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The Copyright Wars

By Donna Mallard | Jun. 2, 2015


Law Office Management

Jun. 2, 2015

The Copyright Wars

Author Peter Baldwin explores the history of copyright law in America and Europe.

According to UCLA history professor Peter Baldwin, "historians are the magpies of the social sciences." And under that definition, what a magnificent magpie Professor Baldwin is. At more than 500 pages, The Copyright Wars is an exhaustively researched epic journey through the international, historical, and present-day relationships among society, authors, disseminators (i.e., publishers and studios), and the public. It presents not only the main legal developments in sweeping history over hundreds of years - focusing on Britain, the United States, and continental Europe - but also a dazzling assemblage of anecdotes, historical context, quotes from obscure writings, minutiae, and "you are there" reports on benchmark cases. Perhaps because he is a nonlawyer writing a book of social/legal history, Baldwin is free to observe and write more like a time-traveling historical journalist, unafraid to use catchy phrases or to challenge his readers.

The book tries to answer the question, What is the international context and motivation for America's changing legal and societal opinions on the importance of authorship and copyright? This question has always involved our legal DNA from Britain, our business interests, and our willingness to change the law to better suit those interests over the centuries. Thus Baldwin examines American copyright law from its beginnings in a pirate nation in the 19th century to its role as the copyright exporter that joined the Berne Convention in 1989 (using author's rights as a rationale for stronger economic protections), tracing as well events from the Clinton-era pro-copyright legislative outbursts of the 1990s to today's dance with technologists and the public.

Baldwin's social history ties together life, art, society, politics, and the law. His book is not really about "copyright wars," a phrase that by now has become overused and passé (the Eldred/Lessig era is long over; see Eldred v. Ashcroft, 537 U.S. 186 (2003)). The title does not do the book justice because its scope takes us to more interesting places than the usual copyright vs. technology exposé. For example, it's certainly a rare and welcome book that comments on the leaders of the French Revolution and their society to make a point about the U.S. approach to copyright law.

The book also emphasizes the societal and legal approaches that have divided world copyright into two camps: the Anglo-American (Anglophone) philosophy of copyright being an economic property right - fully alienable from the author to the publisher-that ultimately serves the public good (and public domain), versus the French-based Berne Convention emphasis on the author's inalienable moral rights (from the French droit moral, referring to the ability of authors to retain control over the artistic integrity of their creations).

Though the history of American and British copyright may be relatively well known, or at least easily accessible, to U.S. lawyers, Baldwin writes like a reporter of historical events, with a fresh approach. Perhaps because it contains material rarely encountered by the average copyright lawyer, the heart of the book is the presentation of the historical development of copyright on the European continent during the years between World Wars I and II, a time when Fascist Italy and Nazi Germany both played active roles, and a time when many European countries first passed their own "moral rights" laws protecting authors.

There are subsections on copyright law in Nazi Germany, where the artist's "individuality" and "moral rights" were horribly distorted in service to an oppressive state. This little known and disturbing history is powerfully presented, and it should be required reading for anyone who follows or comments on copyright legislation. Laws matter, but their historical context matters even more.

This keen ability to recognize historical import in all things large and small, and to see all data and views as important to the historical record, is the book's strength. (The endnotes alone take up 100 pages in tiny type.)

To the extent this book has an Achilles heel, it is this selfsame richness of observation and historical record that can sometimes distract from the core narrative in the delicate balance between background, exposition, exquisite detail, and denouement. Nevertheless, The Copyright Wars is well organized into chapters and subsections for those who would pick and choose their topics. But it would be a pity to intentionally skip a "side bar" section, and thereby miss one of the many insightful and beautifully written observations that are the hallmark of this impressive work.

Corey Field is of counsel in the Los Angeles office of Ballard Spahr, where he focuses on copyright and entertainment law.

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Donna Mallard

Daily Journal Staff Writer

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