The Copyright Wars The Copyright Wars Three CenTuries of Trans-aTlanTiC BaTTle Peter Baldwin P r i n C e T o n u n i v e r s i T y P r e s s P r i n C e T o n a n d o x f o r d Copyright © 2014 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock, Oxfordshire OX20 1TW press.princeton.edu Jacket design by Leslie Flis All Rights Reserved Library of Congress Cataloging-in-Publication Data Baldwin, Peter, 1956– author. The copyright wars : three centuries of trans-Atlantic battle / Peter Baldwin. pages cm Includes bibliographical references and index. ISBN 978-0-691-16182-2 (alk. paper) 1. Copyright—Europe—History. 2. Copyright—United States—History. I. Title. K1420.5.B359 2014 346.404 ′ 82–dc23 2013049603 British Library Cataloging-in- Publication Data is available This book has been composed in Sabon Next LT Pro and Scala Sans OT display Printed on acid-free paper. ∞ Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 The Copyright Wars by Peter Baldwin is made available under to CC license CC BY-NC-ND 4.0 https://creativecommons.org/licenses/by-nc-nd/4.0/ For Tom Jemima Daniel Sam Sigi Lucy Ben the next generation of my unexpected family Contents Introduction: The Agon of Author and Audience 1 1. The Battle between Anglo-American Copyright and European Authors’ Rights 14 2. From Royal Privilege to Literary Property: A Common Start to Copyright in the Eighteenth Century 53 3. The Ways Part: Copyright and Authors’ Rights in the Nineteenth Century 82 4. Continental Drift: Europe Moves from Property to Personality at the Turn of the Century 126 5. The Strange Birth of Moral Rights in Fascist Europe 163 6. The Postwar Apotheosis of Authors’ Rights 199 7. America Turns European: The Battle of the Booksellers Redux in the 1990s 262 8. The Rise of the Digital Public: The Copyright Wars Continue in the New Millennium 318 Conclusion: Reclaiming the Spirit of Copyright 383 Acknowledgments 411 Notes 413 Index 513 The Copyright Wars Introduction THE AGON OF AUTHOR AND AUDIENCE In 1948 several Soviet composers, including Dmitri Shostakovich, objected to the use of their music in an American spy film, The Iron Curtain , that was distinctly anti- Communist. These Soviet compos- ers understandably feared the gulag for appearing in Hollywood’s first Cold War effort. 1 Though their music was unchanged, they pro- tested its political use. When Shostakovich sued in the United States, he failed. The works were in the public domain, thus freely available for anyone’s use, the composer had been credited, the film did not claim that he agreed with its views, and the music had not been dis- torted. How, the court asked, had the artist’s rights been violated? “Is the standard to be good taste, artistic worth, political beliefs, moral concepts, or what is it to be?” 2 But in France a court ascertained “moral damage.” The film was banned and the composers were awarded damages. In 1988 the director John Huston sued to prevent the Asphalt Jun- gle , which he had filmed in 1950 in black and white, from being shown on television in a colorized version. In the United States, ac- cording to the work-for-hire doctrine, the film studio—and not the director it employs—is the author. But in France, after Huston’s death that year, his children and his screenwriter invoked the con- tinuing aesthetic claims, or “moral rights,” that remain with authors in French law even after they have sold their works. Over the next six years, five different French courts first prevented screening, then al- lowed the film to be broadcast only if the director’s objections were 2 Introduction publicized, and finally levied hefty fines on Turner Entertainment, the errant colorizers. 3 Prince Michael of Greece, related through his mother to a family that still pretends to the long-abolished French throne, writes histo- ries and historical novels. La nuit du sérail (1982) was ghostwritten with Anne Bragance, who signed a work-for-hire contract under New York law, renouncing her moral rights, including that of being named as a coauthor. 4 When sales of the book took off, however, Bragance sought not only a more generous slice of the proceeds but also to be named as coauthor—and in typeface larger than the puta- tive author. Since in French law the author’s moral rights cannot be alienated, a French court set aside her contractual obligations. She won a place next to the prince on the title page of French editions, though not more of the royalties, nor any font-size favoritism. 5 Samuel Beckett gave famously precise stage directions. He ob- jected, for example, when directors performed his plays with women, non-white casts, or incidental music. 6 He sued the American Reper- tory Theater in Cambridge for playing Endgame in an abandoned Boston subway station and the Comedie Française for doing so on a set bathed in pink light. 7 Female Vladimirs and Estragons were pur- sued in Paris, Holland, Nashville, and Pontedera. Beckett also quib- bled about stagings of Godot in Dublin, London, Salzburg, Berlin, and Miami. 8 In Avignon in 1991, Godot was allowed a female cast—as long as the estate’s letter of objection was read aloud at each perfor- mance. 9 “Women don’t have prostates,” Beckett insisted, alluding to Vladimir’s constant urination. 