licenses. vy Council to grant compul permitte Early in the twentieth century American and British composers the twen Early in the twentieth century American and British composers ntury American and British were forced to accept compulsory licensing in return for being g in return ced to ac were forced to accept compulsory licensing in return for being granted rights to sound recordings of their works. More recently, rights to orks. More granted rights to sound recordings of their works. More recently, developing nations have favored compulsory licensing to gain better nsing to g ng nation developing nations have favored compulsory licensing to gain better terms than those allowed by a classic regime of exclusive rights. And an those a exclusive ri terms than those allowed by a classic regime of exclusive rights. And some open access advocates support licensing to break the “cyber- g to break t en access some open access advocates support licensing to break the “cyber - r r 67 lords’ information monopolies.” formation l . - 8. have expected that the Con ginality Originality W na . We might have expected that the Continental na- tions, with their emphasis on the personal connection between au- - on the personal connectio tions, with their emphasis on the personal connection between au th their e thor and work, would demand a higher standard of originality than work, wo and a higher standard o thor and work, would demand a higher standard of originality than the copyright countries. In fact, the contrast has not been dramatic. right coun the copyright countries. In fact, the contrast has not been dramatic. The Anglophone nations imposed a doctrine of “sweat of the brow,” The Anglophone nations imposed a doctrine of “sweat of the brow,” lophone n demanding effort but not necessarily creativity. The United States, demanding effort but not necessarily creativity. The United States, ng effort however, also required a minimum level of originality. This was reaf- also requ however, also required a minimum level of originality. This was re firmed in 1991, when the Supreme Court refused protection to a tele- n 1991, whe firmed in 1991, when the Supreme Court refused protection to 68 In the phone directory that had merely been copied from another. phone directory that had merely been copied from anoth rectory th meantime the Continental originality bar has never been high, me the Co meantime the Continental originality bar has n though it is defined more stringently in Germany than in France. In t t is define 1991, for example, the EU Software Directive broadly harmonized 1 example, the standard of originality for computer programs at the Anglo- t dard of o Saxon level. Such works had to be the author’s own intellectual cre- S vel. Such w 69 ation, but nothing more. a t nothing 9. Moral rights . The fundamental premise of the European authors’ T . al rights rights ideology is to consider works as a form of property, sanctified eology is t r b by natural rights. During the nineteenth century this was expanded al rights. D to include also a personal connection that—equally based on na- de also a t ture—reinforced the tie between authors and their works. Moral inforced t t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

39 Anglo-America vs. Europe 29 rights seek to protect in law that investment of au rights seek to protect in law that investment of authorial personality. By granting authors powers to control works even after By granting authors powers to control works even after they have sold their exploitation rights, moral rights privilege creators at the sold their exploitation rights, moral rights privilege creators expense of disseminators, interpreters, and the audience. In Anglo- expense of disseminators, interpreters, and the audience. In Ang American copyright, in contrast, moral rights have played a much American copyright, in contrast, moral rights have played a much smaller role, protected—if at all—only incidentally or outside the smaller role, protected—if at all—only incidentally or outside the copyright statutes. c THE IDEOLOGY OF MORAL RIGHTS OLOGY O AL RIGHTS T Moral rights allow the author to determine when and how his work Moral rights allow the author to determine when and how his work hen and how hts allow is released (disclosure). They ensure that he is recognized as its au- - s d (disclosu i ecognized thor (attribution). And they prevent his work from being changed ibution). thor (attribution). And they prevent his work from being changed om being without approval (integrity). In addition to these three primary approval hese three without approval (integrity). In addition to these three primary moral rights has also come the author’s right to withdraw his work to withdraw hts has al moral rights has also come the author’s right to withdraw his work from dissemination should he change his mind. And finally, the re- emination he change his mind. And fina - from dissemination should he change his mind. And finally, the re , is an ordinary economic droit de suite sale right, usually called the e d r oit de suite , is an ordinar , usually c s mic right that guarantees artists a bite of the apple each time their art- - right that guarantees artists a bite of the apple each time their art t s a bite of the apple each t t t guarante works are resold. Evidently not a moral right, the droit de suite has resold. E works are resold. Evidently not a moral right, the droit de suite has not a moral right, the nonetheless often been invoked to demonstrate the author’s strong ess often b nonetheless often been invoked to demonstrate the author’s strong position in the Continental nations. It was a further enrichment of n the Co position in the Continental nations. It was a further enrichment of the artist’s legal position, one Italian commentator celebrated dur- - s legal po the artist’s legal position, one Italian commentator celebrated dur r r 7 70 was the first to institute the resale rig France was the first to institute the resale right ing the Fascist era. ascist era. i n 71 in 1920, followed by the Belgians in 1921, and the Italians in 1941. ollowed by in 1920, followed by the Belgians in 1921, and the Italians in 194 droit The term “moral rights” is a translation from the French ( is a translation from the Fren rm “mora ). Effectively a misnomer, it has nothing to do with morality moral m mer, it has nothing to d ffectively but serves to distinguish such rights from the economic rights of s to distin b exploitation. Usually attributed to the French legal writer André on. Usual e Morillot around 1870, in fact the term had been used in France al- around 18 M 72 As a bulwark against the market, moral ready during the 1840s. r ring the 1 rights are the anti- copyright. They subordinate private law—con- r e the anti tracts, property, divorce, inheritance, bankruptcy—to the author’s t operty, div 7 73 But what the author gains from the law he may aesthetic interests. a interests. l lose from his pocket as disseminators discount works in proportion o his pocke 74 From the Continental ntrol the a t to the control the author continues to exert. vantage such objections miss the point. The exercise of moral rights uch objec v THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

40 30 Chapter 1 defends authors idealistic aspirations, even if i defends authors’ idealistic aspirations, even if it undermines their t i b m a c mi o n eco o n s. i economic ambitions. From copyright’s view, the more incisive argument against moral From copyright’s view, the more incisive argument against rights has been not economic but social and aesthetic. Moral rights rights has been not economic but social and aesthetic. Moral rig not only curb the disseminator’s sway, they also deprive the public. not only curb the disseminator’s sway, they also deprive the public By strengthening the control of authors and their descendants— By strengthening the control of authors and their descendants— sometimes perpetually—moral rights in effect prevent the work sometimes perpetually—moral rights in effect prevent the work 75 More broadly, broadly, from ever falling wholly into the public domain. er falling f nto the public doma moral rights restrict artistic possibilities, not just for disseminators moral rights restrict artistic possibilities, not just for disseminators ghts restri c possibilities, not just for and the audience, but also for interpreters and performers. They give for interpreters and performe audience, b and the audience, but also for interpreters and performers. They give 76 authors an aesthetic veto. t a a n aesthe ht, are not. In Copyright is freely alienable. Moral rights are not. In copyright, ight is fre authors assign rights to their works, retaining little if any interest. little if any authors assign rights to their works, retaining little if any interest. assign rig Indeed, the aim of copyright was to give the creator something to he aim o Indeed, the aim of copyright was to give the creator something to eator som take to the marketplace. As first legislated during the eighteenth take to the marketplace. As first legislated during the eighteenth ring the e the marke century in all the nations examined here, the point of depriving in all the he point of century in all the nations examined here, the point of depriving booksellers of their privileges in favor of authors was to allow writ- t t ers of thei ges in favor of authors was to booksellers of their privileges in favor of authors was to allow writ - ers to sell their works. As personal rights, moral rights, in contrast, l their wo personal rights, moral rights ers to sell their works. As personal rights, moral rights, in contrast, remain the author’s whatever happens to the work. At any time, au- - ver happens to the work. A he author remain the author’s whatever happens to the work. At any time, au thors can change their minds. Even after signing away a right to in- n change t thors can change their minds. Even after signing away a right to in - nds. Even after signing a tegrity or attribution, they have prevailed in Continental courts to r attributi tegrity or attribution, they have prevailed in Continental courts to enforce them. As we have seen, ghostwriters—whom the French call enforce them. As we have seen, ghostwriters—whom the French call hem. As w imposed obscurity of their “Negroes”—have come in from the self- “ s”—have c d obscurity of their 77 77 contracts to be named on their books. contracts to be named on their books. to be nam Moral rights cover a broad field, and no one definition in the vo- ad field, and no one definition in t rights cov luminous European literature is canonical. Least controversially, luminous European literature is canonical. Least contr s Europe they include three main ones: disclosure, attribution, and integrity. ude three they include three main ones: disclosure, attributio (or divulgation) is the authors’ right to decide when Disclosure (or d ure and how their work appears. The most self- evident of the moral a w their wo rights, it is similar to the fundamental premise of copyright, the r is simila 78 After having cut up and thrown away some right of publication. publicatio r paintings in 1914, the French painter Charles Camoin discovered p s in 1914, that they had been retrieved, repaired, and sold to collectors. When t had been they were put up for auction, he sued for their return and for dam- e put up f t ages. By discarding them he may have renounced his physical claims, discarding a the court ruled, but the moral right to decide whether his works t ruled, b t 79 should appear remained. ppear rem s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

41 Anglo-America vs. Europe 31 Other cases have been morally less clear Other cases have been morally less clear- cut. In 1843 the Heidel- cu berg theologian Heinrich Paulus published his notes on berg theologian Heinrich Paulus published his notes on lectures by the philosopher Friedrich Schelling, adding a critical commentary the philosopher Friedrich Schelling, adding a critical comm four times as long. When Schelling sued to block publication, he o ck publication, four times as long. When Schelling sued to bl lost on appeal. A lower court had supported the philosopher’s right lost on appeal. A lower court had supported the philosopher’s right to determine when and how his work appeared. But a higher in- to determine when and how his work appeared. But a higher in - stance judged that the length of the commentary made the pub- stance judged that the length of the commentary made the pub - lished work more than just Schelling’s. The public had a legitimate rk more t lished work more than just Schelling’s. The public had a legitimate Schelling’s. The publi 80 Paulus accused Schelling of summoning Paulus accused Schelling o oning interest in Paulus’s views. n n Paulus’s i 81 81 “ ce to make f irrefutable.” “the police to make himself irrefutable.” virtues, the disclosure right se ver its in - Whatever its intrinsic virtues, the disclosure right has conse- for the aud quences for the audience and for culture more generally. If we took quences for the audience and for culture more generally. If we took e generally. I seriously the claims of authors—and their families and estates—to seriously the claims of authors—and their families and estates—to lies and es the claim decide whether, when, and how works appear, we would have lost we would hether, wh decide whether, when, and how works appear, we would have lost Aeneid , possibly Ovid’s Metamorphoses , most of Kafka, all of Virgil’s most of Kafk , p os d eneid d V f Foucault’s posthumous works, some of Philip Larkin, Sainte- Beuve, s posthum Larkin, Sain F e, T. S. Eliot, Anatole France, George Sand, Maurice Barrès, Antonin T. S. Eliot, Anatole France, George Sand, Maurice Barrès, Antonin t, Anatole George Sand, Maurice Barrès 82 mily Emily Artaud, Thomas Hardy, and much of Katherine Mansfield. A d much of Katherine Mansfi Thomas H be known only in her fa Dickinson’s poems would be known only in her family’s heavily Dickinson’s poems would be known only in her family’s heavily n’s poems 83 83 edited version. e rsion. (or (or paternity) gives authors the right to be recognized Attribution p cognized tion as the creator of their work (even under a pseudonym) and con as the creator of their work (even under a pseudonym) and con- eator of t - ot to be fa versely not to be falsely identified as the author of works not theirs. versely not to be falsely identified as the author of works not theirs. This too has been largely uncontroversial. Variants exist in copy- has been This too has been largely uncontroversial. Variants exist in cop right systems, though an attribution right is nowhere spelled o ems, thou right systems, though an attribution right is nowhere spelled out in 8 84 ight’s major exception to attri US copyright law. U right law. Copyright’s major exception to attribution is that work- for- hire vests both owner- and authorship of commis- or- f hire - th owner t k- and authorsh sioned works with the employer. In the Continental systems, what- orks with s ever the details of their contracts, employee authors fully retain details of e their moral rights, and corporate authorship is broadly ruled out of ral rights, t court. c n author Can an author refuse to be acknowledged as the creator of a w Deer foot work? Edward S. Ellis, author of many novels, including the ward S. El led to pre series, failed to prevent a publisher from cashing in on his fame by s reissuing in his birth name novels that had originally appeared in his b r 85 under a nom de plume. nom de pl Conversely, the painter de Chirico denied u p of a pai authorship of a painting that bore his signature and that was shown a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

42 32 Chapter 1 to be his. Since his disavowal lowered its value, he had to pay dam- to be his. Since his disavowal lowered its value, h 86 86 ages Hollywood has elegantly sidestepped the need to withdraw . ages. Hollywood has elegantly sidestepped the need t works while still sparing authors the pain of being associate works while still sparing authors the pain of being associated with something they detest. From 1969 directors horrified by their film’s something they detest. From 1969 directors horrified by their fil editing could ask to have their name replaced with “Allen Smithee,” editing could ask to have their name replaced with “Allen Smithee,” - - who thus joined Anonymous as among our most versatile and pro who thus joined Anonymous as among our most versatile and pro 87 t tean authors. ( some t ects the (sometimes called the “right of respect”) protects the Integrity ty lled the “right of resp work from changes unapproved by its author. Even though they proved by its author. Eve om chang work from changes unapproved by its author. Even though they may already have assigned economic rights, authors can still veto may already have assigned economic rights, authors can still veto d economic rights, authors c ady have uses or changes of works. Arguably the core moral right, integrity hanges o Arguably the core moral righ uses or changes of works. Arguably the core moral right, integrity the least c has had the least counterpart in the Anglophone systems. It is also has had the least counterpart in the Anglophone systems. It is also hone systems ng on the iest of th the trickiest of these claims. It varies depending on the art form. the trickiest of these claims. It varies depending on the art form. Singular works—paintings or sculptures, say—are protected against re protecte works—p Singular works—paintings or sculptures, say—are protected against physical change or defacement. In the performing arts, however, physical change or defacement. In the performing arts, however, change o ming arts, equally rely nd perfo author and performer or interpreter more equally rely on each author and performer or interpreter more equally rely on each - - other: playwright and director, composer and conductor, screen other: playwright and director, composer and conductor, screen aywright ector, composer and conduc Se- nd directo writer and director, choreographer and dancer. Staging Mozart’s Se grapher and dancer. Staging - writer and director, choreographer and dancer. Staging Mozart’s r raglio in a brothel is not the same as adorning the Mona Lisa with a Mo with a e same as adornin g the a brothel moustache. he m . ity comes Integrity comes in at least two variants. A strong version, found in , found in nd Belgia French and Belgian law, forbids any alteration the author has not French and Belgian law, forbids any alteration the author has not explicitly approved. As early as 1932, French courts decided that “it is y approved explicitly approved. As early as 1932, French courts decided that “it is up to the author to ensure that his work is not altered or deformed e author t up to the author to ensure that his work is not altered or deform 88 88 In its most extreme interpretations In its most extreme interpret in either its form or its spirit.” its form in either its form or its spirit.” even restoring an artwork might violate integrity as it substitutes a even restoring an artwork might violate integrity as it su oring an new work for the original and imposes an unwanted collaboration new work for the original and imposes an unwant k for the 89 Other nations, like Germany, Denmark, and on the original author. riginal aut o Italy, protect the author only against changes that demonstrably in- tect the a I jure his reputation or honor. The author cannot object, for example, j eputation to changes not shown in public, nor to changes that might improve es not sho t the work. In this interpretation of integrity, the author does not de- k. In this i t cide whether a modification is actionable. To judge how a change c ether a m affects his reputation or honor requires knowledge of his social posi- s reputati a tion, society’s sense of what counts as a violation, and evidence that iety’s sens t harm has been done—ultimately matters the author alone cannot s been do h evaluate. e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

43 Anglo-America vs. Europe 33 Moral rights are commonly portrayed as the opposite of exploita- Moral rights are commonly portrayed as the op tion rights. But, in fact, the moral and the mercenary blu tion rights. But, in fact, the moral and the mercenary blur. Personal- 0 9 90 Some observers have e Some observers have even ar- ity rights are also economic rights. . ity rights are also economic rights gued that moral rights are a new form of property since an autho gued that moral rights are a new form of property since an author’s control over his work has economic value, much as a lease on a rent- control over his work has economic value, much as a lease on a rent- 91 as an author’s Insofar as an author’s c controlled apartment is a form of ownership. reputation and the work’s authenticity affect his market value, he reputation and the work’s authenticity affect his market value, he has an economic stake in his attribution and integrity rights. “By conomic s his attribution and in has an economic stake in his attribution and integrity rights. “By protecting the authorship and authenticity of a work, moral rights g the auth protecting the authorship and authenticity of a work, moral rights and authenticity of a work also serve consumer interests,” a 1996 EU report concluded unflinch- - also serve consumer interests,” a 1996 EU report concluded unflinch ts,” a 1996 EU report conclud consume 92 he en thus, m Seen thus, moral rights are akin to trademark protection, the hts are akin to trademark prot ingly. n i 93 guarantee of a brand. g e of a bran pairing a e Yet impairing a work’s integrity does not invariably damage the ariably da A painter author’s reputation. Indeed, it may improve it. A painter was not author’s reputation. Indeed, it may improve it. A painter was not reputation harmed by having his work photographed or engraved, Lord Fer- h engraved, L by having - moy argued during discussion leading to the British Fine Art Copy- British Fine A ed during - moy argued during discussion leading to the British Fine Art Copy right Act of 1862. The more it happened, the higher the artist’s repu- of 1862. T right Act of 1862. The more it happened, the higher the artist’s repu - it happened, the higher the ar 94 Editors ha “Editors have been known, on occasion, actually to improve known, on occasion, actually ove tation. t ,” the Ne w an article,” the ’s editors waspishly opin c i New Republic a ntury ’s editors waspishly opined a century l 95 95 Agai rtist’s objections, the pr t critic Against the artist’s objections, the prominent art critic later in 1988. 88. la Clement Greenberg (one of Tom Wolfe’s kings of Cultureburg), Clement Greenberg (one of Tom Wolfe’s kings of Cultureburg), Greenber stripped the paint off several of David Smith’s metal sculptures, the paint stripped the paint off several of David Smith’s metal sculptures, claiming to enhance them both aesthetically and economically. to enhan claiming to enhance them both aesthetically and economically. They did eventually command higher prices, though whether thanks They did eventually command higher prices, though whether than eventually to any inherent improvement or Greenberg’s influential opinions is to any inherent improvement or Greenberg’s influential opinio herent im 96 96 hard to say. h ay. ors could changes to their work, s If authors could forbid changes to their work, should they not also be allowed to prevent its destruction? This seemed a logical llowed to a of integri c corollary of integrity and arguably the ultimate moral right. But it 97 In the early 1920s the French Assembly has rarely been legislated. h y been leg pondered allowing artists to buy back works from owners who in- p allowing 98 tended to destroy them. The Swiss law of 1992 permitted authors t o destroy t hase art th t to repurchase art that owners were going to destroy, though merci- 99 French cases have pun- f fully this did not apply to architecture. did not 100 ished the neglect and destruction of public fountains. neglect a But on the i s he owner whole, the owner’s property rights have trumped the author’s w While altera claims. While alterations might threaten an author’s honor or repu- c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

44 34 Chapter 1 101 tation, complete destruction of the work did tation, complete destruction of the work did not. A perversely logical consequence came in the 1981 case of a German logical consequence came in the 1981 case of a German artist, Otto Herbert Hajek. He had decorated a corporate building with sculp- Herbert Hajek. He had decorated a corporate building with tures, strips of color, textured areas, and paintings. When the build- tures, strips of color, textured areas, and paintings. When the bu ing was remodeled, parts of these adornments were removed, and ing was remodeled, parts of these adornments were removed, and Hajek sued for violation of the work’s integrity. The Munich court Hajek sued for violation of the work’s integrity. The Munich court returned a Solomonic judgment: the owner could restore the work returned a Solomonic judgment: the owner could restore the work to its original state or he could end the violation of its integrity by ginal state to its original state or he could end the violation of its integrity by ould end the violation 102 Destruction trumped integ Destruction trumped integrity. removing it altogether. r g it altoge y life ho work with the detritus of mporary Contemporary artists who work with the detritus of everyday life h risk of inadvertent destruct have run an especially high risk of inadvertent destruction. Gustav an espec have run an especially high risk of inadvertent destruction. Gustav Metzger’s plastic bag of trash was discarded, even though proudly Metzger’s plastic bag of trash was discarded, even though proudly s plastic b even thoug part of his Recreation of First Public Demonstration of Auto- Destructive is ve D n of Auto- p Recreat i Art in 2004. The beige paint stain under Martin Klippenberger’s 2011 Klippenbe A 04. The be 11 When It Starts Dripping from the Ceiling was mistakenly scrubbed W mistakenly d Starts Dri away. The photographer Alfred Stieglitz is thought to have tossed hought to h a e photogr ed 103 Not sur- r r - ur Fountain with the trash. out the original of Duchamp’s p o original o with the trash. prisingly Joseph Beuys, whose favorite materials were felt and fat, Joseph B prisingly Joseph Beuys, whose favorite materials were felt and fat, hose favorite materials were suffered this indignity twice: a child’s bathtub full of junk was mis- suffered this indignity twice: a child’s bathtub full of junk was mis - ce: a child’s bathtub full of this indig takenly cleaned out in the 1970s (and then—injury to insult—used cleaned ou 1970s (and then—inju takenly cleaned out in the 1970s (and then—injury to insult—used by the Social Democratic Party of Leverkusen in West Germany to ocial Dem by the Social Democratic Party of Leverkusen in West Germany to cool beer). A museum janitor mopped up an artistic grease stain by r). A muse cool beer). A museum janitor mopped up an artistic grease stain by 4 10 104 A o be defiled? What And what if the work cried out to be defiled? What Beuys in 1986. B 1986. integrity rights did Duchamp’s Ready- mades demand when one of rights did integrity rights did Duchamp’s Ready- mades demand when one their points, as everyday objects, was to undermine the remaining their points, as everyday objects, was to undermine the rema nts, as ev craft aspects of art? And what of the claims made by the five artists ects of art craft aspects of art? And what of the claims made by the who took up what they considered Duchamp’s challenge and uri- who took up what they considered Duchamp ’s ch k up wha nated in one of the eight copies of his Fountain ? one of th n Beyond this classic trinity of moral rights (disclosure, attribution, d this clas integrity), some nations have also extended others. ), some na i Repenting (or withdrawal) is the most controversial and least ap- g (or w ting plied of these additional moral rights. It allows authors to withdraw p these addi a work from circulation should it no longer express their meaning. rom circu a Their ideal interests trump their contractual obligations. From eal intere T t’s vantag copyright’s vantage that is the least of the withdrawal right’s of- c f ubtracting fenses. Subtracting from the common store of knowledge by with- a work v drawing a work violates the primacy of the public domain. In the d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

45 Anglo-America vs. Europe 35 Millar v. Taylor (1769), Justice Yates case copyright foundational ( foundational copyright case Millar v. Taylor made this point forcefully: “But when an author prints made this point forcefully: “But when an author prints and pub- . lishes his work, he lays it entirely open to the public. . . . Neither the lishes his work, he lays it entirely open to the public . . . Neit k, book, nor the sentiments it contains, can be afterwards recalled by sentiments it contains, can be afterwards recalled he nor t oo b 105 t the author.” A limited repenting right, proposed in Nazi Germany, came to many, came to 106 ascist Italy Yet in the midst of the Second World War, Fascist Italy nothing. n introduced a proper one, allowing authors to withdraw their work if introduced a proper one, allowing authors to withdraw their work if ed a prope owing authors to with 7 107 107 In France withdraw In France withdrawal rights were were they could no longer stand by it. d no long by it. t 10 108 most As the most i introduced in 1957, and Germany gained them in 1965. many gained them in 1965. n ed in 1957, extreme moral right, repenting has also been the least invoked. Au extreme moral right, repenting has also been the least invoked. Au- - moral righ ting has also been the least in thors have to compensate assignees for losses, and in practical terms thors have to compensate assignees for losses, and in practical terms e to comp and in pract their repenting is unlikely to have much effect on an already pub- t enting is u on an alre - 109 109 ractice, wi Yet, Yet, however inconsequential in practice, withdrawal l lished work. i rk. l lay at the heart of the central conundrum of moral rights—how a heart of oral rights lay at the heart of the central conundrum of moral rights—how a personal right survives the person. Other moral rights are assignable l rights are a right surv personal right survives the person. Other moral rights are assignable and inheritable. Spouses, descendants, heirs, representatives, and and inheritable. Spouses, descendants, heirs, representatives, and descendants, heirs, representa ritable. S sometimes the state itself were expected to safeguard what they un- - were expected to safeguard wh es the stat sometimes the state itself were expected to safeguard what they un derstood to be the author’s intentions. The withdrawal right, in con- - derstood to be the author’s intentions. The withdrawal right, in con to be the intentions. The withdrawa trast, almost by its nature dies with the author. It can generally not trast, almost by its nature dies with the author. It can generally not ost by its ies with the author. It 110 be exercised by anyone else. b ed by any uming the By assuming the fiction of a coherent lifelong authorial personal- - rial personal ity, the withdrawal right implicitly allows an author to rewrite his ity, the withdrawal right implicitly allows an author to rewrite his ithdrawal own history. The author should be able to withdraw a work that own history. The author should be able to withdraw a work th ory. The a embarrassed him in old age, one delegate insisted at the Interna- sed him i embarrassed him in old age, one delegate insisted at the Int tional Literary Congress in Paris in 1878, the fountainhead of the terary Co tional Literary Congress in Paris in 1878, the fountainhe 111 The French law of 2012 on The French law of 2012 on digitizing out- author’s rights ideology. rights ideo a of- print works specifically permits authors to block the reappear- works spe o ance of works that harm their honor or reputation. A work written works that a during the occupation of the Second World War, but now regretted, e occupat d was offered as the disconcertingly frank example of what authors ed as the w 112 Withdrawal gave the old writer purchase over could quietly bury. c ietly bury. his youthful enthusiasms and indiscretions. h ful enthu Should Céline have been allowed to expunge his anti- Semitic d Céline h writings, as his widow tried to? Wagner the political radicalism of w as his wid his youth? Saint Augustine the paganism of his early years? Manzoni ? Saint Au h his atheism, and Hugo or Lamennais their early Catholicism? Hav- m, and H h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

46 36 Chapter 1 Anti- Machiavel ing criticized the kings of Poland and Sweden in ing criticized the kings of Poland and Sweden in his shortly before ascending the Prussian throne in 1740, Fr shortly before ascending the Prussian throne in 1740, Frederick the Great vainly implored Voltaire to convince his Dutch publisher to Great vainly implored Voltaire to convince his Dutch publi 113 113 Voltaire in turn regretted his youthful satire of Voltaire in turn regretted his youthful satire make it disappear. make it disappear . Joan of Arc, , and published a heavily edited ver- La Pucelle d’Orleans J ed a heavily edited ver s sion thirty years later, in 1762. Hugo pro - Though an ardent champion of authors’ rights, Victor Hugo pro- posed a moderated version of withdrawal. The work was intimately moderated of withdrawal. The w posed a moderated version of withdrawal. The work was intimately ality but only at the mom tied to the author’s personality but only at the moment of creation. he author’ tied to the author’s personality but only at the moment of creation. rect the style of an earlier w An author could thus correct the style of an earlier work, but no An author could thus correct the style of an earlier work, but no or could ng. Why? “Because now anoth longer suppress his meaning. Why? “Because now another person, longer suppress his meaning. Why? “Because now another person, uppress h 11 114 4 Even t Even the author, or, ic, has ta k.” the public, has taken possession of the work.” t gued, sho Hugo argued, should not be allowed to rewrite his works. Imagine Hugo argued, should not be allowed to rewrite his works. Imagine e his works what might happen. The elderly Racine disliked his mature trage- d his mat what might happen. The elderly Racine disliked his mature trage ght happe - 115 ’s er . Though . Though Mahler’s oethe dist Goethe distanced himself from his Werther dies. d - First Symphony originally had five movements, the composer re- First Symphony originally had five movements, the composer re mphony o nts, the com moved one (only to have it reintroduced by Seiji Ozawa’s record- it reintroduced by Seiji Ozaw ne (only moved one (only to have it reintroduced by Seiji Ozawa’s record - 116 Having fled Berlin for exile in Stockholm, Nelly Sachs re- - for exile in Stockholm, Ne re Having fled ing). i 117 117 f reprint he German works. r fused to reprint her prewar German works. the work y at its rt of the author’s perso But if the work was part of the author’s personality only at its birth, why have a withdrawal right at all? In effect, the author’s with hy have a w birth, why have a withdrawal right at all? In effect, the author’s with- - drawal right contradicts the work’s integrity right. Arguably the drawal right contradicts the work’s integrity right. Arguably the ight cont work has to be protected even against its own author. In defending work has to be protected even against its own author. In defending s to be pro their right to stage Godot with female actors, a French theater troupe t ith female actors, a French theater trou ht to stage argued that “a formal respect for the author’s wishes could be con- argued that “a formal respect for the author’s wishes could b hat “a form 118 118 trary to the interests of his work.” he interes trary to the interests of his work.” Saxon world the fear has been that withdrawal S e Anglo- orld the fear has been In the Anglo- would allow authors to rewrite their histories. Before the Royal llow auth w Copyright Commission in 1878, Thomas Farrer, permanent secretary C ht Comm of the Board of Trade, argued that lengthening copyright terms al- oard of Tr o lowed authors to suppress their earlier opinions by vetoing new edi- l thors to s tions. “I do not think that copyright exists or ought to exist in order t do not thi to enable an author to recall that which he has once given to the e an auth t 9 119 Farrer c Farrer cut to the heart of the matter. The withdrawal right u public.” p p potentially contradicted integrity. Did integrity protect the inviola- ly contra the work b bility of the work as such or of the author’s personality? If the work d the auth e expressed the author’s personality, then he determined integrity and THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

47 Anglo-America vs. Europe 37 could do what he pleased. But if the work itself was protected, then could do what he pleased. But if the work itself w its creator might have no more right than anyone else to its creator might have no more right than anyone else to violate it. The Austrian expressionist writer Hermann Bahr took the latter The Austrian expressionist writer Hermann Bahr took the line, seeking a form of habeas corpus protecting works against later line, seeking a form of habeas corpus protecting works against la 120 mutilations, even by the author. m e? What if the Who said an author’s intentions were always pure? What if the author used withdrawal for greed or revenge, to stiff creditors or an author used withdrawal for greed or revenge, to stiff creditors or an ex- spouse? Or, for that matter, to foil pirates? Rudyard Kipling re- ter, to foil pirates? Ru e ling re - ? Or, for in hopes of spoiling pirate wrote the end of The Light That Failed T d in hopes of s That Failed pirate e end of w editions, as did Gabriel Garcia Marquez with his Memories of My as did Ga My e Mem arcia Marquez with his 121 Was that an aesthetically valid motive? hat an aesthetically valid motiv . Melancholy Whores ly Whores . M ditions main o What if authors insist on new and revised editions mainly to pro- - f authors 122 e able strateg That was a venerable strategy. In the long their economic rights? r econom lo early eighteenth century Jacob Tonson thus extended his hold over nded his h early eighteenth century Jacob Tonson thus extended his hold over hteenth ce 123 123 y La t ed off cred Late in life Walter Scott warded off creditors by Shakespeare. are. S 124 as modern k Much as modern textbook b bringing out new editions of his works. out new e ons, Stravinsky revised his com authors issue ever- new editions, Stravinsky revised his compositions a ns n sue ever- to extend his claims. He sold the copyrights of at least three versions his claim to extend his claims. He sold the copyrights of at least three versions d the copyrights of at least th —in pre- and post- revolutionary Russia and in Ameri- of the Firebird - ebird d post- d —in meri o revolutionary Russia can exile. When the Leeds Music Corporation, owner of the third can exile. When the Leeds Music Corporation, owner of the third When th Music Corporation, ow version, released a fox- trot rendition, Stravinsky was incensed. But eleased a nsed. But v usually he was less picky. In Hollywood during the war, he allowed w e d e was less usually he was less picky. In Hollywood during the war, he allo 125 5 12 Is the Is the for Rite of Spring Disney drastically to prune the . Fantasia D Fantasia rastically . ways the b author always the best steward of his works? author always the best steward of his works? MORAL RIGHTS IN THE LONG RUN MORAL RIGHTS IN THE LONG RUN N IGHTS I R Moral rights link author and work by insisting that works mean ghts link M only what the author intended. Since the work expresses its author’s t the auth o 126 But personality, his control must continue even after alienation. p ty, his con what happens at his death? Many personal rights expire with the w pens at h person. In the Anglophone nations defamation and libel law protect p n the Angl only the living. But the Continental nations have had to grapple o living. Bu with the paradox of personal rights outliving the person. w paradox o Though moral rights generally last only as long as economic h moral claims, in some nations, like France, they continue forever. That has some nat c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

48 38 Chapter 1 raised the question of whom to entrust as careta raised the question of whom to entrust as caretaker of the author’s wishes. However devoted the author’s family and howe wishes. However devoted the author’s family and however specific his instructions, in the long run the work slips into posterity’s hands. his instructions, in the long run the work slips into posterity’s When moral rights are inherited, on what terms? Are their recipients When moral rights are inherited, on what terms? Are their recipie caretakers of the author’s intent or actors in their own right? Are the caretakers of the author’s intent or actors in their own right? Are the authors’ families, as the likely successors, the best safeguards of their authors’ families, as the likely successors, the best safeguards of their interests? i The Marquis de Sade’s family burned his unpublished manu- Marquis d d manu - family burned his u scripts, though they were spared further effort when his published hough the spared further effort when scripts, though they were spared further effort when his published works were outlawed after his death in 1814. Samuel Richardson’s works were outlawed after his death in 1814. Samuel Richardson’s r his death in 1814. Samuel ere outlaw . Clarissa and grandson strongly disliked fiction, including Pamela g . Pamela an ssa d fiction, including n strongly Boswell’s eldest son thought his father’s Life of Johnson “a blot in fe of Johnson in B s eldest so 127 ’s hristian, Ba As a good Christian, Baudelaire’s the escutcheon of the family.” t tcheon of mother, Madame Aupick, sought to pull one of the poems from the he poems Madame A mother, Madame Aupick, sought to pull one of the poems from the 128 Rimbaud’s sister, Isabelle, e, aud’s siste Les Fleurs du Mal posthumous edition of . p ous editio 129 tried to prevent publication of his work after his death in 1891. his death in prevent pu t - has a sympathetic postmortem ven if the And even if the author has a sympathetic postmortem representa- ta follow the deceased’s inten they obl tive, are they obliged to follow the deceased’s intentions? Jules tive, are they obliged to follow the deceased’s intentions? Jules Verne’s five posthumous novels were heavily altered by his son, then ovels were heavily altered b ve posthu Verne’s five posthumous novels were heavily altered by his son, then 30 130 Power Nietzsche’s posthum Nietzsche’s posthumous Will to Power restored by his grandson. r by his gr was a concoction of snippets from his unpublished writings by his was a concoction of snippets from his unpublished writings by his ncoction sister, Elisabeth Förster- Nietzsche, which she tailored to make him sabeth Fö s to make him sound like Hitler’s court philosopher. In 1964 the first edition of ke Hitler’ sound like Hitler’s court philosopher. In 1964 the first edition of . Unfinished A Moveable Feast Hemingway’s memoirs appeared, titled Hemingway’s memoirs appeared, . Unfinish A Moveable Feast , titled way’s mem at his suicide in 1961, the manuscript was edited and introduced by at his suicide in 1961, the manuscript was edited and introduc cide in 19 his fourth wife, Mary, and harshly portrayed his second wife, Pauline h wife, Ma his fourth wife, Mary, and harshly portrayed his second wi Pfeiffer. In 2009 his son Seán released a new edition, which softened n 2009 hi Pfeiffer. In 2009 his son Seán released a new edition 131 Where does it end? A right may the portrait of his mother, Pauline. t ait of his be personal and die with the person, or be perpetual and inherit- nal and d b 132 able. Can it be both? b o t n it b a e any examp As many examples from the copyright world attest, obstructive heirs or representatives are not empowered by moral rights alone. h representa Conventional exploitation rights have often been used to assert per- C ional expl sonal control too. But in those countries where they are enforced, ntrol too. s like France and Germany, moral rights give descendants especially l ce and G powerful tools. The secretary of Maurice Utrillo’s widow inherited l tools. Th p the painter’s right of attribution and thus the right to authenticate ter’s right t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

49 Anglo-America vs. Europe 39 or challenge the provenance of paintings said to be his. He used this or challenge the provenance of paintings said to b 13 133 In 1984 the to good effect in the Paris and London art markets. to good effect in the Paris and London art markets. children of Albert Camus successfully invoked the writer’s moral children of Albert Camus successfully invoked the writer’s rights against his British publisher, Hamish Hamilton, maintaining rights against his British publisher, Hamish Hamilton, maintaini that it had damaged the writer’s reputation with a critical biography that it had damaged the writer’s reputation with a critical biography 134 by Patrick MacCarthy. b own eco Heirs have invoked aesthetic motives to achieve their own eco- - heirs—mostly nephew nomic goals. The Gershwin heirs—mostly nephews and grandneph- als. The G nomic goals. The Gershwin heirs—mostly nephews and grandneph - ews of George and Ira—have been keenly commercial. “Our respon- ve been keenly commercia eorge and ews of George and Ira—have been keenly commercial. “Our respon - sibilities are to not have Porgy and Bess stuck in an attic, to open up s rgy and Bess stuck in an attic are to not up the property to younger generations,” said Jonathan Keidan, a digital- rty to you nerations,” said Jonathan Keidan the property to younger generations,” said Jonathan Keidan, a digital- media executive, whose grandmother was George and Ira’s sister, ecutive, w media executive, whose grandmother was George and Ira’s sister, eorge and I 135 s that heir - Who says that heirs are con- “and to make money for the families.” make mone “ n of their ainly wit cerned mainly with upholding the artistic vision of their ancestor cerned mainly with upholding the artistic vision of their ancestor author? Picasso’s offspring has chased the unauthorized use of his icasso’s o author? Picasso’s offspring has chased the unauthorized use of his thorized u name and images on coffee mugs, T- shirts, plates, and makeup, the e n ates, and ma d images o better to license them for eyewear, clocks, textiles, stationery, posters, better to license them for eyewear, clocks, textiles, stationery, posters, yewear, clocks, textiles, statione license the 136 shopping bags, scarves, wallpaper, and even a Citroën car. s sca paper, and even a Citroën ca bags, r a motive, heirs have exerte rous without m Even without money as a motive, heirs have exerted an onerous ntrol of his grandfathe - tutelage. Stephen Joyce’s control of his grandfather’s estate was no tutelage. Stephen Joyce’s control of his grandfather’s estate was no- Stephen J torious. Like most writers, Joyce himself believed in a natural right ike most torious. Like most writers, Joyce himself believed in a natural right to intellectual property, and the ethos seems to have permeated the ctual prop to intellectual property, and the ethos seems to have permeated the 137 New prin works were denied New print and digital editions of his works were denied family. f until copyright finally lapsed in 2011; exorbitant fees were charged yright fin until copyright finally lapsed in 2011; exorbitant fees were charge for public readings, translations, and anthologies; musical adapta- for public readings, translations, and anthologies; musical ad c reading 138 138 Bertolt Brecht sought Bertolt Brecht sought to deter- tions were forbidden altogether. tions were forbidden altogether. e forbidd mine the precise staging of his plays, and his daughter continued mine the precise staging of his plays, and his daug precise s 139 John Cage’s publishers have collected royalties this after his death. t his death. on his silent piece and threatened performers of other sound- 4’33” o ent piece 140 less compositions for infringing on his silence. e l positions f Richard Wagner illustrates the dilemma of achieving suitable bal- d Wagner ance between giving primary authors and their heirs full control of ween givin a works and the concern of other authors, and their audience, to make w d the conc free use of them. The Nazis worried lest his music be trivialized in of them. T f 4 1 141 1 In the meantime we have gone to the opposite ex- I n light comedies. medies. li any films treme. Many films use his music—usually the “Ride of the Valky- t suggest N r ries”—to suggest Nazism or more general evil. In D. W. Griffith’s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

50 40 Chapter 1 , it accompanied the KKK’s ride against liberated Nation a , it accompanied the KKK s rid of Birth Birth of a Nation Co d aves. In Francis For pp o l a’s A poca ly pse Now , it un l s , it undergirded a slaves. In Francis Ford Coppola’s Apocalypse Now helicopter attack on a Vietnamese village (as it had accompanied helicopter attack on a Vietnamese village (as it had accom Nazi newsreels reporting Luftwaffe airstrikes). It appeared in Chap- Nazi newsreels reporting Luftwaffe airstrikes). It appeared in Ch lin’s , Kubrick’s Full Metal Jacket , Nicholas Ray’s Rebel Great Dictator l , Nicholas Ray’s Rebe 142 on the French Had moral rights on the French , and Fellini’s 8½ . without a Cause w model given Wagner’s heirs the ability to forbid using his music, as model given Wagner’s heirs the ability to forbid using his music, as Shostakovich could, little of this would have been possible. But Shostakovich could, little of this would have been possible. But vich cou of this would have b would we wish such powers for the Wagner estate? w e wish suc rs for the Wagner estate? For every author legitimately concerned about vulgarizing ex- x mately concerned about vu x - g ex very autho ploiters, others have eagerly sought to enforce their personal con- ly sought to enforce their pe ploiters, others have eagerly sought to enforce their personal con - others ha trol. Alexander Calder rightfully complained that a massive mobile, that a massiv trol. Alexander Calder rightfully complained that a massive mobile, xander Ca bought and donated to the Pittsburgh airport, had been repainted and donat bought and donated to the Pittsburgh airport, had been repainted had been from black and white to the splendid colors of Allegheny County, ck and w from black and white to the splendid colors of Allegheny County, Allegheny green and gold, and its elements soldered in place to make it a sta- green and gold, and its elements soldered in place to make it a sta - d gold, an ace to mak 143 ected when n 1981 Mic In 1981 Michael Snow successfully objected when his sculp- p - bile. b p , commissioned for the atr ying gees t he ture of flying geese, Flightstop , commissioned for the atrium of the Eaton Centre in Toronto, was festooned with Christmas ribbons was festooned with Christm entre in T Eaton Centre in Toronto, was festooned with Christmas ribbons 144 around their necks. a h eir nec ks authorial vanity is leg But, on the other hand, authorial vanity is legion. Miffed at the d at the n the oth cutting of a scene of an opera for which he was set and costume cutting of a scene of an opera for which he was set and costume of a scene designer, Fernand Léger sought to have the program indicate the Fernand designer, Fernand Léger sought to have the program indicate the 145 widow of Georges The widow of Georges absence of his “Crossing of the Andes.” a of his “C Dwelshauvers, the Belgian psychologist and philosopher, felt den- uvers, the Dwelshauvers, the Belgian psychologist and philosopher, felt de igrated when a new edition of one of his books failed to l igrated when a new edition of one of his books failed to list all when a ne 6 14 146 his positions and other publications. his positions and other publications. The cellist Mstisl ions and The cellist Mstislav Rostro- objected t povich objected to the use of his recording of B Boris Godunov as povich objected to the use of his recording of s soundtrack for the filmed version of the opera by Andrzej Żuławski ck for the because at certain moments cinematic noise (expectoration, urina- b at certain 147 tion, gasps) interfered with the perfect enjoyment of his work. ps) interf t ld go on. One could go on. Artistic skin is thin. O THE DEAD HAND OF THE PAST AD HAND T Authors and their heirs have often hoped to preserve works in aspic. A and their ns like Fra In nations like France and Germany, they have enlisted their moral I rights to that end. But performers and interpreters want to use them hd THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

51 Anglo-America vs. Europe 41 for their own purpose. Difficult choices are unav for their own purpose. Difficult choices are unavoidable, especially West Sid hts are perpetual and heirs active. No g if moral ri West Side Story ? No if moral rights are perpetual and heirs active. No Manet redoing Titian? No Warhol Mona Lisa s? Why is it fair that the Mona Lisa Manet redoing Titian? No Warhol s? Why is it fair th passing of Johann Sebastian’s heirs allows Wendy Carlos to switch passing of Johann Sebastian’s heirs allows Wendy Carlos to swit on Bach, while Gustav Holst’s estate hinders Tomita’s electronic ver- on Bach, while Gustav Holst’s estate hinders Tomita’s electronic ver Planets sion of the ? What if the Grimm brothers had not wanted to not wanted to s be a Disney cartoon or if Rodgers and Hammerstein spurned John be a Disney cartoon or if Rodgers and Hammerstein spurned John Coltrane? Are we condemned in all eternity to Bach played on origi- Are we co - ed in all eternity to Bac Coltrane? Are we condemned in all eternity to Bach played on origi nal instruments? n ments? When decisions pass to descendants and representatives, who po- po descendants and representativ - decisions lices the policemen? In France and Italy moral rights are perpetual. lices the policemen? In France and Italy moral rights are perpetual. policemen nce and Italy moral rights are And forever is a long time. The consequences of enforcing the au- And forever is a long time. The consequences of enforcing the au - s of enforcin ver is a lo thor’s moral rights for decades, sometimes centuries, after his death thor’s moral rights for decades, sometimes centuries, after his death oral rights uries, after have often been peculiar. In 1988 the sole lineal descendant of the descenda have often been peculiar. In 1988 the sole lineal descendant of the n been pe painter Achille Deveria (died 1857) secured a court decision against chille Dev urt decisio painter Achille Deveria (died 1857) secured a court decision against for printing a portrait of Franz Liszt L’Express the French magazine h magazi ortrait of Fr zt t 48 148 from 1832, removing its bottom part and adding some color. ottom part and adding som f 2, removi ophocles’ old integrity rights to his wo - Should Sophocles’s heirs hold integrity rights to his works? A face- Should Sophocles’s heirs hold integrity rights to his works? A face tious example, perhaps. But consider the 1989 case of the Danish di- mple, perh consider the 1989 case of t - tious example, perhaps. But consider the 1989 case of the Danish di rector Jens Jørgen Thorsen. His early 1970s film on the life of Christ His early 1970s film on rector Jens Jørgen Thorsen. His early 1970s film on the life of Christ ns Jørgen T spiced it up—in the tediously predictable way of would- be provoca- provoca s up—in th - teurs—with brothels and orgies, Mao and Uncle Sam. The Danish teurs—with brothels and orgies, Mao and Uncle Sam. The Danish ith brothe parliament and public asked whether the project was blasphemous parliament and public asked whether the project was blasphemous nt and pu and if it violated the moral rights of the authors of the gospels of a l rights of the authors of the gospels violated t Matthew, Mark, Luke, and John (whoever they were). When the Mark, Lu Matthew, Mark, Luke, and John (whoever they were). When Danish Film Institute withdrew its financial support, Thorsen sued. Danish Film Institute withdrew its financial support, Thor ilm Institu The court took expert testimony from Lars Trier, the future auteur of t took exp The court took expert testimony from Lars Trier, the the Danish 1990s Dogme school of filmmaking (who then did not t sh 1990s D yet affect his faux aristocratic “von”). The Film Institute was wrong y his faux a to recall its support, it ruled. But it was no longer obliged to finance t ts support 149 14 9 Ech o Echoing Louis Vaunois, one of the few Frenchmen to the project. t ct. criticize moral rights, we might well ask: who are the heirs of King c moral righ 150 David, author of the Psalms? D thor of th If moral rights are perpetual, it follows that eventually they have al rights a t rusted to to be entrusted to an institution, presumably some sort of govern- hority. Mo m ment authority. Moral rights are then transformed into a caretaking o al patrimo of cultural patrimony—something like the preservation codes that 151 In ill uncontroversially guard buildings, monuments, and landscapes. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

52 42 Chapter 1 1913 Wagner s copyrights were set to expire. With 1913 Wagner’s copyrights were set to expire. With them Wagner’s in- Parsifal l sistence on l performances to his purpos imitin g Parsifal performances to his purpose- built the- sistence on limiting ater in Bayreuth would go too. Wagner’s family and followers sug- ater in Bayreuth would go too. Wagner’s family and followe gested a compromise, permitting stagings elsewhere, but only if gested a compromise, permitting stagings elsewhere, but only closely supervised by a government authority—in effect a Reichs- c ty—in effect a Reichs 152 - zis drew the ul Later, the collectivist- minded Nazis drew the ul- parsifalkommissar . p timate conclusion from the inevitable passing of the author’s work timate conclusion from the inevitable passing of the author’s work into government hands. Since the author, in their view, was the into government hands. Since the author, in their view, was the ernment Since the author, in t mouthpiece of the people, the collectivity could prevent him or his ece of the m or his the collectivity could prev 1 3 5 153 the The w The work, not the heirs from mutilating or desecrating his works. esecrating his works. m mutilat h author, was the focus of protection. otection was the foc a In the long run, as the protection of the authors’ rights turned ed long run authors’ righ against the creator himself, the ultimate contradiction of perpetual against the creator himself, the ultimate contradiction of perpetual diction of he creator personal rights emerged in those nations with such legislation. At such legis rights em personal rights emerged in those nations with such legislation. At the outset of any work’s trajectory, moral rights were highly indi- - ts were hi et of any the outset of any work’s trajectory, moral rights were highly indi vidualistic. They undergirded the author’s claim to enforce the sin- ic. They u vidualistic. They undergirded the author’s claim to enforce the sin im to enfor - gularity of his vision even after death. But the passage of time gularity of his vision even after death. But the passage of time of his vi n after death. But the passag gnawed away at this personal tie. His descendants and heirs alleg- - nal tie. His descendants and gnawed away at this personal tie. His descendants and heirs alleg away at th edly did his bidding. But their motives weakened as his presence re- edly did his bidding. But their motives weakened as his presence re - heir motives weakened as h his biddin ceded. Ultimately, the collectivity necessarily stepped in to preserve ltimately, ceded. Ultimately, the collectivity necessarily stepped in to preserve ectivity necessarily step what by now—if he remained of interest—had become the author’s what by now—if he remained of interest—had become the author’s now—if h position in a canon. By this point cultural bureaucrats safeguarded position in a canon. By this point cultural bureaucrats safeguarded in a cano not his individual vision, but a socialized understanding of where he not his individual vision, but a socialized understanding of where he ndividual 154 fit in the pantheon. pantheon fi control co the innocent form of preventing de Such control could take the innocent form of preventing destruc- tion of valuable works. One of the first instances of the state using aluable w tion of valuable works. One of the first instances of the s moral rights, introduced by the Italian Fascists in 1925, came four moral rights, introduced by the Italian Fascists in ghts, intro years later at the death of Marco Praga, a popular playwright. His y er at the d will ordered his manuscripts destroyed, but the minister of educa- ered his m w tion decreed otherwise. To this day Praga’s works and letters remain t reed other 155 in the Brera Academy of Milan. era Acade i But what happens when the motives are more personal? Even the hat happe French—fervent moral rightists—recognized the problem. In 1959 F —fervent m the Société des Gens de Lettres sought an injunction against use of t été des Ge Les liaisons dangereuses as the title of a film based on the eighteenth- L ns dangere century novel by Pierre Choderlos de Laclos. The film was by Roger c novel by P Vadim, he who launched Brigitte Bardot and turned Jane Fonda V he who la into Barbarella. Though perhaps no more erotic than the original bllTh i THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

53 Anglo-America vs. Europe 43 book, the film was set in the contemporary underworld, not a ro- book, the film was set in the contemporary und coco court. The lower court injunctions against the film coco court. The lower court injunctions against the film were criti- cized for accepting the Société’s pretensions to speak for Choder- cized for accepting the Société’s pretensions to speak for Ch los’s moral interests. The society had not even existed during his los’s moral interests. The society had not even existed during lifetime! Choderlos’s own intentions were not mentioned since it lifetime! Choderlos’s own intentions were not mentioned since it was difficult to say whether a writer who died in 1803 would have was difficult to say whether a writer who died in 1803 would have welcomed a filming of his novel. Ultimately, reason prevailed and welcomed a filming of his novel. Ultimately, reason prevailed and the Society did not. The Court of Appeals dismissed the Société’s ourt of Appeals dism the Society did not. The Court of Appeals dismissed the Société’s ty did no claim to represent the author as a task it had arrogated, not one an- claim to represent the author as a task it had arrogated, not one an or as a task it had arrogate represent - 156 156 chored in law. law. c de nal Literary Fund, created in In 1964 the French National Literary Fund, created in 1946 to de- - 4 the Fren integrity o - fend the integrity of public domain works, similarly sought to sup milarly soug fend the integrity of public domain works, similarly sought to sup- Les Misérables (1862). The court press an abridgment of Victor Hugo’s bridgmen (1862). T bles t p grandchildren, refused, reasoning that Hugo’s living heirs—two great- r easoning t grand reat- , Jean and Marguerite Hugo—were the ones to safeguard his moral Jean and Marguerite Hugo—were the ones to safeguard his moral Margueri afeguard h 157 a writer was When, thir When, thirty- seven years later in 2001, a writer was commis- - s rights. r , a great- great- grandchild, g s es great- sioned to write two sequels to Les Misérables write two d, , a great- Pierre Hugo, a goldsmith from Aix- en- Provence, went to court to - en- ugo, a gol to rom Aix Provence, went f P enforce respect for his ancestor’s œuvre. In the first instance the cestor’s œuvre. In the first enforce respect for his ancestor’s œuvre. In the first instance the espect for courts proved themselves more sensible stewards of the French cul- c ch cul oved them m - o e sensible stewards o r tural legacy than the legislators. Since he had lived long before acy than tural legacy than the legislators. Since he had lived long before moral rights had been legislated, the court divined Hugo’s inten- moral rights had been legislated, the court divined Hugo’s inten - ghts had b tions by analyzing his writings and speeches. At the 1878 Interna- analyzing tions by analyzing his writings and speeches. At the 1878 Interna - tional Literary Congress, he had adamantly opposed heirs control- tional Literary Congress, he had adamantly opposed heirs contro erary Con ling their ancestors’ works. The court concluded that Hugo’s wishes ancestors ling their ancestors’ works. The court concluded that Hugo’s w 1 5 8 158 should be respected in this instance too. e respected should be respected in this instance too. ppeal in On appeal in 2004, however, the great- great- grandchild was grea owever, the great- granted standing and indeed won his claim that the sequels violated g tanding an Hugo’s moral rights. But the law on moral rights was upheld only H moral righ by emasculating it. The court symbolically fined the publisher two b ulating it 159 For good measure, euros, while not blocking sales of the sequels. ile not bl e the highest court then overturned this ruling in 2007, declaring that, t st court th although they could not violate the moral rights of the original, se- they coul a quels were among the adaptation rights allowable once the work re among q 160 was in the public domain. e public d w pointed, P Disappointed, Pierre Hugo lashed out at those who would cash genius of in on the genius of famous authors. “I am not just fighting for my- i n self, my family and for Victor Hugo,” he claimed, “but for the de- fil d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

54 44 Chapter 1 scendants of all writers, painters and compose scendants of all writers, painters and composers who should be protected from people who want to use a famous name and work protected from people who want to use a famous nam 16 161 1 j ust for money.” Alas for the conviction his complaint carries, this Alas for the conviction his complaint carri just for money.” is the same descendant who invokes his ancestor to hawk his lux is the same descendant who invokes his ancestor to hawk his luxury fountain pens on the web. These he describes as “truly works o fountain pens on the web. These he describes as “truly works of art,” which have been “launched at Bergdorf Goodman.” The most art,” which have been “launched at Bergdorf Goodman.” The most “ e line (also “prestigious” of the entirely hand- engraved Bois d’Epave line (also available in ballpoint technology) is “dedicated to his great- great- in ballpo hnology) is “dedicated g - available in ballpoint technology) is “dedicated to his great- reat 162 2 6 grandfather Victor Hugo.” her Victor g TTLE LINE THE BATTLE LINES T - Moral rights are a political issue swaddled in culture. They encom- Moral rights are a political issue swaddled in culture. They encom ghts are a lture. The e author i pass more than the legal leverage they give the author in dealing re than th pass more than the legal leverage they give the author in dealing with disseminators, assignees, interpreters, performers, and the pub- - eminator with disseminators, assignees, interpreters, performers, and the pub formers, and lic. Speaking to the implicit social compact between author and so- - it social compact between auth king to th lic. Speaking to the implicit social compact between author and so ciety, they testify to the priorities of a culture. Is the author or the iorities of a culture. Is the a y testify t ciety, they testify to the priorities of a culture. Is the author or the audience primary? Should this unique individual, the author, stand primary? audience primary? Should this unique individual, the author, stand this unique individual, th inviolate? Or are even authors citizens, owing the public domain in ors citizens, owing the ? Or are e inviolate? Or are even authors citizens, owing the public domain in return for their legally protected claims and the social recognition or their le return for their legally protected claims and the social recognition of their talent? alent? o Moral rights have thus epitomized the broader cultural clash be- er cultural clash be rights ha tween Anglo- American copyright and European authors’ rights. t - Ame opyright and European authors’ righ nglo- Each system sees the author’s role differently. The Continental sys- tem sees t Each system sees the author’s role differently. The Continent tem has hoped to insulate culture from the market and protect au- hoped to tem has hoped to insulate culture from the market and p thors from disseminators, interpreters, and the audience. Moral t interpreters, and the om dissem rights are a “fundamental human right,” while copyright is merely a r e a “funda “socially useful right,” granted to encourage authors and benefit so- useful rig “ 163 At their m At their most elevated authors’ rights—and especially moral ciety. c rights—have been considered human rights, a legacy of the Enlight- have been r 164 enment and the French Revolution. and the Fr e So universal have the French regarded moral rights that foreign- iversal hav ers can assert their claims in French courts regardless of their stand- ssert their e 5 165 16 t In the case of Bragance’s authorial credit for the novel In ing at home. i me. wri ghost s she had ghost written with Prince Michael, French law trumped a t 166 With the colorization signed ac c contract signed according to New York law. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

55 Anglo-America vs. Europe 45 Asphalt Jungle , French courts took u Jungle Asphalt Huston s , French courts took up a case where the of of Huston’s 167 In an act American plaintiffs had received no satisfaction at home. American plaintiffs had received no satisfaction at home. of what the French approvingly hailed as French legal imperialism, of what the French approvingly hailed as French legal imperi countering American economic hegemony, Huston’s moral rights in countering American economic hegemony, Huston’s moral rights French law trumped those of the California jurisdiction where he French law trumped those of the California jurisdiction where he 168 French courts French courts had signed the contracts and undertaken the work. h assumed that for moral rights foreign local law violated the princi- assumed that for moral rights foreign local law violated the princi - 9 16 169 ples of international law to which French statute corresponded. o which French statut nternation ples of international law to which French statute corresponded. This was, as one observer of the Bragance case put it, “to slide to- This was, as one observer of the Bragance case put it, “to slide to as one o - of the Bragance case put i 170 was It was wards recognizing a universal principle or a natural right.” ognizing w sal principle or a natural rig certainly a heady dose of cultural and legal hubris. c ltural and legal hubris. a heady d In the most heroic formulations of the Continental ideology, au- u - ntinental ide most hero thors’ rights go beyond even property claims to become human to become hts go be thors’ rights go beyond even property claims to become human rights. The inalienability of moral rights demonstrate the affinity nstrate th rights. The inalienability of moral rights demonstrate the affinity he inalien most clearly. “You can no more sell your authors’ rights in what most clearly. “You can no more sell your authors’ rights in what ors’ rights arly. “You you create than you can (legally) sell your soul,” one observer has you create than you can (legally) sell your soul,” one observer has e than yo ul,” one obs 171 71 n t Bernard Edelman voiced the - n The French jurist Bernard Edelman voiced the Continen- T h e Fre claimed. c ssianic in 1987. Since the wor gy at its m tal ideology at its most messianic in 1987. Since the work embodies tal ideology at its most messianic in 1987. Since the work embodies the author’s personality, harming it also attacks its creator, he in- arming it also attacks its c the author’s personality, harming it also attacks its creator, he in - or’s perso sisted. Just as a worker cannot rent out his labor permanently with- t as a wor not rent out his labor p - sisted. Just as a worker cannot rent out his labor permanently with out becoming a slave, so the author cannot alienate his work with- out becoming a slave, so the author cannot alienate his work with ming a sla - out alienating himself. Juridically, the work is equivalent to the ating him out alienating himself. Juridically, the work is equivalent to the 172 172 - The au- The au person, except that it is perpetual. It is thus quasi- divine. divine. xcept that person, except that it is perpetual. It is thus quasi- not alien thor cannot alienate his moral rights, another French observ thor cannot alienate his moral rights, another French observer agreed. Renouncing the defense of his personality would be a form agreed. Renouncing the defense of his personality would be a enouncin 173 1 rights are absolute, yet anoth Moral rights are absolute, yet another French of “moral suicide.” o suicide.” commentator wrote in the 1930s. As natural rights they live forever. commentator wrote in the 1930s. As natural rights t tator wrot 174 When law profes- They are beyond relativity ( ). hors de la relativité beyond re T sors and jurists, ostensibly discussing a topic as pedestrian as copy- s jurists, ost right, are moved to speak of slavery, soul- selling, the absolute, quasi- r moved to divinity, and moral suicide, something odd is afoot. d nd moral ecently, a Until recently, authors’ rights have been the received orthodoxy n i in continental Europe, with little if any dissent. In the Anglosphere, ental Euro however, there have long been two sides to the issue. Many have fa- there hav h vored the Continental approach, agreeing with its criticism of copy- Continen v hers, in c right. Others, in contrast, have argued that the Anglo- American r copyright approach does not just represent the narrow self- interest t approach c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

56 46 Chapter 1 of the content industries but also embodies prin of the content industries but also embodies principles of public ac- cess, broad dissemination, flexible use of works, and effi cess, broad dissemination, flexible use of works, and efficient stimu- lus of creativity. From this vantage copyright is as consistent, as so- lus of creativity. From this vantage copyright is as consistent cially motivated, and in that sense, as ideological as the Continental cially motivated, and in that sense, as ideological as the Continen defense of authors’ rights. The difference comes down to the defense of authors’ rights. The difference comes down to the broader social values that are defended in each system: artistic qual - broader social values that are defended in each system: artistic qual- ity and authorial authenticity in one, public enlightenment and ity and authorial authenticity in one, public enlightenment and tic her. democratic access in the other. access d he author’s intended mean rights pri Moral rights privilege the author’s intended meaning at the time e time of creation. Other possible interpretations are restricted by his on. Othe le interpretations are restr of creation. Other possible interpretations are restricted by his rights—meanings that are inadvertent, revealed only in new con- - inadvertent, revealed only in rights—meanings that are inadvertent, revealed only in new con meanings texts, plumbed by interpreters and other creators, or otherwise out- t - texts, plumbed by interpreters and other creators, or otherwise out t mbed by ators, or othe side the author’s expressed aim. “The work remains and perpetuates author’s e side the author’s expressed aim. “The work remains and perpetuates ains and pe the person after his death,” writes the author of a standard French f a standar the person after his death,” writes the author of a standard French on after h textbook on intellectual property. “[T]hose responsible for ensuring on intell textbook on intellectual property. “[T]hose responsible for ensuring onsible for its respect do not exercise it in their own interest but . . . should seek, . sh . i k, est but . ct do not e 175 5 17 as it were, to put themselves in his shoes or adopt his viewpoint.” e, to put t es in his shoes or adopt his vi as it were, to put themselves in his shoes or adopt his viewpoint.” cal terms ters of the authors’ rights id In practical terms supporters of the authors’ rights ideology have In practical terms supporters of the authors’ rights ideology have listed examples of the consequences: No shortening of Shakespeare, equences: No shortening o listed examples of the consequences: No shortening of Shakespeare, amples of Molière, or Balzac. No translating Rabelais into modern usage. No Molière, or Balzac. No translating Rabelais into modern usage. No or Balzac nslating Rabelais into m Ave modern- dress versions of classic plays. No playing Mozart’s dress vers Ave zart’s m in coffeehouses. No jazz versions of Strauss waltzes. No per- Verum r ltzes. No per V - coffeeho r 176 176 forming Chopin’s funeral march on a theater organ. gan. f Chopin’s Fund, the Norwegian Academy of Mus pted by th Prompted by the Grieg Fund, the Norwegian Academy of Music, upholder of cultural standards à la française , once expressed its con- upholder of cultural standards à la f rançaise , once expressed it r of cultur suites Peer Gynt sidered opinion that Duke Ellington’s version of the Peer G pinion th sidered opinion that Duke Ellington’s version of the infringed moral rights. Because the offending records were volun- infringed moral rights. Because the offending reco d moral r tarily withdrawn from the Norwegian market, no legal action was t thdrawn f 177 177 7 Norwe Norwegian commentators condemned the Song of Nor- required. r way (1944), the operetta based on Grieg’s life and music, for its w 4), the op American “lack of piety,” as an “act of vandalism towards the music n “lack of A 178 In 1987 US con- of the Master,” and as “commercial prostitution.” o aster,” and gressman Richard Gephardt introduced a bill to ban film coloriza- n Richard g tion. As illustrative of the artistic desecration he sought to spare the t llustrative 179 nation, he offered Louis Armstrong’s music set to a disco beat. he offered n fficult to k H How difficult to know—much less uphold—the supposed purity of nal autho t the original author’s intent! At no moment do we more date our- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

57 Anglo-America vs. Europe 47 selves than when we draw the line between c selves than when we draw the line between culture and barbarism. i . uses are y our c h b ld Your artistic a ren’s c l assics Your artistic abuses are your children’s classics. The defenders of moral rights have typically portrayed themselves The defenders of moral rights have typically portrayed them as progressives, defending the artist against the Moloch of the mar- as progressives, defending the artist against the Moloch of the m ket. But others see such cementing of the author’s power as cultur- ket. But others see such cementing of the author’s power as cultur 180 180 ally conservative, stifling experimentation and transformation. ally conservative, stifling experimentation and transformation. Consider how the Wagner family squabbled with the opera- Consider how the Wagner family squabbled with the opera- going going public as his copyrights expired in 1913. The immediate issue was his copy public as his copyrights expired in 1913. The immediate issue was pired in 1913. The im only the end of his copyright. But the broader concern was the sort only the end of his copyright. But the broader concern was the sort ht. But the broader concer end of his of aesthetic control that moral rights were intended to secure for oral rights were intended t tic contro of aesthetic control that moral rights were intended to secure for Parsifal authors and their heirs. Wagner regarded as a religious ex- h t x x - agner regarded Parsifal as a re l d n ex a ir e pression and insisted that it would be degraded by performance at pression and insisted that it would be degraded by performance at ed by perfor and insist any theater other than the one built in Bayreuth as a shrine to his any theater other than the one built in Bayreuth as a shrine to his h as a shri er other t 181 nother stag d Parsifal on another stage would own œuvre. His followers agreed. o re. His fo be like hearing “Ave Maria” from the lipsticked mouth of a harlot, be like hearing “Ave Maria” from the lipsticked mouth of a harlot, earing “Av mouth of warned Hans Richter, first conductor of the Bayreuth festival. As 1913 Hans Richt warned Hans Richter, first conductor of the Bayreuth festival. As 1913 yreuth festiv neared, his supporters sought to extend Wagner’s terms or at least is suppor ght to extend Wagner’s terms neared, his supporters sought to extend Wagner’s terms or at least Parsifal restrict to Bayreuth. They failed. Rarely has the liberation h. They failed. Rarely has th to l r arsifal ion into the public domain been as spectacularly demonstrated as with en as spectacularly demons into the public domain been as spectacularly demonstrated as with public dom the outpouring of pent- up Parsifal stagings outside Bayreuth at the at the stagings outsid ouring of t l Parsifal close of 1913. In Barcelona the curtain rose a few seconds after mid- 913. In Ba close of 1913. In Barcelona the curtain rose a few seconds after mid - night on 1 January 1914. Later that same day a performance struck up night on 1 January 1914. Later that same day a performance struck up 1 January 1 in Berlin, the next day in Frankfurt and Mainz; St. Petersburg fol- St. Petersburg fol n i the next - lowed on January 3, with a new series in Berlin again on January 5, January 3 lowed on January 3, with a new series in Berlin again on January Parsifal was staged in more and the following day in Dresden. In all, l and the following day in Dresden. In all, was staged in Parsifal ollowing d than fifty European cities between January and August 1914—a cli- than fifty European cities between January and August 19 European 182 max of European high culture before the trenches were dug. uropean h max of European high culture before the trenches w A COLOR AS A SIN S A SI N C More recently the dispute over film colorization has exemplified the M ently the d m ncompreh mutual incomprehension of copyright and authors’ rights. Today, colorization is no longer contentious. But in the late 1980s fierce c on is no battles were fought both in the United States and across the Atlan- b ere fought erican dir tic as American directors sought to assert their moral right to spare t n white works from chromatic manipulation. and- black- pristinely black- a p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

58 48 Chapter 1 When are changes to an older incarnation of a work a technical im- When are changes to an older incarnation of a w provement? When are they an aesthetic alteration? Few provement? When are they an aesthetic alteration? Few recording artists have railed against remastering mono renditions in stereo. artists have railed against remastering mono renditions in But some writers resisted replacing Fraktur (Blackletter) with Anti- But some writers resisted replacing Fraktur (Blackletter) with A qua as the dominant typeface in German publishing late in the qua as the dominant typeface in German publishing late in the nineteenth century. Opinions differ about playing Scarlatti on the nineteenth century. Opinions differ about playing Scarlatti on the piano rather than the harpsichord. Whether silent films could be piano rather than the harpsichord. Whether silent films could be 183 183 ce- Whether conventional overs h W given voice- overs has prompted discussion. . n pted discussio entional g fi films can be remade in 3- D is perhaps a question that awaits us. n be rema D is perhaps a question ts us. Now the issue was whether colorization was an improvement or Now the issue was whether colorization was an improvement or e issue wa er colorization was an imp v m. vandalism. he on world th Colorization was easier in the Anglo- Saxon world than on the ization w r - ended to b r Continent because the film copyright owner tended to be the cor- Continent because the film copyright owner tended to be the cor nt because that ma poration that made it, not the director. A few directors (Orson w director poration that made it, not the director. A few directors (Orson z Citi or Reds s , and Woo , and Woody Allen n W en Welles for Citizen Kane , Warren Beatty for for most of his work) deliberately retained rights. But generally the ghts. But gen for most of his work) deliberately retained rights. But generally the of his wo producer owns the adaptation rights, including that of colorizing. tion rights, including that of producer owns the adaptation rights, including that of colorizing. r owns th r r in ten yea 0 - olor ht earn $100,00 g and- w hit e A A black- and- white film might earn $100,000 in ten years, the color- 184 18 4 No wonder the media sion a mi ll ars annua ll . ized version a million dollars annually. No won i media y to colorize several thou mogul Ted Turner aimed to colorize several thousand films. As we ed Turner mogul Ted Turner aimed to colorize several thousand films. As we r have seen, the dispute culminated with the French case over a color r have seen, the dispute culminated with the French case over a color- - n, the disp uston posthu sion of H Asphalt Jungle i ized version of Huston’s . In 1991 Huston posthu- - mously won: in France colorized films could not be broadcast if mously won: in France colorized films could not be broadcast if won: in F authors objected. objected. a nited Stat - The United States responded with a half- hearted attempt to emu- n hearted attempt to ded with a hal f late European standards while also protecting the owners’ economic pean stan late European standards while also protecting the owners’ exploitation rights. In 1987 Representative Richard Gephardt intro- exploitation rights. In 1987 Representative Richard ion rights duced a film integrity bill to give a movie’s “artistic authors” (the film integ d principal director and screenwriter) the right to prohibit coloriza- director p tion or other “material alteration” of the work, regardless of copy- e t ot h a r “m right ownership. The outcome was the National Film Preservation r nership. T Act of 1988, which drew up a list of culturally significant films and 88, which A outlawed screening a listed work that had been colorized or other- d screenin o 185 wise altered without disclosing the fact. red witho w Interestingly, only Americans debated colorization. Europeans stingly, on have sim seem to have simply assumed that colorization was indefensible. s mericans i S Some Americans in favor of authorial rights, and thus against color- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

59 Anglo-America vs. Europe 49 ization, were as vociferous as any European. Sydney Pollack, the ization, were as vociferous as any European. Sy known director, was shocked. American film maste - w e ll well- known director, was shocked. American film masterpieces, he testified before Congress, “are being altered and then exhibited or testified before Congress, “a r e being altered and then exhibi sold to mass markets.” But rank commercialism was not the only sold to mass markets.” But rank commercialism was not the on charge leveled by this consummate Hollywood insider. The coloriz- charge leveled by this consummate Hollywood insider. The coloriz ers were trying to rewrite history too. “In Orwellian fashion, the ma- - ers were trying to rewrite history too. “In Orwellian fashion, the ma chines revise film history, trampling upon the honor and reputation chines revise film history, trampling upon the honor and reputation 186 Woody Allen re- llen re - of the great directors who created those works.” eat directo created those works.” o er as an American auteu firmly in mained firmly in character as an American auteur, leading the mained firmly in character as an American auteur, leading the charge against the vulgarians, even though he had colorized a news- ns, even though he had color - charge against the vulgarians, even though he had colorized a news ainst the v reel snippet in and inserted himself into old Bullets over Broadway ld r pet in Bu l and inserted himse Broadway —not to mention chopping, rearranging, and Zelig news footage in tage in e n ping, rearran d Z redubbing two Japanese spy movies in his 1966 directorial debut, redubbing two Japanese spy movies in his 1966 directorial debut, 6 directori g two Jap What’s Up, Tiger Lily? , Tiger Lily W The auteur’s opposition to colorization was predictable. More in- - redictable. teur’s opp teresting was how others defended it. Business interests donned the interests do was how teresting was how others defended it. Business interests donned the vestments of populism and democracy. “The choice lies with the d democracy. “The choice lies s of popu vestments of populism and democracy. “The choice lies with the public,” argued an executive at one of the colorizing companies. ve at one of the colorizing public,” argued an executive at one of the colorizing companies. rgued an 187 187 “The public loudly and clearly indicates a preference for color.” “The public loudly and clearly indicates a preference for color.” blic loudly early indicates a preferenc The expressed wishes of the viewing public, hypocritically trum- essed wis - The expressed wishes of the viewing public, hypocritically trum he viewing public, hyp peted by the companies with most to gain, clashed with the Holly- the comp - peted by the companies with most to gain, clashed with the Holly 188 art is not a “The creation of art is not a wood masters’ unabashed elitism. asters’ una w ic process democratic process,” Steven Spielberg pontificated before Congress. democratic process,” Steven Spielberg pontificated before Congress. “The public has no right to vote on whether a black- and- white film white fil n a “The public has no right to vote on whether a black- lic has no d- is to be colored any more than it has the right to vote on how the is to be colored any more than it has the right to vote on ho olored an 189 scenes should be written.” ould be w s he fuss, ot ed? As long as the mono Why the fuss, others asked? As long as the monochromatic origi- 190 Ideological nals remained, “let a thousand skunk weeds bloom.” ained, “let n pro- colorizers had no economic interest in the dispute and did not p izers had necessarily think colorization was a worthy enterprise. Instead they n y think co asked what was best for the public domain and for cultural innova- a at was bes tion. How did colorization differ from other changes to works in- t w did colo tended to broaden their audience: modern- dress versions of historic t broaden plays, Baroque music played with Romantic instrumentation, or roque mu p translations of novels? What concept of authenticity held once a ns of nov t 191 Filmmak- work’s performance differed from that at its first release? rformanc w often the ers were often the first to appropriate, change, and even mutilate e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

60 50 Chapter 1 others works. Why this sudden persnickety emp others’ works. Why this sudden persnickety emphasis on authorial 192 192 h aut in cinema? y enticit authenticity in cinema? In Europe no controversy spoiled the consensus. All united be- In Europe no controversy spoiled the consensus. All unit hind the author. This was true not only of colorization but also of hind the author. This was true not only of colorization but also most disputes over authors’ rights during the digital revolution o most disputes over authors’ rights during the digital revolution of - t ons seemed in the 1980s and ’90s. To the Europeans the Anglo- Saxons seemed in- comprehensible. American courts, one French jurist insisted, simply comprehensible. American courts, one French jurist insisted, simply 193 That there might e might f understan sence of moral rights. failed to understand the essence of moral rights. be another side to the story rarely occurred to Continental observ- be another side to the story rarely occurred to Continental observ y rarely occurred to Cont er side to - ers. Only once before the digital age had the Europeans seriously digital age had the Europe ers. Only once before the digital age had the Europeans seriously y once be debated the preeminent role of the author and his relationship to ole of the author and his rela the preem debated the preeminent role of the author and his relationship to the public good. That, as we shall see, was during the fascist era. The ring the fasci the public good. That, as we shall see, was during the fascist era. The ic good. T 1920s and ’30s brought the first sustained challenge to the author’s 1920s and ’30s brought the first sustained challenge to the author’s enge to th d ’30s bro supremacy on the Continent, though it was mixed with a great deal supremacy on the Continent, though it was mixed with a great deal ed with a cy on the of cultural posturing on behalf of strong creative personalities. After al posturi of cultural posturing on behalf of strong creative personalities. After e personali 1945, however, the European position reverted to its mean. The per- r to its mean wever, the - r 1945, however, the European position reverted to its mean. The per verted collectivist vision of interwar Europe made any later chal- - f interwar Europe made any ollectivist verted collectivist vision of interwar Europe made any later chal lenges to authorial preeminence impossible. The authors’ rights ide- authorial - nence impossible. The author lenges to authorial preeminence impossible. The authors’ rights ide ology enjoyed its apotheosis during the Cold War as a riposte to the ology enjoyed its apotheosis during the Cold War as a riposte to the is during the Cold War as a joyed its a mass culture of both Babelsberg and Hollywood. As in so many elsberg and Hollywoo ture of b mass culture of both Babelsberg and Hollywood. As in so many other respects, postwar Europe abjured its own past demons, avoid- other respects, postwar Europe abjured its own past demons, avoid - pects, pos ing anything even remotely tainted by totalitarianism. i hing even WHAT IS THE PUBLIC INTEREST? S THE PU WHAT IS THE PUBLIC INTEREST? Seen historically, copyright has aimed to serve the public interest Seen historically, copyright has aimed to serve th torically, c directly. The Continental ideology claims to do so too, but only in- The Cont d sofar as protecting authors also benefits their audience. The Euro- s protecting pean Commission betrayed its order of priorities when it noted in mmission p 1991 that a high level of protection helped to stimulate creativity “in a high lev 1 the interests of authors, the cultural industries, consumers, and ulti- ests of aut t 194 Both systems appealed to the public mately of society as a whole.” m f society a good; both believed themselves to take account of the interests of oth believ g authors, disseminators, and the audience. But much hinged on how dissemina a the public interest was defined. Did adhering faithfully to the au- ic interes t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

