Tag: scholarship

A Curious Copyright Footnote of 1938 Proceedings of the American Society of International Law at Its Annual Meeting

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Bonjour,

I found something today, not that dazzling or dramatic (like I found before), but perhaps a useful little footnote at the very least.

While the postwar shift in U.S. copyright policy—from pirate nation to IP policeman—is hardly news, it is still striking to see it stated so plainly on record by Richard C. De Wolf, then Law Officer of the U.S. Copyright Office. There are, of course, other sources that point in the same direction, but having lit upon this one, I thought it worth flagging for further scrutiny. I came across the remark while leafing through the 1938 Proceedings of the American Society of International Law. There is nothing revolutionary here … but only the sort of archival soupçon that lends a scholarly piece a sharper, more serviceable footnote.

Source: Wallace McClure & Clement L. Bouvé, International Law of Copyright, 32 Proceedings of the American Society of International Law at Its Annual Meeting 44–62 (Apr. 28–30, 1938). https://www.jstor.org/stable/25656973

At page 56, De Wolf remarks:

The question is always coining up: Why is it that the United States, which has long been a party to other conventions for the protection of intellec tual and industrial property, should have so long remained outside the Con vention for the Protection of Literary Property.

I think a little reflection answers that question. We have been, in regard to inventions, a creating or producing nation. Our inventions have gone abroad and our interest has been to see to it that an American inventor was protected in foreign countries without too much difficulty. On the other hand, until quite recently the United States has been a consuming country with regard to the creations of the mind in the narrower sense, that is, works of literature and art. Therefore, the interests of the exploiters of literary property have prevailed in this country over those of the producers. But now the shoe is going onto the other foot. Since the advent of American motion pictures and a certain type of popular music, Europe has come to be much more largely a consumer of American products of these kinds than it was in earlier times. Consequently we are beginning to think of the interests of our own creators of literature and art in foreign countries and we are asking the question why should we have to go to thirty or forty different foreign countries and perform formalities in those different countries in order to be sure that these works of ours are protected there. 

Something seems inherently wrong and repugnant to logical thinking in the idea that a man, having written a book?and I presume among all of this audience there is no one who has not done it or has not thought of doing it? should have to go through a lot of burdensome formalities in order to have that work copyrighted in every different foreign country. Of course this was the aspect of the thing that was present in the minds of the people who for mulated the International Copyright Convention. Each country, of course, preferred to legislate for itself; each country had a certain national policy with regard to what should be done to protect copyrights and, of course, wanted to adhere to that with regard to the works of foreign authors. 

But after a while the system broke down. An Englishman writing a book had to attend to formalities in twenty-five or thirty foreign countries, and a Frenchman likewise. The formalities became so burdensome that every body got together and said, “Here, we will all make some sacrifices. We will sacrifice our national inclinations so far as the citizens of other countries are concerned and, in return, they will sacrifice their inclinations so far as we are concerned, and we will all get together and wipe out the formalities. And the fact of the matter is that the system has worked, and I am sure they would not think of abandoning it. Yet, as Colonel Bouve has pointed out, each country is left with a wide latitude with respect to its own citizens and also with respect to the assertion of protection in the courts of the country. 

It seems to me that the time has now come when the United States must take up this question seriously. In fact, it has been taken up seriously for some time past. When I first came to the Copyright Office thirty years ago I met Thorvald Solberg, who then and for many years afterwards was Register of Copyrights and whom you know as a persistent advocate of the adherence of the United States to the Copyright Convention. I am frank to say that I imbibed these views from him, and I hold them now. I think that really will be the next and greatest advance in the field of copyright law which is now open to the United States.

Okay. That’s it from my end today. See you in the next post.

Thanks

An Interesting 1965 Piece: International Copyright and the Soviet Union by Allan P. Cramer

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Namaskar/Salam

So the other day …. I fell, most unwillingly but quite happily, down a rather curious piece (though I confess I only truly read it now, as one does with the more tempting of intellectual distractions! Alas, life is such).

It was a piece from 1967 in the Duke Law Journal, a slender sixteen-page text … dressed in all the full regalia of the American law review tradition. I mean … the dense, deliberate, and detailedly footnoted text, as though the citations are contesting for attention with the text they adorn.

But there is something else as well that ignites my interest in this piece. For one, there is, I find, something rather beguiling about writing on Soviet copyright discourse. It remains strangely under-visited in English scholarship, or at least, not easily sighted in the usual mainstream historical scholarship. Perhaps it is hiding in some archives acloves, carrying the digital dust … awaiting more patient, more persistent pursuers. At times, I suspect I ought to search more earnestly; there is likely an entire cartography of thought yet unmapped.

Secondly, as I suggested above, I liked the citations of this piece, which detour into forgotten corners, pause for brief historical asides, and occasionally seem to breathe with a life of their own. One begins to feel (at least I did) that the author took greater pleasure in the footnotes than in the main text itself.