10 In Nashville, Avignon, and Pont- edera, the theaters cravenly argued that, though played by women, the characters remained male. 11 In Australia, with the use of music at issue, the director pushed back more robustly, complaining that “in coming here with its narrow prescriptions, its dead controlling hand, the Beckett estate seems to me to be the enemy of art.” 12 None of these events was earth shattering. Yet each speaks to a view of the position of authors in society—their rights in their works, their relationship to their interpreters, performers, and audi- ences, and their power to enforce their claims. As Congress consid- ered giving American authors similar claims in 1987, Sydney Pol- lack, director of Tootsie , Out of Africa , and other popular movies, The Agon of Author and Audience 3 testified that “this is a debate about the dignity with which society regards artists and the value society places on the integrity of artis- tic endeavors.” 13 More generally, such disputes pose the basic dilemma of intellec- tual property. Intellectual works are both the property of their cre- ators and society’s cultural patrimony. How to resolve this inherent tension? The author seeks fame, recognition, and reward. The audi- ence wants easy, cheap, and quick access to a cultural cornucopia worth treasuring. Too little reward and authors are discouraged. Kept from its culture by too high prices or overly narrow access, the audience is stunted. The pas de trois among author, audience, and the disseminators who mediate between the two is delicate. How to strike the right balance between rewarding authors to stay produc- tive yet also letting in the audience, whose cultural engagement is, after all, the authors’ presumed goal? The interests have to be weighed against each other. But whether the angle has tilted in the authors’ or the audience’s favor has varied, both over the course of copyright’s development and among nations. These anecdotes illustrate two broader points. First, seen historically, from the eighteenth century to the present, rights holders—whether authors or disseminators—have won an ever-stronger stake in their works. In certain nations some claims remain with the author and his estate perpetually. But in all countries rights have been continu- ally extended on their owners’ behalf. The first British (1710) and American (1790) copyright laws gave authors rights over verbatim copies of their writings for fourteen years after publication. As of 1993 in the European Union and 1998 in the United States, that had expanded to seventy years after the author’s death, not only for the primary work but also for all manner of other works derived from it. Assuming that authors live the same seventy-nine years as the av- erage American, they, their heirs and—most often—their assignees now generally own works for well over a century. Over the past three centuries the single most common complaint voiced by authors in defense of their prerogatives has been the al- leged contrast between how conventional property belongs to its 4 Introduction owners forever while works of the mind are the author’s and his heirs’ for only a limited time before they join the public domain, free for all to use. Why, countless authors have demanded to know, do we not own our works perpetually, able to pass them to our de- scendants, just as others can with their houses, factories, or farms? 14 But this is authorial bellyaching. Intellectual property has in fact come to be treated more favorably than its conventional cousins, es- pecially real property. First and foremost, unlike real estate the value of a copyright is not taxed. 15 California (to take just one example) assesses annual property taxes at 1 percent of sales prices. The state thus takes your house, or at least its cash value, once every century. 16 In the European Union and the United States, the author’s estate loses the work to the public domain seventy years after death. Ex- cepting the occasional modern Mozart, dead at thirty-five, authors thus “own” their works for longer than they do their houses. In the nineteenth century it was, in fact, suggested as a reasonable trade- off that, if literary property were granted perpetual protection, as many demanded, it should also be taxed. 17 But since it is not, it is hard to spot why its truncated protection is unfair. By contrast, it is certainly easy to see the social benefits of open access and an expansive public domain. Not only does copyright today last a very long time, it is now also granted much more easily, indeed automatically. The first copyright laws required authors to jump burdensome bureaucratic hoops to assert their claims: application, registration, deposit, and the like. Yet, as of 1908, all member states of the first international copyright union, the Berne Convention, were obliged to grant copyright with- out any formalities whatsoever. Every scribble, doodle, and bathtub aria was thus a protected work as of its creation. The shopping list on the fridge is as copyrighted as Dan Brown’s latest blockbuster. Previously, all works used to be born into the public domain, except for those few someone considered worth the trouble of protecting. Today every possible creation—however trivial—is legally protected as its creator’s private property. Nor are we talking only of money. For the last three centuries au- thors have increasingly been given control over all conceivable forms of their works. In the eighteenth century neither translations The Agon of Author and Audience 5 nor abridgments, nor most other derivative uses of works, infringed. A translation, for example, was not seen as the same work, nor— thanks to the language difference—as competing in the same mar- ket. Therefore, it was of no concern to the author. Abridgments were considered socially beneficial, able to enlighten more efficiently than lengthy originals. Authors were not thought harmed when others shortened their works. In the meantime authors have gained control over the broadest possible panoply of different works, as well as largely all derivative uses thereof. In the words of one witness before the Royal Copyright Commission in 1878, authors were now given “every advantage which can possibly be derived from that work of art, even indirectly and by independent exercise of ability.” 