61 Anglo-America vs. Europe 51 quality cu thor s wishes and thor’s wishes and vision produce high- quality culture? Or was the vision produce high goal a great variety of culture, cheaply and universally av goal a great variety of culture, cheaply and universally available? The public interest has not been a given. One might cynically say The public interest has not been a given. One might cynica that every interest group—authors, disseminators, public—has its that every interest group—authors, disseminators, public—has own definition. Do we want to stimulate new creativity or distribute own definition. Do we want to stimulate new creativity or distribute existing content? Was the goal the best, the most, or the cheapest existing content? Was the goal the best, the most, or the cheapest cultural production? Pirates dreamed of cheap, ready, and fast access cultural production? Pirates dreamed of cheap, ready, and fast access to works. In its 2010 election platform, the Swedish Pirate Party ad- - n platform, the Swedi to works. In its 2010 election platform, the Swedish Pirate Party ad In its 201 195 But what if hat if vocated open digital access to works after five years. open digit v to works after five years. i n ght term boon for the p A short- incentives were insufficient? A short- term boon for the public might s were ins prove a cultural catastrophe in the longer run. A widely opened prove a cultural catastrophe in the longer run. A widely opened he in the longer run. A wide cultural ca public domain could dampen creativity and eventually shrink to a omain cou public domain could dampen creativity and eventually shrink to a eventually sh size smaller than one restricted by copyright. s er than o The public interest could also mean an emphasis not just on avail- is not just blic inter - ability but on the richness, multiplicity, and quality of cultural cre- ut on the r - a ality of cul ation. Moral rights, a French observer insists, serve the public inter- erve the pub ation. Moral rights, a French observer insists, serve the public inter oral rights - r r 196 Stronger protection encourages authenticity and quality, even en onger prot ncourages authenticity and qu est. e a ricts audi e ss. That is the g as it restricts audience access. That is the golden- goose problem: olden - em: goos poor nesting conditions mean the laying ceases. The public interest, ean the laying ceases. The p ing condi poor nesting conditions mean the laying ceases. The public interest, in other words, is not necessarily the same as the interest of the pub- i sarily the same as the in n he pub - words, is n 197 Consumer wants might contradict citizens’ higher aims. That nsumer wa ims. That lic. i l mocracy p is the democracy problem: what the public thinks it wants is not is the democracy problem: what the public thinks it wants is not 198 necessarily what (others conclude) is best for it. y what (o n Take John Ruskin, advocate of traditional craftsmanship and self- ate of traditional craftsmanship and se ohn Ruski professed friend of the laboring classes. As was customar friend o professed friend of the laboring classes. As was customary in nineteenth- century Britain, his works appeared in editions too ex- h- n his works appeared in edition y entur c pensive for the poor. In America, where publishers pirated foreign or the poo pensive for the poor. In America, where publishers d paid no works and paid no royalties, cheap editions made Ruskin almost as w p s Dickens popular as Dickens. Perhaps British publishers would have issued af- editions f fo fordable editions for the US market, one American commentator v But why ventured. But why would the English publisher “see his interest in selling a large edition at a low price, when the sale of a small costly arge editi s 199 edition would afford an equal pecuniary return”? The jurist and would affo e statistician Leone Levi thought that British publishers had “yet to n Leone L s learn the first lessons of political economy respecting supply and first lesso l e As they i demand.” As they ignored the “wonders of the penny newspapers” d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

62 52 Chapter 1 and kept editions small and prices high, only su and kept editions small and prices high, only subscription libraries and retail competition allowed books to “pass beyond the upper and retail competition allowed books to “pass beyond 2 00 200 Market logic could not settle the issue. The Market logic could not settle the issu classes of society.” classes of society.” same profit was attainable one way or the other. Other reasons w same profit was attainable one way or the other. Other reasons were needed to prompt authors and publishers to choose whether to be needed to prompt authors and publishers to choose whether to be known among a select few for sumptuous editions or to cut a broad known among a select few for sumptuous editions or to cut a broad swath across the reading public with cheap and cheerful ones. swath across the reading public with cheap and cheerful ones. Authors deserved protection, but how much? Nineteenth- century rs deserve century tion, but how much? N observers French observers advocated authors’ perpetual property rights to d authors’ perpetual pro French observers advocated authors’ perpetual property rights to their works. The sight of great writers’ heirs living off their ances- - their works. The sight of great writers’ heirs living off their ances rks. The s great writers’ heirs living off tors’ works was a public good, they insisted, that stimulated others w k s ers as a p t ood, they insisted, that stimul 201 h debates of During the British debates of the 1830s 0s to exercise their talents. se their t t dsworth ar gthening c over lengthening copyright terms, the poet Wordsworth argued that over lengthening copyright terms, the poet Wordsworth argued that extensive protection most helped quality literature, which, being ture, whi extensive protection most helped quality literature, which, being protectio less popular, took longer to catch on. Not only did authors gain, but ular, took did authors less popular, took longer to catch on. Not only did authors gain, but 202 202 y But in the copy- - But in society benefited too through better literature. benefited t s re. tems auth right systems authors’ rewards were justified only insofar as they wards were justified only inso right systems authors’ rewards were justified only insofar as they stimulated creativity and enriched the public domain. Wordsworth’s nriched the public domain. W stimulated creativity and enriched the public domain. Wordsworth’s ed creativi nemesis, the historian Thomas Babington Macaulay, argued that nemesis, the historian Thomas Babington Macaulay, argued that the histo omas Babington Macaula copyright “ought not to last a day longer than is necessary for the t “ought st a day longer than is copyright “ought not to last a day longer than is necessary for the 203 Any ex - x x Any ex- purpose of securing the good” of encouraging authors. p of securin pansion of authors’ deserts had to be justified by higher social goals. of authors pansion of authors’ deserts had to be justified by higher social goals. Such battles have been fought continuously for almost three cen- or almost three cen battles hav turies within Britain, France, Germany, and the United States. And turies within Britain, France, Germany, and the United States. A thin Brita each of these nations belonged to larger groupings of legislative af- each of these nations belonged to larger groupings of legislat hese natio finity. No country purely exemplified either copyright or authors’ finity. No country purely exemplified either copyright o o country rights. Today all are hybrid and ever more similar. Yet fundamental rights. Today all are hybrid and ever more similar. oday all ar differences over whether to focus primarily on authors or on the es over w d audience remain embodied in legislation and given voice in debates. remain e a Through distinctions in degree and emphasis, these disputes persist distinctio T even today. Both the Continental and copyright systems have sought e ay. Both th to balance the interests of authors and audience, but they did so at t ce the inte different angles. It is to how that divergence of emphasis, and its angles. It d profound cultural implications, arose historically that we now turn. d cultural p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

63 2 2 From Royal Privilege to Literary Property From Royal Privilege to Literary Property YRIGHT IN THE EIGHTEE A COMMON START TO COPYRIGHT IN THE EIGHTEENTH CENTURY ON START A COMMON START TO COPYRIGHT IN THE EIGHTEENTH CENTURY By the mid- nineteenth century, copyright and authors’ rights had ninete mid- authors’ ri B d diverge. B Britain, th begun to diverge. But in the eighteenth century Britain, the United begun to diverge. But in the eighteenth century Britain, the United States, France, and Germany (which passed laws in that order) ance, and a ws in th ) S a shared much the same goals. Everywhere, legislators sought to curb uch the sa shared much the same goals. Everywhere, legislators sought to curb lators sough publishers’ privileges and vest rights to works instead in their au- publishers’ privileges and vest rights to works instead in their au vest rights to works instead in - s’ privileg thors. All regarded works as property justified by natural rights be- regarded s property justified by natura - thors. All regarded works as property justified by natural rights be cause of the authors’ labor. Authors, all agreed, were entitled to ben- cause of the authors’ labor. Authors, all agreed, were entitled to ben he author Authors, all agreed, were en - efit when they sold their works to publishers. To stave off the n they so works to publishers. efit when they sold their works to publishers. To stave off the expropriation of their royal privileges that this threatened, publish- - tion of th expropriation of their royal privileges that this threatened, publish lh ers advanced the same logic of natural rights. Since authors owned ced the sa ers advanced the same logic of natural rights. Since authors owned their works, they could also fully assign them to publishers. As the ks, they c their works, they could also fully assign them to publishers. As the booksellers saw it, they were therefore the absolute masters of the rs saw it, booksellers saw it, they were therefore the absolute masters of th manuscripts they bought, owning them perpetually. But this was an pts they b manuscripts they bought, owning them perpetually. But this w illusion. Unlike conventional, tangible property—the exclusive do- illusion. Unlike conventional, tangible property—the excl Unlike co main of one owner—literary property was inherently promiscuous. one owner main of one owner—literary property was inherentl By its nature, it yearned to be used by many. When published, works B ure, it yea were, in effect, given away. Only society’s copyright laws—not natu- w ffect, give thereafter. ad libitum ral rights—prevented them from being copied r —prevent By demanding perpetual rights to works they bought from authors, B nding perp publishers were therefore overreaching. Since their only enforceable p s were the powers of control derived from statute, the law also decided the f control p terms on which they possessed their literary property. t which the The point of the new copyright laws was twofold. First, by grant- oint of the ing ownership rights, they would stimulate authors to further pro- rship righ n i ductivity. But just as importantly, they aimed to ensure the swift and But just a d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

64 54 Chapter 2 efficient transfer of works into the public dom efficient transfer of works into the public domain. As a result the rights given authors—and thus also those they could in rights given authors—and thus also those they could in turn assign publishers—were limited: to fourteen years after publication in Brit- publishers—were limited: to fourteen years after publication ain and the United States and to five and ten years postmortem in ain and the United States and to five and ten years postmortem France. Publishers, however, hoped to invoke either natural rights or France. Publishers, however, hoped to invoke either natural rights o common law to substantiate their own everlasting stake. Though common law to substantiate their own everlasting stake. Though writers and booksellers both claimed to believe in works as a form writers and booksellers both claimed to believe in works as a form of property, in fact they were at cross- purposes. This antagonism was o ism was rty, in fact purposes. Th re at cross- fought out in the so- called Battle of the Booksellers. By the early early d Battle of the Bookseller ut in the f nineteenth century courts in Britain and America had settled the th centur in Britain and America ha nineteenth century courts in Britain and America had settled the issue there. Copyright was declared a merely statutory right, founded i ded re. Copyri declared a mer ely statutory rig immediately on man- made law and only abstractly on natural rights tely on m i ts ractly on nat or on the common law. Whether held by an author or a publisher, uthor or a or on the common law. Whether held by an author or a publisher, e commo ownership therefore lasted only as long as the copyright laws de- - copyright fo o e ip ther e creed. In Europe, in contrast, the idea endured much longer that Europe, d much lo creed. In Europe, in contrast, the idea endured much longer that works were property founded directly on natural rights (as formu- works were property founded directly on natural rights (as formu ural rights ere prope - lated in statute) and thus—in theory at least—owned in perpetuity. —in theory at least—owned in statute) an lated in statute) and thus—in theory at least—owned in perpetuity. That helped push France and Germany along a path that soon di- - ped push and Germany along a path t That helped push France and Germany along a path that soon di verged from Anglo- American copyright. ri g ht. om Anglo v an cop y The invention of printing with moveable type in fifteenth- century The invention of printing with moveable type in fifteenth- ntion of ury t en c Germany made writings easily reproducible for the first time. By y made w Germany made writings easily reproducible for the first time. By reducing the physical toil of copying by hand, printing also allowed reducing the physical toil of copying by hand, printing also allow the physi anyone—not just their legitimate owners—to reproduce printed —not just a gitimate owners—to reproduce p materials. At the very moment that mass reproduction promised au- materials. At the very moment that mass reproduction pro s. At the v thors a market, it also threatened to snatch it from them and their thors a market, it also threatened to snatch it from market, it authorized booksellers (as publishers were called in the eighteenth a ed bookse century). Earlier, authors had often been clerics, expecting no tangi- c Earlier, a ble reward, or they were supported by patrons, courts, or the church. b rd, or they Who owned works and captured their benefit was not pressing. But W ned work when the printing press created new markets for works, ownership e printing w became an issue. Did the work belong to the author, the bookseller an issue. D b he allowed to disseminate it, or to a pirate publisher? These were the ed to disse h questions that copyright sought to answer. s that cop q Before copyright there was privilege. Privileges originated in the copyrigh fifteenth century, in Venice, Germany, and elsewhere. They were century, fi THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

65 Copyright in the Eighteenth Century 55 limited, dissemination and exploi- royal grants of exclusive, but time- royal grants limited, dissem time but exclusive of , tation rights for publishers and sometimes guilds, like th tation rights for publishers and sometimes guilds, like the London Stationers’ Company. Publishers were allowed to make and sell par- Stationers’ Company. Publishers were allowed to make and se ticular books, images, or pamphlets as monopolies. But privileges , or pamphlets as monopolies. But privileg ticular books, images, could be enforced locally at best. In fragmented early modern Eu- could be enforced locally at best. In fragmented early modern Eu rope popular tracts were reprinted elsewhere and smuggled across rope popular tracts were reprinted elsewhere and smuggled across borders. The southwestern German principalities and, most notori- borders. The southwestern German principalities and, most notori - 1 - central In more central- ously, Austria were the print pirates of their time. stria were nt pirates of their time o ized nations like England and France, the battle of the privileges and France, the battle of ized nations like England and France, the battle of the privileges ons like E pitted the publishers of Paris and London, printing with royal as- ris and London, printing w - pitted the publishers of Paris and London, printing with royal as e publishe sent, against provincial competitors, with their cheap knock offs. sent, against provincial competitors, with their cheap knock offs. nst provi mpetitors, with their cheap k Scottish reprint publishers dogged the London booksellers. In France Scottish reprint publishers dogged the London booksellers. In France eprint pub booksellers. the booksellers in the provinces, Lyon for example, fought their Pa- t sellers in t ple, fought - 2 2 Swiss publishers escaped both the French monar- S the Frenc - risian colleagues. leagues. r 3 chy’s censorship and its grants of privileges. sorship an c hers and t y vileges were Publishers and their authors fought too. Privileges were generally given to publishers, who usually paid authors for manuscripts. But sually paid authors for manus publishers given to publishers, who usually paid authors for manuscripts. But they were for short periods only and thus subject to renewal. During for short only and thus subject to rene they were for short periods only and thus subject to renewal. During the late seventeenth century, authors and their heirs began to insist eventeent y, authors and their heirs b the late seventeenth century, authors and their heirs began to insist that renewal of publishers’ privileges depended on their say- so. They wal of pub t o. They privileges depended on argued that transfer to the bookseller of the physical manuscript argued that transfer to the bookseller of the physical manuscript hat transfe and his right to publish a first edition should not include future edi- and his right to publish a first edition should not include future e di - ght to pub tions as well. Both booksellers and authors began claiming that their well. Both b tions as well. Both booksellers and authors began claiming that their rights to works derived not from royal favor, but from nature itself. works der rights to works derived not from royal favor, but from nature itsel THE BATTLE OF THE BOOKSELLERS F T O LE T THE BATTLE OF THE BOOKSELLERS The natural rights concept of property was revived by both authors ral rights T a ishers in and publishers in the eighteenth century. John Locke’s theory of p was presse Second Treatise on Government property was pressed into service. His ( (1690) portrayed property as wrested from nature by the owner’s rtrayed p labor. It was thus an innate right, not a social convention, and it ex- was thus a la 4 isted naturally, prior to and independent of society and its laws. urally, pri i s mself did L Locke himself did not think that property in things could be sim- ply extended to intellectual works. He favored a limited copyright ded to in p term, believing that a perpetual property right in books threatened eving tha t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

66 56 Chapter 2 5 harm to harm the spread of learning. the spread of learning. He scoffed a to He scoffed at the booksellers’ “ab- surd and ridiculous” pretensions to own the works of classical an- surd and ridiculous” pretensions to own the works of c 6 6 But other thinkers But other t tiquity, whose authors were centuries dead. tiquity, whose authors were centuries dead . sought to elide the difference between natural rights in phys sought to elide the difference between natural rights in physical property and authors’ claims to their works. Concepts of property property and authors’ claims to their works. Concepts of property inherited from Roman law had relied on occupancy—not labor— inherited from Roman law had relied on occupancy—not labor— as validating ownership and were anchored in the materiality of as validating ownership and were anchored in the materiality of property. They shed little light on the emerging concept of immate- - property. They shed little light on the emerging concept of immate They she ght on the emerging c e’s justification of property rial literary property. Locke’s justification of property by labor filled rial literary property. Locke’s justification of property by labor filled ary proper 7 7 this vacuum. t um. ur sellers” refers to the struggle f r The “Battle of the Booksellers” refers to the struggle fought dur- - Battle of t r eighteent ing the eighteenth century over property in literary works. Ulti - n literary w ing the eighteenth century over property in literary works. Ulti- mately the dispute pitted booksellers against authors. But proxi- mately the dispute pitted booksellers against authors. But proxi he disput authors. B - mately it was pitched between the booksellers of the capitals, who of the cap t was pitc mately it was pitched between the booksellers of the capitals, who were favored with royal privileges, and their provincial rivals, who rovincial r ored with were favored with royal privileges, and their provincial rivals, who were not. Booksellers were the first to recognize the advantages of were not. Booksellers were the first to recognize the advantages of nize the adv . Booksel the labor theory of property for their cause. They employed a con- ty for their cause. They emplo - the labor theory of property for their cause. They employed a con r theory o cept of law—understood as common law in Britain and natural cept of law—understood as common law in Britain and natural aw—und as common law in Britain rights on the Continent—that preceded and transcended mere stat- - t rights on the Continent—that preceded and transcended mere stat t that preceded and transcen n the Con ute. With it, they hoped to claim perpetual ownership for what ear- - r claim perpetual owner r h it, they h ute. With it, they hoped to claim perpetual ownership for what ear lier had been granted them only provisionally by royal decree as been gran lier had been granted them only provisionally by royal decree as privileges. Authors, they argued, had a common law or natural rights privileges. Authors, they argued, had a common law or natural rights s. Authors claim to their works in perpetuity. Independent of any rights granted claim to their works in perpetuity. Independent of any rights granted their work them in statute, they could dispose of such property as they pleased. statute, th them in statute, they could dispose of such property as they please The booksellers claimed to be supporting authors’ just and natural The booksellers claimed to be supporting authors’ just and n ksellers cl right to property. But in fact their aim was to take for themselves property. right to property. But in fact their aim was to take for t what nature had supposedly granted their clients. what nature had supposedly granted their clients. ure had su This was a cuckoo defense of property rights—publishers invok- was a cuck ing authors’ rights on their own behalf, slipping their eggs into oth- ors’ rights i ers’ nests. One of the earliest instances of such tactics had come al- e of t O . e n ready in 1586, with arguments advanced by the jurist Simon Marion. 1586, with r Marion made his case before the highest court of Old Regime made his M France, the Parlement of Paris, on behalf of an annotator of Seneca, F he Parlem Marc Antoine de Muret. Muret’s edition had originally been pub- toine de M lished without any restrictions in Rome. Two Parisian publishers ithout an l were now quarrelling over a privilege granted one of them for a new w quarrell w edition. Marion argued the author’s right to decide the conditions Marion ar e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

67 Copyright in the Eighteenth Century 57 under which he released his work, including that under which he released his work, including that of asking nothing in return. By “common instinct,” the jurist insisted, men in return. By “common instinct,” the jurist insisted, men recognize others to be the master of what they create. Just as God is master of others to be the master of what they create. Just as God is ma 8 8 Marion won his case, the Marion won his case, the world, so is the author of his book. the world, so is the author of his book. privileges of the defendant bookseller were revoked, and the vol privileges of the defendant bookseller were revoked, and the vol- ume—per the author’s wishes—was left in the public domain, freely ume—per the author’s wishes—was left in the public domain, freely reprintable by anyone. Marion’s rhetoric was seemingly selfless. But reprintable by anyone. Marion’s rhetoric was seemingly selfless. But ot, in fact rguing on the author’s he had not, in fact, been arguing on the author’s behalf. Quite the he had not, in fact, been arguing on the author’s behalf. Quite the dead and the case had bee Muret wa contrary. Muret was long dead and the case had been brought by contrary. Muret was long dead and the case had been brought by kseller aga - one bookseller against another, aiming to publish a competing edi one bookseller against another, aiming to publish a competing edi- ther, aiming to publish a com tion. Authors’ rights were being invoked on behalf of the dissemina eing invoked on behalf of the tion. Authors’ rights were being invoked on behalf of the dissemina- hors’ right - the creato t tors, not the creators. they mig t o the work While they might dispute who had rights to the work, at least authors and their chosen publishers were united in advancing natu- in advanc - a nd their c ral rights arguments against competitors with pirated editions. The ral rights arguments against competitors with pirated editions. The argumen irated edit author and his legitimate publisher had a common interest in the nd his leg mmon inter author and his legitimate publisher had a common interest in the emerging theory of intellectual property based on natural rights. theory o ctual property based on natu emerging theory of intellectual property based on natural rights. The Battle of the Booksellers was thus fought on two fronts. It set The Battle of the Booksellers was thus fought on two fronts. It set e of the B ers was thus fought on two f the publishers with privileges against provincial competitors. But in es against provincial comp shers with the publishers with privileges against provincial competitors. But in the longer run it also set authors, whom nature favored with these uthors, whom nature fa r run it a the longer run it also set authors, whom nature favored with these new rights, against their publishers, who gained such rights only de- ts, against - new rights, against their publishers, who gained such rights only de rivatively. Privileges still had to be renewed and still depended on Privilege rivatively. Privileges still had to be renewed and still depended on royal whim. If publishers could convince the courts that privileges m. If pub royal whim. If publishers could convince the courts that privileges were not the source but merely a reflection of their underlying natu- the source were not the source but merely a reflection of their underlying nat ral property rights, they could secure a monopoly for their lists. This ral property rights, they could secure a monopoly for their lists rty rights, appeal to natural rights cut two ways. Publishers’ rights derived from appeal to natural rights cut two ways. Publishers’ rights der natural ri authors’ prior claims to their works. Their act of creation was natu- authors’ prior claims to their works. Their act of cre prior claim ral and primary compared to the formality of alienation (or selling rimary co r rights) and the contractual relations by which publishers secured nd the co r their rights from authors. The more convincing the publishers’ hts from t claims were, the stronger the author’s rights became. c ere, the str In the eighteenth century natural rights theories of literary prop- eighteent erty were brandished in Britain and France as the authorized book- e brandish sellers sought to assert claims to their books. An anonymous brief s ught to as stated the Parisian publishers’ position in 1690, the year of Locke’s e Parisian s . It argued that, since booksellers risked resources and Second Treatise . It a r S eatise invested energy, their claims were just. Their privileges acknowl- energy, th i n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

68 58 Chapter 2 edged this, and they ought to be so went the c edged this, and they ought to be—so went the cheeky suggestion— 9 9 Louis d’Héricourt agreed a few decades later Louis d’Héricourt agreed a few decades later in 1725. The etua l. p p er perpetual. Parisian booksellers, he insisted, owned their books not through Parisian booksellers, he insisted, owned their books not th privileges from the king but through the property rights their au- privileges from the king but through the property rights their thors granted them. The rights in the manuscripts bought from au- thors granted them. The rights in the manuscripts bought from au thors were genuine possessions ( véritables possessions ) of the same t ) of the same sort as land, houses, or chattels. When selling his manuscript, the sort as land, houses, or chattels. When selling his manuscript, the author transferred all rights. Publishers and their descendants there- - author transferred all rights. Publishers and their descendants there ansferred s. Publishers and their fore owned the manuscript in perpetuity, to dispose of as they fore owned the manuscript in perpetuity, to dispose of as they pt in perpetuity, to disp ned the m 10 0 pleased. p uthors too d to natural rights. When publ But authors too appealed to natural rights. When publishers’ priv- - riv ileges came up for renewal, authors advanced their property rights d their prop me up for ileges came up for renewal, authors advanced their property rights to overcome their publishers’ demands for extensions. In 1761 La ome their tensions. I to overcome their publishers’ demands for extensions. In 1761 La Fontaine’s granddaughters wrested back his from his Parisian Fables es from hi n F ’s grandda publisher after almost a century. Their argument was the same as the r after alm publisher after almost a century. Their argument was the same as the was the sa publishers’ , but the goal was the opposite. Both invoked the right of rs’, but the h invoked th , but the goal was the opposite. Both invoked the right of publishers’ 11 11 property. p THE AMBIGUITIES OF LITERARY PROPERTY ERARY PR O Y T BIGUITIE PERT T ural rights The natural rights argument was simple and intuitive. It promised The natural rights argument was simple and intuitive. It promised uthors a to give authors a stake and to free literary works from royal privi to give authors a stake and to free literary works from royal privi- lege, with its arbitrary assignments and durations and its whiff of h its arbit lege, with its arbitrary assignments and durations and its whiff censorship. Authors sought to become intellectual entrepreneurs— ip. Autho censorship. Authors sought to become intellectual entreprene freed from patrons, emoluments, and charity. A lively debate ensued: m patrons freed from patrons, emoluments, and charity. A lively deba who owned literary property? Could it be fully assigned to others? who owned literary property? Could it be fully ass ned literar And, above all, was intellectual property like conventional, physical ove all, wa A property? p ? Authors and booksellers both advanced natural rights to property rs and bo but in fundamentally asymmetrical ways. As authors saw it, their undament b rights were supposedly born of nature herself. Publishers, whose ere suppo r claims derived via contract or statutory law, could never hope to em- erived via c ulate the authors’ relationship to their works, except insofar as the u authors’ author’s rights were fully assignable to them. Since natural rights to rights wer a property derived from the fruits of labor, literary property was not p derived f only equal to other kinds of property, it was arguably property’s pri- al to othe o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

69 Copyright in the Eighteenth Century 59 mary form. Physical laborers needed tools, land, mary form. Physical laborers needed tools, land, raw materials, and at times, helpmates. But spiritual work was an inherentl at times, helpmates. But spiritual work was an inherently personal and solitary effort. Diderot put the argument powerfully in 1763. and solitary effort. Diderot put the argument powerfully in What could belong to man more than the products of his mind? What could belong to man more than the products of his min The purest property was intellectual, not physical. Nature offered all The purest property was intellectual, not physical. Nature offered all humans a field, tree, or vine. But authors’ ideas sprang from their humans a field, tree, or vine. But authors’ ideas sprang from their 12 very core, from their souls. v y, Isaac le Chapelier, is ench revo The French revolutionary, Isaac le Chapelier, is best remembered mbered w of 14 Ju for the law of 14 June 1791, bearing his name, which abolished many for the law of 14 June 1791, bearing his name, which abolished many bearing his name, which ab of the Old Regime’s intermediary institutions between citizen and d Regime mediary institutions between of the Old Regime’s intermediary institutions between citizen and the state. It swept away the foundations of corporatist society, espe- foundations of corporatist so - the state. It swept away the foundations of corporatist society, espe It swept a cially guilds and workingmen’s fraternities, thus leaving the indi- lds and w - cially guilds and workingmen’s fraternities, thus leaving the indi thus leaving 3 13 vidual naked and unmediated vis- à- vis an ever more powerful state. ore powerf ked and u v e Nationa his world- - In a less world- historical role, le Chapelier was the National Assem- I t bly’s spokesman on authors’ rights and in 1791 the sponsor of a de- he sponso kesman on b - cree on the subject. Explaining why a play belonged to its author, he subject longed to i cree on the subject. Explaining why a play belonged to its author, not to the owner of the theater staging it, he claimed in an oft- wner e o heater staging it, he claimed ft- n quoted phrase that the work, the fruit of a writer’s thoughts, was quoted phrase that the work, the fruit of a writer’s thoughts, was hrase that rk, the fruit of a writer’s th “the most sacred, legitimate, unquestionable and most personal of t sacred, l “the most sacred, legitimate, unquestionable and most personal of e, unquestionable and mo 1 4 14 W senting the second of t When presenting the second of the revolutionary ionary all properties.” rties.” a uthors’ rig - laws on authors’ rights in 1793, his colleague at the National Conven laws on authors’ rights in 1793, his colleague at the National Conven- tion, Joseph Lakanal, argued equally forcefully that literary property, ph Lakana tion, Joseph Lakanal, argued equally forcefully that literary property, precisely because it sprang from the individual alone, was unlike precisely because it sprang from the individual alone, was unlike because i other forms of ownership and thus did not run counter to revolu- other forms of ownership and thus did not run counter to revol ms of own 15 15 What the individual What the individual him- tionary ambitions to equality or liberty. tionary ambitions to equality or liberty. mbitions self produced was his alone and no concern of society’s. uced was h self produced was his alone and no concern of society’s. In Britain an anonymous pamphlet of 1735 had claimed that liter- pamphlet of 1735 had cl ain an ano ary property was more obviously rooted in nature than any other. “A rty was m a Father cannot more justly call his Child, than an Author can his nnot mor F 16 1 6 In 1769 Justice Aston said that, “I do not know, nor I n Work, his own.” own.” W can I comprehend any property more emphatically a man’s own, mprehend c 17 nay, more incapable of being mistaken, than his literary works.” n e incapab The American states agreed. The preamble to the Massachusetts T erican stat Copyright Act of 1783, copied or paraphrased in other states, stated C t Act of 1 that the author had a right to his works since there was no property uthor had t “more peculiarly a man’s own that that which is produced by the culiarly a “ 18 From the start the personal connection be- labour of his mind.” f his mind l a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

70 60 Chapter 2 tween author and work was a leitmotif and tween author and work was a leitmotif and the foundation of the hts in intellectual works . g ri new idea of propert y new idea of property rights in intellectual works. Authors argued for property rights founded in nature since they Authors argued for property rights founded in nature sinc secured them not only against pirates but also against their own, secured them not only against pirates but also against their ow authorized publishers. The booksellers agreed for their own reasons. authorized publishers. The booksellers agreed for their own reasons The author could bindingly sell only that which he undisputedly The author could bindingly sell only that which he undisputedly owned. As Diderot put it in 1763, “The right of the owner is the true owned. As Diderot put it in 1763, “The right of the owner is the true 19 19 But publisher But publishers’ claims depended epended measure of the right of the buyer.” of the rig m buyer.” on how much authors could assign. Were all their rights transferable d assign. Were all their rig much auth on how much authors could assign. Were all their rights transferable or only some? How could publishers own this supposedly personal- ome? How or only some? How could publishers own this supposedly personal - publishers own this suppose ist property as absolutely as authors? rty as abso s authors? i Unsurprisingly, publishers argued that they assumed the entirety prisingly, ty y assumed th of the author’s stake. That is why Héricourt had called them véritab- thor’s stak o b called the - les possessions . Hence the publishers claimed to own in perpetuity sions l y own in p . He n the manuscripts they had bought, just like other forms of real or uscripts t the manuscripts they had bought, just like other forms of real or her forms moveable property. With hindsight authors’ and publishers’ insis- e propert - and publish moveable property. With hindsight authors’ and publishers’ insis tence that claims to literary works were more natural and more in- in t y more natural an at claims t - trinsic than to other forms of property seems a foreshadowing of the an to othe trinsic than to other forms of property seems a foreshadowing of the of property seems a foreshad 20 20 nineteenth- century personality- based theories of authors’ rights. entur y based theories of au alit n t n ghts. h- c - he thrust of the eightee But the opposite is true. The thrust of the eighteenth- century pub- B opposite i - ry pub lishers’ argument was that authors had the right to alienate their rgument lishers’ argument was that authors had the right to alienate their creations fully, breaking both their economic and their personal fully, br creations fully, breaking both their economic and their personal connections to their works—not as creators but as owners. c s owners. ons to the The publishers’ first rhetorical move was thus to argue that au- torical move was thus to argue that a ublishers’ thor and work were inherently connected. “If there is any property thor and work were inherently connected. “If there is any pro work we that is sacred, obvious, indisputable,” the French lawyer Cochu ar- that is sacred, obvious, indisputable,” the French lawyer acred, obv gued on behalf of the Parisian booksellers in 1778, “it is that of au- gued on behalf of the Parisian booksellers in 1778, behalf of thors in their works.” Literary productions, he continued, are the t their wo “children of their talents.” Authors therefore had greater claims to n of their “ 21 their works than did others to property acquired by normal means. t rks than d Booksellers conceded that this did not hold for every form of intel- B ers conced lectual property. Claims to inventions remained a privilege, not a l roperty. C natural right. Because inventions were assembled out of elements n right. Beca 22 But available to anyone, inventors’ claims could not be perpetual. to anyon a a as the boo authors, as the bookseller Leclerc argued in 1778, were not asking for their ide r rights to their ideas but only to their expression. Ideas were com- 23 Inventions ods, but ex m mon goods, but expression was individual and unique. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

71 Copyright in the Eighteenth Century 61 were by their nature communal. Because future were by their nature communal. Because future inventors tinkered and improved, rights for the current inventor could be o and improved, rights for the current inventor could be only tempo- rary, argued Simon Linguet, a lawyer and spokesmen for the Parisian rary, argued Simon Linguet, a lawyer and spokesmen for the Pa 4 24 2 Literary works, in contrast, sprang from the Literary works, in contrast, sprang from t booksellers, in 1777. booksellers, in 1777. author’s mind fully and perfectly formed. Possibly they could be im- author’s mind fully and perfectly formed. Possibly they could be im proved but only by their author. In his letters of 1778, the abbé Plu - proved but only by their author. In his letters of 1778, the abbé Plu- quet, a theologian and philosopher, denied categorically that two quet, a theologian and philosopher, denied categorically that two authors could ever write exactly the same book. A writing is “always actly the same book. A ould ever authors could ever write exactly the same book. A writing is “always therefore the author dese and exclusively mine,” and therefore the author deserved uncondi - usively mi and exclusively mine,” and therefore the author deserved uncondi- 25 operty righ t tional property rights. nth century’s personalist view oint of the - u The point of the eighteenth century’s personalist view of the au- rks was th thor’s works was thus to sever, and not to cement, an indissoluble thor’s works was thus to sever, and not to cement, an indissoluble ment, an ind bond of ownership between creator and creation. Yes, the work was bond of ownership between creator and creation. Yes, the work was n. Yes, the w ownership the personal creation of its author. But precisely that intimate claim nal creatio hat intim the personal creation of its author. But precisely that intimate claim to the work also allowed the author to alienate it fully. The work was rk also all fully. The w to the work also allowed the author to alienate it fully. The work was entirely his to do with as he pleased. The abbé Pluquet, who sup- bé Pluquet, entirely his to do with as he pleased. The abbé Pluquet, who sup - his to do w ported the Parisian booksellers’ hopes of winning perpetual rights llers’ hopes of winning perpe e Parisian ported the Parisian booksellers’ hopes of winning perpetual rights to works, argued that if the author could not transmit his property author could not transmit h argued th to works, argued that if the author could not transmit his property rights to others, then he did not own his work. In selling his work, others, th d not own his work. In sel rights to others, then he did not own his work. In selling his work, the author put the bookseller “in his own place” (“il le met à son or put the the author put the bookseller “in his own place” (“il le met à son ller “in his own place” 26 26 “If the author is not master of his work,” Diderot “I ” Diderot lieu et place”). ace”). li agreed, “no one in society owns his possessions. The bookseller owns no one in s agreed, “no one in society owns his possessions. The bookseller owns the work in the same way as the author did.” Diderot admonished in the sa the work in the same way as the author did.” Diderot admonished his own children not to follow the bad example of La Fontaine’s his own children not to follow the bad example of La Fontaine children n granddaughters who had reclaimed the . He, Diderot, had Fables granddaughters who had reclaimed the . He, Diderot F ables ghters wh freely parted with the rights to his works. His children retained no ted with freely parted with the rights to his works. His children re more claim to them than to a piece of land he might have sold to m to them more claim to them than to a piece of land he mig 27 pay for their educations. p heir educa Natural rights promised publishers a firmer grasp on their books l rights p than royal privilege. When they argued for a Lockean personal rela- t l privilege tionship between author and work, they hoped to assert that literary t between a property was true property and thus as alienable. But precisely this was true p p personalism of the author’s tie to his work threatened to undermine p sm of the publishers’ claims to fully possess it. Given the special nature of the s’ claims t p connection between author and work, could he assign it fully? He on betwee c was, after all, invested in his sonnet or sonata more intrinsically than all, invest w the turner in his table leg, the farmer in his turnip, the shepherd in r in his ta t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

72 62 Chapter 2 his wool. A personal aspect crept into the the his wool. A personal aspect crept into the themes of labor- based property from the start, though the booksellers still th property from the start, though the booksellers still thought they could steer this argument toward their own purposes. They had not could steer this argument toward their own purposes. They h yet grasped that, even though the author’s rights might be alienable, yet grasped that, even though the author’s rights might be alienab assignees could never pretend to the same ineffably personal con- a neffably personal con nection with the work. n A second ambiguity of nature- based property rights concerned concerned the parallels drawn between conventional and literary property. In en conventional and l lels draw the parallels drawn between conventional and literary property. In 1791 le Chapelier famously argued for an inherent bond between Chapelier y argued for an inherent 1 ween creator and creation. That was a commonplace of the era. In a less nd creatio was a commonplace of the creator and creation. That was a commonplace of the era. In a less remembered passage, where he actually shed doubt on natural remembered passage, where he actually shed doubt on natural ered pass ere he actually shed doubt rights, he went on to highlight the distinctions between literary and e went on ns between li rights, he went on to highlight the distinctions between literary and conventional property. Having agreed that plays belonged by nature onal prop conventional property. Having agreed that plays belonged by nature belonged to their writers, not theater owners, he cautioned that literary prop- - to their writers, not theater owners, he cautioned that literary prop d that liter writers, no erty was not like other forms of property. Once the work was public, erty was not like other forms of property. Once the work was public, he work w not like o the author had in effect given it away. It was only fair that authors the author had in effect given it away. It was only fair that authors or had in only fair th (and for a few years their heirs) controlled their works. Thereafter, a few yea heirs) controlled their works. er, 28 Le Le however, the works belonged to the public domain, free to all. h ged to the public domain, fre the work Chapelier noted how natural rights of authorship were inevitably r noted h ural rights of authorship w Chapelier noted how natural rights of authorship were inevitably 29 9 m Nature might intrinsically bond the author with his work. s work. rinsically bond the auth Nature limited. l his work But once his work was public, the author controlled it only through But once his work was public, the author controlled it only through positive, man- made law. man- p m a d As we have seen, natural rights were first advanced by publishers anced by publishers have seen with royal privileges, who hoped to secure perpetual monopolies of h w al privileg ed to secure perpetual monopolies op their lists, and then by authors, demanding better terms from pub- s, and the their lists, and then by authors, demanding better terms from lishers. In Britain common law served much the same purpose as lishers. In Britain common law served much the same p n Britain natural rights on the Continent. It too allowed an appeal to intuitive ights on th natural rights on the Continent. It too allowed an ap principles of justice as the basis of rights to literary property much p es of justic like those to conventional ownership. But what about publishers l e to conv who did not enjoy privileges? The editions issued by these pirate w not enjo publishers spread learning and pleasure on the cheap. The autho- p rs spread rized publishers viewed the pirates as thieves. The pirates returned blishers v r the favor, regarding them, in turn, as monopolists. As reprinting r, regardin t publishers saw it, authors’ rights derived from society, not nature. rs saw it, p Whether authors and publishers were due a monopoly was a politi- authors a W cal dispute like all others; it was not a matter of teasing out the in- te like all c scrutable intentions of the universe. In Tonson v. Collins (1762) law- intention s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

73 Copyright in the Eighteenth Century 63 yers for the defendants, who had reprinted Addison and Steele’s yers for the defendants, who had reprinted Ad ectator p S ica , argued in this vein. There was n p erio d e l , t h , argued in this vein. There was no common periodical, the Spectator law perpetual property in literary works, only what the state had law perpetual property in literary works, only what the stat granted in statute. Once published, and then in the public domain, granted in statute. Once published, and then in the public doma a work was “thrown into a state of universal communion.” The work a work was “thrown into a state of universal communion.” The work had become “like land thrown into the highway, it is become a gift had become “like land thrown into the highway, it is become a gift 30 monopo - Copyrights were like patents, temporary monopo- to the public.” t 31 31 lies granted authors and inventors to stimulate their activities. ed author lies granted authors and inventors to stimulate their activities. ventors to stimulate th The Enlightenment philosopher Condorcet took up cudgels ilosopher Condorcet too dgels nlightenm r such issues. Diderot, as w against Diderot in 1776 over such issues. Diderot, as we have seen, against Diderot in 1776 over such issues. Diderot, as we have seen, iderot in spoke for the Parisian publishers’ allegedly natural and thus perpet- t - ishers’ allegedly natural and th the Paris spoke for the Parisian publishers’ allegedly natural and thus perpet t ual rights to their books. Condorcet instead provided ammunition ual rights to their books. Condorcet instead provided ammunition provided am to their for the reforming ambitions of Turgot, the French minister of fi- fo - eforming ench minis nance, who sought to suppress guild monopolies, allowing also pro- - allowing ho sought n vincial publishers to compete on the Parisian book market. Con- ublishers - v book mark dorcet argued against the pretensions of authors and their authorized dorcet argued against the pretensions of authors and their authorized s and their a gued again publishers to own works forever. Ideas were not the product of an s to own orever. Ideas were not the pro publishers to own works forever. Ideas were not the product of an individual mind, he insisted. Their formulator could not own them. d. Their formulator could not individual mind, he insisted. Their formulator could not own them. l mind, h At most a creator could hope to own the expression of his ideas, not creator c pe to own the expression of At most a creator could hope to own the expression of his ideas, not their substance. Claims to literary works thus relied on society’s pro- their substance. Claims to literary works thus relied on society’s pro terary works thus relied tance. Cla - 32 cial book - k k The provincial book- tection; they were conventional, not natural. hey were t s çois Gaultier sellers’ case was also supported by the jurist Jean- François Gaultier se was als de Biauzat in 1776. Seeking to defeat the privileged Parisian booksell- t in 1776. S de Biauzat in 1776. Seeking to defeat the privileged Parisian booksell - ers, he argued that literary works were like inventions. Once made ers, he argued that literary works were like in gued that ventions. Once mad public, anyone could copy them. If such copying were restricted, nyone cou public, anyone could copy them. If such copying were restr however, it was only by government authority, as embodied in copy- however, it was only by government authority, as embodied it was onl 33 33 right statute, not by transcendent natural rights. right statute, not by transcendent natural rights. ute, not by view liter In this view literary property was not as firmly grounded as con- ventional property. The landowner’s wealth was recognized by all property v who passed. The inventor or poet, however, remained a pauper until, ed. The inv w paradoxically, he disseminated his patrimony. As Justice Aston put it p ally, he di Millar v. Taylor (1769), in the foundational British copyright case, undationa i n “property, without the power of use and disposal, is an empty “ y, without 34 An author wrote only in order to publish, the abbé Plu- An autho sound.” s ted in 177 quet insisted in 1777. So long as his work remained in his briefcase, it q 35 3 5 h The point of literary works was not—as it was with T use. w was of no use. onal prope conventional property—exclusive possession, but the opposite. As a c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

74 64 Chapter 2 commission set up under France s Bourbon R commission set up under France’s Bourbon Restoration in 1825 pointed out, works were “essentially destined” for an a pointed out, works were “essentially destined” for an audience. So how, then, could an author reclaim a property right in something how, then, could an author reclaim a property right in som 36 6 3 that he had published and thus effectively given to society? that he had published and thus effectively given to society ? Moreover, once a work was public, its creator lost nothing more, tor lost nothing more however widely it was now distributed. Even if he were not paid however widely it was now distributed. Even if he were not paid royalties by pirate publishers, who flogged unauthorized copies of royalties by pirate publishers, who flogged unauthorized copies of his work, the author’s renown grew. Most tangible property could his work, the author’s renown grew. Most tangible property could , the auth own grew. Most tangi be used by only one person at a time. Ignoring inherently singular by only o n at a time. Ignoring inhe be used by only one person at a time. Ignoring inherently singular ike painti objects, like paintings, literary property could be enjoyed by many rary property could be enjoy objects, like paintings, literary property could be enjoyed by many simultaneously. It was, as economists say, nonrivalrous. So why re- economists say, nonrivalrous. - simultaneously. It was, as economists say, nonrivalrous. So why re eously. It strict the audience at all? As Thomas Jefferson put it, an idea has the audience strict the audience at all? As Thomas Jefferson put it, an idea has the n put it, an id quality that “no one possess the less, because every other possess the hat “no on quality that “no one possess the less, because every other possess the ery other p 37 37 whole of it.” f it.” w tely sociall claims to t Even claims to tangible property were ultimately socially created, d, not the outcome of transcendent natural rights. Without the law, outcome hts. Withou not the outcome of transcendent natural rights. Without the law, walled estate belonged to the courts, and police, even the highest- nd police walled estate belon g c he wielder of the biggest club. The dependence of literary property on of the bigg . The dependence of literary wielder of the biggest club. The dependence of literary property on statute’s man- made protection was, of course, even more obvious. man - vious. d s tion was, of course, even ma Once disseminated, literary works belonged to all, able to be copied Once disseminated, literary works belonged to all, able to be copied y works belonged to all seminated except as the law gave the author control over them. Spiri- ad libitum m except a a hem. Spiri - tual creations were not, in that sense, property except—obviously tual creations were not, in that sense, property except—obviously tions wer François and trivially—when the author kept them to himself. Abel- ally—whe François and trivially—when the author kept them to himself. Abel- Villemain, minister of education during France’s July Monarchy, n, ministe Villemain, minister of education during France’s July Monarc later put his finger on the issue. Works of the spirit, he pointed out later put his finger on the issue. Works of the spirit, he pointe his finger in 1841, might at first glance seem to be the most personal sort of might at fi e the most person in 1841, might at first glance seem to b property. But actually they required special protection because they property. But actually they required special protect But actu existed only in the act of being communicated—which also partly e nly in the 38 38 alienated them. a d them. nature m While nature might believe in individual property rights for tan- gible objects, she seemed a socialist when it came to fruits of the ects, she g mind. Was the very idea of literary property therefore a contradic- Was the ver m tion in terms? The fundamental dispute that was to run throughout erms? The t the copyright wars for the following three centuries emerged early. right wars t Was there something natural and inherent in authors’ claims to their e somethi W works? Could authors, and by assignment their publishers, therefore w ould auth demand perpetual rights or extensive protection, much as home- perpetua d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

75 Copyright in the Eighteenth Century 65 owners could over their houses? Or were literary property rights a owners could over their houses? Or were literary mere grant of a temporary monopoly, resting on society’s mere grant of a temporary monopoly, resting on society’s judgment of what authors deserved? ed? hat authors deser w of v THE UTILITARIAN ORIGINS OF ANGLO- AMERICAN COPYRIGHT T COPYRIGHT Starting in the eighteenth century, the Anglophone nations pro- Starting in the eighteenth century, the Anglophone nations pro in the eig - century, the Angloph vided one possible approach to literary property. Britain was the first e possible h to literary property. Brita vided one possible approach to literary property. Britain was the first country to shift publishing from privileges and royal favor to owner- from privileges and royal fa o shift pub r a - v c ner r ship rights traded in the market and regulated by law. Its example ship rights traded in the market and regulated by law. Its example ts traded market and regulated by law. I was followed closely in the North American colonies during their colonies du was followed closely in the North American colonies during their wed close unification. To understand the disputes in both the UK and the US, n. To und the UK and unification. To understand the disputes in both the UK and the US, a basic distinction is required. Common law copyright, or the right yright, or a t stinction an author retained in an unpublished manuscript, was based on an author retained in an unpublished manuscript, was based on ript, was r retained ideas of property founded on natural rights. Until he had made it ideas of property founded on natural rights. Until he had made it Until he had property f public, the creator retained a natural and perpetual right to his d a natural and perpetual ri public, the creator retained a natural and perpetual right to his he creator , in contrast, was the legal monopoly that Statutory copyright work. tutory cop n contrast, was the legal mo w hat gave the author a limited control of his work after it had been pub- - gave the author a limited control of his work after it had been pub author a li ontrol of his work after it h lished. But did common law copyright persist also after publication? w copyright persist also ut did com lished. But did common law copyright persist also after publication? Natural rights advocates claimed for the author a perpetual post- t t ights adv Natural rights advocates claimed for the author a perpetual post - publication right to works based on common law and merely recog- - on right to publication right to works based on common law and merely recog nized—but not created—by copyright statute. Their opponents re- - nized—but not created—by copyright statute. Their opponents re ut not cre garded publication as a voluntary gift of the work to the audience garded publication as a voluntary gift of the work to the audien ublication that ended its common law protection and initiated the limited cov- d its comm that ended its common law protection and initiated the limited erage and duration of copyright statute. How this conflict was re- d duration erage and duration of copyright statute. How this conflic solved would be crucial for the Anglophone copyright tradition. ould be cr solved would be crucial for the Anglophone copyrig Copyright law was formulated first in Britain in 1710 in the Stat- ght law w ute of Anne, named for the reigning monarch. Some eighty years u nne, name later came the first state laws in the United States and then the fed- fi the e t rs a l eral Copyright Act of 1790. The first British and American statutes yright Act e gave authors a temporary monopoly, but they also transferred rights ors a tem g promptly to the public domain, fourteen (renewable to twenty- p to the p eight) years after publication. Indeed, by limiting the duration of ars after p e exploitation rights, the Statute of Anne in effect first created the on rights e 39 39 I In both nations copyright granted the creator public domain. omain. p ut ultimat rights. But ultimately its purpose was to further the public good. r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

76 66 Chapter 2 The Statute of Anne was to encourage learned m The Statute of Anne was to encourage “learned men to compose and write useful books,” just as the Constitution sought to pr write useful books,” just as the Constitution sought to promote “the progress of science and useful arts.” progress of science and useful arts. ” In London the Stationers’ Company, incorporated in 1557, rep In London the Stationers’ Company, incorporated in 1557, repre- sented the book trade—binders, printers, sellers—but not authors sented the book trade—binders, printers, sellers—but not authors. It issued stationers’ copyrights to its members and imposed the gov- It issued stationers’ copyrights to its members and imposed the gov - ernment’s religious censorship. The 1662 Licensing Act lapsed in ernment’s religious censorship. The 1662 Licensing Act lapsed in 1695, and the Stationers lost both their censorship function and d the Stat 1695, and the Stationers lost both their censorship function and ost both their censor nopoly o their monopoly on publishing. When the Statute of Anne took ef hing. When the Statute of their monopoly on publishing. When the Statute of Anne took ef- - f f hoped to regain their pow fect in 1710, the Stationers hoped to regain their powers. But the 710, the S fect in 1710, the Stationers hoped to regain their powers. But the p the market open to publish ent sough government sought to keep the market open to publishers outside government sought to keep the market open to publishers outside 4 0 40 d. the guild. t te of Anne main differ Two main differences distinguished the Statute of Anne from the e old system of royal privileges. First, protection had a clearly defined old system of royal privileges. First, protection had a clearly defined ad a clearl m of roya duration. Locke had suggested fifty or perhaps seventy years after duration. Locke had suggested fifty or perhaps seventy years after s seventy y . Locke h 41 ut But either publication or death as the proper length of copyright. gth of copyr e ublication nd their assignees (generally Parliament gave authors and their assignees (generally publishers) Parliament gave authors and their assignees (generally publishers) nt gave a the right to print and reprint works for one term of fourteen years to print the right to print and reprint works for one term of fourteen years int works for one term of fo only. The author—if alive—could renew this term once. The Statute —could renew this term on e author— only. The author—if alive—could renew this term once. The Statute of Anne thus abandoned the common law fiction of copyright as per- thus aban of Anne thus abandoned the common law fiction of copyright as per - e common law fiction o r r petual property right. Second, anyone could register a copyright, petual property right. Second, anyone could register a copyright, roperty ri thus breaking the Stationers’ monopoly. aking the t The Statute of Anne was not primarily about authors’ rights. But authors’ rights. But tatute of A compared to what had gone before and what held true elsewhere, d to what compared to what had gone before and what held true elsewhe it did safeguard some of their interests. They could own copyright feguard so it did safeguard some of their interests. They could own cop in their works, and they alone could renew that right. Otherwise, in their works, and they alone could renew that right. O works, an the statute conferred no exclusive advantages on authors. It merely the statute conferred no exclusive advantages on a te conferr granted limited property rights in literary works that could be g limited p owned by authors—but equally (except for renewal) by anyone they o y authors— sold their claims to. The statute was based on a Lockean concept r claims s that authors derived their rights from having created the work. But t hors derive they did not own it like conventional property and certainly not not own t forever. f tationers handed from the Stat- The Stationers did not come away empty- u ute of Anne. Existing rights continued for a transitional twenty- one nne. Existi y years. During that time publishers hoped to persuade Parliament or uring that - ts that com t the courts that common law copyright, the British version of an ar THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

77 Copyright in the Eighteenth Century 67 gument from natural rights with its presumpt gument from natural rights with its presumption of perpetuity, had not been supplanted by the new statutory right in the Statute had not been supplanted by the new statutory right in of Anne. Their arguments presented publishers as harmon of Anne. Their arguments presented publishers as harmoniously aligned with authors. Authors had a perpetual copyright deriving aligned with authors. Authors had a perpetual copyright derivi from common law. This claim was theirs to assign, independent of from common law. This claim was theirs to assign, independent of copyright as formulated in mere statute. When publishers acquired copyright as formulated in mere statute. When publishers acquired 4 2 42 copyright in a work from an author, it therefore was also forever. copyright in a work from an author, it therefore was also forever. urts acce If the courts accepted the continued existence of common law continued existence If the courts accepted the continued existence of common law copyright even after publication, the booksellers would thus have copyright even after publication, the booksellers would thus have cation, the booksellers wo t even afte rough legal legerdemain. r heir mon restored their monopoly through legal legerdemain. the book ey Millar v. on a brief victory. In In 1769 the booksellers won a brief victory. In Millar v. Taylor they persuaded the Court of King’s Bench to recognize the author’s per- gnize the aut d the Cou persuaded the Court of King’s Bench to recognize the author’s per - r r petual common law copyright as continuing despite the Statute of mmon law spite the S petual common law copyright as continuing despite the Statute of 43 - Notably, even though the au- ven thoug Anne and its short copyright terms. A d its short thor’s common law copyright was the issue, no author was involved. uthor was thor’s common law copyright was the issue, no author was involved. mmon law The plaintiff bookseller owned the copyright to a work that had t to a work The plaintiff bookseller owned the copyright to a work that had ntiff book been reprinted by another publisher after the Statute of Anne’s been reprinted by another publisher after the Statute of Anne’s rinted by r publisher after the Statute fourteen- year term had expired. The plaintiff argued that the au- - pired. The plaintiff argued t fo year term au thor’s perpetual common law right continued nonetheless and, with petual co thor’s perpetual common law right continued nonetheless and, with aw right continued nonethe was soon overturned, it nailed fast the Millar it, his own. Though n. Thoug w o ast the t i n as soo verturned, 44 ted as an But what started as an idea that copyright was an author’s right. copyright i d ight quick author’s right quickly passed, by assignment, to other rights holders, author’s right quickly passed, by assignment, to other rights holders, usually publishers, once the creator sold his copyright. The Statute ublishers, usually publishers, once the creator sold his copyright. The Statute of Anne vested rights “in the authors or purchasers of such copies,” of Anne vested rights “in the authors or purchasers of such copie vested righ that is, in the publishers as rights holders. At stake here, then, was the publ that is, in the publishers as rights holders. At stake here, then whether the author’s perpetual common law copyright continued the autho whether the author’s perpetual common law copyright c after publication, and if so, whether the publisher received it by as- after publication, and if so, whether the publisher r lication, a signment along with the limited statutory copyright. s along wit Five years later, the House of Lords ended the publishers’ claims ars later, t Donaldson to the author’s perpetual common law copyright. In 1774 thor’s perp t v. Beckett imposed a Solomonic partitioning. Common law copy- v imposed right was acknowledged as the author’s natural right—but only acknowl r until that moment when, by publication, he released his work into u moment the world. After that, it was protected by statutory copyright alone. t d. After th An Edenic paradise of everlasting natural rights was truncated by an A c paradise abrupt expulsion into a postlapsarian world of printers, publishers, pulsion in a sellers, and the public. And the delights taken from authors were nd the pu s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

78 68 Chapter 2 equally snatched from publishers. The Lords no equally snatched from publishers. The Lords now ended the book- sellers’ pretensions to have acquired perpetual propert sellers’ pretensions to have acquired perpetual property rights to their works. They were left with the Statute of Anne’s fourteen- year their works. They were left with the Statute of Anne’s fourtee terms. terms . At stake for the Lords was the social benefit of diffusing knowl- fit of diffusing knowl edge. Although the judges who advised the House appear to have edge. Although the judges who advised the House appear to have backed perpetual common law copyright, the Lords voted other- - r b oted other r wise, demonstrating their concern to allow the public easy access to concern to allow the p wise, demonstrating their concern to allow the public easy access to monstratin works whose statutory protection had lapsed. Few have so heartily works whose statutory protection had lapsed. Few have so heartily hose statu tection had lapsed. Few h praised the public domain as Charles Pratt, first Earl Camden, a fer- praised the public domain as Charles Pratt, first Earl Camden, a fer r r - he public as Charles Pratt, first Earl C vent advocate of other civil rights too and one of the most robust vent advocate of other civil rights too and one of the most robust ocate of o il rights too and one of the m denouncers of a common law right to literary property. Science and denouncers of a common law right to literary property. Science and y property. Sc ers of a co learning were by their nature public, he insisted, and they ought to learning were by their nature public, he insisted, and they ought to d, and they were by t be as free and general as air or water. Society’s goal was to enlighten be as free and general as air or water. Society’s goal was to enlighten e and gene oal was to minds and improve the common welfare. Providence intended ge- - nd improv minds and improve the common welfare. Providence intended ge idence int niuses to share their learning with all. Knowledge—of no value to ledge—of n share the niuses to share their learning with all. Knowledge—of no value to the solitary owner—had to be communicated to be enjoyed. Great ary owner o be communicated to be enjo the solitary owner—had to be communicated to be enjoyed. Great minds worked for glory, not the bookseller’s pittance. Knowledge ot the bookseller’s pittance orked for minds worked for glory, not the bookseller’s pittance. Knowledge should not remain locked up in the hands of the publishers, two of ot remain should not remain locked up in the hands of the publishers, two of up in the hands of the pub whom he contemptuously immortalized as “the Tonsons and the e contem whom he contemptuously immortalized as “the Tonsons and the y immortalized as “the 45 Lintons of the age.” L of the age After some wobbles, copyright in Britain was thus nailed down nailed down some wob s a creatio by 1774 as a creation of statute. Once works were published, the au- by 1774 as a creation of statute. Once works were published, the au thor was protected only by man- made law. Authors had certain nat- thor was protected only by man- made law. Authors had certain n protected ural rights in their work by virtue of having created it, but not claims ural rights in their work by virtue of having created it, but not c ts in their like those to conventional property, least of all perpetual owner- e to conv like those to conventional property, least of all perpetu 46 opyright m Copyright merely protected them and their assignees for lim- rotected them and their a ship. s ited times against verbatim copies, giving them exclusive right to i es against publish and sell. The authorities’ power to define copyright inde- p and sell. T pendently of nature was demonstrated with aplomb the year after p y of natu . Passed in record time, the Universities Act of 1775 granted Donaldson . Passed n D Oxford and Cambridge perpetual copyright in all works that au- O and Camb 47 4 7 7 What had been denied the booksellers was given thors gave them. ve them. t to the universities. But the universities’ perpetual ownership—the niversities t holy grail of the booksellers’ arguments from natural rights—was il of the b h founded on parliamentary power, as was the limited copyright in on parlia f 48 the Statute of Anne. What Parliament could take, it could also give. te of Ann t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

79 Copyright in the Eighteenth Century 69 both and the Universities Act, Parliament aimed With Donaldson and the Universities Ac With both Donaldson neither to help booksellers nor authors. It strove for neither to help booksellers nor authors. It strove for the public 49 49 Copyright in Britain, and later in America, stemmed from a Copyright in Britain, and later in America, stemmed f good. good . utilitarian vision of promoting the common good of learning a utilitarian vision of promoting the common good of learning and 50 5 0 enlightenment by rewarding the creator justly, but temporarily. enlightenment by rewarding the creator justly, but temporarily. T UTE OF T THE STATUTE OF ANNE IN AMERICA N AMERICA when pri At a time when privileges and monopolies for well- connected book- A ook - nd monopolies for well- conn k k sellers remained common on the Continent, British law granted au- sellers remained common on the Continent, British law granted au mained co - on the Continent, British law g thors substantial property rights in their works. After the 1776 revolu- . After the 17 stantial pr thors substantial property rights in their works. After the 1776 revolu - tion this novelty was avidly emulated in the fledgling United States. novelty w gling Unit tion this novelty was avidly emulated in the fledgling United States. Except Delaware, all the original states passed copyright statutes Except Delaware, all the original states passed copyright statutes copyright elaware, modeled broadly on the Statute of Anne, with short terms. As in short term broadly o modeled broadly on the Statute of Anne, with short terms. As in Britain, this was thought to promote knowledge and the public Britain, this was thought to promote knowledge and the public edge and th his was t good. In 1787 the Constitution empowered the federal government good. In 1787 the Constitution empowered the federal government ion empowered the federal go 1787 the C to legislate on patents and copyright. Thomas Jefferson thought that e on pate copyright. Thomas Jefferson t to legislate on patents and copyright. Thomas Jefferson thought that justice between generations prevented one from incurring debts to tween gen s prevented one from incu justice between generations prevented one from incurring debts to be met by the next. Based on the “law of nature” and Buffon’s mortal- be met by the next. Based on the “law of nature” and Buffon’s mortal y the next. n the “law of nature” and - ity statistics, he concluded that generations stood in the same rela- ics, he con - ity statistics, he concluded that generations stood in the same rela tion to each other as independent nations do and that no debt should tion to each other as independent nations do and that no debt should ch other a extend beyond nineteen years. That, therefore, was to be the duration extend beyond nineteen years. That, therefore, was to be the duration yond nine 51 The same sort of reasoning from nature’s The same sort of reasoning from nature of copyrights and patents. ghts and p o alleged first principles that in Europe had been advanced for perpet- alleged first principles that in Europe had been advanced for pe rst princip ual rights to works served the opposite conclusion in the New World. to works ual rights to works served the opposite conclusion in the Ne The Constitution followed Jefferson and rejected unlimited owner- stitution f The Constitution followed Jefferson and rejected u ship rights. It gave Congress power to promote the progress of sci- s ts. It gave ence and useful arts by securing authors and inventors the exclusive e useful art 52 right to their writings and inventions “for limited times.” r heir writin The federal Copyright Act was passed three years later in 1790 and deral Copy drew the consequences of such reasoning. The various state copy- d conseque right laws had been based on a natural rights belief that authors r s had bee possessed certain innate claims to their works. Their underlying certain i p premise was that individual and public interests neatly coincided. was that i p The more rights authors received, the more the public benefited. e rights a T The New Jersey statute of 1783 justified the rights it granted authors Jersey sta T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

80 70 Chapter 2 with the self- evident public advantages that would flow to learning, with the evident public advantages that wou self 53 3 5 But in 1790 the But h onor, an d man k in d ’s g reater g oo d t h e nation’s . the nation’s honor, and mankind’s greater good. federal act elevated the progress of science and useful arts to first federal act elevated the progress of science and useful arts 54 As place and turned authors’ rights into a means of achieving that. place and turned authors’ rights into a means of achieving that. century America we will see in the following chapter, in nineteenth- we will see in the following chapter, in nineteenth- century America authors and their rights took a backseat to the goal of broad, acces - authors and their rights took a backseat to the goal of broad, acces- s sible, and cheap public enlightenment. Statute of Anne, the led closely spensed Modeled closely on the Statute of Anne, the 1790 act dispensed - appeal to rights. It presented copyr with any appeal to natural rights. It presented copyright as the cr e with any appeal to natural rights. It presented copyright as the cre- ation of statute and as a grant made by government, not an inherent ant made by government, no statute an ation of statute and as a grant made by government, not an inherent 55 in The consti The constitutional copyright clause united authors and in- - copyright clause united auth right. r promising ventors, promising them both exclusive rights to their writings and s to their wr ventors, promising them both exclusive rights to their writings and discoveries. The first draft bills of the Copyright Act also treated pat- t Act also tr t es. The fir discoveries. The first draft bills of the Copyright Act also treated pat - ents and copyrights together, though the two were separated in the ere separa copyrigh ents and copyrights together, though the two were separated in the 56 56 h Both t for grante - n Both the British and Americans took for granted that in- final law. fi patent rig oly granted b ventors’ patent rights were a limited monopoly granted by statute, ventors’ patent rights were a limited monopoly granted by statute, not something that existed in common law or as a natural right. d in common law or as a na not something that existed in common law or as a natural right. ething th Even those who argued fervently for a natural rights basis of copy- ose who ar rvently for a natural rights b Even those who argued fervently for a natural rights basis of copy - right agreed that patents were different. That the Americans lumped eed that p ere different. That the Ame right agreed that patents were different. That the Americans lumped them together suggests they saw both patents and copyrights as the them together suggests they saw both patents and copyrights as the gether sug y saw both patents and creation of statute. c of statute The Constitution gave Congress power to promote science and e science and onstitutio art by “securing” the exclusive right of authors and inventors to their curing” th art by “securing” the exclusive right of authors and inventors to their writings and discoveries. Did that mean that these rights were preex- and disco writings and discoveries. Did that mean that these rights were pre isting natural ones, merely recognized by statute? Or that they were tural ones isting natural ones, merely recognized by statute? Or that they now created by positive law? The word “securing” is inherently am- now created by positive law? The word “securing” is inhe ated by po 57 7 57 Some have argued that the founding fathers sought to Some h ued that the founding f biguous. b enforce with statute what already existed by nature. But most histo- with statu e 58 If rians agree that they intended to create a new statutory right. ee that th r perpetual rights already existed in common law and the federal act l rights al p now limited their duration, then clearly statute and natural rights ited their n 59 59 A And if rights came from the natural link between were diverging. w erging. author and work, why was the federal act limited to US citizens and nd work, w a 60 60 Indeed, the battle fought throughout the nineteenth d Indee residents? ? r over whe century over whether to extend copyright to foreign authors—to c e will com w which we will come—demonstrated how little credence the suppos- ural basis o e edly natural basis of these rights enjoyed in the United States. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

81 Copyright in the Eighteenth Century 71 All forms of property, especially literary, were a All forms of property, especially literary, were artificial social cre- ations, not absolute natural claims: that was the America ations, not absolute natural claims: that was the American position. ator James Beck argued later in the The founding fathers, Sen ator James Beck argued later in the nine- The founding fathers, Se n teenth century, assumed that neither the author nor the inventor teenth century, assumed that neither the author nor the inven was the “absolute owner” of his works “for all time.” Once he had was the “absolute owner” of his works “for all time.” Once he had sold them, the new owners could do what they wanted, “and but for sold them, the new owners could do what they wanted, “and but for the protection the Constitution authorized Congress to throw the protection the Constitution authorized Congress to throw 61 6 1 around him, his title was gone the moment he made his sale.” him, his t around him, his title was gone the moment he made his sale.” gone the moment he blisher and historian, put Henry Charles Lea, the publisher and historian, put it even more harles Lea Henry Charles Lea, the publisher and historian, put it even more - - strongly in 1888 to the Senate Committee on Patents: “Society rec strongly in 1888 to the Senate Committee on Patents: “Society rec n 1888 to ate Committee on Patents: “ ognizes no absolute and unlimited ownership in any species of no absolu ognizes no absolute and unlimited ownership in any species of unlimited ownership in any property. All that the individual makes, earns, or inherits is held ns, or inheri All that property. All that the individual makes, earns, or inherits is held ose in retur ch limitati under such limitations as society sees fit to impose in return for the under such limitations as society sees fit to impose in return for the n which i protection which is afforded by the social compact and the value pact and t protection which is afforded by the social compact and the value imparted which is imparted to ownership by the aggregation of individuals ation of in which is imparted to ownership by the aggregation of individuals - - in communities.” That held doubly for “so purely an artificial cre unities.” T in communities.” That held doubly for “so purely an artificial cre urely an arti 62 a opyright.” ation as copyright.” ate Noah Web When Noah Webster, the dictionary author and a tireless advocate dictionary author and a tirel of perpetual copyright, argued that the author’s claims to his work ued that the author’s claim ual copyr of perpetual copyright, argued that the author’s claims to his work were as natural as those of the farmer to his produce, Daniel Web- the farmer to his prod were as natural as those of the farmer to his produce, Daniel Web - atural as ster, the politician and his cousin, replied: “But, after all, property, in olitician a ster, the politician and his cousin, replied: “But, after all, property, in the social state, must be the creature of law; and it is a question of state, mu the social state, must be the creature of law; and it is a question of expediency . . . how and how far the rights of authorship should be . e cy thorship should be . ho . w 63 63 ah, formulated the essence of the Ame l Danie Daniel, not Noah, formulated the essence of the Ameri- protected.” p .” can approach to copyright. “Stable ownership,” as Jefferson put it in can approach to copyright. “Stable ownership,” as Jefferson put oach to co 1813, “is the gift of social law, and is given late in the progress of soci- he gift of s 1813, “is the gift of social law, and is given late in the progre 64 ulture is often thought to American political culture is often thought to embrace prop- erican po ety.” e erty as a foundational and absolute right. But it was a commonplace oundation e in the nineteenth century that property ultimately rests on what so- neteenth c i n 65 ciety agrees, not on what nature decrees. c es, not on The implications of this approach were spelled out in mplication Wheaton v. P Donald- (1834)—the American equivalent to the British case of Peters 4)—the A son sixty years earlier, which had ended common law perpetual so years ear copyright for published works. Could a Supreme Court reporter, t for publ c Peters, pu Richard Peters, publish cases condensed from the accounts by an R earlier reporter, Henry Wheaton? What should prevail, the author’s porter, He e ontrol his right to control his work or the public’s interest in a wide and effi- r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

82 72 Chapter 2 cient spread of information? In a sense, the ou cient spread of information? In a sense, the outcome of Wheaton onaldson . D on D foreordained than y was more heavil was more heavily foreordained than . Donaldson had Donaldson claimed perpetual property in a work of literature; no pressing issue claimed perpetual property in a work of literature; no pressin of public interest was in play. The court reporter Wheaton, in con- of public interest was in play. The court reporter Wheaton, in c trast, arguably claimed a private stake in public documents, right trast, arguably claimed a private stake in public documents, rights 66 Neither Britain Neither Britain t to the decisions of the Supreme Court justices. nor America had yet fully developed the modern distinction be - nor America had yet fully developed the modern distinction be- tween public and private records. Courts still relied heavily on oral ublic and ecords. Courts still rel tween public and private records. Courts still relied heavily on oral 67 - Whea- Whea ces and transcribed by atte opinions delivered by justices and transcribed by attendees. delivered o med that ton claimed that no public documents issued from the Supreme ton claimed that no public documents issued from the Supreme ic documents issued from t Court and its hearings. Peters insisted that the reports of the court’s Court and its hearings. Peters insisted that the reports of the court’s ers insisted that the reports of nd its hear sessions were the dissemination of the judicial determinations sessions were the dissemination of the judicial determinations dicial deter were the 68 t themselves, thus the very law of the land. r As such, they were inher- r r uch, they w - es, thus th ently public. Two separate issues were intertwined in e : the e Wh ed in Wheaton blic. Two ature of go public nature of government documents in which private copyright public nature of government documents in which private copyright ch private was claimed and the persistence of perpetual common law copy was claimed and the persistence of perpetual common law copy- al common med and - n after pu right even after publication. r other in the court’s decision ssue infor One issue informed the other in the court’s decision. The major- ajor - r r e justices e - ity of the justices easily decided that Wheaton did not have perpet cided that Wheaton did no t ity of the justices easily decided that Wheaton did not have perpet- t ual rights to his volumes since the property he claimed was so ob- s to his vo ince the property he c - ual rights to his volumes since the property he claimed was so ob 6 9 69 ter’s own But was copyright in the court reporter’s own B viously public. public. v ons and o annotations and other apparatus secured by common law or statute? annotations and other apparatus secured by common law or statute? The court’s conclusion echoed Daniel Webster’s formulation to rt’s concl The court’s conclusion echoed Daniel Webster’s formulation to Noah. A man is entitled to the fruits of his labors, the court admit- Noah. A man is entitled to the fruits of his labors, the court adm man is en ted. But he could “enjoy them only, except by statutory provision, he could ted. But he could “enjoy them only, except by statutory prov under the rules of property which regulate society, and which define under the rules of property which regulate society, and wh e rules of 70 70 The philosophica The philosophical justification for the rights of things in general.” s of thing the rights of things in general.” an author’s rights to his work might be nature or the common law. a r’s rights 71 copyright was judged to be a creature of statute. Wheaton But after heaton B W Anglo- American copyright was founded in an abstract sense on - - American natural rights ideas of an inherent relationship between the creator n ights idea and his work. But it restricted these rights to what was determined a work. But by statute. Literary property’s duration was circumscribed by the b te. Literar general social interest of enlarging the public domain. Yet literary ocial inte g property was like other forms of property in being fully alienable. p was like Authors’ economic rights of selling and publishing works could be economi A wholly assigned. Except for the personal right of extending renewal ssigned. E w THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

83 Copyright in the Eighteenth Century 73 terms—given by the Statute of Anne to authors alone, not to their terms given by the Statute of Anne to authors assignees—all copyright holders, authors or not, enjoye assignees—all copyright holders, authors or not, enjoyed identical legal positions. . legal positions Copyright thus started by accepting the intuitive plausibility of Copyright thus started by accepting the intuitive plausibility the natural rights argument that author and work were united. But the natural rights argument that author and work were united. But it then immediately violated that premise by making the author’s it then immediately violated that premise by making the author’s rights fully assignable. This was possible because the only rights in rights fully assignable. This was possible because the only rights in question were narrowly economic: printing, reprinting, and selling. onomic: printing, repri were narr question were narrowly economic: printing, reprinting, and selling. Any creative interests the author might have—in maintaining the tive intere author might have—in m Any creative interests the author might have—in maintaining the work’s integrity, say, or protecting his reputation—were not integral ecting his reputation—were work’s integrity, say, or protecting his reputation—were not integral tegrity, say parts of copyright. They did not remain wholly ignored in the com- opyright. parts of copyright. They did not remain wholly ignored in the com - d not remain wholly ignored i mon law nations. But to the extent they were protected it was in case nations. B protected it w mon law nations. But to the extent they were protected it was in case law and other statute. other statu la The main concern of Anglo- American copyright was to promote ain conce ht was to e the public good by stimulating the production of works and mov- - t of works a c good by ing them efficiently into the public domain. Samuel Johnson put ing them efficiently into the public domain. Samuel Johnson put Samuel Joh efficientl the argument thus in 1773: authors might have a perpetual claim to the argument thus in 1773: authors might have a perpetual claim to authors might have a perpetua ment thus their works, a “metaphysical right.” But reason and learning spoke ks, al right.” But reason and lear oke , t a “me against it. Were rights forever, no book could be disseminated t. Were r rever, no book could be against it. Were rights forever, no book could be disseminated broadly if the author gainsaid it. No book could be improved by said it. No book could f the auth broadly if the author gainsaid it. No book could be improved by others’ annotation and editing. Though the author deserved reward, others’ annotation and editing. Though the author deserved reward, notation once his work was published “it should be understood as no longer once his work was published “it should be understood as no longer work was 72 in his power, but as belonging to the publick.” wer, but as n i NCH REV BRING UP THE REAR THE FRENCH REVOLUTIONARIES BRING UP THE REAR THE FRENCH REVOLUTIONARIES The Continent and the Anglo- American world would later di- tinent an T v t in the e verge. But in the eighteenth century the French and Germans also dealt with the author’s natural rights to his literary property. Con- d h the auth tinent and Anglosphere both appealed to natural rights, but—de- t d Anglos s spite the fulminations of booksellers and authors—neither thought fulminatio ary prope that literary property was cut from the same cloth as conventional t 73 Both tra p property. Both traditions started out more alike than different. Self- consciously r ciously re S emaking the world, the French revolutionaries ess also wo n nonetheless also worried about publishers, as had the Old Regime’s ed reform enlightened reformers. Were monopoly rights to be taken from e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

84 74 Chapter 2 publishers? If so, should they be transferred to au publishers? If so, should they be transferred to authors? Or was that simply shifting the evil of monopoly from one set of profiteers to simply shifting the evil of monopoly from one set of p another? ? another On 30 August 1777 several decrees belatedly reformed the Old Re- On 30 August 1777 several decrees belatedly reformed the Old 74 Bowing to natural rights of g to natural rights o g gime’s royal publishing privileges. property, authors were given perpetual and inheritable ownership of property, authors were given perpetual and inheritable ownership of their writings—but only if they themselves published their works. their writings—but only if they themselves published their works. as commo If—as was common—authors sold them to publishers, then they re- If—as was common—authors sold them to publishers, then they re ors sold them to publi - ceived only limited rights. The author’s rights were thus either per- ceived only limited rights. The author’s rights were thus either per The author’s rights were t - r r nly limite petual or assignable but not both. Despite howls of protest from the t both. Despite howls of pro petual or assignable but not both. Despite howls of protest from the r assignab publishers that what belonged to the author and his heirs perpetu- publishers that what belonged to the author and his heirs perpetu - rs that wh nged to the author and his hei ally could not, when assigned to them, be shorter, nonetheless their ally could not, when assigned to them, be shorter, nonetheless their orter, noneth d not, wh claims lasted only as long as the author lived, or ten years, whichever sted only ten years, w claims lasted only as long as the author lived, or ten years, whichever 75 75 was longer. er. w dly natural us distingu y By thus distinguishing among various allegedly natural property rights, the authorities strongly implied that statute, not nature, t statute, no rights, the authorities strongly implied that statute, not nature, he author ruled. Their aims were to help provincial publishers and break the heir aims help provincial publishers and ruled. Their aims were to help provincial publishers and break the Parisian booksellers’ monopoly. Once a privilege had expired, any opoly. Once a privilege had Parisian booksellers’ monopoly. Once a privilege had expired, any bookselle and all booksellers could publish the work. Rights to a work could ookseller publish the work. Rights to and all booksellers could publish the work. Rights to a work could be renewed only if a significantly expanded edition was forthcom- ficantly expanded editi wed only i be renewed only if a significantly expanded edition was forthcom - ing and then only to that new edition. The old one entered the pub- ing and then only to that new edition. The old one entered the pub - hen only lic domain. The author’s rights were thus enshrined in law. But his in. The au lic domain. The author’s rights were thus enshrined in law. But his claims in practice were strictly limited—as were those of the pub- claims in practice were strictly limited—as were those of the pub n practice lishers—by the reforming administration’s hopes to encourage mul- lishers—by the reforming administration’s hopes to encourage m by the ref tiple editions and lower prices. tions and tiple editions and lower prices. The revolutionaries followed in the same spirit. After abortive at- owed in the same spirit. After a evolutiona tempts to legislate on the issue, two laws of 1791 and 1793 came to tempts to legislate on the issue, two laws of 1791 a o legislate govern authors’ rights in France down to the twentieth century. authors’ ri g Once the publishers’ guilds had been abolished in 1791, privileges O e publishe had few defenders, and the strongest spokesmen for natural rights in defenders h works had been weakened. The outcome resembled the solution w ad been w and followed the exam- Donaldson achieved in Britain in 1774 with in Britain a ple of the 1777 decrees. Authors received rights, but compared to p he 1777 de other forms of property, these were strictly limited. During their life- ms of pro o times writers (at first only playwrights) were given powers to deter- t iters (at fi mine how and when their works were staged. After death this passed w and wh m to their heirs for five years. heirs for fi t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

