Guidance on Proposed Document Selection Criteria

There is considerable consensus among scholars as to the key points in the intellectual history of copyright law: Invention of printing press (ca1450); printing privileges (Venice 1469; imperial fairs c16-c17); stationers’ companies (Paris 1527?; Basel 1531; London 1557); first statutes (England 1710; US 1790); the Enlightenment reprinting debate (“battle of the booksellers”; Diderot; Kant; Fichte); author rights (France 1791/1793; Prussia 1837; UK 1842); Berne Convention (1886). However, there is great controversy about the journey these points mark.

Under one interpretation, a teleological story is told, unfolding from the dark beginnings of privileges to the full recognition of author rights. Under another interpretation, there is an ever-increasing appropriation of the intellectual commons through commercial interests, only briefly interrupted by the public interest rationale asserted in Donaldson v. Becket (1774) and the US Constitution (1787).

Our methodology will evaluate proposed documents under at least three criteria:

(1) Documents that open up alternative interpretations of copyright history

Particular national copyright laws have come to be associated with distinct philosophical traditions: the US and UK are said to be ‘public interest’-oriented, or utilitarian. France and Germany as author centric, reflecting deontological philosophical ideas (personality, natural rights). We are interested in documents that affirm, and contradict, these presentations.

Examples include:

Locke had argued against a natural rights approach to copyright in his critique of publishers’ demands after the lapse of the Licensing Act in 1695. However, in Millar v Taylor (1769), William Murray (later Lord Mansfield) applies a Lockean (“labour theory”) approach to literary property.

Diderot (who also translated Locke) adopted a genius based justification in his Lettre historique et politique adressée à un magistrat sur le commerce de la librairie (1763). There are different versions of this pamphlet which was commissioned and published by the Paris Guild.

Le Chapelier’s report introducing the 1791 decree is always quoted with the same line: (‘la plus sacrée, la plus personelle de toutes les propriétés’). This only referred to unpublished works. The rest of the speech emphasises the public interest.

For the editorial comments on such documents, we are particularly interested in bibliographic references that evidence early occurrences of particular interpretations.

(2) Documents that illustrate interaction of copyright laws with commercial and aesthetic developments

We are interested in documents that say something about the way in which the law reacted to, and also affected, social circumstances and practices (including technological change, commercial practices and aesthetic practices).

For example: while some legal systems might imagine themselves as establishing a priori categories (eg ‘toutes les beaux arts’), we are interested in documents that indicate when and how those a priori notions were disrupted, contested, reformulated (eg responses to photography in France, at least according to Bernard Edelman). This reflects a more general interest in finding documents that indicate the social conditions that inform the history of copyright. In the UK and the US, the influence of social, technological and economic change may be more obvious, because of the law’s incremental, and reactive development (until 1911).

We are also interested in documents that indicate the impact of copyright regulation on particular creators or publishers (eg Dürer, Hogarth, Beaumarchais, Bourget, Hugo, Weber/Schlesinger, Wordsworth).

(3) Documents that evidence influences across jurisdictions

Copyright histories are often told as if national systems remained hermetically sealed from one another (Sherman & Bently, The Making of Modern Intellectual Property, ch. 11). So we have a British history, a French history etc. We are interested in documents that indicate influence from outside the particular nations. For example, we are interested in evidence that the Venetian privileges constituted a model for licensing systems in France, Germany, England etc, or evidence that suggests there was no such influence (each country independently coming up with the same idea of regulation). Assuming that there was influence, we are interested in documents which tells us about how certain legal systems became models for others.

Examples include: Kant’s 1785 essay, conceiving of books as a ‘speech to the audience’ responded to the literary property debate surrounding Donaldson (1774). The US federal Act of 1790 copies many provisions verbatim from the 1710 Statute of Anne, but added a prominent protection for maps and charts (which played an important part in the development of the continent). Prior to the Prussian 1837 Act and the UK 1842 Acts, drafts were exchanged and commented upon between the two countries.

We are also interested in documents that indicate the development of national self-consciousness, or national images of copyright. When, where, and how did French, US, German and UK commentators start to articulate their national laws as different from those of other nations (with different histories, philosophies, functions, concepts etc)?