18 Throughout the nineteenth century German composers could freely set poems to music. 19 In 1965, however, the poets’ lobby prevailed, ending the composers’ right to accompany their verse musically as they pleased, reprinting their texts along with the music. 20 That alone is perhaps not to blame for the decline of Lieder , the once archetypical German musi- cal art form. But today any would-be Schubert has to fight with all the other composers who already have rights to Goethe’s Erlkönig and negotiate with Wilhelm Müller, author of Die schöne Müllerin and Die Winterreise In aesthetic terms, too, American and especially European au- thors have received ever-greater powers over the past two centuries. They may decide how their works appear, whether others may make use of them for derivative creations, and if so, under what circum- stances. They can prevent changes they do not like, and in some na- tions they can withdraw works they no longer agree with. In certain cases such powers of aesthetic control last perpetually. Whether for- ever or only seventy years postmortem, authors and their estates have not been shy in locking down what was permissible. Beckett and his heirs prevent women from playing Godot . The Gershwin es- tate specifies that Porgy and Bess be played only by blacks. Mean- while, in 1954 the French banned Carmen Jones , the Otto Preminger filming of Carmen , since Bizet’s heirs found its setting among black Americans unworthy of the master. 21 And a century and a half after its publication in 1862, Victor Hugo’s great-great-grandchildren for 6 Introduction years kept the French justice system in knots all the way up to the Supreme Court, pondering whether sequels to Les Misérables were permissible. The 1913 statue of the Little Mermaid by Edward Eriksen is among Copenhagen’s biggest tourist attractions. It prettily embod- ies the main character of Hans Christian Andersen’s fairy tale and is helped too by its picturesque location in the harbor. That has not tempered the sculptor’s heirs’ pursuit of their interests. They have brought or threatened suit against cities that presumed to erect their own variants. Not coincidentally they offer authorized replicas ($101,741 for the five-foot version). 22 And they have kept their great- grandfather’s statue under firm aesthetic control. In 2008 they ob- jected to the Scandinavian artist duo Elmgreen and Dragset’s When a Country Falls in Love with Itself , which placed a mirror in front of the mermaid. Rather than staring wistfully out to sea after her lost prince, she now posed before the tourist hordes, admiring her own reflection. 23 Perhaps the most remarkable aspect of this vast expansion of au- thors’ and rights holders’ claims to their intellectual property is that it reversed the course followed at much the same time for conven- tional forms of property. Regarded suspiciously as the outcome of humanity’s fall from grace by medieval theologians, property was elevated to the status of a human right during the Enlightenment. 24 The right of property was defined in 1765 by the great British jurist William Blackstone as “that sole and despotic dominion” exerted by owners over their belongings “in total exclusion of the right of any other individual in the universe.” 25 In 1804 the Napoleonic Code em- bodied this view in statute, describing property as “the right of en- joying and disposing of things in the most absolute manner.” 26 Despite such bravado, over the following two centuries European, British, and American law leached away at the pretentions to abso- lute dominion entertained by the owners of conventional property. Everywhere property has been ever more subjected to restrictions imposed by the state as the ultimate regulator. From nuisance laws to rent regulation, from zoning codes to health-and- safety rules, from taxation to outright takings, conventional property—the state has made clear—is possessed on society’s premises and only insofar The Agon of Author and Audience 7 as private ownership is compatible with broader social objectives. The social determinants of private property became ever more prominent. For intellectual property, in contrast, developments went in the opposite direction. Owners—whether authors themselves or their assignees—gained ever-firmer control over their works. Their owner- ship not only approximated that of conventional property, in many respects it exceeded it. In part, such unleashing of the claims staked by owners of intangibles followed developments in the history of property more generally. Land was the ultimate source of power and prestige in the Middle Ages. But the French Revolution’s expropria- tions demonstrated that, as immovable, it had nowhere to hide and was vulnerable to changing political circumstances. For a while urban property supplanted it in importance as growing cities con- centrated wealth in the hands of a new landlord bourgeoisie. But as new democratic governments—facing housing shortages early in the twentieth century—responded to their voters and imposed rent moratoria and controls and otherwise restricted rights, urban prop- erty owners too discovered the limits of their free control. 