85 Copyright in the Eighteenth Century 75 The bill was presented by le Chapelier, the revo The bill was presented by le Chapelier, the revolutionary who pre- sided over the Constituent Assembly on the night of 4 A sided over the Constituent Assembly on the night of 4 August 1789, when the Old Regime had been largely dismantled in one session. when the Old Regime had been largely dismantled in one se He placed the issues firmly within the revolution’s ambition—in- He placed the issues firmly within the revolution’s ambition— herited from the Old Regime’s reformers—of breaking monopolies herited from the Old Regime’s reformers—of breaking monopolies and freeing talent. Playwrights were public spirited, he was con- and freeing talent. Playwrights were public spirited, he was con - vinced, and they did not seek to control their works long after death. vinced, and they did not seek to control their works long after death. Allowed to sell their works during their lifetimes, they were happy during their lifetimes to sell the Allowed to sell their works during their lifetimes, they were happy to see them fall quickly into the public domain thereafter. The au- to the public domain ther - to see them fall quickly into the public domain thereafter. The au em fall qu thorities aimed to break the monopoly granted the Comédie Fran- thorities aimed to break the monopoly granted the Comédie Fran e monopoly granted the Co aimed to - çaise and two other official Parisian theaters in staging the classics— two other Parisian theaters in staging the çaise and two other official Parisian theaters in staging the classics— Racine, Molière, Beaumarchais, Legrand, and the like. Why should Molière, Be Racine, Molière, Beaumarchais, Legrand, and the like. Why should the like. Wh the theater not be as open to talent and ambition as any other pro- - t er not be on as any o fession? England was held up as the model to follow in terms of au- ngland w fe - ow in ter 7 76 6 - p law prote Two years later, in 1793, a follow- up law protected cre- Two thors’ rights. t hts. posers, pain er than p ators other than playwrights—writers, composers, painters—and ators other than playwrights—writers, composers, painters—and 77 77 lengthened the heirs’ control to ten years after death. le y after death. ed the hei ary laws were part of the era’s French rev These French revolutionary laws were part of the era’s discussions ons scribed n of circumscribed natural rights on both sides of the channel and the of circumscribed natural rights on both sides of the channel and the ghts on both sides of the ch Atlantic. Britain, America, and France alike all still concerned them- Atlantic. Britain, America, and France alike all still concerned them - nd France alike all still Britain, A 78 The point The point selves as much with the public domain as with authors. much with s of the French revolutionary laws, as with the Statute of Anne, was to of the French revolutionary laws, as with the Statute of Anne, was to nch revol give authors something that they could transfer, making them equal give authors something that they could transfer, making them equal ors somet contractual partners with the publishers and theater owners and re- al partner contractual partners with the publishers and theater owners and r moving the taint of privilege, monopoly, and servility inherent in he taint o moving the taint of privilege, monopoly, and servility inhere 9 7 79 later, in 1842, the French attorne Half a Half a century later, in 1842, the French attorney general patronage. p e. André Dupin put it thus: the point of the 1793 law was not to give André Dupin put it thus: the point of the 1793 law upin put i art a soul. That it already had. It was to give art a body, to make it a . That it a 80 What had earlier material, to allow it to be brought to market. to allow m been given the publishers by royal fiat they now had to bargain for b n the pub with authors. hors. w As le Chapelier explained to the National Assembly in 1791, liter- Chapelier ary property was fully alienable. Anyone could take the author’s erty was f a 81 A century later Victor Hugo marked the place as its rightful owner. ts rightful p s ce of the significance of the revolutionary laws. By giving only privileges, the O me kept Old Regime kept authors subservient. But literary property freed 82 A century after écrivain pr t them. “L’écrivain propriétaire, c’est l’écrivain libre.” THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

86 76 Chapter 2 that, in 2008, both a Socialist senator and the mi that, in 2008, both a Socialist senator and the minister of culture of a right French government agreed that property ce n te r- center- right French government agreed that property rights were the foundation of the author’s social position as a full citizen, no the foundation of the author’s social position as a full citiz 83 83 Property made the author an equal Property made the author an eq longer a lackey or courtesan. longer a lackey or courtesan. citizen with all the other independent owners who, in the French citizen with all the other independent owners who, in the French social imagination, constituted society’s backbone. As in England social imagination, constituted society’s backbone. As in England - and America, the only rights yet up for discussion were the eco and America, the only rights yet up for discussion were the eco- - , selling, and distribut nes of pu nomic ones of publishing, selling, and distributing. Rights of aes nomic ones of publishing, selling, and distributing. Rights of aes- . t later ntrol wou thetic control would come later. NY FORES HTS GERMANY FORESHADOWS AUTHORS’ RIGHTS G portrayed - y in Frenc Especially in French accounts, Germany is often portrayed as a copy Especially in French accounts, Germany is often portrayed as a copy- tralized sta right laggard. True, the fragmented and decentralized state of the gard. Tru right laggard. True, the fragmented and decentralized state of the gislation ac future German empire prevented unified legislation across wide future German empire prevented unified legislation across wide German em f territory ying the problem of piracy. Pr swaths of territory, amplifying the problem of piracy. Privileges for swaths of territory, amplifying the problem of piracy. Privileges for shed until well into the nin - publishers were not abolished until well into the nineteenth cen rs were n publishers were not abolished until well into the nineteenth cen- 84 ound onetheles Nonetheless, German thinkers were breaking new ground an thinkers were breaking tury. t compared to the French, British, and Americans. By the early nine- compared to the French, British, and Americans. By the early nine ritish, and Americans. d to the F - teenth century German laws were in some respects more sophisti- entury Ge - teenth century German laws were in some respects more sophisti cated than those elsewhere. c an those e During the late seventeenth and early eighteenth centuries many nth centuries many g the late German legal theorists argued from similar principles of natural German legal theorists argued from similar principles of natu legal the 85 8 5 At the same tim At the same time the rights as their French and English colleagues. rights as their French and English colleagues. their Fren continuing influence of Roman law, with its focus on tangible prop- ng influen continuing influence of Roman law, with its focus on tang erty and its absolute and perpetual nature, threw up hurdles to any erty and its absolute and perpetual nature, threw u its absolu easy conceptual elision between physical and literary forms of prop- e ceptual el erty. The looser, conceptually less stringent Lockean notion of prop- looser, co e erty came late to Germany, at a time when the influence of the natu- e e late to G 86 Locke had seen property as the ral rights doctrine was declining. s doctrine r basis of individual autonomy: the primary property was the indi- b individua 87 In contrast, vidual’s ownership and thus sovereignty over himself. ownership v the great jurist Friedrich Savigny rejected this idea as leading to im- t jurist Fri moral consequences: property in oneself implied that suicide was a m nsequenc 88 Two of the most important Ger- te exercise legitimate exercise of ownership. l THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

87 Copyright in the Eighteenth Century 77 man thinkers to consider authors rights, Imma man thinkers to consider authors’ rights, Immanuel Kant and Jo- hann Gottlieb Fichte, rejected the analogy between co hann Gottlieb Fichte, rejected the analogy between conventional and literary property altogether. Though their influence on legisla- and literary property altogether. Though their influence on l 89 89 tion was limited at first, their day would come. tion was limited at first, their day would come . its ideas and its ideas Kant viewed the text as less important than its ideas and its ideas as something that could not be taken from their thinker. This pre - as something that could not be taken from their thinker. This pre- pared the way for a conception of authors’ rights based on a founda- pared the way for a conception of authors’ rights based on a founda- The printed work, he tion other than property. The printed work, he argued in his 1785 r than pr tion other than property. The printed work, he argued in his 1785 n the Illeg essay, “On the Illegality of Unauthorized Editions,” was important Unauthorized Editions,” w essay, “On the Illegality of Unauthorized Editions,” was important 90 90 A book was in essence a A book was in essence a speech, the the n not as a thing but an act. thing but printed page merely its medium of delivery. Since the publisher only age merel printed page merely its medium of delivery. Since the publisher only dium of delivery. Since the pub facilitated this act, his claims depended on the author’s permission. facilitated this act, his claims depended on the author’s permission. d this act, e author’s pe Pirating was illegitimate not because it violated property rights but was illegit Pirating was illegitimate not because it violated property rights but property r because the pirate falsely claimed to be acting on behalf of the because the pirate falsely claimed to be acting on behalf of the he pirate on beha author. a Though heavily influenced by natural rights, Kant did not extend , Kant did n h heavily d such ideas to property. He accepted the Roman idea of property as such ideas to property. He accepted the Roman idea of property as s to prop accepted the Roman idea of p absolute control over tangible things. Artworks were property in control o ible things. Artworks were absolute control over tangible things. Artworks were property in opus ), thus things and this sense. Because they were works ( Werk or k s ( W e r k or o p and s ), th t u . Because r e wor ), an owner might do with them what he opera not acts ( or Handlung g what he Handlung ), an owner might do w n wanted, including reproducing and selling them, even under his wanted, including reproducing and selling them, even under his ncluding own name. But as materialized speech the book was an act and not own name. But as materialized speech the book was an act and not e. But as m a thing. By its nature it could not be delivered by anyone else. The a thing. By its nature it could not be delivered by anyone else. The By its natu author had a personal right ( ) for his speech to be jus personalissimum jus personalissimum author had a personal right ( ) for his speech to b ad a person ( given in his name and as he intended. The publisher was a mere given in his name and as he intended. The publisher was a his name mediator. Had the work been a thing, then it could be fully alien- Had the mediator. Had the work been a thing, then it could be fu ated by its creator. But since the work was an act, the author could ated by its creator. But since the work was an act, t s creator. 91 ) but not fully alienate it. only concede ( verwilligen ver cede ( o w cholars h Many scholars have argued that Kant did not foreshadow authors’ rights formulated as a right of personality and that the personal r rmulated right he mentioned was the publisher’s right to disseminate the au- r mentioned 92 True, Kant spoke also of the pub- thor’s speech to his audience. t eech to h 93 But most important, he argued that the au- lisher’s personal right. ersonal rig li thor had the right to address his audience in his name and as he the right t cause the chose. Because the publisher acted only at the author’s behest, and c e work’s o not as the work’s owner, he could not do as he pleased. He had to n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

88 78 Chapter 2 speak for the author. Kant here granted the autho speak for the author. Kant here granted the author a control over his work, even after having alienated it, that was not yet fore work, even after having alienated it, that was not yet foreseen in the Anglophone or French discussion. Anglophone or French discussion . At the risk of anachronism, we might say that Kant foresh At the risk of anachronism, we might say that Kant foreshad- owed what would later be known as the moral rights of attribution owed what would later be known as the moral rights of attribution and integrity—the right of the author to be acknowledged as the and integrity—the right of the author to be acknowledged as the creator and to control changes to the work. But he formulated these creator and to control changes to the work. But he formulated these rights very restrictively. Only a writer spoke to his audience. Artists ry restrict nly a writer spoke to h rights very restrictively. Only a writer spoke to his audience. Artists - produced merely things, which did not convey meaning. Also in- which did not convey me d merely produced merely things, which did not convey meaning. Also in of Kant’s n at, if d dicative of Kant’s narrow- gauge approach was his conclusion that, if auge approach was his concl d been so a text had been so altered as to become effectively a new work, then a text had been so altered as to become effectively a new work, then as to become effectively a new ld the autho the original author lost his claims. Nor could the author prevent the original author lost his claims. Nor could the author prevent nal autho translations since they were no longer the same speech, even translations since they were no longer the same speech, even same spe ons since 94 Limited as - though the ideas remained as in the original. Limited as these au- t u he ideas r thors’ rights might be, however, Kant had broached the most con- thors’ rights might be, however, Kant had broached the most con ghts migh - ched the m tentious future issue, one then barely noticed elsewhere: artistic ed elsewher tentious future issue, one then barely noticed elsewhere: artistic future is control. If the work was a property, then alienation gave the new If the wo control. If the work was a property, then alienation gave the new property, then alienation gav ull rights, g aesthetic control. If not, th owner full rights, including aesthetic control. If not, then the alien- - owner full rights, including aesthetic control. If not, then the alien the transferred property r ation was conditional, and the transferred property right was trun- - ation was conditional, and the transferred property right was trun s conditio cated. By rejecting the property analogy altogether and defining cated. By rejecting the property analogy altogether and defining operty analogy altoget y rejecting works as acts, Kant sidestepped the problem that would bedevil works as acts, Kant sidestepped the problem that would bedevil acts, Kan those theorists, jurists, and lawmakers who remained beholden to eorists, ju those theorists, jurists, and lawmakers who remained beholden to of works a the idea of works as property. t dealist phi r Fichte followed Kant closely. But he w The Idealist philosopher Fichte followed Kant closely. But he was - able to retain property as the conceptual base for authors’ rights be able to retain property as the conceptual base for authors’ righ etain prop idea of p cause his idea of property was less demanding. Kant’s un cause his idea of property was less demanding. Kant’s understand- ing of property remained absolute. He saw it as fu ing of property remained absolute. He saw it as fully alienable and operty re unsuitabl t thus an unsuitable foundation for the author’s claims. Fichte in- s stead restricted what the author could claim. The creator, he argued, tricted wh r control o retained control over neither the physical object of the work nor the ideas contained therein but merely the form in which those t s containe i ideas were expressed. Thus Fichte identified two main rights for cre- re expresse eir author ators: their authorship must be recognized and the form of their a uld not be i ideas could not be stolen (presumably forbidding both piracy and 95 95 p m). plagiarism). The work’s integrity seems to have concerned Fichte less than work’s inte Kant. Instead he emphasized the purchaser’s absolute rights over the tead he em K THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

89 Copyright in the Eighteenth Century 79 physical work. He also argued that the reader, in physical work. He also argued that the reader, in his mind, appro- priated and understood a work by reformulating its id priated and understood a work by reformulating its ideas in his own language and concepts. Both notions played up the audience’s own language and concepts. Both notions played up the audi claims over the creator’s. Since the author controlled only the par- claims over the creator’s. Since the author controlled only the p ticular form he gave his ideas, and since that form changed as his ticular form he gave his ideas, and since that form changed as his audience received and made the ideas their own, the work was in- audience received and made the ideas their own, the work was in - herently malleable and integrity was accordingly unimportant. herently malleable and integrity was accordingly unimportant. Fichte limited the publishers’ claims even more than Kant did. shers’ claims even mo nt did. limited t They received no property whatsoever but at most a usufruct or use They received no property whatsoever but at most a usufruct or use ived no p whatsoever but at most a u 9 96 t to , the publisher acquired only Indeed, the publisher acquired only the right to Nießbrauch ). right ( r ßbrauch ) . o make the author’s ideas the ance for h sell the chance for readers to make the author’s ideas their own. He sell the chance for readers to make the author’s ideas their own. He was acting not in his own name but in that of the author. Fichte was acting not in his own name but in that of the author. Fichte g not in of the auth conceded that the publisher might own this use right. Pirates broke that the p conceded that the publisher might own this use right. Pirates broke right. Pira 97 was thus His argument was thus based on n the law, after all, by stealing it. t after all, b ly econom natural rights. But he pushed beyond the purely economic rights ghts. But natural rights. But he pushed beyond the purely economic rights granted authors in Anglo- American and French law. The author had h law. The au d g uthors in a property right—not to the ideas as such but to the form he had y right—n a property right—not to the ideas as such but to the form he had he ideas as such but to the for given them. He had the right to control and protect that form. This given them. He had the right to control and protect that form. This m. He had ht to control and protect tha implied that, even though he may have sold the use right, the author t thor e may have sold the use rig m i hat, ev e n 98 retained the power to dictate how his work appeared. te how his work appear he power r - r Kant no an legisla Neither Kant nor Fichte immediately influenced German legisla- tion of the late eighteenth century. Nonetheless, early German laws e late eig tion of the late eighteenth century. Nonetheless, early German laws intriguingly differed from those of other countries. Though the gly differe intriguingly differed from those of other countries. Though the Prussian Civil Code of 1794, the Allgemeines Landrecht , followed on Civil Cod Allgemeines Landrecht , followed o Prussian Civil Code of 1794, the the heels of the French revolutionary laws, it struck out in novel di- of the Fre the heels of the French revolutionary laws, it struck out in nov rections. First, the publisher’s right was distinguished from a simple, rections. First, the publisher’s right was distinguished from First, the p or full, property right and was identified as a separate publication roperty ri or full, property right and was identified as a sepa Verlagsrecht right ( ). Allowing the author to issue and market works, ) lagsrecht r . 99 The work was not it derived from a contract negotiated with him. from a co i t treated as a form of literary property. Carl Gottlieb Svarez, one of the t a form of Landrecht’s two main drafters, insisted that ownership of the work L t’s two m itself was not transferred to the publisher, who acquired only the not tran t i 100 ), the right to reproduce and disseminate. sales right ( Verkaufsrecht fs s t ( Verkau be- Unless otherwise specified, the right to assign the Verlagsrecht U herwise s o l longed to the author for life. It did not pass to his heirs, except that the auth er bringin a publisher bringing out a new edition of a work in the public do- a 101 In this sense the main had to compensate the author’s children. d to comp m THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

90 80 Chapter 2 Prussian Code recognized the author s intellect Prussian Code recognized the author’s intellectual rights as some- thing distinct from his exploitation rights, which were thing distinct from his exploitation rights, which were assigned to his publisher. his publisher. On the other hand, though he had alienated only the publication On the other hand, though he had alienated only the publicat right, the author did not retain much control—perhaps because the right, the author did not retain much control—perhaps because the 102 102 - Un- U n publisher Friedrich Nicolai helped draft the Prussian Code. publisher Friedrich Nicolai helped draft the Prussian Code. less otherwise specified in the contract, the publisher could issue less otherwise specified in the contract, the publisher could issue any number of impressions ( Auflagen ), and thus copies. Until they a ), and thus Auflagen ns ( mber of im ntil they had been sold, or the author had bought back remaining copies, the or had bought back remain had been sold, or the author had bought back remaining copies, the n sold, or t 103 103 d to Works thus reverted to Works thu author could not bring out a new edition. a ould not b t a new edition. the author or fell into the public domain only after the original pub - or or fell i ublic domain only after the or the author or fell into the public domain only after the original pub- lishing house no longer existed and the author had no heirs with house no lishing house no longer existed and the author had no heirs with hor had no contractual rights over new editions. On the other hand, unlike leg- ual rights her hand, u contractual rights over new editions. On the other hand, unlike leg - islation elsewhere, the author was given limited rights of control d rights o elsewhere islation elsewhere, the author was given limited rights of control over his work even after its alienation. A new edition, one with over his work even after its alienation. A new edition, one with work eve w edition, changes and emendations, required a renewed contract with the au- and emen changes and emendations, required a renewed contract with the au d contract w - 104 he Baden The Badenese Civil Code of 1809 also forbade altering a text, xt, Code of 1809 also forbade alte thor. t though publishers could print as many copies of the original edi- publishers print as many copies of the though publishers could print as many copies of the original edi - 1 105 tion as they liked. hey liked. t But, on strict deas brok y property- Such ideas broke with a strictly property- based approach. But, on based l le, Germa the whole, German legislation of the early nineteenth century did the whole, German legislation of the early nineteenth century did not differ markedly from laws elsewhere. Duration lasted somewhat not differ markedly from laws elsewhere. Duration lasted somewhat r markedl longer. In 1829 the Grand Duchy of Hesse protected authors, or their ted authors, or their n 1829 the l assignees, from unauthorized editions for up to ten years postmor- , from un assignees, from unauthorized editions for up to ten years postm 106 he more e The more elaborate Prussian Copyright Act of 1837 was often Prussian Copyright Act of 1837 was tem. t cited abroad as a model. In this the author, not the publisher, was cited abroad as a model. In this the author, not the pub oad as a key. He or his assignee had to consent to any publication or republi- key. He or his assignee had to consent to any public r his assig cation of his work. He could alienate all or part of his right to pub- f his work c lish and sell. But these economic rights were all that was at stake. l sell. But 107 Protection lasted for thirty years postmortem. P on lasted f L Legislation in France, Germany, Britain, and the United States thus on in Fran developed similarly during the late eighteenth and early nineteenth d d similarl 1 08 108 y a l Ro Royal privilege was replaced by a system of limited . c centuries. rights in p property rights in literary works. These were demanded first by pub- n their ow l lishers in their own interests. But authors soon recognized the ad- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

91 Copyright in the Eighteenth Century 81 vantages for themselves. Natural rights underg vantages for themselves. Natural rights undergirded the author’s claims, which he could—and usually did—assign his pub claims, which he could—and usually did—assign his publisher. But at the same moment that both authors and publishers gained firm at the same moment that both authors and publishers gaine footing for their ownership, statute replaced nature as the ultimate footing for their ownership, statute replaced nature as the ultim guarantor of property. And statutory claims were limited to certain, guarantor of property. And statutory claims were limited to certain, usually short, periods. As Édouard Laboulaye (jurist, poet, antislav- usually short, periods. As Édouard Laboulaye (jurist, poet, antislav - ery agitator, and spiritual father of the Statue of Liberty) observed in ery agitator, and spiritual father of the Statue of Liberty) observed in 1858, the French revolutionary edicts may have insisted that literary 1858, the French revolutionary edicts may have insisted that literary French rev ary edicts may have in works were property’s most sacred form. Yet what they actually works were property’s most sacred form. Yet what they actually st sacred form. Yet what ere prope granted authors was a modest stake for a short time, founded on dest stake for a short time, granted authors was a modest stake for a short time, founded on uthors w positive, not natural, law. Rather than a royal privilege, authors had not natura ather than a royal privilege, au positive, not natural, law. Rather than a royal privilege, authors had 109 As an ardent defender of absolute e defender of been given a social privilege. en a socia b r the Frenc - works, Ba rights to works, Balzac was more blunt in 1841: the French revolu- 110 110 tionary laws had confiscated the author’s property. y. ws had co t ry basis o British and American law made the statutory basis of literary and Am y property most explicit. But France and Germany’s refusal to imple- - property most explicit. But France and Germany’s refusal to imple most expl ny’s refusal ment perpetual property rights indicated that there, too, limits were ghts indicated that there, too, l ment perpetual property rights indicated that there, too, limits were petual pro set on natural rights. Concerned as they were to protect authors, cerned as they were to prot set on natural rights. Concerned as they were to protect authors, atural righ Continental authorities also sought to accommodate publishers as tal autho o sought to accommodate Continental authorities also sought to accommodate publishers as well as the public’s appetite for cheap and accessible editions. Au- e for cheap and access well as the public’s appetite for cheap and accessible editions. Au - he public’ thorial property rights were a temporary way station on the road to operty rig thorial property rights were a temporary way station on the road to the public domain. The author was enshrined as bearer of rights to c domain the public domain. The author was enshrined as bearer of rights to his own work, but only the economic claims of publishing and sell- - work, but his own work, but only the economic claims of publishing and sell ing were at stake. n i at stake. The French Revolution did not mark a major break in authors’ did not mark a major break in aut ench Rev rights. Old Regime reforms had foreshadowed the revolutionary rights. Old Regime reforms had foreshadowed the revo ld Regim edicts that, in any case, largely mirrored what had long been the case edicts that, in any case, largely mirrored what had lo t, in any c in Britain and was already being implemented in the United States i n and was n and across the Rhine. The German situation was anomalous only in s the Rhin a that some imaginative thinkers hinted at what was to come. e imaginat t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

92 3 3 The Ways Part T HT AND A S’ RIGHTS IN COPYRIGHT AND AUTHORS’ RIGHTS IN C E TEENTH Y THE NINETEENTH CENTURY T Are literary rights a form of property—like a house or a farm—to be Are literary rights a form of property—like a house or a farm—to be ary rights se or a far enjoyed in perpetuity? That was certainly the argument that in perpe enjoyed in perpetuity? That was certainly the argument that the argum nineteenth- century authors and publishers put about. Authors’ prop- p - n y t about. Auth h - centur t erty rights in their works were partly embodied in laws passed by the erty rights in their works were partly embodied in laws passed by the ts in their ere partly embodied in laws pa first in Britain and then in early nineteenth century, first in Britain and then in the United early nineteenth century, first in Britain and then in the United neteenth c ny. Authors insisted that lit ance, and States, France, and Germany. Authors insisted that literary and con - States, France, and Germany. Authors insisted that literary and con- nalogous. Rights to th l property ventional property were analogous. Rights to their works should ventional property were analogous. Rights to their works should thus last forever. Most lawmakers, however, were unconvinced by thus last forever. Most lawmakers, however, were unconvinced by forever. M such special pleading. Their mandate included society as a whole, such special pleading. Their mandate included society as a whole, cial plead not just rights holders. The first laws therefore instituted (at most) a rights hol not just rights holders. The first laws therefore instituted (at most) a conditional natural rights understanding of literary property. Au- conditional natural rights understanding of literary property. A nal natur thors owned their works and could sell them in the literary market- ned their thors owned their works and could sell them in the literary m place like the producers of other goods. But they were owners only place like the producers of other goods. But they were ow e the prod on the terms that society considered just and that statute extended to on the terms that society considered just and that st rms that s them. t Britain, America, France, and Germany thus started from a com- n, Americ mon premise: works were a form of property to which authors had m mise: wor an inherent claim. But, to protect the public domain, neither authors a ent claim. nor disseminators owned works for more than a limited time. From n minators this shared eighteenth- century position, however, things began to ed eighte t n all natio diverge. In all nations authors and their assignees were given increas- d oad claims i ingly broad claims to an expanding palette of works. But with works treated as property, an inherent contradiction was gradually revealed. s property t ional prop Conventional property could be fully alienated, and its new owner C THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

93 The Ways Part 83 then possessed it absolutely, free to do as he please then possessed it absolutely, free to do as he pleased. Works, however, were commonly recognized as different. A publisher cou were commonly recognized as different. A publisher could not just change a manuscript as he saw fit, editing or altering it, giving it a change a manuscript as he saw fit, editing or altering it, givin w title and so forth. new title and so forth. ne Even if just in custom Works could in fact not be fully alienated. Even if just in custom and understanding, authors retained some say over works as they and understanding, authors retained some say over works as they passed to their assignees. To a limited extent such continued aesthetic passed to their assignees. To a limited extent such continued aesthetic rights were elaborated in the early copyright laws of Britain and re elabor rights were elaborated in the early copyright laws of Britain and the early copyright la to be Yet Anglo A America. Yet Anglo- American copyright broadly allowed works to be an copyright broadly allow with onl alienated with only few enduring claims. Indeed, the nineteenth- alienated with only few enduring claims. Indeed, the nineteenth- nduring claims. Indeed, the century Anglophone world firmly emphasized the passing of works firmly emphasized the passin Anglophon century Anglophone world firmly emphasized the passing of works r eventual as in their entirety to disseminators and then their eventual assumption in their entirety to disseminators and then their eventual assumption ntirety to d public dom ment debat - into the public domain. In the late 1830s a vehement debate in Brit- i n authors s ain pitted authors seeking longer copyright terms against the reading against th ain pitted authors seeking longer copyright terms against the reading clearly clip public. The outcome, though a compromise, clearly clipped the he outco public. The outcome, though a compromise, clearly clipped the wings of authorial ambitions. In nineteenth- century America, copy- ntury Amer authorial w y - sell. Strong rights for authors altogethe right was altogether a hard sell. Strong rights for authors and pub- right was altogether a hard sell. Strong rights for authors and pub - d World monopolies, thwarti lishers were regarded as Old World monopolies, thwarting the edu - ere regard lishers were regarded as Old World monopolies, thwarting the edu- cational aspirations of a fledgling democracy. Since the United States spirations gling democracy. Since the cational aspirations of a fledgling democracy. Since the United States shared the language of British literature’s riches, pirating UK books shared the language of British literature’s riches, pirating UK books e languag ish literature’s riches, p became official American policy. Not until 1891 were foreign authors became official American policy. Not until 1891 were foreign authors fficial Am grudgingly granted copyright protection in America. ly granted g ce In nineteenth- century France and Germany, however, both long however, both long eteenth- tinued aesthetic control, even after th d the auth terms and the authors’ continued aesthetic control, even after they t had assigned their economic rights, were taken more seriously. Dur- had assigned their economic rights, were taken more seriously. ned their ing an intense debate in 1841, French parlamentarians began to dis- ing an intense debate in 1841, French parlamentarians beg tense deb cover the contradictions of treating works as conventional property. contradic cover the contradictions of treating works as conven I expressed If works expressed the author’s personality, then they could not be ienated. A wholly alienated. Authors inherently retained an aesthetic say. Pon- w dering the difficulties of applying Napoleonic property law to liter- e difficult d ary works at divorce, death, and bankruptcy, deputies of the July a s at divor Monarchy’s Chamber of Deputies began formulating what would y’s Cham M y be codifi eventually be codified as the author’s moral rights. e Copyright was a legislative snowball. The first laws covered mainly t was a le C book writers, protecting them from verbatim reprinting in unau- ters, prot b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

94 84 Chapter 3 thorized editions. But what about engravings, p thorized editions. But what about engravings, paintings, music, or architecture? And what of abridging, excerpting, trans architecture? And what of abridging, excerpting, translating, per- forming, or altering works? How much control should authors have forming, or altering works? How much control should autho over how others might appropriate, use, allude to, quote, and change over how others might appropriate, use, allude to, quote, and cha their works? Nineteenth- century Britain and America dealt with d America dealt with t copyright’s broadening focus by strengthening statutory property copyright’s broadening focus by strengthening statutory property rights. Meanwhile, France and Germany insisted that authors’ rights rights. Meanwhile, France and Germany insisted that authors’ rights were natural rights. They now began adding personal or moral tural righ now began adding r moral w rights, aiming to preserve the inherent tie between author and work. he inherent tie between au ming to p rights, aiming to preserve the inherent tie between author and work. These two paths of development—copyright and authors’ rights— wo paths o pment—copyright and auth These two paths of development—copyright and authors’ rights— would not, however, emerge as distinct until the end of the nine- ot, howev ge as distinct until the end o - would not, however, emerge as distinct until the end of the nine teenth century. entury. t Perhaps the parting of the ways can be dated to the 1878 Interna- - a ps the par to the 187 ntinental tional Literary Congress in Paris. Here, the Continental delegates tional Literary Congress in Paris. Here, the Continental delegates terary Co he fine po argued the fine points of a natural right to literary property. Was it rary prope argued the fine points of a natural right to literary property. Was it perpetual? How far could the public domain encroach on authorial encroach on perpetual? How far could the public domain encroach on authorial l? How fa fic conclusions, nearly all deleg rights? Whatever the specific conclusions, nearly all delegates enthu- rights? Whatever the specific conclusions, nearly all delegates enthu - Whatever th siastically endorsed a resolution claiming that authors’ rights to their siastically endorsed a resolution claiming that authors’ rights to their y endorsed ution claiming that authors’ r work were not a concession of law but a form of property given by work were not a concession of law but a form of property given by n of law but a form of pro re not a c nature. Only the British delegate stood apart, pleading his inability Only the B elegate stood apart, plea nature. Only the British delegate stood apart, pleading his inability to participate at all in such discussions. Their very premise, he apolo- pate at all - to participate at all in such discussions. Their very premise, he apolo gized, violated the fundamental assumption of British legislation, gized, violated the fundamental assumption of British legislation, olated the that literary property was protected by positive, man- made law, not made law, not that literary property was protected by positive, man- ary prope 1 1 same held true for the United States w That the same held true for the United States will b by natural rights. al rights. become evident below. evident be b The British Copyright Commission’s report of the same year also ritish Cop ommission’s report of the sam marked the distance between Anglophone copyright and the Conti- marked the distance between Anglophone copyrigh he distan pproach. T n nental approach. Thomas Farrer, permanent secretary to the Board of und the “ T Trade, found the “absolute and indefensible” rights of authors too r robustly propounded. The proposals advanced were outrageous. Hav- propound i ned a hou ing designed a house, an architect should be able to ban others from building a similar one! Or “still more extravagant”: having sold their b a similar p pictures, artists should be able to prevent subsequent owners from artists sh engraving copying, engraving, or photographing them. Proposed rights of this c ted the Br i ilk irritated the British commissioners and “embittered the discus- sion of the subject of copyright with Canada and with the United s he subjec 2 States.” In France and Germany, by contrast, such claims were begin- n France a S ning to be seen as worthy goals. b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

95 The Ways Part 85 When the publisher Alexander Macmillan bli When the publisher Alexander Macmillan blithely tried to con- vince the commission of perpetual copyright, claiming vince the commission of perpetual copyright, claiming to see no harm in his firm’s owning Shakespeare’s works forever, he faced skep- harm in his firm’s owning Shakespeare’s works forever, he faced 3 3 The commission considered the high price of Brit tical questioning. The commission considered the high price of B - tical questioning. ish books an outcome of publishers and lending libraries plotting to ish books an outcome of publishers and lending libraries plotting to issue expensive first editions. The book industry demanded copy issue expensive first editions. The book industry demanded copy- - right for British authors and publishers in the United States. But right for British authors and publishers in the United States. But what result, the commission asked, might that have? Perhaps cheap ult, the co n asked, might that ha what result, the commission asked, might that have? Perhaps cheap merely continue while Br American editions would merely continue while British books re n editions - American editions would merely continue while British books re- dear. The mained dear. The commissioners’ tone was searching, and they mained dear. The commissioners’ tone was searching, and they ssioners’ tone was searchin 4 4 clearly aimed at public benefit. efit c med at pu OREAL PR I INCORPOREAL PROPERTY what, exactl rial rights As authorial rights expanded, the need to parse what, exactly, authors As authorial rights expanded, the need to parse what, exactly, authors were laying claim to followed. What was the essence of the work: its ed. What was the essence of th were laying claim to followed. What was the essence of the work: its ng claim t physical embodiment, the ideas advanced, the way they were ex ideas advanced, the way th x physical embodiment, the ideas advanced, the way they were ex- - embodim x pressed? Property could be both tangible and evanescently incorpo - Property c both tangible and evanesce pressed? Property could be both tangible and evanescently incorpo- real. The intangibility of literary works made authors’ claims less eas- real. The intangibility of literary works made authors’ claims less eas - erary works made autho ntangibil ily graspable, yet also more personal and unique to their creator. ble, yet al ily graspable, yet also more personal and unique to their creator. oreal prop n. The Roman Incorporeal property rights developed early in Britain. The Roman of prope law view of property as something primarily physical remained law view of property as something primarily physical remained Saxon common law had a wid strong on the Continent. But Anglo- Saxon common law had a wider the Cont strong on the Continent. But Anglo- 5 5 Options, advowsons, Options, advowsons, com- array of property concepts at its disposal. roperty co array of property concepts at its disposal. - m hises, rents, pens c offices, fran ghts- o wa mons, rights- of- way, tithes, offices, franchises, rents, pensions, and f other “incorporeal hereditaments”: all were intangible property other “incorporeal hereditaments”: all were intan corporeal 6 r t it recogn rights that it recognized. Incorporeal property as a general concept (1769) and the de- soon became accepted in Britain. Between Millar s ame accep bate twenty years later, in 1787, over protecting designs on calico, the b nty years la 7 idea of property in intangibles ceased being questioned. operty in d i For copyright’s development the distinction between tangible and pyright’s d n e property i intangible property was crucial. Only by fundamentally separating t as an obje the work as an object from its intellectual content could the author hts to som retain rights to something that, in its physical incarnation, he had r released— evidently released—first to his publisher and then, by publication, to e d. Though the world. Though they had bought the physical book, pirate pub- t lishers neither had rights over its content nor permission to issue ih h d li THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

96 86 Chapter 3 their editions. By the early nineteenth century their editions. By the early nineteenth century a literary work was commonly considered more than the physical book tha commonly considered more than the physical book that embodied it. Laws soon enforced the distinction. In 1809, for example, the civil it. Laws soon enforced the distinction. In 1809, for example, th code of Baden neatly distinguished between the manuscript and its code of Baden neatly distinguished between the manuscript and content. Depending on his agreement with the publisher, the con content. Depending on his agreement with the publisher, the con- tent remained with the author. In that case its ownership founded his tent remained with the author. In that case its ownership founded his claims both against unauthorized reprinting and against changes or claims both against unauthorized reprinting and against changes or 8 h e w additions to the work. s a to t stinction aterial The distinction between the work’s physicality and its immaterial the work’s physicality and Pope v. Curl (1741). The bookseller Edmund c l (1741). The bookse und was elabor content was elaborated in Pope v. Curl - r r Curl had published letters to and from Alexander Pope without per to and from Alexander Pope w Curl had published letters to and from Alexander Pope without per- publishe Curl argu mission. Curl argued that, once sent, the letters had left Pope’s pos- ers had left P mission. Curl argued that, once sent, the letters had left Pope’s pos - session and control. Owning the physical letter meant controlling its session and control. Owning the physical letter meant controlling its nd contro meant cont intellectual content. Pope countered that he remained the author of ual conten intellectual content. Pope countered that he remained the author of ained the the letters and thus was entitled to decide on publication. The court rs and thu the letters and thus was entitled to decide on publication. The court blication. f the paper sided with Pope, distinguishing ownership of the paper on which sided with Pope, distinguishing ownership of the paper on which th Pope, d the letters were written from the “license . . . to publish them to the . to publish t rs were wr he . . t with the writer. The substanc which rem world,” which remained with the writer. The substance of literary world,” which remained with the writer. The substance of literary 9 9 om its physical medium. was abstr property was abstracted from its physical medium. p e author then claim, i physical But what exactly did the author then claim, if not the physical hat exactl manifestation of his work? Could he have property in his ideas? If so, manifestation of his work? Could he have property in his ideas? If so, ation of h how to distinguish among thinkers to whom the same concept had distinguish how to distinguish among thinkers to whom the same concept had occurred independently? Were ideas discoveries, waiting to be indepen occurred independently? Were ideas discoveries, waiting to be plucked from nature? Then how could they belong to anyone? Su from natu plucked from nature? Then how could they belong to anyone? Such difficulties had led to patent law being regarded as without any basis difficulties had led to patent law being regarded as without any es had led in natural rights. Patents did grant ownership in ideas, and therefore al rights. P in natural rights. Patents did grant ownership in ideas, and such ownership was only a temporary monopoly created by statute. nership w such ownership was only a temporary monopoly cr What authors of literary works could own came into focus only grad- thors of lit W ually. The outcome gave them rights, not to their ideas but to the e outcom u sonal and most personal and unique aspect of the work, their expression. m Engravers were among the first to distinguish between what, for vers were w works, wou written works, would become ideas and their expression. Led by the g great engraver William Hogarth, a group petitioned the House of graver Wi Commons to protect their reproductions. The resulting Engravers’ C ns to prot A Act of 1735 was tailored to Hogarth’s needs. Unusual among engrav- 35 was tai eated his ers, he created his own pictures rather than copying those of others. e gave engr The law gave engravers exclusive rights to engravings of their own T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

97 The Ways Part 87 10 The engravers conceded that, while a direct and design. The engravers conceded t invention and design. invention copy of another engraving was theft, a new study of the sa copy of another engraving was theft, a new study of the same subject was not. “Every one has undoubtedly an equal right to every subject.” was not. “Every one has undoubtedly an equal right to every su Instead, the act protected the engravers’ approach, “the manner” that Instead, the act protected the engravers’ approach, “the manner” th 11 “will so apparently be his own.” “ In 1774 the lawyer Francis Hargrave scoffed at authors retaining hors retaining rights in their ideas as “absurd and impracticable.” That was the realm rights in their ideas as “absurd and impracticable.” That was the realm only the right of printin . Writers c of patents. Writers claimed only the right of printing their works. But of patents. Writers claimed only the right of printing their works. But , “every m he added, “every man has a mode of combining and expressing his mode of combining and he added, “every man has a mode of combining and expressing his ideas peculiar to himself.” Two works might resemble each other, but uliar to hi ideas peculiar to himself.” Two works might resemble each other, but wo works might resemble eac ay the “infi still display the “infinite variety in modes of thinking and writing.” A still display the “infinite variety in modes of thinking and writing.” A iety in modes of thinking and work, “like the human face, will always have some singularities, some me singulari e the hum work, “like the human face, will always have some singularities, some 12 Such individuality founded d dividuality lines, some features, to characterize it.” l me features i n their wo laims to t authors’ claims to the expression of ideas found in their works. a The Continent’s booksellers also rested their claims to works on claims to w n ontinent’s this distinction. The privilege granted Voltaire’s Henriade (1723), the nction. Th Henriade s e ( t abbé Pluquet pointed out, did not forbid others from writing about quet point did not forbid others from wri abbé Pluquet pointed out, did not forbid others from writing about Henry of Navarre’s siege of Paris. But it did prevent them from steal- - Henry of Navarre’s siege of Paris. But it did prevent them from steal Navarre’s Paris. But it did prevent them 13 their hors claimed rights not to i Authors claimed rights not to ideas but their ing Voltaire’s version. i re’s versio n expression. In 1793 the German poet Fichte came close to the mod- - expression. In 1793 the German poet Fichte came close to the mod man poet Fichte came n. In 1793 - ern formulation of the distinction. He separated the intellectual con ern formulation of the distinction. He separated the intellectual con- ulation of he physica tent of the physical book into its ideas and their expression. Any tent of the physical book into its ideas and their expression. Any reader could come to own the thoughts. But their formulation re uld come - reader could come to own the thoughts. But their formulation re- 14 e wells of literature are open to all,” as “The wells of literature are open to all,” as a mained the author’s. he author m British lawyer put it in 1828, “but no one has a right to use the b wyer put i British lawyer put it in 1828, “but no one has a right to use the bucket 15 5 1 of another.” o r.” At the core of the natural rights argument thus lay a personalist al rights argument thus l core of th v the nature vision of the nature of each work, its tie to its creator. Ideas were com- mon to all, but the author owned their particular and unique formu- m l, but the lation. In 1839, during France’s July Monarchy, Count Portalis took la 1839, dur ment to it t this argument to its limit. Man’s most intimate property is his intel- ligence. The products of his mind are internal and remain part of i The produ l h n once rele him, even once released. Literary property is property “by nature, by its essence, by the inability to separate [author and work], by the in- e, by the i i t 16 When booksellers argued divisibility of its object and its subject.” y of its ob d this line, however, the point was to allow authors to alienate their however, t hat which efforts. That which was most personal was also a fully assignable e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

98 88 Chapter 3 chattel. But how could the work be both uniquely personal and fully chattel. But how could the work be both uniquely alienable? Thanks to this irresolvable contradiction, the na alienable? Thanks to this irresolvable contradiction, the natural rights argument, which had both personalist and property- based ele argument, which had both personalist and property- based elements, was gradually supplemented over the course of the nineteenth c was gradually supplemented over the course of the nineteenth cen- tury by a new philosophy where creator related to his work as it ex tury by a new philosophy where creator related to his work as it ex- come shortly. p pressed his personality. To that development we will come shortly. T MURDERED”: OWNER “NOT ONLY ROBBED, BUT MURDERED”: OWNERSHIP AND NLY ROB “NOT ONLY ROBBED, BUT MURDERED”: OWNERSHIP AND T C OL IN CO CONTROL IN COPYRIGHT From the outset literary work differed from other property in being ther propert e outset lit From the outset literary work differed from other property in being nly temp owned only temporarily. But it resembled other property in being owned only temporarily. But it resembled other property in being er property assignable in economic terms. A chair, sold to a new owner, is at his le in econ assignable in economic terms. A chair, sold to a new owner, is at his new owne r e can pain mercy. He can paint it any color, use it as a ladder, stick it in the cor- er, stick it i r mercy. He can paint it any color, use it as a ladder, stick it in the cor - ner, or break it up for kindling. The purchaser of a book too can do reak it up r of a book t ner, or break it up for kindling. The purchaser of a book too can do hat he wants with his phy y wants wit sical copy. But what about t t t - it w sical copy. But what about the work it- w d the law. But what about th self ? Pirates clearly violated the law. But what about the copyright self ? Pirates clearly violated the law. But what about the copyright ates clearly who was n owner who was not also the author? Could he change the book’s owner who was not also the author? Could he change the book’s he author? Could he chan rite it, pu s he saw fit (or not at a title, rewrite it, publish it as he saw fit (or not at all), or even issue it title, rewrite it, publish it as he saw fit (or not at all), or even issue it s own na under his own name? The earliest laws governed mainly economic under his own name? The earliest laws governed mainly economic - - rights—to publish and sell. They protected the author and his legit o publish rights—to publish and sell. They protected the author and his legit t t ublisher ag imate publisher against pirating. The unexpressed assumption was imate publisher against pirating. The unexpressed assumption was that publishing would occur broadly in the form the author lishing w that publishing would occur broadly in the form the author in- tended. But what about distortions, edits, abbreviations, or other But what tended. But what about distortions, edits, abbreviations, or ns? alterations? a ian Brant Refo paid author of a pre- Sebastian Brant, the unpaid author of a pre- Reformation critique (1494), had no economic interests at Das Narrenschiff of the church, s Da hurch, o s stake. But he objected to pirate editions because they omitted or ut he obje 17 c Martin Luther obvi- changed his sentences and inserted new ones. his senten ously wrote for God, not Mammon. In 1541 he lashed out against his o ote for Go many unauthorized editions. Not only did his legitimate publishers m authorize lose money, but the pirate editions, riddled with errors, distorted his l ney, but th 18 Negotiatin Negotiating before enactment of the Statute of Anne in 1710, work. w British authors and publishers implicitly assumed that writers re- uthors an B 19 tained the right to alter and revise their works. In 1695 Daniel Defoe e right to t considered no one but a book’s “proprietor” entitled to abridge the ed no one c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

99 The Ways Part 89 his assignees. But Defoe con- Proprietor work. meant the author or his assigne r work. Proprietor meant the author or 20 20 Though he might no Though he might not have a le- sidered the author best qualified. ualified. q sidered the author best gally exclusive right to be the only abridger, entrusting him gally exclusive right to be the only abridger, entrusting him made se se. sense. n s to transfer their eco The Statute of Anne in 1710 allowed authors to transfer their eco- nomic rights of publishing and selling to booksellers. But the law nomic rights of publishing and selling to booksellers. But the law was not entirely oblivious to broader authorial control. While it al was not entirely oblivious to broader authorial control. While it al- - thors to al ghts, it also specified th lowed authors to alienate rights, it also specified that those acquiring lowed authors to alienate rights, it also specified that those acquiring such rights did so “in order to print or reprint the same.” That does such rights did so “in order to print or reprint the same.” That does to print or reprint the sa ts did so “ not sound as though changes were permitted. es were permitted. n d as thoug law auth In case law authors sought to enforce control over their works ght to enforce control over th ks Archaeologia a e even after selling them. Thomas Burnet’s Latin work r selling t Ar tin work Philosophica (1692) included a facetious conversation between Eve sation betw ( 1692 ) ica e P and the serpent. When unauthorized excerpts appeared in English, erpent. W and the serpent. When unauthorized excerpts appeared in English, peared in ations or u rassed Bu an embarrassed Burnet sought to prevent translations or unauthor- a - ized editions. Shortly after his death in 1715, a group of booksellers group of bo ons. Shor ized editions. Shortly after his death in 1715, a group of booksellers lanned an English editio an English - . His brother and executor, G r r ur n. His brother and executor, George Bur- p p net, countered with an injunction. Arguing that Thomas had not net, countered with an injunction. Arguing that Thomas had not tered wit unction. Arguing that Thom that w n English wanted an English language edition, Burnet e e d ition, Burnet f rèr e also frère also claimed that osed trans the proposed translation was “erroneous, and the sense and words the proposed translation was “erroneous, and the sense and words was “erroneous, and the of the author mistaken, and represented in an absurd and ridicu- of the author mistaken, and represented in an absurd and ridicu - thor mist lous manner.” Though the court agreed that the Statute of Anne did ner.” Thou lous manner.” Though the court agreed that the Statute of Anne did not prohibit translations, it ruled for Burnet on other grounds. The bit transl not prohibit translations, it ruled for Burnet on other grounds. The author had sought to conceal his “strange notions” from the com- author had sought to conceal his “strange notions” from the com ad sought der by wri mon reader by writing in Latin, the court noted. It forbade a trans- mon reader by writing in Latin, the court noted. It forbade a t lation—not because it violated the author’s statutory rights, but be- ot becaus lation—not because it violated the author’s statutory right court wa cause the court was swayed by the author’s hope o cause the court was swayed by the author’s hope of managing his 21 21 r n. reputation. ontrol wa More control was considered, but rejected, a century later in a case involving youthful indiscretions. In 1794 Robert Southey, age twenty youthful n i itical radic and a political radical, entrusted his publisher with a dramatic poem, a ,about th , about the leader of the English peasant revolt of 1381. In Wa t Ty l e r W 1817 Southey was now forty- three, conservative, one of the Lake Poets hey was no 1 and—Walter Scott having turned down the position—the poet laure- ter Scott h a publisher ate. The publisher then decided to issue the manuscript with the a 22 express intent of embarrassing him. ntent of em Southey failed to suppress his e poem largely because copyright was then not recognized in immoral gely becau p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

100 90 Chapter 3 works. The judge, Lord Eldon, had sympathy wit works. The judge, Lord Eldon, had sympathy with the repenting au- thor. But he also seems to have thought that, by leaving thor. But he also seems to have thought that, by leaving it with the 23 publisher for so long, Southey had forfeited rights over his work. publisher for so long, Southey had forfeited rights over his w It was for the graphic arts that British law first protected works for It was for the graphic arts that British law first protected works something beyond economic rights. Though the Statute of Anne something beyond economic rights. Though the Statute of Anne guarded authors from unauthorized reprinting, it covered only ver - r r guarded authors from unauthorized reprinting, it covered only ver- batim reproduction and failed to consider works that had been al- batim reproduction and failed to consider works that had been al - tered—translated or abridged, for example. For engravings a quarter ged, for example. For en tered—translated or abridged, for example. For engravings a quarter ranslated o century later, the law’s embrace was more supple. As we have seen, ater, the l brace was more supple. A century later, the law’s embrace was more supple. As we have seen, the Engravers’ Act of 1735 distinguished between the work itself and the Engravers’ Act of 1735 distinguished between the work itself and avers’ Act distinguished between the wo r it embod outlawed simple reproduction - the ideas it embodied. It outlawed simple reproduction while per the ideas it embodied. It outlawed simple reproduction while per- r mitting anyone to use the same motifs. To outsmart cheats, however, mitting anyone to use the same motifs. To outsmart cheats, however, anyone to tsmart cheats it also forbade reproductions that made only minor alterations to an it also forbade reproductions that made only minor alterations to an rbade repr nor alterat 24 engraving existing engraving. work’s int However rudimentarily, the work’s integrity was s e guarded under the law. under the g The graphic arts in Britain were also the first to receive some pro- st to receive - raphic arts o author’s aesthetic control—w with respe tection with respect to the author’s aesthetic control—what would tection with respect to the author’s aesthetic control—what would moral rights. The 1862 Fine A me to be ca later come to be called his moral rights. The 1862 Fine Art Copyright later come to be called his moral rights. The 1862 Fine Art Copyright It forbade signing and se t with att Act dealt with attribution. It forbade signing and selling artworks Act dealt with attribution. It forbade signing and selling artworks 25 25 with other than the actual artist’s name. Playwrig a er than th Playwrights also aspired to w pired to rtist’s name. control their works aesthetically. Before they won performance rights control their works aesthetically. Before they won performance rights heir work in 1833, they claimed that unauthorized stagings damaged their repu - in 1833, they claimed that unauthorized stagings damaged their repu- hey claime 26 In 1822 Byron’s publisher unsuccess- publisher unsuccess tations as well as their income. t s well as th d a theate fully sued a theater for putting on an abbreviated version of fully sued a theater for putting on an abbreviated version of Marino Mari Doge of Ven F . His lawyer argued economics, claiming that Faliero, Doge of Venice lawyer argued economics, claimin performances would leach away the printed version’s market. Byron performances would leach away the printed version’s mar ances wou himself may have been offended that the manage may have himself may have been offended that the manager of the Theatre Royal in Drury Lane had openly stated that he would remove certain R Drury Lan soliloquies that “however beautiful and interesting in the closet, will s es that “h 27 The dramatist Douglas Jerrold put frequently tire in public recital.” ly tire in p f a similar point before a parliamentary select committee in 1832. Un- a point bef ed perform a authorized performances, he complained, hurt authors twice. They w were not paid and their works were mutilated. Thus they were “not paid and 28 only robbed but murdered.” o bed but m Abridged books, too, raised issues of artistic rights that went be- ged books yond the purely economic. Did an author control variant publica- e purely e y tions? Abridged books were common in the flourishing periodical bridged b t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

101 The Ways Part 91 literature of the eighteenth century. Focused on ve literature of the eighteenth century. Focused on verbatim reprinting, the Statute of Anne did not directly outlaw them. And ab the Statute of Anne did not directly outlaw them. And abridgers ar- gued the public benefit of their work in succinctly enlighten gued the public benefit of their work in succinctly enlightening a w i d e au d ience. In t wide audience. In the mid- eighteenth century, courts weighed the e mi d - eighteenth century, courts weighed t h nature and extent of truncation and allowed “fair abridgments” inso nature and extent of truncation and allowed “fair abridgments” inso- far as they were not merely shortened versions. The Statute of Anne far as they were not merely shortened versions. The Statute of Anne had given away the store by forbidding only verbatim reprinting. had given away the store by forbidding only verbatim reprinting. r for authors some of w Case law now clawed back for authors some of what they had sur- Case law now clawed back for authors some of what they had sur now claw - r rendered. Yet these cases also continued the statute’s emphasis on the Yet these rendered. Yet these cases also continued the statute’s emphasis on the o continued the statute’s em general good over authors’ claims. Reasonable abridgments were general good over authors’ claims. Reasonable abridgments were ood over ’ claims. Reasonable abridg seen as bringing more good to the public than harm to authors and seen as bringing more good to the public than harm to authors and ringing m d to the public than harm to au orbid all abri thus they were often permitted. If I were to forbid all abridgments, thus they were often permitted. If I were to forbid all abridgments, were ofte Gyles v. Wilcox Gyles m x mused Lord Hardwicke, who judged a pivotal case, ord Hardw case, (1741), the mischievous consequence would be to outlaw learned e mischie to outlaw (1741), the mischievous consequence would be to outlaw learned 29 books and journals. b d journals oncerns fo Such concerns for the author’s aesthetic interests could be pursued ests could b d i (1774) n 4) ring the period before n more re Donald Donaldson in Britain more readily during the period before common restricted common law copyright and limited protection to what the restricted common law copyright and limited protection to what the yright and limited protection r (1769), the case that briefly per- - per S f Anne pr Statute of Anne provided. In Millar n Mi ll a r (1769), the case th common r ea petuated common law copyright beyond the statute’s fourteen- year petuated common law copyright beyond the statute’s fourteen- y yright beyond the statu d Mansfie term, Lord Mansfield listed the rights that nature granted authors in term, Lord Mansfield listed the rights that nature granted authors in ublished their unpublished works—rights he thought should continue also their unpublished works—rights he thought should continue also after publication. The author should earn from his efforts, his name after publication. The author should earn from his efforts, his name lication. T should not be used by someone else, and he should choose when an ot be used should not be used by someone else, and he should choose when and how to publish. The author should decide which publisher could be how to publish. The author should decide which publisher cou ublish. Th trusted not to foist additions on the text. If not, Lord Mansfield con- ot to foist trusted not to foist additions on the text. If not, Lord Mans tinued, the author would no longer master his own name. He could tinued, the author would no longer master his own he author w not prevent additions, retract errors, or amend or cancel a faulty edi- nt additio n tion. Anyone might print and perpetuate an imperfect text to the one migh t 30 In effect, as Mansfield defined author’s disgrace and against his will. disgrace an a the author’s common law claims to control works even after publica- t r’s comm tion, he was arguing for what would later be considered the author’s was arguin t moral rights of attribution and integrity. m hts of attr Mansfield’s solicitude for authors did not last in Britain, however. eld’s solic later, in Donaldson severely restricted their common F Five years later, in 1774, la s. While law rights. While the work remained in manuscript, authors had law prope common law property rights. Once published, however, only the pro- c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

102 92 Chapter 3 tections of the Statute of Anne survived: the righ tections of the Statute of Anne survived: the right to print, publish, and sell. Mansfield had foreseen an important element of artistic con- and sell. Mansfield had foreseen an important element of Donaldson trol. The Lords w ho decided trol. The Lords who decided onaldso n took a narrower app took a narrower approach. D The brief put forth on behalf of Donaldson, the pirate publisher, The brief put forth on behalf of Donaldson, the pirate publish denied the existence of common law rights in literary property. I denied the existence of common law rights in literary property. It rejected the idea that a book consisted of two parts, material and im- rejected the idea that a book consisted of two parts, material and im - material. It was absurd, it concluded, that the material book was sold material. It was absurd, it concluded, that the material book was sold urchaser c and its purchaser could do as he pleased, but meanwhile the doctrine as he pleased, but mean and its purchaser could do as he pleased, but meanwhile the doctrine remaine within it remained the author’s possession and under his control. thor’s possession and und within it remained the author’s possession and under his control. That was as silly as arguing that one man could own a horse’s carcass as silly as that one man could own a h That was as silly as arguing that one man could own a horse’s carcass e, or speed. Once sold, an auth and another its color, shape, or speed. Once sold, an author retained her its co and another its color, shape, or speed. Once sold, an author retained as little control over his work as he did over any other chattel. ontrol ov a ny other cha On the other side, Lord Chief Baron Smythe, continuing in Lord d continuin e other sid d’s spirit, on law ri Mansfield’s spirit, argued for continued common law rights even Mansfield’s spirit, argued for continued common law rights even n author’s blication. after publication. Pirated editions stole both an author’s ideas and after publication. Pirated editions stole both an author’s ideas and his name. The work was then passed off as his, even though he no e. The wo is, even thou his name. The work was then passed off as his, even though he no longer could correct errors, “nor cancel any part, which subsequent longer could correct errors, “nor cancel any part, which subsequent ould corre , “nor cancel any part, which pears to be improper.” Smyt to the first publication, appears to be improper.” Smythe lamented rst publica to the first publication, appears to be improper.” Smythe lamented of such co law rights. But his colleag the loss of such common law rights. But his colleague Lord Chief the loss of such common law rights. But his colleague Lord Chief Justice De Grey, speaking for the winning side, feared them. If an Justice De Grey, speaking for the winning side, feared them. If an for the winning side, f De Grey, sp author had perpetual property rights, he warned, he could set what ad perpet author had perpetual property rights, he warned, he could set what- - t t ever price he wished for the first edition, refuse a second one alto e he wish ever price he wished for the first edition, refuse a second one alto- - 31 gether, and recall his ideas. The author’s published work belonged hed work belonged nd recall h g to society. It could not be clawed back. to society. It could not be clawed back. y. It could atute of A t with reproducible literary works. S The Statute of Anne dealt with reproducible literary works. Singu- orks raised lar artworks raised their own problems. Buying a piece lar artworks raised their own problems. Buying a piece of art was long regarded as including the rights of reproduction too. That de- arded as in long regarded as including the rights of reproducti prived the artist of both an economic and an aesthetic claim. Engrav- e artist of p 32 But ers, broadly speaking, controlled their own original designs. dly speak e w what happened when a painter sold his work? Did he retain rights to ppened wh r reproduce it via engraving? The question was important because—in ce it via en a foreshadow an early foreshadowing of the power of infinite reproducibility—the income from engravings often dwarfed sales of the original artwork. from engr i Benjamin West, the most commercially successful British painter of n West, th B the late eighteenth century, produced at least five replicas of his pop- ighteenth t (1770), charging between £250 and £400 Death of General Wolfe ular th of Gene u each. But engravings of the painting earned at least £7000 for the t engravin e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

103 The Ways Part 93 engraver and £15,000 for Wolfe s agent, John Bo engraver and £15,000 for Wolfe’s agent, John Boydell. (How much 33 33 ) Wolfe himself took home we do not know. Wolfe himself took home we do not know.) When it came to reproducing artworks, in Britain the art When it came to reproducing artworks, in Britain the artist did not prevail. The draft bill of the 1862 Fine Art Copyright Act p not prevail. The draft bill of the 1862 Fine Art Copyright Act pro- posed to keep copyright with the artist of a drawing, painting, or posed to keep copyright with the artist of a drawing, painting, or photograph even after sale. Art buyers protested. Allowing an artist photograph even after sale. Art buyers protested. Allowing an artist to retain copyright in a work he had sold “was about as unreasonable to retain copyright in a work he had sold “was about as unreasonable a proposition as had ever been submitted to Parliament” and an un- een submitted to Parli a proposition as had ever been submitted to Parliament” and an un - tion as ha warranted interference with property rights, one MP complained. d interfere h property rights, one MP warranted interference with property rights, one MP complained. Artists would suffer most as the prices they commanded were dis- as the prices they command - Artists would suffer most as the prices they commanded were dis ould suffe 34 34 retained ve Lawmakers listened and gave counted by the rights they retained. c Lawmakers listene by the rig the artist copyright after sale only if expressly reserved in writing. But copyright the artist copyright after sale only if expressly reserved in writing. But eserved in wr 35 did not g t - the buyer did not gain copyright either. Absent a written sales con- a written tract, copyright was lost altogether. t yright was American copy- er doctrin glo- - Another doctrine that became a staple of Anglo- - Americ right also undercut the author’s right of continued aesthetic control: ued aestheti right also undercut the author’s right of continued aesthetic control: undercut work- for- hire. This gave rights to the employer and sometimes even hire. This en hts to the employer and somet w regarded him as the legal author. Divorcing creation from control, it l, it r him as the uthor. Divorcing creation from deprived the author of rights even before he had created the work. In the autho s even before he had create deprived the author of rights even before he had created the work. In Britain’s 1798 Sculpture Act, the person granted “sole right and prop- 798 Sculp the person granted “so - Britain’s 1798 Sculpture Act, the person granted “sole right and prop he artwor erty” in the artwork was either the “person who shall make” or the erty” in the artwork was either the “person who shall make” or the 36 Art Copyright person who shall “cause to be made.” ho shall “c The 1862 Fine Art Copyright p Act gave copyright to those who commissioned art works, unless copyright Act gave copyright to those who commissioned art works, unless otherwise specified in writing. otherwise specified in writing. e specified As always in British life, dogs played a role in copyright too. Who, ays in Brit dogs played a role in copyright too. W the Royal Commission on Copyright of 1878 pondered, had rights to Commis the Royal Commission on Copyright of 1878 pondered, had 37 7 37 ’s owner, it decided, sho The dog’s owner, it decided, should receive both a canine portrait? portrait? a the portrait and its copyright unless agreed otherwise in writing. For t ait and its collective works like encyclopedias, periodicals, and series, the 1842 c works lik C Copyright Law Amendment Act gave the publisher “the same rights t Law Am a as if he were the actual author thereof ” in his employees’ output, were the a 38 alone pieces. at he could As was e except that he could not publish them as stand- ern for fil the concern for film a century later, publishers feared that if each t contributor controlled copyright to his own piece, the collective or contro c 39 work would fall apart. w uld fall ap Ame - The Anglo- American copyright tradition did not wholly ignore nglo- aesthetic r authors’ aesthetic rights. The eighteenth- century British and Ameri- a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

104 94 Chapter 3 cans who thought that common law still govern cans who thought that common law still governed literary property even after publication sought to give the author a con even after publication sought to give the author a continued say. Their opponents saw him as having only the economic right Their opponents saw him as having only the economic rights speci- fied by statute. With in 1774, this latter position triumphed fied by statute. With Donaldson in 1774, this latter position triumph Donaldson in 1834. As th in Britain, as it did in the United States with i Wheaton Wheaton in 1834. As the Anglophone nations supplanted common law with statute, artistic Anglophone nations supplanted common law with statute, artistic control faded as a concern. Protecting the author’s economic rights control faded as a concern. Protecting the author’s economic rights and swiftly transferring works to the public domain were their main ftly transfe rks to the public doma and swiftly transferring works to the public domain were their main ambitions. Did the author alienate all rights when selling copyright? alienate all rights when sel ns. Did the ambitions. Did the author alienate all rights when selling copyright? e retain? To such questions t If not, what control did he retain? To such questions the copyright hat contro If not, what control did he retain? To such questions the copyright t w had fe tradition had few clear answers. wers c HE SPIRIT T OUT OF THE SPIRIT OF THE BIRTH OF AUTHORS’ RIGHTS TH OF AU LITERARY PROPERTY IN FRANCE Y PROPE e debate positioned authors’ In Britain and America the debate positioned authors’ supporters, n and Am In Britain and America the debate positioned authors’ supporters, ored perpe - mmon law rights, against thos who favored perpetual common law rights, against those who recog who favored perpetual common law rights, against those who recog- claims to nized no claims to literary property beyond statute’s temporary mo- nized no claims to literary property beyond statute’s temporary mo - property beyond statute’s t nopoly. The outcome gave authors limited economic rights after e authors limited econ The outco nopoly. The outcome gave authors limited economic rights after publication. It made little mention of artistic control beyond that, on. It ma publication. It made little mention of artistic control beyond that, it specific except as it specifically deprived them of it. On the Continent legisla- - except as it specifically deprived them of it. On the Continent legisla tive outcomes during the late eighteenth and early nineteenth cen omes dur tive outcomes during the late eighteenth and early nineteenth cen- turies were much the same. Significant divergence would come only re much t turies were much the same. Significant divergence would come on later. But during the mid- 1800s France and Germany heard the first 800s France and Germany heard th t during t l stirrings of a push beyond a concept of authors’ rights that was prop- stirrings of a push beyond a concept of authors’ rights that of a push erty based (whether natural rights or merely statute). d (whethe erty based (whether natural rights or merely statute Needless to say, Romanticism and its celebration of heroic creators ess to say, fertilized the soil from which authors’ rights sprang (a point we will the soil f f t touch on in the following chapter). But, like natural rights theory, n in the fo Romanticism was a cultural constant in all our nations without lead- R cism was i he same re ing to the same results. So something else must also have been at w work. In the French parliamentary debates of 1841, when many of the the Frenc constituent legal elements of moral rights were first recognized, allu- ent legal e c s sions to broad cultural currents—Romantic or otherwise—or to for- broad cult eign precedents and influences were largely absent. Instead, discus- cedents an e sion circled around the intractable problems that Napoleonic law led aroun s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

105 The Ways Part 95 threw up to the transmission of works after death or divorce. Family threw up to the transmission of works after death h l aw d . ts gh ors’ ri rove opments in aut l eve d law drove developments in authors’ rights. The idea of moral rights emerged almost by spontaneous intel- The idea of moral rights emerged almost by spontaneous lectual generation as parliamentary deputies attempted to square t lectual generation as parliamentary deputies attempted to square the circle of intellectual property’s inherent conceptual contradictions. circle of intellectual property’s inherent conceptual contradictions. No new actors or interests sprang forth. Authors enjoyed their new- No new actors or interests sprang forth. Authors enjoyed their new - found rights. Disseminators hoped to acquire their authors’ claims found rights. Disseminators hoped to acquire their authors’ claims entirely. Insofar as anyone spoke for it, the public wanted cheap, ac- entirely. Insofar as anyone spoke for it, the public wanted cheap, ac - poke for it, the public nsofar as , and s cessible, well- stocked libraries, bookstores, museums, galleries, and ies, bookstores, museums k toc well- c roperty was an unstable con concert halls. But literary property was an unstable concept with a alls. But l concert halls. But literary property was an unstable concept with a paradox at its core. It was considered especially tied to the author paradox at its core. It was considered especially tied to the author considered especially tied to at its core because he had created it by his own efforts. And because it was s. And becau he had cr because he had created it by his own efforts. And because it was s, the auth wholly his, the author could assign it as he pleased. His property was ed. His prop wholly his, the author could assign it as he pleased. His property was d of attemp and aliena p and alienable. But could it be both? Out of attempts to rec- - personal oncile this tension in mid- nineteenth century France and Germany y o ance and G s tension ersonality ra came new ideas of authors’ rights founded on personality rather than came new ideas of authors’ rights founded on personality rather than w ideas of a property. p eighteent had ry all nations under the gla In the eighteenth century all nations under the glass here had concluded that the author enjoyed property claims to his work based d that the njoyed property claims to h concluded that the author enjoyed property claims to his work based on the inherent logic of natural rights. But once it was published— herent log on the inherent logic of natural rights. But once it was published— tural rights. But once it given to the public—in practice only claims granted by statute re- given to the public—in practice only claims granted by statute re the public - mained. During the nineteenth century two issues arose repeatedly. mained. During the nineteenth century two issues arose repeatedly. During th The first voiced a natural rights–inspired attempt to fuse conven- The first voiced a natural rights–inspired attempt to fuse conven voiced a - tional and literary property. If literary property was property, why d literary tional and literary property. If literary property was property, wh was it not perpetual? A perennial question, it persists even toda t perpetua was it not perpetual? A perennial question, it persists even today. her, more The other, more fruitful question prompted new avenues of in- question prompted new aven quiry and eventually legislation. Could the author alienate his work d eventual quiry and eventually legislation. Could the author a fully, as with other property, abandoning all aesthetic control? Con- with other f ventional property was both perpetual and wholly alienable. But v property t o insisted those who insisted that authors should own their works forever usu- a ed to acce ally refused to accept the corollary that an author could also fully part with it. Property ultimately proved an inadequate conceptual it. Prope p tool because authors wanted its perpetuity but not its absolute alien- t use autho a ability. One of the first to recognize this was Guillaume de La ne of the L Landelle, a naval officer and novelist. At the International Literary a naval o in 1878, h C Congress in 1878, he noted the central paradox: if literary property etual, it ha was perpetual, it had to be alienable. The new owner could therefore w THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

106 96 Chapter 3 freely transform, abuse, or even destroy it. Since that was wrong for freely transform, abuse, or even destroy it. Since works of the spirit, it followed that literary property, if property at all, works of the spirit, it followed that literary property, if pro 40 40 could neither be fully alienated nor last forever. could neither be fully alienated nor last forever . Thinking of literary works as conventional property, the Fren Thinking of literary works as conventional property, the French discovered, had undesirable results. Problems arose when works discovered, had undesirable results. Problems arose when work passed from authors to spouses, children, family, or creditors who passed from authors to spouses, children, family, or creditors who - - now were called on to make aesthetic choices. Unexpected conse now were called on to make aesthetic choices. Unexpected conse quences led to laws being tested in court. Bills were drafted, and new ested in court. Bills we led to law quences led to laws being tested in court. Bills were drafted, and new s hashed o arathon sessions of parliam proposals hashed out in marathon sessions of parliamentary exami- proposals hashed out in marathon sessions of parliamentary exami - nation and debate. Gradually over the nineteenth century, new ideas nation and debate. Gradually over the nineteenth century, new ideas lly over the nineteenth centu nd debate forced their roots into the cracks of the property concept, breaking heir roots forced their roots into the cracks of the property concept, breaking cracks of the property concep apart the inherited certainties. a inherited i In 1777 Simon Linguet, a lawyer and a representative of the Pari- sentative o - 7 Simon L sian booksellers, had foreshadowed the conceptual problems to ptual pro oksellers, sian booksellers, had foreshadowed the conceptual problems to ” to which come. Authors’ works were a “genuine creation” to which they had uthors’ wo come. Authors’ works were a “genuine creation” to which they had firm claims. Like others who spoke for publishers’ interests, his blishers’ int ms. Like firm claims. Like others who spoke for publishers’ interests, his goal was to give authors rights they could transfer. The only nov - to give a goal was to give authors rights they could transfer. The only nov- ights they could transfer. The elty was his argument for something resembling the integrity right. omething resembling the in his argum elty was his argument for something resembling the integrity right. Like Defoe seventy years earlier, Linguet held that, since a literary Like Defoe seventy years earlier, Linguet held that, since a literary earlier, Linguet held that, s foe sevent rang perfe work sprang perfect from the author’s mind, only his hand might work sprang perfect from the author’s mind, only his hand might the author’s mind, onl t. But sinc change it. But since Linguet sought to justify transferring the work, change it. But since Linguet sought to justify transferring the work, he also argued that the publisher “completely and continually as- he also argued that the publisher “completely and continually as argued th - sumes the author’s prerogatives. To dispute the bookseller’s prop he author’ sumes the author’s prerogatives. To dispute the bookseller’s prop- 41 41 Linguet thus Linguet th erty rights is to misunderstand those of the author.” erty rights is to misunderstand those of the author.” ts is to m granted the author an aesthetic veto over changes, yet also insisted the autho granted the author an aesthetic veto over changes, yet also in 2 4 42 He had posed the on full alienability to the publisher. alienabilit on full alienability to the publisher. He had posed the problem without solving it. solving it w During the Napoleonic era full alienability remained the norm in g the Nap F n 1810 it w France. In 1810 it was decreed that authors could cede their rights 43 But around this time the internal contradictions fully to publishers. f ublishers. o operty con of the property concept as applied to literary works began to emerge. In 1826, during the Bourbon Restoration, a commission suggested I during th intriguingly that the author deserved an integrity right over pub- ngly that t i lished works during his lifetime. The author should be able to pre- orks durin l nges to h vent changes to his work, editorial cuts in new editions, and com- v mentary by others, thus enforcing the “respect” and “consideration” by others m ue. A wor he was due. A work had never achieved its final form while the au- h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

107 The Ways Part 97 thor was still living. The commission thus toyed w thor was still living. The commission thus toyed with authorial rights distinct from publishing and selling. But its draft bill retained no distinct from publishing and selling. But its draft bill r traces of integrity. The only right was to publication, granted the traces of integrity. The only right was to publication, grante 44 44 author for his lifetime and his heirs for another half century. author for his lifetime and his heirs for another half century . What riled him most In 1834 Balzac took up the author’s claims. What riled him most was that novels were turned into theater pieces. A dramatist would was that novels were turned into theater pieces. A dramatist would 45 4 5 steal your story, feeling as little guilt as if he had taken your wife. steal your story, feeling as little guilt as if he had taken your wife. Even worse, though your adulterous wife was a willing accomplice, dulterous wife was a w se, though Even worse, though your adulterous wife was a willing accomplice, your innocent novel had no choice. Yet authors did not write books o choice. Yet authors did n ocent nove your innocent novel had no choice. Yet authors did not write books 46 4 to see them turned into dramas or vaudeville shows. t Despite his em turned amas or vaudeville shows. his or artistic control within the c gripes, Balzac still argued for artistic control within the conceptual alzac still gripes, Balzac still argued for artistic control within the conceptual frame of conventional property rights. Dramatists mangled writers’ conventio frame of conventional property rights. Dramatists mangled writers’ tists mangle work, he complained: “butchered, drawn, stripped, quartered, grilled complaine work, he complained: “butchered, drawn, stripped, quartered, grilled d, quartere on the footlights, and served up to the patrons of the theater.” But to the theate otlights, a on the footlights, and served up to the patrons of the theater.” But to ain lamen judge from where his attention lingered, his main lament was the m where judge from where his attention lingered, his main lament was the money that theaters earned. He was irked too that his fellow French- at theater hat his fellow - money that theaters earned. He was irked too that his fellow French ther than bookstores. Balzac d onized lib men patronized libraries rather than bookstores. Balzac did not de- men patronized libraries rather than bookstores. Balzac did not de - fend authors’ rights of aesthetic control so much as attack those who fend authors’ rights of aesthetic control so much as attack those who ors’ rights etic control so much as attac were wringing profit from his work. nging profi h is work. w nd July nth century France’s Re During the early nineteenth century France’s Restoration and July g the early Monarchy pursued reform in commissions and bills. The eighteenth- Monarchy pursued reform in commissions and bills. The eighteenth- y pursued eritage st century heritage still dominated, and—as in Britain and America— century heritage still dominated, and—as in Britain and America— ns weighe discussions weighed the opposing interests of public and authors. discussions weighed the opposing interests of public and authors. heated rhe Despite heated rhetoric, the authorities never seriously considere Despite heated rhetoric, the authorities never seriously considered rights to perpetual rights to literary works. If you treat literary works a perpetual rights to literary works. If you treat literary works as just another form of property, passing forever like land from family to another form of property, passing forever like land from form of pr family, the minister of education warned the Chamber in 1839, they family, the minister of education warned the Cham e ministe might disappear from public view. More important interests were at m appear fro stake than the author and his children. Racine’s verses could not n the aut s remain the private property of just one family. They belonged to r he private 47 47 e everyone. thor coul The author could do as he pleased with his manuscript, the Vis- count Siméon agreed. But once published, it became a property c méon agr shared by author and society. No longer a real property claim based author a s o on natural rights, the authors’ rights were now a fair concession or al rights, t 48 privilege granted by society. granted by The author was in fact already favored. p had sold h Once he had sold his work, no natural right prevented the buyer of O THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

108 98 Chapter 3 a copy from making more. When you sell, you ca a copy from making more. “When you sell, you cannot keep anything - Gay h Lussac, the peer and chemist who invented the k ac b back,” as Joseph Gay- Lussac, the peer and chemist who in ,” as Josep 49 9 4 measure of alcohol by volume, put it in 1839 measure of alcohol by volume, put it in 1839. . Only statute pre Only statute prevented . authors from losing all control over their works authors from losing all control over their works. T THE LAMARTINE DEBATE era when But the era when France still balanced rights equally between au - But the era when France still balanced rights equally between au- still balanced rights equal thors and their audience was drawing to a close. Change began in was drawing to a close. Chan d their au thors and their audience was drawing to a close. Change began in pherded b nse de Lamartine, the politicia 1841, shepherded by Alphonse de Lamartine, the politician who was 1841, shepherded by Alphonse de Lamartine, the politician who was s was the age to proclaim the Second Republic in 1848. This was the age when the to proclaim the Second Republic in 1848. This was the age when the im the Se Napoleonic Code’s vision of indivisible and absolute property rights Napoleonic Code’s vision of indivisible and absolute property rights olute prope nic Code’ was defended most strongly—as a reaction to the revolution’s expro- revolutio was defended most strongly—as a reaction to the revolution’s expro - nded mos priations and spurred on by the socialists’ and anarchists’ attacks on narchists’ a and spur priations and spurred on by the socialists’ and anarchists’ attacks on 50 ed to extend - e Lamartine hoped to extend a Napole- the very concept of property. concept o t onic concept of property to the author’s claims. While earlier reform onic concept of property to the author’s claims. While earlier reform- the author’s claims. While ear cept of pro - ad taken a dim view of autho ers of the July Monarchy had taken a dim view of authors’ demands e July Mon ers of the July Monarchy had taken a dim view of authors’ demands artine—himself a noted wri for full natural rights, Lamartine—himself a noted writer—was more for full natural rights, Lamartine—himself a noted writer—was more atural righ ported to the Chamber sympathetic. In 1841 he reported to the Chamber of Deputies on a sympathetic. In 1841 he reported to the Chamber of Deputies on a etic. In 18 literary property bill. While it never passed, the Chamber’s long and roperty b literary property bill. While it never passed, the Chamber’s long and detailed discussions uncovered the property concept’s inherent con- discussion detailed discussions uncovered the property concept’s inherent con - tradictions and led to a sea change in attitude that would mark all tradictions and led to a sea change in attitude that would mark all ns and led nch jurisp later French jurisprudence and statute. later French jurisprudence and statute. Until then, the July Monarchy had balanced the rights of authors then, the J narchy had balanced the rights of au and the public. It had rejected the authors’ demand for perpetuity public. It and the public. It had rejected the authors’ demand for p and trimmed proposals for a fifty- year postmortem term to follow med prop and trimmed proposals for a fifty- year postmortem i he Prussia instead the Prussian example of thirty. Lamartine, in contrast, was in thrall to the idea that authors had natural property rights to their the idea t is draft bi works. His draft bill distinguished literary from other forms of prop- w erty only in limiting term durations, and that only because of practi- e in limitin cal considerations. In theory, he preferred perpetual rights. The day c derations the law gave authors unlimited protection, he insisted, human intel- gave autho t would be ligence would be emancipated. Opposing the government bill’s l thirty- year term, Lamartine proposed half a century, with the possi- ar term, L t 51 further fu bility of further future extensions. b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

