How fair use was born

The history of copyright law is a fascinating study.  Really, it is.  One truism about that history is that copyright protection (as a body of law distinct from the earlier privileges granted to printers) arose at the same time that romatic ideals of original authorship did.  The continued influence of that romantic, and highly fictionalized, view of authorship is evident in the ill-informed and self-serving comments of author Mark Halpern in this Wall Street Journal op-ed and in the new book he is flogging.  But I was reminded, by this blog post criticising Halpern from Copycense, of an article that really deepens and complicates the history of authorship, originality and copyright.  In “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” Oren Bracha argues that the romantic ideal of authorship was in a continuous tension with market forces and social values from the inception of the law and throughout its development in the US.  He mines this tension for rich veins of insight into the nature of originality, the “work” that copyright protects and the rules about who should own the rights created by copyright law.  It is in the c0ntext of his discussion of how the protected work was defined that I found a fascinating perspective on the origin of fair use.

It is hard to believe that in the mid-19th century a copyright holder did not have the right to authorize an abridgment or translation of a book, or to object to such unauthorized efforts.  Yet in 1847 Justice McLean held, in Story v. Holcombe, that an abridgment did not infringe the rights held in the original, even though he admitted that it was a market substitute for that original.  Six years later, Justice Grier found that a German translation of Uncle Tom’s Cabin was not an infringement of Harriet Beecher Stowe’s rights in her original novel (Stowe v. Thomas, 1853).  Both an abridgment and a translation are clearly derivative works under today’s law, the exclusive rights to which are reserved to the copyright holder (see our last post about a translation law suit in Argentina).  So what were these justices thinking?  As Bracha points out, there was a shift in progress from looking primarily at the new work’s “usefulness to the reading audience” to primarily protecting the market value of the original in all its potential forms.  These two cases are on the trailing edge of that shift; the last gasps of the older notion of allowing free adaptations when there was a clear social benefit.

The remarkable point, to me, is that the development of fair use occurred within this same transition.  As Bracha sees it, fair use was “a vehicle for the radical enlargement of the scope of copyright.”  Throughout the middle of the nineteenth century, the scope of copyright was dramatically expanding from a limited “printers” right to prevent near-verbatim reproductions to a full-blown notion of ownership over an “abstract intellectual essence” that could find express in a myriad of forms, all of which were under the control of the author.  Fair use, created by the same judges who were overseeing this expansion, became a substitute for all of the socially beneficial uses that were previously outside the scope of copyright.  Fair use is the bete noir of rights holders and copyright maximalist, yet Bracha argues effectively that it really developed in order to make judges more comfortable with a vast expansion of copyright’s scope, precisely to provide an economic windfall to rights holders.

Bracha offers a nice summation of the tension between economic protectionism and a social ideal of broad dissemination of knowledge and information that is, he says “inherently built into a modern copyright system.” As he phrases it, such a system “creates private exclusion power over information in the name of maximizing the free dissemination of information.”  Would we actually be better off, to ask a radical question, if rights holders did not have control over translations, as they did not in 1853?  Perhaps the students of that Argentinian professor that I wrote about last week would be.  And it does not seem that fair use would do those students or their professor any good at all, even if they were in the US.  It is hard to imagine a US judge today finding that fair use would permit an unauthorized translation even in a situation where no commercial translation was availabile.  So the addition I would make to Bracha’s fascinating history is this observation: the massive expansion of copyright’s scope and its term of protection has forced fair use to do work it was never intended to do, and it is no longer an adequate safeguard of social interests; perhaps, instead of comforting ourselves with the fiction that fair use is good enough, we need to go back and look critically at the scope of copyright itself.