Copyhype

Nowadays author’s rights are among the universally recognized human rights.

One would be forgiven for thinking the above quote was made recently and not, as it actually was, 160 years ago. Recent months have brought increased attention to copyright law and its reform. What’s most troubling about some of these calls for reform have been their mischaracterization of the nature of copyright — as, say, government regulation — and grossly inaccurate historical claims concerning the origins and development of the law. Because many of these recent articles come from the US, the focus has been on the copyright law of the US. But the development of copyright laws in countries outside the US should not be neglected.

But one example of this comes from mid-nineteenth century Europe. The author of the above quote, Johann Kaspar Bluntschli (1808—1881), was an influential Swiss jurist. ¹See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884). His 1853 work, Deutsches Privatrecht, catalogs the private law of Germany at the time. The sixth chapter is devoted to the law of author’s rights, roughly equivalent to copyright law. At the time, laws governing author’s rights in Germany were roughly only a decade old.

According to Primary Sources on Copyright, “Bluntschli’s approach to author’s rights is regarded as one of the main sources of the personalistic view on intellectual property which developed within the German tradition.” The full text of the chapter along with an English translation can be found at the Primary Sources site. ²Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org). Philosophers such as Kant and Hegel also were indispensable to developing this justification for copyright law, sometimes considered the Continental approach to copyright, distinguishable from the Anglo-American’s Lockean and utilitarian approach. ³See, for example, Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work? 12 Fordham Intellectual Property, Media, and Entertainment Law Journal 1203 (2002). However, the two traditions are not as divergent as sometimes made out to be, ⁴Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). and less so since the globalization of copyright law, a process that began in earnest with the Berne Convention in 1886. For a comprehensive account of copyright that ties together a Lockean and Kantian approach, I strongly recommend Robert Merges 2011 Justifying Intellectual Property (a book I’m currently reading).

The Development of Author Rights

Bluntschli begins his chapter on author’s rights with their history and nature. He divides this history into four stages of development.

In the earliest stage, these rights were conceived as a “privilege… conferred in individual cases.” At this stage, “the need for protection of these rights was felt, but there was no understanding as yet of their nature.”

This privilege evolved into the next stage, that of a “publishing right.” Bluntschli writes, “However, this was a most unsatisfactory approach because it failed to take into account that the authorised publisher and the unauthorised reprinter have a different right only by virtue of their different relationship to the author, and that a monopoly granted to the former without consideration for the author, merely for the sake of the priority of the commercial enterprise, lacks any proper foundation.”

From here, the concept of “intellectual or literary ownership” came about. Bluntschli notes that this point of view has been championed by writers, but finds it unsatisfactory as a legal concept.

For jurisprudence ownership can be nothing else but a property right, that is, the complete possession exerted by individual persons over physical objects. An author’s right to his work is, however, not of this kind, since the work is something altogether quite different from the manuscript and the printed copies of the book. The latter are indeed objects which fall under the ownership of individual persons, but the work as an intellectual product is attached neither to a particular manuscript, nor to a particular book. It can also exist without having been written or printed, namely, as a spoken lecture or a speech. The author’s right is, therefore, not affected in the least if, say, his manuscript has been destroyed and all copies of the printed book have come into the hands of private owners. As an intellectual product his work has an essentially unphysical character. The living word is its truest expression.

Moreover, the author’s right is also different from ownership in the sense that the former always refers back to the author as a specific individual person, from which it can never dissociate itself completely, as long as it exists as such, whereas ownership is not concerned with the individual person of the owner. Finally, the direction, and consequently the content, of an author’s right is different from the direction and content of ownership. The owner wants to have the thing for himself; an author, on the contrary, wants to communicate his work to the public, as long as it can be done in an ordered manner and his authorship can be respected.

And so, we reach the fourth stage. Citing both the philosopher Kant and French jurist Renouard, Bluntschli endorses a conception of the author’s right “not as a property right, but, rather, as a personal right of the author, as the right of the originator.”

The Nature of Author Rights

As noted above, observers generally mark a divide between this Continental “personalty” foundation of copyright and the Anglo-American “property” foundation, and at first glance, Bluntschli’s approach seems to confirm this divide. However, I think these two approaches, especially during the time frame Bluntschli was writing about, have more similarities than differences.