109 The Ways Part 99 Lamartine s support of a natural rights based Lamartine’s support of a natural rights–based concept of literary Albin Berville (like property was not unchallenged. Saint- - property was not unchallenged. Saint- Albin Berville (like Lamartine, a politician and man of letters) viewed property rights in a a politician and man of letters) viewed property rights in artistic works skeptically. The scant years of exploitation that patents granted works skeptically. The scant years of exploitation that patents grant inventors compared unfairly with the long decades claimed by au- inventors compared unfairly with the long decades claimed by au thors and artists. Moreover, treating works as property and allowing thors and artists. Moreover, treating works as property and allowing rights to be inherited meant introducing a new actor, the author’s rights to be inherited meant introducing a new actor, the author’s y families, he warned nd heirs. family and heirs. Unhappy families, he warned, might suppress family and heirs. Unhappy families, he warned, might suppress works. Though he rejected authorial property claims, Berville did hough he works. Though he rejected authorial property claims, Berville did authorial property claim emphasize the personal connection between creator and work. Our emphasize the personal connection between creator and work. Our e the pers nnection between creator an es, a part of our substance.” Au works “are a part of ourselves, a part of our substance.” Authors had e a part o works “are a part of ourselves, a part of our substance.” Authors had to be able to change and perfect them. But to avoid granting heirs to be able to change and perfect them. But to avoid granting heirs e to chang o avoid gran too many rights, aesthetic control should be given only to living y rights, a too many rights, aesthetic control should be given only to living iven only ehalf of c with perha a authors, with perhaps a few additional years on behalf of close fam- - 52 o the work e hts derivin ily. l Rights deriving from the intimate bond to the work, Berville i d, could s nd the auth concluded, could scarcely be extended beyond the author. A few concluded, could scarcely be extended beyond the author. A few ier, a com on the 1837 Prussian law had years earlier, a commentary on the 1837 Prussian law had welcomed years earlier, a commentary on the 1837 Prussian law had welcomed year t families’ control of authors’ works. Granting thirty- year terms meant thirt control of y- g works. Grantin f ant lose relations could protect that widows, children, and close relations could protect authors’ liter- that widows, children, and close relations could protect authors’ liter - r r ws, childr 53 ut this a But this at was evidently a good ary and civil honor, and that was evidently a good thing. ivil honor assumption—that family would invariably do the right thing—was assumption—that family would invariably do the right thing—was on—that g questio n now being questioned in the French Chamber. l, French deputies g discussi During discussion of the 1841 Lamartine bill, French deputies me to real slowly came to realize that property and the personal might be an slowly came to realize that property and the personal might be anti- thetical. As the deputy Armand Jacques Lherbette pointed out, if an As the dep thetical. As the deputy Armand Jacques Lherbette pointed out, author was indebted, creditors could seize an existing ed as indebte author was indebted, creditors could seize an existing edition and ew ones. C publish new ones. Creditors might refuse permission to alter a work, publish new ones. Creditors might refuse permission fearing the author would devalue their assets. Embarrassing but best- fe e author w selling juvenilia might come back to haunt an author. “The usurers s venilia m 54 The heirs’ right, another will become editors,” as one deputy put it. w me editor pointed out, was a mixed property claim, belonging both to author p out, was a and society. Society’s justified claims meant that the heirs, while le- ty. Society a gitimate owners, could not have absolute rights—to suppress the g owners, c work, for example. w example. tine’s hop Lamartine’s hope of expanding the scope of literary property met winds in t s stiff headwinds in the French Chamber. Fearing that creditors might THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

110 100 Chapter 3 gain control of a work even during the author’s life, deputies in- gain control of a work even during the author structed his commission to rein in the work’s full alienab structed his commission to rein in the work’s full alienability. Lamar- tine conceded the point, invoking what he called, in one of t tine conceded the point, invoking what he called, in one of the first uses of this precise terminology, “considérations morales.” The aut uses of this precise terminology, “considérations morales.” The author s ) over his work and ) over his work and ll tutelle should have a continued right of control ( a right to repent of thoughtlessly published work. The commission a right to repent of thoughtlessly published work. The commission proposed limiting the full alienability of literary property by making proposed limiting the full alienability of literary property by making e to fall into the hand chable, th it unattachable, thus unable to fall into the hands of creditors. it unattachable, thus unable to fall into the hands of creditors. ome dep nment mained unhappy to see th Still, some deputies remained unhappy to see the government backtrack on making literary property fully alienable. The minister k on mak backtrack on making literary property fully alienable. The minister ary property fully alienable. tion respo of education responded by pivoting the argument. Until now, the y pivoting the argument. Unt of education responded by pivoting the argument. Until now, the claim that works were an especially personal form of property had claim that works were an especially personal form of property had at works w form of pro em. But no been advanced to allow authors to alienate them. But now he de- vanced to been advanced to allow authors to alienate them. But now he de - r scribed the author’s exercise of will in creating his work as so per- his work r he author scribed the author’s exercise of will in creating his work as so per - sonal an act that it became inalienable. Though a creditor might act that gh a credit sonal an act that it became inalienable. Though a creditor might at remain e could not seize what remained of an existing edition, he could not substitute seize what remained of an existing edition, he could not substitute 55 for the author to bring out a new one. uthor to b In other words, In other words, the author or f artistic co en when the work’s econom retained artistic control even when the work’s economic value had retained artistic control even when the work’s economic value had p o his credi passed to his creditors. In one respect, however, the Chamber’s incipient concept of moral respect, h f moral the Chamber’s incipien - rights in 1841 differed from later formulations. Unattachability—pre- rights in 1841 differed from later formulations. Unattachability—pre 1841 differ others fro venting others from bringing out new editions—was a personal venting others from bringing out new editions—was a personal us, Lamar right. Thus, Lamartine reasoned, it adhered only to the author and right. Thus, Lamartine reasoned, it adhered only to the author and neither to heirs nor to creditors. But what about the widow? A Na- o heirs no neither to heirs nor to creditors. But what about the widow? A N decree o poleonic decree of 1810 had given widows full rights over poleonic decree of 1810 had given widows full rights over their spouses’ literary property for their lifetimes, after which it passed to literary pr spouses’ literary property for their lifetimes, after which it the children for twenty years. The decree spoke of droit de pro- the children for twenty years. The decree spoke of the dren for tw 56 ublishing priété p —publishing and selling—and not artistic control. In the same spirit they had denied creditors control over works, same spi t ties in 184 the deputies in 1841 now also insisted that unpublished manuscripts were not part of community property, thereby not falling into the w part of c an autho hands of an author’s widow and heirs at death. Imagine a politically h charged memoir. Might they not suppress or bowdlerize it? The au- memoir. M c 57 thor should be able to will it to someone else. uld be abl t By exempting literary from no property from normal Napoleonic inheritance rules, the deputies p attempted in effect to hedge its full alienability. The bill was changed d in effect a to specify that only literary property’s monetary outcome became y that on t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

111 The Ways Part 101 community property. But the bill s final wording w community property. But the bill’s final wording was so unclear that no one knew whether it dealt with the economic fruits a no one knew whether it dealt with the economic fruits alone or also 5 58 8 the author’s right of control. . the author’s right of control Matters grew trickier with posthumous works, not yet published Matters grew trickier with posthumous works, not yet publish at death. Under Napoleonic law inheritance was strictly governed by at death. Under Napoleonic law inheritance was strictly governed by a prescribed order of heirs. The spouse, her family, and the children a prescribed order of heirs. The spouse, her family, and the children all had claims that restricted the deceased’s right to will his estate all had claims that restricted the deceased’s right to will his estate e 1841 Chamber probe freely. A fierce debate in the 1841 Chamber probed the distinctions freely. A fierce debate in the 1841 Chamber probed the distinctions fierce deb ventional and literary pro being drawn between conventional and literary property. Lamar awn betw being drawn between conventional and literary property. Lamar- - r r tine’s commission sought to treat unpublished works as a normal mmission to treat unpublished works tine’s commission sought to treat unpublished works as a normal part of the estate. To exempt some of an author’s estate from the part of the estate. To exempt some of an author’s estate from the he estate. pt some of an author’s estate - es of inher one child w usual rules of inheritance might unfairly favor one child with a (pos usual rules of inheritance might unfairly favor one child with a (pos- d her dow uable asse sibly) valuable asset. Having sacrificed herself and her dowry for the sibly) valuable asset. Having sacrificed herself and her dowry for the husband’s work, his wife could find herself a pauper. Other deputies husband’s work, his wife could find herself a pauper. Other deputies per. Other s work, hi disagreed. An unpublished work was an intimate and personal form disagreed. An unpublished work was an intimate and personal form and perso . An unpu o nother agre n of property, one argued. It was rty, one a the author, another agreed. “Mon or m même.” The liv bien, c est moi t, ce n’est manuscrit, ce n’est pas mon bien, c’est moi- même.” The living author could refuse to publish and could even destroy his work. In death he could even destroy his work. use to pub could refuse to publish and could even destroy his work. In death he should be granted the right to dispose of it. An amendment was should be granted the right to dispose of it. An amendment was e granted ht to dispose of it. An am added, giving the author free rein over his unpublished works. The ee rein over his unpubl added, giving the author free rein over his unpublished works. The ving the a author, deputies agreed, should command his work like an absolute author, deputies agreed, should command his work like an absolute eputies ag 59 monarch, not merely a constitutional one. m not mere After endless debate, Lamartine’s bill failed to pass. The anarchist pass. The anarchist ndless deb Pierre- Joseph Proudhon celebrated its demise as the “abolition of lebrated its demise as the “abolition eph Prou P c property capitalistic property—property incomprehensible, contradictor capitalistic property—property incomprehensible, contradictory, im- 60 possible and absurd.” Major legislative reform had to wait for a cen- and absurd p or legislative reform had to wait it came e tury. But it came eventually, and capitalist property thrived in the tury. But it came eventually, and capitalist propert interim. Yet the Lamartine deliberations revealed the issues at stake Yet the La n i already here. a ere. The July Monarchy’s deputies came up against an impasse created ly Monarc by conflicts among their intuitions about creativity, their sentimen- cts among b tally familialist view of authorship, and the Napoleonic system of t ilialist vie ce. The pe inheritance. The personal tie between author and work was by now n i a venerable theme. But the author was not—Romantic individualism a le theme. ed—just th b be damned—just the creator by himself. To be fully owned, property demanded to be transmittable. Allowing authors to treat works like d to be tra d ttels, pass o other chattels, passing rights to heirs, had been a constantly pressed THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

112 102 Chapter 3 ambition among supporters of robust intellect ambition among supporters of robust intellectual property rights from the very beginning. Family ownership was almost inherent in from the very beginning. Family ownership was almost the concept of property. What was the point of owning without the the concept of property. What was the point of owning witho right to bequeath? As the 1841 deputies saw it, the moral entity of the right to bequeath? As the 1841 deputies saw it, the moral entity of author was the creator, spouse, and children. The spouse was por- author was the creator, spouse, and children. The spouse was por trayed as a helpmate and the children as having natural claims. But trayed as a helpmate and the children as having natural claims. But there lay the rub. What the author created bore a personal stamp. Yet, there lay the rub. What the author created bore a personal stamp. Yet, when his widow too died, the Napoleonic system gave half the mar- r widow to - the Napoleonic system r when his widow too died, the Napoleonic system gave half the mar ple’s joint s to her legally designated ried couple’s joint holdings to her legally designated heirs: siblings, ried couple’s joint holdings to her legally designated heirs: siblings, ormer marriage, and so forth children f parents, children from a former marriage, and so forth. The author parents, children from a former marriage, and so forth. The author - was thus legally obligated to impart much of his work to distant rela- legally ob o impart much of his work to d was thus legally obligated to impart much of his work to distant rela very existen tives by marriage—sometimes people whose very existence he did tives by marriage—sometimes people whose very existence he did marriage— ect. n not suspect. d r case illus nter Pierre A later case illustrates the issue. In 1895 the painter Pierre Bonnard began living with his model. She had claimed to be an Italian aristo- - began living with his model. She had claimed to be an Italian aristo ving with h be an Ital mally marri crat, Marthe de Méligny. Only when they formally married in 1925 crat, Marthe de Méligny. Only when they formally married in 1925 rthe de M did he learn that she was French and her name was Maria Boursin. r name was Mar arn that s did he learn that she was French and her name was Maria Boursin. 942, he should have advertise When he was widowed in 1942, he should have advertised to identify was wido When he was widowed in 1942, he should have advertised to identify heirs among her family—relatives he had never known. But he had heirs among her family—relatives he had never known. But he had ong her fa elatives he had never know been horrified to discover that, when Matisse’s wife had died, the that, when Matisse’s w rrified to been horrified to discover that, when Matisse’s wife had died, the painter had lost his canvases to her heirs. Aghast at surrendering half had lost hi painter had lost his canvases to her heirs. Aghast at surrendering half his works to total strangers, Bonnard now forged his wife’s will, leav- - his works to total strangers, Bonnard now forged his wife’s will, leav s to total s her sole s ing him her sole successor. When he died five years later in 1947, a ing him her sole successor. When he died five years later in 1947, a genealogist tracked down her heirs, who then claimed their part of ist tracked genealogist tracked down her heirs, who then claimed their part 6 61 1 his estate. h e. Divorce raised similar problems. Allowing the estranged spouse’s ce raised s roblems. Allowing the estrange olated the claims violated the work’s personal nature. Not all claims violated the work’s personal nature. Not allowing them un- d dermined the (possibly wronged) spouse’s role as helpmate. “On the d the (pos one hand, iniquity; on the other, blatant despoilment,” as one deputy o d, iniquity 62 put it during the 1841 debates. The solution then proposed called p uring the 1 Solomon’s bluff, neatly bisecting the baby. The economic rights re- S n’s bluff, n mained part of communal property, divided as the Civil Code dic- m part of co t tated. The moral rights were part of the author’s personal claims, to e moral r be disposed of as he saw fit. The logic of literary property’s personal b sed of as h ad been st n nature had been stood on its head. During the French Revolution, Lakanal’s argument, that literary g the Fren is proper property is property’s most personal form, had served to allow the p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

113 The Ways Part 103 author to alienate his works fully. Now, half a cen author to alienate his works fully. Now, half a century later, this very same personal connection bolstered the opposite claim, same personal connection bolstered the opposite claim, that works could never completely be turned over to others. During the Lamar- could never completely be turned over to others. During the L tine debate many deputies came to believe that the author should tine debate many deputies came to believe that the author shou retain artistic control even after selling his work, even after his death, retain artistic control even after selling his work, even after his death, and even in the face of creditors’ and heirs’ legitimate claims. During and even in the face of creditors’ and heirs’ legitimate claims. During the debate of 1841, the logic of literary property’s basis in natural the debate of 1841, the logic of literary property’s basis in natural rights and its personal nature had reversed. From the deputies’ wres rights and its personal nature had reversed. From the deputies’ wres- - d its perso re had reversed. From tling with the inherent contradictions of natural rights property had h the inher tradictions of natural right tling with the inherent contradictions of natural rights property had sprung the notion of moral rights. rights. he notion s In the Lamartine debate the deputies seem to have been largely ely Lamartin the deputies seem to have be of the Ge dvanced early ignorant of the German theorists who had advanced early ideas on ignorant of the German theorists who had advanced early ideas on a authors’ rights. Once or twice someone mentioned Kant or the Prus- ights. Onc - ed Kant or sian copyright law and English developments too. But on the whole . But on t right law sian copyright law and English developments too. But on the whole the discussion was hermetically sealed off from foreign influences. the discussion was hermetically sealed off from foreign influences. foreign in ssion was r, may have Romanticism, with its celebration of the author, may have lurked in Romanticism, with its celebration of the author, may have lurked in cism, with ground, bu was not a palpable influence the background, but it too was not a palpable influence on the de - the background, but it too was not a palpable influence on the de- bates among the Chamber’s members, many of them writers and bates among the Chamber’s members, many of them writers and ong the C ’s members, many of them literary figures. Apparently spontaneous objections arose from depu literary figures. Apparently spontaneous objections arose from depu- spontaneous objections aro gures. App - ties as they realized the implications of Lamartine’s proposals. Their ties as they realized the implications of Lamartine’s proposals. Their lications of Lamartine’ y realized first and most important insight was that personal property was ei- most imp first and most important insight was that personal property was ei - ther personal or it was property. It could not fully be both. From ther personal or it was property. It could not fully be both. From onal or it there, moral rights eventually emerged in the parliamentary sausage there, moral rights eventually emerged in the parliamentary sausage ral rights ut of delib factory out of deliberations over the unanticipated consequences factory out of deliberations over the unanticipated consequences of death, divorce, bankruptcy, and inheritance in the Napoleoni death, divorce, bankruptcy, and inheritance in the Napoleonic sys- vorce, ban tem. From lowly origins great things rise. m lowly or tem. From lowly origins great things rise. FROM PARLIAMENT TO CASE LAW F ARLIAMEN T or’s contr The creator’s control of his work after alienation was broached, but not legislatively incarnated, in France during the 1840s. But it began atively inc n to emerge in case law. In 1864 a journalist, Delprat, sued his editor for e in case la t having cut and changed an article. The Seine court instructed the ut and ch h publish a editor to publish a letter explaining the issue. The Paris court over- e is, finding turned this, finding that the editorial changes had been minor, nei- t ging the a t ther changing the article’s meaning nor hurting the author’s reputa- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

114 104 Chapter 3 63 This judgment, in turn, was rejected in 18 tion. This judgment, in turn, was rejected in 1867 on appeal to the tion. Cour de Cassation, France’s Supreme Court. In the note Cour de Cassation, France’s Supreme Court. In the note that usually accompanies French cases, the jurist Henri Thiercelin reject accompanies French cases, the jurist Henri Thiercelin rejected the idea of literary property altogether, retreating instead to the idea of idea of literary property altogether, retreating instead to the idea privileges. Literary works were protected, not as property but by a privileges. Literary works were protected, not as property but by a privilege granted by society. Though seemingly a step backwards, privilege granted by society. Though seemingly a step backwards, Thiercelin’s conceptual framing opened up issues that would soon Thiercelin’s conceptual framing opened up issues that would soon be resolved altogether differently. rently. b ed altoget been he Paris court that Delpra Thiercelin agreed with the Paris court that Delprat had not been celin agree harmed, not even in reputation. Using the property concept, there ation. Using the property co harmed, not even in reputation. Using the property concept, there not even 64 64 without damage. But imagine, he con- - could be no compensation without damage. But imagi on c no comp hat autho tinued, that authors’ rights were not property but a privilege to “en- but a privil - tinued, that authors’ rights were not property but a privilege to “en sure respect for his thoughts and thus his works.” Then the author ect for hi sure respect for his thoughts and thus his works.” Then the author ks.” Then t could claim compensation even if not damaged in the conventional could claim compensation even if not damaged in the conventional in the con aim comp sense. The author was the sole judge of his work, Thiercelin argued. he author k, Thierceli sense. The author was the sole judge of his work, Thiercelin argued. thought an Its mutilation affected not a thing but his thought and his self. Its mutilation affected not a thing but his thought and his self. lation affe work might inflict damages o Changes made to a literary work might inflict damages only the au- Changes made to a literary work might inflict damages only the au - made to thor could recognize. Thus, what was misleadingly termed intellec - s, what was misleadingly term thor could recognize. Thus, what was misleadingly termed intellec- ld recogn tual property was in fact not governed by the rules of conventional perty was ot governed by the rules o tual property was in fact not governed by the rules of conventional property. The author’s rights instead protected “the essentially elusive The auth ts instead protected “the property. The author’s rights instead protected “the essentially elusive and unattachable [ ttachable insaisissable ] thought of the author.” Thiercelin a Thiercelin haic term used archaic terminology when he called this a “privilege.” But he used archaic terminology when he called this a “privilege.” But he aimed to found the author’s rights not on property and its pesky o found th aimed to found the author’s rights not on property and its pesky requirement of measurable damage (even if only to the social good requirement of measurable damage (even if only to the social go ment of me of the author’s reputation) but instead on the author’s purely subjec- of the author’s reputation) but instead on the author’s purely s thor’s rep tive evaluation of harm. t uation of h The court did not entirely follow Thiercelin here. Violated prop- ely follow Thiercelin her ourt did n erty rights were the basis for its decision that Delprat was entitled to e ts were th a a published declaration that his article had been changed without hed declar permission. Nonetheless, it did agree that the author was the “abso- p on. Nonet lute master of his work,” a nod toward Thiercelin’s view that the au- ter of his w l thor himself evaluated how he was harmed, regardless of his reputa- t self evalu 65 Personality was not yet the basis of tion or any damage to property. ny damag t the author’s rights. But the limits of the property concept as applied or’s rights t t y work we to literary work were approaching. In the early 1870s jurisprudence began to chisel out moral rights early 1870 e surroun from the surrounding marble of the property concept. As in 1841 f THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

115 The Ways Part 105 seemingly tangential claims this time of credito seemingly tangential claims—this time of creditors—prompted the conceptual heavy lifting. Could creditors republish works conceptual heavy lifting. Could creditors republish works or publish manuscripts for the first time? The issue had been left unresolved by manuscripts for the first time? The issue had been left unresolv the law of 14 July 1866, which otherwise extended and specified the the law of 14 July 1866, which otherwise extended and specified t 66 orillot, a lawyer at the To answer, André Morillot, a lawyer at the rights of authors’ heirs. r Paris Court of Appeals and an expert on German law, drew on the Paris Court of Appeals and an expert on German law, drew on the Napoleonic Code’s implicit distinction between those claims a credi- Napoleonic Code’s implicit distinction between those claims a credi - e “exclusively attached tor could exercise and those “exclusively attached to the person” of exercise a tor could exercise and those “exclusively attached to the person” of 7 7 6 67 the debtor. or. and hts included disciplining t The latter rights included disciplining children and The l ng to their e, pursuing wives’ adultery i consenting to their marriage, pursuing wives’ adultery in court, and consenting to their marriage, pursuing wives’ adultery in court, and e corps” (then the practical eq demanding a “séparation de corps” (then the practical equivalent of demanding a “séparation de corps” (then the practical equivalent of ng a “sépa Among th divorce). Among these personal rights Morillot wanted to include lot wanted t divorce). Among these personal rights Morillot wanted to include the author’s right to publish or republish his work. Since he did not r’s right t rk. Since h the author’s right to publish or republish his work. Since he did not urther righ discuss further rights of artistic control, in effect he advocated only he advoca discuss further rights of artistic control, in effect he advocated only dy broadly he make an already broadly accepted claim. Nor did he make a strictly an already broadly accepted claim. Nor did he make a strictly personality- based argument. Rather, he worried that an author’s rep- - a p d p d that an aut ase b ty- decide w hen to would suffe or u utation would suffer if he were unable to decide when to publish or reprint. r reputation and personality Though closely related, reputation and personality were not the h closely t the same. Reputation was as much an aspect of property as of personal- uch an aspect of proper putation w - same. Reputation was as much an aspect of property as of personal onetary va ity. Its monetary value could be damaged or destroyed. The author ity. Its monetary value could be damaged or destroyed. The author had good reasons—fully comprehensible in the parlance of prop- - had good reasons—fully comprehensible in the parlance of prop d reasons— protect it. erty—to protect it. Morillot now moved away from harm to reputa erty—to protect it. Morillot now moved away from harm to reputa- - e triggerin tion as the triggering event and came close to asserting a personali tion as the triggering event and came close to asserting a personality basis for the author’s claim to control his work. Not just his reputa- the author basis for the author’s claim to control his work. Not just his re tion, but indeed his person’s inviolability, was breached were he indeed h tion, but indeed his person’s inviolability, was breached (re)publis forced to (re)publish ideas he had renounced. The fe forced to (re)publish ideas he had renounced. The fear of scandal—a preoccupation of French debates—resurfaced here. Having penned a p ation of F scabrous work in his reckless youth, the repenting author should be s work in h 68 able to ban his ill- fated juvenilia. a a n h is i ll- f Six years later, in 1878, having written a book on authors’ rights in rs later, in Germany, Morillot continued developing the moral rights con- , Morillot G 69 Preventing an author from controlling his work’s publica- eventing cept. c not violate t tion did not violate his property rights. Rather, it was moral damage a tack on h and an attack on his personality. Disclosure, attribution, and integ- rity: all these claims remained the author’s, even after death. These hese claim r new moral rights Morillot founded on a distinction between the al rights n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

116 106 Chapter 3 work as such (its conception in the author s min work as such (its conception in the author’s mind), which Morillot thought could never be alienated, and the work’s expres thought could never be alienated, and the work’s expression, which was the subject of conventional authors’ rights. Though nothing was the subject of conventional authors’ rights. Though n practical was to emerge in law for another three- quarters of a cen- practical was to emerge in law for another three- quarters of a c tury, Morillot here gave moral rights their most explicit formulation tury, Morillot here gave moral rights their most explicit formulation yet. Moral rights, in his vision, ascended to the position formerly yet. Moral rights, in his vision, ascended to the position formerly held by property. They, not property, now rested on the universal held by property. They, not property, now rested on the universal logic of natural rights. The usual authorial economic rights were, by natural rig usual authorial econo logic of natural rights. The usual authorial economic rights were, by contrast, the creation of mere statute. Moral rights in Morillot’s the creat contrast, the creation of mere statute. Moral rights in Morillot’s mere statute. Moral right were prob lienable (he was vague whe scheme were probably inalienable (he was vague whether such in- - scheme were probably inalienable (he was vague whether such in tensely personal rights could be assigned to others). In any event, uld be assigned to others). In tensely personal rights could be assigned to others). In any event, personal r ghts rema moral rights remained the author’s even after he had alienated his moral rights remained the author’s even after he had alienated his er he had ali 7 70 economic claims. e c claims. P O N GERMAN N PR E BETWEEN PROPERTY AND PERSONALITY IN GERMANY Early nineteenth- century German laws were not based as exclusively vely German laws were not based a c neteenth- E on elsewhere. A comment on property as was legislation elsewhere. A commentary on the 1810 on property as was legislation elsewhere. A commentary on the 1810 erty as was Badenese Civil Code emphasized that the work represented the au- h d asize that the work re e Civil Co B the au - 71 The 1794 Prussian Allgemeines Landrecht gave rsonality. recht gave t thor’s personality. rs only a “ publishers only a “publishing right,” not a full property right. But the publishers only a “publishing right,” not a full property right. But the 1837 Prussian law dealt only with economic rights. Kant and Fichte sian law d 1837 Prussian law dealt only with economic rights. Kant and Fichte ched out had sketched out a way of sidestepping the property question e had sketched out a way of sidestepping the property question en- tirely. Then, in the nineteenth century, German jurists formulated tirely. Then, in the nineteenth century, German jurists formu hen, in the theories that based authors’ claims on their personal connection to theories that based authors’ claims on their personal con that based the work. Nonetheless, some of the most interesting and influential the work. Nonetheless, some of the most interestin k. Nonethe o sought work also sought to marry aesthetic control to property rights. w German- speaking jurists thus developed flexible and differentiated G speaking v property— views of property—and how extending it beyond the tangible prom- ised authors extensive powers over their works. i hors exten In 1827 the jurist Wilhelm August Kramer formulated a view that 7 the juris g granted authors significant aesthetic control while still invoking authors s their property rights. Ownership of the original work conveyed the t perty righ r right to change and disseminate it. Purchasers of copies thus received hange and mited righ only a limited right that excluded any reprinting. The author had an o attribution right. Though he flirted with a repenting right, Kramer on right. T a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

117 The Ways Part 107 also conceded that, once alienated, authors cou also conceded that, once alienated, authors could not reclaim the right to disseminate “at the expense of the legal owner.” More inter- right to disseminate “at the expense of the legal owner.” M esting was Kramer’s corollary that, even after dissemination, the au- esting was Kramer’s corollary that, even after dissemination, t 72 72 Extended Extend thor’s work “continues to remain subject to his control.” thor’s work “continues to remain sub ect to his control.” j control was to become the core of moral rights. Kramer spelled it control was to become the core of moral rights. Kramer spelled it out, much as Fichte had: the author alienated not the property rights out, much as Fichte had: the author alienated not the property rights Gebrauchsrecht ). And yet, just as he toyed with a toyed with as such, but a use right ( pulled back from the le rights, inalienable rights, Kramer pulled back from the brink. His depen - inalienable rights, Kramer pulled back from the brink. His depen- dence on the property concept forced him to accept that even the the prop cept forced him to accept dence on the property concept forced him to accept that even the could be transferred to othe r right of changing the work could be transferred to others. hanging t ty remain al to Kramer’s view. Other Ge gal Property remained central to Kramer’s view. Other German legal theorists left it behind. In 1824 Leopold Joseph Neustetel based au left it beh - h Neustetel theorists left it behind. In 1824 Leopold Joseph Neustetel based au- 73 73 t ms instea . thors’ claims instead on the Roman concept of . njuria s injuria In Injuria was a portmanteau concept covering a wide variety of harm to others, nteau con of harm t a portmanteau concept covering a wide variety of harm to others, 74 - Unau- ing, rapin nd slander f from hitting, raping, and poisoning to insults and slander. thorized editions violated authors’ claims, not by reproducing the thorized editions violated authors’ claims, not by reproducing the editions v t by reprod work but by disseminating it. Since the author decided who would it. Since the author decided w by dissem work but by disseminating it. Since the author decided who would eprinting publish, reprinting violated his personality. This was the sort of bra- publish, reprinting violated his personality. This was the sort of bra - his personality. This was the zen impertinence against which injuria protected. In 1877 the jurist rtinence a which injuria protected. In zen impertinence against which injuria protected. In 1877 the jurist Carl Gareis went so far as to herald the death of property- based au- eis went so C ed au - o herald the death of p 75 thors’ rights altogether. hts altoget t he end of the But if down, property concepts were not yet out. At the end of the down, pro nineteenth century, Josef Kohler gave them their most sophisticated h century nineteenth century, Josef Kohler gave them their most sophisticated uasive for and persuasive formulation yet. Kohler was an exhaustingly pol and persuasive formulation yet. Kohler was an exhaustingly poly- mathic German professor of law with a limitless supply of illustrative erman pro mathic German professor of law with a limitless supply of illust examples at his fingertips and an irredeemably picaresque st at his fing examples at his fingertips and an irredeemably picaresque style. From the 1880s on, he valiantly attempted to generalize ide on, he vali the 1880s on, he valiantly attempted to generalize ideas of intellectual property ( geistiges Eigentum ) into a broader theory of intangible p eistiges g ( ). To break the stranglehold of Roman law Immaterialgüter goods ( g mmaterialg o over the German legal imagination, he loosened up the concept of German l deempha property, deemphasizing its material and perpetual nature. p Even conventional property, Kohler emphasized, remained under onvention control. Be society’s control. Because real property—whether forests, factories, or s m had an im mines—had an impact on others, society regulated the owner’s free 76 76 Inta Intangible property was equally overseen by society. d on. disposition. n - Beyond economic, alienable claims, personality rights were insepa conomic, B rable from the creator. Among the rights that we today recognize as m the crea r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

118 108 Chapter 3 moral, Kohler rejected the withdrawal of a wo moral, Kohler rejected the withdrawal of a work. But personality rights protected works against being changed (integrity), and noth- rights protected works against being changed (integrity ing should be disseminated under the author’s name that was ing should be disseminated under the author’s name that was not his (a variant on attribution). ( ) . a variant on attribution ty concept. Discussing Yet Kohler was still hobbled by the property concept. Discussing of personality w work- for- hire, he revealed how indistinct his concept of personality rights remained. When authors worked for hire, the economic rights rights remained. When authors worked for hire, the economic rights b d to the em ts? Con- But what about the pe belonged to the employer. But what about the personal rights? Con- ed the employer not only t y the auth tractually the author assigned the employer not only the future result tractually the author assigned the employer not only the future result work itself (and thus all righ ation but of his creation but also “the work itself (and thus all rights associated of his creation but also “the work itself (and thus all rights associated with it).” On the other hand, a painter working on commission ” On the and, a painter working on c with it).” On the other hand, a painter working on commission the “compo promised his client the “painting” but not the “composition,” as d his clie promised his client the “painting” but not the “composition,” as hrased the Kohler phrased the distinction he aimed at between the actual work ween the ac Kohler phrased the distinction he aimed at between the actual work and its artistic essence. Yet he made exceptions for portraits. The and its artistic essence. Yet he made exceptions for portraits. The artistic ess s for port ioner or th e portrait a commissioner or the person portrayed owned the portrait absolutely, commissioner or the person portrayed owned the portrait absolutely, including its authorship (Urheberrecht). That held true too for de t held true t g its auth including its authorship (Urheberrecht). That held true too for de- - pictions of private life—a painting of a woman’s boudoir, say, or her painting of a woman’s boudoir pictions of private life—a painting of a woman’s boudoir, say, or her of private 77 77 7 for- Kohler thus subordinated authorship to work- hus subordinated authorship for- h ’s study. husband’s study. hire as well as to the commissioner’s privacy right. Founding person ell as to th hire as well as to the commissioner’s privacy right. Founding person- - issioner’s privacy right. Fou ality rights on property made such slippage hard to avoid. Kohler’s ality rights on property made such slippage hard to avoid. Kohler’s ade such slippage hard hts on pro nimble attempts to sustain a property- based account of authors’ f authors’ n attempts rights found few acolytes toward the end of the nineteenth century und few a rights found few acolytes toward the end of the nineteenth century as the rationale shifted increasingly to personality. as the rationale shifted increasingly to personality. tionale sh most elabo based ideas was f count of personality- - The most elaborated account of personality- based ideas was for mulated at the turn of the century by the German legal his mulated at the turn of the century by the German legal historian at the tu Gierke. T Otto von Gierke. To Gierke, authors’ rights were protected Otto von Gierke. To Gierke, authors’ rights were protected as part of 78 78 ere of pers Following Kant, he ro his “sphere of personality.” h Following Kant, he rooted such rights in the spiritual realm. Economic claims derived from the ideal piritual r i ones. The usual economic rights were limited in time, transferable, e usual ec o i inheritable, and otherwise fully alienable. More important for ble, and G Gierke were the author’s ideal rights. He did not formulate these in were the au absolute terms, as a pure emanation of the author’s personality. The a terms, as authorial p point of authorial control remained the venerable one of preserv- ing reputation and honor. But Gierke also added another aim— i tation an closer to the moral rights concept—of ensuring that the author c the mor eely attai could freely attain his scientific and artistic intentions. Implicit c - t u e attrib here were attribution (claim to reputation) and integrity (achieve h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

119 The Ways Part 109 ment of goal). More clearly aiming at integrity, G ment of goal). More clearly aiming at integrity, Gierke also reserved for the author the right to ensure that no changes were m for the author the right to ensure that no changes were made to his work and that he alone retained sway over his work’s inner sub- work and that he alone retained sway over his work’s inne 79 7 9 stance ( inne r ). B estand ). inneren Bestand stance ( en of the author’s claims As personality rights these ideal elements of the author’s claims could not be fully alienated. Exploitation rights could be assigned. could not be fully alienated. Exploitation rights could be assigned. But the work’s Substanz remained with the author. Yet Gierke was Gierke was B tory. He a contradictory. He also claimed that the author could, in fact, alienate contradictory. He also claimed that the author could, in fact, alienate ed that the author cou 0 80 Un- - Un . ntrol of the work’s inneren inneren Bestand hts, inclu all his rights, including control of the work’s a basic approach, Gierke firmly like others who shared his basic approach, Gierke firmly grasped the s who sha like others who shared his basic approach, Gierke firmly grasped the central tension between personality and property: property rights central tension between personality and property: property rights nsion bet ersonality and property: prop ms. Personali bsolute bu implied absolute but also wholly alienable claims. Personality claims, implied absolute but also wholly alienable claims. Personality claims, however, were inherently inalienable. The tie between creator and etween cre were inhe however, were inherently inalienable. The tie between creator and mortal, so work was unbreakable. But since the creator was mortal, so was the work was unbreakable. But since the creator was mortal, so was the unbreaka death his tie. After death his family or others might continue the author’s tie. After death his family or others might continue the author’s ntinue the wishes. But eventually the personal tie would dissolve. It should end, ut eventua issolve. It sh wishes. But eventually the personal tie would dissolve. It should end, 81 81 ought, as Gierke thought, as the economic rights expired. G omic rights expired. M AY BESTS MACAULAY BESTS TALFOURD IN BRITAIN U RD IN BRITAI N - D During the mid- nineteenth century the French and Germans formu- he mid- n mans formu n i a lated the first personality- based authorial rights in theory and case in theory and case l first perso gh not yet law, though not yet in statute. Meanwhile, the British and America law, though not yet in statute. Meanwhile, the British and Americans were conducting a very different debate over the government’s duty ducting a were conducting a very different debate over the government’s to ensure popular access to knowledge. The public domain had been popular a to ensure popular access to knowledge. The public domain a primary concern of the French revolutionary decrees and through- y concern a primary concern of the French revolutionary decre uly Monar o out the July Monarchy. But by the 1840s authors’ claims began to take ce on the precedence on the Continent. Not so in the Anglophone world. p In both Britain and America, supporters of natural rights prop- h Britain e d down th erty faced down those who believed that authors owed their claims only to society’s rulemaking. Britain debated whether copyright ociety’s r o e short, lo s should be short, long, or even perpetual. Whether exclusive autho- rial rights should be replaced with automatic royalty payments was r s should b ussed. Less also discussed. Less inte rested in copyright duration, the Americans a ed whethe questioned whether foreign authors should enjoy copyright at all. q writers a Domestic writers and their concerns—the focus of the British de- D THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

120 110 Chapter 3 were largely sacrificed to the public s app bates bates—were largely sacrificed to the public’s appetite for cheap edi- tions of foreign authors. British publishers and authors, u tions of foreign authors. British publishers and authors, understand- ably weary of US pirates, were keen on protection in what was ably weary of US pirates, were keen on protection in wh rapidly becoming their largest market. But authors’ demands for rapidly becoming their largest market. But authors’ demands increased rights—beginning to be fulfilled on the Continent—were increased rights—beginning to be fulfilled on the Continent—were largely rejected in the Anglosphere. l From 1837 to 1842, the British debated the designs of British judge itish judge - and MP Thomas Noon Talfourd to strengthen and lengthen copy lfourd to strengthen a Thomas N and MP Thomas Noon Talfourd to strengthen and lengthen copy- ften and well told of Talfo right. The story has been often and well told of Talfourd’s battle on e story ha right. The story has been often and well told of Talfourd’s battle on behalf of authors and the vigorous opposition that forced him to behalf of authors and the vigorous opposition that forced him to vigorous opposition that fo f authors compromise. In both Parliament and the press the debate assembled ament and the press the debate mise. In bo compromise. In both Parliament and the press the debate assembled unparalle a cast of unparalleled literary eminence, ranging from the historian ing from the a cast of unparalleled literary eminence, ranging from the historian Babingto poet Willia Thomas Babington Macaulay (against) to the poet William Word- - Thomas Babington Macaulay (against) to the poet William Word 82 82 for). ht with pe Was literary property a natural right with perpetual or r s sworth (for). s Wa to quick ac at least lengthy terms? Or had the public a claim to quick access once at least lengthy terms? Or had the public a claim to quick access once ngthy ter creators had been reasonably compensated? Fought out in parallel to creators had been reasonably compensated? Fought out in parallel to ught out in had been r the Corn Law debates and similar struggles over stamped paper d similar struggles over stam the Corn Law debates and similar struggles over stamped paper n Law de documents), the copyright de was (taxes collected on official documents), the copyright debate too was llected on 83 83 de and monopolies. a In this instance as framed in terms of free trade and monopolies. n terms o f In t ce as w nentals. British f a issez - faire more than well, the British favored laissez- faire more than the Continentals. portrayed ing to im - Radicals portrayed authors as would- R be monopolists hoping to im- pose a “tax on readers for the purpose of giving a bounty to writers” ax on read pose a “tax on readers for the purpose of giving a bounty to writers” 84 (in Macaulay’s immortal phrase). pute over abolishing A parallel dispute over abolishing ulay’s imm patents was also part of this larger debate between free trade a was also p patents was also part of this larger debate between free trade and 85 Publishers specializing in cheap re p ble mono Publishers specializing in cheap reprints permissible monopolies. c domain of public domain works, like Thomas Tegg, argued that long copy- of public domain works, like Thomas Tegg, argued that l rights were akin to monopolies and should instea ere akin t rights were akin to monopolies and should instead be crafted like 86 Thirty thousand signatures patents, with an eye to public utility. with an e p 87 hered for were gathered for petitions opposing longer copyright terms. w rd sought Talfourd sought to extend the copyright term beyond the current ight years twenty- eight years or the author’s lifetime, whichever was longer. t He would have liked to give authors perpetual rights, but he ac- H d have li cepted life plus sixty as a compromise. Five years and eleven drafts fe plus six c of his bill later, in 1841, Macaulay’s brilliant oratorical skills in Parlia- l later, in 1 o ced Talfou ment forced Talfourd’s followers to settle for life plus seven, or forty- m s in total two years in total. Talfourd thought that lengthened terms would t hors great give authors greater powers to preserve “the purity of their works,” g THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

121 The Ways Part 111 preventing changes that would emasculate, or preventing changes that would “emasculate, or pervert, or pollute 88 88 His opponents saw long terms as a sop to authors at the His opponents saw long terms as a sop to auth ” m. the them.” audience’s ex audience’s expense. p ense. The newly lengthened copyright dropped a windfall on some The newly lengthened copyright dropped a windfall on some au- thors and their publishers. When the act came into effect on 1 July thors and their publishers. When the act came into effect on 1 July 1842, Walter Scott’s 1 days short of Waverly had been published six days short of twenty- eight years. Scott’s son, son- er, all own in- law, and his publisher, all own- - t w - he first in line when th ers of the copyright, were the first in line when the Stationers’ Com- copyrigh ers of the copyright, were the first in line when the Stationers’ Com ned its d t morning, registering it pany opened its doors that morning, registering it and much of pany opened its doors that morning, registering it and much of 89 89 But the Talfourd debate’s But the Talfo te’s S Scott’s prose for additional protection. protection. ose for ad r overall outcome was a compromise that spoke as much to the inter- - r promise that spoke as much to overall outcome was a compromise that spoke as much to the inter utcome wa 90 e nd length of Beyond length of term, the ests of the public as to those of authors. e e public as were prope debate’s core had been whether literary works were property based debate’s core had been whether literary works were property based core had b on natural rights or merely insofar as society recognized them as on natural rights or merely insofar as society recognized them as ecognized al rights o 91 s position. - fourd had such. Talfourd had argued a classic natural rights position. s Macau- lay pointed out that, even if property was founded on natural rights, ed out tha lay pointed out that, even if property was founded on natural rights, ded on natu its inheritance and succession could not be, given the variety of ap- on could not be, given the var tance and its inheritance and succession could not be, given the variety of ap - 92 92 proaches taken in other nations. i ons p taken in o . onopoly themes of the Tal bates e- trade a n e The free- trade and antimonopoly themes of the Talfourd debates then continued before the Copyright Commission in the late 1870s. Copyright Commission then continued before the Copyright Commission in the late 1870s. tinued bef e British - Again, the British concern with the consuming public and its dis Again, the British concern with the consuming public and its dis- ublishers w trust of publishers was without compare in Europe. Several commis- - trust of publishers was without compare in Europe. Several commis nd many sioners and many witnesses lamented the publishers’ hammerlock sioners and many witnesses lamented the publishers’ hammerlock high price and the high prices that the British reading public endured. Since and the high prices that the British reading public endured. Sin publishers typically first exhausted the market for expensive editions, publishers typically first exhausted the market for expensive edit s typically compulsory licensing was proposed to satisfy the public’s ory licensi compulsory licensing was proposed to satisfy the public’s need for d quickly cheap and quickly published books. Authors and p cheap and quickly published books. Authors and publishers would be paid royalties for all copies sold. But anyone could reprint works oyalties fo b nitial shor after an initial short period of exclusivity. The author of the proposal, a secretary of state for India, L Louis Mallet, the permanent under- allet, the doubted the need for copyright at all. America’s lack of copyright for d the need f foreign authors did not seriously harm British writers, he noted, and fo uthors did had the great merit of ensuring an affordable and abundant supply h reat meri The exis of books. The existing British system failed to satisfy the popular o c or literatu craving for literature. New books were a luxury, restricted to the Were pric w wealthy. Were prices brought within reach of the masses, demand 93 ushroom. would mushroom. w THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

122 112 Chapter 3 Others who testified before the commission we Others who testified before the commission were similarly radical. Charles Trevelyan, the colonial administrator and civil Charles Trevelyan, the colonial administrator and civil service re- former (and not coincidentally Macaulay’s brother former (and not coincidentally Macaulay’s brother- in- law and liter- - in- law an ary heir), railed against the “monstrous evil” of publishers milking ary heir), railed against the “monstrous evil” of publishers milk the market for luxury editions for years before issuing cheaper ones. the market for luxury editions for years before issuing cheaper ones f f He saw affordable books as the publishing pendant of universal suf He saw affordable books as the publishing pendant of universal suf- - frage and national education. The working classes deserved books frage and national education. The working classes deserved books p in the UK as Americ too. If books were as cheap in the UK as America, the character of ooks were too. If books were as cheap in the UK as America, the character of 94 d working t homas Thomas would dramatically imp the stolid working classes would dramatically improve. ager free trader, supplied con Farrer, a civil servant and eager free trader, supplied concrete figures civil serva Farrer, a civil servant and eager free trader, supplied concrete figures demonstrating that the market alone was no solution. British pub arket alone was no solution. B demonstrating that the market alone was no solution. British pub- - rating tha cheaply. Afte lishers refused to produce and price books cheaply. After all, they lishers refused to produce and price books cheaply. After all, they efused to made the same profit by selling fewer expensive ones. He shared the ones. He s made the same profit by selling fewer expensive ones. He shared the e same pro de Anglop worldwide Anglophone reading public’s desire that British publish - worldwide Anglophone reading public’s desire that British publish- hat British ers’ high monopoly prices not extend abroad. Meanwhile, at the cen- monopol - ers’ high monopoly prices not extend abroad. Meanwhile, at the cen eanwhile, a afford publ e empire, - ter of the empire, the British public could ill afford publishers’ do- ter of the empire, the British public could ill afford publishers’ do 95 95 markups. mestic markups. m In retrospect we see that by 1878, when the Copyright Commis- - mis t by 1878, when the Copyrig rospect w sion rejected radical reform, deciding instead to reaffirm copyright sion rejected radical reform, deciding instead to reaffirm copyright cted radic m, deciding instead to reaffi as based on exclusive authorial rights, Britain was poised to be drawn rial rights, Britain was p as based on exclusive authorial rights, Britain was poised to be drawn on exclusi maw of C into the maw of Continental developments. Scarcely a decade later, into the maw of Continental developments. Scarcely a decade later, in 1886, the Berne Union was born. Upon joining, Britain could then in 1886, the Berne Union was born. Upon joining, Britain could then he Berne U do little except prevaricate and foot drag to defend its inherited copy- do little except prevaricate and foot drag to defend its inherited copy except pre dition an right tradition and the public’s interest against the European a right tradition and the public’s interest against the European au- Saxon traditi Saxon tradition of thors’ rights maximalists. Defense of the Anglo- ghts maxi thors’ rights maximalists. Defense of the Anglo- ng the pub protecting the public domain and democratizing access protecting the public domain and democratizing access to knowl- edge passed to the Americans. sed to the edge passed to the Americans. THE SUNSHINE OF HEAVEN : COPYRIGHT AND POPULIST O T N SHINE DEMOCRACY IN THE UNITED STATES RACY IN T Even compared to the Talfourd debates in Britain, the American mpared to E t discussio copyright discussion in the nineteenth century was vehement. After c mid- century the US remained the only major nation (other than m tury the U China, and Russia, China, and the Ottoman Empire) still outside the spreading R ilateral ag web of bilateral agreements that mutually protected other nations’ w THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

123 The Ways Part 113 works. The United States deliberately stayed ou works. The United States deliberately stayed outside international copyright to benefit from its outlaw status. Keen to enc copyright to benefit from its outlaw status. Keen to encourage the former colonies’ economic development in the eighteenth and former colonies’ economic development in the eighteenth and nine- teenth centuries, the American authorities had taken a cavalier ap- teenth centuries, the American authorities had taken a cavalier a proach also to patent rights. Ambitions to diminish dependence on proach also to patent rights. Ambitions to diminish dependence on British imports, while producing American substitute goods instead, British imports, while producing American substitute goods instead, meant a flagrant disregard of British inventors’ rights. Patents were meant a flagrant disregard of British inventors’ rights. Patents were or exampl granted, for example, for merely introducing new techniques, regard- granted, for example, for merely introducing new techniques, regard rely introducing new t - em. The first federal patent less of who had invented them. The first federal patent statute in 1790 less of who had invented them. The first federal patent statute in 1790 o had inv y reversed seemingly reversed course to protect only original inventions. But in seemingly reversed course to protect only original inventions. But in o protect only original inven practice this was often ignored. And since foreigners could not hold red. And since foreigners coul his was oft practice this was often ignored. And since foreigners could not hold ts, foreign US patents, foreign inventions were in effect declared common prop- eclared comm US patents, foreign inventions were in effect declared common prop - 96 e n the new erty within the new republic’s borders. A similar disregard for property claims held for copyright too. In lar disrega n r copyrigh the 1790 C limiting the 1790 Copyright Act’s benefits to US citizens, Congress limiting the 1790 Copyright Act’s benefits to US citizens, Congress S citizens, consciously chose the advantages of counterfeiting and piracy for the ing and pira ly chose t consciously chose the advantages of counterfeiting and piracy for the fledgling nation. Reprinting foreign works was not only permitted g foreign works was not only fledgling nation. Reprinting foreign works was not only permitted nation. R 7 97 97 onstitutionally, America was Almost constitutionally, America was a copyright but encouraged. b ght uraged. A heap print, mass education, rogue. With the spread of cheap print, mass education, and universal rogue. With the spread of cheap print, mass education, and universal th the spr literacy, America developed the world’s largest reading audience. As literacy, America developed the world’s largest reading audience. As the world’s largest read America de American massive American demand met lavish British supply, a symbiosis massive American demand met lavish British supply, a symbiosis 98 “It seems to be their to be their emerged—“monopoly tempered by piracy.” e —“monop and- opinion,” complained Arthur Sullivan (the composer of Gilbert- complain opinion,” complained Arthur Sullivan (the composer of Gilbert- and- fame), “tha Sullivan fame), “that a free and independent American citizen ought Sullivan fame), “that a free and independent American citizen oug 99 99 robbed o Though not to be robbed of his right of robbing somebody else.” Th not to be robbed of his right of robbing somebody else.” American publishers sometimes offered royalties voluntarily, British American publishers sometimes offered royalties voluntari n publishe authors were told to be content with the knock- on effects for home on authors were told to be content with the knock- ere told t w sales of their New World popularity. American writers, in turn, strug- heir New W s g gled with the premium that copyright imposed on their writings, h the prem p the cost d driving up the cost of publishing domestic books compared to the free British imports that American publishers could choose from. h import f nited Stat The United States was not the only pirate nation. Belgium had lo long reprinted French books. In the eighteenth century the Austri- inted Fren a ans had blazed a shortcut to enlightenment by encouraging reprint- lazed a sh 100 n nineteenth century the But by the mid- ing of German works. erman wo i A Americans were the largest copyright offender. Moreover, they ns were t gussied up mercenary advantage in the vestments of high principle. p mercen g THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

124 114 Chapter 3 Senator Justin Morrill s 1873 report on copyrigh Senator Justin Morrill’s 1873 report on copyright simply dismissed claims to authors’ absolute property as incompatible with the Con- claims to authors’ absolute property as incompatible wi stitution. Its protection “for limited times” prohibited authors’ stitution. Its protection “for limited times” prohibited authors’ claims to perpetual property, a goal that remained remarkably persistent on to perpetual property, a goal that remained remarkably persistent the Continent. The founding fathers had rejected demands “so exten the Continent. The founding fathers had rejected demands “so exten- sive on the part of authors.” The Constitution’s concern was with the sive on the part of authors.” The Constitution’s concern was with the “interest of science” and to that “the rights and interests of authors “interest of science” and to that “the rights and interests of authors are subordinated.” Copyright could not promote science if it allowed ht could not promote s rdinated.” are subordinated.” Copyright could not promote science if it allowed 101 101 nsion Rarely had autho Rarely had authorial pretension c ossing.” claims “so partial and engrossing.” o partial a red. b ummarily been so summarily punctured. American piracy and the cheap- print revolution of the nineteenth can piracy cheap print revolution of the nth 102 102 - The delib- b century were fostered by conscious government policy. ent policy. c were foste ot, as obser brace of p erate embrace of piracy as national policy was not, as observers often erate embrace of piracy as national policy was not, as observers often ion’s imp imagined, a willful, barbaric neglect of civilization’s imperatives— d, a willfu imagined, a willful, barbaric neglect of civilization’s imperatives— which should have led to greater protection of the nation’s creative which should have led to greater protection of the nation’s creative the nation hould have Rather, pir classes. Rather, piracy was part of a purposeful attempt to jumpstart classes. Rather, piracy was part of a purposeful attempt to jumpstart l attempt to a new, more enlightened and democratic polity. Piracy was a useful a new, more enlightened and democratic polity. Piracy was a useful ore enligh nd democratic polity. Piracy w 103 103 arrow in the policy quiver. the policy a The absence of international copyright not only benefited pub- ional copyright not only b - pub bsence of r at least th rinting British books, bu - lishers, or at least those reprinting British books, but also helped edu lishers, or at least those reprinting British books, but also helped edu- erica’s new cate America’s new citizens. Just as Macaulay had attacked Talfourd’s cate America’s new citizens. Just as Macaulay had attacked Talfourd’s copyright lengthy copyright terms in 1841 as a tax on readers, now forty years lengthy copyright terms in 1841 as a tax on readers, now forty years diner Hub later Gardiner Hubbard, founder of Bell Telephone and an opponent later Gardiner Hubbard, founder of Bell Telephone and an opponent of intellectual property rights in all forms, called international cop ctual prop of intellectual property rights in all forms, called international copy- 4 1 0 104 American democracy required “the dif- American democracy required “th right “a tax on knowledge.” ax on kno r f knowledg fusion of knowledge and instruction over the whole mass.” fusion of knowledge and instruction over the whole mass.” The coun- t nts—“a mighty deluge of try’s ill- educated immigrants—“a mighty deluge of superstition and ducated im ignorance”—could vote and run for office. Low- cost books were the i e”—could 105 Ameri- best hope of educating and assimilating these newcomers. e of educa b can authors could not yet compete in quality; for now, the task was c ors could 106 to make knowledge as “free and universal as the sunshine of heaven.” knowledg t Universal national education, a major plank of domestic policy, was l national U founded on affordable and easily available literature. Ever more f on affor mechanized presses, improvements in paper manufacturing, and a zed presse m good- enough attitude toward the end result made for affordable ough attit g ers and b newspapers and books. Expensive editions for the libraries of the n rich reeked of Old World inequality. Since the vast American book ked of Old r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

125 The Ways Part 115 market was the outcome of a massive investmen market was the outcome of a massive investment in public school- ing, the British publishing strategy of small and expensive editions ing, the British publishing strategy of small and expensi 10 7 107 contradicted both ideology and policy. contradicted both ideology and policy. The US postal system too was drawn into the project of public The US postal system too was drawn into the project of pub enlightenment. Government subsidies promoted the vigorous circu enlightenment. Government subsidies promoted the vigorous circu- lation of information. Rates for newspapers were heavily discounted lation of information. Rates for newspapers were heavily discounted compared to letters, so that “the information, contained in any one compared to letters, so that “the information, contained in any one ates, might immediatel hin the U paper within the United States, might immediately spread from one paper within the United States, might immediately spread from one 108 108 of the co To encou e to the other.” hange extremity of the continent to the other.” To encourage exchange and borrowing among papers, editors could send copies gratis to owing am and borrowing among papers, editors could send copies gratis to pers, editors could send cop their colleagues. Scissors in hand, they cut and pasted content into their colleagues. Scissors in hand, they cut and pasted content into eagues. Sc hand, they cut and pasted co their own periodicals, which in turn became the sources for yet oth he sources fo their own periodicals, which in turn became the sources for yet oth- - n periodic 109 s post, their ept for be Except for being conducted on paper via post, their activities e ers. r resembled nothing so much as today’s blogs. d nothing During the early 1800s Jacksonian populist democrats encouraged g the early d mocrats en widespread access to knowledge. The British and Americans alike and Americ ad access widespread access to knowledge. The British and Americans alike pyright in placed copyright in the broader framework of monopoly and eco- placed copyright in the broader framework of monopoly and eco - oader framework of monopol nomic reform. In Britain free trade and short copyright terms lined nomic reform. In Britain free trade and short copyright terms lined ee trade and short copyright form. In B . But in A up neatly. But in America protectionism and free trade were posi- up neatly. But in America protectionism and free trade were posi - protectionism and free tra tions held in a more haphazard fashion. Henry Clay, the senator and d in a mor tions held in a more haphazard fashion. Henry Clay, the senator and zard fashion. Henry Cla representative from Kentucky, supported both the American System ative from representative from Kentucky, supported both the American System of protectionism for domestic industrial products and international tionism fo of protectionism for domestic industrial products and international (which w copyright (which would have extended copyright to foreign authors). copyright (which would have extended copyright to foreign authors). His opponents gleefully skewered him for slapping tariffs on British nents glee His opponents gleefully skewered him for slapping tariffs on Briti 110 110 O industrial goods, yet seeking to protect their literary imports. industrial goods, yet seeking to protect their literary imports. Other goods, ye protectionists, like Henry Carey, heir to the Philadelphia publishing nists, like protectionists, like Henry Carey, heir to the Philadelphia p house that did a brisk business in British reprints, tended to oppose house that did a brisk business in British reprints, te at did a br 111 international copyright. n onal copyr i American publishers helped defeat international copyright dur- can publi ing the nineteenth century and then worked to keep the United nineteenth i n t of the Be S States out of the Berne Union during the twentieth. But publishing 112 n Publishers who also printed and bound interests were not uniform. i were not u books mostly opposed copyright. Those not involved in production ostly oppo b 113 Houses specializing in British re- favored international copyright. f nternation prints naturally had no interest in protecting foreign writers. Those turally had p d mainly that issued mainly American works did. Reprinters made up only t uarter of about a quarter of all publishers. But they were vocal and insistent, a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

126 116 Chapter 3 114 punching above their weight among lawmake punching above their weight among lawmakers. So influential were they that, in 1873, a Senate report judged the majority of Ameri- were they that, in 1873, a Senate report judged the majorit 115 That can publishing interests to be against international copyright. can publishing interests to be against international copyright. the reprinters managed for so long to mold national policy to th the reprinters managed for so long to mold national policy to their will suggests that they spoke not just for their own profit but also fo will suggests that they spoke not just for their own profit but also for b broader aspects of cultural ideology. Slavery too intersected ambiguously with copyright. Polemicists Polemicists of interna in favor of international copyright drew a strained analogy between pyright drew a straine in favor of international copyright drew a strained analogy between slaves and unprotected foreign authors, both deprived of their natu - d unprote eign authors, both deprive slaves and unprotected foreign authors, both deprived of their natu- ral rights. “An English writer is treated by America,” a satirist in the ral rights. “An English writer is treated by America,” a satirist in the er is treated by America,” a s . “An Eng her English magazine Punch complained in 1847, “as America treats her omplained in 1847, “as Americ E magazine he benefit of he is turn negroes: he is turned into ready money for the benefit of the smart negroes: he is turned into ready money for the benefit of the smart d ls ho robs hi s of blacks, dealer who robs him. . . . America sells the bodies of blacks, and steals 116 ns of the w the brains of the whites.” t - i was danger ver, veined This was dangerous rhetorical territory, however, veined with logi- copyright ar cal pitfalls. Those in favor of international copyright argued that ls. Those cal pitfalls. Those in favor of international copyright argued that both were natural rights positions—the natural rights of slaves to positions—the natural rights o both were natural rights positions—the natural rights of slaves to re natural property in themselves, and thus to their freedom, and the natural property in themselves, and thus to their freedom, and the natural d thus to their freedom, and in thems right of authors to property in their works. Only barbaric nations right of authors to property in their works. Only barbaric nations authors to ty in their works. Only ba 117 117 7 refused to recognize them. o recogni r But there were other But there were other ways to approach pproach - lem. The the problem. The abolitionists argued that something hitherto re the problem. The abolitionists argued that something hitherto re- garded as a natural form of property was not just immoral but also s a natura garded as a natural form of property was not just immoral but also illegitimate. There could be no natural right to ownership of other ate. There illegitimate. There could be no natural right to ownership of other 118 118 f anal o e to be drawn, why not between autho I If analogies were to be drawn, why not between authors humans. h and slaveholders? The alternative vision was for liberation—of slaves and slaveholders? The alternative vision was for liberation—of holders? T and of literature. That was the argument made by Carey, the Phila- terature. T and of literature. That was the argument made by Carey, delphia reprint publisher. The aristocratic Southerner and the East delphia reprint publisher. The aristocratic Souther reprint pu blisher of C Coast publisher of American authors were united behind copyright nopoly pr a and monopoly prices. Midwesterners and enfranchised blacks, in 119 wanted c c contrast, wanted cheap books. nherent p The inherent political affinities were incarnated in legislation when the Confederacy made international copyright an issue. he Confed w Charles Dickens was an abolitionist and wrote of his feeling of the C Dickens w uncanny when encountering his first slave, serving him dinner at his when enc u 120 Yet, when senators from the slave states hotel in Baltimore in 1842. Baltimore h a him of the assured him of their support for international copyright, he warmed ntense dis u up. His intense dislike of the Northern publishers, who chiseled him THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

127 The Ways Part 117 out of his royalties, encouraged his eventual supp out of his royalties, encouraged his eventual support for the South- 121 121 One might have thought that the One might have thoug d urin g t h e Civi l Wa r ern cause . ern cause during the Civil War. Southern states had more pressing concerns in 1861 than cop Southern states had more pressing concerns in 1861 than copyright (just as one might have thought this about the French revolutionar- (just as one might have thought this about the French revolution ies in 1791). But the political implications of copyright were signifi- ies in 1791). But the political implications of copyright were signifi cant enough to justify such an investment by the rebel politicians. cant enough to justify such an investment by the rebel politicians. With few publishing interests the South stood to lose little to copy - With few publishing interests the South stood to lose little to copy- from the North, cultiv distinguis right. To distinguish itself from the North, cultivate an aristocratic right. To distinguish itself from the North, cultivate an aristocratic and nonmercantile national identity, and appeal to the British, the al identity, and appeal to t and nonmercantile national identity, and appeal to the British, the mercantile - - Confederacy passed an international copyright law, protecting for r r ernational copyright law, pro acy passed Confederacy passed an international copyright law, protecting for ments extended reciprocal pro ors whose eign authors whose governments extended reciprocal protection to eign authors whose governments extended reciprocal protection to Americans. Southern gentlemen, one Confederate journalist claimed, ate journalis Americans. Southern gentlemen, one Confederate journalist claimed, ns. Souther sh edition would rather pay quintuple the price for a British edition than buy ther pay q would rather pay quintuple the price for a British edition than buy 122 Yankee on a a pirated Yankee one. - Throughout the nineteenth century British authors and publish- ghout the uthors and their Ame ers (and their American allies) sought to persuade the US govern uade the U - ers (and their American allies) sought to persuade the US govern- ment to protect foreign works. Congress was petitioned over a hun- rks. Congress was petitioned o protect for ment to protect foreign works. Congress was petitioned over a hun - 123 123 s (from bo lso The d in the years up to 1875. ) The debate also dred times (from both sides) in the years up to 1875. spilled over into Canada and then—thanks to Macaulay’s 1835 re- ver into C - nd then—thanks to Maca spilled over into Canada and then—thanks to Macaulay’s 1835 re forms making English the language of higher education—into the aking Eng language of higher edu forms making English the language of higher education—into the 12 4 124 - N No natural language barriers insulated British au- Indian market. I ritish au arket. thors, and their works were siphoned off into the former colonies. By d their wor thors, and their works were siphoned off into the former colonies. By the late nineteenth century the American market—the world’s larg the late nineteenth century the American market—the world’s larg- ineteenth - est—was twice the British, with the disproportion further enhanced twice the est—was twice the British, with the disproportion further enhance 5 125 12 ca’s highe Already in 1820, when the United by America’s higher literacy rates. by America’s higher literacy rates. Already in 1820, when the U States had only half the British population, initial prin d only ha States had only half the British population, initial print runs of 126 n editions American editions were the same or longer than the British ones. American editions were the same or longer than th British and other European authors were to be found everywhere in B nd other E the States. Even in 1775 almost as many copies of Blackstone’s Com- . Even in t mentaries had been sold in America as England. Every major Ameri- had been m ssued its can city issued its own edition of Byron. Macaulay’s c History of En- , for sale even in small Colorado towns, had been bought ten or g gland sale even twenty times as often as in Britain by the 1890s. François Guizot’s w mes as oft t H o History of France could be had in every American state. Dickens was c f France 127 serialized on the back of railroad time tables. s on the ba Despite the buccaneering some American publishers paid some e the buc British authors through “trade courtesy,” an informal system of recog- thors thro B THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

128 118 Chapter 3 nizing rights. Charles Darwin was among them, and Herbert Spen- nizing rights. Charles Darwin was among them, 128 128 But generally Brit- But gen cer declared himself satisfied b his treatment. y cer declared himself satisfied by his treatment. ish writers did not realize the profits of full copyright protection. ish writers did not realize the profits of full copyright prot Both their property and reputations, British authors complained, Both their property and reputations, British authors complain were injured by cheap knock offs. Though read throughout America, were injured by cheap knock offs. Though read throughout America Walter Scott derived no gain from his fame. His renown did not help Walter Scott derived no gain from his fame. His renown did not help cushion the debts and travails of his later life. And American edi cushion the debts and travails of his later life. And American edi- - tions, British authors complained, were often rushed and full of mplained, were often r itish auth tions, British authors complained, were often rushed and full of 129 129 s. m misprints. The formidable American publishing industry was, however, not ormidable not an publishing industry was, to be trifled with. The United States issued three or four books to ith. w ed fl ited States issued three or fou to be trifled with. The United States issued three or four books to 130 lculated in 18 With th e every British one, Senator William Preston calculated in 1837. tish one, S ary trades two hund its ancillary trades, publishing sustained some two hundred thou- - its ancillary trades, publishing sustained some two hundred thou s. “Here ar mportant t sand jobs. “Here are interests too extensive and important to be over- r r - sand jobs. “Here are interests too extensive and important to be over the Senate looked,” the Senate Committee on Patents concluded in 1838. Provid uded in 183 looked,” the Senate Committee on Patents concluded in 1838. Provid- - ing copyright protection for foreign writers and lowering tariffs on ing copyright protection for foreign writers and lowering tariffs on nd lowering right prot hift book production from A imported books would shift book production from America to imported books would shift book production from America to d books w 131 1 E Europe. rey of can publi American publishers who focused on the reprint trade (Carey of ho focused on the reprint t phia and Philadelphia and Harper of New York were the biggest names) of New York were th Philadelphia and Harper of New York were the biggest names) 132 132 ll A All aligned themselves with the interests of the reading public. aligned themselves with the interests of the reading public. themselve ns could Americans could afford cheap editions of foreign works, Senator Americans could afford cheap editions of foreign works, Senator Buchanan argued in 1837. British authors’ hopes of copyright pro- Buchanan argued in 1837. British authors’ hopes of copyright pro n argued 133 In Boston Tennyson’s works cost l In Boston Tennyson’s works cost less tection threatened this. threatened t than half the London price. German immigrants in the Midwest f the Lon than half the London price. German immigrants in the Mi cheaper e enjoyed cheaper editions of Goethe and Schiller than Germans in enjoyed cheaper editions of Goethe and Schiller than G 134 Germany—or so Reichstag deputies lamented in the fatherland. Germany—or so Reichstag deputies lamented in t y—or so R B ere so in Books were so inexpensive, the publisher George Putnam noted, that they were often bought for a railroad journey, then thrown t y were oft 135 The countr a away. The country was flooded with the best of English literature, Mark Twain complained on behalf of American authors who had to M ain comp f face the competition, “at prices which make a package of water closet competitio 136 paper seem an ‘edition de luxe’ in comparison.” p em an ‘edi Brother Jonathan can perio and New World American periodicals like the c erialized cheaply serialized foreign novels. Special editions often printed nov- els in their entirety. eir entirety e New World ’s 1841 Christmas issue measured over 13 7 7 137 When these periodicals extended their reach to the W ur feet. s six by four feet. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

129 The Ways Part 119 Old World, British publishers feared the competition. A year’s sub- Old World, British publishers feared the compet 138 scription cost about the same as a novel in a London boo In scription cost about the same as a novel in a London bookstore. 1838 the Senate Patent Committee offered examples of how cheap US 1838 the Senate Patent Committee offered examples of how che books were compared to British editions. Half the price was, by f books were compared to British editions. Half the price was, by far, the most expensive. As a rule of thumb, American print runs were the most expensive. As a rule of thumb, American print runs were four times the size of the British, and each volume cost a quarter of four times the size of the British, and each volume cost a quarter of 139 High prices in the UK were to some extent me extent i t its British counterpart. . America’s sparse sett its many offset by its many libraries. America’s sparse settlement across vast offset by its many libraries. America’s sparse settlement across vast 4 0 140 1 distances, on the other hand, meant that books had to be bought. on the ot d, meant that books had to distances, on the other hand, meant that books had to be bought. ltiplicatio eap editions of useful boo “The multiplication of cheap editions of useful books, brought “The multiplication of cheap editions of useful books, brought ses,” the Senate Patent Comm within the reach of all classes,” the Senate Patent Committee noted within the reach of all classes,” the Senate Patent Committee noted e reach o in 1838, “serves to promote the general diffusion of knowledge and on of knowl erves to p in 1838, “serves to promote the general diffusion of knowledge and intelligence, on which depends so essentially the preservation and he preserva intelligence, on which depends so essentially the preservation and ce, on wh 141 s support of our free institutions.” f our free mental por villages wa r Sentimental portraits of snowed- in Vermont villages waiting for the stagecoach to deliver books did service as Americans explained Americans coach to d the stagecoach to deliver books did service as Americans explained on resisted international copy to the British why the nation resisted international copyright. Wal tish why to the British why the nation resisted international copyright. Wal- - ter Scott’s novels made their way from homestead to homestead, ter Scott’s novels made their way from homestead to homestead, s novels m eir way from homestead to ing for the absence of len their cheapness compensating for the absence of lending libraries. apness co their cheapness compensating for the absence of lending libraries. er wealthy With fewer wealthy book buyers than Britain, American publishers With fewer wealthy book buyers than Britain, American publishers uyers than Britain, Am 142 a e United mmediatel aimed immediately at the mass market. Ultimately, the United States focused on the reader, not the author. “The Americans were cused on t States focused on the reader, not the author. “The Americans were reported of their response in 1878 Edinburgh Review courteous,” the s,” the Edi c ir response in 1878 demands to British demands for protection, “but they had a fair answer, th to British demands for protection, “but they had a fair answer, that 1 143 43 Copyright for fo their first duty was to their own public.” their first duty was to their own public.” Copyright for foreign t duty wa he publis authors, the publisher Roger Sherman thundered in 1886 authors, the publisher Roger Sherman thundered in 1886, was “the clamor of two hundred authors against the interests of fifty- five mil- clamor of two hundred authors against the interests f two hun 144 1 44 lions of people.” eople.” i l Those who favored copyright protection for foreign authors ar- who favo g m commo gued from common decency. They included American authors, who hailed mainly from the Northeast and were organized in the Copy- h ainly from ociation, a right Association, and those publishers who issued original domestic r eorge Palm works. George Palmer Putnam and his son George Haven were em- w blematic: founders of a publishing dynasty and tireless spokesmen b founders fo for authors’ natural rights to property, for international copyright, rs’ natura 145 The for Ame a and later for American membership of the Berne Union. tates, they United States, they argued, was civilized enough for its legal system U THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

130 120 Chapter 3 to recognize foreign authors rights. Better than to recognize foreign authors’ rights. Better than a cheap book, said 146 the poet James Russell Lowell in 1886, “is a book honestly come by.” the poet James Russell Lowell in 1886, “is a book honestly American writers were outgunned by the mass of freely available American writers were outgunned by the mass of freely av British literature. To compete, they needed a level playing field. British literature. To compete, they needed a level playing fie “While other forms of industry are protected in this country by an “While other forms of industry are protected in this country by an almost prohibitory tariff,” Edward Eggleston, novelist and historian almost prohibitory tariff,” Edward Eggleston, novelist and historian - charged, “it marks the lowness and materialistic character of our civi charged, “it marks the lowness and materialistic character of our civi- lization that the highest kind of production is discouraged by being hat the hi nd of production is dis lization that the highest kind of production is discouraged by being 147 14 subjected to direct competition with stolen wares.” d to direct ition with stolen wares.” s - pub He had not read an American manuscript in two years, one pub- erican manuscript in two ye d not read mitted to rks lisher admitted to the Senate in 1886. Given royalty- te in 1886. Given royalty- l less Br less British works 148 148 of proven mettle, why take chances on an unknown local author? known local n mettle, w o colleague - ton Irvin Washington Irving struggled to help a young colleague get pub- Washington Irving struggled to help a young colleague get pub r r - lished. “The country is drugged from one end to the other with for The count the other lished. “The country is drugged from one end to the other with for- 9 149 14 t Amer American writ- t - t rature whi e eign literature which pays no tax,” he complained. ed. peted aga ers competed against “substantially all the European authors, in European a ers competed against “substantially all the European authors, in 150 editions sold at the price of stolen fruit.” By the century’s end, with By the century sold at the e ith t of the Be the onset of the Berne Union and reciprocal agreements among most on and reciprocal agreements the onset of the Berne Union and reciprocal agreements among most nations, the US stood alone and proponents’ arguments took on an nations, the US stood alone and proponents’ arguments took on an the US sto e and proponents’ argume insistent edge. If America did not extend copyright to foreign au- insistent edge. If America did not extend copyright to foreign au - edge. If A did not extend copyri thors, a House report warned, it would become “the literary Ishmael thors, a House report warned, it would become “the literary Ishmael House rep 151 sor of the bill Senator Jonathan Chace, sponsor of the bill of the civilized world.” o vilized wo that finally introduced international copyright in 1891, portrayed the ly introdu that finally introduced international copyright in 1891, portrayed the United States as the “Barbary coast of literature” and Americans United States as the “Barbary coast of literature” and Americans as tates as th 152 2 1 5 “buccaneers among books.” “buccaneers among books.” eers amon of remaining the only “corsa Besides the humiliation of remaining the only “corsairs on the es the hum great ocean of literature,” as Chace put it, proponent great ocean of literature,” as Chace put it, proponents of international an of liter copyright also argued that the nation was moving beyond the need c t also arg merely for cheap and easy access to European works. What about or cheap m America’s own culture? Faced with unbridled foreign competition, s own cu A 153 American authors needed help. A No longer a colony, America n authors should not depend on British culture. Without international copy- ot depend s muel Mor r right, Samuel Morse wrote in 1842, America’s national character was 154 British bilge of the worst still Britain’s and not truly independent. ain’s and n s taste was popular taste was washing over the country, Senator Chace com- p plained, while good domestic literature was discouraged by the ab- p while goo 155 The vulgar British fare flooding sence of international copyright. internatio s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

131 The Ways Part 121 across the Atlantic, reformers warned, fostered across the Atlantic, reformers warned, fostered bad instincts, ham- pered domestic creativity, and retarded local culture. America’s own pered domestic creativity, and retarded local culture. Ame literature, “in its diction, opinion, and illustrations, even in its treat- literature, “in its diction, opinion, and illustrations, even in its ment of scenes and manners” was more like that of a British province ment of scenes and manners” was more like that of a British provin than “a great Republic in the New World.” Popular American fiction than “a great Republic in the New World.” Popular American fiction was imitative, with more larks and nightingales than robins and was imitative, with more larks and nightingales than robins and 156 Bad British culture “sweeps the land, and puts at nd puts at m mockingbirds. nought all petty distinctions of district and neighborhood, and set - t nought all petty distinctions of district and neighborhood, and set- t ll petty di ns of district and neigh 157 o a dark, slimy, universal po n, at its leis t tles down, at its leisure, into a dark, slimy, universal pond.” d- At mid- century the opponents of international copyright still still ponents of international co century he upper ha ens toured America i en Dick held the upper hand. When Dickens toured America in 1842, he h - s otherwi porting what soured his otherwise ecstatic welcome by supporting what his audi- soured his otherwise ecstatic welcome by supporting what his audi e ences considered a selfish ploy by British authors to milk their Amer- - to milk th sidered a 158 ican popularity for profit. Dickens saw himself as “the greatest elf as “the ularity fo t c i alive” of o s l nal copyr loser . . . alive” of America’s lack of international copyright. His American fans thought their adulation so burnished his reputation n fans tho nished his r American fans thought their adulation so burnished his reputation that it compensated for his lack of royalties. Some argued that he was ack of royalties. Some argued t mpensated that it compensated for his lack of royalties. Some argued that he was so popular precisely because his writings were unprotected and use his writings were unpro so popular precisely because his writings were unprotected and ar precise t t - therefore cheap and widely read. Dickens himself could think of lit cheap and read. Dickens himself cou therefore cheap and widely read. Dickens himself could think of lit- e monies tle but the monies foregone. His second American tour in 1868 was e. His second American tle but the monies foregone. His second American tour in 1868 was therefore one of public readings, a moneymaker that sent him home therefore one of public readings, a moneymaker that sent him home one of pu 5 159 1 9 a wealthy man. a man. During the first half of the nineteenth century, reprint publishers g the first y, reprint publishers and the reading public alike ignored the plight of American author eading pu and the reading public alike ignored the plight of American authors. But when American authors began holding their own against for- But when American authors began holding their own agains n America petition, t eign competition, the tide gradually turned. Harriet Beeche eign competition, the tide gradually turned. Harriet Beecher Stowe’s Uncle Tom’s Cabin (1852) was the most successful book of its era on ’s Cabin U as the most successful bo m both sides of the Atlantic. Huge pirated editions in Britain gave the s of the A b A ns a taste Americans a taste of their own medicine, highlighting the advan- nternation t tages of international agreements. John Camden Hotten notoriously pirated American authors he thought would sell in Britain, includ- merican a p 160 n ing Mark Twain and Walt Whitman. Twain an Unsurprisingly, Twain pub- i lished a petition for international copyright in 1886, signed by 144 l i petition fo 161 n men of le Bills for international copyright were pre- A American men of letters. 162 sented repeatedly during the latter decades of the century. s peatedly d Ameri- can authors, who sought international copyright for obvious reasons, ors, who so c and the book manufacturing trades, which feared international com- ook manu a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