27 Instead, intangible forms of property became the preferred invest- ment. Because he appreciated their flexibility, John Wemmick, the bill collector in Dickens’ Great Expectations , was obsessed with “por- table property,” small objects of value easily convertible to cash. In- tangible property took such advantages further. Government debt has been marketed since the late thirteenth century, nor are bonds, stocks, securities, and other financial instruments recent inventions. Yet their importance has mushroomed in recent centuries compared to real property. Both more liquid and fungible—“more fluid than water and less steady than the air,” as the German poet Heinrich Heine said—they were also harder for governments to clamp down on. 28 In our own day, with the globalization of financial markets, capital’s transnational mobility and its outmaneuvering of the tax- man has become a leitmotif. The growing heft of intellectual property is thus part of a larger secular shift from ownership of immovables to movables and from tangibles to intangibles. Intellectual and other immaterial property has become an increasingly dominant element of modern econo- 8 Introduction mies. Already in 1863 the Scottish economist Henry Dunning Mac- leod classified most wealth as incorporeal: the franchises of ferry, railway, telegraph and telephone companies, as well as patents, trade- marks, goodwill, and annuities. 29 In one Pennsylvania county intan- gible assets in probated estates grew from 10 percent in the colonial period to over two-thirds by the end of the nineteenth century. 30 In tandem, the concept of property expanded enormously from land and movables to encompass almost everything under the sun, in- cluding such entirely dematerialized “things” as business goodwill, trade secrets, and personality. 31 Property is “everything which has ex- changeable value,” Supreme Court Justice Noah H. Swayne declared already in 1873. 32 Today, over 40 percent of the market value of Amer- ican companies is intellectual capital. 33 However much some may still strike the pose of misunderstood Romantic artists in their garrets, authors have become economically and socially more powerful than ever before. What used to be a call- ing, pursued only by those motivated by more than material reward, has become a profession like any other. Most authors are today sala- ried employees, not the independent intellectual entrepreneurs for whom the copyright and patent systems were first designed. Their rights are usually surrendered to corporate employers in return for wages, health insurance, vacation time, and pensions. Nonetheless, there are more of them than ever before, and their output underpins modern economies. Yet that is only half the story. The second point our starting anec- dotes illustrate is that, while intellectual property has become ever more economically important across the globe, it has also been treated differently among nations. Sticking to those aspects of intel- lectual property dealt with by copyright, authors’ rights over their works have—quite simply—been stronger in some nations than in others. In particular, authors have enjoyed a stronger legal position in continental Europe than in the Anglophone world. Britain and America’s copyright systems draw clear distinctions between au- thors and rights owners. The two may overlap. But once the author has assigned rights to his work, they usually diverge. When Anglo- The Agon of Author and Audience 9 phone authors sell rights to publishers, producers, and other dissem- inators, they lose almost all control, while the new owners are largely free to do as they please. Work-for-hire, a core doctrine of Anglo- American copyright, transforms the employer into not only the owner but also the legal author of his employees’ work. Continental Europe, in contrast, has respected the personal con- nection between author and work even after economic rights were alienated. What are known as authors’ “moral rights” continue their control over works even after sale, ensuring that they are not altered against their wishes. In Europe, more than in the Anglophone world, authors have thus retained aesthetic control even as they surrender economic rights. Though they may no longer be rights holders, they retain sway as authors. Two quite different approaches—Anglo- American copyright and continental European authors’ rights— thus have voiced divergent views of intellectual property. Copyright was intended to give authors sufficient encouragement to remain fruitful, thus enriching the public domain and serving useful social functions—to enlighten, entertain, and educate. In authors’ rights systems, in contrast, the creator was the focus, not the public do- main nor the audience. Thanks to his investment of labor and cre- ativity, the author owned his works like other forms of property. To guarantee his just desserts when he sold them in the marketplace was the point of the Continental approach. How have the owners of intellectual property massively enhanced their rights over the past three centuries? And how did trans-Atlantic differences arise over the claims that authors could stake to their works and the access that audiences could demand to their patri- mony? Those are the questions this book asks. As we will see, the basic dispute between these two approaches to intellectual prop- erty—one giving priority to authors, the other to their audience— has been with us for almost three centuries and continues into the digital age. Positions first adopted already in the eighteenth century remain surprisingly unchanged today. When authors were first granted statutory rights to their works three centuries ago, both the civil law nations of France and Ger-