Kathy Bowrey is a Professor of Law at the University of New South Wales, Australia. She is also an IP Osgoode Research Affiliate.
Understanding copyright history requires an appreciation of legal history. It requires knowledge of the origins and debates around the ‘science of law’ and a sensitivity to the shifting politics of the courts and relations with Parliament from the 17th to the 19th century. Saying this is probably not welcome news to many IP Osgoode readers. It goes against accepted IP intuitions. After all, copyright is relatively modern. It is based in statute. IP policy issues and intangible rights are difficult enough without considering that old dry, arcane stuff about the time before modern law- before reliable case records, stare decis, scientific approaches to legal reasoning, modern legislation and treatises that defined and synthesised the principles of the legal categories.
But in reviewing recent writings which draw upon historical claims about IP (Kathy Bowrey and Natalie Fowell, ‘Digging Up Fragments and Building IP Franchises’ (2009) Sydney Law Review Vol 31: 185) I have come to the conclusion that if we ignore these layers of complexity, the historical claims made about the meaning of property rights, copyright principles and policy rationales, are bound to mislead. If we do not fully come to grips with the significance of the mess and confusion of legal history and associated jurisprudence tied up with the emergence of copyright as a legal category, we are in real danger of overstating what was, and what is, settled about the nature of copyright today.
Copyright histories, often revisionist in character, have become more commonplace in the past few years. We have seen James Boyle redeployment of enclosure metaphor, legitimating intellectual property rights only when they serve innovation policy and productivity ends. Political economists Christopher May and Susan Sell have a ‘global governance’ thesis of IP history, that tracks the development of IPRS into a global institution, and hopes to open up political debate about the interests served by global settlements of intellectual property rights by institutions such as WIPO and TRIPS today. Ronan Deazley has contributed a great deal to our understanding of the early origins of literary property, linking literary property rights with serving the common good. While on the other hand, Jane Ginsburg has reminded us of the enduring presence of authorial rights in the law, notwithstanding decisions such as Donaldson v Beckett (1774) 4 Burr 2408; 98 ER 257 not supporting the authorial property as a common law right.
Each of these writers share an interest in telling global copyright histories that directly relate to contemporary political concerns about law, the information economy and neo-liberalism. They are seeking to make history relevant. But when history is used to reflect upon contemporary copyright dramas, the scholarship risks identifying past and present legal outcomes with winners and losers, both public and private. In the process more complex jurisprudential questions about the organisation of legal power and the role of law in supporting commodification have been overlooked.
There are far more uncertainties, competing ideas and contradictions about the evolution of copyright as a legal category than perhaps we want to take on board. And our failure to tread cautiously in reading and writing history is what encourages an overly ideological, narrow and prescriptive reading of the law today. It also leads us to overstate the power of legislative changes to direct social and legal outcomes over the course of time.