132 122 Chapter 3 petition, eventually agreed on a horse trade. Than petition, eventually agreed on a horse trade. Thanks to a manufactur- ing clause requiring that protected foreign works be prod ing clause requiring that protected foreign works be produced in the United States, copyright was finally extended to foreign auth United States, copyright was finally extended to foreign authors in 163 163 18 1891. 1 . By now the Berne Union, founded in 1886 without the Ameri- By now the Berne Union, founded in 1886 without the Am 9 increasing focus on authors was beginning to have was beginning to have c cans, with its ever- an influence too. Even in the US the balance of power was shifting an influence too. Even in the US the balance of power was shifting from the public to authors and their rights or—more precisely—to from the public to authors and their rights or—more precisely—to publishers and their profits. And in the twentieth century, as the rs and th ts. And in the twenti publishers and their profits. And in the twentieth century, as the United States turned from an eager importer of European content to tates turn an eager importer of Europ United States turned from an eager importer of European content to the world’s largest exporter, it shifted from copyright rogue to strict d’s largest r, it shifted from copyright ro the world’s largest exporter, it shifted from copyright rogue to strict enforcer. But that story is to come. e o come But that s FAINT ECHOES IN EUROPE? CHOES IN Until the United States introduced international copyright in 1891, Until the United States introduced international copyright in 1891, onal copyrig e United S European literati were aghast at the Americans’ trampling of au- n literati European literati were aghast at the Americans’ trampling of au hast at the Americans’ tramp - 164 16 4 And yet, Europe too had debates between authors and ope too had debates between d t hts. and thors’ rights. An ng public the reading public, though not as vigorously as in the Anglophone the reading public, though not as vigorously as in the Anglophone h not as vigorously as in th rists and reformers too world. In France a few jurists and reformers took up the public’s world. In France a few jurists and reformers took up the public’s n France a Augustin- cause: Augustin- Charles Renouard, Edouard Calmels, Louis ls, Louis c 165 W narchist who Wolowski, and Léonce de Lavergne. ki, and Léo Proudhon, the anarchist who famously declared all property theft, saw no reason to change his y declared famously declared all property theft, saw no reason to change his mind when it came to its intellectual variant. Lamartine took hen it cam mind when it came to its intellectual variant. Lamartine took his aphorism as a provocation to highlight the urgency of giving m as a prov aphorism as a provocation to highlight the urgency of giving intel- roperty a f lectual property a foundation in law. Not only was property lectual property a foundation in law. Not only was property property, 166 66 1 Proudhon attacked Lamar- but literary property was property too. ary proper but literary property was property too. Proudhon tine and his proposals to strengthen literary property rights. He dis- t his propo agreed with their fundamental premise: that authors created some- with their a t e novo w thing de novo which they therefore owned. Authors were like l laborers or craftsmen, he thought, who joined their skill and labor or craftsm terials pro w with materials provided by nature and society. Ultimately, they did not create their ideas. They received them. They did not fashion the e their id n - truth but discovered it. They did not bring forth beauty but recog t discover t nized it. Society and creators jointly produced works. But all the re- n Society an ent to the w wards went to the individual, none to society. Perpetual rights would 167 ish the pu i impoverish the public domain. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

133 The Ways Part 123 In Germany, too, a few voices were raised for t In Germany, too, a few voices were raised for the public. The so- cialist Eugen Dühring was influenced by the American publisher cialist Eugen Dühring was influenced by the American Carey to argue against overly extensive protection for authors. Carey to argue against overly extensive protection for authors. In the 1860s Albert Schäffle applied economic logic for perhaps the first 1860s Albert Schäffle applied economic logic for perhaps the fi time to authors’ rights, concluding that terms should be shortened time to authors’ rights, concluding that terms should be shortened and entirely abolished when authors were rewarded by other means, and entirely abolished when authors were rewarded by other means, like salaries or prizes. Yet his colleague Constantin von Wrangell, like salaries or prizes. Yet his colleague Constantin von Wrangell, who also favored shortening terms, still felt obliged to tilt his argu- g terms, still felt oblig favored sh who also favored shortening terms, still felt obliged to tilt his argu - ments against what remained the reigning Continental paradigm, ned the reigning Continen ments against what remained the reigning Continental paradigm, ainst wha 8 6 168 p perpetual literary property. literary p In the Continent’s parliaments and decision- making fora, debate making fo ments and decision- ate Continen e and anem - was scarce and anemic. Only rarely did deputies or reformers formu was scarce and anemic. Only rarely did deputies or reformers formu- es or reforme argument late the arguments voiced insistently and often in the Anglo- ften in th late the arguments voiced insistently and often in the Anglo- n world. W American world. We have seen how the revolution’s concern with on’s conc American world. We have seen how the revolution’s concern with the public domain lasted in France down to the 1830s, then to be c domain e t e 1830s, th superseded by a new attention to the author’s personality rights. superseded by a new attention to the author’s personality rights. ed by a n r’s personali French reformers who opposed perpetual rights feared that heirs posed perpetual rights feared eformers w French reformers who opposed perpetual rights feared that heirs 16 9 169 By contrast UK By contrast, in the UK would withdraw works from circulation. . w m thdraw w circulation perpetual rights were never seriously considered, and in the US they seriously considered, and i rights we perpetual rights were never seriously considered, and in the US they d out by were ruled out by the Constitution itself. In the newly unified Ger- were ruled out by the Constitution itself. In the newly unified Ger - r r stitution itself. In the n many, during debates over the 1870 copyright law, the parliamentar- r many, during debates over the 1870 copyright law, the parliamentar r ring deba - ian Karl Braun, a National Liberal and free trader, argued against a Braun, a N ian Karl Braun, a National Liberal and free trader, argued against a thirty- year term in favor of a decade of protection with royalties paid t with royalties paid r term in thereafter—an abbreviated version of the compulsory licensing ad- —an abb thereafter—an abbreviated version of the compulsory licensing a opted for books in the UK in 1911, as we will see in the next cha books in opted for books in the UK in 1911, as we will see in the next chapter. This reform, Braun argued, would spread cheap editions to the com- This reform, Braun argued, would spread cheap editions to rm, Braun mon people. In the United States pirates already gave German- mon people. In the United States pirates already ple. In th Americans cheaper editions of Goethe and Schiller than at home. If A ns cheaper German authors and publishers were less protected, prices might fall G authors an 170 170 in Germany too. ny too. in a thunder Amid a thunderous chorus in support of perpetual literary prop- erty at the International Literary Congress in 1878, only a few voices e Internat e dared argue on behalf of short terms. Eugene Marie Dognée, an ar- ue on beh d cheologist, spoke for the poor and their right to accessible and cheap t, spoke fo c 171 1 7 Even Victor Hugo swam against the tide, insisting that if Even Vi editions. e h he had to choose between authors’ claims and those of the public, he choose be 172 Carlo del Balzo, republican politician de with th w would side with the public. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

134 124 Chapter 3 and Neapolitan man of letters, agreed and attack and Neapolitan man of letters, agreed and attacked perpetuity. Since literary property was created by the author’s personal lab literary property was created by the author’s personal labor, it could not be transmitted to heirs like a house. Once the author was dead, not be transmitted to heirs like a house. Once the author wa he argued, the work belonged to society, to humanity. His eloquent he argued, the work belonged to society, to humanity. His eloqu rhetoric was rebuffed by others, who repeatedly lamented the scan- rhetoric was rebuffed by others, who repeatedly lamented the scan dal that the children of famous authors languished in poverty. It was dal that the children of famous authors languished in poverty. It was as unjust to deprive authors of their property as it was to dispossess as unjust to deprive authors of their property as it was to dispossess faire econ- the Rothschilds. Gustave de Molinari, the radically laissez- - t e Molinari, the radicall schilds. G re econ 173 173 omist, agreed that the public domain was a communist concept. reed that ic domain was a commun omist, agreed that the public domain was a communist concept. tinental approximations to - Ta l ps the clo Perhaps the closest Continental approximations to Britain’s Tal- fourd debates of the 1830s and 1840s and the prolonged American fourd debates of the 1830s and 1840s and the prolonged American and 1840s and the prolonged bates of t fought in th discussions over international copyright were fought in the German discussions over international copyright were fought in the German ns over in Reichstag leading up to its 1901 and 1907 copyright laws. As we will Reichstag leading up to its 1901 and 1907 copyright laws. As we will ght laws. A g leading - e first lega see in chapter 4, these laws introduced some of the first legal embodi- see in chapter 4, these laws introduced some of the first legal embodi apter 4, th ments of moral rights. But as a counterweight the government also f moral rig ments of moral rights. But as a counterweight the government also he govern sought to emphasize public access. Among the issues debated was sought to emphasize public access. Among the issues debated was he issues de o emphas erformed and literary works an music cou whether music could be performed and literary works anthologized whether music could be performed and literary works anthologized without the author’s permi ir use exe under fair use exemptions without the author’s permission. Many under fair use exemptions without the author’s permission. Many who welcomed the new forms of authors’ rights also resisted a liberal ms of authors’ rights also re who welcomed the new forms of authors’ rights also resisted a liberal comed the thers argued for the pu ation of fa interpretation of fair use. Others argued for the public’s interests and interpretation of fair use. Others argued for the public’s interests and 174 174 the government’s ambition to promote popular education. the government’s ambition to promote popular education. rnment’s entury as Ger ar themes - r Similar themes continued early in the twentieth century as Ger- erm or to follow the bated whe m many debated whether to retain its thirty- year term or to follow the commend Berne recommendation of fifty. Richard Wagner’s heirs, struggling to Berne recommendation of fifty. Richard Wagner’s heirs, struggling maintain their monopoly on the performance of some of his works n their mo maintain their monopoly on the performance of some of his at Bayreuth, pushed for long terms. But their self- interest was too uth, pushe at Bayreuth, pushed for long terms. But their self- intere and othe obvious, and others who also supported fifty- year terms took pains obvious, and others who also supported fifty- year t 175 to distance themselves from the avaricious Wagner clan. nce them The t s eriod, the shorter period, the German government argued in 1910, fairly recon- ciled author and society by allowing free access to the best national c hor and s w fter a reaso works after a reasonable time. What if Goethe had entered the public only in 1 d domain only in 1883, as he would have under the proposed new 176 The autho r rules? The author’s demand for long terms, the Prussian Academy of Science concluded, was trivial compared to the public’s interest in o e conclud cheap and easy access. The writings of Theodor Fontane and the c nd easy ac Brahms s music of Brahms should not be denied the German poor for another m THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

135 The Ways Part 125 twenty years. The German people needed good aff twenty years. The German people needed good affordable books and 177 Hausmusik . Hausmusi rints, not to mention sheet music for p artistic artistic prints, not to mention sheet music for Surprisingly perhaps, some German publishers also oppose Surprisingly perhaps, some German publishers also opposed long terms. Imagine the “inexpressible narrowing of the spiritual and ar- terms. Imagine the “inexpressible narrowing of the spiritual and tistic life of broad groups of Germans during the 1860s and ‘70s” had tistic life of broad groups of Germans during the 1860s and ‘70s” had Beethoven and Goethe entered the public domain only a decade or Beethoven and Goethe entered the public domain only a decade or 178 When fifty- year terms were debated during the Berne the Berne two later. w t 908 Berlin 28 Rome conferences, Union’s 1908 Berlin and 1928 Rome conferences, the Germans sup - Union’s 1908 Berlin and 1928 Rome conferences, the Germans sup- irty years ported thirty years. The foreign minister Gustav Stresemann, a Na- eign minister Gustav Stre - ported thirty years. The foreign minister Gustav Stresemann, a Na tional Liberal and one of the Weimar Republic’s most capable politi tional Liberal and one of the Weimar Republic’s most capable politi- beral and o - e Weimar Republic’s most ca cians, was decisive. The longer term, he concluded, would undermine er term, he concluded, would u decisive. T cians, was decisive. The longer term, he concluded, would undermine 179 g to the Nazis general education and enlightenment. - It fell to the Nazis to imple- ducation a e Berne Co hors, extend - ment the Berne Convention’s solicitude for authors, extending pro- m tection to half a century postmortem. Then, after the Second World tection to half a century postmortem. Then, after the Second World half a ce the Secon authors, b many shift War, Germany shifted its concern even more to authors, becoming War, Germany shifted its concern even more to authors, becoming the international locomotive for still longer terms. Cutting back au- the international locomotive for still longer terms. Cutting back au national lo rms. Cutting - thors’ rights in favor of the public had begun to be seriously debated public had begun to be serious thors’ rights in favor of the public had begun to be seriously debated hts in favo any only d in Germany only during the last years of the Weimar Republic. As in Germany only during the last years of the Weimar Republic. As he last years of the Weimar R ee in cha we will see in chapter 5, this discussion was then enthusiastically his discussion was then en we will see in chapter 5, this discussion was then enthusiastically pursued during the early Nazi regime. That association, however Nazi regime. That asso pursued during the early Nazi regime. That association, however during th fleeting, in turn made support for the public an untenable argument fleeting, in turn made support for the public an untenable argument n turn ma n ny for the i in Germany for the rest of the twentieth century. Thus, on the European continent, the public’s advantage was most Thus, on the European continent, the public’s advantage was the Europ insistently advocated by an anarchist, Proudhon, and then later by insistently advocated by an anarchist, Proudhon, and then y advocate the Nazis. In Britain the same attitude was espoused by moderate . In Brita the Nazis. In Britain the same attitude was espous and respected reformers like the historian Macaulay and his Whig a ected refo supporters. In the United States a consensus of politi- bien pensant s rs. In the cians, reformers, and businessmen rejected any form of copyright c ormers, an for foreign authors. Even when international copyright was finally fo n authors accepted in the US in 1891, its proponents were careful to insist that in the US a they would keep the “American system, which is that of cheap litera- t ld keep th 180 This trans- Atlantic and trans- channel divide, ture for the people.” he people t t already w sharp as it already was, would become even more stark in the twen- s ury as the t tieth century as the Europeans embraced moral rights. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

136 4 4 Continental Drift C MOVES FR EUROPE MOVES FROM PROPERTY TO PERSONALITY OPERTY TO PERSONALITY TURY U AT THE TURN OF THE CENTURY A T RN OF The stakes rose in the nineteenth century as authors and their assign- es rose in t ors and th - The stakes rose in the nineteenth century as authors and their assign ever more ees were given increasingly extensive rights to ever more different given inc ees were given increasingly extensive rights to ever more different kinds of works, as well as the derivations shaped by others out of aped by oth kinds of works, as well as the derivations shaped by others out of works, as - - their primary creations. Earlier, authors had controlled only verba mary crea arlier, authors had controlled their primary creations. Earlier, authors had controlled only verba s. Anything else—translation es of their - tim copies of their writings. Anything else—translations or abridge tim copies of their writings. Anything else—translations or abridge- ments, for example—did not infringe. As they gained power also ments, for example—did not infringe. As they gained power also or exampl not infringe. As they gain over derivative works, it was no longer just the authors’ expression of s no longer just the auth over derivative works, it was no longer just the authors’ expression of vative wor their ideas that was safeguarded. The work’s protected essence now as that wa their ideas that was safeguarded. The work’s protected essence now e defined had to be defined also across its incarnation in various media. Au- had to be defined also across its incarnation in various media. Au - thors thus gained rights over something beyond the expression of thors thus gained rights over something beyond the expression of us gained their ideas, something that approximated the ideas themselves. as, someth their ideas, something that approximated the ideas themselves. As intellectual property thus broadened and deepened, the public thus broadened and deepened, the p ellectual p of unprot domain of unprotected work shrank. To compensate the audience domain of unprotected work shrank. To compensate the s holders’ for rights holders’ growing sway, legislators reined for rights holders’ growing sway, legislators reined in some of what rwise give w was otherwise given them. “Fair use” defined a zone of legal free use of works that rights holders could not forbid. Compulsory licensing o that right developed to allow use of works—even without rights holders’ per- d d to allow m mission—so long as set royalties were paid. Since both techniques —so long limited authors’ property rights in favor of the audience’s access, un- l uthors’ pr gly they e surprisingly they enjoyed more success in Britain and America than s in Europe. e. i While authorial claims were thus being modestly curtailed, espe- authorial the Anglo cially in the Anglophone world, on the European continent newly c ed moral formulated moral rights were expanding them into new realms. In f THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

137 Continental Drift 127 France and Germany moral rights developed firs France and Germany moral rights developed first in jurisprudence and case law during the late nineteenth century. They extended au- and case law during the late nineteenth century. They ex thors’ aesthetic control over their works even after they had sold their thors’ aesthetic control over their works even after they had sold economic rights. The work could thus not be wholly alienated. In economic rights. The work could thus not be wholly alienated. the eighteenth century authors’ rights, based on natural rights to the eighteenth century authors’ rights, based on natural rights to property, had been viewed as fully alienable. That had been their at- - t t property, had been viewed as fully alienable. That had been their at traction for the publishers who thereby expected to own works fully traction for the publishers who thereby expected to own works fully and perpetually. Now in the nineteenth century, authors’ rights were etually. No and perpetually. Now in the nineteenth century, authors’ rights were e nineteenth century, a based instead, or additionally, on the work’s status as an emanation tead, or ad ly, on the work’s status as based instead, or additionally, on the work’s status as an emanation of its creator’s personality. They thus became fundamentally inalien- tor’s perso They thus became fundament - of its creator’s personality. They thus became fundamentally inalien able. The author and his highly personal work could never be fully able. The author and his highly personal work could never be fully ghly personal work could nev author an e, where mo nd in tho parted. And in those jurisdictions, like France, where moral rights parted. And in those jurisdictions, like France, where moral rights were eventually declared perpetual, the work also never wholly fell so never w ntually de were eventually declared perpetual, the work also never wholly fell i se. n public dom into the public domain, open to everyone’s free use. ADDING PERSONALITY TO PROPERTY A PERSON rly ninete By the early nineteenth century authors in Britain, America, France, tury authors in Britain, Am By the early nineteenth century authors in Britain, America, France, and many of the German principalities had won property rights in y of the G and many of the German principalities had won property rights in principalities had won p their works, though typically only the ability to assign them for lim- their works, though typically only the ability to assign them for lim- ks, though ited times. During the 1800s their rights broadened from books and s. During ited times. During the 1800s their rights broadened from books and plays to include letters, paintings, sculpture, lectures, music, opera, plays to include letters, paintings, sculpture, lectures, music, opera, nclude le photos, and architecture. Their rights also deepened beyond control photos, and architecture. Their rights also deepened beyond contr nd archite of exact reproductions to include derivations: translations, abridge- of exact reproductions to include derivations: translations, abr eproducti ngravings, ments, engravings, dramatizations, and performances. D ments, engravings, dramatizations, and performances. During the early nineteenth century legal and legislative experie eteenth ce early nineteenth century legal and legislative experience had revealed yond own t that—beyond ownership—decisions were needed on authors’ aes- t ntrol. Hav thetic control. Having assigned economic rights, should they retain a say? Were assignees allowed to modify works as they pleased? Did a re assigne control pass to the author’s heirs and, if so, how? Could it be seized c ass to the by creditors? Such questions—raised above all in the Lamartine de- ors? Such b bate of 1841—foreshadowed the moral rights that developed later in 41—foresh b the nineteenth century. t eenth cen tive work Derivative works raised similar issues. Were translation, abridge- adaptatio ments, or adaptations new works? And what of works related to or m inspired by other works—a play based on a novel, an engraving on a by other w i n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

138 128 Chapter 4 sculpture, a photograph on a painting? Who ow sculpture, a photograph on a painting? Who owned the right to re- produce a painting: artist or buyer? Was photography ar produce a painting: artist or buyer? Was photography art or a mere technology? Was recording music legally equivalent to reproducing technology? Was recording music legally equivalent to repro its score? Some of these questions were answered by technical modi- its score? Some of these questions were answered by technical mo fications of the law. Others were central to the expansion of authors’ fications of the law. Others were central to the expansion of authors rights. r What had been free grew increasingly regulated and legalized. Lit- galized. Lit - t t operty exp ramatically into realm erary property expanded dramatically into realms never previously erary property expanded dramatically into realms never previously ownable. In the late nineteenth century, at the same time that con eenth century, at the same . In the la - ownable. In the late nineteenth century, at the same time that con- ventional property became ever more regulated (labor laws, rent con - ever more regulated (labor la l property ventional property became ever more regulated (labor laws, rent con- trol, factory legislation, health and safety, consumer and environmen- lth and safety, consumer and en - ory legisla trol, factory legislation, health and safety, consumer and environmen k precedence ction, etc.) tal protection, etc.) and society’s interests took precedence over those tal protection, etc.) and society’s interests took precedence over those of owners, intellectual property rights, in contrast, increasingly ben ast, increasi of owners, intellectual property rights, in contrast, increasingly ben- rs, intellec - 1 1 So vast was this ic. So vas s efited authors and their assignees over the public. thors and e n turn, prom n of right expansion of right holders’ prerogatives that it, in turn, prompted the expansion of right holders’ prerogatives that it, in turn, prompted the need for exceptions—what in the UK became known as fair dealing exception known as fa need for exceptions—what in the UK became known as fair dealing and in the US as fair use. he US as fa a By the cusp of the twentieth century, then, all nations had signifi- nifi - tieth century, then, all nation cusp of t cantly expanded authors’ rights but in increasingly different ways. In ghts but in increasingly diff cantly expanded authors’ rights but in increasingly different ways. In panded au 1907 the prominent German jurist Josef Kohler, whom we met in the prominen n jurist Josef Kohler, wh 1907 the prominent German jurist Josef Kohler, whom we met in the chapter, previous chapter, wrote that, by puncturing the fiction of natural previous chapter, wrote that, by puncturing the fiction of natural Donaldson v. Beckett rights, r onaldson v pt of immate - (1774) had ended the concept of immate- erty in Bri rial property in Britain, thereby making a stepchild of authors’ rights rial property in Britain, thereby making a stepchild of authors’ rights 2 2 - in the common law nations. American autho mmon law He was right. Anglo- He was right. Anglo- American authors’ in the common law nations. ere now li claims were now limited to what society was willing to conced claims were now limited to what society was willing to concede. The Continent, in contrast, slowly added one concept of natural rights to Continent, in contrast, slowly added one concept of natura nt, in cont another. Property was joined by the (supposedly another. Property was joined by the (supposedly equally) natural Property right of the author’s inviolable expression of personality. he author r At their most messianic, authors’ rights based on property and on ir most m personality both presumed a basis in nature: by virtue of the author’s p ity both p l because of labor or because of the unbreakable connection between personality and work. André Morillot, the French jurist who first formulated the a k. André M in 1878, ex concept in 1878, explicitly derived moral rights from natural rights. c inciple of “ “It is a principle of law, higher than any statute,” he declared, that every person’s liberty be protected. This obliged the authorities to safeguard p liberty be 3 or’s moral In a belt- and- suspenders argu- t the author’s moral rights to his work. cide Darr ment, Alcide Darras wrote in 1887 that the author’s claims rested on m THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

139 Continental Drift 129 both the recompense he was due for his labor and both the recompense he was due for his labor and the respect due his personality. A claim based on either one of these was unavoidably a personality. A claim based on either one of these was una 4 4 Such ideas multiplied on the other side of the centu- Such ideas multiplied on the other side of the natural right. natural right. 5 5 By the interwar years authors’ rights were justified also by By the interwar years authors’ rights were justified also s cusp ’ ry . ry’s cusp. this new natural right of personality. Moral rights, one observer cel this new natural right of personality. Moral rights, one observer cel- ebrated in 1926, were absolute. They stood outside time; the law did ebrated in 1926, were absolute. They stood outside time; the law did not create them but simply recognized their prior existence. They not create them but simply recognized their prior existence. They 6 w ural rights were natural rights. - ontinenta This Continental drift from property to personality was nebu- rom property to persona nebu lous, meandering, and incomplete. Both concepts remained current ndering, a mplete. Both concepts remai lous, meandering, and incomplete. Both concepts remained current in tandem, moving in and out of use. Personality supplemented but m, moving in tandem, moving in and out of use. Personality supplemented but out of use. Personality supplem never supplanted property. Early in the nineteenth century the Ger- enth century r planted p r - never supplanted property. Early in the nineteenth century the Ger not deve mans did not develop the concept of property rights in works as rights in mans did not develop the concept of property rights in works as ad instead tically as - enthusiastically as the French. Kant and Fichte had instead empha- e When Germ author’s p s sized the author’s personal stake in his works. When Germany uni- - fied in 1871 and began codifying national law, it could have followed 71 and beg t could have fied in 1871 and began codifying national law, it could have followed y then German thought rested the French example. But by then German thought rested more on the French example. But by then German thought rested more on h exampl 7 7 7 ury In the late ninetee In the late nineteenth century p a personality- based authorial claims. im s. ty- base d a l c ifted the i n from intellectual proper i geistiges Ei- - Kohler shifted the discussion from intellectual property ( es Ei K Immate- gentum ), founded on natural rights, to intangible property ( mmate- g founded o al rights, to intangible p rialgüterrecht echt r cept thus ), based instead on statute. The property concept thus e as b ), having been unmoored from its origins in natural rights, the next having been unmoored from its origins in natural rights, the next een unmo 8 8 to persona ). . step was to personality- based authors’ rights ( Urheberrecht s ) berrecht had dealt with literary property. But The Prussian law of 1837 had dealt with literary property. But in ussian law to indicate authors’ Urheberrecht 1865 Bavarian law used the term 1865 Bavarian law used the term to indicate aut t rian law Urheberrecht rights that went beyond claims based merely on property. S rights that went beyond claims based merely on property. So did the t went be all- German law of 1870. In 1885, when the French proposed that the an law of a 1885, when the French pr Berne Convention protect “literary and artistic property” rather than nvention B 9 Even the French authors’ rights, the Germans protested vehemently. the a ights, , fe feared the problems we have examined in the previous chapter of e problem conceptually assimilating literary to conventional property. They c ally assim a avoided using the term “property” in draft bills put forth under the using the t 10 10 July Monarchy. archy. J Although the property concept was increasingly supplemented ugh the p b by that of personality starting in the late nineteenth century, it re- f persona mained influential. As a quick glance ahead shows, the French rein- nfluential m in their fi stituted it in their first major law on the subject since the revolution, s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

140 130 Chapter 4 11 that of 1957 on literary and artistic property. The postwar Ger- that of 1957 on “literary and artistic property.” mans continued to view the concept more skepticall mans continued to view the concept more skeptically than the French. The new Bavarian Constitution of 1946 (art. 162) spoke of French. The new Bavarian Constitution of 1946 (art. 162) sp intellectual property, but the West German Basic Law of 1949 did intellectual property, but the West German Basic Law of 1949 d classi not. Yet in 1955 the German Supreme Court resuscitated classic not. Yet in 1955 the German Supreme Court r esuscitate e ual property as eighteenth- century concepts by vindicating intellectual property as 12 12 a natural right that was only recognized, not created, by statute. a natural right that was only recognized, not created, by statute. Later case law and statute also enthusiastically employed the intel- also enthusiastically e Later case law and statute also enthusiastically employed the intel e law and - 13 l roperty co European law followed s lectual property concept. 01 the European law followed suit. In 2001 the ormation EU’s Information Society Directive blithely assured its constituents Directive blithely assured its EU’s Information Society Directive blithely assured its constituents that intellectual property had been recognized “as an integral part of that intellectual property had been recognized “as an integral part of llectual pr ad been recognized “as an inte 14 4 1 ” The unratified draft EU constitution of 2003 solemnly p property.” n tion of 2003 The u ly sought to make protecting intellectual property a plank of the Con - a plank of sought to make protecting intellectual property a plank of the Con- o make pr 15 t tinent’s highest law. highest law Nonetheless, whether based on property or personality, in their personalit ir theless, wh owed the au Continental variants both these concepts endowed the author with Continental variants both these concepts endowed the author with ntal varian s — e as b . They differed mainly in that strong, nature- based claims. They differed mainly in that property— ature- natural— e alienated, while personality- h hts, however natural—could be alienated, while personality- based rights, ith the author even after h ll see, rem as we will see, remained with the author even after he had assigned as we will see, remained with the author even after he had assigned itation cla h his exploitation claims. ROMANTICISM PLAYS A ROLE TICISM P To protect authors because they were personally connected to their ct authors To protect authors because they were personally connected to century s, of cour work was, of course, part of the late eighteenth- century Romantic work was, of course, part of the late eighteenth- worship of the artist. Earlier authors had seen thems worship of the artist. Earlier authors had seen themselves more hum- of the arti 16 bly as giving voice to higher forces and as indebted to forerunners. ving voice b They viewed themselves as embedded in society and in contact with wed them T 17 17 7 their public. Inde blic. Indeed, as the Greeks and Romans saw it, authors were t discoverers, not creators, uncovering the timeless reality of nature’s ers, not cr d 18 From the Renaissance on, authors were inspired by classical From the forms. f antiquity to imitate nature and emulate the past masters of ancient a y to imitat 19 Romanticism supplanted this mimetic view of Greece and Rome. nd Rome G e himself art. As he himself saw it, the Romantic author drew on his own a original and singular genius. Edward Young’s celebration of the art- and singu o (1759)—a much garret, o C ist in his garret, Conjectures on Original Composition i THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

141 Continental Drift 131 bigger hit in Germany than at home in Britain bigger hit in Germany than at home in Britain—set the tone. Origi- nality connected the creator with the divine, while imita nality connected the creator with the divine, while imitations were 20 20 mechanical. mechanical. Romanticism thus celebrated the author on a heroic scale. T Romanticism thus celebrated the author on a heroic scale. The ideology of authors’ rights continued this tradition in a minor key. ideology of authors’ rights continued this tradition in a minor key. As one critical observer put it, authors’ rights sought to protect Ro- As one critical observer put it, authors’ rights sought to protect Ro - mantic tropes in law: unique creation reflecting the author’s person- mantic tropes in law: unique creation reflecting the author’s person - 21 ality. e most fu The most fundamental form of property, Balzac insisted in a ntal form of property, sted in 1834, was the work, “that which man creates between heaven and which man creates betwee 1834, was the work, “that which man creates between heaven and the work 22 her roots than in his intellig The e t which h earth, that which has no other roots than in his intelligence.” The 23 23 wed the p author owed the public nothing. ch On the Continent, w On the Continent, where such othing a a ide erisch schöngeisterisch ideas were strongest, law and cultural idiom agreed. cultural idiom d. sc By contrast, the Anglosphere remained less persuaded by the claims st, the An By contrast, the Anglosphere remained less persuaded by the claims uaded by th of Romantic inspiration. Genius, in the British view, served a broader, of Romantic inspiration. Genius, in the British view, served a broader, ntic inspira w, s e r v e d a social purpose. The sublime spirits “who share that ray of divinity we social purpose. The sublime spirits “who share that ray of divinity we at ray of di rpose. The 4, ca s,” Lord C case in 1774, onaldson Donaldson c call genius,” Lord Camden insisted during the nce to impart to others the k were entrusted by Providence to impart to others the knowledge rusted by were entrusted by Providence to impart to others the knowledge “that heaven meant for universal benefit; they must not be niggards ven mean “that heaven meant for universal benefit; they must not be niggards versal benefit; they must not 24 24 to the world or hoard up for themselves the common stock.” orld or ho A to the world or hoard up for themselves the common stock.” A for themselves the comm c he lead nd a half pyright - t up to the Briti century and a half later, in the lead- up to the British 1911 Copyright Act, the MP George Roberts argued against extending copyright Act, the MP George Roberts argued against extending copyright MP Geor - utioning th terms, cautioning that authors and inventors were not so much origi terms, cautioning that authors and inventors were not so much origi- nal creative geniuses as “the reservoirs of the past. They have profited nal creative geniuses as “the reservoirs of the past. They have profited ve geniuse 25 25 by the successes and failures of those who have preceded them.” ccesses an by the successes and failures of those who have preceded them.” the Britis keptical of genius, America spurne While the British were skeptical of genius, America spurned the concept altogether. The earliest copyright statutes aimed to encour- concept altogether. The earliest copyright statutes aimed t ltogether. age literature and genius. The usage, however, was not that of over- age literature and genius. The usage, however, was n ture and g w wrought Romanticism but an etymologically pure derivation from Romantic 2 26 6 The preamble to the Massachusetts copyright statute “ingenious.” e h T “ us.” o of 1783 described the advancement of human happiness as depend- escribed th n ing on “learned and ingenious persons in the various arts and sci- earned an i 27 ences.” As in Britain, genius was harnessed to the social good. We e As in Brita seek to encourage literature, the Senate Committee on Patents in- ncourage s sisted, as it rejected copyright protection for British books in 1838. it rejected s “But literature itself is only valuable as it tends to improve and bless ature itsel “ mankind. It should not, therefore, be confined to exclusive channels, m It should but diffused and spread throughout the whole mass . . . shedding sed and s b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

142 132 Chapter 4 upon the whole face of society the beams of lig upon the whole face of society the beams of light and knowledge 28 28 d inte ll ectua an im p rovement. ” and intellectual improvement.” l ) THE CONCEPT BROADENING (AND RESTRICTING ONCEPT OF LITERARY PROPERTY O century, authors’ righ in the ni Starting in the nineteenth century, authors’ rights expanded from Starting in the nineteenth century, authors’ rights expanded from to all ma f other works. Along one writings to all manner of other works. Along one axis authorial writings to all manner of other works. Along one axis authorial rights extended to new forms of creative endeavor. Along another rights extended to new forms of creative endeavor. Along another rms of creative endeavor. Al tended to protection deepened to cover derivative works as well. Some rights protection deepened to cover derivative works as well. Some rights on deepen ver derivative works as well. S were older: to translations, engravings, and dramatizations. Others dramatizatio were older: to translations, engravings, and dramatizations. Others er: to tran - dings, and fi followed new media: photographs, sound recordings, and film adap- followed new media: photographs, sound recordings, and film adap new med ive works tations. But as rights thus included new derivative works, the pro- But as rig tations. But as rights thus included new derivative works, the pro - - tected object had to be defined so as to transcend the original me nd the ori bject had tected object had to be defined so as to transcend the original me - d core had dium. Its core had to be identified. 10 Statute The 1710 Statute of Anne and other early legislation had protected ed and other early legislation had the work’s specific instantiation, outlawing only verbatim reproduc- ’s specific ation, outlawing only verbati the work’s specific instantiation, outlawing only verbatim reproduc- tion. As authors gained rights also in derivations, however, a broader hts also in derivations, how authors ga tion. As authors gained rights also in derivations, however, a broader concept was needed of some element of its substance that justified me element of its subst was neede concept was needed of some element of its substance that justified claims when it was reused, even if not verbatim. Copyrights arguably hen it was claims when it was reused, even if not verbatim. Copyrights arguably became more like patents. Authors began claiming control of the more like became more like patents. Authors began claiming control of the idea or some essence of the work and not just its particular expres- ome essen idea or some essence of the work and not just its particular expres sion. This gave them power over the work in other media and f sion. This gave them power over the work in other media and for- s gave the mats: translations, abridgments, film versions, and so forth. Early mats: translations, abridgments, film versions, and so forth. anslations distingui laws had distinguished between expression and idea, protecting only laws had distinguished between expression and idea, prote expression. Now this distinction blurred. expression. Now this distinction blurred. n. Now th se early la Because early laws guarded only against verbatim reproduction, altered works were not protected. Thus a plagiarizing artist in works we a n th- centu nineteenth- century Württemberg got off scot- free because his copy r 29 had different dimensions and colors. h rent dime How changed did a derivative ve to be t w work have to be to win its own legal standing? In the eighteenth century abridgments were regarded as new works. Indeed, until the c abridgmen mid- nineteenth century “fair” abridgments were considered a public m eteenth ce making b service, making books digestible and available. Periodicals relied s 30 heavily on extracts, summaries, and reworkings of recent books. h But n extracts toward d attitudes toward derivative works changed during the nineteenth a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

143 Continental Drift 133 century, as translations illustrate. Neither the Statu century, as translations illustrate. Neither the Statute of Anne nor the French revolutionary laws or the Prussian Allgemeines Landrecht French revolutionary laws or the Prussian Allgemeines protected the author against translations, which were regarded protected the author against translations, which were regarded as in- dependent works. Harriet Beecher Stowe, author of Uncle Tom’s dependent works. Harriet Beecher Stowe, author of Uncle To Cabin C e, authorized a transla (1852), the runaway bestseller of the time, authorized a transla- tion for Pennsylvania’s German speakers. When in 1853 an unauthor- tion for Pennsylvania’s German speakers. When in 1853 an unauthor - r r ized one appeared in a Philadelphia newspaper, she sued. The court ized one appeared in a Philadelphia newspaper, she sued. The court g that, on publication ruled against her, declaring that, on publication, she had lost all inst her, ruled against her, declaring that, on publication, she had lost all 31 31 nd sell her work. r her than to rights other than to print and sell her work. In his standard work on cop e tide was om But the tide was turning. In his standard work on copyright from 1847, the American jurist George Ticknor Curtis now argued that 1847, the American jurist George Ticknor Curtis now argued that George Ticknor Curtis now a American translations infringed on authors’ rights. The author owned “the ns infring e author ow translations infringed on authors’ rights. The author owned “the ideas and sentiments themselves,” the plan of the work, and the mode sentimen ideas and sentiments themselves,” the plan of the work, and the mode work, and t g the subj of treating the subject. His rights were violated “in whatever form his of treating the subject. His rights were violated “in whatever form his whatever 32 uthors rec American authors received the e own property may be reproduced.” o perty may right to authorize translations in 1870; the British had in a limited right to authorize translations in 1870; the British had in a limited tish had in uthorize 851 and the form in 1851 and then more expansively in 1911. In France the shift was form in 1851 and then more expansively in 1911. In France the shift was expansively in 1911. In France th What righ similar. What right did a translation violate, the jurist Augustin- similar. What right did a translation violate, the jurist Augustin- translation violate, the juris ed to know in 1838. The c Renouard - Charles Renouard demanded to know in 1838. The change of lan- Charles Renouard demanded to know in 1838. The change of lan guage eliminated any rivalry, and the author’s reputation stood to guage eliminated any rivalry, and the author’s reputation stood to minated a ry, and the author’s rep 33 d the un But in 1845 the Rouen Court of Appeals condemned the un- t in 1845 t g gain. - authorized publication of a French chemistry book in Spanish, not d publica - t t authorized publication of a French chemistry book in Spanish, not- 34 34 In 1847 In 1847 ing the harm of its competition with the original edition. arm of its ing the harm of its competition with the original edition. the Court of Paris ruled that a translation inherently reproduced th t of Paris r the Court of Paris ruled that a translation inherently reproduced the original. Everything but the language was copied: the subjec Everythin original. Everything but the language was copied: the subject, the arguments, the phrasing. A work’s essence, the court argued, was not arguments, the phrasing. A work’s essence, the court argued ts, the phr the written idiom, but the ideas presented, thei the written idiom, but the ideas presented, their sequence and en idiom 35 35 development. ment. d ments too Abridgments too became protected. In 1828 Robert Maugham had hat they w n i insisted that they were new works. Though they injured sales of the 36 o A decade later abridgments were they did original, they did not infringe. n as skimm now seen as skimming the cream. Abridging, Francis Lieber lectured in 1838, is the right of my neighbor to drink my wine if he leaves the the right n i 37 Gray v. Russell (1839) Justice Joseph Story decided that c G cask. ray v. R In an abridg whether an abridgment infringed depended less on the amount w 38 banned In 1841 n on its q Folsom v. Marsh taken than on its quality and value. t ing use of a competing use of George Washington’s letters, reining in the then- a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

144 134 Chapter 4 39 fair Derivative uses h doctrine. use Derivative uses had to be “fair and bona unbridled unbridled fair use doctrine. 40 40 Curtis’s stan- fide” and must not harm the original’s market value. fide” and must not harm the original’s market value. C dard text concluded that “to the author belongs the exclusive right to dard text concluded that “to the author belongs the exclusive r take all the profits of publication which the book can, in any fo take all the profits of publication which the book can, in any form, 41 In 1879 Eaton Drone’s survey of Anglophone law was Anglophone law wa p produce.” clear and severe: abridgments were an outmoded indulgence and a clear and severe: abridgments were an outmoded indulgence and a 42 form of piracy. f ntury copyright thus in Over the nineteenth century copyright thus increasingly came to came to he ninete he work’s protect the work’s value across all media, not just verbatim copies. cross all media, not just ve protect the work’s value across all media, not just verbatim copies. T trine eme The doctrine emerged that there could be “non- literal copying,” lite at there could be “non- ng,” 4 3 43 other aut when another author used a story’s plot, incidences, or themes. when another author used a story’s plot, incidences, or themes. d a story’s plot, incidences, o charged with tographer The photographer James Robinson was thus charged with piracy of The photographer James Robinson was thus charged with piracy of Henry Wallis’s Wallis’s (1857) when he photographed a D a H Death of Chatterton e he photog 44 44 The pro- - m model imitating the original’s pose of the dead poet. d poet. mitating t - operty wa be the wor tected property was increasingly understood to be the work’s essen- tected property was increasingly understood to be the work’s essen no longe claim to the tial core, no longer just its expression. As his claim to the work was tial core, no longer just its expression. As his claim to the work was ost he author’s stake expanded. he author’s stake expanded. Stowe lost carried across all media, so t cross all m c - vindicated when authors ga though s her case, though she was vindicated when authors gained transla- her case, though she was vindicated when authors gained transla tion rights in 1870. But her lawyer’s logic illustrated how the con- hts in 1870 r lawyer’s logic illustrated tion rights in 1870. But her lawyer’s logic illustrated how the con - cept of the work was expanding. The work remained constant, re- he work w cept of the work was expanding. The work remained constant, re - nding. The work rema gardless of its language. A good translation transparently transposed gardless of its language. A good translation transparently transposed of its lang it from one tongue to another, thus appropriating it in the act. “A it from one tongue to another, thus appropriating it in the act. “A one tongu perfect translation will present the identical creation and mental ranslation perfect translation will present the identical creation and mental 4 45 5 In 1847 Curtis defined the protectable work gener- rtis defined the protectable work gen In production.” p on.” ously as “whatever is metaphysically part or parcel of the intellec- ously as “whatever is metaphysically part or parcel of the in “whatever 46 In 1879, when Drone summed up Anglo- t tents of a In 1879, when Drone summed tual contents of a book.” n law, lite American law, literary property was now the “inte American law, literary property was now the “intellectual creation language o of which language is but the means of expression.” Even formulated in different words, the work remained the same. (How that differed ent words i from owning the work’s ideas was unclear, though Drone was quick ning the w f 47 hat ideas t to deny that ideas could be possessed.) th Europe In both Europe and the Anglophone world copyright had ex- panded by the late nineteenth century to give authors a broad say p by the lat 48 Thanks to over their work’s market value, regardless of medium. o r work’s hors today that, authors today merrily claim ownership of character, plot, and t . Thus the Gone with narrative. Thus the heirs of Margaret Mitchell, author of n , for é La bicyclette bleue , sued Régine Desforges, author of d the Wind , sued R t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

145 Continental Drift 135 having told the story of a woman, an estate, and a war—though set having told the story of a woman, an estate, and in France in the 1940s, not the South of the 1860s. A Fren in France in the 1940s, not the South of the 1860s. A French director The sued the US producer of the Arnold Schwarzenegger mov sued the US producer of the Arnold Schwarzenegger movie R for making a film also featuring television, its influ- for making a film also featuring television, its infl n unning Ma Running Man armed killers. In turn, the studio be- n turn, the studio be e ence on the masses, and five- Jaws hind sued a French company for a movie involving a shark, lving a shark, h 49 summer, and swimmers. s FAIR USE F thors’ righ Yet, as authors’ rights expanded, they also had their wings clipped. d their wing Yet, as authors’ rights expanded, they also had their wings clipped. With ever more claims aimed at derivative works, the law began to r more cla ks, the law With ever more claims aimed at derivative works, the law began to define and enforce a zone of use over which authors had no say. Fair define and enforce a zone of use over which authors had no say. Fair d enforce ors had no use started in the nineteenth century as the right of authors to use use started in the nineteenth century as the right of authors to use d in the n ht of autho others’ works for their own independent creations. So long as the orks for t others’ works for their own independent creations. So long as the tions. So lo e or imitative, fair use acknowl new work was not derivative or imitative, fair use acknowledged that k was not d new work was not derivative or imitative, fair use acknowledged that r. As authors won control ove authors inspired each other. As authors won control over derivative nspired ea authors inspired each other. As authors won control over derivative ee, however, fair use began uses that once had been free, however, fair use began guarding the uses that once had been free, however, fair use began guarding the once had public as well. Only seen against the vast broadening of their rights gainst the vast broadeni well. Onl public as well. Only seen against the vast broadening of their rights - during the nineteenth century did fair use limit authors’ preroga- during the nineteenth century did fair use limit authors’ preroga he ninetee 50 audience, fair t Unsurprisingly, since its point was to help the audience, fair nsurprisin tives. use was more generous in the Anglosphere than on the Continent. use was more generous in the Anglosphere than on the Continent. more gene Though originating in the nineteenth century, fair use developed to Though originating in the nineteenth century, fair use developed originating full fruition only in the twentieth. For the sake of coherence, we will on only in full fruition only in the twentieth. For the sake of coherence, w follow it to that conclusion here. to that co follow it to that conclusion here. Fair use was implemented in its broadest form in America. Folsom e was imp d in its broadest form in v. Marsh (1841) was an early weighing of interests between author and 1841) was a v public. Free use was curtailed if derivative works cut into the origi- p ree use wa nal’s market value. But fair use was also employed to limit the now- n ket value. authoria expanded authorial domain. Though the 1909 US Copyright Act e ended the right of fair abridgment, it included a broad exemption for e right of f e 51 performa nonprofit performances of nondramatic literary works and music. n The 1976 Copyright Act eventually codified the fair use doctrine, 76 Copyri removing some of the specific exemptions, like nonprofit perfor- g some of r mances, while adding new ones. As we will see in chapter 6, the 1976 while addi m act aimed to bring the United States into alignment with European d to bring a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

146 136 Chapter 4 practices, smoothing the path for membership in practices, smoothing the path for membership in the Berne Union. Term durations were extended from a maximum of tw Term durations were extended from a maximum of twenty- eight years after publication to the Berne norm of fifty years postm years after publication to the Berne norm of fifty years postmortem. Works were now automatically protected as of creation, with few of Works were now automatically protected as of creation, with few the formalities imposed earlier. Fair use was therefore formalized to the formalities imposed earlier. Fair use was therefore formalized to compensate the public somewhat for this vast expansion of authors’ compensate the public somewhat for this vast expansion of authors’ 52 c claims. ressman R Congressman Robert Drinan voiced traditional Anglo- American merican rinan voiced tradition during th s over the act, insisting th attitudes during the debates over the act, insisting that “copyright as attitudes during the debates over the act, insisting that “copyright as polistic pr n only be justified to the ex a monopolistic practice can only be justified to the extent it serves a monopolistic practice can only be justified to the extent it serves 53 53 enumerated all manner of fair t ic good.” ep - the public good.” The act enumerated all manner of fair use excep- mn singin d music at ag tions: hymn singing at religious services, band music at agricultural tions: hymn singing at religious services, band music at agricultural 54 The general principle allowed ral principl d fairs, and music at Elks Club dances. f music at fair use of copyrighted work for purposes “such as” criticism, com- as” critic of copyrig fair use of copyrighted work for purposes “such as” criticism, com - r ment, news reporting, teaching, and scholarship. Teachers and librar- ws report Teachers a ment, news reporting, teaching, and scholarship. Teachers and librar - r ocated bro s. Their opp ians advocated broad pedagogical exemptions. Their opponents in ians advocated broad pedagogical exemptions. Their opponents in wever, sought to restrict schoo ishing ind the publishing industry, however, sought to restrict schools, universi- the publishing industry, however, sought to restrict schools, universi - me limits as the general pu libraries ties, and libraries to the same limits as the general public. The act ties, and libraries to the same limits as the general public. The act nonetheless allowed libraries to make copies for interlibrary loans ies to make copies for int nonetheless allowed libraries to make copies for interlibrary loans ess allow reserve de f print copies o t t of and to preserve deteriorated copies of out- of- print works, thus grant- d out- a s grant - - 55 - universi Schools and universi- ing them rights beyond those of the public. m rights be i ties also won an exception for copies made for classroom use. And ties also won an exception for copies made for classroom use. And won an e the pedagogical establishment secured a corporatist exemption from the pedagogical establishment secured a corporatist exemption from gogical es mployees fines if employees of schools, universities, libraries, or archives inno- fines if employees of schools, universities, libraries, or archives inn cently infringed. c fringed. Unlike the equivalent European laws, with their restrictive tallies e the equi uropean laws, with their restric of permitted uses, the 1976 US Copyright Act’s enumeration of fair tted uses, of permitted uses, the 1976 US Copyright Act’s enu uses was illustrative, not limiting. The law devised a legal algorithm illustrativ u of fair use: what and how much was copied, and for what purpose, o e: what a 56 It opened up a broad and how it affected the work’s market value. a it affecte d array of possible exceptions by allowing courts a calculus to weigh a possible e 57 57 7 This principle had already been formulated in 1964 by the i This pri interests. New York Court of Appeals when it cautioned that courts “must oc- N k Court o c y subordi casionally subordinate the copyright holder’s interest in maximum fi financial return to the greater public interest in the development of return to 58 art, science and industry.” ce and ind a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

147 Continental Drift 137 The British equivalent, the “fair dealing” clause of the 1911 Copy- The British equivalent, the fair dealing claus 59 right Act, was narrower and more like its Continental eq right Act, was narrower and more like its Continental equivalents. It allowed specific, enumerated uses: private study, criticism, review It allowed specific, enumerated uses: private study, criticism, r or newspaper summary, the drawing of public sculptures and build- or newspaper summary, the drawing of public sculptures and bui ings, public recitations, accounts of nonreserved public lectures, and ings, public recitations, accounts of nonreserved public lectures, and limited excerpting in school anthologies. While revised in 1956 and limited excerpting in school anthologies. While revised in 1956 and 60 60 again in 1988, the principle behind fair dealing remained undefined. again in 1988, the principle behind fair dealing remained undefined. It applied neither to unpublished works nor to news photography. d neither t It applied neither to unpublished works nor to news photography. blished works nor to n to find uses fair if they we Nor did it empower courts to find uses fair if they were not listed in Nor did it empower courts to find uses fair if they were not listed in t empowe 61 - rican artist Jeff Koons unsuc In 1992 t as the law. t In 1992 the American artist Jeff Koons unsuccessfully as- serted fair use in the United States against a postcard photographer r use in th serted fair use in the United States against a postcard photographer d States against a postcard pho otif he had whose motif he had turned into a sculpture. Such a case would never whose motif he had turned into a sculpture. Such a case would never uch a case wo even have come to trial in Britain, where infringing was specifically e come to ging was sp even have come to trial in Britain, where infringing was specifically from two defined in the 1988 act to include transpositions from two to three defined in the 1988 act to include transpositions from two to three n the 1988 62 62 Brit romanage Britain’s 1988 act even included micromanaged exemp- dimensions. d a - ns. tions, such as the permission to rent out computer programs fifty h as the p mputer prog tions, such as the permission to rent out computer programs fifty ase. Another section allowed t years (!) after their first release. Another section allowed teachers to years (!) after their first release. Another section allowed teachers to after their s of work copy parts of works for instructional purposes, but not via a repro copy parts of works for instructional purposes, but not via a repro- - tructional purposes, but not process, w graphic process, which apparently ruled out xeroxing to prepare graphic process, which apparently ruled out xeroxing to prepare parently ruled out xeroxin 63 le lectures. On the Continent fair use was an even more limited doctrine. The rine. The Continen strained very idea strained Continental concepts of natural rights property. very idea strained Continental concepts of natural rights property. 64 for obviou allowed the public A Authors, for obvious reasons, objected. Fair use allowed the public to violate the author’s rights with impunity, one eager proponent the autho to violate the author’s rights with impunity, one eager proponent of 5 65 6 Nonetheless, even the most the Continental ideology charged. the Continental ideology charged. Nonetheless, even the inental id author- centric nations, like France, needed some fair use. Rejecting a France, needed some fair use. ntric nati d and ope t American practice, Euro the broad and open- ended American practice, European laws have typically listed specific exemptions. Historically, the Germans have listed spe t y been more generous than the French. Already the Prussian Landrecht b e generou 66 o lowed exc of 1794 allowed excerpts of works. The Prussian law of 1837 permit- 67 ted citation of passages and poems in historical and critical works. on of pass t It also excepted socially worthy uses, like school books and antholo- cepted soc I gies. Fair use was enshrined in the German law of 1870 but without use was e g invoking the public’s interest. The 1901 and 1907 laws allowed further the public i n exempted uses. Public speeches and unreserved newspaper articles e d uses. Pu could be reproduced and quotations and excerpts reprinted in school reproduce c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

148 138 Chapter 4 or church anthologies. Musical works could be or church anthologies. Musical works could be performed without payment or permission at charitable, private, and other noncommer- payment or permission at charitable, private, and other n 68 68 In Germany’s 1965 law such earlier exceptions we In Germany’s 1965 law such earlier exceptions were lim- cial events. . ents cial e v ited. Composers were now entitled to royalties for performances ited. Composers were now entitled to royalties for performan except at wholly free public and charitable concerts. Fair use in edu except at wholly free public and charitable concerts. Fair use in edu- 69 cational anthologies was narrowed. c 70 With no rationale of the public The French were more miserly. the public ed only private copies e 1957 law good, the 1957 law exempted only private copies and press reviews, good, the 1957 law exempted only private copies and press reviews, short quotations for critical, educational, or scientific purposes, and short quotations for critical, educational, or scientific purposes, and otations fo l, educational, or scientific 71 ture earing harm to journalists, th Fearing harm to journalists, the legislature a accounts of public talks. of public 72 72 deliberately clawed back a proposed exemption for news articles. deliberately clawed back a proposed exemption for news articles. ely clawe proposed exemption for new - But the law did specifically exempt parodies, caricatures, and pas- s, caricatures But the law did specifically exempt parodies, caricatures, and pas law did s were not m tiches, which—though protected by case law—were not mentioned tiches, which—though protected by case law—were not mentioned hich—tho 73 opean Un - In 2001 the European Union speci- i i h or Amer in British or American statute. t of precis ns, includi fied a list of precisely twenty allowable exceptions, including educa- fied a list of precisely twenty allowable exceptions, including educa - 4 7 74 urposes, u tional purposes, uses by the disabled, and parody. EU members arody. EU t rs temporary copies made in the were required to exempt temporary copies made in the course of uired to e were required to exempt temporary copies made in the course of digital transmission (since otherwise the web would grind to a legal digital transmission (since otherwise the web would grind to a legal ansmissio otherwise the web would gri halt). But all other exceptions were optional, and no nation could ons were optional, and no t all othe halt). But all other exceptions were optional, and no nation could 75 75 y fair use In other words, EU a I adopt any fair use that was not on the EU’s list. not on the EU’s list. rds, EU states we member states were free to be stingier than Brussels but banned member states were free to be stingier than Brussels but banned ng more from being more generous. In 2003, after publishers’ protests, the from being more generous. In 2003, after publishers’ protests, the minister of French minister of culture cut even the fair use exception for educa French minister of culture cut even the fair use exception for educa- 76 76 After much debate the French After much debate the French fi- tion or research from a draft bill. tion or research from a draft bill. esearch fro nally introduced a restrictive educational exception in 2006. But we nally introduced a restrictive educational exception in 2006. B roduced a will see in chapter 8 just how miserly France and Germany were with will see in chapter 8 just how miserly France and Germany n chapter exemptions to authors’ exclusive rights. exemptions to authors’ exclusive rights. ons to aut COMPULSORY LICENSING RY LI S L C O C sory or sta Compulsory or statutory licensing (sometimes also called equitable remuneration) was another technique used to counterbalance autho- r ation) was rol, thus h rial control, thus helping the public (and some disseminators). On r payment of royalties, at rates often set by the authorities, statutory of royalt p l allowed an licenses allowed anyone to disseminate works after a certain period ive rights of exclusive rights for owners. Works were thus freely and efficiently o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

149 Continental Drift 139 available and authors were rewarded. Compulsory available and authors were rewarded. Compulsory licensing had long been discussed during the nineteenth century, both for patents and been discussed during the nineteenth century, both for p copyrights. But little came of it until the invention of sound repro- copyrights. But little came of it until the invention of sound 77 7 77 o d uct i duction. n . First broadly introduced for musical recordings early in First broadly introduced for musical recordings early the twentieth century, compulsory licensing was then extended to the twentieth century, compulsory licensing was then extended to private copying of audio and video materials, public and cable broad- private copying of audio and video materials, public and cable broad - casts, jukeboxes, performances of musical works, noncommercial casts, jukeboxes, performances of musical works, noncommercial broadcasting, and satellite retransmissions. It was also used to allow ing, and s etransmissions. It was broadcasting, and satellite retransmissions. It was also used to allow developing nations to translate and reproduce works on affordable late and reproduce works ng nations developing nations to translate and reproduce works on affordable 78 t itious proposals compulso terms. n the m ing In the most ambitious proposals compulsory licensing promised to resolve the inherent contradictions of authors’ persistent erent contradictions of authors to resolve promised to resolve the inherent contradictions of authors’ persistent for perpe demand for perpetual property. Rights forever could be granted demand for perpetual property. Rights forever could be granted ver could b without choking off the public domain by counterbalancing them without choking off the public domain by counterbalancing them choking o nterbalanc 79 79 w with unrestricted reprinting plus royalty payments. ts. estricted r Compulsory licensing violated both absolute property rights and property r ulsory lice d the creator tenet of t a central tenet of the authors’ rights ideology: the creator’s control a central tenet of the authors’ rights ideology: the creator’s control 80 - Licensing in effect deprived au- Licensing in effect de u of the work and its dissemination. rk and its o xclusive ri thors of exclusive rights in return for guaranteed royalties. He might thors of exclusive rights in return for guaranteed royalties. He might eturn for guaranteed royaltie one critic be paid, one critic complained in 1939, but the author was treated ned in 1939, but the autho be paid, one critic complained in 1939, but the author was treated 81 81 ensees, In the hands of a In the hands of sloppy licensees, tisan and like an artisan and not an artist. li rtist. authors also risked their integrity, unable to ensure that new rendi- - authors also risked their integrity, unable to ensure that new rendi lso risked 82 976 US law, t Indeed, in the 1976 US law, re accurat tions were accurate and complete. hey could though they could not change a musical composition’s basic mel - though they could not change a musical composition’s basic mel- ody, licensees were permitted to arrange it “to conform it to the nsees were ody, licensees were permitted to arrange it “to conform it to th 83 le or manner of interpretation of the performance involved.” manner o etation of the performance involv sty s Thanks to such tinkering, the turn- of- the- century American com- e o such tin o f Thanks to such tinkering, the turn- - t h - century Ameri poser Victor Herbert flatly denied authorship of the compositions poser Victor Herbert flatly denied authorship of th tor Herbe recorded under license without his supervision. His goal was artis- r under lic 84 tic control, not just royalties. ol, not just t ct, comp In effect, compulsory licensing partially socialized use rights, emphasizing public access on reasonable terms over authors’ exclu- e ing publi 85 85 ms. sive claims. American composers were incensed at the two- cent Ame s royalty specified in the 1909 Copyright Act that introduced licens- pecified in r ing of sound recordings. Imagine, they fumed, a law that banned und recor n i om drawi writers from drawing up their own terms and contracts with pub- w 86 From a fre From a free- market perspective compulsory licensing in ef- lishers. li mitted infr fect permitted infringement on payment of damages specified in fe THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

150 140 Chapter 4 87 Compulsory licensing thus posed philosop law. Compulsory licensing thus posed philosophical, not just tech- law. nical, issues. The nations discussed here responded in w nical, issues. The nations discussed here responded in ways that ac- corded broadly with their underlying ideologies of intel corded broadly with their underlying ideologies of intellectual property. As with fair use, all countries were impelled by techno- property. As with fair use, all countries were impelled by tech logical necessity to accept some variant of licensing. And, as with logical necessity to accept some variant of licensing. And, as with access, it was a since licensing sought to broaden public access, it was a f fair use, technique more favored in the Anglosphere than on the Continent. technique more favored in the Anglosphere than on the Continent. ted States tain adopted the new The United States and Britain adopted the new technique enthusi - The United States and Britain adopted the new technique enthusi- astically. Fearing diminution of the author’s powers, the Continen- astically. Fearing diminution of the author’s powers, the Continen on of the author’s powers Fearing d - tal nations followed only grudgingly. t rudgingly. ns followe 737 censing had been broached as e In Britain compulsory licensing had been broached as early as 1737 tain comp ndon book b nt blishing of o by a London booksellers’ bill to allow republishing of out- of- print 88 books at t In 1837 Thomas Watts, keeper of printed books at the British b h In 1837 Th books. ernative to , suggeste Museum, suggested a royalty scheme as an alternative to the first Museum, suggested a royalty scheme as an alternative to the first 89 89 y v Talfourd bill. T A A variant was first legislated in the British 1842 Copy- - he British 1 bill. 90 90 is r d copyright With Talfourd’s attempt to extend copyright terms, his T t. right Act. With nts feared opponents feared that authors’ families would suppress works they hors’ families would suppress opponents feared that authors’ families would suppress works they erefore agreed to allow the P disapproved of. Talfourd therefore agreed to allow the Privy Council ved of. Tal disapproved of. Talfourd therefore agreed to allow the Privy Council compulso to grant compulsory licenses for books whose owners refused new ses for books whose owne to grant compulsory licenses for books whose owners refused new 91 91 . r - after the a e As this took eff r eath d editions after the author’s death. As this took effect only postmor- ostmor h copyrigh tem, with copyright still in force, it was not precisely compulsory li- - tem, with copyright still in force, it was not precisely compulsory li censing. But the motives were similar: curbing the author’s exclusive censing. But the motives were similar: curbing the author’s exclusive But the m rights in favor of public access while ensuring a fair return. rights in favor of public access while ensuring a fair return. favor of p Though it finally rejected the idea, Britain’s 1878 Royal Commis- d the idea, Britain’s 1878 Royal Comm gh it final sion on Copyright seriously considered a general system of compul- Copyright sion on Copyright seriously considered a general system of co nsing that sory licensing that promised to be “expedient in the interest of the sory licensing that promised to be “expedient in the inte nd possib public, and possibly not disadvantageous to authors.” Such reform public, and possibly not disadvantageous to autho 92 In 1909 another re- w ave encou would have encouraged quick, cheap editions. 93 p As we shall see, only two years port again flirted with such ideas. n flirted 911, the Br later, in 1911, the British enthusiastically adopted a variant on a much l larger scale. In the United States licensing was proposed in the mid- l ale. In the 94 n nineteenth century. Then, in 1909, after a great deal of legislative th centur soul- searching, the Americans—as detailed below—became the first s ching, the nation to institute compulsory licensing for sound recordings. o institute n se statutor Because statutory licensing directly violated the author’s exclusive rights, it was discussed but found little favor in France. Lamartine’s r was discu 1841 bill w abortive 1841 bill would have allowed theaters to perform plays of a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

151 Continental Drift 141 deceased authors in return for royalties, regardle deceased authors in return for royalties, regardless of whether the 95 5 9 In 1863 a commission under Napoleon III proposed In 1863 a commission under Napoleon II . d ree g h eirs a heirs agreed. coupling perpetual property rights to compulsory licensing. Half a coupling perpetual property rights to compulsory licensing. century of full postmortem rights for the author or his heirs would century of full postmortem rights for the author or his heirs wou be followed by perpetual royalty payments from anyone reissuing be followed by perpetual royalty payments from anyone reissuing 96 - Nothing came of this, though Victor Hugo enthusiasti- t go enthusiasti the work. 97 c s discussed cally advocated compulsory licensing. When the issue was discussed - at the 1928 Rome conference of the Berne Union, the French pro- at the 1928 Rome conference of the Berne Union, the French pro 28 Rome c ce of the Berne Union tested that royalty payments were merely a form of compensation. at royalty ts were merely a form of c tested that royalty payments were merely a form of compensation. 98 The The Only exclusive rights properly respected the author’s claims. O erly respected the author’s c lusive righ abortive Zay bill during the Popular Front government in 1936, Zay bill he Popular Front governmen abortive Zay bill during the Popular Front government in 1936, will disc which we will discuss in chapter 5, foresaw compulsory licensing to mpulsory lic which we will discuss in chapter 5, foresaw compulsory licensing to 99 heirs from Yet not for another prevent heirs from hindering republication. p r Yet not for half century did such ideas bear fruit in France. ury did su h S RECORDI SOUND RECORDINGS Eventually, however, new technologies forced a discussion of licens- y, howeve chnologies forced a discus Eventually, however, new technologies forced a discussion of licens - century. Proliferating te ing in the late nineteenth century. Proliferating techniques of me- - e late nin ing in the late nineteenth century. Proliferating techniques of me chanical sound reproduction allowed an end run around composers chanical sound reproduction allowed an end run around composers ound rep rights to and their rights to sheet music. With the coming of mechanical and their rights to sheet music. With the coming of mechanical music boxes, player pianos, and then phonographs, sound recordings music boxes, player pianos, and then phonographs, sound recordings xes, player wildly pop became wildly popular. Because they had not been anticipated became wildly popular. Because they had not been anticipated in copyright law, composers and their publishers were left empty- t law, com copyright law, composers and their publishers were left em They found handed. They found themselves supplying a huge market, while gain- handed. They found themselves supplying a huge market, w ost fame a ing at most fame and the sale of a few more sheets of music. The ing at most fame and the sale of a few more sheet secondary rights they did not control proved vastly more lucrative y rights th s than the primary ones. t primary o Already in 1880 the German jurist Kohler had argued that, whether y in 1880 th on paper n notated on paper or reproduced mechanically, a musical idea was 100 and thus But the law did not yet c conveyed and thus stolen if unauthorized. consider mechanical sound reproduction infringing. In one of their mechanic c few successful acts of cultural imperialism, the Swiss and their music- fe ssful acts o stry persu box industry persuaded the Berne Convention in 1886 to leave com- b 101 National legisla- posers without mechanical reproduction rights. thout me p tion, like the Austrian law of 1895, the German of 1901, and the British the Austri t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

152 142 Chapter 4 of 1906, followed suit. In France case law (from 1 of 1906, followed suit. In France case law (from 1905) and a statute of 1866 allowed music—but not a song’s words—to be mechanically 1866 allowed music—but not a song’s words—to be m 2 0 1 102 . re At the turn of the century, a series of cases across sev- At the turn of the century, a series of cases acro reproduced. p roduced eral nations held that the rolls, cylinders, and other replaceable me eral nations held that the rolls, cylinders, and other replaceable media used to produce sound were not copies of works, and therefore in- used to produce sound were not copies of works, and therefore in 103 103 fringing, but merely components of the mechanical devices. fringing, but merely components of the mechanical devices. In 1908, however, the Berne Convention changed tack and finally and finally 104 Germans The Germans granted composers mechanical reproduction rights. nical reproduction righ g composer were eager to support their music manufacturers. But the French and er to supp were eager to support their music manufacturers. But the French and music manufacturers. But Italians blocked a licensing provision, leaving each nation free to blocked a Italians blocked a licensing provision, leaving each nation free to g provision, leaving each n 105 105 As the public increasingly ned l if and as i As the public increasingly abandoned legislate if and as it wished. ng with its fe its instruments and amateur orchestras, voting with its feet for the ments an its instruments and amateur orchestras, voting with its feet for the ffort te matters be new low- effort technologies of consumption, matters became dire - c n e re 106 ascinating c Fascinating aesthetic for composers and sheet- music publishers. f posers and r - erica. Com debates roiled congressional committees in America. Composers ar- r oiled con debates roiled congressional committees in America. Composers ar paper was b gued that their rights to music’s notation on paper was but an im- - gued that their rights to music’s notation on paper was but an im t their rig onveyed through the ear, not th perfect claim. Music was conveyed through the ear, not the eye. They perfect claim. Music was conveyed through the ear, not the eye. They laim. Mus 107 107 should own their music whether notated or recorded mechanically. ether notated or recorded me wn their m should own their music whether notated or recorded mechanically. arch composer John Philip The American military- march composer John Philip Sousa, one of ne of T erican mi the foremost campaigners, argued that “writings” encompassed the the foremost campaigners, argued that “writings” encompassed the argued that “writings” most camp 108 actual music, not merely its notation. usic, not m a therefore Copyright should therefore 109 i The recording industry countered that com- - recording include recordings. red that com ad rights t posers had rights to the expression of their music, its notation on the posers had rights to the expression of their music, its notation on the page. But the recording, “the sounds themselves,” were music’s id page. But the recording, “the sounds themselves,” were music’s idea, t the reco 110 110 Lawmakers noted in Solomonic fash- Lawmakers noted in Solomonic which they did not control. ey did no which they did not control. ion that, since composers were staking claims to something that was ion that, since composers were staking claims to somethin since com not currently recognized as theirs, they should be content with less not currently recognized as theirs, they should be c ently reco than absolute property rights. t olute prop Sousa passionately lamented the detrimental effect of recordings passionat o on citizens’ music making. Vocal cords would become vestigial, he ns’ music f feared, like the tail. “Music develops from the people, the ‘folk songs,’ ke the tail and if you do not make the people executants, you make them de- a ou do not the mach p pend on the machines.” But his opponents argued that music lessons a music sales were actually increasing. In any case, people music s and sheet- t- 111 pleasure fr derived pleasure from phonographs. d As always in American copy- bates, the right debates, the populist rhetoric was strong and even shameless. r as the m Music was the most democratic art form, a pure republican art. M THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

153 Continental Drift 143 112 Should it be laden with tariffs before reaching a Should it be laden with tariffs before reaching a poor man’s ears? Talking machines brought music to people who could not afford Talking machines brought music to people who could concerts. Recordings were thus like cheap books earlier in th concerts. Recordings were thus like cheap books earlier in the cen- tury, an efficient means of dissemination. Imposing royalties, a manu- tury, an efficient means of dissemination. Imposing royalties, a man facturer insisted, was class legislation on behalf of the few, contradict- facturer insisted, was class legislation on behalf of the few, contradict 113 ing the happiness of the masses. n i The outcome was twofold. Allowing composers rights to mechani- - o mechani cal recordings seemed fair. But that threatened the profits of the now- ings seem But that threatened the cal recordings seemed fair. But that threatened the profits of the now- - mighty recording industry and could give composers and music pub nd could give composers a mighty recording industry and could give composers and music pub- cording in lishers a monopoly of a new, popular medium, turning them into a lishers a monopoly of a new, popular medium, turning them into a w, popular medium, turning monopoly 114 On both sides of the Atlantic, devices for On both sides of the Atlantic, for “ “mechanical- music trust.” c usi m - cal ns, Aeolians musical reproduction multiplied: Orchestrions, Aeolians, Apollos, eproducti musical reproduction multiplied: Orchestrions, Aeolians, Apollos, s, Aristons Angeluses, Aristons, Cecilians, Herophons, Orpheons, Pianophones, heons, Pian Angeluses, Aristons, Cecilians, Herophons, Orpheons, Pianophones, Pianolas, Pianistas, and Symphonions, as well as graphophones and graphoph Pianolas, Pianistas, and Symphonions, as well as graphophones and Pianistas, 115 phonographs. Sousa famously termed it all “canned music.” aphs. Sous - ned music p Imag- arliamentary ine, as George Bernard Shaw admonished a parliamentary commit ine, as George Bernard Shaw admonished a parliamentary commit- t t eorge Bern - tee, a law against theft exempting milk cans just because stealing w against t tee, a law against theft exempting milk cans just because stealing mpting milk cans just becau 11 6 116 t . ustry d become important in nd them had become a large and important industry. urther, several of the record mplicate m had To complicate matters further, several of the recording firms had ously cut surreptitiously cut deals with composers and publishers, promising th composers and publ surreptitiously cut deals with composers and publishers, promising them broad control over musical reproduction rights once these had ad contro them broad control over musical reproduction rights once these had 117 b - oly—of com been recognized in law. Faced with a potential monopoly—of com- gnized in p rs, or some unholy posers, publishers, talking- machine manufacturers, or some unholy ublishers, alliance—legislators carefully extracted concessions for the protec- alliance—legislators carefully extracted concessions for the prote —legislator tion now extended. Statutory licensing promised composers royal- tion now extended. Statutory licensing promised composers r extended ties, but it also allowed anyone to reproduce music once c t also allo ties, but it also allowed anyone to reproduce music once composers agreed to record it in the first place. This solution, achieved first in record it agreed to record it in the first place. This solution, 118 the US in 1909, was shortly followed in the UK in 1911. 1909, was t The Continental nations hesitated. Bowing to their player- piano ontinenta manufacturers, the Germans quickly followed the Americans, licens- urers, the m 119 cal reprod But German composers retained ing musical reproductions in 1910. i n hts than more rights than their Anglophone colleagues. Instead of being m automatic given an automatic right of mechanical reproduction at government- g m royalty rat imposed royalty rates, the recording industry was allowed only to ask i 120 composers to negotiate with them. c Reformers like Julius Kopsch rs to nego a and Willy Hoffmann eagerly advocated compulsory licensing during y Hoffman 121 the last years of the Weimar Republic. Alas for the idea, they pur- ears of the t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

154 144 Chapter 4 sued it as well during the Third Reich, damning it by association for sued it as well during the Third Reich, damning many decades thereafter. In West Germany’s 1965 law mus many decades thereafter. In West Germany’s 1965 law musical licenses were further restricted by exempting works administered by were further restricted by exempting works administered by rights- management organizations, whose contracts took precedence, a management organizations, whose contracts took precedence, and works the composer wished to withdraw altogether. Nor were com works the composer wished to withdraw altogether. Nor were com- 122 122 posers required to license their music for use in films. posers required to license their music for use in films. In France an 1866 law had bowed to Swiss demands that music that music 123 123 t be cons But French legal opinion bri- But French boxes not be considered infringing. b nion bri nfringing. - 4 12 124 In t of war In the midst of war dled at the injustice, whatever the geopolitics. he injustic d ver the geopolitics. in 1917, mechanical music reproduction once again fell under the 1793 eproduction once again fell u echanical in 1917, mechanical music reproduction once again fell under the 1793 law, with a few suspiciously peculiar exceptions for music boxes of law, with a few suspiciously peculiar exceptions for music boxes of y peculiar exceptions for mus a few su 125 Testifying before a British parlia- p specified - a precisely specified dimensions. before a Brit a French la mentary committee in 1909, Georges Maillard, a French lawyer and committe mentary committee in 1909, Georges Maillard, a French lawyer and president of the International Literary and Artistic Association, re- stic Assoc - president of the International Literary and Artistic Association, re t of the In jected the American initiative of compulsory licensing as a “fatal licensing a jected the American initiative of compulsory licensing as a “fatal he Americ 6 126 2 1 rs, During the Berne negotiations of the interwar years, of the inter Dur i precedent.” nt.” p 127 7 7 ha Their 1957 law empha- Their 1957 l - the French staunchly opposed licensing. ch staunc osed ce s g. t sized authorial rights and shunned compulsory licensing. Not until horial rig sized authorial rights and shunned compulsory licensing. Not until shunned compulsory licensin 1985 did the French finally accept a limited form of licensing when the Frenc 1985 did the French finally accept a limited form of licensing when accept a limited form of l they allowed phonograph records to be played in public and on the wed phon records to be played in they allowed phonograph records to be played in public and on the radio in return for royalties and introduced a system of remunera - return for radio in return for royalties and introduced a system of remunera- 128 tion for private copying. t private co COPYRIGHT AND AUTHORS’ RIGHTS COPYRIGHT AND AUTHORS’ RIGHTS GHT AND GO THEIR SEPARATE WAYS IR SEPAR GO THEIR SEPARATE WAYS During the nineteenth century authors’ rights expanded enormously, D he ninetee even as fair use and compulsory licensing reined in what would oth- e air use and erwise have been an exuberant giveaway. By 1900 authors and assign- e ave been a ees everywhere were better positioned than they had been a century e where we earlier. But the new exploitation rights were not equivalent to the ut the ne e personality rights anticipated by Kant and Fichte. The fin- de- siècle p ity rights authors’ rights were still property rights—whether based on natural rights wer a rights or statute—and thus alienable. In practical terms the newly statute— r expansive claims to derivative works gave authors some of the same e claims t e controls as personality- based rights. But the crucial distinction re- as person c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

155 Continental Drift 145 mained. Property can be assigned, while persona mained. Property can be assigned, while personality claims largely to e r adhe autho r . the adhere to the author. Only in the twentieth century were the moral rights—the cap- Only in the twentieth century were the moral rights—th stone of the divergence between copyright and authors’ rights—i stone of the divergence between copyright and authors’ rights—im- plemented, and it is to their story that we now turn. Moral rights plemented, and it is to their story that we now turn. Moral rights 129 129 sprang from two sources: German legal theory and French case law. sprang from two sources: German legal theory and French case law. Kant, Fichte, and other German theorists had first formulated the Kant, Fichte, and other German theorists had first formulated the onal rights. But mora theory of the author’s personal rights. But moral rights were first f the auth theory of the author’s personal rights. But moral rights were first d in Frenc developed in French case law late in the nineteenth century. By the developed in French case law late in the nineteenth century. By the aw late in the nineteenth c g of the beginning of the twentieth, they had entered French legal text- beginning of the twentieth, they had entered French legal text - h, they had entered French 130 id b Not until the early 1900s, and then at first in Germany, did books. Not until y 1900s, and then at first in Ge Italian Fasci they find legislative embodiment. In 1928 the Italian Fascists placed legislative they find legislative embodiment. In 1928 the Italian Fascists placed hts on the moral rights on the Berne agenda. But not until the culturally bruised he culturall moral rights on the Berne agenda. But not until the culturally bruised - achieve fu y years after the Second World War did they finally achieve full legisla- r the Seco t on on the tive fruition on the Continent. and Germ France and Germany approached moral rights differently. Though ts differently h Continental legal theorists have parsed the distinctions minutely, suf- f f have parsed the distinctions mi tal legal th - Continental legal theorists have parsed the distinctions minutely, suf on between dualist (French) fice it here to note the division between dualist (French) and monist e to note t fice it here to note the division between dualist (French) and monist ch law recognized a gener (German) approaches. French law recognized a general doctrine of ) approach (German) approaches. French law recognized a general doctrine of ty rights— me, reputation, honor, personality rights—to name, reputation, honor, privacy, and the personality rights—to name, reputation, honor, privacy, and the like—that belonged to all citizens, not just authors. Why then treat like—that belonged to all citizens, not just authors. Why then treat t belonge r’s person - the author’s personality rights separately, as though they were pecu the author’s personality rights separately, as though they were pecu- liar to one profession? Instead, the French bisected authorial rights. e professi liar to one profession? Instead, the French bisected authorial rights. Exploitation rights dealt with the creator’s economic stake and were Exploitation rights dealt with the creator’s economic stake and we ion rights fully alienable. Moral rights were treated as an aspect of personality nable. Mo fully alienable. Moral rights were treated as an aspect of person rights and remained inalienably with him. d remaine rights and remained inalienably with him. German law, by contrast, did not recognize a general right of per- n law, by did not recognize a gene s ntil after sonality until after the Second World War. But earlier, it did acknowl- 131 e vidual per edge individual personality rights. The personal aspects of authors’ rights were thus not seen as one element of a larger set of citizens’ re thus no r ty rights. p personality rights. Instead, they were packed together with the ex- ploitation rights into one unified, monist conception of authors’ p n rights in 132 But if the author’s personal rights were part of his overall But if the rights. r r uld they to rights, could they too be alienated like his economic rights? To avoid sirable ou this undesirable outcome, German doctrine drew an even more radi- t usion than c cal conclusion than the French: no authors’ rights—even of exploita- uld ultima t tion—could ultimately be alienated. Unable to assign their works, to THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