(Well … if one were ever inclined toward an IP trivia night, this is the sort of piece one would chip in, quietly and watch the room slowly realise that copyright discourse is far more entertaining than it had dared to assume.)

But I shall not linger in preamble any longer. Below follows the citation of the piece, and thereafter a fragment of its introduction

Citation: Allan P. Cramer, International Copyright and the Soviet Union, 1965 Duke Law Journal 531-545 (1965). Available at: https://scholarship.law.duke.edu/dlj/vol14/iss3/3

INTRODUCTION (footnotes omitted)

THE COPYRIGHT laws of a country have no extraterritorial application. Nevertheless, practically every nation in the world, by adherence to either bilateral or multilateral treaties or conventions, protects copyrights of foreign nationals. The Soviet Union alone among the major world powers has refused to recognise international copyright and does not adhere to any treaty or convention for the protection of copyrights. As a result, that country’s state-controlled publishing firms have, generally without seeking permission or paying royalties, printed whatever foreign works they felt were suitable for Soviet minds. During the period from 1917-1950, it has been estimated that one billion copies of books protected by foreign copyright were published in the Soviet Union. Among these were more than seventy-seven million copies of 2700 books by some 200 United States authors, including Jack London, Mark Twain, Theodore Dreiser, Upton Sinclair, Erskine Caldwell, Sin-clair Lewis, John Steinbeck and Ernest Hemingway.” Numerous foreign scientific and technical publications, short stories, plays10 and miscellaneous articles¹¹ have also been published in the U.S.S.R. Thus, that country has been characterized as “the world’s most active literary pirate.”This article will consider various reasons for the Soviet Union’s position concerning international copyright. In addition, it will outline some attempts which have been made to change the Soviet view and evaluate future prospects for the solution of the problem.

Do take a look at the piece. Happy reading …

See you in the next post.

A bientôt.

A very Interesting 1992 piece called “Critical Perspectives on the History and Philosophy of Copyright” by RONALD V. BETTIG

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I recently came across a fascinating work on the history and theory of copyright law titled Critical Perspectives on the History and Philosophy of Copyright by Ronald V. Bettig, published in 1992. It references some compelling historical studies related to copyright law and, more broadly, knowledge production. I will be discussing some of these in my upcoming post. In this post, I want to introduce readers to Bettig’s work and briefly outline its content. I would encourage readers to check it out—it is relatively short, spanning only 26 pages.

Full citation:

Ronald V. Bettig (1992), Critical perspectives on the history and philosophy of copyright, Critical Studies in Mass Communication, 9:2, 131–155. (Unfortunately paywalled, but feel free to reach out if you need a copy.)

The abstract of Bettig’s piece explains:

“The philosophy of intellectual property reifies economic rationalism as a natural human trait and assumes that, without mechanisms such as copyrights and patents, human beings would cease to be intellectually and artistically creative. To discover the roots of this assumption, this article employs a theoretical combination of political economy and the cultural history of communications to locate the origins of the concept of literary property. With attention directed toward the modes and relations of production and communication, this study reveals that the rise of capitalism and the development of the printing press are the keys to understanding the emergence of intellectual property law and how it serves as the basis for the “enclosure” of the intellectual and cultural “commons.”

Betty begins the piece by noting that

“Critical research on intellectual property is still pioneering work, including the relatively unexplored history of copyright. The traditional histories of copyright (see Bugbee, 1967; Patterson, 1968; Putnam, 1896/1962; Whale, 1971) provide adequate descriptions of the origins and evolution of copyright but lack any real explanation for its emergence and function. These histories are also teleological; they treat the evolution of the concept of literary property as a reflection of the natural progressiveness of human beings. The history of copyright developed in this article is based on an analytical framework that stresses the modes and relations of production and communications as the key explanatory variables in accounting for the origin and development of a concept of literary property. Accordingly, this history of copyright suggests that there is an essential connection between the rise of capitalism, the extension of commodity relations into literary and artistic domains, and the emergence of the printing press.

The first section of this article looks for evidence of intellectual property rights in ancient and medieval times. In a second section, an analysis of the dawn of capitalism and the development of the printing press is linked to the emergence of copyright, a crucial connection that is generally neglected in the traditional histories. The evolution of copyright in England and the United States is the central focus of the third section, which includes a significant revision and expansion of previous copyright histories on the connection between John Locke and the articulation of literary property rights. Patterson (1968) argues that a historical analysis of copyright “removes obstacles—long-continued acceptance of certain ideas, self- interest, and the pressing need to resolve immediate problems—which may be present when analysis occurs in a wholly contemporary context” (p. 223). It also provides the occasion, in the last section of this work, to compare the earliest ideas concerning copyright to current copyright practices. Here special attention also is paid to patterns of ownership and control of intellectual and artistic creativity.”

Okay, I leave this here. Bettig structures this piece into 6 parts, but I’ll leave the details for readers to explore further. Bettig’s piece, I reiterate, can be a useful piece for understanding the historical and theoretical underpinnings of copyright and knowledge production.

