Copyright history in review: The scholarly turn away from copyright for books

This week sees the close of the Call for Papers for the annual Conference of the Society of the History of Authorship, Reading and Publishing (‘SHARP’) – ‘Moving Texts: From Discovery to Delivery’ (26-30 July 2021) – which we publicised back in December 2020, and which will include an associated copyright history ‘Research Lab’. Whereas SHARP’s focus is the history of the book, which undoubtedly remains an important subject for copyright history, in a series of recently published reviews, I have charted a change in focus in recent copyright history scholarship. 2018 and 2019 saw the publication of a number of copyright history monographs, which turn away from copyright protection for books: the first in-depth and longitudinal accounts of copyright history concerning visual art, news and drama. This blog outlines the context for these scholarly developments and provides a brief overview of their significance for law and the humanities. 

Copyright history is today an active scholarly field. This is often traced back to the work of pioneering scholars of law and literature in the 1980s and 1990s (such as Peter Jaszi, Marta Woodmansee and Mark Rose) who, inspired by Michel Foucault’s What is an Author? (1969), exchanged views about the historicity of ‘authorship’ and its implications for copyright law. These law and literature scholars broadened a field which had previously been the province of publishing historians – principally John Feather. Their work was soon followed by accounts focussed on legal doctrine by legal scholars, led by the monograph The Making of Modern Intellectual Property Law (CUP, 1999) by Brad Sherman and Lionel Bently. In tracing the history of the categories and concepts which intellectual property lawyers today take as givens, Sherman and Bently established copyright history as a critical terrain for legal scholarship, directly challenging the then prevailing orthodoxy of the irrelevance of the past to thinking about the present, and opened the way for the work of a new generation of legal scholars.  

Yet, the new scholarly landmarks which set the broad parameters for thinking about copyright history, such as copyright and internationalisation (Seville, The Internationalisation of Copyright Law, 2006) and the relationship between copyright and the public interest (Deazley, On the Origin of the Right to Copy, 2004; Alexander, Copyright Law and the Public Interest in the Nineteenth Century, 2010; Gomez-Arostegui, ‘Copyright at Common Law in 1774’, 2014, Connecticut Law Review, 263) all concerned, entirely or at least primarily, the laws protecting literature and books. It was not until very recently – in 2018 and 2019 – that the first monograph-length studies of copyright history concerning other subject matter were published: visual art, drama and news.

The first title in this recent wave of scholarship was my own book, Art and Modern Copyright: The Contested Image, concerning nineteenth century protection for paintings, drawings and photographs in the UK. This was closely followed by the publication of three further important monographs: Becoming Property: Art, Theory and Law in Early Modern France by Katie Scott (2018, Yale University Press, copyright and the visual arts in France during the ancien regime to the early 1800s), Copyright and the Value of Performance 1770-1911 by Derek Miller (2018, CUP, the history of dramatic copyright in the US and UK) and Who Owns the News: A History of Copyright by Will Slauter (2019, Stanford University Press, copyright and news in the UK and USA from the 16th to the 20th centuries).  

In a series of book reviews, for The Burlington Magazine, Law and History Review, as well as a longer review essay for Law, Culture and the Humanities, I assess the significance of these three works by Scott, Miller and Slauter, for copyright history and the humanities more generally. All the titles in this recent wave of scholarship are rigorous and innovative in the range of original archival material on which they draw. They are also broad in their interdisciplinarity, reaching beyond the remit of earlier law and literature work (which focussed on the legal concept of ‘authorship’ and the influence of Romanticism) to encompass the relationship between other legal concepts and other aesthetic ideas.

Collectively, these monographs demonstrate that shifting the focus to different subject matter – visual art, drama and news – can draw out previously unappreciated perspectives on copyright history, whether in terms of the perception of the problems which copyright is to address and nature of appropriate legal solutions, the relation between copyright and aesthetics and/or real-world cultural or business practices, and the provision of fresh ideas about more basic theoretical questions – such as the nature of property in intangibles or more fundamentally what copyright is and who it should serve. Moreover, all these studies speak to the present day, for example the protection of news in more recent times (Slauter), concerns about the proliferation of infringement (Scott), and the relation of law and current cultural practices (Miller), thereby touching also on issues of interest to policy makers, judges, and practising lawyers. Overall, this scholarship points to the broad reach of copyright history as a discipline and its richness as a terrain for future study. 

Those interested in reading more about these scholarly developments can read the reviews in full in The Burlington Magazine (May 2020, p.460, reviewing Scott’s Becoming Property), Law and History Review (forthcoming, February 2021, Vol. 39, No.1, reviewing Slauter Who Owns the News) and Law, Culture and the Humanities (2020, 16(3), p.504, review essay connecting Scott’s Becoming Property and Miller’s Copyright and the Value of Performance).  

An open access version of the three reviews will be available as a CREATe Working Paper in March.

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