156 146 Chapter 4 133 this day German authors can therefore at most g this day German authors can therefore at most grant use rights. A practical consequence of Germany’s monist approach w practical consequence of Germany’s monist approach was that per- sonal rights expire at the same time as economic rights. In sonal rights expire at the same time as economic rights. In France such synchronization was not required, and moral rights rem such synchronization was not required, and moral rights remain p perpetual. Despite such differences the French and the Germans shared a mans shared a sense that the conventional property concept could not extend to sense that the conventional property concept could not extend to - - intellectual matters. How could a work be both property and per ual matter could a work be both intellectual matters. How could a work be both property and per r r sonal, be both alienated and yet remain with the author? Hence the d yet remain with the aut sonal, be both alienated and yet remain with the author? Hence the both alie 134 134 - Moral right Moral rights pushed be- be d n sallied discussion sallied forward to personality. to personality. aterial property rights, of th yond even extensive immaterial property rights, of the sort that en extens yond even extensive immaterial property rights, of the sort that at sprang fro Kohler had elaborated, defending instead what sprang from the cre- Kohler had elaborated, defending instead what sprang from the cre - ad elabor ator’s personality. Moral rights thus expanded, altered, and arguably ltered, and ator’s personality. Moral rights thus expanded, altered, and arguably rsonality. transcended property rights. They introduced to chattels restrictions transcended property rights. They introduced to chattels restrictions chattels re ded prope wner simil on the owner similar to those already possible for real estate. Chattels on the owner similar to those already possible for real estate. Chattels r real estate ractual con - could be sold to the initial buyer with contractual conditions at e sold to could be sold to the initial buyer with contractual conditions at- tached. But such reservation of rights could not be continued to sub ut such re n of rights could not be contin tached. But such reservation of rights could not be continued to sub- - sequent owners, in the way that servitudes or easements could be on that servitudes or easements owners, in sequent owners, in the way that servitudes or easements could be on real estate. Moral rights aimed to introduce such restrictions for per- e. Moral r real estate. Moral rights aimed to introduce such restrictions for per - r r med to introduce such restr sonal property, imposing conditions on future owners of works that onditions on future ow sonal property, imposing conditions on future owners of works that operty, im 135 enforced the author’s continued interests. e the autho t - Moral rights were concretely formulated first in French legal writ- t nch legal writ rights we ing and practice, starting in the 1840s. But curiously, the first instance practice, st ing and practice, starting in the 1840s. But curiously, the first instance hrase used of the phrase used in conjunction with authors’ rights occurred in of the phrase used in conjunction with authors’ rights occurred Britain as early as 1793—and it was wielded to justify the Anglo- s early as Britain as early as 1793—and it was wielded to justify the A Saxon approach. The great British jurist Blackstone relied proach. T Saxon approach. The great British jurist Blackstone relied heavily on 136 So did Locke’s idea that the author’s labor justified his ownership. dea that t Locke’s idea that the author’s labor justified his own one of his commentators, the irascible Edward Christian. A professor s commen o of law and brother of the mutineer, Fletcher Christian, he was Bounty d brother o w waspishly immortalized as “having died in the full vigor of his inca- y immort 137 Christian Christian called the natural right that Locke formulated p pacity.” kstone acc a and Blackstone accepted a “moral right.” Moral rights were those in- tuitively obvious to reason, which sprang from an inquiry “whether t obvious t it is such as the reason, the cultivated reason, of mankind must neces- as the rea i sarily assent to.” Christian agreed with Locke and Blackstone that s ent to.” C had a natu authors had a natural or “moral” right to their works. But then, in a S y Anglo- c classically Anglo- Saxon manner, he marshaled the logic of natural THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

157 Continental Drift 147 rights on behalf of the public domain. If any priva rights on behalf of the public domain. If any private right was sacred, he concluded, “it is that where the most extensive benefit flows to he concluded, “it is that where the most extensive bene mankind from the labour by which it is acquired.” Literary pro mankind from the labour by which it is acquired.” Literary property was “founded upon the same principle of general utility to society, was “founded upon the same principle of general utility to socie 138 138 which is the basis of all other moral rights and obligations.” which is the basis of all other moral rights and obligations.” Used in the Continental sense, however, the concept of moral cept of moral rights was broached perhaps first by the jurist Renouard in 1838. He rights was broached perhaps first by the jurist Renouard in 1838. He sought to undercut the idea of literary property rights, harking back of literary property ri sought to undercut the idea of literary property rights, harking back undercut instead to the revolutionary ideals of the public domain. But he also instead to the revolutionary ideals of the public domain. But he also o the revol ideals of the public doma when he spoke of the auth foreshadowed moral rights when he spoke of the author’s “moral owed mor foreshadowed moral rights when he spoke of the author’s “moral ility” to ta responsibility” to take back, change, and complete his writings since change, and complete his wri responsibility” to take back, change, and complete his writings since 139 As we have seen in the previous he was their “absolute arbiter.” heir “abso us h seen in the fully deve chapter, fully developed moral rights were formulated first by the mulated fir chapter, fully developed moral rights were formulated first by the French jurist André Morillot in the 1870s. He claimed full “moral urist Andr French jurist André Morillot in the 1870s. He claimed full “moral aimed fu - efore and a s sovereignty” for the author over his work, both before and after pub- ty” for the giarists as ba and descr lication, and described our contempt for plagiarists as based on a lication, and described our contempt for plagiarists as based on a 140 1 “ pert on the monist German do “droit tout moral.” ut moral.” An expert on the monist German doctrine, he he nonetheless advocated a dualistic theory, with property rights along- nonetheless advocated a dualistic theory, with property rights along - ess advoca alistic theory, with property r right. By 1887 the idea th side a personality or moral right. By 1887 the idea that both moral side a personality or moral right. By 1887 the idea that both moral rsonality o due the author seems to omic righ and economic rights were due the author seems to have been com and economic rights were due the author seems to have been com- - 141 m e in Franc as neither monplace in France. But the crucible of moral rights was neither ists nor th the theorists nor the lawmakers, who would later become active. It the theorists nor the lawmakers, who would later become active. It was the courts. Moral rights began as judge- made law. ourts. Mo w aw. sure was a Disclosure was among the first moral rights to be litigated. It over- e first moral rights to be litigated. It ove lapped with an elemental exploitation right: deciding whe with an e lapped with an elemental exploitation right: deciding whether, when, and how to convey the work to the public. Yet a moral dimen- when, and how to convey the work to the public. Yet a mor d how to c sion also slowly emerged. An early example was sion also slowly emerged. An early example was the composer slowly e V who is said Vergne, who is said to have died of regret after his mass failed to win a composition prize. When his widow and child fell on hard times, a ition priz creditors sought to seize and publish the mass. In 1828 the heirs sued sought to c t control ov to retain control over the manuscript. Because it had been performed t church, b w twice in a church, but never published, the court agreed that by natu- ral right it belonged to the composer. It could not be taken in lieu of t belonged r 142 142 In another instance a great orator, the abbé Jean- t In ano Baptiste his debts. h Lacordaire, sought successfully in 1845 to block an unauthorized edi- e, sought L 143 In neither s speeches t tion of his speeches based on notes taken at public talks. instance was it clear which spoke loudest: Mammon or morality. The was it clea i n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

158 148 Chapter 4 author s exploitation right to determine the wor author’s exploitation right to determine the work’s first appearance and his moral right of disclosure were not entirely identical. Some and his moral right of disclosure were not entirely iden scholars doubt that the mid- nineteenth- century French courts had century French cou - scholars doubt that the mid - nineteenth identified moral prerogatives independent of authors’ and heirs’ e identified moral prerogatives independent of authors’ and heirs’ eco- nomic rights. Others conclude that by this point case law had recog nomic rights. Others conclude that by this point case law had recog- 144 n nized disclosure as a moral right. The Whistler affair of the 1890s also mixed the mercenary and the ary and the ames Whi American expat pain moral. James Whistler, the American expat painter, had been com- - moral. James Whistler, the American expat painter, had been com missioned to paint Lady Eden for a fee between 100 and 150 guineas. missioned to paint Lady Eden for a fee between 100 and 150 guineas. den for a fee between 100 a d to paint Upon completion, Lord Eden paid one hundred. Apparently miffed, Upon completion, Lord Eden paid one hundred. Apparently miffed, mpletion, en paid one hundred. Appar Whistler returned the check, refused to deliver the portrait, and dis- - Whistler returned the check, refused to deliver the portrait, and dis returned k, refused to deliver the portr figured the face. Eden sued, winning damages. Whistler’s lawyer ar- - figured the face. Eden sued, winning damages. Whistler’s lawyer ar he face. E s. Whistler’s r r - gued that the artist must himself decide when the work was com- gued that the artist must himself decide when the work was com the work t the artis Otherwise, ight have pleted. Otherwise, if paid in advance, a painter might have to deliver pleted. Otherwise, if paid in advance, a painter might have to deliver an unfinished piece. But was the piece not yet ready? Whistler had ready? Wh ished piec an unfinished piece. But was the piece not yet ready? Whistler had ce in a press not only described his portrait as a masterpiece in a press interview, described not only described his portrait as a masterpiece in a press interview, 145 lso exhibi h he had also exhibited it. ht of as the jurisprudential co The case is often thought of as the jurisprudential cornerstone of ase is often e of osure righ the disclosure right. But in technical fact it merely found that Whis- - the disclosure right. But in technical fact it merely found that Whis technical fact it merely fou tler could not be held to specific performance. Because he had not d not be h pecific performance. B tler could not be held to specific performance. Because he had not d the port delivered the portrait, he had not yet sold it. Eden did not own it, delivered the portrait, he had not yet sold it. Eden did not own it, and Whistler could not be compelled to fulfill their contract. But and Whistler could not be compelled to fulfill their contract. But stler coul —and wa he could—and was—held liable for the commission and damages. he could—and was—held liable for the commission and damages. 146 146 Moral rights The judgment remained well within existing law. The judgment remained well within existing law. Moral righ gment rem were not mentioned, though the case for Whistler pointed out that mention were not mentioned, though the case for Whistler pointed ou the rights invoked were ones “closely attached to the person of the s invoked the rights invoked were ones “closely attached to the per 147 Interestin n was refused possession a artist.” Interestingly, Eden was refused possession even of the dis- figured portrait. But Whistler retained ownership of the canvas only portrait. Bu fi tion that o on condition that he render it unrecognizable and thus no longer a Having r p portrait. Having returned Eden’s commission and paid damages, Whistler still did not fully own his own painting. In the event, still did W W replaced Whistler replaced Lady Eden’s face with that of Mrs. Herbert Dud- ley Hale, wife of a prominent architect. What Mrs. Hale thought of wife of a l een, in eff h having been, in effect, photoshopped onto Lady Eden’s body, his- 148 tory does not record. t s not reco ase that p The case that pitted Anatole France against the editor Alphonse was mor Lemerre was more purely concerned with aesthetics. In 1882, aged L THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

159 Continental Drift 149 thirty eight, France had delivered the manuscript thirty- eight, France had delivered the manuscript of a history of his country—France on France. Only thirty years later, in 1910, did the country—France on France. Only thirty years later, in 19 editor announce plans to issue it. France successfully sued to forestall editor announce plans to issue it. France successfully sued to fo 9 149 14 publication and was required only to return his advance. Spari Sparing publication and was required only to return his advance. his reputation by not allowing the publication of outmoded juve his reputation by not allowing the publication of outmoded juve- nilia seems to have been France’s primary concern. An earthier ex nilia seems to have been France’s primary concern. An earthier ex- x x - ample of case law on disclosure came in 1962 from the most famous ample of case law on disclosure came in 1962 from the most famous history, the French pa - ppliance kitchen appliance in legal history, the French painter Bernard Buf- kitchen appliance in legal history, the French painter Bernard Buf f f gerator. In r - fet’s refrigerator. Invited to decorate a fridge to be auctioned for char fet’s refrigerator. Invited to decorate a fridge to be auctioned for char- r decorate a fridge to be auct ity, Buffet painted all six panels. Considering them a whole, he signed painted a ity, Buffet painted all six panels. Considering them a whole, he signed els. Considering them a who Half a ye when an auction catalogue lis only one. Half a year later, when an auction catalogue listed one of only one. Half a year later, when an auction catalogue listed one of 50 150 ed to prevent t the panels as a separate piece, the artist prevailed to prevent its sale. s as a sepa history tha The attribution right had a less compelling history than disclo- - tribution sure. In 1835 the editor Renault was condemned for publishing a d for pub sure. In 1835 the editor Renault was condemned for publishing a 835 the e work by Lavenas under another’s name. During the 1890s a French work by Lavenas under another’s name. During the 1890s a French the 1890s Lavenas u case pitted a painter against a publisher who reproduced his work reproduced case pitted a painter against a publisher who reproduced his work d a painte 151 151 as with a monogram rather than his signature. w More inter More interesting was han his signature. onogram the slow emergence of integrity from case law. Both the 1794 Prussian emergence the slow emergence of integrity from case law. Both the 1794 Prussian rity from case law. Both the 17 Landrecht and the 1809 Badenese Civil Code foreshadowed integrity t and the enese Civil Code foreshado Landrecht and the 1809 Badenese Civil Code foreshadowed integrity in forbidding publishers from issuing new and changed editions in forbidding publishers from issuing new and changed editions rom issuing new and ding pub without authorial permission. In 1814 the jurist Jean- Marie Pardessus uthorial p Pardessus w at the buy argued that the buyer of a manuscript could not change, enhance, or argued that the buyer of a manuscript could not change, enhance, or excerpt it. Nor could he destroy or refuse to publish it. He was, in . Nor cou excerpt it. Nor could he destroy or refuse to publish it. He was, in ufructuary fact, a usufructuary, someone who enjoyed the use of the property fact, a usufructuary, someone who enjoyed the use of the proper not its ow but was not its owner. Having sold his manuscript, the autho but was not its owner. Having sold his manuscript, the author had 152 1 5 2 not also alienated his hopes of fame and reputation. In 1842 the not also alienated his hopes of fame and reputation. In alienated philosopher Auguste Comte won a case against his publisher for un- philosopher Auguste Comte won a case against his p her Augus 153 authorized changes. d change The same year another French author won a damages for changes to his work by a publisher in a new edition. d for chang e had alien E Even if he had alienated his economic rights, the court ruled, he had not given up the right to correct it. Otherwise, he “put his reputation up the rig n 154 at the mercy of the buyer.” rcy of the a The hurdle to the emergence of fully fledged moral rights was not rdle to th ut honor a m money but honor and reputation. Reputation might be a more noble a than mer ambition than mere lucre. But it did not seamlessly coincide with the ceived of work conceived of as the expression of the author’s personality. After w es to the all, changes to the work—even carried out by others against the au- a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

160 150 Chapter 4 might enhance, not hurt, his reput thor s will thor’s will—might enhance, not hurt, his reputation. If reputation was the protected good—not authorial control of the final product, was the protected good—not authorial control of the fin warts and all—then a violation of integrity that enhanced warts and all—then a violation of integrity that enhanced the au- 1 55 155 thor’s standing might not be actionable. thor’s standing might not be actionable. mte’s sometimes wen Because of such ambiguities, cases like Comte’s sometimes went against the plaintiffs if the modifications had not harmed their repu- against the plaintiffs if the modifications had not harmed their repu - 156 tations or otherwise damaged them. t Since harm (to economic or onomic or reputational assets) remained the issue, such cases did not found a ned the issue, such cas onal assets reputational assets) remained the issue, such cases did not found a ans of pro new means of protecting the author’s subjective sense of his work’s he author’s subjective sens new means of protecting the author’s subjective sense of his work’s inviolability. In France such cases remained based on the Civil Code’s lity. In Fra h cases remained based on the inviolability. In France such cases remained based on the Civil Code’s 157 157 7 But slowly, th r requirement of restitution for damages. But slowly, the author’s for damages ment of re or’s right of control emerged, independent of the implications for his he implicatio right of control emerged, independent of the implications for his control em on. In 1912 reputation. In 1912 the German painter Arnold Böcklin successfully Böcklin su reputation. In 1912 the German painter Arnold Böcklin successfully in a priv sued to restore a mural on an interior staircase in a private Berlin sued to restore a mural on an interior staircase in a private Berlin restore a m he house o s naked sir home. The house owner had retouched Böcklin’s naked sirens in the home. The house owner had retouched Böcklin’s naked sirens in the nd the work spirit of modesty. The stairwell was private, and the work was seen modesty. spirit of modesty. The stairwell was private, and the work was seen esidents a only by residents and guests. Yet the court, agreeing with the nymph- only by residents and guests. Yet the court, agreeing with the nymph- s. Yet the court, agreeing with t Böcklin, painting Böcklin, stepped beyond reputation to grant the artist a beyond reputation to grant painting Böcklin, stepped beyond reputation to grant the artist a control hi regardless of whether his p right to control his work, regardless of whether his public standing right to control his work, regardless of whether his public standing 158 158 ake. was at stake. w At its outer limit, however, integrity inevitably ran up against tra- - gainst tra outer lim ditional property rights. A new owner might not be able to alter a property ditional property rights. A new owner might not be able to alter a work, but he could destroy it. Though artists are said to have prop work, but he could destroy it. Though artists are said to have prop- t he could erty in their works, one British MP commented in 1861, that is n heir work erty in their works, one British MP commented in 1861, that is not ue. Other strictly true. Otherwise, they could oblige buyers to care for the strictly true. Otherwise, they could oblige buyers to care for them. Yet 1 5 159 9 nothing prevented owners from burning works. prevented nothing prevented owners from burning works. Artists Artists attempted in vain legally to compel owners to cherish and care for their art- in vain legally to compel owners to cherish and c egally to works. But even on the Continent courts agreed that owners could ut even o w 160 When a freely destroy art without harming the artist’s reputation. stroy art w f c ation in J congregation in Juvisy complained that its chapel wall paintings w were unsuitable, the curé had them painted over. Though the artist uitable, th sued for harm to his reputation, the Paris Court of Appeals ruled in s harm to h 161 The 1934 that the owner was not obligated to preserve the artwork. 1 the owne destructio family’s destruction of Graham Sutherland’s controversial portrait of f Churchil Winston Churchill bothered British observers. But even Britain’s in- W troduction of moral rights in 1988 did not oblige owners to preserve t on of mor 162 The Berlin works. The Berlin Wall’s graffiti artists were found to have no moral w THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

161 Continental Drift 151 163 Unexpect- right to prevent the destruction of their concrete canvas. right to prevent the destruction of their concrete c edly, the United States alone banned destruction under m edly, the United States alone banned destruction under moral rights 164 164 legislation, although only of well- known visual artworks. . - w n v isual art legislation, although only of well orks kno w Moral rights thus emerged slowly during the late nineteenth ce Moral rights thus emerged slowly during the late nineteenth cen- tury from the grinding gears of French and German case law, lubri- tury from the grinding gears of French and German case law, lubri cated by theorists’ writings but unsanctioned as yet by much legisla - cated by theorists’ writings but unsanctioned as yet by much legisla- tion. As in the Lamartine debate of 1841, an odd combination of tion. As in the Lamartine debate of 1841, an odd combination of nce, and debt prompt divorce, marriage, divorce, inheritance, and debt prompted outcomes that marriage, divorce, inheritance, and debt prompted outcomes that ntually ha undamental human rights were eventually hailed as fundamental human rights. Noble aspira- - were eventually hailed as fundamental human rights. Noble aspira tions were born of the backstage legal machinery of modern life. tions were born of the backstage legal machinery of modern life. e born of ckstage legal machinery of m Divorce, permitted again in France in 1884 for the first time since the permitted Divorce, permitted again in France in 1884 for the first time since the France in 1884 for the first tim etween econ revolution, forced the issue of distinguishing between economic and revolution, forced the issue of distinguishing between economic and n, forced t 165 165 ted as the - C (1902) is often cited as the first prac- Cinquin v. Lecocq in moral rights. hts. m ted a majo mulation o tical formulation of moral rights. That it represented a major change tical formulation of moral rights. That it represented a major change son and h we comp is clear if we compare it to the 1880 case of Masson and his son. In is clear if we compare it to the 1880 case of Masson and his son. In Masson widowed e, om the first , a widowed writer remarried. The son from the first marriage, M his mother’s sole heir, sued his father for her share of his literary and his mother’s sole heir, sued his father for her share of his literary and er’s sole h his father for her share of his li t t works. Th dramatic works. The courts agreed, treating these as any other chat- - agreed, treating these as any dramatic works. The courts agreed, treating these as any other chat ct to the ws of inheritance, as well tel, subject to the usual laws of inheritance, as well as being the tel, subject to the usual laws of inheritance, as well as being the 166 16 mother’s due for her contributions to the family. due for h m butions to the family. y- t Masson ’s assumption, that literary property wo yea Twenty- two years later, property r any other, was like any other, was questioned. Charles Lecocq was a composer was like any other, was questioned. Charles Lecocq was a composer of light operas, best remembered for his peras, bes La Fille de Madame Angot . de Madame Angot o When he married in 1876, he exempted his bachelor compositio When he married in 1876, he exempted his bachelor compositions married common from the common marital property that is the default position in the from the common marital property that is the default position i Napoleonic system. But he had said nothing about works Napoleonic system. But he had said nothing about works he might nic system 1 167 6 When the couple then divorced in 1897, did the the couple then divorced pen in the future. p e future. his later co rights to his later compositions belong to both partners? The income r works wa f from his works was clearly to be shared with his spouse. But was bliged to s L Lecocq obliged to share creative decisions with his ex- wife—whether h or to issu t to publish or to issue new editions? In 1898 the Seine Tribunal made a full co- t o the wife a full co- owner of Lecocq’s works composed during their An appea marriage. An appeal in 1900 to the Paris court reversed the decision. m L property w Literary property was not the sort that could be shared, the court d. While now ruled. While fair to divide the revenues, the actual property n right still belonged to Lecocq. Otherwise, the author must share with belonged r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

162 152 Chapter 4 wife (or her heirs should she die) his m ex his his ex- wife (or her heirs should she die) his “most sacred and most personal” rights just when their relations might be at the personal” rights just when their relations might be at their worst. The Supreme Court, however, reversed this decision, or at least The Supreme Court, however, reversed this decision, or a tempered it. The Paris appeals court had implicitly recognized tempered it. The Paris appeals court had implicitly recognized au- thors’ rights as personal and inalienable, though it had not detailed thors’ rights as personal and inalienable, though it had not detailed their content. The public prosecutor, Manuel Baudouin (who also their content. The public prosecutor, Manuel Baudouin (who also prosecuted Dreyfus’s second trial two years later, when he was acquit prosecuted Dreyfus’s second trial two years later, when he was acquit - t t - ted), cautiously sought to restrict the lower instance’s more radical ted), cautiously sought to restrict the lower instance’s more radical tiously so restrict the lower insta approach. He rejected the Paris court’s assertion that intellectual approach. He rejected the Paris court’s assertion that intellectual Paris court’s assertion th h. He reje property was not property, affirming instead conventional views at was not , affirming instead conventio property was not property, affirming instead conventional views at length. As an incorporeal chattel, literary property became part of length. As an incorporeal chattel, literary property became part of As an inco chattel, literary property beca community property. He also argued for personal rights, inseparable onal rights, in community property. He also argued for personal rights, inseparable nity prope from their subjects, that could neither be assigned nor attached and from their subjects, that could neither be assigned nor attached and ed nor atta ir subject did not enter common marital property. Parental and spousal rights did not enter common marital property. Parental and spousal rights nter com l and spou were examples. But authors’ rights were not among them. True, the mples. Bu ong them were examples. But authors’ rights were not among them. True, the a personal r in the cre concept in the creator’s mind was naturally a personal right—but concept in the creator’s mind was naturally a personal right—but trivially and undisputedly so. Only when the work took on form and undi so. Only when the work too trivially and undisputedly so. Only when the work took on form through dissemination did it become literary property. But this liter dissemina it become literary property. B through dissemination did it become literary property. But this liter- - r r ary property, which Baudouin then folded back into the matrimonial ary property, which Baudouin then folded back into the matrimonial erty, which uin then folded back into th property, meant only the work’s income. Like other forms of prop- property, meant only the work’s income. Like other forms of prop meant on - work’s income. Like oth erty, it could be attached by creditors. However—and here things erty, it could be attached by creditors. However—and here things ould be a became interesting—Baudouin qualified literary property. The au interestin became interesting—Baudouin qualified literary property. The au- - thor retained the right, even after his literary property had been thor retained the right, even after his literary property had been ained the seized, to change his work, so long as he acted in good faith, without seized, to change his work, so long as he acted in good faith, witho change h intending to defraud his creditors. intending to defraud his creditors. g to defra ed. The monetary aspects of lite upreme C The Supreme Court agreed. The monetary aspects of literary prop- erty belonged to community property. But the auth nged to c erty belonged to community property. But the author had a right— inherent in his personality—to change his work, or even suppress it, i in his per so long as he did not try to harm his spouse. The court thus retained s he did n s the principle of literary property as a conventional form of property, ciple of lit t o the laws subject to the laws of divorce and debt. But additionally it recognized s al right th a a personal right that the author did not share with former spouses or , although creditors, although it seems to have been limited to the power to c anges and make changes and possibly to destroy or suppress the work. Authors’ m ad thus be rights had thus been recognized in two forms: pecuniary and per- r ut the lim sonal. But the limiting clause—that personal rights could not be s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

163 Continental Drift 153 used to harm the economic interests of spouses or creditors—re- used to harm the economic interests of spouse strained the author’s freedom of action. What an embitt strained the author’s freedom of action. What an embittered author considered “improvements” to his œuvre might well detract from the considered “improvements” to his œuvre might well detract fro monies anticipated by his former spouse or creditors. What if he monies anticipated by his former spouse or creditors. What if took the work out of circulation? At the very least, torn between took the work out of circulation? At the very least, torn between reputation and revenge, the divorced author’s decision was not a reputation and revenge, the divorced author’s decision was not a foregone conclusion. fo , literary property, including its moral aspects, had been ad been r In Masson tera li , on s rty, including its moral then split it apart, regard- Lecocq conceived of as property tout court. - then split i c gard L ut court. d of as pro ecocq ing only its economic aspects as a form of property. In 1936 the Canal ing only its economic aspects as a form of property. In 1936 the Canal ts as a form of property. In 19 ts econom divorce case took a further step. Lecocq was a mirror image of Canal . was a mirror image cq d ase took a . Canal step l Upon divorcing, the husband of the composer Marguerite Canal vorcing, th ser Marguer Upon divorcing, the husband of the composer Marguerite Canal ights to h claimed rights to her works. With no nuptial contract, their property claimed rights to her works. With no nuptial contract, their property tract, their munal. Th ding that was communal. The court sided with the wife, finding that the fruits was communal. The court sided with the wife, finding that the fruits er goods. T of her works published during marriage were her goods. The right orks publi of her works published during marriage were her goods. The right to exploit them remained hers, while their income belonged to com- me belonge to exploit them remained hers, while their income belonged to com - them rem munity property. It was the author’s prerogative to control her works, author’s prerogative to control munity property. It was the author’s prerogative to control her works, roperty. It ruled, wi ne glaring exception that un the court ruled, with the one glaring exception that under French the court ruled, with the one glaring exception that under French law, married women still had to obtain their husband’s permission ad to obtain their husband ied wome law, married women still had to obtain their husband’s permission 1 68 168 e. to publish in the first place. Canal h in the fi took a step b cocq b y by Lecocq took a step beyond Canal l t deciding that the author’s rights were a faculty inherent in the per- r r - deciding that the author’s rights were a faculty inherent in the per that the a remainin son, thus remaining with her. s But control over works in divorce remained unresolved legisla- ntrol ove unresolved legisla - tively. Commentators were gripped by fears that creditors, heirs, wid- tively. Commentators were gripped by fears that creditors, heirs, wi mmentato o even irate uses might gain sway over authors’ ows, and even irate ex- spouses might gain sway over authors’ most personal decisions. Even an adulterous wife might have a say over personal decisions. Even an adulterous wife might have a decisions 169 er ex- h whether her ex- husband reissued or suppressed his works. ssued or suppressed his w w s Though u h con- the wife composer’s moral rights were affirmed in 1938, t composer Canal percolate t tinued to percolate up through the judicial system. In 1945 France’s 170 Partly in Supreme Court reversed to favor the ex- husband instead. Court rev S response to this refusal to consider literary property as exclusively r to this re attached to the author, the 1957 law (to which we come in chapter 6) to the auth a resolved the problem once and for all. It stated explicitly that, what- r he proble e ened to th ever happened to the economic rights, the moral ones remained with or or his r the author or his representatives and did not become part of com- t 171 ital prope mon marital property. m THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

164 154 Chapter 4 THE BERNE UNION AND THE ASCENT OF THE AUT THE BERNE UNION AND THE ASCENT OF THE AUTHOR In the Berne Union national divergences once again were articulated In the Berne Union national divergences once again were articula and pitted against each other. From its beginning in 1886, Berne had and pitted against each other. From its beginning in 1886, Berne had broadly championed the Continental view of authors’ rights. France broadly championed the Continental view of authors’ rights. France embodied the Continental tradition most emblematically, with Ger- embodied the Continental tradition most emblematically, with Ger - r r many running a close second. The United States retained the copy- nning a c nd. The United States many running a close second. The United States retained the copy - right tradition most faithfully. It remained outside Berne for its first right tradition most faithfully. It remained outside Berne for its first dition mo ully. It remained outside B century, joining only in 1989. The British fit uncomfortably between oining on century, joining only in 1989. The British fit uncomfortably between 89. The British fit uncomforta the two extremes. Heavily dependent on the American market and extremes. the two extremes. Heavily dependent on the American market and dependent on the American m angling allia hoping to lure the US into the mutually entangling alliances of in- - o lure the hoping to lure the US into the mutually entangling alliances of in ternational copyright, British authors and publishers feared acting lishers fear nal copyri ternational copyright, British authors and publishers feared acting 172 unilaterally vis- à- vis the former colonies. But they also wanted to à- hey also w u lly vis- o v ns, lest the of Europe be part of European and global copyright unions, lest they end up be part of European and global copyright unions, lest they end up . They hope being protected only in their own dominions. They hoped to bring otected on being protected only in their own dominions. They hoped to bring the Americans closer to Berne and were heartened when the United eartened when ricans clo the Americans closer to Berne and were heartened when the United 173 173 States sent an observer to the formative meetings. e formative meetings h S . nt an obse h fought a rearguard battl n Berne, t oined Within Berne, the British fought a rearguard battle. They joined from the onset but then prevaricated so as to delay, dilute, and deflect evaricated so as to delay, onset but from the onset but then prevaricated so as to delay, dilute, and deflect the full consequences of their membership. As Berne expanded to consequen the full consequences of their membership. As Berne expanded to - include more member nations, the cost of remaining outside in more mem include more member nations, the cost of remaining outside in- creased. The American disseminating industries wanted access, first The Amer creased. The American disseminating industries wanted access, first column for to sell their goods and later to combat piracy. As a fifth- column force eir goods to sell their goods and later to combat piracy. As a fifth- the med at home, the media industries worked against the copyright at home, the media industries worked against the copyright tradi- mphasis on tion’s emphasis on the public domain. And like the publish tion’s emphasis on the public domain. And like the publishers of the th century eighteenth century, they cleverly managed to prese eighteenth century, they cleverly managed to present their interests . as though they were the same as authors’ h they we a The Berne Union emerged from proposals for reciprocal copy- erne Uni r right relations broached at the 1878 International Literary Congress ations bro i in Paris, a writers’ jamboree presided over by Victor Hugo, then an a writers’ 174 Berne aimed to deal overripe literary figure of enormous renown. literary fi o with foreign authors’ works, the treatment of local authors abroad, eign autho w and other aspects of international copyright. It standardized the er aspects a t of work t treatment of works in foreign countries and set minimum levels of domestic legislation that member nations were encouraged and c legislati d sometimes required to meet. es require s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

165 Continental Drift 155 The late nineteenth century was the golden ag The late nineteenth century was the golden age of international organizations. But the coming together of nations, with their varying organizations. But the coming together of nations, with th traditions, ideologies, and political systems, was not always eas traditions, ideologies, and political systems, was not always easy. The 1865 International Telegraph Union, the 1874 Universal Postal Unio 1865 International Telegraph Union, the 1874 Universal Postal Union, and the 1875 Treaty of the Meter were hammered out harmoniously and the 1875 Treaty of the Meter were hammered out harmoniously enough. But locating the prime meridian in Greenwich raised na - enough. But locating the prime meridian in Greenwich raised na- 175 tionalist hackles in France. And the International Sanitary Confer- ry Confer - r r t to- toe on n starting e ences (ten starting in 1859) brought different nations toe- brought different nat toe on how to balance citizens’ rights with society’s needs in the face of how to balance citizens’ rights with society’s needs in the face of alance cit ghts with society’s needs - - dangerous infectious diseases—a political issue of the first magni ses—a political issue of the dangerous infectious diseases—a political issue of the first magni s infectio 176 tude. t ne So, too, ideological battles were fought within the Berne o, too, id l battles were fought within etween au U Union, between authors’ rights and copyright. The initial Berne meetings, in the years up to 1886 and then again 1886 and th itial Berne n in 1896 and 1908, choreographed a pas de deux between the different tween the nd 1908, ch in 1896 and 1908, choreographed a pas de deux between the different approaches of France and Britain, the two extremes. Often in alliance es of Fran approaches of France and Britain, the two extremes. Often in alliance es. Often in e with other Mediterranean nations and sometimes with members e with other Mediterranean nations and sometimes with members it imes with d r Me from Central Europe, France was the most principled defender of ce was the most principled d from Central Europe, France was the most principled defender of ntral Euro nterests. T authors’ interests. The UK, generally backed by the Commonwealth, authors’ interests. The UK, generally backed by the Commonwealth, generally backed by the Com copyright spoke for copyright’s concern for the public. As small countries with spoke for copyright’s concern for the public. As small countries with rn for the public. As small c an appetite for more culture than they produced at home, the Scan- an appetite for more culture than they produced at home, the Scan - e than they produced a te for mo dinavian nations were eager to import works and therefore to curb nations w dinavian nations were eager to import works and therefore to curb authors’ and disseminators’ rights. They often supported the Anglo- - nd dissem authors’ and disseminators’ rights. They often supported the Anglo phone position. For example, while the French sought to give au- phone position. For example, while the French sought to give au - osition. Fo thors control over translations for the full term of exploitation, the trol over thors control over translations for the full term of exploitation, th 177 7 177 Scandinavians insisted on shorter durations. vians insis Scandinavians insisted on shorter durations. The British colonies The British col agreed. The colonial authorities in India feared that translat he colonia agreed. The colonial authorities in India feared that translation rights language editions o would raise the price of local- would raise the price of local- language editions of British books, ise the pr 178 h hampering their educational mission. ng their ed The translating nations pre- year limit on translation rights. But with the vailed at first, with a ten- first, with v B Berlin revision of 1908, authors were granted translation rights for vision of 1 the full fifty- year term. The British gave up bucking the tide. When fty- y ear t t e formed th they conformed their legislation to Berne in 1911, the full term of t 179 n rights n t translation rights now belonged to the author. As authors’ rights minimalists, the British were also the main pro- hors’ right of nationa ponents of national treatment, the principle that each nation dealt p with foreign authors on the same terms as its own. The level of treat- ign autho w ght differ a ment might differ among members. But whatever domestic authors m THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

166 156 Chapter 4 180 Yet Berne membership racheted enjoyed ones foreign , received Yet Berne m received, foreign ones enjoyed too. too. standards upward. If protection was better abroad, why should do- standards upward. If protection was better abroad, why mestic authors settle for less? When, in 1908, the union propo mestic authors settle for less? When, in 1908, the union proposed to drop the registration formality as a condition of protection, the Brit- drop the registration formality as a condition of protection, the B 181 i ish government reluctantly followed suit. Hampered by the Commonwealth nations, in tactical alliance actical alliance with the Scandinavians, the French and their supporters failed to with the Scandinavians, the French and their supporters failed to make the original 1886 convention as protective of authors as had e original nvention as protective make the original 1886 convention as protective of authors as had ped. The S b box industry, for examp box industry, for example, successfully sic- sfully been hoped. The Swiss music- compose hindered composers’ claims to mechanical reproduction rights. But s to mechanical reproductio hindered composers’ claims to mechanical reproduction rights. But over the following decades the maximalist position prevailed. Origi- the maximalist position preva o gi - following nally Berne protected periodical articles only if they were expressly nally Berne protected periodical articles only if they were expressly y if they were rne protec reserved, while articles on political and current news were freely while ar nt news w reserved, while articles on political and current news were freely expanded available to use. But the Berlin revision of 1908 expanded authorial to use. B available to use. But the Berlin revision of 1908 expanded authorial rights, requiring permission for adaptations, musical arrangements, usical arran rights, requiring permission for adaptations, musical arrangements, quiring p r - tions, the novelizations, theatricalizations, and films and protecting perfor novelizations, theatricalizations, and films and protecting perfor- nd protectin r New forms of i of dramat mances of dramatic or musical works. New forms of intellectual mances of dramatic or musical works. New forms of intellectual - r Berne’s umbrella: architect property were pulled under Berne’s umbrella: architecture and cho- property were pulled under Berne’s umbrella: architecture and cho were pull reography, pantomimes and films. Composers were eventually given y, pantom reography, pantomimes and films. Composers were eventually given d films. Composers were ev ontrol ove d works. Photographs w partial control over recorded works. Photographs were protected and partial control over recorded works. Photographs were protected and on rights translation rights extended. Copyright formalities were eliminated translation rights extended. Copyright formalities were eliminated works were and all works were protected from their conception. a GERMANY IN THE BERNE VANGUARD GERMANY IN THE BERNE VANGUARD NY IN TH Though French case law took the first steps toward Though French case law took the first steps toward moral rights, it French ca w was Germany that beat the path to statute. Early German laws— many tha Prussia in 1837 and Saxony- Weimar in 1839—took literary property as n 1837 and P their subject. But in 1865 the Bavarian law spoke for the first time of t ject. But i Urheberrecht —authors’ rights—and that terminology continued into U echt —auth t t erman law t the all- German law of 1870. Nonetheless, despite this new concept the laws of 1870 in the German Confederation and 1876 in the newly of 1870 in t founded empire did not take matters much beyond the 1837 Prussian empire di f porate au for- hire implication were l law. Corporate authorship and its work- questioned in 1870: could a mere publisher of a collective work claim ed in 1870 q rights? A R authors’ rights? A Reichstag commission supported a flesh- and- blood a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

167 Continental Drift 157 requirement, concluding that only someone who requirement, concluding that only someone who had actually con- 182 182 . b ute d to a wor k d eserve d aut h oria l rig h The final law treated ts tri tributed to a work deserved authorial rights. The final the editor of a collective work as the author but also grant the editor of a collective work as the author but also granted all contributing authors rights to their component parts. Authors re- contributing authors rights to their component parts. Authors ceived translation rights, with restrictions that betrayed a certain con- ceived translation rights, with restrictions that betrayed a certain con cern for the work’s integrity. A contemporary work published in a cern for the work’s integrity. A contemporary work published in a dead language—Latin, say—could not be translated into German dead language—Latin, say—could not be translated into German he author without the author’s permission. Otherwise, the commission feared, ssion. Otherwise, the c without the author’s permission. Otherwise, the commission feared, a work by a German Gelernter y a Germa might appear in faulty and imperfect a r might appear in faulty r e t erfect German, thus threatening to “impair the personality of the learned German, thus threatening to “impair the personality of the learned thus threa o “impair the personality of 183 th the German law of 1870 dealt But in th But in the main, the German law of 1870 dealt only with author.” a 4 18 184 ized editi tions. unauthorized editions, reprints, and reproductions. u Once Germany had joined Berne in 1886, however, new laws on wever, new n Germany and musi - ography in literature and music in 1901 and on art and photography in 1907 ad- li 185 ections tha d They introduced protections that pushed v vanced the state of play. he state of as any natio he econom beyond the economic, accomplishing as much as any nation had for beyond the economic, accomplishing as much as any nation had for ghts. Auth moral rights. Authors were often victimized by changes to their moral rights. Authors were often victimized by changes to their e often victimized by change e Reichst works, one Reichstag deputy complained. Why should poets have to y complained. Why should p works, one Reichstag deputy complained. Why should poets have to ad aloud in public or com tolerate their verse being read aloud in public or composers the re tolerate their verse being read aloud in public or composers the re- heir verse - cording of their music? The new legislation promised to guard the cording of their music? The new legislation promised to guard the e new legislation prom of their m 186 a author’s personality and his spiritual claims. personalit now entered y speakin Broadly speaking, the author’s basic moral rights now entered r German legislation. Personal rights trumped economic consider- German legislation. Personal rights trumped economic consider - legislation r ations. Even if the author was in debt, his works could no longer b ations. Even if the author was in debt, his works could no longer be en if the a foreclosed on, and creditors could not issue unpublished ma foreclosed on, and creditors could not issue unpublished material d on, and 187 The only exception to integrity were the justi- permission without permission. w only exception to integrity were 188 188 Derivative uses of works Derivati fied alterations that publication required. ations that fied alterations that publication required. had to specify the author. The author remained the author, one dep- ecify the a h uty insisted, even after parting with his work, and he kept certain u ed, even a 189 r Artists retained reproduction rights after sale perpetuity rights in perpetuity. 190 190 Nonetheless, clients received the rights to por- of their works. works. N o traits—thus subordinating the painter’s moral rights to his sitter’s t us subord 191 And owners could exhibit artworks without the artist’s per- privacy. And own p 192 2 Even t m Even the term “droit moral” was used in the Reichstag h mission. d or these n debates for these new rights, as France was held up for praise. The assured “t new laws assured “the protection of the author’s individuality against n arbitrary changes to his work,” and they protected works “as his spiri- changes to a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

168 158 Chapter 4 193 tual child.” Though such rights were still conte child. tual Though such rights were still contested elsewhere, the government proudly announced, Germany now took government proudly announced, Germany now took them for 194 4 9 1 . granted granted. Yet the authors’ rights ideology was still in its infancy here at the Yet the authors’ rights ideology was still in its infancy here at turn of the century. Work- , remained ambiguous t for- hire, for example, remained ambiguous. Precociously, the 1870 law had made no provisions to vest authorship Precociously, the 1870 law had made no provisions to vest authorship in employers or commissioning entities. Only the real author was to in employers or commissioning entities. Only the real author was to 19 195 5 w laws were less princi u draft bill B But the new laws were less principled. The draft bill be protected. cted. b of the 1901 law at first retained rights for the author even when he of the 1901 law at first retained rights for the author even when he ined rights for the author 01 law at 196 r par ’s behest and specifications. - had worked at a publisher’s behest and specifications. r In the par- ked at a p h ry comm liamentary commission a proposal to vest rights in employers was liamentary commission a proposal to vest rights in employers was proposal to vest rights in emp vehemently rejected. Imagine large capitalist corporations hiring tal- vehemently rejected. Imagine large capitalist corporations hiring tal corporations tly rejecte - ungsters a - works! The ented youngsters and claiming rights to their works! The commis- ented youngsters and claiming rights to their works! The commis s r by case. J o f s for- hire to be determined case by case. Journalists sion left work- work- 197 - might normally have rights, industrial draftsmen might not. ormally ha n might no Tech- h m y, to emplo nically necessary modifications—changes, say, to employee draw - nically necessary modifications—changes, say, to employee draw- necessary 198 enerally, the bill argued, right in Generally, the bill argued, rights vested in ings—were permitted. ere permi i 9 199 t In oyer. But In was to include no precise stip the employer. But the law was to include no precise stipulation. the end the 1907 law had no provisions about employee creations. o provisions about employ the end the 1907 law had no provisions about employee creations. he 1907 la The new German laws also balanced the author’s newly amplified lso balanced the author mplified ew Germa rights with the public’s access. Despite authors’ and publishers’ ob - th the pu rights with the public’s access. Despite authors’ and publishers’ ob- jections, fair use exemptions were extensive. The 1837 Prussian law jections, fair use exemptions were extensive. The 1837 Prussian law fair use e had already included quotation, church use, educational anthologies, dy includ had already included quotation, church use, educational anthologies, slations. T and translations. The 1870 and 1901 laws allowed the reprinting and translations. The 1870 and 1901 laws allowed the reprinting of 200 200 The The prin- individual news articles if rights had not been reserved. al news ar individual news articles if rights had not been reserved. ciple, the Reichstag commission explained, was to maximize free use Reichstag ciple, the Reichstag commission explained, was to maximi 201 o could freely use any poem, hed work Lieder of published work. r could free Lieder posers of Composers of 202 publishing it along with their music. p Musical compositions re- ng it alon quired no permission when performed for free—at popular festivals, q o permiss private performances, and for charity. erforman p In sum, the fin- de- siècle German laws significantly elevated au- m, the fin thors’ rights from case law into statute. Not every moral right was ghts from t for- hire remained unresolved. But au- clearly articulated, and work- rticulated c w had cle t thors now had clear legal claims beyond their economic ones, and they retained these new moral rights even after their works had been t ined these assigned. a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

169 Continental Drift 159 AND “NOT A REPUBLIC”: A “BASTILLE OF LETTERS” A “BASTILLE OF LETTERS” AND “NOT A REPUBLIC”: ANGLOPHONE RESISTANCE TO BERNE S NE RE O PH O L G AN C TAN E T O BERN E S I By contrast, Britain and the United States continued to emphasize By contrast, Britain and the United States continued to emphasize the efficient exploitation of works and their quick transfer to the the efficient exploitation of works and their quick transfer to the public domain. The UK did so from within the union, the US from public domain. The UK did so from within the union, the US from 3 203 outside. oug Though Berne members, the British resisted several as- h o eral as - Th members, the British he Contin pects of the Continental ideology. They retained work- for- hire, reject- t t - eject ology. They retained work- p 204 They had ing the premise of rights reserved for only actual authors. erved for only actual authors n emise of r i had pushed successfully in the initial 1886 Berne convention to keep initial 1886 Berne conventio uccessfull pushed successfully in the initial 1886 Berne convention to keep 205 But ut copyright formalities, like registering and depositing works. t formalit positing wor c the Berlin revision of Berne in 1908 required signatories to protect n revision gnatories t the Berlin revision of Berne in 1908 required signatories to protect the work from its creation onward. The British agreed, abolishing the work from its creation onward. The British agreed, abolishing from its agreed, ab 206 (They did retain library deposit, ain library , registration formalities in 1911. on formal r though protection was not contingent on it and failure prompted though protection was not contingent on it and failure prompted and failure p rotection - - only a minor fine.) But the British fought hard against Berne’s at inor fine. e British fought hard against t t only a minor fine.) But the British fought hard against Berne’s at extend ter Talfourd debates of the 1830s tempt to extend terms. The Talfourd debates of the 1830s, as we have tempt to extend terms. The Talfourd debates of the 1830s, as we have seen, led not to an easy lengthening of protection, as on the Conti- not to an seen, led not to an easy lengthening of protection, as on the Conti - gthening of protection, as nent, but to a painful dispute over the public’s claims. In 1908 Berne to a painf nent, but to a painful dispute over the public’s claims. In 1908 Berne te over the public’s clai encouraged members to adopt a protective term of fifty years post- - encouraged members to adopt a protective term of fifty years post ed memb mortem. The British obliged in the 1911 Copyright Act but cleverly The Britis mortem. The British obliged in the 1911 Copyright Act but cleverly subverted much of the point of the extension. s much of u p t o In the run- up to Britain’s 1911 act, the voices of the Talfourd de- s 1911 act, the voices of the Talfourd d run- e heard on bates were heard once again. Fifty years postmortem worked against bates were heard once again. Fifty years postmortem worked ag the poor’s hope for cheap and ready editions. The common people’s s hope for the poor’s hope for cheap and ready editions. The common enlightenment must take precedence over authors’ enlightenment must take precedence over authors’ degenerate de- ment mu 7 2 0 7 207 Publis s . Publishers, angling for monopoly, were considered the scendants. 208 real interests behind extended terms. ests behin Even those who defended r long terms, like Sydney Buxton, president of the Board of Trade o ms, like Sy l (soon to be in hot water for failing to reform shipping regulations be in hot ( Titanic t that would have ensured lifeboats for everyone on the ld have en ), in- sisted that they, too, supported the public domain. Longer protection t they, too s 209 would stimulate more and cheaper editions. In no Continental w mulate m c country was “the battle of the poor and of freedom and of abun- was “the b 210 cheap lite dance of cheap literature” taken so seriously. According to a Con- d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

170 160 Chapter 4 servative MP, the debate in 1911 was part of a per servative MP, the debate in 1911 was part of a “perpetual struggle be- tween an attempt on the part of the author to secure perpetual tween an attempt on the part of the author to secur . copyright and the right of the public to insist on copyright and the right of the public to insist on . . . a very early de- . . a very ea 211 211 f the copyright. ” termination of the copyright.” termination o Britain’s 1911 Copyright Act accepted Berne’s fifty- year term pro ne’s fifty- year term pro forma. But it undermined its intent by introducing what amounted forma. But it undermined its intent by introducing what amounted or’s death, t to compulsory licensing. Twenty- five years after the author’s death, anyone could republish a work if he paid specified royalties to the could repu anyone could republish a work if he paid specified royalties to the work if he paid specifi 212 21 t owner. The period of exclusive rights for heirs was thus c copyright owner. s thus riod of exclusive rights for of what B but half of what Berne required, with the rights holder promised but half of what Berne required, with the rights holder promised quired, with the rights hold 213 213 had In other respects, too, authors had only royalty payment after that. o that alty paym In other respects, too, a their wings clipped. Would authors and their descendants restrict their wings clipped. Would authors and their descendants restrict ir descendan ngs clippe 2 214 4 1 Thi Donaldson n ty? a so during D availability? s This concern had stirred debate also during 215 The 1911 act followed d he 1911 act i nd it trou in 1774, and it troubled Macaulay in the 1830s. the 1842 act, empowering the Privy Council to implement licensing the 1842 act, empowering the Privy Council to implement licensing act, empo mplement 2 6 216 1 - p Such excep- Su when owners refused to republish or perform works. wners refu w works. ights were thought to counterb authors’ ex tions to authors’ exclusive rights were thought to counterbalance the tions to authors’ exclusive rights were thought to counterbalance the 217 inally, as we have seen, the 191 Finally, as we have seen, the 1911 act formal- - mal new half- century term. t century - n i ized Britain’s comparatively extensive fair dealing exceptions. y extensive fair dealing exc ain’s com e major The United States shunned Berne altogether. But in one major United Sta ned Berne altogether. Americans respect Americans did come in from the cold. In 1891 the erstwhile respect Americans did come in from the cold. In 1891 the erstwhile eers of boo “buccaneers of books” decided to protect foreign authors as they did “buccaneers of books” decided to protect foreign authors as they did 218 218 now bowed to for O Once an outlaw nation, the US now bowed to for- domestic ones. d c ones. eign and domestic authors and publishers, recognizing copyright for eign and domestic authors and publishers, recognizing copyright f domestic those countries that protected Americans. The quid pro quo, uniting untries tha those countries that protected Americans. The quid pro quo, u antagonistic domestic interests in a tough horse trade, was stic dome antagonistic domestic interests in a tough horse trade, was the manu- facturing clause. This rankly protectionist measure f facturing clause. This rankly protectionist measure favored book pro- g clause. Th y requirin d ducers by requiring that works be typeset or readied for print in the 219 219 Foreign works were protected, so long as they were F o United States. U tates. produced in America. p d in Amer This one step was considered enough for the time being. Isolated ne step w American voices pleaded for full Berne membership, but that came n voices p A only a century later, in 1989. The US Copyright Act of 1909 arguably o ntury late ored differ underscored differences between copyright and authors’ rights. In u ne abolish 1908 Berne abolished formalities of notice, deposit, registration, and 1 t the like, and the British largely followed suit. But the United States and the B not only retained the usual formalities, it now also required domestic retained t n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

171 Continental Drift 161 away Sweeping manufacture. this hard won comp manufacture. Sweeping away this hard- won compromise was impos- sible. True, America’s 1909 act did lessen some formalities sible. True, America’s 1909 act did lessen some formalities. Failing to deposit works no longer meant forfeiting protection, unless the au- deposit works no longer meant forfeiting protection, unless , thor persisted despite warnings. Nor was copyright lost if notice was thor persisted despite warnings. Nor was copyright lost if notice w not affixed to every copy. But the manufacturing clause was beefed not affixed to every copy. But the manufacturing clause was beefed 220 220 d in the US. up: books now had to be typeset, printed, and bound in the US. u - for- hire explicit and introduced corpo- T ced corpo The 1909 law also made work- ployers into the autho rate copyright, turning employers into the authors of work created rate copyright, turning employers into the authors of work created right, turn 221 221 dime. etween the United States a - merg h T on their dime. o The gulf between the United States and the emerg- i n pean auth ts doctrine was as wide as eve ing European authors’ rights doctrine was as wide as ever. enth century, the United Stat - ost of the re For most of the nineteenth century, the United States had re- - printed foreign authors to enlighten its citizenry without the nui enry withou printed foreign authors to enlighten its citizenry without the nui- oreign au sance of paying royalties. Both the 1790 and 1831 acts had allowed the sance of paying royalties. Both the 1790 and 1831 acts had allowed the paying roy acts had all by nonciti g, reprinti importing, reprinting, and publishing of works by noncitizens and importing, reprinting, and publishing of works by noncitizens and ents. As la Committe nonresidents. As late as 1873, the congressional Committee on the nonresidents. As late as 1873, the congressional Committee on the Library reported as widespread opinion that international copyright Library reported as widespread opinion that international copyright eported as ternational was a “hindrance to the diffusion of knowledge among the people ndrance t ffusion of knowledge among t was a “hindrance to the diffusion of knowledge among the people 222 222 ury, ” education. l By the end of the century, By the end of a e cause of and to the cause of universal education.” America g however, America gradually turned from importing to exporting in- - however, America gradually turned from importing to exporting in y turned from importing to - mic interests began to b tellectual property. Economic interests began to beat out the ideol property. tellectual property. Economic interests began to beat out the ideol- e public d ogy of the public domain. (We will return to this story.) And as the ogy of the public domain. (We will return to this story.) And as the Berne Union expanded, the costs of remaining outside, not to men- Berne Union expanded, the costs of remaining outside, not to men - ion expan tion grossly violating its strictures, grew. For the moment, by publish- tion grossly violating its strictures, grew. For the moment, by publish - ly violatin ltaneously ing simultaneously in a member nation—most conveniently Can- ing simultaneously in a member nation—most conveniently Ca ada—the United States gained Berne protection for some American United St ada—the United States gained Berne protection for some Ame authors. a s over international copy American In the American debates over international copyright, the argu- ments for cheap books remained strong. Though common decency r cheap bo m and international trade favored reciprocal recognition of copyright, national t a old attitudes died slowly. Narrowly technical issues were phrased as o des died s broad ideological questions. By the late nineteenth century the most ological q b vocal spokesmen for the public domain hailed from the South and v kesmen fo West. They bridled at the East Coast publishers’ sacrifice of readers to W y bridled 223 The natio w The nation had been founded on the Bible and the primer, writers. 224 s not subj two works not subject to copyright. Why not, Senator James Beck t w cky thund of Kentucky thundered in 1888, “allow our own people to obtain in o t pest way th the cheapest way they can the product of the brains of foreigners?” THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

172 162 Chapter 4 International copyright threatened to raise prices. “It is the reading International copyright threatened to raise price 5 22 225 u bl ic w h om I see k to p rotect,” h e insiste d. p public whom I seek to protect,” he insisted. “Cheap books have become a necessity,” the essayist Logan Pearsall “Cheap books have become a necessity,” the essayist Logan P Smith warned. International copyright threatened to impose “an e Smith warned. International copyright threatened to impose “an em- bargo on the spread of intelligence, on the diffusion of literature, on bargo on the spread of intelligence, on the diffusion of literature, on the spread of education among our people,” Texas Senator Richard the spread of education among our people,” Texas Senator Richard 226 nator John International copyright, Senator John C Coke admonished in 1891. Daniel from Virginia cautioned, contradicted America’s most funda- oned, contradicted Am om Virgin Daniel from Virginia cautioned, contradicted America’s most funda - mental political premise. As her public schools and other institu- As her public schools and political p mental political premise. As her public schools and other institu - tions of learning showed, America allowed all to drink freely of the earning s tions of learning showed, America allowed all to drink freely of the America allowed all to drink f knowled waters of knowledge. But to help authors, books would now become waters of knowledge. But to help authors, books would now become o help authors, books would n e. “It is a b expensive. “It is a bastile [sic] of letters which is here constructed, and expensive. “It is a bastile [sic] of letters which is here constructed, and s here constr 7 227 227 S - m n Since the public domain was still America’s fram- public.” not a republic.” still Ameri ing narrative, even those in favor of international copyright claimed l copyrigh ative, even ing narrative, even those in favor of international copyright claimed 28 228 that readers would remain as well and cheaply supplied as before. t upplied as ers would ury a gulf had opened betwe In the late nineteenth century a gulf had opened between the copy- In the late nineteenth century a gulf had opened between the copy - te ninetee right and authors’ rights ideologies. Lamartine’s bill of 1841 and ideologies. Lamartine’s bi d authors right and authors’ rights ideologies. Lamartine’s bill of 1841 and French jurisprudence during the following decades emphasized au- urispruden - French jurisprudence during the following decades emphasized au ng the following decad thors’ inalienable rights. But Macaulay and his even more radical alienable thors’ inalienable rights. But Macaulay and his even more radical American fellow travelers insisted that the public deserved not just n fellow t American fellow travelers insisted that the public deserved not just consideration but primacy. All nations in the spotlight here had ation but consideration but primacy. All nations in the spotlight here had started out in the eighteenth century following much the same ap- started out in the eighteenth century following much the same a ut in the proach. Now their paths diverged. That gulf was about to become a Now their proach. Now their paths diverged. That gulf was about to bec chasm as moral rights finally emerged on the Berne agenda—ush- s moral ri chasm as moral rights finally emerged on the Berne age ered in, curiously enough, by people now remembered for burning curiously ered in, curiously enough, by people now rememb books rather than protecting them. ther than b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

173 5 5 T The Strange Birth of Moral Rights Eur i in Fascist Europe cist The author’s moral rights were formulated in case law and jurispru - The author’s moral rights were formulated in case law and jurispru- or’s moral case law and - ntury. But ring the la dence during the latter half of the nineteenth century. But only dur- d ears betw ing the years between the two world wars were they embodied in ing the years between the two world wars were they embodied in they emb statute. Fascist Italy put them on the books in 1925. At the instigation 5. At the in statute. Fascist Italy put them on the books in 1925. At the instigation ascist Italy of Mussolini’s government, they became part of the Berne Conven- of Mussolini’s government, they became part of the Berne Conven of the Berne - lini’s gove me in Germany discussed auth tion in 1928. The Nazi regime in Germany discussed authors’ rights tion in 1928. The Nazi regime in Germany discussed authors’ rights 28. The N extensively, but its only major reform was extending protection from or reform was extending prot y, but its o extensively, but its only major reform was extending protection from thirty to fifty years postmortem. The totalitarian regimes of the 1930s fifty years tem. The totalitarian regim thirty to fifty years postmortem. The totalitarian regimes of the 1930s ously amb - were curiously ambivalent. As part of their vitalist political ideolo As part of their vitalis were curiously ambivalent. As part of their vitalist political ideolo- r - fascists pr gies, the fascists prided themselves on fostering strong creative per gies, the fascists prided themselves on fostering strong creative per- r sonalities. That, they were convinced, distinguished them from both sonalities. That, they were convinced, distinguished them from both . That, the the moribund bourgeois societies they had replaced and from their the moribund bourgeois societies they had replaced and from their bund bou enemies, the communist masses in the east. enemies, the communist masses in the east. th e com m But the fascists also played to the audience’s interests, and more e fascists a ed to the audience’s interests, and generally to society (as they saw it). In aesthetic terms they regarded to society generally to society (as they saw it). In aesthetic terms they authors (however heroically creative) as the mouthpiece of the com- however h authors (however heroically creative) as the mouthp m munity, dependent on and wholly part of society. Authors’ claims dependent mately sub w were ultimately subordinate to society’s needs. The solitary Roman- t died in fas tic artist died in fascist Europe. More mundanely, as mass- based dic- tatorships hoping for continued popular legitimacy, the fascists were t s hoping f more interested in broad audience access to creative work than in its m erested in authors’ fiddly whims. As in so many other realms, the fascists’ ideol- a fiddly whim ogy and their authors’ rights practices were contradictory and incon- heir autho o sistent. By crediting the actual inventor (not just the first to file) for y crediting s patents, the Nazis celebrated the individual creator. But by allowing he Nazis c p the growing film industry to concentrate creative decision making in ng film in t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

174 164 Chapter 5 and- the producer and his company, not with film s blood au- the producer and his company, not with film’s flesh- thors, they bowed to the needs of efficient corporate production and thors, they bowed to the needs of efficient corporate prod dissemination. The fascists thus trumpeted their support of authors dissemination. The fascists thus trumpeted their support of a and moral rights while also insisting on their populist bona fid and moral rights while also insisting on their populist bona fides. Small wonder, then, that they produced more smoke than fire. Small wonder, then, that they produced more smoke than fire. Yet, despite their ineffectual bluster, the regimes of the 1930s had a the 1930s had a profound effect on postwar developments. The Nazis advocated the profound effect on postwar developments. The Nazis advocated the o access its cultural pat racial community’s right to access its cultural patrimony, even while mmunity’ racial community’s right to access its cultural patrimony, even while also claiming to support authors. They thus came closer to articulat- uthors. They thus came clo ming to su also claiming to support authors. They thus came closer to articulat - t t i tained Co ing a sustained Continental version of the classic Anglo- American ican al version of the classic Ang copyright tradition’s concern for the audience than had been heard t tradition copyright tradition’s concern for the audience than had been heard rn for the audience than had in Europe since the French Revolution and the July Monarchy. But in Europe since the French Revolution and the July Monarchy. But e since th he July Mon that damned by association. Once the war was over, reformers in the ver, reform that damned by association. Once the war was over, reformers in the ned by as ursued the rejuvenated French and German democracies pursued the author’s rejuvenated French and German democracies pursued the author’s ted French ghts, often moral rights, often working closely from draft bills elaborated by bills elab moral rights, often working closely from draft bills elaborated by alitarian p their totalitarian predecessors. But they rejected as tainted commu ed as tainted their totalitarian predecessors. But they rejected as tainted commu- - n udience’s intere sm the fas nitarianism the fascists’ concern for the audience’s interests. tive concern for the cre ghts expre Moral rights express legislative concern for the creative classes. They Moral rights express legislative concern for the creative classes. They have long been important in Europe but only belatedly and grudg- have long been important in Europe but only belatedly and grudg - g been im ingly so in the Anglophone world. Their supporters, both on the ingly so in the Anglophone world. Their supporters, both on the in the An Continent and in the United States and Britain, have often assumed, Continent and in the United States and Britain, have often assumed, nt and in t in a vague and unarticulated sense, that moral rights arise from the in a vague and unarticulated sense, that moral rights arise from t ue and un Western tradition’s most enlightened instincts. Their actual legisla- tradition’ Western tradition’s most enlightened instincts. Their actual l tive pedigree, however, was less pristine. Moral rights first became gree, how tive pedigree, however, was less pristine. Moral rights fir part of the Berne Convention at the 1928 conference held in Fascist part of the Berne Convention at the 1928 conferenc he Berne C 1 The Italian delega- Rome. They did not just “filter” onto the agenda. hey did no R tion placed them there to showcase the Mussolini regime’s cultural t ed them t credentials and register its ambitions for an honored and legitimate c als and reg place in Europe’s patrimony. p Europe’s p Many things we now value and do not give a second thought to things we can be traced to Europe’s interwar fascist regimes: fast (Porsche) and aced to Eu c reliable (VW) cars and the highways to drive them on, antismoking VW) cars r science and legislation, jet propulsion, and much rocket science— s and legisla 2 ention th Some of post- war Europe’s n not to mention the song “Lili Marleen.” re rooted i virtues are rooted in a hesitation to look too closely at its totalitarian v THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

175 Moral Rights in Fascist Europe 165 heritage. The death penalty was outlawed in the G heritage. The death penalty was outlawed in the German Basic Law g of a far - right party that hoped to in 1949 at the promptin in 1949 at the prompting of a far- right party that hoped to spare Nazi war criminals the noose. Only later did humanitarian sympathies war criminals the noose. Only later did humanitarian symp 3 3 emerge. . The value that Europeans attach to protecting personal pri- emerge The value that Europeans attach to protecting personal p vacy would be less urgent if not for the Continent’s totalitarian past vacy would be less urgent if not for the Continent’s totalitarian past 4 sent green and Germany’s present green and a and the fear of history repeating itself. 5 5 Co n - Con- ecological sentiments have their precedents in Nazi ideology. ecological sentiments have their precedents in Nazi ideology. temporary German laws protecting individual dignity echo Nazi y German rotecting individual d temporary German laws protecting individual dignity echo Nazi 6 6 cred d i - nor. To trace something b To trace something back to discred- legislatio ideas and legislation on honor. ited regimes does not necessarily diminish its innate quality. But it mes does n ssarily diminish its innate q ited regimes does not necessarily diminish its innate quality. But it bears investigation why moral rights—bourgeois, individualist, and oral rights—bourgeois, individ bears investigation why moral rights—bourgeois, individualist, and estigation l, culturally worthy—should have been embraced by anti- in ed by anti- c worthy— intellectual, plebian mass regimes. p mass regim MORAL RIGHTS AT THE 1928 BERNE CONFERENCE A M R RENCE IGHTS Moral rights did not arrive unannounced in Mussolini’s Rome. ve unannounced in Mussol ghts did Moral rights did not arrive unannounced in Mussolini’s Rome. dified, such ideas had wor Though little had been codified, such ideas had worked their way ittle had Though little had been codified, such ideas had worked their way through French and German case law for half a century. In 1886 the French an through French and German case law for half a century. In 1886 the an case law for half a ce nvention Berne Convention had foreshadowed the attribution right when it Berne Convention had foreshadowed the attribution right when it 7 7 7 Moral Moral insisted that reprinted periodical articles name their source. hat reprin insisted that reprinted periodical articles name their source. - rights were legislated in Romania (1923), Poland (1926), Czechoslova re legislate rights were legislated in Romania (1923), Poland (1926), Czechoslova- kia (1926), Portugal (1927), and Italy itself (1925). The Italian act, which kia (1926), Portugal (1927), and Italy itself (1925). The Italian act, whic , Portugal had been passed during the legislative session that approved the fun- had been passed during the legislative session that approved the passed du damental laws of the Fascist regime, served as the template of the laws of t damental laws of the Fascist regime, served as the templa m e con f Berne Rome conference’s reforms in 1928. e r Berne Rome conference’s reforms in 1928. Like other fascisms the Italian regime’s ideology was largely col- ther fascis 8 lectivist. le Nonetheless, Mussolini’s Italy went furthest of all countries Nonethel to secure moral rights. The 1925 law was hailed as catapulting Italy moral rig t n vanguard i into the vanguard of authors’ rights and as one of the new regime’s 9 Of course the Fascist regime quickly reformed signal achievements. hievement s a rights, its authors’ rights, its defenders explained. The new government cele- e primacy brated the primacy of intellectual values, even as it subordinated the b 10 The 1925 law introduced the rights of attri- l to the st individual to the state. i n nd integrit bution and integrity, with integrity defined expansively as preventing b changes to the work that violated the author’s “moral interests.” The o the wor c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

176 166 Chapter 5 law also introduced a withdrawal right, allowing law also introduced a withdrawal right, allowing authors to repent of works if they compensated rights holders. Even published works of works if they compensated rights holders. Even publi 11 11 A After his thus remained within the author’s sphere of personality. thus remained within the author’s sphere of personality. death the author’s family safeguarded his moral interests. If they death the author’s family safeguarded his moral interests. If t failed to act, the authorities could step in. Resolving the issues failed to act, the authorities could step in. Resolving the issue broached as early as the Lamartine debate of 1841, the Italians also broached as early as the Lamartine debate of 1841, the Italians also limited creditors’ claims. For unpublished works the author could limited creditors’ claims. For unpublished works the author could 12 12 r, rather than the usual designate his own executor, rather than the usual statutory heirs. e his own designate his own executor, rather than the usual statutory heirs. e also delegations to the Berne c The Polish and French delegations to the Berne conference also olish and 13 for moral p The Polish proposal ranked moral rights The Polish proposal ranked pressed for moral rights. ghts other univ among other universal human rights—to life, bodily integrity, lib - man rights—to life, bodily in among other universal human rights—to life, bodily integrity, lib- erty, and honor. The French delegation circulated a pamphlet as it erty, and honor. The French delegation circulated a pamphlet as it lated a pam honor. T 14 l lobbied for the cause. e, But the main mover was the Italian delegate, for the cau the Italian Piola Cas ral at the I Eduardo Piola Caselli—senator, procurator general at the Italian Su- Eduardo Piola Caselli—senator, procurator general at the Italian Su- rapporteu . p l rapporteur général preme Court (Cassation) and the conference’s Court (Ca s . been instr Having been instrumental in drafting the Italian law of 1925, Piola Having been instrumental in drafting the Italian law of 1925, Piola lian law of bis r roposed a ( ). The author w ). The author was to deter- C Caselli proposed a new Berne article (6 - er r mine when and how his work appeared, be acknowledged as its au- en and ho mine when and how his work appeared, be acknowledged as its au ork appeared, be acknowledg - thor, and be able to oppose all changes prejudicial to his moral inter- - thor, and be able to oppose all changes prejudicial to his moral inter be able to r all changes prejudicial to h r ests. These moral rights were to be perpetual and inalienable. re to be perpetual and ests. These moral rights were to be perpetual and inalienable. se moral r Piola Caselli was a savvy tactician, seeking to smooth the passage he passage Caselli wa rench motion of his far- reaching and controversial proposals. The French motion in g eac r r- o h foresaw reforms enforced uniformly across all nations by interna foresaw reforms enforced uniformly across all nations by interna- reforms e tional legislation. The Italians, however, cleverly left the details of gislation. tional legislation. The Italians, however, cleverly left the details implementation to each Berne member. But even so, Italian ambi- implementation to each Berne member. But even so, Italian ntation to re lofty. M tions were lofty. Moral rights promised to be a historic adv tions were lofty. Moral rights promised to be a historic advance, they Their ow insisted. Their own 1925 law had demonstrated h insisted. Their own 1925 law had demonstrated how Fascism sup- 15 p ported intellectual workers. ntellectual Still, moral rights faced obstacles in 1928. The Commonwealth na- moral righ tions considered such novelties irreconcilable with their copyright nsidered s t . The dist t tradition. The distance between Anglo- Saxon and Latin mentalities was nowhere more evident, or so the New Zealand delegate reported here more w back home. While the Continental delegates enthused, the English- b me. While 16 speaking nations “coldly received” moral rights. s The UK Board of nations “ Trade thought they fell outside the scope of copyright law. In any T ought the 17 The Commonwealth case, libel law sufficed to remedy violations. l law suffi c and the Br nations and the British colonies still made up a sizable chunk of the n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

177 Moral Rights in Fascist Europe 167 thirds of its Berne Union (though they were down from almo Berne Union (though they were down from almost two- 18 18 ers in 1906 mem ). b They were not to be trifled with. Piola Caselli They were not to be trifled with. Pi members in 1906). sought to bring the Anglophone nations around by arguing that sought to bring the Anglophone nations around by arguin they already protected moral rights, if not by copyright legislation, they already protected moral rights, if not by copyright legislatio 19 then in the common law. t The Australian delegate, Sir William Harrison Moore, agreed and re, agreed and helped broker a compromise between the Anglophone heartland helped broker a compromise between the Anglophone heartland Continent and the Continent. The disclosure right was set aside since Britain and the Continent. The disclosure right was set aside since Britain closure right was set a r Angloph ions allowed rights to be and other Anglophone nations allowed rights to be fully assigned, and other Anglophone nations allowed rights to be fully assigned, including initial publication, future editions, alterations, and adapta n, future editions, alterations including initial publication, future editions, alterations, and adapta- - g initial pu British law tions. In British law an author could waive even his personal rights tions. In British law an author could waive even his personal rights hor could waive even his perso by contract, and the Commonwealth delegates insisted this remain ct, and th by contract, and the Commonwealth delegates insisted this remain es insisted th 20 true. - ection aga t In common law, personal rights like protection against defa- common mation died with the person. Gone, therefore, was also any mention ied with t s also any mation died with the person. Gone, therefore, was also any mention of moral rights to be exercised by others after the author’s death. In e author’s rights to b of moral rights to be exercised by others after the author’s death. In return the Anglo- Saxon signatories agreed to protect authors against rotect autho t r e Anglo- S their works being deformed or mutilated, whether this damaged rks being ed or mutilated, whether this their works being deformed or mutilated, whether this damaged their reputation or what was rather grandly termed the interests of utation or as rather grandly termed the their reputation or what was rather grandly termed the interests of . literature, science, and the arts. l i rts , science, a Indeed, thanks to British protests, the very term “moral interests” protests, the very term erests” , thanks t in the Italian proposal was replaced by more familiar concepts. in the Italian proposal was replaced by more familiar concepts. alian prop Works of the spirit, the delegates agreed, were both economic proper r - Works of the spirit, the delegates agreed, were both economic proper- r the spirit, ties and reflections of their maker’s personality. Yet even Piola Caselli ties and reflections of their maker’s personality. Yet even Piola Caselli eflections d authors inned and thought the law should n c considered authors thin- skinned and thought the law should not 21 21 wtow to t The always kowtow to their possibly exaggerated sensibilities. The origi- always kowtow to their possibly exaggerated sensibilities. nal Italian proposal on authors’ “moral interests” was therefore tem- n proposa nal Italian proposal on authors’ “moral interests” was there pered to protect against only those changes that threatened their protect a pered to protect against only those changes that t 22 These values were already covered by the “honor or reputation.” r reputati “ C nwealth na Commonwealth nations’ laws on defamation and passing off (fraud- u ulent misrepresentation of goods or services). Implicitly, then, the srepresent Anglophone nations were not expected to introduce new moral A one natio rights legislation. Nor would they have to situate the protection now r islation. N 23 Since “moral inter- required within their copyright statutes as such. within the r ests” were a more expansive and elastic concept than damage to e a more e nd reputat honor and reputation, the new formulation limited the author’s h he Germa powers. The German fresco case of 1912, mentioned in the last chap- p ter, where Arnold Böcklin won damages when his privately placed e Arnold t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

178 168 Chapter 5 nudes were clothed, would likely not have been actionable under the nudes were clothed, would likely not have been a 24 24 te Similarly, an actor could not object if a sile R o m e Similarly, an actor could not object if a silent film role rm s. Rome terms. 25 25 was jazzed up with a colleague’s voice in a talkie version. w as . azzed up with a colleague’s voice in a talkie version j At Rome in 1928, reformers understood that tentative pledges At Rome in 1928, reformers understood that tentative pledges for 26 m moral rights were all that could be hoped for. The Commonwealth The Commonwealt countries had been startled by such ambitious proposals. By leaving countries had been startled by such ambitious proposals. By leaving implementation to national law, the Continental delegates man - implementation to national law, the Continental delegates man- 27 t to scuttle negotiation aged to persuade them not to scuttle negotiations. As mentioned, ntioned, a persuade t the disclosure right disappeared in this compromise between Con- the disclosure right disappeared in this compromise between Con eared in this compromise osure righ - t ambition tinental ambitions and Anglo- Saxon resistance. Only in 1967 did nglo- Saxon resistance. Only did ome part that become part of Berne. But attribution remained. So did a nar- that become part of Berne. But attribution remained. So did a nar - r r . But attribution remained. So ersion of i rowed version of integrity, though with no mention of rights after rowed version of integrity, though with no mention of rights after mention of r the minimum rights expected of member nations. death. These were death. These were hese were of membe the minimum rights expected of member nations. Whether any wanted to do more was left to their own choice. any want r own cho W THE IDEOLOGY OF MORAL RIGHTS T OLOGY O tional formulation of mo Perhaps this first international formulation of moral rights was this first Perhaps this first international formulation of moral rights was Fascist, as Piola Caselli a w quintess somehow quintessentially Fascist, as Piola Caselli and others claimed. somehow quintessentially Fascist, as Piola Caselli and others claimed. But one should approach such totalitarian braggadocio skeptically. should ap But one should approach such totalitarian braggadocio skeptically. More likely, it was just a political coincidence that the new Italian ely, it was More likely, it was just a political coincidence that the new Italian regime was on deck at the moment when the slow progress of legal regime was on deck at the moment when the slow progress of legal was on dec finally pro reform finally produced this initial codification of moral rights reform finally produced this initial codification of moral rights in international law. As we have seen, moral rights had developed in onal law. international law. As we have seen, moral rights had develop French and German jurisprudence and case law during the nd Germa French and German jurisprudence and case law during the late nine- teenth century. By the interwar years reformers across the political teenth century. By the interwar years reformers ac entury. By m and acro spectrum and across Europe were pushing to formalize the doctrine s in statute. Privileging the author over the audience and over dissemi- e. Privilegi i n moral righ nators, moral rights were in one sense liberal and individualistic, l ely incarn legislatively incarnating the Romantic tradition of the heroic creator. That was how French legal theorists and case law understood them. how Fren T The Fascists in Italy took them up in this spirit too. ists in Ital T Like the early Soviets Italian Fascists were vibrantly modernist and he early So avant- garde. They saw themselves as rejuvenating moribund Italian de. They a culture, with its glorious past, slothful present, and neglected future. with its gl c The Futurists, who despised the bourgeoisie and what they consid- urists, who T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