See you in the next post.

Some Excerpts from Prof. Jose Bellido’s Paper “Intellectual Property and the Question of the Archive”

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A few days ago, I wrote about my experience at the National Archives of India, and a peculiar feeling which I called “archival anxiety” — or arch-xiety, if you will. Today, I have something in a similar vein to share. But, this time, it’s not from my wandering through dusty documents, but from poring over a piece of writing.

So, I just finished reading an 11-pager, fascinating piece by Prof. Jose Bellido named Intellectual Property and the Question of the Archive from a 2017 open-access handbook edited by Irene Calboli and Maria Lillà Montagnani. And, as with much of Jose’s work, it’s brimming with sharp observations and research gaps waiting to be filled, or at least, explored. I would strongly encourage our readers to check, which demands and deserves a slow reading and reflection. If nothing else, you will come out with some exquisite sentences worth quoting in full and some valuable citations related to IP history.

Finally, before I share the excerpts, I must say something about him. Jose, in addition to being a very generous and supportive scholar, is a professor at the University of Kent and one of the finest scholars working on the history of IP today. You can find more of his work here — and if you haven’t dipped into it before, you really should.

Okay, that’s it for introduction. Below are a few excerpts from his piece.

In the introduction, he writes (footnotes omitted)-

“Classified documents, patent files, disclosures, trademark records, originals, copies, collection agencies, registries, bureaucracies, proceedings, intangible properties, and access (or not)— the stuff of intellectual property (IP) is deeply connected to the institution of the archive. From family to corporate archives, from local to national and diplomatic offices, the trajectories of the intangible can be traced through such paper trails and holdings. The question— ‘What is the point of copyright history?’— was the subject of an academic conference some years ago. The answer to that question was that the point of copyright history, which could be extended to IP history, is ‘evidently’ archival. The archive— often the product of time- consuming, painstaking, frustrating, expensive, and unassuming labour— with all its literal and metaphorical potential, is full of contingencies and hazards, a repository of hopes and documents frequently leaving a mark or scar on the subject. Not recommended for those in a rush, the archive is a slow and deliberate medium, requiring one to wait for the rare opportunity to capture the ‘phantom’ of IP. Such an intimate link to a nebulous subject matter situated between the past and the future initially made its custodians, the archivists, wary of copyright law.4 While the digital environment transformed earlier fears into risk assessments, the relationship between the archive and IP history remains crucial as it goes beyond specific terms and conditions.

One of the most interesting things about archival research is not what has been found here or there but how IP scholars have approached the question of the archive in different ways. Socio-legal, economic, cultural, anthropological, and legal historians have all dipped into archival records with diverse assumptions about IP— empirical, theoretical, or otherwise. While some immediately found archival challenges to their epistemic endeavours, others continued the search, blurring disciplinary boundaries and becoming less concerned about orthodoxy and convention than in how and to what extent different archival orders determine our historical research. This chapter explores how these varying approaches culminated in remarkable projects undertaken by different scholars in the history of IP. It highlights not just the importance of such undertakings but also their inherent limitations. The constraints of those projects are not seen as negative features but as a reflection of the elasticity of the archival function and its connection to the history of IP law; and this chapter considers both the ways of conducting archival research and the questions that might arise from such work.“

In conclusion, he notes

“The question of the archive and its relation to IP history has been approached differently by scholars, not only reflecting their personal research interests and agendas but also their diverse takes on the relationship between law and history. While some describe their work as having been influenced by different archives,40 others recall their archival encounters as the key to helping bring ‘[trademark] registrations to life’. What seems to unite these remarks is an overall sense of gratitude towards archivists and those who helped with the tracking down of sources. Seduced by the archival function, IP scholars have even started recording their own conversations on history. With that said, most archival work in IP scholarship still attempts to embody the ideal of positivism, that is, ‘merely to show what actually happened’. The problem with such an approach is that it obscures the archival function, representing the archive as a neutral and uncontentious historical tool. Even the most meticulous contextualization tends to ignore how its condition of possibility is conjured up in previously deposited archival productions. More to the point, this unquestioned historiographical manoeuvre often serves to fix a past, which is otherwise indeterminate. Precisely because of the capacity to open or close historical junctures, the archive remains significant not just as a repository of the past but as an enabling device to trace the coming into being of different explanatory narratives of IP law.Therefore, archival research allows us to problematize our taken- for- granted assumptions and the narratives that guide them. In so doing, the archive stands not only as a historical resource but as a way to reflect on the shifting operations of IP law and its different histories. It also makes us aware of the contingency of historically significant IP milestones— for example, how there was ‘nothing inevitable about the success of the Berne Convention, nor about the shape that it should necessarily take into the future’. For, as has been recently noted, the archive ‘is not simply a repository of the past. It is also the principle of formation of the past, the present and the future’.”

Hopefully, these excerpts will tempt you to dive into the whole piece. Who knows — you might just find a research thread worth pulling.

See you in the next post.