The personal rights approach can be seen as a more robust conception of “property” as developed by British, and later American, jurists during the 17th and 18th centuries. Such jurists were open to a broader definition of property than what we often think of today. For our purposes, this broader definition was explained most notably by James Madison in his 1792 essay, On Property. In it, the “Father of the Constitution” writes that property encompasses two meanings:

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man’s land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Law professor Laura Underkuffler writes that this broader conception of property was fully present during the Founding era. ⁵On Property: An Essay, 100 Yale Law Journal 127 (1990). “The term ‘property’ or ‘propriety’ was widely used in the seventeenth century to include constitutional liberties as well as other matters.” John Locke’s writings on property embraced this wider meaning of property as well. Underkuffler states that this historically broad definition of property

was tied to the notion of human beings as masters of themselves; it involved the maintenance of personal integrity in both a physical and nonphysical sense. It was intimately related to the development of the human personality, to the exercise of independent thought and creative powers. It was universal and reciprocal: it was that to which we, as human beings, “attach a value and have a right, and which leaves everyone else to the like advantage.”

In this sense, one can easily see the similarities to the personalty rights discussed by Bluntschli. Both reflect a deep recognition of personal autonomy and dignity; the differences, at least in the broad strokes, are merely semantic.

Bluntschli next lucidly describes the nature of author’s rights. He first emphasizes that the intellectual product created by the work is not physical but a “revelation and expression of his personal intellect.” There is a “natural relationship” between author and work, and it is by “natural right that this relationship be respected.” This right includes not only the right to prevent the work from initial publication, but also the right to publish and determine “the manner and time of its publication and reproduction.” Thus, writes Bluntschli:

even if the reprinting of a work by a third person, without the authorisation of its author, were not to cause financial loss to the latter and were perhaps even to secure him profits, this would still be a violation of the author’s rights, for no one has the right to make the author speak to the public against his will, that is, to expose a part of his personality, his name, and his author’s honour to the community. This can cause damage to the author’s position and reputation of far greater import than that of a missed royalty.

Compare this to US courts, which have repeatedly recognized copyright’s role in protecting the First Amendment’s “right not to speak.” ⁶Salinger v Colting, 607 F.3d 68, 81 (2nd Cir. 2010); see also Harper & Row, Publishers v Nation Enterprises, 471 US 539, 559 (1985). I’ve written previously about recognition of US courts of exactly the type of personal rights that Bluntschli discusses here, see Photos are worth more than the paper they’re printed on.

Of particular note is Bluntschli’s discussion of the duration of author’s rights. Recent criticisms of copyright show trouble understanding how the drafters of the US Copyright Clause conceived of author rights as property rights while constitutionally limiting their duration. Though Bluntschli is approaching the concept from a slightly different perspective, his discussion of why rights in expressive works do not last forever is both cohesive and illuminating:

Ownership lasts as long as the object which is owned exists. The author’s right, however, does not last as long as the work is in existence. At first consideration for the author’s person is certainly paramount, but with the passing of time the work falls entirely to the community and the author’s right expires.

Now, the principle is generally recognized that the author’s right in any case lasts for as long as as the author is still alive. This means that he stays in control of his communications to the public, insofar as this is still possible. However, modern jurisprudence extends this right to beyond his death and does so for good reason. For if author’s rights were restricted to the author’s lifetime, as personal rights usually are, their duration would be completely uncertain and because of this it would be much harder for the author to secure, by contract with a publisher, the property value to which he is entitled. Moreover, his family would be left out of consideration in the case of the author’s premature death, which is all the more unjust given that the public, whom the latter has done a service by his work, gains in [spiritual] enrichment, whereas the author’s family, which had probably been uppermost in his concerns, would suffer an additional loss. For this reason the author’s person is honoured in his work also beyond his death in the sense that his family (i.e. his successors) are guaranteed the benefit of the author’s rights for a certain period: namely, for as long as the author’s person is still fresh in people’s memory and the author is thereby effectively still alive in the next generation (i.e. that of his successors). It is this idea which underlies the legally specified period of thirty years after an author’s death.

Note that at the time of writing, many countries with copyright laws outside of the US had adopted a “life plus” duration of protection. And in fact, within a century, all countries save for the US and the Philippines (formerly under the control of the US) protected copyright for the life of the author plus a set period of years. ⁷Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961). The US would not adopt a “life plus” term until the Copyright Act of 1976, long after this had become the international norm.

The remainder of the chapter on author’s rights involves a general discussion of the law of author’s rights. Though I won’t go into more discussion about it, it is worth a read — it is both interesting in and of itself and remarkable in how closely the law described by Bluntschli parallels modern copyright doctrines. This provides just one reason why the 19th century jurist’s writings on author rights remain relevant today. Contemporary efforts to reform copyright law are done a disservice when they rely, as they often do, on revisionist history and an impoverished conception of author rights.