179 Moral Rights in Fascist Europe 169 ered the backward, provincial, and lazy Italian u ered the backward, provincial, and lazy Italian upper classes, were 28 28 close allies of the early Fascists. . close allies of the early Fascists Though they later fell out, at first Though they later fell the Fascists brought artists, composers, and writers like Marinetti and the Fascists brought artists, composers, and writers like Marinet 29 29 gar wing politics and avant- Right- D’Annunzio into their camp. Right- wing politics and avant- garde D ’Annunzio into their camp . culture were frequently allied in all nations during the interwar culture were frequently allied in all nations during the interwar years. Think only of the American Ezra Pound, Wyndham Lewis and, years. Think only of the American Ezra Pound, Wyndham Lewis and, arguably, T. S. Eliot in Britain, Ernst Jünger in Germany and Louis- arguably, T. S. Eliot in Britain, Ernst Jünger in Germany and Louis- Ferdinand Céline in France. But in Italy the association was broader, Ferdinand Céline in France. But in Italy the association was broader, d Céline i . But in Italy the associ more consistent, and more carefully cultivated by both movement carefully cultivated by bo more consistent, and more carefully cultivated by both movement nsistent, an and regime. Like fascists everywhere, Mussolini’s followers fancied verywhere, Mussolini’s follow and regime. Like fascists everywhere, Mussolini’s followers fancied me. Like f themselves as society’s spiritual forces, allied against modernity’s ma- es as societ tual forces, allied against mode themselves as society’s spiritual forces, allied against modernity’s ma - t and espe terialism, and especially its supposedly Anglo- Saxon and Jewish glo- h Saxon an mplar of th traits. Piola Caselli portrayed himself as an exemplar of the Fascist la Caselli traits. Piola Caselli portrayed himself as an exemplar of the Fascist New Era and a carrier of eternal Roman traditions. Protecting moral s. Protecti and a carr New Era and a carrier of eternal Roman traditions. Protecting moral insisted, rights, he insisted, struck a blow against economic materialism and mic materia rights, he insisted, struck a blow against economic materialism and 30 for civilized ideals and works of the spirit. ed ideals fo of nherently malleable and prot Yet moral rights—an inherently malleable and protean set of oral right ideas—could also be understood in a more collectivist way. There ould also ideas—could also be understood in a more collectivist way. There rstood in a more collectivist ing uniqu was nothing uniquely Fascist about hoping to protect authors from st about hoping to protect was nothing uniquely Fascist about hoping to protect authors from society. Throughout th modern media and mass society. Throughout the 1920s and ’30s modern media and mass society. Throughout the 1920s and ’30s media an across Europe, proposals, draft bills, and laws introduced moral urope, pro across Europe, proposals, draft bills, and laws introduced moral d in other rights and in other ways too sought to shield authors from the mar- r r - rights and in other ways too sought to shield authors from the mar ket: in Social Democratic Norway, authoritarian Poland and Portu cial Dem - ket: in Social Democratic Norway, authoritarian Poland and Portu- gal, politically cacophonous Weimar Germany, and in France of the cally caco gal, politically cacophonous Weimar Germany, and in France of th leftist Popular Front. As a defense of authors and cultural creativity, pular Fron leftist Popular Front. As a defense of authors and cultural crea moral rights were uncontroversial across the Continent’s many po- moral rights were uncontroversial across the Continent’s hts were u litical ideologies. i ologies. l But seen as a broader cultural reflex, moral rights belonged to the en as a bro cultural pessimism of the interwar years and the pervasive sense that c essimism modern life threatened worthwhile values. As on almost every topic, m ife threate the First World War’s slaughter cast a shadow. Europe’s most promis- World War t h had die ing youth had died in the trenches. Prewar civilization was now n i mauled by mass society. High time, many felt, to defend the rights of y mass soc m 31 ce and sen intelligence and sensibility against oppressive materialism. Whether i n or right, c o of the left or right, cultural pessimists worried especially about mod- a. Perhaps ern media. Perhaps cinema, radio, and the popular press were demo- e cratic in a plebian sense. They entertained, and possibly even edu- a plebian c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

180 170 Chapter 5 cated, the masses. But mass media also threatene cated, the masses. But mass media also threatened high culture and authors. Film, phonograph, and radio had spawned compulsory li- authors. Film, phonograph, and radio had spawned com 3 32 2 censing, undermining authors’ exclusive rights . censing, undermining authors’ exclusive rights. At the Rom At the Rome con- ference Piola Caselli presented moral rights as a quid pro quo. Mod- ference Piola Caselli presented moral rights as a quid pro quo. M ern technologies expanded the author’s economic rights, yet sapped ern technologies expanded the author’s economic rights, yet sapped his control. Business wanted a cut, and the audience was clamoring his control. Business wanted a cut, and the audience was clamoring to enjoy its cultural patrimony. In return for legal innovations, like to enjoy its cultural patrimony. In return for legal innovations, like g, that enh licensing, that enhanced public access, authors should be granted public access, authors licensing, that enhanced public access, authors should be granted t their works were not co ghts to en moral rights to ensure that their works were not corrupted or de- moral rights to ensure that their works were not corrupted or de - 33 33 meaned by modern mass media or their audiences. m by moder media or their audiences. RIGHTS I MORAL RIGHTS IN NAZI GERMANY In Germany the laws on authors’ rights dated from 1901 and 1907 and any the law m 1901 and In Germany the laws on authors’ rights dated from 1901 and 1907 and were last updated in 1910. During the Weimar Republic, from 1919 on, updated i were last updated in 1910. During the Weimar Republic, from 1919 on, Republic, fro many agreed that reforms were urgent. Proposals had been broached, were urgent. Proposals had been reed that r many agreed that reforms were urgent. Proposals had been broached, the time Hitler seized powe without re though without result, by the time Hitler seized power in January though without result, by the time Hitler seized power in January - 1933. A lively debate broke out early in the Third Reich over au e out early in the Third R ively deba 1933. A lively debate broke out early in the Third Reich over au - hts. The N eas were not novel and thors’ rights. The Nazis’ ideas were not novel and indeed were often thors’ rights. The Nazis’ ideas were not novel and indeed were often d by refor prompted by reformers active also during the republic. Few changes prompted by reformers active also during the republic. Few changes were actually implemented. But those discussed indicated the Nazis’ were actually implemented. But those discussed indicated the Nazis’ ually impl intentions, had war and defeat not intervened. The Nazi debates also ns, had wa intentions, had war and defeat not intervened. The Nazi debates also show that authors’ rights were not neutral technical and legal issues. show that authors’ rights were not neutral technical and legal issu at authors’ They were proxies in a larger ideological battle over the author’s role re proxies They were proxies in a larger ideological battle over the author in society and the demands of the collectivity vis- - à in society and the demands of the collectivity vis- y and the vis th à- vis the creator. And yet, interestingly, for all the controversy during interestin And yet, interestingly, for all the controversy during the Third Reich, in time the postwar West German Federal Republic picked up and i he postw completed the reform work begun during the Hitler years. ed the refo c Compared to their Italian cousins the Nazis were culturally con- ared to th . Early on s servative. Early on some Nazis did share the Italian Fascists’ fond- garde. Propaganda minister Joseph Goebbels at ness for the avant- n the avant iended ae fi first befriended aesthetically pathbreaking artists. Several, like the - pai n E onist Expressionist painter Emil Nolde, joined the party early. But Hit es were m l ler’s tastes were more conventional. Which style of art best officially expressed the regime was debated when the Reich Cultural Cham- d the regim e ber was founded in 1933. Goebbels and his clique argued that Ex- founded b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

181 Moral Rights in Fascist Europe 171 pressionist painters like Nolde represented a native Germanic art, pressionist painters like Nolde represented a na 34 resting on Gothic traditions and distinct from Latin class At resting on Gothic traditions and distinct from Latin classicism. the party congress of 1934, however, Hitler rejected all modernist the party congress of 1934, however, Hitler rejected all mod art—Dadaists, Futurists, Cubists, and Expressionists. Modernist, a art—Dadaists, Futurists, Cubists, and Expressionists. Modernist, ab- 35 35 In their In their stract, and nonfigurative art was now branded degenerate. stract, and nonfigurative art was now branded degenerate. place the regime officially adopted the figurative historical style of place the regime officially adopted the figurative historical style of r the late nineteenth century. Paintings were duly churned out por- r - the late nineteenth century. Paintings were duly churned out por traying Germany as a timeless land of valiant leaders, industrious traying Germany as a timeless land of valiant leaders, industrious Germany a less land of valiant le workers, heroic soldiers, fertile maidens, blond tots, and picturesque workers, heroic soldiers, fertile maidens, blond tots, and picturesque heroic sold tile maidens, blond tots, an 36 6 peasants. p nt ists, the Nazis welcomed effor Still, like the Italian Fascists, the Nazis welcomed efforts to grant ke the Ita of the autho moral righ creators moral rights. But their understanding of the author’s role in creators moral rights. But their understanding of the author’s role in society was largely collectivistic. Art did not stand separate from so- as largely nd separate s - urtwängle bbels lect ciety, Goebbels lectured the conductor Wilhelm Furtwängler after he ciety, Goebbels lectured the conductor Wilhelm Furtwängler after he h had dared a mild protest against the demotion of his Jewish col- - n of his Jew d a mild d shaped so league, Bruno Walter. Art both expressed and shaped society, and runo Wal league, Bruno Walter. Art both expressed and shaped society, and re indelib f their community. There could artists were indelibly part of their community. There could be no art artists were indelibly part of their community. There could be no art 37 7 37 - osi Nonetheless, th Nonetheless, the Nazi posi- e fo for art’s sake, as in liberal democracies. . mocracies ake, as in an a simple totalitarian c more nua tion was more nuanced than a simple totalitarian collectivism. It tion was more nuanced than a simple totalitarian collectivism. It sought to balance the contradictory demands of author and audi tradictory demands of - o balance sought to balance the contradictory demands of author and audi- 38 Seen in the long history of authors’ rights, the Nazis came azis came en in the ence. e the Anglo closer to the Anglophone copyright position than had ever been the closer to the Anglophone copyright position than had ever been the ermany. T case in Germany. The Third Reich, oddly enough, was one of the few case in Germany. The Third Reich, oddly enough, was one of the few moments when the Germans intensely discussed the issues that had moments when the Germans intensely discussed the issues that ha when the occupied the British a century earlier, during the Talfourd debates of occupied the British a century earlier, during the Talfourd deba the Britis the late 1830s and early ’40s. 830s and e t ought they occupied a azis them The Nazis themselves thought they occupied a sensible middle g The Third ground. The Third Reich’s jurists, who engaged in lively reform de- bates, rightly saw attitudes toward authors’ rights as expressing po- b htly saw a litical ideologies. The French, they thought, viewed moral rights as li ologies. T ndividualistic and libe n listic and i ral and were primarily concerned to protect i 39 Insofar a Insofar as they considered the community’s interest, they a authors. 40 it to be o a At the other ex- assumed it to be one with that of the authors. treme the Soviets wholly subordinated the author to the collectiv- t e Soviets w 41 nch and I French and Italian reformers often regarded Nazi ideas on ity. i t these matters as akin to the Soviet position. But the Germans indig- tters as ak t 42 jected suc nantly rejected such parallels. Though they worked with the dif- n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

182 172 Chapter 5 ferent heritages of Roman and Germanic law, they insisted that ferent heritages of Roman and Germanic law, Nazi and Fascist reformers both sought to balance the Nazi and Fascist reformers both sought to balance the interests of 3 4 43 Liberalism subordinated society to the Liberalism subordinated society creator and community. creator and community . author, while Marxism elevated the mass, undermining the role of author, while Marxism elevated the mass, undermining the role strong creative personalities. The Nazis, in contrast, claimed to pro- strong creative personalities. The Nazis, in contrast, claimed to pro tect authors as members of society, thus transcending the contradic tect authors as members of society, thus transcending the contradic- - 44 tion between creator and community. t Like other Berne members Germany was held to the minimum nimum ther Bern bers Germany was held s of mora t standards of moral rights adopted in Rome in 1928. Integrity and at - standards of moral rights adopted in Rome in 1928. Integrity and at- t dopted in Rome in 1928. I tribution were already legislated or recognized in German case law, n were alre tribution were already legislated or recognized in German case law, slated or recognized in Germ 5 45 4 but better protection was called for to meet the new commitments. r protecti but better protection was called for to meet the new commitments. alled for to meet the new comm me the G After Rome the Germans continued moving away from seeing au - away from After Rome the Germans continued moving away from seeing au- 46 Courts began to recog- hts as gro urts began t g - thors’ rights as grounded only in property. onal righ omic claim nize personal rights, distinct from authors’ economic claims. In 1929 nize personal rights, distinct from authors’ economic claims. In 1929 Max und Moritz the heirs of Wilhelm Busch (writer and illustrator of t or of Max u of Wilhel z t fame) won claims to radio broadcasts of his work with an affirmation fame) won claims to radio broadcasts of his work with an affirmation n claims o rk with an a 47 o alienable Then, from the Nazi takeover of his inalienable personality rights. Then, from the Na ver yg a wave of reform proposals p nd for a fe in 1933 and for a few years, a wave of reform proposals poured forth. in 1933 and for a few years, a wave of reform proposals poured forth. The discussion of authors’ rights during the Third Reich was typical The discussion of authors’ rights during the Third Reich was typical ussion of rights during the Third Re , pretentious, gnarled, of Nazi discourse—turgid, pretentious, gnarled, vague, bombastic, of Nazi discourse—turgid, pretentious, gnarled, vague, bombastic, discourse— and supremely confident that a new age had dawned. Technical and emely con and supremely confident that a new age had dawned. Technical and narrowly legal as the issues might seem, the Nazis regarded them as y legal as t narrowly legal as the issues might seem, the Nazis regarded them as ideological, to be rejiggered in the new political spirit. ideological, to be rejiggered in the new political spirit. cal, to be r e discussions in 1928 lay a contradictio core of t At the core of the Rome discussions in 1928 lay a contradiction: the antithetical goals of broadening access to culture, yet expa the antithetical goals of broadening access to culture, yet expanding hetical go authorial rights. The collective squared off against the i l rights. T authorial rights. The collective squared off against the individual. Nazi reformers sought to reconcile this tension in two ways. First, Nazi reformers sought to reconcile this tension in ormers so they regarded moral rights as a trade- off, protecting creators’ artistic arded mor t interests even as their economic claims were undermined by the new even as th i media. The new technologies were inherently collectivist—both as he new te m produced and consumed. With radio a government monopoly, even d and con p 48 Moral rights were thus a sop thrown the state had its own interests. t had its ow to authors to reconcile them with a populist age. The less power that t rs to recon retained o c creators retained over disseminating their works, the more impor- 49 t their cont tant was their control over how they were presented. Second, the Nazis singled out authors from disseminators and d, the Na bombastically celebrated them as geniuses toiling for the commu- ically cele b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

183 Moral Rights in Fascist Europe 173 nity. Soviet and Marxist ideology was built on the masses, liberal nity. Soviet and Marxist ideology was built on bourgeois society on deracinated anomic individuals. Nazi society, in bourgeois society on deracinated anomic individuals. Naz Schöpferpersö contrast, venerated strong creative personalities, Schöpferpersönlich- contrast, venerated strong creative personalities, keiten , who were essentially connected to their community: thus r , who were essentially connected to their community: thus ran eiten k 50 t . Lebenslüge The nineteenth century, Hitler pro- h century, Hitler pro the Third Reich’s claimed, was the era of great personalities, liberated by the French claimed, was the era of great personalities, liberated by the French 51 Standing in this tradition, the Nazi regime brought e brought Revolution. R Volksgemeinschaft , and the indi- Volksgemeinsc nity, the the racial t he indi - together the racial community, the . Hitler welcomed the aristocratic prin- - ator, the V . Hitler welcomed the ar sse prin v vidual creator, the Volksgenosse 52 was eeking out Yes, rewarding creative personalities was ciple of seeking out talent. Yes, rewarding creative perso c listic. Bu individualistic. But it was also collectivistic since their vision nour lso collectivistic since their v - t individualistic. But it was also collectivistic since their vision nour- ished society. Hence the author and the Volksgemeinschaft no longer emeinschaft ety. Henc ished society. Hence the author and the Volksgemeinschaft no longer contradicted each other. Enforcing the author’s control guaranteed ted each o control gu contradicted each other. Enforcing the author’s control guaranteed 53 t the audience’s pure enjoyment of his works. nce’s pure s mportant More important, the author created only within and as part of his in and as p ity. The g community. The genius depended on the materials that society community. The genius depended on the materials that society materials tha g voice to the ideas and emot his dispo placed at his disposal, giving voice to the ideas and emotions of his placed at his disposal, giving voice to the ideas and emotions of his 54 5 et expressed himself in his p The poet expressed himself in his people’s lan- racial community. r mmunity. an - r guage, the musician by using the common elements of melody, har- e musician r - guage, the musician by using the common elements of melody, har ng the common elements o d rhythm. mony, and rhythm. Granting this inheritance, it was only fair to limit mony, and rhythm. Granting this inheritance, it was only fair to limit g this inheritance, it was 55 55 creators’ rights. I n Individuality in the new era meant not cultivating c ultivating rights. personal differences but celebrating the individual’s connection with personal differences but celebrating the individual’s connection with difference the community. Protecting not just the creator, authors’ rights re- - the community. Protecting not just the creator, authors’ rights re munity. Pr lk ’s s vealed the Vo e owers. The Nazi author should cultiva p v Volk ’s spiritual powers. The Nazi author should cultivate not a walled- off garden for the few but a public park for all. Creator ff a g n the few but a public park for all. Cr o led- r 5 56 6 and community were inherently intertwined. and community were inherently intertwined. In the Nazi vision In the N munity w defending the creator’s personality thus also safeguarded his com- g the crea defending the creator’s personality thus also safegu 57 7 57 honor. m The author, rooted in his tribal people, his T munity’s honor. Volks- tum rnated the , incarnated the eternal creative spirit of his race. By protecting tu 58 Mein Kampf Hitler celebrated the author, the folk protected itself. In r, the folk t 59 No longer a self- centered, socially irre- inventors as the Nazi ideal. as the Na n i sponsible bohemian, the Nazi creator labored for the Volksgemein- bohemia s schaft—a worker of the head. The Nazi state promised to protect his s worker o e express work—the expression of his inner nature—against distortion and w 60 6 misrepresentation. entation. m Nazis thus lauded authors as part of their racial community. Dis- hus laude seminators, in contrast, they viewed with distrust. They might benefit rs, in cont s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

184 174 Chapter 5 from some proposed reforms, like compulsory from some proposed reforms, like compulsory licensing. But the Nazis distinguished moral rights from assignable econo Nazis distinguished moral rights from assignable economic claims and placed them beyond the disseminators’ grasp. The 1928 Rome and placed them beyond the disseminators’ grasp. The 1928 conference had weakened disseminators, one observer noted in 19 conference had weakened disseminators, one observer noted in 1934. Germany should too. The revival of the Germanic spirit under Na Germany should too. The revival of the Germanic spirit under Na- - r r zism would eradicate capitalism and materialism. The authors’ inter zism would eradicate capitalism and materialism. The authors’ inter- 61 61 ests, not those of the media corporations, were proclaimed primary. ests, not those of the media corporations, were proclaimed primary. The socialization of the creator’s talents proclaimed by Nazi aesthetic alization o The socialization of the creator’s talents proclaimed by Nazi aesthetic ator’s talents proclaime theories, his rootedness in his community, prevented him from alien - his rooted - theories, his rootedness in his community, prevented him from alien his community, prevented h ating his works to the media industries to do as they pleased with the works to ating his works to the media industries to do as they pleased with the a industries to do as they ple patrimony nation’s patrimony. The Nazi revolution, they insisted, had ended the zi revolution, they insisted, had nation’s patrimony. The Nazi revolution, they insisted, had ended the 62 culture as reign of culture as a commodity. r The Nazi pogroms and terror quickly turned Germany into a cul- azi pogro l - Germany ert. Yet th tural desert. Yet the regime was convinced that it had managed to tural desert. Yet the regime was convinced that it had managed to it had ma nce. Richar the interes balance the interests of authors and their audience. Richard Strauss, balance the interests of authors and their audience. Richard Strauss, - rtist to rema the composer, was perhaps the most talented artist to remain in Ger- poser, was the composer, was perhaps the most talented artist to remain in Ger r r zism were a complicated méla many. His relations to Nazism were a complicated mélange of op- many. His relations to Nazism were a complicated mélange of op is relation - m, contem d otherworldliness. Active i portunism, contempt, and otherworldliness. Active in the Third portunism, contempt, and otherworldliness. Active in the Third Reich’s cultural bureaucracy, he also occasionally protected Jewish cy, he also occasionally pr cultural b Reich’s cultural bureaucracy, he also occasionally protected Jewish composers and musicians, as well as his Jewish daughter- in- law and c rs and mu aw and as well as his Jewish da her family. He pinch hit for conductors like Toscanini and Bruno ly. He pin her family. He pinch hit for conductors like Toscanini and Bruno Walter, who had been declared non grata. He happily met Hitler Walter, who had been declared non grata. He happily met Hitler who had b opportunity to dis w nducting in July 1933, seizing the opportunity to dis- Parsifal when conducting P firings of J cuss the firings of Jews and authors’ rights reforms. He lobbied Goe cuss the firings of Jews and authors’ rights reforms. He lobbied Goeb- bels to extend the term of a work’s protection to fifty years pos bels to extend the term of a work’s protection to fifty years postmor- xtend the tem. As president of the newly formed Reichsmusikkammer in 1933, tem. As president of the newly formed Reichsmusikkamm president o he still collaborated with Stefan Zweig, the Jewish he still collaborated with Stefan Zweig, the Jewish librettist of Die ollaborate , even after he was attacked by the notoriously anti- schweigsame Frau e , me Frau s 63 . Der Stürmer Semitic Julius Streicher in his paper, S ulius Stre Strauss spoke for a traditional veneration of the author. Authors’ s spoke fo r gislation, rights legislation, in thrall to publishers, was an impenetrable legal he though thicket, he thought. Would that reform restore the creator to his t place, sim rightful place, simplifying relations between authors and dissemina- r tors! Only thus could the new regime reconcile noble individualism y thus cou t 64 Above all, the author’s integrity right Volksgem with the Volksgemeinschaft. w perpetua deserved perpetual protection, and all commercial borrowing from d 65 w ould be fo works should be forbidden. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

185 Moral Rights in Fascist Europe 175 Despite Strauss’s pleas, and despite their own claims to venerate Despite Strauss s pleas, and despite their own creative personalities, the Nazis were equally concerned creative personalities, the Nazis were equally concerned to temper extreme authorial claims, emphasizing society’s interests instead. extreme authorial claims, emphasizing society’s interests in They saw the Berne Union’s Rome conference as the end of the era They saw the Berne Union’s Rome conference as the end of the of ever- expanding authors’ rights. New technologies of dissemination ogies of dissemination o and new legal instruments, like compulsory licensing, rightly limited and new legal instruments, like compulsory licensing, rightly limited 66 t The author’s rights were seen as socially bound the author’s claims. ally bound is idea of socially boun ( ( sozialgebundenes Recht ). This idea of socially bound rights became a ecame a undenes R s motif. But Nazi leitmotif. But it had been formulated already during Weimar by en formulated already dur Nazi leitmotif. But it had been formulated already during Weimar by 7 7 6 67 ju Indee r and Julius Kopsch. aim jurists like Alexander Elster and Julius Kopsch. Indeed, the claim e Alexand that property was ultimately subordinated to y subordinated to society’s dem erty was u was t society’s demands was 6 68 8 e emblazoned in the republic’s constitution from 1919. m 1919. ned in the d a friend o h was a com . Kopsch was a composer, conductor, lawyer, and a friend of Strauss. rgued for authors’ r He had argued for the socially bound nature of authors’ rights at a He had argued for the socially bound nature of authors’ rights at a of author en, he had c - congress of authors and composers in 1928. Then, he had been at- r daring to tacked for daring to limit authorial rights. Now, in the Nazi regime, w, in the Naz tacked for daring to limit authorial rights. Now, in the Nazi regime, 69 om inventing a new approach zis Far from inventing a new approach, the Nazis his time had come. h had come d a Weima continued a Weimar theme. Willy Hoffmann too had been an active continued a Weimar theme. Willy Hoffmann too had been an active . Willy Hoffmann too had be rmer dur legal reformer during Weimar, and he remained so in the Third mar, and he remained so legal reformer during Weimar, and he remained so in the Third he Nazi co n of authors’ rights, he i Reich. The Nazi conception of authors’ rights, he insisted, “puts the Reich. The Nazi conception of authors’ rights, he insisted, “puts the Volksgemeinschaft at the center of things, grants the author rights, meinschaft Volksgemeinschaft at the center of things, grants the author rights, 70 but also sets out his obligations to the community.” ets out his b eral Weimar Liberal Weimar had overemphasized the author. Now the task was to safeguard the had overemphasized the author. Now the task was to safeguard the emphasize communit German community. “In the new state,” another reformer agreed, “we German community. “In the new state,” another reformer agreed, “w 71 cially grou a are all socially grounded.” ide moral Nazi reformers saw the regulatio Alongside moral rights Nazi reformers saw the regulation of radio broadcasts, with its possibility of compulsory licensing, as the core of broadcasts, with its possibility of compulsory licensin s, with its 72 The committee formulating a government the Rome conference. e conferen t 34 discusse bill in 1934 discussed how compulsory licensing might aid the new b 73 Again, strong conti- regime’s commitment to greater public access. commitm r f thought nuities of thought stretched from Weimar to the Third Reich. Al- n r 928, Willy ready in 1928, Willy Hoffmann had railed against French skepticism about compulsory licensing. The work stood “in service to the Volks- a mpulsory gemeinschaft,” he argued, using a rhetoric even then that we find g haft,” he a o separate difficult to separate from Nazi ideology but that in fact was common d 74 In 1928 his colleague Kopsch star- during th currency during the republic too. c tled the Conféderation Internationale des Sociétés d’Auteurs et Conféder t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

186 176 Chapter 5 Compositeurs, as it met in Berlin to prepare fo Compositeurs, as it met in Berlin to prepare for the Berne confer- ence, by demanding that authors’ rights be limited by c ence, by demanding that authors’ rights be limited by compulsory licensing on behalf of the community. He sang the praises of licensing on behalf of the community. He sang the praises of licens- ing: it prevented works from becoming capitalist commodities, it ing: it prevented works from becoming capitalist commodities 75 75 lowered prices and encouraged multiple editions. lowered prices and encouraged multiple editions. Hoffmann, Kopsch, and other jurists now seamlessly carried such ly carried such arguments into the Third Reich’s more receptive atmosphere. With arguments into the Third Reich’s more receptive atmosphere. With a friendly allusion to the socializing goals of Roosevelt’s New Deal, y allusion ocializing goals of Roo a friendly allusion to the socializing goals of Roosevelt’s New Deal, Ludwig Wertheimer, a Frankfurt lawyer, warmly recommended mu- Wertheim Ludwig Wertheimer, a Frankfurt lawyer, warmly recommended mu nkfurt lawyer, warmly reco - sical licensing in 1936 so composers could pay society back for its omposers could pay society nsing in 1 sical licensing in 1936 so composers could pay society back for its 76 and inspir ere Overstated authorial property rights were Overstated authorial property support and inspiration. s considered a Roman legal concept, foreign to Germanic law, which considered a Roman legal concept, foreign to Germanic law, which o Germanic l ed a Rom understood property not as absolute control but as a socially tem understood property not as absolute control but as a socially tem- ut as a soc - od prope 77 ower given The work existed independently of d indepen p pered power given by statute. f its author and should be safeguarded for its own sake. The work, not its author and should be safeguarded for its own sake. The work, not sake. The r and shou mic, military its creator, was paramount. If society’s economic, military, or racial its creator, was paramount. If society’s economic, military, or racial or, was par 78 78 The work rk so requir interests so required, authors could be expropriated. hors could be expropriated. i should be protected against degrading changes, even those sought by should be protected against degrading changes, even those sought by e protecte t degrading changes, even tho its creator. If nationally significant, it might be published against his r. If natio nificant, it might be publis its creator. If nationally significant, it might be published against his 79 In a deba rch 1933, Hoffmann agr In a debate in March 1933, Hoffmann agreed that the com- he com - w wishes. m hers coun mon good took precedence over authorial self- interest. Others coun- - od took pr tered that—taken to its logical conclusion—his claim meant the end tered that—taken to its logical conclusion—his claim meant the end t—taken t of the author’s economic and possibly his personal rights. The new thor’s eco of the author’s economic and possibly his personal rights. The new Nazi vision, Hoffmann replied, emphasized the collectivity’s claims Nazi vision, Hoffmann replied, emphasized the collectivity’s claim on, Hoffm 80 80 and the socially determined nature of authors’ rights. cially d e a o d nature of authors’ rights . vized moral rights by focusing Nazi jurists also collectivized moral rights by focusing on honor urists also and reputation. At the 1928 Rome conference, the Commonwealth and reputation. At the 1928 Rome conference, the utation. At n had mana nations had managed to replace “moral interests” as the right pro- t ith the au tected with the author’s honor and reputation instead. This allowed t them to assert that they already protected authors and so spared assert tha e need to t them the need to pass new laws. It also slimmed down the authors’ claims. Community standards, not authors’ own subjective sensitivi- Communi c ties, determined when harm was done. Giving a tragedy a happy end rmined w t was filme when it was filmed might offend the story’s author and his moral w but prob interests but probably did not impair his honor or reputation. The i us on the Nazi focus on the author’s honor was not motivated by the same N THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

187 Moral Rights in Fascist Europe 177 hope as the Commonwealth nations to weasel ou hope as the Commonwealth nations to weasel out of the new Berne obligations. But in much the same way it socialized the g obligations. But in much the same way it socialized the goods to be protected. Moral interests, as determined by authors, were k protected. Moral interests, as determined by authors, were kept in f check only by the thickness o Urhe- their skin. Their honor, their check only by the thickness of their skin. Their honor, their U , in contrast, was a social concept. It mirrored the communi- b rrored the communi berehre 81 The dog in the The dog in the ). ty’s standards ( t ein Spiegel im Auge der Gemeinschaft y fi but to the fight belonged not to a possibly vain and querulous artist but to the Volksgemeinschaft. And who was to define that, if not Nazi official- meinschaft ho was to define that, i - Volksgemeinschaft. And who was to define that, if not Nazi official dom? A work that set itself against the community could be cen f against the community dom? A work that set itself against the community could be cen- work that - sured. The state protected only those who served it loyally. The ego- e state pro - nly those who served it loya sured. The state protected only those who served it loyally. The ego tistical artist who refused to adapt his work to the community’s tistical artist who refused to adapt his work to the community’s to adapt his work to the com tist who demands could not expect the state to defend his purely personal could no demands could not expect the state to defend his purely personal d his purely interests. The author might be forbidden to withhold his work from hold his w The autho interests. The author might be forbidden to withhold his work from 82 on or requ publication or required to tolerate changes after publication. p publicatio emingly tra , was one Honor was one of those flexible, sonorous, seemingly traditional, evocative, and ponderous terms the Nazis so favored. Like moral favored. Li evocative, and ponderous terms the Nazis so favored. Like moral and pon rights, honor was an aristocratic throwback that, at first glance, rights, honor was an aristocratic throwback that, at first glance, onor was ocratic throwback that, at fir o a populist mass movement nlikely to seemed unlikely to appeal to a populist mass movement. But honor seemed unlikely to appeal to a populist mass movement. But honor a portman cept that allowed Nazis to was also a portmanteau concept that allowed Nazis to cram together was also a portmanteau concept that allowed Nazis to cram together m dictory their ever - fractious and self- contradictory irreconcilable impulses from their ever- r able impu i fractious and ideology. Honor fused the movement’s aristocratic posturing and its Honor fu ideology. Honor fused the movement’s aristocratic posturing and its egalitarian appeal. The Nazi obsession with honor capped a century- n appeal. T egalitarian appeal. The Nazi obsession with honor capped a century- long development of the concept. Originally an aristocratic conceit, long development of the concept. Originally an aristocratic conceit, lopment honor became increasingly democratized during the nineteenth ce came incr honor became increasingly democratized during the nineteenth cen- 83 tury as the aspirational middle classes strove for higher status. The tury as the aspirational middle classes strove for higher status. e aspiratio Nazis prided themselves on having rejuvenated the concept as a mer- Nazis prided themselves on having rejuvenated the concept ded thems itocratic measure of worth. No longer the preserve of caste or class, measure o itocratic measure of worth. No longer the preserve Nazi honor supposedly recognized the individual’s contributions to N or suppos 84 Applied to authors’ rights, Nazi honor h his Volksgemeinschaft. gemeinsc n pped indiv neatly slipped individualistic moral rights into a social context. The author’s honor demanded that a “correct interpretation of the work honor dem a 85 When the Nazi Jus- was to be protected in the Volksgemeinschaft.” w protected tice Ministry formulated the last version of its reform bill in 1939, t stry form Urheberpersönlichkeitsrecht what had been the , the German transla- been the w t tion of “droit moral,” was redubbed as the “Urheberehre,” the author’s roit moral 86 honor. h THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

188 178 Chapter 5 WHAT THE NAZIS W O ULD HA V E D O N E WHAT THE NAZIS WOULD HAVE DONE While the party planned for major change once it was in power, the While the party planned for major change once it was in power, 87 3, the Nazis shifted the Already in June 1933, the Nazis shifted the r regime delivered little. supervision of authors’ rights from the Interior Ministry to Goeb- supervision of authors’ rights from the Interior Ministry to Goeb - bels’s Ministry of Popular Enlightenment and Propaganda. They rati bels’s Ministry of Popular Enlightenment and Propaganda. They rati- - 88 A burst revised Be vention in October of fied the revised Berne Convention in October of that year. fi A burst hen accompanied a series ogical disc of ideological discussion then accompanied a series of reform pro- of ideological discussion then accompanied a series of reform pro - posals. Little, however, had been implemented by 1939, when the war ittle, howe been implemented by 1939, w posals. Little, however, had been implemented by 1939, when the war 89 89 war, s started e the Nazis started ended hopes for reform. In addition t opes for reform In addition to the war, also foun nterests clam reforms also foundered on the diversity of interests clamoring for reforms also foundered on the diversity of interests clamoring for attention and the regime’s characteristic inability or unwillingness to y or unwill n and the r attention and the regime’s characteristic inability or unwillingness to m ar decisio make clear decisions among them. then conso early yea In the early years, as the Nazis sought and then consolidated a a base, they popular base, they criticized capitalism and big business, playing up g business, p popular base, they criticized capitalism and big business, playing up oc i nce he had become chancell t tional r’s . Once he had become chancellor, Hitler’s socialism their national s main political predicament was balancing between the populism litical pre main political predicament was balancing between the populism nt was balancing between th that had won the NSDAP its broad membership, represented within won the N that had won the NSDAP its broad membership, represented within ts broad membership, repr the party by the SA and the Strasser brothers, and the necessity of y by the S he Strasser brothers, an the party by the SA and the Strasser brothers, and the necessity of tactically allying with the traditional elites. Until June 1934, when tactically allying with the traditional elites. Until June 1934, when allying w Hitler suppressed the party’s popular wing in the Night of the Long ppressed Hitler suppressed the party’s popular wing in the Night of the Long common. Even after Knives, socialist- style slogans and ideology were common. Even after ocialist- K st y that, the party’s anticapitalist and populist rhetoric persisted. But the party’s an that, the party’s anticapitalist and populist rhetoric persisted. But t Nazis had to appeal equally to the establishment, whose backing was d to appea Nazis had to appeal equally to the establishment, whose backin crucial during the early years before Hitler had consolidated power. f uring the ore Hitler had consolidat crucial during the early years bef f The minor issue of authors’ rights interestingly encapsulated a wider or issue of The minor issue of authors’ rights interestingly enca ideological challenge. It forced the regime to choose between au- i cal challen seminator thors/disseminators and the public. As a Frankfurt lawyer remarked t in 1936, no other aspect of civil law posed the contradiction between no other as i 90 individual interests and the community so sharply. al interest i The regime balanced two contradictory impulses: to celebrate the gime bala reative ar h heroic, creative artist whose gifts served society, but who still re- aristocratic, elitist figure, and to insist that the com- m a a pseudo- mained a pseudo- m was the ul munity was the ultimate source of his creativity and thus entitled to As in muc its fruits. As in much Nazi ideology, elitist, aesthetic, aristocratic prin- i ciples jostled with egalitarian and populist ambitions. Authorial per- tled with c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

189 Moral Rights in Fascist Europe 179 sonality rights, having grown throughout the n sonality rights, having grown throughout the nineteenth century, were to be fulfilled by the new Berne principles. But at the same time were to be fulfilled by the new Berne principles. But at the the public was now more the focus of attention than at any the public was now more the focus of attention than at any time since the eighteenth century. Arguably, it was even more so since it since the eighteenth century. Arguably, it was even more so since was no longer seen as a passively recipient audience. It was now fac was no longer seen as a passively recipient audience. It was now fac- tored into the same aesthetic algorithm that produced works. tored into the same aesthetic algorithm that produced works. n its social Nazi ideology regarded creativity as possible only within its social setting. It turned society into the author’s equal in the creative en- to the author’s equal turned s setting. It turned society into the author’s equal in the creative en - - deavor, in much the same way as the socially determinist postmod way as the socially determ deavor, in much the same way as the socially determinist postmod- much th entury after Carl Spitzweg’s ernism of our own day. A century after Carl Spitzweg’s famous 1839 f our own ernism of our own day. A century after Carl Spitzweg’s famous 1839 painting of the poet writing in his attic bed (said to be the second of the poe g in his attic bed (said to be t painting of the poet writing in his attic bed (said to be the second most popular painting among Germans, after the m pular pain ), the e Mona Lisa r the Mona e lonely R cult of the lonely Romantic genius in his garret ended. The themes cult of the lonely Romantic genius in his garret ended. The themes ended. Th struck by Weimar reformers and Nazi ideologues were more akin to struck by Weimar reformers and Nazi ideologues were more akin to Weimar r were mor he Anglo- mmunity o those of the Anglo- American realm, where the community of creativ- - t ity and society’s preeminence were commonsense positions. In the ity and society’s preeminence were commonsense positions. In the ense positio ociety’s pr miserable transition from the last years of the Weimar Republic to he last years of the Weimar R transitio miserable transition from the last years of the Weimar Republic to the early Third Reich, German discussions of authors’ rights had the early Third Reich, German discussions of authors’ rights had man discussions of authors Third Re their Talfourd moment. The rhetoric of balance between authorial e rhetoric of balance betw their Talfourd moment. The rhetoric of balance between authorial urd mo o m Saxon discussion— claims and audience needs—the staple of Anglo- —the staple of Anglo- Sa c sion— d audienc was taken up in Germany as never before. n up in Ge w In the summer of 1932, during Weimar’s last days, the Ministry of e Ministry of summer o Justice formulated a draft bill on authors’ rights, intended jointly for Justice formulated a draft bill on authors’ rights, intended jointly for rmulated 91 G and Aust was published only on 12 July 1933, aft It was published only on 12 July 1933, after Germany and Austria. came chan Hitler became chancellor. Many reformers found it too favorable to Hitler became chancellor. Many reformers found it too favorab authors, insufficiently mindful of society’s demands, and not infused nsufficien authors, insufficiently mindful of society’s demands, and no 92 92 In response, Willy Ho In response, Willy Hoffmann wrote a with the Third Reich’s spirit. Third Reic with the Third Reich’s spirit. 93 He and Julius Kopsch, in turn, were in- draft bill in his own name. in his own d strumental in formulating another bill under the imprimatur of the al in form s National Socialist Lawyers’ Federation (NS- Juristenbund), which re- N Socialist L 94 The Justice Ministry in turn worked the 1932 Weimar draft bill. he 1932 W w 95 overhauled its own earlier bill several times from 1933 to 1939. ed its own o Since none of these bills was implemented, we need not parse none of t their details. All of them assumed the socially embedded nature of ails. All of t and the au c creativity and the author’s role within his community. But all equally sought to protect authors’ moral rights. The 1934 Justice Ministry bill protect au s the previ collected the previous laws’ scattered passages on moral rights, har- c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

190 180 Chapter 5 monizing them with the Rome principles; and all the draft bills monizing them with the Rome principles; and 96 96 d . integrity d A right of repenting granted disclosure, attribution, and integrity. grante d A right o isc l osure, attri b ution, an in the 1933 bill allowed the author to forbid publication eve in the 1933 bill allowed the author to forbid publication even after 97 assigning his rights, if his standing or reputation were threatened. assigning his rights, if his standing or reputation were threatene For film, every creative participant could demand to be named, and For film, every creative participant could demand to be named, and 98 The Lawyers’ Federation’s rs’ Federation’s alterations required their permission. a formulation went beyond the 1928 Berne compromise of safeguard formulation went beyond the 1928 Berne compromise of safeguard- - ing only honor and reputation by protecting the author’s “personal tion by protecting the honor an ing only honor and reputation by protecting the author’s “personal expressive will” ( seines eigenpersönlichen Ausdruckwillens ). But the Jus- - se e will” ( he Jus e persönlichen Ausdruckwillen istry’s 193 tice Ministry’s 1939 bill more restrictively allowed authors to veto tice Ministry’s 1939 bill more restrictively allowed authors to veto ore restrictively allowed aut A c Ansehen ) or rep Ansehen ) or reputation. A only if th changes only if they violated standing ( ted standing ( proviso, allowing the minister of propaganda to compel publication to compel p proviso, allowing the minister of propaganda to compel publication allowing t of posthumous works of national importance, restricted the disclo restricted t umous wo of posthumous works of national importance, restricted the disclo- - sure right. But the 1939 bill also bowed to authorial individualism by al individ t. But the sure right. But the 1939 bill also bowed to authorial individualism by agreeing that the state could not force posthumous publication of a that the s ous public agreeing that the state could not force posthumous publication of a 99 99 work if the author’s will banned its appearance. e. w he author to Excepting movie scripts, the first Nazi bills allowed authors to ting mov s, the first Nazi bills allowed w from pu withdraw from publishing contracts if disseminators failed to issue withdraw from publishing contracts if disseminators failed to issue contracts if disseminators fa rks. They their works. They granted artists access to works (to copy them, for artists access to works (to their works. They granted artists access to works (to copy them, for 100 100 ) now ow d from e Creditors we o . ers h Creditors were restricted from t example) now owned by others. ng on or foreclosing on or forcing sales of works. Architects could prevent foreclosing on or forcing sales of works. Architects could prevent 101 uch the Nazi t their buildings being replicated. ldings be In sum, however much the Nazi played up rhetoric played up community claims, their bills would have guaran rhetoric played up community claims, their bills would have guaran- teed the moral rights specified by Berne and then some. teed the moral rights specified by Berne and then some. moral rig vested with these new rights? In th Who would have been vested with these new rights? In the new would hav me era, le post- Rome era, legal entities were no longer entitled to authors’ ies were no longer entitled to p 102 As in inh rights. r erman laws, the Nazi bi As in inherited German laws, the Nazi bills identified the 103 s the perso Alienability was a author as the person who had created the work. a elated issu c closely related issue. Economic rights could, of course, be assigned 104 but not personal rights. The trope of the heroic creator forbade it. b personal r Existing law merely prevented works from being published under E law mere name or g a another name or grossly distorted. Moral rights were now to guaran- t tee the creator artistic control even after he had sold his work. As reator art Kopsch explained in 1938, in existing law rights often passed to a capi- K xplained i erprise. B t talist enterprise. But in the Nazi conception, the author remained 105 forever identified with the work and he alone could change it. dentified f nn’s draft b Hoffmann’s draft bill made moral rights inalienable but allowed case H THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

191 Moral Rights in Fascist Europe 181 106 law to decide whether they should last longer than law to decide whether they should last longer than economic rights. The Nazi Lawyers’ Federation’s bill declared authors’ rights inalien- The Nazi Lawyers’ Federation’s bill declared authors’ righ able and in principle uninheritable, though the creator’s fam able and in principle uninheritable, though the creator’s family or 107 10 another designee would safeguard his moral rights after death. another designee would safeguard his moral rights after death. Existing German law allowed juridical entities to be considered ities to be considered the authors of works like dictionaries and encyclopedias. Moral the authors of works like dictionaries and encyclopedias. Moral rights posed a dilemma: whose personality did a collective work ex- rights posed a dilemma: whose personality did a collective work ex - x x 108 reativity as collective su The Nazis’ view of creativity as collective suggested an elision he Nazis’ v elision p press? - to a communitarian view of the author. The Nazis’ emphasis on lead f the author. The Nazis’ em to a communitarian view of the author. The Nazis’ emphasis on lead- munitarian F rp son , also encouraged the idea that one person Führerprinzip ership, their e ühre lso encouraged the idea that eir 109 109 - iv Yet, instead o Yet, instead of collectiv- should take charge of collaborative efforts. ke charge s borative efforts izing rights to collaborative works, both the bill of the Nazi Lawyers’ izing rights to collaborative works, both the bill of the Nazi Lawyers’ ll of the Nazi ts to colla Federation and that of 1939 vested rights to group works in the par- up works in n and tha - F ticipants jointly and individually, not collectively in any one primus ticipants jointly and individually, not collectively in any one primus in any on jointly an 110 110 d They upheld the principle of flesh- and- blood cre- a - h T an flesh- among them. b hem. - - ators as the bearer of rights, rather than taking a more practical ad he bearer g a more pra ators as the bearer of rights, rather than taking a more practical ad- 111 111 ministrative approach to lodge them with one person or entity. ive appro ministrative approach to lodge them with one person or entity. odge them with one person o aw, to which we return, upen Moreover, the 1936 patent law, to which we return, upended existing Moreover, the 1936 patent law, to which we return, upended existing r, the 1936 law to vest both economic and attribution rights in the actual inven law to vest both economic and attribution rights in the actual inven- t both eco - and attribution rights in the 112 112 tor, even if he was someone else’s employee. t else’s employee. if he was s ho should And who should stand watch over moral rights, especially in the lly in the long term? Nazi reformers wanted to prevent works of national im long term? Nazi reformers wanted to prevent works of national im- - m? Nazi re portance from being degraded. The 1928 Rome Conference’s article from bein portance from being degraded. The 1928 Rome Conference’s article bis d with the issue. But the Nazis considere on moral rights grappled with the issue. But the Nazis considered oral rights 6 6 it too individualistic, enlisting only the author, and possibly his it too individualistic, enlisting only the author, and possibly his heirs, ividualisti to watch over his works. This would not suffice for works a over his w to watch over his works. This would not suffice for works already in c domain the public domain, nor guard against profiteering the public domain, nor guard against profiteering or lazy descen- mething l d dants. Something like the Reichskulturkammer was needed to protect w works against heirs or even the author himself. If works expressed the ainst heirs creative po people’s creative powers mediated through the author, then he too p 113 prevented c could be prevented from changing them. At the least, compulsory of posthu i l licensing of posthumous works that heirs failed to publish should be c d. Ultima considered. Ultimately, personality rights could not remain a private assing to m matter, passing to ever more distant heirs. They had to be social- 114 z i he Nazi bi The Nazi bills all enlisted state institutions to preserve integ- ized. the Volks rity. Only the Volksgemeinschaft, spoken for by the state, could pre- r 115 ral interes s serve moral interests. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

192 182 Chapter 5 What about society s more immediate claims What about society’s more immediate claims to access? The flip side of moral rights was licensing arrangements. At Ro side of moral rights was licensing arrangements. At Rome in 1928, delegates had battled over whether radio broadcast rights sho delegates had battled over whether radio broadcast rights should be granted to authors as exclusive rights or as licensed claims to royal- granted to authors as exclusive rights or as licensed claims to ro ties. The Norwegians, whose own law of 1930 would have a collectiv ties. The Norwegians, whose own law of 1930 would have a collectiv- 116 Australia and New Zealand, cul- istic streak, advocated licensing. i w Zealand, cul - tured but sparsely settled lands and therefore alive to the promises of tured but sparsely settled lands and therefore alive to the promises of anded broadcasting rig dia like rad new media like radio, demanded broadcasting rights even if authors new media like radio, demanded broadcasting rights even if authors 7 117 7 Britain, Britain, also a radio- mad country, agreed. But the French dio- resisted. mad country, agreed. r rench insisted t delegates insisted that the public interest should not take precedence public interest should not tak delegates insisted that the public interest should not take precedence 118 118 over exclusive authorial rights. hts o usive auth al onal legislatio ome conf The Rome conference left specifics to national legislation. Several mpulsory nations had already introduced variants of compulsory licensing. nations had already introduced variants of compulsory licensing. had alread 119 e on to licen T is also eag The Nazis also eagerly followed Rome’s invitation to license. The determine d, cast lice socially determined nature of works, they insisted, cast licensing in a socially determined nature of works, they insisted, cast licensing in a new light. Earlier, licenses had been seen as exceptions to the general new light. Earlier, licenses had been seen as exceptions to the general ceptions to t t. Earlier, l rule of exclusive authorial rights. Now they were considered an in rule of exclusive authorial rights. Now they were considered an in- rights. Now they were consid - xclusive a 120 120 s. mit to tho herent limit to those claims. The Nazi draft bills all pr - h om The Nazi draft bills all proposed com- - ce Ministry version no fewe pulsory licensing, the Justice Ministry version no fewer than six vari- icensing, t pulsory licensing, the Justice Ministry version no fewer than six vari ants. Hoffmann’s bill permitted radio stations to use published work ffmann’s b ants. Hoffmann’s bill permitted radio stations to use published work itted radio stations to u against payment of fees. The Lawyers’ Federation foresaw licensing against payment of fees. The Lawyers’ Federation foresaw licensing ayment o s so long as moral rights were not violated. s moral ri WHAT THE NAZIS DID HE NAZIS W from the To judge from the Nazi draft bills, had authors’ rights been reformed To judge from the Nazi draft bills, had authors’ righ in the Third Reich, they would have balanced pampering ideologi- hird Reich i servant au cally observant authors with upholding the regime’s ideological c populism. Moral rights were promised, but creativity’s socially deter- p m. Moral r mined nature left authors ultimately beholden to the community. m ature left Authors’ rights were debated especially in the regime’s early years, rights we A when its populism was still untempered by the compromises of w populism power. The party platform’s petty bourgeois, quasi- socialist radical- he party p p ism was evident in the lambasting of big media. i evident in Authors’ rights shared features with agrarian reforms during the rs’ rights 121 121 T ime. early regime. The law on peasant estates was one of the few Nazi h e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

193 Moral Rights in Fascist Europe 183 laws that reflected the party s original petty laws that reflected the party’s original petty- bourgeois radicalism. Other reforms in this vein, while promised before Hitl Other reforms in this vein, while promised before Hitler came to power, were either ignored or watered down after 1933. To win over power, were either ignored or watered down after 1933. To wi shopkeepers the Nazis had pledged to close department stores. But shopkeepers the Nazis had pledged to close department stores. B when they realized this would put many out of work and hurt work when they realized this would put many out of work and hurt work- ers by raising prices, they only imposed restrictions on large retailers ers by raising prices, they only imposed restrictions on large retailers 122 ), Reichserbhofgesetz In contrast, the law on peasant estates ( ), bhofgesetz n i instead. r 1933, really did cater t passed already in September 1933, really did cater to the independent passed already in September 1933, really did cater to the independent eady in Se middle classes who had backed the party from the beginning. It cre- ked the party from the beg middle classes who had backed the party from the beginning. It cre - asses who ated entailed farms, passed to the eldest son, which could be neither ated entailed farms, passed to the eldest son, which could be neither to the eldest son, which coul iled farms 123 uch solicitude for the core Na u - But such solicitude for the core Nazi constitu- sold nor mortgaged. mortgaged s atisfy broade not outlas ency did not outlast the party’s later need to satisfy broader interest ency did not outlast the party’s later need to satisfy broader interest groups—much less the requirements of rearmament and war. much less ment and w g The Nazis’ reform ambitions for authors’ rights were cut from the azis’ reform e were cut same cloth. They too applauded the self- employed, not the salaried ed, not the s h. They to d ng the creat t they wer classes. Yet they were also collectivistic in granting the creative classes classes. Yet they were also collectivistic in granting the creative classes few rights that they could actually cash in. As the peasant proprietor s that they few rights that they could actually cash in. As the peasant proprietor ctually cash in. As the peasant was but a trustee for future generations, so the author only transmit- was but a trustee for future generations, so the author only transmit trustee fo generations, so the author on - ted the community’s spiritual powers. The Nazis claimed to root for ommunity ual powers. The Nazis claim ted the community’s spiritual powers. The Nazis claimed to root for the heroic creator against big media. Their author was, of course, not c creator a the heroic creator against big media. Their author was, of course, not g media. Their author w a rootless avant- garde bohemian. He grew from the soil of the Volks- a avant- g the Volks a r - gemeinschaft. But he served the people, not the corporations. Only haft. But gemeinschaft. But he served the people, not the corporations. Only creators, never entrepreneurs, should own rights, one reformer noted. never entre creators, never entrepreneurs, should own rights, one reformer noted. hould not Authors should not become employees of publishers nor be contrac- Authors should not become employees of publishers nor be contra tually obliged to produce a specified number of works. The pub- liged to p tually obliged to produce a specified number of works. The lisher’s custom of pulping or discounting unsuccessful books vio- lisher’s custom of pulping or discounting unsuccessful b ustom of author’s h lated the author’s honor, sacrificing his personality lated the author’s honor, sacrificing his personality on the “altar of p ). The media industries g capitali Verlegerkapitalismus publishing capitalism” ( were considered likely violators of moral rights, blocking society’s w sidered li 124 24 in interests. The few measures actually implemented in the Third Reich re- w measur flected this Nazi concern for authors. Foremost among them was his Nazi c fl term extension. Germany entered the Third Reich with thirty years nsion. Ge t p em, inher postmortem, inherited from the 1837 law. The Berlin revision of 1908 had a Berne in 1908 had accepted fifty years as the goal in principle. But, as B we have seen, a debate ensued during the late Weimar and early Nazi een, a deb w years that faintly echoed the furious arguments in Britain almost a t faintly e y THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

194 184 Chapter 5 century earlier over Talfourd s proposals. Some century earlier over Talfourd’s proposals. Some argued that other nations had increasingly adopted fifty years and that the longer term nations had increasingly adopted fifty years and that the l favored authors and their families. Opponents noted that, since favored authors and their families. Opponents noted that many authors (Brahms, Schopenhauer, Heine, Feuerbach) had many authors (Brahms, Schopenhauer, Heine, Feuerbach) had no children, only the publishers profited. The German- speakers of cen- children, only the publishers profited. The German- speakers of cen t anks in part to tral Europe were cultured, well- educated people thanks in part to y three de c cheap, good editions entering the public domain already three de- - 125 125 By contrast, a fifty- year term was By contrast, a rm was cades after the author’s death. u c e h e a r t eath. neglected the community liberal and individualistic, neglected the community’s interests, and liberal and individualistic, neglected the community’s interests, and nd individ 126 threatened to turn the clock back to the nineteenth century. ck back to the nineteenth ce t The ed to turn The committee drafting the 1934 bill supported thirty years as speaking ee draftin 34 bill supported thirty years a committee drafting the 1934 bill supported thirty years as speaking uld not be d Volksgeme for the Volksgemeinschaft. “The people should not be deprived of for the Volksgemeinschaft. “The people should not be deprived of is f a departed nt works ju important works just because the grand- niece of a departed author is i 127 living in hardship.” hardship.” l Strauss lea With Strauss leading the charge, authors predictably agitated for or dictably ag 128 128 Faced with a choice between creators and the public, c reators and t c, Fa rms. l longer terms. the regime in fact plumped for authors. In 1934, after Strauss had lob the regime in fact plumped for authors. In 1934, after Strauss had lob- for authors. In 1934, after Strau me in fact p - few major Nazi changes to au bied Goebbels, one of the few major Nazi changes to authors’ rights ebbels, on bied Goebbels, one of the few major Nazi changes to authors’ rights 129 12 The German d protectio lf a century postmortem. extended protection to half a century postmortem. rman e hand had arguably been forced when Austria introduced a fifty- year rced when Austria intro r ea y hand had arguably been forced when Austria introduced a fifty- d arguably term in December 1933. German publishers faced the prospect of Decembe term in December 1933. German publishers faced the prospect of voting wi authors voting with their feet. Fascist Italy too had adopted a half- authors voting with their feet. Fascist Italy too had adopted a half- 130 erm in 19 ustice Ministry’s bill Equally influential, the Justice Ministry’s bill c century term in 1925. 2 had alre from 1932 had already come down in favor of the longer duratio from 1932 had already come down in favor of the longer duration, 131 131 the deligh much to the delight of the interested parties. much to the delight of the interested parties. Music too was controversial, raising Nazi hackles. Infamously, they too was c sial, raising Nazi hackles. Infam banned jazz as the mongrelized expression of degenerate Judeo- jazz as th banned jazz as the mongrelized expression of de 132 13 African America. A But the Nazis were also flexible. Homespun pop- America. ular music, presented as a cultural cousin of folk music, was accept- ic, presen u e 1930s an able. The 1930s and ’40s were the golden age of German hits— a 33 133 S Yet cultural decline remained a fearsome prospect. With t . Yet cul Schlager aph recor phonograph recordings and radio broadcasts fewer people played p instruments. Cultural pessimists—much like Sousa in the United ents. Cult i S States—worried that popular melodies, cranked out by the hour in worried th the music industries, were supplanting wholesome folk music and c industr t dances. Sounding like Frankfurt School theorists, the Nazis lam- d Sounding 134 Musical potpourris especially opular m b basted popular music and its stars. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

195 Moral Rights in Fascist Europe 185 galled them. In theory such medleys were forbidd galled them. In theory such medleys were forbidden by the 1901 law 135 13 5 At the time, this At th awe d b orrowin g reco g t bl e me niza l o d ies . h at out l that outlawed borrowing recognizable melodies. had been widely opposed as restricting musical invention and appar- had been widely opposed as restricting musical invention and 136 136 Berne’s new Rome obligations, one Berne’s new Rome obligations, o ently was not strictly enforced. . ently was not strictly enforced reformer now argued, meant that medleys violated composers’ rights. reformer now argued, meant that medleys violated composers’ rights. While an assortment of popular songs perhaps hurt no one’s honor, While an assortment of popular songs perhaps hurt no one’s honor, 137 7 137 A A turning serious music into mere entertainment was intolerable. turning serious music into mere entertainment was intolerable. reformed law on authors’ rights, another mused, must ensure that rights, another mused, reformed law on authors’ rights, another mused, must ensure that law on a - important works not be degraded by unworthy performances or al t works n graded by unworthy perfo important works not be degraded by unworthy performances or al- terations. His example was Heinrich Berté’s use of Schubert’s music Heinrich Berté’s use of Schu terations. His example was Heinrich Berté’s use of Schubert’s music His exam Das tta about the composer’s lov in his 1916 pastiche operetta about the composer’s love life, as n i 16 pastich 138 Blossom Time Time Lilac Time in the US, in Brita ( Dreimäderlhaus D rlhaus ( B l o in Britain). himself letters de Strauss himself found time to write angry letters demanding g l melodie prison sentences for such travesties. Even classical melodies already prison sentences for such travesties. Even classical melodies already ntences fo in the public domain should not be performed in popular musical blic doma in popular in the public domain should not be performed in popular musical 139 Reichsmusi trot s styles like fox- trots or marches. e fox- In 1934 the Reichsmusikkammer r s d that mu tpourris no longer be based on demanded that musical potpourris no longer be based on the great demanded that musical potpourris no longer be based on the great 0 140 m n masters. e gulations sought to preserve t In Baden local regulations sought to preserve the integrity rity In Ba d of musical works by outlawing performances in unsuitable places. of musical works by outlawing performances in unsuitable places. wing performances in unsu al works b man natio The German national anthem and the Horst Wessel song—the an em and the Horst Wes The German national anthem and the Horst Wessel song—the an- - t them of the Nazi Party and co- he Nazi P national anthem after 1933—were not were not 141 Horst Wessel Ironically, the Horst Wessel g in cafés t to be sung in cafés, bars, and the like. song itself had to be defended against charges that it, too, was but a f had to b song itself had to be defended against charges that it, too, was but a 142 142 pastiche of older folk melodies. pastiche of older folk melodies. of older fo ichskultu The Reichskulturkammer never followed up. And some rejected a r never followed up. And some rejec 143 143 Justice Minister Franz Gürtner Justice Minister Fran prohibition of borrowed melodies. prohibition of borrowed melodies. on of borr doubted that such uses could be forbidden for public that such u doubted that such uses could be forbidden for public domain music. 144 O Hoff- ared that Others feared that Strauss’s approach might ossify culture. mann’s draft bill from 1933 was explicit that use of others’ melodies raft bill fr m not be forbidden (a stricture it regarded as derived from French law). rbidden (a n 145 Indeed, it favored widespread rights to borrow for new creations. favored w I 1934 and 19 Both the 1934 and 1939 bills allowed fair use among musical composi- B 146 tions. The former worried less about serious music being poached he former t by lighter epigones than about exchanges between compositions of r epigones b the same caliber. In any case, a rigid protection of melodies ham- caliber. I t stic creati p pered artistic creativity and unjustifiably protected only music from 147 14 7 7 The N The Nazis never decided such issues. But they seem to g. borrowing. b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

196 186 Chapter 5 have been skeptical of strictures that narrowly p have been skeptical of strictures that narrowly protected composers e melodies v of attracti . of attractive melodies. In other respects, too, the regime sought to loosen restrictions on In other respects, too, the regime sought to loosen restricti the use of intellectual property. The draft bills followed existing law the use of intellectual property. The draft bills followed existing - in allowing music to be played without permission at free or chari in allowing music to be played without permission at free or chari 148 table concerts. t ated. After the But on licensing, the Nazis innovated. After the - draft bills made clear their intent to facilitate the easy and auto draft bills made clear their intent to facilitate the easy and auto- media, the Law on M matic use of works in new media, the Law on Musical Performance e of work matic use of works in new media, the Law on Musical Performance form of compulsory licen Rights of 1933 introduced a form of compulsory licensing, framed as f 1933 intro Rights of 1933 introduced a form of compulsory licensing, framed as 149 tified rights of access to work ard of soci It estab- tab a safeguard of society’s justified rights of access to works. a - for musical royalties, the Stag collection lished a collection agency for musical royalties, the Stagma, whose lished a collection agency for musical royalties, the Stagma, whose formula for apportioning fees favored serious music over mere for appo formula for apportioning fees favored serious music over mere ous music o 5 150 0 1 ment. entertainment. e The Nazis also keenly appreciated the new media’s potential for r edia’s pot Nazis also p nda and in h had repla Haus- propaganda and indoctrination. The phonograph had replaced s- apers and co ovies the t musik , movies the theater, and the radio newspapers and concerts. No m No nostalgia point in nostalgia! The goal was to channel the new media, with point in nostalgia! The goal was to channel the new media, with oal was to channel the new m 1 151 Radio and and t ect access masses, on the state’s behalf. their direct access to the masses, on the state’s behalf. ecially inte film especially interested a regime with sufficient savvy to enlist the regime with sufficient savv film especially interested a regime with sufficient savvy to enlist the hnologies uest for legitimacy. Eve latest technologies in its quest for legitimacy. Every German home latest technologies in its quest for legitimacy. Every German home should have a radio, making use “at every moment of the biggest and should have a radio, making use “at every moment of the biggest and ave a radio most effective instrument of modern mass influence in the interest ective inst most effective instrument of modern mass influence in the interest 152 As early as 1933, a quar- early as 1933, a quar of the well- being of the Volksgemeinsamheit .” o o b ll- eing ter of all households owned radios. Thanks to the affordable Vo l Vo l k s - ter of all households owned radios. Thanks to the affordable househo r , the people’s receiver, radio ownership doubled during the e , empfänger e peo h t iver, radio ownership doubled durin 153 Nazi years, though it still lagged behind the UK and the US. rs, though Nazi years, though it still lagged behind the UK and the U Nazis cann The Nazis cannily recognized film’s charms. Rich and poor, bur- nized film’s charms. Ric g ghers and workers, intellectuals and dunces flocked night after nd worker 154 Goebbels poured money into film studios. n the cinem night to the cinemas. Leni Riefenstahl famously put her pathbreaking cinematic tech- L efenstahl niques at the party’s disposal. Cinema was not another version of n t the part Goebbels t theater, Goebbels lectured the International Film Congress in 1935, 155 a The Nazis and could not be governed like the old medium. ld not b voided ov m mostly avoided over- obvious messages, preferring to slip their ideo- ayload in logical payload into seemingly message- free movies. It has been ar- l g t only som gued that only some 14 percent of films released during the regime 156 rtly propa w were overtly propagandistic . THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

197 Moral Rights in Fascist Europe 187 FILM U NDER NATI O NAL SOC IALI SM FILM UNDER NATIONAL SOCIALISM Because they were inherently collaborative, the new media posed Because they were inherently collaborative, the new media pos 157 7 157 During the late During the late problems for inherited laws on authors’ rights. problems for inherited laws on authors’ rights. 1920s American writers became acutely aware of the aesthetic control 1920s American writers became acutely aware of the aesthetic control they sacrificed in Hollywood. George Middleton, a playwright active they sacrificed in Hollywood. George Middleton, a playwright active in professional organizations, reported his insight in 1927 that the sional org ns, reported his insigh in professional organizations, reported his insight in 1927 that the issue for the author was: “How is he going to protect himself against he author issue for the author was: “How is he going to protect himself against ow is he going to protect h 158 tua The situa- - riest thing world, which is a machine?” t the hungriest thing in the world, which is a machine?” t ermany w tion in Germany was no different. fferent In whom were rights vested for a collaboration like film? Statute tion like film e om were r guous in edium. The was ambiguous in the early days of the new medium. The director was ambiguous in the early days of the new medium. The director regarded was often regarded as a film’s author, sometimes in conjunction with was often regarded as a film’s author, sometimes in conjunction with n conjunc t w assigned r or cinem the editor or cinematographer. Some early case law assigned the pro- - - only the cre t role, bu ducer that role, but other instances regarded only the creative con ducer that role, but other instances regarded only the creative con- 159 he early 1920s Wenzel Goldbau t as author In the early 1920s Wenzel Goldbaum argued tributors as authors. ed for vesting rights in the scriptwriter. Others divided rights among g rights i for vesting rights in the scriptwriter. Others divided rights among riptwriter. Others divided ri 160 When talk- k writers, directors, composers, or combinations thereof. k s, or combinations thereof irectors, c talk w - ies arrived, the musical score lost importance. Increasingly, film was d, the mus ies arrived, the musical score lost importance. Increasingly, film was e lost importance. Incr seen not on the model of opera, with its separable creative parts, but on the mo seen not on the model of opera, with its separable creative parts, but as an entity fusing sound and image. The industry pressed for law to ty fusing as an entity fusing sound and image. The industry pressed for law to treat cinema as a unified whole, with the producer holding rights. treat cinema as a unified whole, with the producer holding rights. ma as a u Writers, composers, and others argued, by contrast, that differe composers Writers, composers, and others argued, by contrast, that different 161 16 1 ors all had contributors all had their own separate rights. contributors all had their own separate rights. standing debat oo, Nazi ns fit into long- Here, too, Nazi discussions fit into long- standing debates. In the in revisio 1908 Berlin revision of Berne, film was first prote 1908 Berlin revision of Berne, film was first protected in its own 162 n Rome tw r In Rome two decades later, the French delegation unsuccess- right. fully sought to have film recognized as belonging to all its “intellec- ght to hav f t tual creators” and not just the producer—especially not if the pro- ors” and n 163 d In 1935 a French s often tru ducer, as is often true with film, was a legal person. o e declared ordinance declared that a producer who actively shaped the film ount amon s should count among its authors. In 1939 the Paris Court of Appeals ced the pr pronounced the producer the sole author of a film, denying script- p 164 w writers rights and provoking outrage. ghts and The Weimar Justice Minis- of 1932 too try’s bill of 1932 took up film in light of similar debates. Moral rights t he law to obliged the law to recognize all creative participants. But the film o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

198 188 Chapter 5 industry, bowing to the new logic of vesting rights only in flesh- and- industry, bowing to the new logic of vesting righ blood authors, now argued that, in this inherently colla blood authors, now argued that, in this inherently collaborative art form, the producer was in fact the author. He selected the director, form, the producer was in fact the author. He selected the d the actors, and the work. The scriptwriter and composer followed the actors, and the work. The scriptwriter and composer followed his 165 d direction. , growing, and In the Third Reich the movie industry was large, growing, and 166 166 ideologically important. By 1936 it employed fifty thousand people. ideologically important. By 1936 it employed fifty thousand people. Its representatives argued that film was inherently collaborative. One entatives hat film was inherently Its representatives argued that film was inherently collaborative. One individual could not be singled out as the creator in the traditional ngled out as the creator in individual could not be singled out as the creator in the traditional al could n sense. Because of the magnitude of the investment and the need to sense. Because of the magnitude of the investment and the need to cause of t nitude of the investment and ensure efficient exploitation, rights should be centralized in one pair fficient exp ensure efficient exploitation, rights should be centralized in one pair n, rights should be centralized e a creator i of hands—the producer’s. He might not be a creator in the old- —the pro of hands—the producer’s. He might not be a creator in the old- fashioned sense. But film was an industrial, not just a spiritual, prod d sense. Bu fashioned sense. But film was an industrial, not just a spiritual, prod- - ust a spirit scale and sentiment uct. The scale and risk of investment undercut sentimental talk of uct. The scale and risk of investment undercut sentimental talk of 167 titude of rs Recognizing a multitude of coauthors authors’ personal rights. personal a might insist o threatened chaos. Even dressers or hairstylists might insist on creative threatened chaos. Even dressers or hairstylists might insist on creative ed chaos. E rights. Deciding among the many participants was impossible; the e many participants was impo rights. Deciding among the many participants was impossible; the eciding a 68 1 168 oice. st reasona p r remained producer remained the most reasonable choice. e c h bl tus if Some reformers were willing to grant producers author status if illing to grant producers a reformers e creative they were creative participants and shouldered not just technical and they were creative participants and shouldered not just technical and nts and shouldered not 9 16 169 fi On the whole, however, Nazi jurists opposed pro- O financial tasks. tasks. posed pro - ducers as authors. Entitling producers to creative rights confused ducers as authors. Entitling producers to creative rights confused s authors 170 170 However im capitalist interests with authors’ rights, they argued. However im- interests capitalist interests with authors’ rights, they argued. portant he might be in practice, the producer was no creator. On he might portant he might be in practice, the producer was no creator. Only 171 171 al creator’ the actual creator’s claims counted. the actual creator’s claims counted. Even granting producer Even granting producers eco- nomic powers was sometimes considered suspect. Their d nomic powers was sometimes considered suspect. Their decision to owers was broadcast a film, say, might deprive other contributors of artistic and t a film, sa broadcast a film, say, might deprive other contributo economic rights. Some Nazis vehemently dismissed the producer- c rights. S e a r concept as- author concept as a Jewish attempt to submerge individuality into the masses, unjustifiable even by appeals to the primacy of the masses, un i 172 172 collectivity. c ty. rafters of t But drafters of the regime’s bills had to contend with the indus- rests. The try’s interests. The Justice Ministry’s 1932 bill defined the author as t on who cr t the person who created the work, and it excluded juridical entities. Anticipating protest from the movie industry, use rights ( Werknutz- ting prote A 173 The bill of the u ) for films were vested in the company. ) for fil m e ungsrechte Lawyers’ Federation, however, took another tack. Though accepting Federatio L THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

199 Moral Rights in Fascist Europe 189 that the author was usually the person who created that the author was usually the person who created the work, for film ucer ( )—even if that was a juridical per- Hersteller it anointe d t h e p ro d )—even if that was a ju H e r steller it anointed the producer ( son. Hoffmann also bit the bullet with his draft bill. Accepting that son. Hoffmann also bit the bullet with his draft bill. Acceptin so collaborative and costly an enterprise simply had to choose a sin- so collaborative and costly an enterprise simply had to choose a s gle author from among many contenders, he nominated the pro- gle author from among many contenders, he nominated the pro ducer. But Hoffmann also maneuvered to fit this decision to the re - ducer. But Hoffmann also maneuvered to fit this decision to the re- g and- blood authorship. Foreshadowing the gime’s insistence on flesh- owing the auteur theories of the 1960s (though applied to producers, not direc- (though applied to pr eories of t auteur theories of the 1960s (though applied to producers, not direc- tors), he heralded the producer as a film’s true author. The producer ducer t heralded t ucer as a film’s true author 174 The 1934 934 had the idea, supervised the script, and shaped the work. h dea, super e script, and shaped the work istry bill followed suit by end of the Just revision of the Justice Ministry bill followed suit by endowing the revision of the Justice Ministry bill followed suit by endowing the owner of the production company with authorial rights, though it orial rights, owner of the production company with authorial rights, though it the prod m’s various also hedged its bets by retaining rights in the film’s various elements also hedged its bets by retaining rights in the film’s various elements ed its bets 175 ( ore, novel (script, score, novel) for their authors. d at the Ac a Comm In 1936 a Committee on Film Rights, convened at the Academy of f German Law, weighed the author’s moral rights against the film in Law, weig ts against th - German Law, weighed the author’s moral rights against the film in- 176 he film’s author It decided that the film’s author had to be be dustry’s practical needs. d ractical n its creator. Who that was could not always be determined in advance. r. Who tha its creator. Who that was could not always be determined in advance. uld not always be determined ould not cally be the producer. Ha But it should not automatically be the producer. Having been cut But it should not automatically be the producer. Having been cut theory, th cer was then welcomed down in theory, the producer was then welcomed back in practice. down in theory, the producer was then welcomed back in practice. He was to receive those rights required to exploit the film. Since he o receive t He was to receive those rights required to exploit the film. Since he got rights to preserve it from demeaning treatment (such as splicing got rights to preserve it from demeaning treatment (such as splicing to preser in pornographic inserts), he was also awarded a variant of the integ- - in pornographic inserts), he was also awarded a variant of the integ graphic in 177 7 177 rs bridled that true authors thereby r Some rity right. . r Some reformers bridled that true authors thereby re- 178 Others foreshadowed the subtle di Others foreshadowed the subtle distinc- ceived too little control. o little co c tions drawn in the final draft bill that left actual authors with vague tions drawn in the final draft bill that left actual authors w wn in the 179 aesthetic rights and the producer with the ones that mattered. aesthetic rights and the producer with the ones that rights and al bill in 1 The final bill in 1939 continued to redefine personal and economic rights to the point where the distinction largely evaporated. Once the point r a again the producer was granted the economic rights and could also producer take action if a movie was demeaned. Film was a complicated matter, t n if a mov the bill’s exposition lamented. It could not specify in advance who t exposition t or was. Th the creator was. The industry’s economics required vesting exploita- ts in the p tion rights in the producer. Yet, since that violated flesh- and- blood t p, the pro Treuhänder ) of authorship, the producer was instead made a trustee ( a 180 the creators, much like a publisher. This last attempt at Nazi re- ors, much t the eve of form, on the eve of the war, implicitly recognized the actual author’s fo THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

200 190 Chapter 5 rights and relegated producers to a theoreticall rights and relegated producers to a theoretically secondary status. French commentators sang its praises for supposedly fa French commentators sang its praises for supposedly facing down 181 181 But in fact it walked a judicious line between But in fact it walked a judicious line be the film industry. the film industry . ideological and economic imperatives, much like the Austrian law of ideological and economic imperatives, much like the Austrian law 1936. That gave exploitation rights to the producer or owner of the 1936. That gave exploitation rights to the producer or owner of the production company but also required naming all creative authors. production company but also required naming all creative authors. Their permission was required for changes, translations, and adapta- Their permission was required for changes, translations, and adapta - tions, though the producer could sue if those authors had no com- ough the r could sue if those au - tions, though the producer could sue if those authors had no com 182 182 pelling reasons to withhold consent. p d consent. easons to Italy achieved a similar solution in the depths of the war, with the the chieved a olution in the depths of the 183 183 Italy aw Italy’s 1925 law l h still remains in effect). 2 April 194 law of 22 April 1941 (which still remains in effect). - ortioned fi had apportioned film rights evenly between the writer and the pro the writer an had apportioned film rights evenly between the writer and the pro- ssibly sha ducer, possibly shared with the composer. The 1941 law accomplished 41 law acco ducer, possibly shared with the composer. The 1941 law accomplished what the Nazis shied away from by assigning artistic rights to the rtistic rig Nazis sh what the Nazis shied away from by assigning artistic rights to the participan producer. - creative participants and economic rights to the producer. Piola Ca- creative participants and economic rights to the producer. Piola Ca input, not selli insisted on authorship only for creative input, not legal enti sted on a selli insisted on authorship only for creative input, not legal enti- - 184 Scriptwriters, directors, composers, and scenographers were all all t riptwriter ties. rs, composers, and scenograph recognized. Their permission was required for adaptations or transla ed. Their p recognized. Their permission was required for adaptations or transla- - on was required for adaptatio tions, though the producer could also secure that contractually in tions, though the producer could also secure that contractually in ough the r could also secure that co ould make those chan advance. But producers could make those changes to underlying advance. But producers could make those changes to underlying But prod works that were necessary for adaptation to the new medium. works that were necessary for adaptation to the new medium. at were ne ugh no bi ch, the regime Although no bill ever passed during the Third Reich, the regime fought major ideological battles over cinema. Not just an important fought major ideological battles over cinema. Not just an important major ideo industry, film was also crucial to Nazi hopes of winning hearts and industry, film was also crucial to Nazi hopes of winning hearts a film was minds. Yet the film industry lobbied for rights that flatly contrad et the film minds. Yet the film industry lobbied for rights that flatly contradicted principles held sacred by the regime’s legal theorists. The Nazis had principles held sacred by the regime’s legal theorists. The es held sac embraced moral rights even as they diluted them by their dogmati- embraced moral rights even as they diluted them b d moral r cally communitarian view of authorship. Obviously, we cannot take c mmunitari at face value the Nazi claim to have espoused moral rights, given that a lue the N the Third Reich saw authors as mere mouthpieces of a racial com- t d Reich sa munity, favored society’s interests in case of conflict, and enforced its m favored so views with rigid official patronage and censorship—not to mention th rigid offi v burning books and murdering and exiling authors. books and b Nonetheless, personal rights were not just a cynical sop thrown to theless, pe authors. Nazi reformers embraced moral rights to distinguish them- Nazi refor a selves, on paper at least, from the Soviet Union’s proletarian dictator- n paper at s ship. The Nazis also interpreted moral rights differently from liberal e Nazis als s bourgeois regimes—especially the French—and what they saw as ii b THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

201 Moral Rights in Fascist Europe 191 their individualistic veneration of the deracina their individualistic veneration of the deracinated author. Like their Italian cousins, the Nazis boiled together personality righ Italian cousins, the Nazis boiled together personality rights and soci- ety’s claims into one ideological stew. The defense of the author’s ety’s claims into one ideological stew. The defense of the au personality, Piola Caselli argued, derived from the idea that the citi- personality, Piola Caselli argued, derived from the idea that the c zen is integral to the state’s superior personality. As best can be made zen is integral to the state’s superior personality. As best can be made out through the fog of his Fascist Hegelianism, it followed that de - out through the fog of his Fascist Hegelianism, it followed that de- fending the author’s personality coincided with protecting the fending the author’s personality coincided with protecting the 185 s - dividual a ety—that persistent tro t ideol Individual and society—that persistent trope of fascist ideol- state. ogy—were thought to be harmoniously fused. They were not antago e thought ogy—were thought to be harmoniously fused. They were not antago- rmoniously fused. They we - 186 186 omic liberal democracies. nistic opposites as in the anomic liberal democracies. n posites as i nd 39 Nazi b The 1939 Nazi bill, an awkward hash of different approaches and wkward hash of different appro fine categorical distinctions, kept moral rights for creators while en- - fine categorical distinctions, kept moral rights for creators while en orical dist for creators suring the film industry’s financial prerogatives. Despite the regime’s e film indu suring the film industry’s financial prerogatives. Despite the regime’s Despite the collectivized ideology, the Nazis never just rode roughshod over au- - c zed ideolo oughshod thors’ expectations. That can be seen by comparing the intent and pectations thors’ expectations. That can be seen by comparing the intent and ring the in a legislation w s o f their passed authors’ rights legislation with their r ambitions of their never- f patent la reform of patent law. r HEROIC INVENTORS INVENTO H s capitaliz The Nazis capitalized on the dissatisfactions of the engineers, tech- - The Nazis capitalized on the dissatisfactions of the engineers, tech nicians, and scientists of Weimar’s large corporations, who were de- - nicians, and scientists of Weimar’s large corporations, who were de nd scienti nied recognition of their inventions by the inherited German sys- nied recognition of their inventions by the inherited German sy gnition o warding p tem of awarding patents to the first to file. From its origins in 1877, tem of awarding patents to the first to file. From its origins in German patent law had been criticized for favoring corporations German patent law had been criticized for favoring cor patent law 187 187 7 tors . Once again the new regime piled into an ongoing O n o n the new regime piled over inventors. d i ideological melee. In 1936 the Nazis introduced a variant of the al melee. A n and Brit American and British first- to- invent system, which rewarded the ac- tual inventor, not just his corporate master. Not only was the inven- ntor, not j t named o t tor to be named on the patent, but as with moral rights, he could not assign his claim, thus preventing corporations from requiring n his claim n 188 blanket transfers in their employment contracts. The reform was ransfers in b c couched in the usual Nazi rhetoric of balancing individual and in the us community. It reflected the regime’s hopes to protect German cre- c ity. It refle ators from capitalist exploitation. But its provisions for compulsory m capitalis a licensing echoed the Nazi rule that the community took prece- echoed t li 189 dence over the individual. hid d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

