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Professor Justin Hughes recently released an article on historical claims made by critics of our modern copyright regime. Copyright and Incomplete Historiographies: of Piracy, Propertization, and Thomas Jefferson, Southern California Law Review, Forthcoming, Available at SSRN.
Hughes notes that after various constitutional arguments to curb copyright policy failed, some scholars have taken to describing current policies as the result of an increasing “propertization” movement; intending to cast copyright as having followed a misguided path, disconnected from its history, and detrimentally marked by modern political interests. Historical arguments reframing “piracy,” “intellectual property,” as well as notions of what Thomas Jefferson perceived of copyrights and patents, are often used to add force, and context, for normative prescriptions for what proper intellectual property policies should be. Hughes argues that such historiographies rest on shaky ground, and may not withstand careful scrutiny.
Excerpts:
Piracy has long signified unauthorized handling of literary materials falling unders copyrights and other formal protections. …in a 2003 online discussion, one copyright professor commented that he had been “chafing...about [BSA's] popularization of the word ‘piracy’ as substitute for copyright infringement.” While it is definitely true that the content industries like to use “theft” and “piracy” to describe unauthorized reproduction and distribution, there is nothing new about this terminology…
...the Statute of Anne arose in 1710 from the licensing system of the Stationer’s Company. Organized in 1557 by royal prerogative, this guild provided... members... with a coordinated monopoly, in which each publisher respected the others’ claims to exclusive publishing rights in particular works through an official registry…
…during this pre-Statute of Anne period, “piracy” was widely used to describe unauthorized printing of books. Adrian Johns traces “piracy” as a description of unauthorized copying to John Fell, the Bishop of Oxford who resuscitated the fledgling Oxford University Press after the Restoration. According to Johns’s exhaustive study of book publishing in England, The Nature of the Book, piracy had a “technical meaning” in the 17th century: “a pirate was someone who indulged in the unauthorized reprinting of a title recognized to belong to someone else by...formal conventions.”
…Once the modern copyright system was underway, “piracy” transferred easily in English—and then American—jurisprudence into a general label for infringement of statutory copyright rights. The phrase “intellectual property” is not new, nor was it introduced by political motivations to analogize copyrights (and patents) with real property.
...Vaidhyanathan tells us the phrase’s earliest use “occurs in the title of the... World Intellectual Property Organization, first assembled in 1967.” When you think about that carefully...there is something prima facie odd about a story that traces “intellectual property” back to the formation of the WIPO. The story supposes that a multilateral treaty would be written and an international agency established with a wholly new name that no one was familiar with.
In fact, WIPO’s predecessor international agency was called the “United International Bureaus for the Protection of Intellectual Property”…formed in 1893, as a combination of two small agencies... established to administer…the Berne and Paris Conventions. Thus, “intellectual property” was a conscious, 19th century category created to subsume both “literary property” (Berne) and “industrial property” (Paris).
...“intellectual” and “property” were already being alloyed in American jurisprudence and commentary in the 19th century...the first appearance [of]...“intellectual property” in a reported American case seems to be an 1845 circuit court decision. No one has uncovered any evidence that this 1845 usage touched off puzzlement. And there is a simple reason…the courts and legislatures had regularly discussed copyrighted works as “property” throughout the 17th, 18th, and early 19th centuries, with the adjectival concepts of “artistic,” “literary,” and “intellectual” orbiting around the property notion. Thomas Jefferson may have opposed the concept of copyrights and patents on a natural rights ground, but as utilitarien contructs, saw their potential value in furthering innovation and creative production.…if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, “nuanced” or perhaps “fluid.”
It is widely acknowledged that Jefferson was not at the Constitutional Convention. He was a “Founding Father” who was not a “Framer”—this, by itself, should largely curtail the use of Jefferson as “a reliable source of the meaning of Article I of the Constitution.”
Jefferson…doubt(ed) natural rights to property of any sort and was “even more doubtful about rights associated with ideas.” But…Jefferson [gave] grudging recognition that “an exclusive right” to the profits from an invention may be “an encouragement to men to pursue ideas which may produce utility.”
…an 1807 letter to Oliver Evans, then-President Jefferson praised the patent system on the grounds that “ingenuity should receive liberal encouragement” and described the “utility that society derives from an invention.” [Jefferson:] “Certainly an inventor ought to be allowed a right to the benefit of his invention for a certain time… Nobody wishes more than I do that ingenuity should receive a liberal encouragement.” Readers interested in historiographies of intellectual property should also read Professor Adam Mossoff's work, which suggests a possible natural rights grounding for intellectual property policy, as it arose in the founding of the American republic.
posted by Noel Le @ 7:00 AM | Academia, General, Liberty and IP
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