What if . . . and Copyright

I spent last Friday and Saturday at the “What If, and Other Alternative Intellectual Property and Cyberlaw Stories” symposium hosted by the IP and Communications Law program at Michigan State University and Professor Peter Yu.  More, including notes on my talk, below the jump. 

Rebecca Tushnet was there, too, and she liveblogged the whole affair:

• Opening plenary and privacy panel (Bartow, Gajda, Lastowka, Preston) (supplemented here) (Saunders)
• Patent panel (Holbrook, Meurer, Miller, Strandburg)
• Mark Lemley’s keynote, on patents
• First copyright panel (Carroll, Garon, Landau, Wong)
• Second copyright panel (Heverly, Long, Madison, Ochoa)
• General IP panel (Bowal, Gibson, Halbert, O’Melinn)
• Third copyright panel (Corbett, Drassinower, Cromer, Tussey)
• First trademark law panel (Calboli, McKenna, Smith)
• Second trademark law panel (Beebe, Cross, Ramsey, Tushnet)

Rebecca did a very nice job with my talk, the premise of which was an alternative history that began:  “What if the printing press had been invented by the ancient Romans?”  (The kernel of the idea was suggested by this AltHistory Wiki entry.)

I spun two brief alternative histories.  The first had the printing press accepted first by the pre-Christian Roman emperors and later by Constantine, all of whom responded to printers’ demands for exclusive privileges as later European city-states and monarchs did, with a combination of state-awarded grants grounded in legal abstractions already endorsed by Roman law, and state censorship.  I argued, however, that social and cultural constraints prevented the emergence of the idea of the “authorship” idea; printed books followed earlier practice:  the point of literature and drama was to honor the gods, and the past.  The presence of print, moreover, permitted the seamless evolution of Christian Empire; there was no “Dark” or “Middle” Ages, no need to recover lost learning, no need for a Protestant Reformation, or Scientific Revolution, or Italian Renaissance, or Enlightenment of any sort.  The result was the absence of the conceptual revolution that prompted the emergence of authorial copyright in England and the Continent, and eventually in the United States.  (There were other, adjacent developments, such as the persistence of Roman law, grounded in natural law, as the core of the English legal tradition, rather than the emergence of the common law.)  For copyright purposes, we would be living today in the world of Millar v. Taylor, and perhaps with continued, aggressive state supervision of published materials.  On this account, and by contemporary Western standards, the introduction of the printing press had devastating consequences.  “Real” modern copyright owes its shape to other things.

As much fun as that story is, I offered a second:  What if Roman printers had not responded to the press as German and Venetian and English printers did, with demands for protection and exclusivity?  Imperial Roman law had nothing resembling modern copyright.  Publishers enjoyed no protection from authors who might commission successive publications of books.  In fact, it might be said that under prevailing customs, which emphasized wide distribution of literature in order to maximize honor and homage to the writers’ subjects and patrons, print might have been welcomed simply as a more effective way to organize the prevailing literary and book trade.  In other words, the social meaning of the printed book was no different than the social meaning of the hand-reproduced codex.  The rest of Western history unfolded much as it actually did, with the emergence of publishers’ copyright in England in the 17th century, and authorial copyright a short time later.  In this version, the printing press as such had virtually no impact on the development of the law.

My takeaway from this was both alternative histories show that the materialist account of copyright history, which has really dominated most of the academic and popular literature over the last decade, proves too much.  Either the printing press was terribly important but didn’t give us the copyright that we know, or it wasn’t important at all.  Other scholars have made the same point — Carla Hesse in her Daedalus essay of a few years ago (“The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance”), Bill Alford in “To Steal a Book is an Elegant Offense,” and most notably Martha Woodmansee in “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author,'” from 1984.  The rise and role of the “romantic author” deserve another look, even as technology appears to be sweeping away all that falls before it.  Underneath the economics of Viacom v. YouTube is an important and unresolved debate about the character of User-Generated Content — as to which the “romantic author” construct applies only poorly.  (In different articles, Joe Liu and Julie Cohen have pointed out current copyright’s omission of a model of the “creative” user.)  Content-producing industries would very much like to solve this debate by “teaching” consumers and users about what to do with copyrighted material, but that approach tends to assume a “romantic author,” not demonstrate its existence.  And consumers and users have a habit of learning things on their own.  Without prejudging how transactions might or might not solve contemporary problems, my little What If is designed to suggest that there is a lot of learning yet to be seen on all sides.

(Also, and less seriously, I got to introduce the concept of Alien Space Bats into academic copyright discourse, and that may have its own reward, in time!)