202 192 Chapter 5 The new law appealed to the scientists and en The new law appealed to the scientists and engineers whom the regime claimed as its political constituency, and it was regime claimed as its political constituency, and it was opposed by big industry. Patents that emerged from the collective work of an big industry. Patents that emerged from the collective work ( enterprise n enterprise ( Betriebserfindungen ) had earlier belonged to the emplo ) had earlier belonged to the employer. Betriebserfindunge 190 Now the company had to identify and credit the actual inventor. Now the company had to identify and credit the actual inventor. The law was based, one study of the day concluded, on the Nazis’ The law was based, one study of the day concluded, on the Nazis’ das Leistungs- und Per- r - r meritocratic and personality- based ideology ( m gs- und Per 191 sönlichkeitsprinzip Enforcing respect for strong and creative per- rcing respect for stron s tive per - r r ). itsprinzip ) s should sonalities should not be confused, another argued, with liberal sonalities should not be confused, another argued, with liberal confused, another argue 192 192 i individualism. alism. earned much money from the tors may n ent Inventors may not have earned much money from the 1936 patent ctory, with th hey gaine law, but they gained an unmistakable moral victory, with their names law, but they gained an unmistakable moral victory, with their names nts. As with minently now prominently inscribed on patent documents. As with film the now prominently inscribed on patent documents. As with film the ideological imperatives of celebrating authors jostled with corporate tled with cal impera ideological imperatives of celebrating authors jostled with corporate requirements. In principle the new law credited the inventor. But to requirements. In principle the new law credited the inventor. But to the invent ments. In p ity was estab ent claim avoid patent claims bogging down while priority was established, the avoid patent claims bogging down while priority was established, the f - f first to file was granted rights in cases heard before the patent of- ghts in cases heard before the first to file was granted rights in cases heard before the patent of le was gr 193 e, control did not shift unila practice, rom In practice, therefore, control did not shift unilaterally from fice. fi rs to hired employers to hired inventors. Inventors should not expect unlimited rs. Inventors should not ex employers to hired inventors. Inventors should not expect unlimited zi reformer cautioned. B exploitation rights, one Nazi reformer cautioned. But they should be exploitation rights, one Nazi reformer cautioned. But they should be ion rights 9 194 4 1 f Re Reform here was thus analogous to the vesting of at least m of at least or honored. . h ghts only m moral rights only in flesh- and- blood authors. Hans Frank, later infamous as governor of German- occupied Po- erman- Frank, late occupied Po land, presided over this reform as the president of the Academy for land, presided over this reform as the president of the Academy f sided ove German Law. He celebrated the new patent law as steering a course Law. He c German Law. He celebrated the new patent law as steering a c between the twin evils of Bolshevism and capitalism. After the war, b the twin Bolshevism and capitalism. Afte despite corporate opposition, first- to- invent remained the theoretical invent remaine orporate o despite corporate opposition, first- to- 195 f foundation of West Germany’s patent system. In much the same on of We i draft bil w way, Nazi draft bills for authors’ rights became the basis for Germa- 196 n twar refor That is a story ny’s postwar reform of intellectual property law. d in the f continued in the following chapter. c ARE THERE FASCIST AUTHORS’ RIGHTS? ERE FASC A A At Fascist initiative, moral rights were put on the international st initiativ agenda in 1928 and eagerly pursued in Italy throughout Mussolini’s n 1928 and a Ni reign. The Nazis sympathized but accomplished less. Yet moral rights THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

203 Moral Rights in Fascist Europe 193 had also been evolving since had also been evolving since the mid- nineteenth century. Other na- the mid nineteenth tions implemented them too, some being conservatively tions implemented them too, some being conservatively authoritar- ian, some liberal, and some social democratic. The principle of moral ian, some liberal, and some social democratic. The principle of rights gains adherents each day, the Italian jurist Francesco Ruffi rights gains adherents each day, the Italian jurist Francesco Ruffini trumpeted in 1926. It is on the verge of becoming a dogma of inter- trumpeted in 1926. It is on the verge of becoming a dogma of inter 197 So what is the political valence, if any, of moral rights? n f moral rights? national law. Piola Caselli called moral rights an example of the Fascist spirit— ist spirit— a triumph but also a triumph of the Italian spirit, not to mention of eternal Italian spirit, not to m but also a triumph of the Italian spirit, not to mention of eternal 198 198 In the eyes of the French, moral rights were the height In t the French, moral rights w eight R h Roman law. aw. tened bou of enlightened bourgeois individualism. After the Second World War dividualism. After the Second of enlightened bourgeois individualism. After the Second World War e seen as ow t g to France’s and Germany’s brow they were seen as testifying to France’s and Germany’s high- r resistance to fascist totalitarianism, East Bloc propaganda, the and to fascis e propaganda Anglophone entertainment industries. Malleable concepts, moral one enter ble concep Anglophone entertainment industries. Malleable concepts, moral rights were seen both as individualistic and as collectivistic. They r y collectivis re seen b braced by were embraced by regimes of both left and right. How best to make were embraced by regimes of both left and right. How best to make . How best sense of such ideological polymorphosity? uch ideol s eform during the Third Reich so who push Many who pushed for reform during the Third Reich had also been active during the Weimar Republic: Willy Hoffmann, Julius ve during imar Republic: Willy Hoffm been active during the Weimar Republic: Willy Hoffmann, Julius Kopsch, Alexander Elster, Bruno Marwitz, Hans Otto de Boor, and of Alexander Kopsch, Alexander Elster, Bruno Marwitz, Hans Otto de Boor, and of runo Marwitz, Hans Otto d 199 t at exist t Many interwar reformers agreed that exist- any interwar reformers - course Richard Strauss. c chard Stra ing laws overly favored authors while neglecting the public. Even overly fav ing laws overly favored authors while neglecting the public. Even phraseology that, in retrospect, seems characteristically Nazi had phraseology that, in retrospect, seems characteristically Nazi had ogy that, been commonplace in unideological legal periodicals of the late been commonplace in unideological legal periodicals of the late mmonplac Weimar Republic: that the masses needed a r Führer and measures and measures to Weimar Republic: that the masses needed a Führer Republic: 200 200 that the author’s rights had to b that the author’s rights had to be bal- support strong personalities; support strong personalities; trong pers anced against the community’s claims to the Volksgenosse’s works; ainst the c anced against the community’s claims to the Volksgenoss that German conceptions of property were more s man conce that German conceptions of property were more socially inflected 201 20 that property was not a natural and uncondi- than Roman law; t man law; 202 t ht, but wa that only the tional right, but was created and governed by society; actual creator should be recognized and that moral rights were in- a eator shou 203 203 a alienable; t that the state should step in to protect the author’s moral h at t he 204 interests after his death; i after his d n that in this anti- individualist era moral 205 rights helped counteract collectivist tendencies; r that authors owed ped coun the Volksgemeinschaft their inspiration and should repay their debts t gemeinsch 206 206 h and that popular culture was barbaric and firm govern- and t ; t to society; 207 ontrol was m mental control was needed. ere such c Nor were such components of what would become the Nazi view G peculiarly German. During the interwar years German- and Italian- THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

204 194 Chapter 5 style themes were heard in France too. Many French agreed that ex- style themes were heard in France too. Many Fre isting authors’ rights legislation hindered hopes of enlig isting authors’ rights legislation hindered hopes of enlightening the 208 208 masses and developing culture Indebted to their community for . Indebted to their commun masses and developing culture. inspiration, creators were organically tied to it. Authors’ rights were inspiration, creators were organically tied to it. Authors’ rights w not individualistic and absolute but relative and socially intertwined. not individualistic and absolute but relative and socially intertwined The community also had a say over works. After death works joined The community also had a say over works. After death works joined the national patrimony. The collectivity, not only the author’s heirs, the national patrimony. The collectivity, not only the author’s heirs, 209 209 should ensure its integrity. And so forth. nsure its i s And so forth. During the early months of the Popular Front government in ent in g the ear hs of the Popular Front education, put forth a bill t 1936, Jean Zay, minister of education, put forth a bill to reform the 1936, Jean Zay, minister of education, put forth a bill to reform the n Zay, min 210 210 F t of the new age. The Matignon Agree- ee French system in the spirit of the new age. - The Matig ystem in t ments of the same year had secured manual workers the right to l workers th ments of the same year had secured manual workers the right to f the sam d organiz strike and organize. Now “intellectual workers” needed help—the strike and organize. Now “intellectual workers” needed help—the ” needed h 211 11 only social group not yet protected in law, as Zay complained. Zay com o ial group peaking, Z Broadly speaking, Zay’s proposals differed only in emphasis from the n emphasi Broadly speaking, Zay’s proposals differed only in emphasis from the ideas discussed in Fascist Italy, Nazi Germany or, for that matter, So- - ideas discussed in Fascist Italy, Nazi Germany or, for that matter, So or, for that m cussed in 212 c Authors were to receive moral rights, cial Democratic Norway. Authors were to receive mo hts, mocratic N nsively as violation of the aut with integrity defined expansively as violation of the author’s subjec- grity defin with integrity defined expansively as violation of the author’s subjec - al interest e work was also protected a tive moral interests, and the work was also protected against destruc- tive moral interests, and the work was also protected against destruc - tion. Formalities were done away with. Rights were attached to the tion. Formalities were done away with. Rights were attached to the malities w e away with. Rights we ersonally, a dits ) , an d ), and author personally, even for minors, wards of courts ( interdits married women. Had this passed, French women, disenfranchised women. H married women. Had this passed, French women, disenfranchised until 1944, would have received rights as authors earlier than the until 1944, would have received rights as authors earlier than the 4, would 213 213 kind of lit Tackling the Napoleonic vote—a kind of literary Bismarckianism. vote—a kind of literary Bismarckianism. Tackling the Napoleon oublesom code’s troublesome inheritance rules, the bill awarded married au- code’s troublesome inheritance rules, the bill awarded marrie thors control over the income from their works, which d thors control over the income from their works, which did not be- ntrol over come part of the common matrimonial estate. come part of the common matrimonial estate. rt of the c Discussing the Zay bill, the French, too, grappled with collec- ssing the tivist theories of creativity, as in Nazi Germany and the Soviet eories of t Union. Many hoped to abandon the exaggerated individualism of U Many hop 214 Yet the Zay bill hewed more centu r n th- nineteenth- century jurisprudence. closely to the individualistic French tradition, giving authors exten- o the indi c sive claims. Fair and other public uses were limited. Signed periodi- ms. Fair an s es could cal articles could not be reproduced without permission, and au- c thors controlled derivative works, including public and mass- media ntrolled d t ances. In p p performances. In principle the work was inalienable. Able to assign certain use rights ( concessions use rights ), the author was not permitted to as- c THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

205 Moral Rights in Fascist Europe 195 215 ). sign Moral rights passed to the author’s his sign his work wholly ( work wholly ( cession ). Moral rights pas cession heirs or other designees and, in their absence, to state ins heirs or other designees and, in their absence, to state institutions. However, in a major break with its otherwise clear focus o However, in a major break with its otherwise clear focus on au- thors’ rights, the Zay bill also imposed compulsory licensing. T thors’ rights, the Zay bill also imposed compulsory licensing. The traditional French approach, with exclusive authorial rights, was in- traditional French approach, with exclusive authorial rights, was in 216 Descendants were to ndants were to creasingly seen as opposed to society’s needs. c receive full economic rights for a decade postmortem. But during the receive full economic rights for a decade postmortem. But during the - next forty years anyone could publish the work in return for royal uld publish the work i y years any next forty years anyone could publish the work in return for royal- ximated the British system ties. This would have approximated the British system of 1911, though ties. This would have approximated the British system of 1911, though would hav with a shorter period of exclusive rights and longer licensing. The orter peri clusive rights and longer lic with a shorter period of exclusive rights and longer licensing. The motivation was partly the same as in the Nazi draft bills, to ensure motivation was partly the same as in the Nazi draft bills, to ensure n was par ame as in the Nazi draft bills 217 217 that descendants could not veto new editions. t endants co g particula ross Europ In one particular aspect reform proposals across Europe during nth centur the collectivist 1930s departed from the nineteenth century’s more ctivist 1930 the collectivist 1930s departed from the nineteenth century’s more st moral r urvived the personalist moral rights ideology. Moral rights survived the author’s personalist moral rights ideology. Moral rights survived the author’s r - d of property r death thanks to their peculiar status as a hybrid of property and per- nks to the death thanks to their peculiar status as a hybrid of property and per sonality. As personal claims they were tied to the author. As property As persona sonality. As personal claims they were tied to the author. As property they were tied to the author. A they could be assigned to third parties. This tension had been largely ird parties. This tension had d be assign they could be assigned to third parties. This tension had been largely ignored during the nineteenth century. During the interwar years it nth century. During the in ignored during the nineteenth century. During the interwar years it during the w on the was forced to prominence by the era’s new- found emphasis on the d to prom b found - y the era’s new socially determined nature of authorship. Heirs, and even the au- socially determined nature of authorship. Heirs, and even the au determine - thor’s personal choice of a representative, might fail to exercise his thor’s personal choice of a representative, might fail to exercise his rsonal cho moral interests. A higher authority then had to step in. moral interests. A higher authority then had to step in. erests. A h eimar and The Weimar and Nazi reform proposals therefore all entrusted the form proposals therefore all entrusted th es with th authorities with the ultimate say over works postmortem. The authorities with the ultimate say over works postmortem. The more lasting the work, the less it could be governed by any individual, as lasting the work, the less it could be governed by any indi e work, th jurist expl one Nazi jurist explained the intent of the “socially d one Nazi jurist explained the intent of the “socially determined” con- roperty. “O c cept of property. “Only the state can guard over the purity of the 218 cultural inheritance.” In 1921 and 1925 bills put forth by Marcel Plai- nheritance c sant in the French Assembly went so far as to foresee a form of lynch e French A s n “action ju justice, an “action populaire” that empowered anyone who could justify an interest to protect the author’s moral rights after his ju n interest 219 The Belgians proposed something similar in 1928 at the The Belgi death. d nference: m Rome conference: moral rights passed to society as a whole and each R 220 citizen could exercise them, even against the author’s heirs. c ould exerc The Italian law of 1925 vested powers of oversight in the government au- w of 1925 v I thorities, while a Romanian law of 1923 allowed the minister of arts while a R t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

206 196 Chapter 5 to publish works that heirs or assignees had not to publish works that heirs or assignees had not issued within three 221 221 . The Norwegian law of 1930 empowered the The Norwegian law of 1930 emp years postmortem. years postmortem king, acting in the public interest, to expropriate rights from king, acting in the public interest, to expropriate rights from an au- 222 222 . In Denmark In Denmark the thor’s heirs if necessary to ensure public access thor’s heirs if necessary to ensure public access. Ministry of Education closely monitored possibly demeaning uses of Ministry of Education closely monitored possibly demeaning uses o 223 works by now- dead authors. w al valences of moral righ en, are th What, then, are the political valences of moral rights—if any? It is What, then, are the political valences of moral rights—if any? It is too easy to dismiss Nazi ideas of authors’ rights as simply trampling eas of authors’ rights as simp too easy to dismiss Nazi ideas of authors’ rights as simply trampling to dismiss 224 True, they reinterpreted mora to True, they reinterpreted moral rights to individual prerogative. i al preroga give the collectivity the ultimate authority. Nor is it doubtful which or is it doub give the collectivity the ultimate authority. Nor is it doubtful which collectivit would have won out in any real collision between individual and would have won out in any real collision between individual and ween indiv ave won o collective demands. But the Nazis went to some length to sustain e demand e length collective demands. But the Nazis went to some length to sustain and elaborate the rhetoric of moral rights inherited from the Rome and elaborate the rhetoric of moral rights inherited from the Rome orate the ited from conference. As Berne members they felt obliged to afford authors conference. As Berne members they felt obliged to afford authors ged to affor ce. As Be these protections, which were, in any case, prompted by their ideo- these protections, which were, in any case, prompted by their ideo - ere, in any case, prompted by otections, logical allies, the Fascists. Rallying behind moral rights helped the Rallying behind moral right llies, the F logical allies, the Fascists. Rallying behind moral rights helped the Nazis convince themselves that they, unlike the Soviets, were not Nazis convince themselves that they, unlike the Soviets, were not s that they, unlike the Sov nvince th mindless collectivists. They venerated the creative personality—as mindless collectivists. They venerated the creative personality—as y venerated the creativ collectiv long as he was a good Nazi and an Aryan. l he was a go - h’s endless in rs’ rights Authors’ rights were caught up in the Third Reich’s endless in- in this cas fighting, in this case between party radicals and big business. Had the fighting, in this case between party radicals and big business. Had the regime managed to legislate, corporate interests would doubtl regime managed to legislate, corporate interests would doubtless managed a mark. B have left a mark. But more was at stake, as the ideological twists and have left a mark. But more was at stake, as the ideological twis turns over film rights suggest. Some jurists insisted that Nazi ideol- er film rig turns over film rights suggest. Some jurists insisted that N ogy forbade vesting rights in corporations or producers. Would these ogy forbade vesting rights in corporations or produc ade vestin reformers have prevailed? Already the Weimar film industry had op- s have pre r posed moral rights and other concessions to authors made in moral righ p 225 But patent reform revealed that the Third Reich was not But pate Rome. R 226 When in simply or automatically beholden to business interests. s r automa ntors won 1936 inventors won attribution, Nazi film rights reformers used this 1 precedent to argue against vesting artistic rights in producers and nt to argu p 227 227 ions. c corporations. The point of authors’ rights was to balance between author and oint of au , as one ju audience, as one jurist who remained active during the Third Reich a 228 This claim would not have the title o put it in the title of an article in 1931. p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

207 Moral Rights in Fascist Europe 197 American copyright world. Anglo the surprised the Anglo- American copyright world. But on the Conti- surprised 229 229 The Nazis’ idea of authors’ rights The Nazis’ idea of auth y. nent it was more of a novelt nent it was more of a novelty. followed from their general view of property as determined as much followed from their general view of property as determined as 230 230 The emphasis The empha y t h e community’s nee d by the community’s needs as by the owner’s claims. e owner’s c . aims l b h y t b s as in Nazi ideology on public access echoed the Anglo- - in Nazi ideology on public access echoed the Anglo- American copy- American copy right tradition’s populist approach. Since the early nineteenth cen - right tradition’s populist approach. Since the early nineteenth cen- tury British and American law had considered intellectual property tury British and American law had considered intellectual property to be a temporary monopoly granted to benefit society. Now, Nazi oly granted to benefit to be a temporary monopoly granted to benefit society. Now, Nazi mporary - es too reje ideologues too rejected the inherited Continental concepts of abso- ideologues too rejected the inherited Continental concepts of abso inherited Continental con lute property rooted in natural rights. Intellectual property was so- - ural rights. Intellectual prop lute property rooted in natural rights. Intellectual property was so erty roote 231 231 ated to society’s needs. und and su c cially bound and subordinated to society’s needs. al Despite their collectivism, however, the Nazis’ support for moral e their co zis’ support s not just rights was not just window dressing. They claimed to speak for the rights was not just window dressing. They claimed to speak for the med to spea roducers, c culture producers, submerged in modern mass media, and for em- media, and - whose init ployees, whose initiative and ideas were swallowed by the corporate ed by the c ployees, whose initiative and ideas were swallowed by the corporate - Moloch. Reform of patents and authors’ rights appealed to the tradi Moloch. Reform of patents and authors’ rights appealed to the tradi- appealed to Reform of tional independent middle classes and their white- collar peers, who collar p t dependent classes and their white- ho - among th earliest supporters. Engineer had been among the party’s earliest supporters. Engineers and indus had been among the party’s earliest supporters. Engineers and indus- d , as ntists, sma trial scientists, small businessmen, the e Mittelstand ssmen, t , as well as artists, tists, h t Mittelstand 232 w writers, and intellectuals: the Nazis courted them all. nd intelle he Nazis courted them a Moral rights were put on the international agenda during the in- - ng the in rights wer - terwar years. Long in the making, they were now legislatively incar- r r ars. Long terwar years. Long in the making, they were now legislatively incar nated in several nations, including Italy. Though moral rights were several na nated in several nations, including Italy. Though moral rights were n Nazi Ge debated in Nazi Germany, implementation had to await the postwar debated in Nazi Germany, implementation had to await the postw Federal Republic. In France the collaborationist Vichy regime legis- Federal Republic. In France the collaborationist Vichy regime epublic. I lated the concept for the first time in 1941, in a statute that es lated the concept for the first time in 1941, in a statute that established concept fo tee of dra a committee of dramatists, composers, and musical editors to defend a committee of dramatists, composers, and musical e 233 t their “material and moral interests.” The fascists did not invent aterial and moral rights. Having emerged during the mid- nineteenth century, m hts. Havin they were then discussed and legislated throughout the 1920s and t e then dis ’30s. But nor were the fascists an obstacle to their development. In 3 ’ nor were might say f fact, one might say that fascism was their catalyst. The Italian Fascists and the Nazis did support moral rights and alian Fasc uthors. Bu protect authors. But their understanding of creativity was more so- p cially determined than the inherited concept of Romantic author- ermined t c ship. Their concern to balance the author’s claims against the needs ir concern s dience ha of the audience had profound consequences for postwar Europe. o THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

208 198 Chapter 5 Because the fascists were those who first empha Because the fascists were those who first emphasized the public at least as much as the author, debates over how to balan least as much as the author, debates over how to balance between these two interests—long a commonplace in the copyright nat these two interests—long a commonplace in the copyright nations— were stillborn on the Continent after 1945. 9 were stillborn on the Continent after 1 45. Europe’s interwar regimes thus pursued two partly contradictory wo partly contradictory aims. They fostered moral rights—formulating proposals that would aims. They fostered moral rights—formulating proposals that would found postwar reforms. Here, the continuities were strong from the found postwar reforms. Here, the continuities were strong from the 1920s through the fascist dictatorships and into the postwar period. ough the ictatorships and into t 1920s through the fascist dictatorships and into the postwar period. fascist reg But the fascist regimes also broached—largely for the first time on o broached—largely for th But the fascist regimes also broached—largely for the first time on the Continent—a sustained debate over what the audience could tinent—a the Continent—a sustained debate over what the audience could d debate over what the au as a Judas kiss: audience int ly claim. reasonably claim. That was a Judas kiss: audience interests safe - reasonably claim. That was a Judas kiss: audience interests safe- guarded by fascists! It would halt any further pursuit of public rights pursuit of pu by fascists guarded by fascists! It would halt any further pursuit of public rights citude for nother hal and solicitude for the audience in Europe for another half century. and solicitude for the audience in Europe for another half century. To atone for the populist flirtations of the totalitarian regimes, post- for the po arian regi To atone for the populist flirtations of the totalitarian regimes, post - t tinental r war Continental reformers turned to an exalted veneration of the d venerati war Continental reformers turned to an exalted veneration of the - tury would t author. Not until the end of the twentieth century would the discus Not until t author. Not until the end of the twentieth century would the discus- sion sparked by the fascists flare up again, now prompted by the new sion sparked by the fascists flare up again, now prompted by the new ked by th flare up again, now prompted digital era. a. d THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

209 6 6 The Postwar Apotheosis of Authors’ Rights The Postwar Apotheosis of Authors’ Rights ration of the author had a long Moral rights and their veneration of the author had a long and com - hts and th Moral rights and their veneration of the author had a long and com- ory. Kant a plex history. Kant and Fichte’s concept of a personalist connection plex history. Kant and Fichte’s concept of a personalist connection ersonalist co erty, had d between artist and work, not beholden to property, had dovetailed artist and between artist and work, not beholden to property, had dovetailed - Romantic individua w with the Romantic view of the artist. Yet such an individualized ap- proach to authors’ rights was legislated only when populist politics authors’ proach to authors’ rights was legislated only when populist politics en populis turned to totalitarian excess during the interwar years. The Italian totalitari turned to totalitarian excess during the interwar years. The Italian war years. T Fascists made moral rights part of the Berne Convention. The Nazis, part of the Berne Convention. T Fascists made moral rights part of the Berne Convention. The Nazis, made mora d moral r too, folded moral rights into their fluid ideology and opportunistic too, folded moral rights into their fluid ideology and opportunistic o their fluid ideology and op policies to support the heroic creative personality they considered policies to support the heroic creative personality they considered oic creative personality th o support me. Yet—rhetoric aside - exemplary of their new regime. Yet—rhetoric aside—they trod care- exemplary of their new regime. Yet—rhetoric aside—they trod care y of their actual ind fully, lest actual individual rights interfere with their propagandistic fully, lest actual individual rights interfere with their propagandistic control of the new mass media. They also favored broad access to control of the new mass media. They also favored broad access to f the new pealing to works, appealing to their popular base, even as this would have lim - works, appealing to their popular base, even as this would have lim- ited authors’ rights. But, beyond extending terms to fifty years post- ited authors’ rights. But, beyond extending terms to fifty years po ors’ rights the Nazis mortem, the Nazis implemented few reforms. mortem, the Nazis implemented few reforms. Turning moral rights from case law into statute therefore largely m case law into statute therefo g moral r fell to the European democracies that reemerged after 1945. France fell to the European democracies that reemerged a e Europea many passe a and Germany passed highly author- centric laws in 1957 and 1965 re- y, explicitl s spectively, explicitly distancing themselves from Anglo- American c t. In a few copyright. In a few instances there was mutual approximation across the Atlantic and the channel. Work- for- hire, which gave rights to the tic and th t author’s employer, remained sacrosanct for the powerful collabora- a employer, tive cultural industries of the Anglophone world—periodicals, film, t ral indust rtising esp a and advertising especially—even though it violated the core Berne d doctrine of rights vested only in flesh- and- blood authors. But col- of rights laborative content enterprises were powerful in Europe too, and l a e content m st in e est in more flexible measures was occasionally acknowl- their inter r t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

210 200 Chapter 6 edged. Postwar France and Germany adopted an undogmatic ap- edged. Postwar France and Germany adopted a proach to vesting authorship for film. In 1985 the French computer proach to vesting authorship for film. In 1985 the French hire status for software industry also managed to win work- hire status for s for- - f or- industry also managed to win work programmers. . programmers hement between copy Nonetheless, the postwar global rapprochement between copy- right and authors’ rights was achieved largely through changes to the right and authors’ rights was achieved largely through changes to the A ’s ideology Anglo- American approach. The centripetal force of Berne’s ideology was beginning to work its influence in both Britain (already a mem- was beginning to work its influence in both Britain (already a mem - nning to w nfluence in both Brita ber) and America (pondering membership). The Anglophone ex- x x - ber) and America (pondering membership). The Anglophone ex ring membership). The A America gradually discovered that, to content in porting content industries gradually discovered that, to enjoy global porting content industries gradually discovered that, to enjoy global protection under the convention’s umbrella, they would have to con ntion’s umbrella, they would h - n under t protection under the convention’s umbrella, they would have to con- ore closely form more closely to Berne dictates. Their interests now began to nterests now form more closely to Berne dictates. Their interests now began to sway American and British government policy. Britain finally intro merican an - sway American and British government policy. Britain finally intro- Britain fin very trunc 1988, a mer duced a very truncated variant of moral rights in 1988, a mere century duced a very truncated variant of moral rights in 1988, a mere century ning up United Sta after signing up for the convention. In the United States more after signing up for the convention. In the United States more r - changes were required to join Berne. In 1976, preparing for member r changes were required to join Berne. In 1976, preparing for member- were requ preparing for ship, the US adopted the extensive Berne term duration of fifty years xtensive Berne term duration o US adopt ship, the US adopted the extensive Berne term duration of fifty years y y olishing formalities as a condi tem and b - postmortem and began abolishing formalities as a condition of copy- postmortem and began abolishing formalities as a condition of copy ly joined, the United State right. In 1989, when it finally joined, the United States also officially 1989, whe right. In 1989, when it finally joined, the United States also officially moral rights, though on accepted the principle of moral rights, though only in so limited a the princ accepted the principle of moral rights, though only in so limited a w way that no new legislation was actually needed. no new le ng back f en accuse the Looking back from today, contemporary critics often accuse the n governm American government, led astray by its content industries, of orches- American government, led astray by its content industries, of orches trating the international shift to strong protection of intellectual trating the international shift to strong protection of intellectu he intern property. Seen in historical perspective, however, it was in fact the property. Seen in historical perspective, however, it was in fa Seen in Anglophones who changed their inherited systems most in the post- Anglophones who changed their inherited systems most in ones who war period. Whatever the case for other policies d war period. Whatever the case for other policies during the Cold od. What copyright War, on copyright America followed Europe’s lead. W Surprisingly perhaps, strong continuities of authors’ rights bridged ngly perha S the chasm of the Second World War. In Western Europe postwar t m of the reformers cared little that their proposals rested on fascist policy ini- s cared lit r tiatives. Moral rights were blithely considered self- evidently high- Moral rig t minded and progressive, burnishing the liberal, democratic, and— m and progr above all—high- culture credentials of newly liberated continental l—high- c u a Europe. In the fearsome postwar world, Western Europe felt cultur- In the fea E THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

211 Postwar Apotheosis of Authors’ Rights 201 ally overshadowed by the two superpowers. The n ally overshadowed by the two superpowers. The new East Bloc man bore a terrifying resemblance to his fascist predecessor bore a terrifying resemblance to his fascist predecessor. The Ger- mans, who compared across their internal border, especially noticed mans, who compared across their internal border, especially n the kinship of Communists and Nazis: the mass rallies, goose- the kinship of Communists and Nazis: the mass rallies, goo stepping military parades, endless political speeches, puritanical stepping military parades, endless political speeches, puritanical sports and outdoor activities, and railing against Western decadence. sports and outdoor activities, and railing against Western decadence. Walter Ulbricht’s DDR even copied the Nazis’ “Strength through W h through Joy” program, taking over the same Baltic resorts and plastering up he same Baltic resorts ram, takin Joy” program, taking over the same Baltic resorts and plastering up posters with the same proletarian cruise ships—though the West letarian cruise ships—tho posters with the same proletarian cruise ships—though the West with the s 1 1 ean But to West European But to We Germans cleverly grabbed the Volkswagen. G the Volkswagen. cleverly g roadway, the West End, Nas intellectuals Hollywood, Broadway, the West End, Nashville, and intellectuals Hollywood, Broadway, the West End, Nashville, and als Holly Motown were even scarier. Their trashy movies, glitzy musicals, and were even Motown were even scarier. Their trashy movies, glitzy musicals, and es, glitzy mus 2 f that both What a relief that both left and d gyrating pop stars had real appeal. g pop stars right could unite in jointly rejecting the false idols of Anglophonia’s ld unite in right could unite in jointly rejecting the false idols of Anglophonia’s s of Anglo spiritual Gomorrah! The mass culture of the capitalist West, the spiritual Gomorrah! The mass culture of the capitalist West, the capitalist W Gomorrah Marxists of the Frankfurt School assured Europe’s intelligentsia, was pe’s intellige of the Fran Marxists of the Frankfurt School assured Europe’s intelligentsia, was 3 but a softer totalitarianism. er totalita b erwar years had also seen th formers o s as The reformers of the interwar years had also seen themselves as g culture a arbarism. Remembering th defending culture against barbarism. Remembering the slaughter of defending culture against barbarism. Remembering the slaughter of w mass media like radio the Great War and seeing new mass media like radio and film emerge, the Great War and seeing new mass media like radio and film emerge, War and s they hoped that moral rights would preserve civilization against a they hoped that moral rights would preserve civilization against a ed that m 4 moderni m ntinental in - mediocre modernity. Now, after another world war, Continental in- tellectuals again battled mass society. French and German legal re s again ba - tellectuals again battled mass society. French and German legal re- formers used moral rights to assert their nations’ continued cultural sed mora formers used moral rights to assert their nations’ continued cultur preeminence. True believers of the Romantic tradition, the Conti- nce. True preeminence. True believers of the Romantic tradition, the C nental intelligentsia asserted the superiority of the authors’ rights telligentsi nental intelligentsia asserted the superiority of the autho against An ideology against Anglophonia’s cultural factories. Noting America’s ideology against Anglophonia’s cultural factories. N influence i insidious influence, a French jurist in 1954 called for reform of au- n hts to show thors’ rights to show that defending writers “is still the fundamental t 5 Pro- preoccupation of the idealistic nation that we wish to remain.” ation of th p he author t tecting the author was a national tradition, the French secretary of 6 s state for arts and letters insisted in 1956. arts and le ontinenta The Continental left and right agreed that the Anglophone na- ted cultur tions treated culture as a commodity—mass- produced, licensed, and t flogged on the market of lowest common denominators. In 1956 on the ma fl French Communists welcomed government proposals to protect au- ommunis F 7 Across the aisle Con- thors as a blow against capitalist disseminators. blow agai t THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

212 202 Chapter 6 tinental conservatives, too, trumpeted European culture over the tinental conservatives, too, trumpeted Europea 8 8 Moral rights found their justification in this Moral rights found their justifica e. lg i b ere’s h osp gl An Anglosphere’s bilge. postwar Kulturkampf between the highbrow continent and postwar Kulturkampf between the highbrow continent and Anglo- phone popular culture. In the sober, austere years following the war, phone popular culture. In the sober, austere years following the w the extravagantly individualistic fin- de- siècle approach to moral e approach to mora t x e Nazi w rights was brought to legislative culmination. As the no - Nazi rights was brought to legislative culmination. As the now ex- jurist Hans Otto de Boor noted soon after the war, a united front of jurist Hans Otto de Boor noted soon after the war, a united front of authors had once again formed in double time to lobby for enhanced med in double time to authors had once again formed in double time to lobby for enhanced had once a based on natural rights and rights (perpetual, no less!), based on natural rights and now catalyzed rights (perpetual, no less!), based on natural rights and now catalyzed erpetual, n 9 w with moral rights too. ral rights U G APRÈS- BERNE APRÈS- GUERRE ghts expan Moral rights expanded apace within the Berne Convention. In 1948, Convention Moral rights expanded apace within the Berne Convention. In 1948, ars after th three years after the war ended, its members (minus occupied and (minus occ three years after the war ended, its members (minus occupied and Germany) divided Germany) met in Brussels without a mention of Hitler, the divided Germany) met in Brussels without a mention of Hitler, the Brussels without a mention of , among the strongest suppor war, or fascism. The French, among the strongest supporters of moral war, or fascism. The French, among the strongest supporters of moral scism. Th - rights in Rome in 1928, had not yet legislated at home. Abroad, how- rights in Rome in 1928, had not yet legislated at home. Abroad, how not yet legislated at home Rome in y remaine ytizers. They now soug ever, they remained proselytizers. They now sought to make moral ever, they remained proselytizers. They now sought to make moral rights formally inalienable, underlining the gap between authors’ rmally in rights formally inalienable, underlining the gap between authors’ 10 ntinue moral Other proposals sought to continue moral rights and copyright. r nd copyrig rights after the author’s death. All distortions, mutilations, or other fter the aut rights after the author’s death. All distortions, mutilations, or other to the wo changes to the work that damaged the author’s reputation or honor changes to the work that damaged the author’s reputation or hon were to be punished. So was any derogatory act that harmed the au- be punish were to be punished. So was any derogatory act that harmed t thor in any way. Thus, use of the work in certain contexts (art in ad- thor in any way. Thus, use of the work in certain contexts ny way. Th vertising, say, or serious music in filmed operettas) could be prejudi- , say, or se vertising, say, or serious music in filmed operettas) c cial, even if the work itself remained intact. c n if the wo As before the war, the common law nations (joined now by allies fore the w like the Swiss and the Dutch) dug in their heels, resisting reform that wiss and t l 11 The British delegate insisted that required new legislation at home. new legis r as about e B Berne was about economic rights only. Moral rights should not be m ed at all. F mentioned at all. Fire- breathing reforms were also tamped down by hopes of enticing the United States to join Berne. British objections enticing h helped defeat the ambitions of the French and their allies (Belgium, h efeat the a Poland, S Austria, Poland, Spain, and Italy) to extend moral rights. Instead, A Berne reaffirmed the Rome compromise of protecting only the au- affirmed t B THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

213 Postwar Apotheosis of Authors’ Rights 203 thor s reputation and honor. The British also insis thor’s reputation and honor. The British also insisted on leaving any extension of moral rights postmortem to national legislation. Having extension of moral rights postmortem to national legislati won the battle in 1928 to protect only honor and reputation ( won the battle in 1928 to protect only honor and reputation (which in common law could be defended only for the living), they were n in common law could be defended only for the living), they were not 12 12 about to extend authorial rights into the afterlife. The collaborative The collaborative about to extend authorial rights into the afterlife. cultural industries, especially film, also resisted too much leeway for cultural industries, especially film, also resisted too much leeway for authors. Nor—despite French attempts—were moral rights made authors. Nor—despite French attempts—were moral rights made did persuade Berne t le. But th unwaivable. But the French did persuade Berne to adopt a droit de unwaivable. But the French did persuade Berne to adopt a droit de suite—the resale right that paid visual artists a percentage whenever suite—the resale right that paid visual artists a percentage whenever e resale ri paid visual artists a percen works were resold. Instituting this was left optionally to domestic re resold. works were resold. Instituting this was left optionally to domestic ing this was left optionally a l year postmortem term of e importa on law. More important, the fifty- year postmortem term of protection fty was now made obligatory for members. w made obl The 1967 Berne conference in Stockholm then pushed matters s en pushed 67 Berne along only slightly. Proposals sought to require members to safe- ly slightly - a member oral rights guard moral rights postmortem for as long as economic rights. But guard moral rights postmortem for as long as economic rights. But conomic ri - the usual objections from the common law nations, joined by Scan objection the usual objections from the common law nations, joined by Scan- tions, joined dinavia, excepted those countries that did not already protect moral ntries that did not already pro dinavia, excepted those countries that did not already protect moral xcepted th 13 13 d to On the other hand, any reference was deleted to other hand, any reference wa rights after death. r er death. the author’s “lifetime” as the period when he could assert moral he period when he could or’s “lifeti the author’s “lifetime” as the period when he could assert moral oral right rights. Moral rights thus became a general claim, without defined rights. Moral rights thus became a general claim, without defined ecame a general claim, 14 1 4 limits. The right of disclosure, though broadly embodied T mbodied t temporal limits. Berne mem in most Berne members’ domestic legislation, also finally became a in most Berne members’ domestic legislation, also finally became a 15 - r r The Paris confer- The Paris confer clearly enunciated part of the Berne Convention. unciated c 971, held ence in 1971, held to bring the Stockholm conference to closur ence in 1971, held to bring the Stockholm conference to closure, concluded that moral rights had to be recognized by all member d that mo concluded that moral rights had to be recognized by all me uring the nations during the author’s lifetime, though not necessaril nations during the author’s lifetime, though not necessarily thereaf- he author r ter. But the author remained protected in only his honor and reputa- ter. But the author remained protected in only his ho tion, and not—as the French had vainly sought since Rome in not—as t 16 his subjec The Paris 1 9 1928—in his subjectively defined moral interests as such. 71 also did Act of 1971 also did not define an author, thus theoretically admit- A and- blood creator. But most com- ting that it need not be a flesh- t it need n s agreed th m mentators agreed that onl y natural persons—not legal entities—were 17 17 real authors. r ors. The postwar Berne revisions thus did not advance the cause of ostwar Be m ghts much moral rights much beyond what Rome had achieved in 1928. But ne failed t what Berne failed to do was now taken up by domestic legislation, w in France especially in France and Germany. e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

214 204 Chapter 6 TRI S HT G ’ RI S R O TH U A U MPH IN FRAN C E AUTHORS’ RIGHTS TRIUMPH IN FRANCE The French had started planning for reform before the war. The basic The French had started planning for reform before the war. The b ideas for the law that finally passed in 1957 had been foreshadowed ideas for the law that finally passed in 1957 had been foreshadowed during the Popular Front government. But the Zay bill of 1936, while during the Popular Front government. But the Zay bill of 1936, while punctiliously protecting authors, also aimed to turn them into sala - punctiliously protecting authors, also aimed to turn them into sala- ried workers. Its drastic licensing scheme would, in effect, have re kers. Its d - ried workers. Its drastic licensing scheme would, in effect, have re- ensing scheme would uthors’ ex placed authors’ exclusive rights with royalties. During the German placed authors’ exclusive rights with royalties. During the German ights with royalties. Durin occupation reform plans proceeded apace in professional associa- occupation reform plans proceeded apace in professional associa on reform - proceeded apace in professi tions. One draft by the Commission on Intellectual Property, estab - tions. One draft by the Commission on Intellectual Property, estab- ne draft by mmission on Intellectual Prop lished in the first months of the postwar provisional government, lished in the first months of the postwar provisional government, the first ovisional go overnment built on work undertaken in the corporatist government organ re- - built on work undertaken in the corporatist government organ re work und 18 i - sponsible for music during the collaborationist Vichy regime. e for mus Vichy reg s Vi- chy’s reformers had reached back to the Popular Front’s collectivism, ormers ha chy’s reformers had reached back to the Popular Front’s collectivism, Front’s col keeping its emphasis on the “social function” of literary and artistic its empha of literary a keeping its emphasis on the “social function” of literary and artistic p (in effect a tax lev- domaine public payant domaine public payant They pro (in effec t - ev property. They proposed a ied on publishers of public domain works) to support authors and ublishers c domain works) to support ied on publishers of public domain works) to support authors and cendants. their descendants. Government authorities were to protect authors’ ment authorities were to p their descendants. Government authorities were to protect authors’ 19 19 ested of T Though divested of m ghts if hei d their prerogatives. moral rights if heirs abused their prerogatives. aine publi ons found t , many of these Vichy provisions found domaine public payant the their way verbatim into the 1957 law. t y verbatim At the end of hostilities, early legislation failed before the Fourth d before the Fourth end of ho Republic’s Constituent Assembly. Not until a decade later, in t c’s Consti Republic’s Constituent Assembly. Not until a decade later, in the ad e. Zay’s quasi - socialist attempts to mid- 1950s, was progress made. Zay’s quasi- socialist attempts to fash- m s, was pro ion authors into workers were abandoned, as were his collectivist li- ion authors into workers were abandoned, as were his col ors into w censing arrangements. Instead, the French reaffirmed tradition to censing arrangements. Instead, the French reaffirm arrangem ensure authors’ economic and now also moral rights. The law that uthors’ ec e emerged at the end of the Fourth Republic in 1957 was a curious at the en e c A “legal o creature. A “legal ode to the glory of creators,” it set the author on his 20 Codifyin Codifying case law over the previous century and a half, it throne. t continued the French tradition of authors’ rights based on natural c d the Fre r rights and was heralded as embodying French national identity, set- d was her 21 battered ting the battered nation apart in the postwar world. Yet the law t uthors’ rig rooted authors’ rights not only in vague appeals to personality and r e connect its unique connection to the work but also in an old- fashioned, Lock- i 22 ased t ean, labor- based theory of property rights grounded in nature. b or- By h e THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

215 Postwar Apotheosis of Authors’ Rights 205 the sole fact of having created the work, the law’s first article an- the sole fact of having created the work, the law 23 nounced, authors had exclusive rights of immaterial prope None nounced, authors had exclusive rights of immaterial property. of this nonsense one found in America, a contemporary commenta- of this nonsense one found in America, a contemporary comm tor declaimed, about property rights resting only on statute, as if th tor declaimed, about property rights resting only on statute, as if they 24 were a privilege granted by the king! w o France’s July The discussion thus leaped back over the centuries to France’s July Monarchy of the 1830s—of all destinations. Then, reforming minis- Monarchy of the 1830s—of all destinations. Then, reforming minis - ters had argued that authors could not have absolute claims to liter- rgued tha ters had argued that authors could not have absolute claims to liter r s could not have absol - r ary property based on natural rights but only a concession or privi- ral rights but only a conce ary property based on natural rights but only a concession or privi rty based - lege granted them by statute. Authors had bitterly resented this ted them ute. Authors had bitterly r lege granted them by statute. Authors had bitterly resented this 25 25 in given claims. As d expropri given claims. their nature As we saw in attempted expropriation of their nature- a ury they had chapters 3 and 4, during the nineteenth century they had managed chapters 3 and 4, during the nineteenth century they had managed 3 and 4, d to assert their property rights in case law. Now this debate continued. s debate co heir prope to assert their property rights in case law. Now this debate continued. Any doubts about absolute authorial property rights that might have bts about a Any doubts about absolute authorial property rights that might have hts that m lingered from the interwar discussions were firmly rejected. Natural from the i lingered from the interwar discussions were firmly rejected. Natural ly rejected rights ideology had not been heard this explicitly for well over a rights ideology had not been heard this explicitly for well over a icitly for w eology ha 26 e, The auth century. ts existed wholly independent The author’s rights existed wholly independent of statute, c a noted French jurist insisted in 1958. The law’s sole mission was to rench jur a noted French jurist insisted in 1958. The law’s sole mission was to ed in 1958. The law’s sole mis ght, by nature connected recognize a preexisting right, by nature connected to the act of a preexi recognize a preexisting right, by nature connected to the act of 27 7 c creation. ees of the ’s 1957 law France’s 1957 law thus overtly linked itself to the decrees of the revolution. It echoed le Chapelier’s claim in 1791 that literary prop- revolution. It echoed le Chapelier’s claim in 1791 that literary prop - n. It echoe 28 But it went further. The went further. The he most p erty was the most personal of all property. e revolutionaries had sought to grant the author something that, by revolutionaries had sought to grant the author something that, b naries had belonging fully to him, was also his to alienate fully. The modern, g fully to belonging fully to him, was also his to alienate fully. The mo st version personalist version of literary property, in contrast, sought t personalist version of literary property, in contrast, sought to remove property from the author’s will. It was now so personal that he could property from the author’s will. It was now so person from the a never be wholly rid of it. In the words of the 1957 law, the author’s n wholly rid re perpetu r rights were perpetual, inalienable, imprescribable—phrasing taken 29 So inti- in turn verbatim from the immediate postwar proposals. erbatim fr n i m ed to his p mately tied to his personality were an author’s rights, the draft bill 30 announced in 1954, that he could never give them up. ed in 1954 a Unsurprisingly, the disseminating industries objected to making prisingly, t moral rights perpetual and inalienable, thus hampering works’ ex- hts perpe m n. But the p ploitation. But the French legislature was clear: the point of the law 31 Unlike the otect the a was to protect the author against vested money interests. w one system Anglophone systems with their corporate authorship, only flesh- and- A THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

216 206 Chapter 6 blood creators could be authors. Even an employ blood creators could be authors. Even an employee, creating for pay, had all the rights of authorship. This “humanistic” conception distin- had all the rights of authorship. This “humanistic” concep 32 - Saxon copy guished the Continental approach from Anglo- Saxon copyright. guished the Continental approach from Anglo The very first article of the 1957 law specified that authors enjoyed all The very first article of the 1957 law specified that authors enjoyed rights, whether or not they worked for someone else. rights, whether or not they worked for someone else. In the French view literary property had a dual nature: material ature: material and immaterial. Material rights could be assigned or transferred, and and immaterial. Material rights could be assigned or transferred, and mortem. Immaterial rig ed fifty yea they lasted fifty years postmortem. Immaterial rights, vaguely formu they lasted fifty years postmortem. Immaterial rights, vaguely formu- - ct for name, reputation ( ), and l the right sa qualité ), and lated as the right to respect for name, reputation ( work, were the moral rights. These were perpetual and inalienable. ts. These were perpetual and work, were the moral rights. These were perpetual and inalienable. ere the mo And yet—central mystery of all moral rights—while inalienable, of all moral rights—while i And yet—central mystery of all moral rights—while inalienable, —central they were also transmissible to heirs or other testamentees. Heirs er testament they were also transmissible to heirs or other testamentees. Heirs e also tra 33 33 d wishes. follow—fo w were to follow—forever—the author’s presumed wishes. this migh ng time. S r While this might hold at first, eternity is a long time. Sooner or later the personal ties between work and author, or relatives and later the personal ties between work and author, or relatives and hor, or rela personal he oddity of heirs, would fade away. Nonetheless, despite the oddity of legislating heirs, would fade away. Nonetheless, despite the oddity of legislating uld fade a a perpetual personal connection, the author was given control over ection, the author was given c a perpetual personal connection, the author was given control over ual person nineteenth century the the pathways of his legacy. During the mid- - During the mid t nineteenth ways of h the ol might pass to hostile de hat artisti danger that artistic control might pass to hostile descendants (es- danger that artistic control might pass to hostile descendants (es - mily, creditors) had pro tranged spouses, distant family, creditors) had prompted the insight spouses, d tranged spouses, distant family, creditors) had prompted the insight that moral rights were distinct from exploitation rights and should that moral rights were distinct from exploitation rights and should al rights w not be separated from the author as he assigned his economic inter- r - not be separated from the author as he assigned his economic inter r parated fr ests. Now, the 1957 law reaffirmed that the author, no longer the help w, the 1957 ests. Now, the 1957 law reaffirmed that the author, no longer the help- n of Napo less pawn of Napoleonic inheritance law, alone determined to who less pawn of Napoleonic inheritance law, alone determined to whom rights passed. The right to publish his work posthumously w rights passed. The right to publish his work posthumously went to ssed. The those he designated (later case law added also attribution and integ- those he designated (later case law added also attribution designate 34 nly after t th, or in the absence of a Only after their death, or in the absence of any expressed au- rity). r thorial wishes, did rights pass to descendants, surviving spouses (so t wishes, did long as they had not been separated and were not remarried), non- l hey had n descendant heirs, and so on down the orderly chain of Napoleonic ant heirs, a d inheritance. i nce. To strengthen the author’s control, the new act went beyond exist- engthen th ing case law. Regardless of matrimonial law and contract, the disclo- law. Regar i sure and integrity rights remained with the author or his designees. integrity s T They did not—like other chattels—become part of community d not—li 35 35 h property. As we As we have seen, the most recent case had pitted the com- p arguerite poser Marguerite Canal against her husband, Maxime Jamin, who p THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

217 Postwar Apotheosis of Authors’ Rights 207 claimed rights in her works after divorce. In 1936 claimed rights in her works after divorce. In 1936 and 1938 the first two courts had ruled that, whatever happened to the econ two courts had ruled that, whatever happened to the economic fruits of her work, the rights of control remained with her personally, not of her work, the rights of control remained with her personal entering community property. In 1945, however, the highest court entering community property. In 1945, however, the highest cou 36 e 1957 law now explic h To prick this annual blister, the 1957 law now explic- had reversed. itly formulated the inherent French conception: moral rights re- itly formulated the inherent French conception: moral rights re - mained with the author (and his assignees). They were not to be mained with the author (and his assignees). They were not to be treated like other forms of property in divorce, inheritance, bank- f property in divorce, k treated like other forms of property in divorce, inheritance, bank - k ke other f ruptcy, or other circumstances where the owner might have to forfeit other circ ruptcy, or other circumstances where the owner might have to forfeit ces where the owner might c control. Ultimately, the government was responsible for ensuring moral ral ately, the g ent was responsible for ensur 7 37 37 d If the author’s assignees or heirs flagrantly abused er death. rights after death. r heirs flagrant aud were h wers (the c their powers (the cases of Baudelaire and Rimbaud were held up as their powers (the cases of Baudelaire and Rimbaud were held up as examples) the courts, instructed by the government, could inter- e ) the cou - ment, cou 38 And since French law made moral rights perpetual, in the ts perpetu nd since F e v vene. - long run their safeguarding had to be entrusted to some equally eter their safeg long run their safeguarding had to be entrusted to some equally eter- d to some eq r r nce of any greater source of ority. In t nal authority. In the absence of any greater source of continuity nal authority. In the absence of any greater source of continuity ts fifth republic, not to men was appro (France was approaching its fifth republic, not to mention a few (France was approaching its fifth republic, not to mention a few other regimes, over 150 years), this fell perforce to the state. When rs), this fell perforce to th other regimes, over 150 years), this fell perforce to the state. When imes, ove fter the wa shortly after the war the French state had first been proposed as the ench state had first been shortly after the war the French state had first been proposed as the guarantor of last resort for authorial rights, critics were incensed. “We r of last res guarantor of last resort for authorial rights, critics were incensed. “We ose to the are too close to the era when poets saw their works burned on official are too close to the era when poets saw their works burned on official pyres,” Louis Vaunois spoke out in 1946, “not to protest giving the ouis Vaun pyres,” Louis Vaunois spoke out in 1946, “not to protest giving the 39 39 A decade later, how A decade later, how- rol over m state control over matters of the spirit and art.” state control over matters of the spirit and art.” one remem ever, no one remembered. Without fuss the 1957 law established a ever, no one remembered. Without fuss the 1957 law establish form of protection for cultural works of national significance like protection form of protection for cultural works of national signific 40 ding histo that guarding historically important buildings and m that guarding historically important buildings and monuments. The work itself was protected from the moment of creation, de- ork itself w fined as the time the author had realized his conception, even if it he time t fi was not yet complete. Protection required no formalities of registra- et comple w tion or the like. Once again, the French consciously distinguished he like. O t 41 With singular art- Saxons. their approach from that of the Anglo- t roach fro w works the owner did not automatically receive the incorporeal rights, owner di 42 A new right of repenting was added which remained with the artist. w mained wi t too. Taking a slightly jaundiced view of authors, withdrawal of a ng a sligh not only work was not only made conditional on paying damages to the dis- w seminator. The law also prevented authors from taking their work r. The law s THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

218 208 Chapter 6 back merely to seek better terms. But otherwise back merely to seek better terms. But otherwise the author’s ability w s k or w d. ra hd it w to w as not restricte to withdraw works was not restricted. Fair use exceptions to the author’s exclusive rights were narrow: Fair use exceptions to the author’s exclusive rights were n family performances, strictly private copies, short citations, and re- family performances, strictly private copies, short citations, and 43 Still, parody, pastiche, and caricature production of public speeches. p pastiche, and caricature were specifically permitted. The draft bill had also allowed free re- were specifically permitted. The draft bill had also allowed free re - production of articles of current news and events unless rights were production of articles of current news and events unless rights were parliamentary comm expressly reserved. But the parliamentary commission yanked this reserved expressly reserved. But the parliamentary commission yanked this class citizens of jou second- n, fearing whose provision, fearing it made second- class citizens of journalists, whose p writings would be protected only if they complied with formalities writings would be protected only if they complied with formalities ed only if they complied wit would be 44 44 The law also spelled out out The law also of the sort that otherwise were ruled out. o r t that ot h were ruled out in detail what rights could be assigned and how. It set out terms for ow. It set out in detail what rights could be assigned and how. It set out terms for what righ ditions an yment, amo various editions and procedures for royalty payment, among many various editions and procedures for royalty payment, among many ecifics. Suc tors expla other specifics. Such precision, the law’s formulators explained with other specifics. Such precision, the law’s formulators explained with st solicitu paternalist solicitude, served to protect uninformed or careless au rmed or ca - paternalist solicitude, served to protect uninformed or careless au- 45 m exploit Authors were allowed to re- rs were allo thors from exploiters’ cunning tricks. t e - - mple, if their work proved to b t t e contracts negotiate contracts, for example, if their work proved to be unexpect negotiate contracts, for example, if their work proved to be unexpect- e fitable, tho y if they had been paid a lum edly profitable, though only if they had been paid a lump sum. GERMAN A AND IN GERMANY the West G Though the West German Federal Republic reacted in many respects Though the West German Federal Republic reacted in many respects against the Third Reich, on authors’ rights it partly followed Nazi he Third against the Third Reich, on authors’ rights it partly followed N policy initiatives. The contingent nature of all property, conventional itiatives. T policy initiatives. The contingent nature of all property, conven and intellectual, had been a theme of Nazi legal thinking llectual, h and intellectual, had been a theme of Nazi legal thinking. Though obviously resonant with the regime’s communitaria obviously resonant with the regime’s communitarianism, such ideas y resonan had also continued concepts formulated in German case law at the h continued 46 The turn of the century and codified in the Weimar Constitution. he centur t new German Basic Law of 1949 echoed ideas of the socially bound man Basi n nature of intellectual property, a leitmotif of both Weimar and Nazi n f intellectu 4 7 7 47 ns. Prop Property entails obligations, it declared, and must serve discussions. d ic interest the public interest. Though phrased in almost the same language as t the Weimar Constitution, the Basic Law insisted that every expro- mar Const t priation also be compensated. Yet suspicion of capitalism and a wish also be co p to put authors before business interests were also postwar themes uthors be t n the earli rooted in the earlier regimes. The Christian Socialist ideology of the r THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

219 Postwar Apotheosis of Authors’ Rights 209 early Christian Democratic Party deliberately sought to inoculate early Christian Democratic Party deliberately so West German voters against communism in the postwar devastation. West German voters against communism in the postwar d It moderated the contrast between left and right, compared to the It moderated the contrast between left and right, compared m o more market- oriented ideologies of other nations’ conservative par- e m a rk et - oriented ideologies of other nations’ conservative p r ties. As one postwar German jurist pointed out, both Christianity ties. As one postwar German jurist pointed out, both Christianity and socialism taught that human personality takes precedence over and socialism taught that human personality takes precedence over 48 i lifeless property. l Despite their ambitions to reform authors’ rights, the Nazis had zis had e their am to reform authors’ rig extending terms to half a accomplished little besides extending terms to half a century post - t t shed little accomplished little besides extending terms to half a century post- mortem. The Federal Republic was therefore born with the laws of The Feder blic was therefore born with mortem. The Federal Republic was therefore born with the laws of the late Wilhelmine Empire still on the books. Pondering reform, Wilhelmin the late Wilhelmine Empire still on the books. Pondering reform, re still on the books. Ponderin policymak postwar policymakers started from the Weimar Justice Ministry’s postwar policymakers started from the Weimar Justice Ministry’s mar Justice M last- minute draft bill of 1932 and the Nazi version of 1939. The first la t on of 1939. te draft b expressed the state of the reformers’ art on the cusp of the totalitarian p of the to the state o expressed the state of the reformers’ art on the cusp of the totalitarian regime; the latter was thoroughly steeped in its ideology. Stripped of regime; the latter was thoroughly steeped in its ideology. Stripped of he latter w deology. St its obvious Nazi trappings (allusions to the minister of propaganda us Nazi tra inister of pr its obvious Nazi trappings (allusions to the minister of propaganda mer, ritual obeisance to Hitler and the Reichskulturkammer, ritual obeisance to Hitler), the 1939 and the Reichskulturkammer, ritual obeisance to Hitler), the 1939 Reichskul 49 49 As we have basis of reform discussions. ave d draft bill now served as the basis of reform discussions. now serve both to protect authors wi Nazis had seen, the Nazis had sought both to protect authors with new moral seen, the Nazis had sought both to protect authors with new moral rights and to ensure the community’s access to works. West German mmunity’s access to wo d to ensur rights and to ensure the community’s access to works. West German tuned the regime’s draft bill to fit the postwar reformers now fine- s now fine r e postwar using on spirit, focusing on authors and ignoring the audience. Most of the s . Most of the new ideas in what became the 1965 law—and especially its improved s in what b new ideas in what became the 1965 law—and especially its improved 50 50 Post- Po t of the au treatment of the author—can be traced back to the 1939 bill. treatment of the author—can be traced back to the 1939 bill. war German reformers blamed the war, not the Nazi regime as such, war German reformers blamed the war, not the Nazi regime as man reform 51 51 Som for having interrupted the course of legal evolution. for having interrupted the course of legal evolution. Some of the g interrup Third Reich’s most active authors’ rights reformers, notably Hans ich’s mos Third Reich’s most active authors’ rights reformer 52 Otto de Boor, remained in harness. When introducing the new bill oor, rema O in the Bundestag, the justice minister noted its roots in the Nazi era ndestag, t i n 53 without particular comment. w particular Out of this suspect soil grew what has been widely regarded as a this susp p progressive and enlightened law, reaching skyward to ensure authors’ ve and enl 54 c and spiri Social policy had been improved e economic and spiritual interests. social cla fo for other social classes, reformers argued. The 1957 pension reform 55 ed workers Now was the time for the inde- had helped workers and employees. h 56 Moral rights of disclosure, attribution, and p pendent creative classes. creative cl 57 were spel integrity were spelled out in the 1965 law. To these came the new i n THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

220 210 Chapter 6 right of repenting. The author was allowed to right of repenting. The author was allowed to withdraw his work not only (as in the Nazi drafts) if his assignee was tardy in not only (as in the Nazi drafts) if his assignee was tardy in exploiting it but also if he had changed his mind. Oddly, this most intimate of it but also if he had changed his mind. Oddly, this most intim personal rights was extended to his heirs—but only if the author had personal rights was extended to his heirs—but only if the author h been demonstrably entitled to repent and prevented from doing so. been demonstrably entitled to repent and prevented from doing so Unlike France, Germany protected moral rights, not perpetually not perpetually but only as long as the economic ones. Integrity was protected more but only as long as the economic ones. Integrity was protected more n France. The German than in Berne, less than in France. The Germans wanted to guard Berne, les than in Berne, less than in France. The Germans wanted to guard against more than just threats to the author’s reputation or stand - more than against more than just threats to the author’s reputation or stand- eats to the author’s reput ing—the compromise demanded by the Anglophone nations in manded by the Anglophon ing—the compromise demanded by the Anglophone nations in comprom time or pseudonymous auth 1928. Tho no R Rome in 1928. Though first- time or pseudonymous authors had no t or reput standing or reputation, they still deserved protection. Even when protection. E standing or reputation, they still deserved protection. Even when he 1965 law nd reputat honor and reputation remained unblemished, the 1965 law allowed honor and reputation remained unblemished, the 1965 law allowed the author to defend his work’s integrity, though only within the the author to defend his work’s integrity, though only within the gh only w or to defe confines of his “justified” spiritual or personal interests. Not every interests. N confines of his “justified” spiritual or personal interests. Not every of his “ju feeling of offended artistic amour propre counted equally. Moreover, feeling of offended artistic amour propre counted equally. Moreover, f offended ted equally. though the assignee of a use right could not change the work, its the assign use right could not change th though the assignee of a use right could not change the work, its ttribution title, or attribution, the author had to permit changes that he could title, or attribution, the author had to permit changes that he could hor had to permit changes t au nach Treu und Glauben b e n ) refuse: th d the ood faith n not in good faith ( ) refuse: this allowed the e u un d G l 58 58 tweaking that dissemination required. . d g that diss n require t 65 Germa economic The 1965 German law opened with moral rights. Their economic analogues followed. With a show of rhetoric echoing the Nazis’ tub- es followed analogues followed. With a show of rhetoric echoing the Nazis’ tub- thumping anticapitalism, the Interior Ministry insisted on this order thumping anticapitalism, the Interior Ministry insisted on this order g anticapi of priorities. It made no practical difference which came first. B of priorities. It made no practical difference which came first. But ties. It ma with the e starting with the economic rights, as in the draft bill, would indicate starting with the economic rights, as in the draft bill, would in 59 59 Placing sp Placing spiritual val- a materialistic and capitalist way of thinking. alistic and a materialistic and capitalist way of thinking. ues above modern materialism was also the justice minister’s motive ues above modern materialism was also the justice m e modern Kulturländer France and Germany, when he introduced the bill. The introduce w h d, led the he argued, led the world in protecting individual creation against 60 c i m v ecti ll z Germany’s reputation as the land of poets o modern collectivization. and thinkers obliged it to pass a law to protect authors, a composers’ a kers oblig 61 representative agreed. r tative agre Because Germany took a monist approach, moral and economic se Germa rights were regarded as inseparable. As in the bills from the 1930s, the re regarde r a author’s rights—though they could be inherited—were not fully rights—t a or assign alienable or assignable. In the dualist French law moral rights were inalienable and perpetual, but economic rights were fully assignable. ble and pe i THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

221 Postwar Apotheosis of Authors’ Rights 211 In Germany neither were. Unable to assign their In Germany neither were. Unable to assign their economic rights as 62 More such, German authors were instead allowed to sell use rig such, German authors were instead allowed to sell use rights. than even the French, the Germans thus tempered market forces—at than even the French, the Germans thus tempered market forc least before works entered the public domain. Exploitation rig least before works entered the public domain. Exploitation rights 63 6 were subordinated to the paradigm of unassignable authors’ rights. were subordinated to the paradigm of unassignable authors’ rights. ng the authori - One Nazi vestige now scrubbed away was entrusting the authori- ties to protect works in the public domain. While the French had not ties to protect works in the public domain. While the French had not state cult trol, the Germans und balked at state cultural control, the Germans understandably feared balked at state cultural control, the Germans understandably feared 64 ies to corollary that empowered eliminated Also eliminated was the corollary that empowered authorities to it. t i 65 5 6 compel publication of posthumous works against the heirs’ will. ublication compel publication of posthumous works against the heirs’ will. thumous works against the t perpetual, nothing protected Since moral rights were not perpetual, nothing protected the work ral rights Since moral rights were not perpetual, nothing protected the work ad entered once it had entered the public domain. Moreover, inheritors of an eover, inheri once it had entered the public domain. Moreover, inheritors of an author’s moral rights were not bound to follow his expressed wishes. his expresse author’s moral rights were not bound to follow his expressed wishes. moral righ Indeed, strangely at odds with the author’s claims to control his Indeed, strangely at odds with the author’s claims to control his trangely a ms to co m the gra e rights, i work from the grave, heirs inherited these same rights, including work from the grave, heirs inherited these same rights, including forth unp ng those th - bringing forth unpublished works and changing those that had al- bringing forth unpublished works and changing those that had al n the ligh ready seen the light. In contrast, French heirs were presumed to fol- - ready seen the light. In contrast, French heirs were presumed to fol trast, French heirs were presum 66 66 uthor’s ex . ishes w o l low the author’s expressed wishes. The German law also followed the classic Continental approach erman law llowed the classic Contine oach fl blood creators of allowing rights for only flesh- and- blood creators, not juridical en- d- - esh ng rights f o cal en - an t for - h ir e ranted to rk- tities. Work- for- hire was ruled out- of- bounds. Rights were granted to employees for works created on the job unless—a nebulous and po- s for work - employees for works created on the job unless—a nebulous and po expansive tentially expansive qualification—the nature of their employment tentially expansive qualification—the nature of their employment otherwise. dictated otherwise. The French sometimes allowed rights to colle dictated otherwise. The French sometimes allowed rights to collec- s and film tive works and films to vest in corporate entities and would lat tive works and films to vest in corporate entities and would later in- troduce a similar regulation for software. But the Germans were at- similar r troduce a similar regulation for software. But the German tribution fundamentalists. Only the flesh- and- blood author could be fundamen tribution fundamentalists. Only the flesh- and- blood 67 Artists were granted a droit de suite for public recognized as such. r d as such sales. They retained exhibition rights but could prevent owners from s y retained showing their works only if this was specified at the time of sale. s their wor ld deman T They could demand access to sold works as long as this did not vio- late the owner’s justified interests. To get a second bite of the apple, a wner’s jus l a “bestseller clause” allowed authors to renegotiate contracts that had a er clause” 68 proven disproportionately lucrative for their disseminators. sproporti p Germany also strengthened the author’s position by reining in ny also st xceptions— fair use exceptions—though they remained more generous than in f France. The author’s interests took precedence over society’s, reform- he author F THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

222 212 Chapter 6 ers agreed. At a minimum, whenever the public ers agreed. At a minimum, whenever the public was granted access 69 69 roya e aut h or d eserve d t l ties . Earlier, composers had been expected Earlier, composers had be h the author deserved royalties. to tolerate gratis use of works at public festivals, charity even to tolerate gratis use of works at public festivals, charity events, and in clubs and associations. After strenuous protest they now won co in clubs and associations. After strenuous protest they now won com- pensation, except for purely noncommercial, free public perfor- pensation, except for purely noncommercial, free public perfor 70 Fair use of excerpts from writings was allowed only for owed only for m mances. s school- and church- related books, eliminating the old exemption for mption for logies. (Such exception song collections and anthologies. (Such exceptions were then further ections an song collections and anthologies. (Such exceptions were then further d in case l ater by the 1972 and 1985 a restricted in case law and later by the 1972 and 1985 amendments to restricted in case law and later by the 1972 and 1985 amendments to Royalties the law.) Royalties were now due for works reprinted in school and the law.) Royalties were now due for works reprinted in school and w due for works reprinted i use of compositions in chur church textbooks, and the use of compositions in church concerts extbooks, church textbooks, and the use of compositions in church concerts 71 71 ated by the F w u was restricted. T The fundamental rule, formulated by the Federal Su- - icted. h nsation for preme Court in 1955, granted the author compensation for all uses of preme Court in 1955, granted the author compensation for all uses of ourt in 195 72 72 s’ But composers’ But co his work, even those without commercial purpose. , even tho e. h interests were sacrificed to poets’ complaints that their moral rights at their mo interests were sacrificed to poets’ complaints that their moral rights were sacr were violated when others set their poems to music without permis- ated when - were violated when others set their poems to music without permis music witho sion, as had earlier been allowed. At the same time composers’ melo- ad earlier owed. At the same time compo sion, as had earlier been allowed. At the same time composers’ melo - dies—alone among all works—remained protected against any use rks—remained protected aga dies—alone among all works—remained protected against any use one amon 73 ver by oth Overall, West Germany cut back the Nazi Nazi w verall, West Germany cut whatsoever by others. social obligations, inste insistence on the author’s social obligations, instead reaffirming his e on the a insistence on the author’s social obligations, instead reaffirming his rights. r ed authors by Above all, Germany’s new law of 1965 strengthened authors by all, Germ extending protection from half a century to seventy years postmor g protecti extending protection from half a century to seventy years postmor- hors pred tem. Authors predictably clamored for perpetual protection, but t tem. Authors predictably clamored for perpetual protection, but this 74 74 A twenty- went nowhere in committee. year term extension twenty- where in went nowhere in committee. A year term extension none- theless represented excellent value. It gave Germany a far lo theless represented excellent value. It gave Germany a far longer term presented than any major nation, two decades more than the fi than any major nation, two decades more than the fifty years decreed major na azis in 193 by the Nazis in 1934 and made obligatory for Berne members in 1948. b Composers and their representatives had hotly agitated for the lon- C ers and th ger term. Fifty years, they argued, was adequate only for pop hits and Fifty year g f folk music, not serious works. By enlarging the repertory of public ic, not ser domain works, short terms priced contemporary composers out of d works, sho 75 programs. concert programs. The two world wars that Germany had fought c also encouraged special term extensions for authors caught up in a ouraged s - hostilities (to be discussed later), as in France. Most generally, Ger h s (to be d xtra twent m many’s extra twenty years of protection emerged from a horse trade. ter insiste To counter insistent proposals for perpetual protection, reformers T THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

223 Postwar Apotheosis of Authors’ Rights 213 a that would have taxed public do- suggested domaine public payant that would hav t suggested a domaine public payant main works to benefit authors. This, however, was judged outside the main works to benefit authors. This, however, was judged central authorities’ competence, since the new constitution assigned central authorities’ competence, since the new constitution ass culture to the federal states. German reformers then decided to serve culture to the federal states. German reformers then decided to se 76 7 6 That That a term extension. authors more directly by an across- the- board term extension. a authors should be favored was not at issue, only how. e author’s In sum, the Germans subordinated most rights to the author’s control. They remained with him for the entire term, and he was They rema th him for the entire control. They remained with him for the entire term, and he was d to aliena permitted to alienate only his use rights. Yet, while the French moved is use rights. Yet, while the permitted to alienate only his use rights. Yet, while the French moved into uncharted and arguably unnavigable territory by making moral harted and into uncharted and arguably unnavigable territory by making moral y unnavigable territory by m ny they expired along with the rpetual, in rights perpetual, in Germany they expired along with the economic rights perpetual, in Germany they expired along with the economic rights. Though not nearly as emphatically as the Nazis, the postwar he Nazis, th rights. Though not nearly as emphatically as the Nazis, the postwar ough not did emph Germans did emphasize the socially bound nature of the author’s Germans did emphasize the socially bound nature of the author’s ture of the could act rights. He could act against changes only insofar as they damaged his rights. He could act against changes only insofar as they damaged his s they dam e interests ju - ly necessa justifiable interests. He had to accept technically necessary altera- tions by rights holders. And he had to have good reason for with - ood reason rights hol tions by rights holders. And he had to have good reason for with- 77 7 m However faint such hedging about seems from drawing his work. er faint such hedging about se d his work. the vantage of the copyright tradition, compared to the more exten- - ge of the c the vantage of the copyright tradition, compared to the more exten t tradition, compared to the sively author- centric French approach, these were still concessions to s i ns to approach, these were still c hor- centr society. s THE ANGLOSPHERE IN A BERNE WORLD T GLOSPHE Never was the gap between the authors’ rights and copyright systems the authors’ rights and copyright sys N s the gap b as wide as in the 1950s and ’60s. On the Continent moral rights were s in the 195 as wide as in the 1950s and ’60s. On the Continent moral ri d in theo articulated in theory and codified in statute. In th articulated in theory and codified in statute. In the Anglo- Saxon world, by contrast, little reform was astir. Within the Berne Union contrast, w the Commonwealth nations continued their rearguard action to t monwealt rm. The A limit reform. The American rejection of Berne principles remained i l even starker. Of course, some Americans wanted to harmonize with e ker. Of cou the Europeans. The publishers and authors who had finally achieved peans. The t international copyright in 1891 now proposed membership in Berne. onal copyr i n During the early 1920s bills sought to have the United States join he early 1 D d make do B Berne and make domestic legislation conform more closely to Euro- pean standards—abolishing the manufacturing clause, for example, dards—ab p 78 The chances of joining a oving othe and removing other copyright formalities. THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

224 214 Chapter 6 had brightened in 1930 when the labor movem had brightened in 1930 when the labor movement agreed to a bill that would exempt books by foreign nationals from h that would exempt books by foreign nationals from having to be 79 79 manufactured in the United States manufactured in the United States. . But the Depression was an inauspicious moment to threaten But the Depression was an inauspicious moment to threaten the jobs created by the manufacturing requirement. Printers, facing high jobs created by the manufacturing requirement. Printers, facing high 80 80 University University unemployment, were unwilling to give more ground. unemployment, were unwilling to give more ground. - presidents, the secretary of state, and even President Roosevelt fa- presidents, the secretary of state, and even President Roosevelt fa 81 81 But their well- mean But their well- meaning international- ational - vored Berne membership. erne mem v protection for American au ism—hoping for parity of protection for American authors abroad— ping for p ism—hoping for parity of protection for American authors abroad— match for t was no match for the opposition. Nor were those who opposed Berne ition. Nor were those who op was no match for the opposition. Nor were those who opposed Berne rest. In 1934 Senator Clarence d just by m om motivated just by self- interest. In 1934 Senator Clarence Dill from - ton moun Washington mounted a spirited defense of the autonomous Ameri- Washington mounted a spirited defense of the autonomous Ameri he autonomo can copyright tradition. The Berne Convention spoke for Europeans, poke for E right trad can copyright tradition. The Berne Convention spoke for Europeans, of the cr arded cop who regarded copyright as a natural monopoly of the creator or a who regarded copyright as a natural monopoly of the creator or a n tradition property r natural property right. In contrast, the American tradition, built on natural property right. In contrast, the American tradition, built on the Constitution, held copyright to be a limited monopoly, founded the Constitution, held copyright to be a limited monopoly, founded ed monopol titution, h only in statute. The Europeans favored the author, he concluded, the only in statute. The Europeans favored the author, he concluded, the ans favored the author, he con tatute. Th 82 Americans the public. A ns the pub into two camps, so said L world was The world was divided into two camps, so said Louis Caldwell, dwell, al Association of Broadc an for the spokesman for the National Association of Broadcasters, in 1931. The spokesman for the National Association of Broadcasters, in 1931. The French system saw authors’ rights as an absolute property claim French system saw authors’ rights as an absolute property claim ystem saw n natural r based on natural rights. The copyright tradition balanced between based on natural rights. The copyright tradition balanced between ests of aut the interests of author and audience, “between the right of the indi- the interests of author and audience, “between the right of the indi vidual to his work, and the right of the public to have knowledge his work vidual to his work, and the right of the public to have knowledge of 83 83 Berne’ that work.” Joining Berne meant bowing to the French. that work.” Joining Berne meant bowing to the French. k.” Joining Berne’s long ng protect and strong protection for works undermined research and the spread and strong protection for works undermined research and of knowledge, argued Robert C. Binkley, a historian and apostle for edge, argu of knowledge, argued Robert C. Binkley, a historian d disseminating information through the new technology of micro- ating info In the 193 filming. In the 1930s he planned a forerunner of the Google Books fi p project: a universal library of the world’s cultural treasures, accessible a universal 8 4 84 via microfilm. v ofilm. Berne’s pieties about the creator’s vaunted moral rights also s pieties sounded ever more hollow during the 1930s, given how Germany ever mor s 85 As one critic and Italy’s fascist regimes treated many authors. a y’s fascist p out in 193 pointed out in 1934, works by Jewish authors—popular songs, for —were no example—were not protected in Germany. Why ask America to enter e national a an international agreement from which many of its citizens were a THE COPYRIGHT WARS: THREE CENTURIES OF TRANS-ATLANTIC BATTLE by Peter Baldwin is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License by permission of Princeton University Press. Please contact [email protected] to reprint or reuse material from this work.

225 Postwar Apotheosis of Authors’ Rights 215 86 As E. C. Mills, general manager of ASCAP, the composers’ As E. C. Mills, general manager of ASC excluded? excluded? and songwriters’ licensing organization, testified in 1936, “The high and songwriters’ licensing organization, testified in 1936, spokesmen of Germany say that they do not want dumped i spokesmen of Germany say that they do not want dumped in Ger- 87 87 7 y . . When Amer- Aryan.” - many . . . the intellectual excrement of the non- Aryan.” When Am man . the intellectual excrement of the non- ican authors and their allied publishers smugly portrayed the Berne ican authors and their allied publishers smugly portrayed the Berne Union as the quintessence of advanced thought (“the European Union as the quintessence of advanced thought (“the European - method, supported by the most enlightened opinion in this coun method, supported by the most enlightened opinion in this coun- 88 88 Disgrace Disgracefully, not a single a single try”), they were easy prey for skeptics. for skeptics. y were ea t - member of the Berne Union had sought to prevent Germany’s viola n had sought to prevent Ge member of the Berne Union had sought to prevent Germany’s viola- of the Ber t and anti- Semitic Nuremberg law principle tion of its principles in the anti- Semitic Nuremberg laws of 1935 and ory measures against Jews.