What is the relevance of the past to the law’s future direction? Specifically, can legal history be a ‘tool’ of law reform today? These questions formed the focus of a recent Modern Law Review Seminar held in April 2022 at The National Archives, London and convened by Dr Charlotte Smith, University of Reading, an editor of the Journal of Legal History. The Seminar comprised presentations from eight specialists in legal history, each surveying the relevance of legal history to law reform in their field of expertise. The programme can be found here.
The Seminar included a presentation on copyright history by CREATe’s Dr Elena Cooper. CREATe, an institution expressly founded to look to the future of copyright, has always included copyright history as one strand of its research, and this institutional context informed Dr Cooper’s presentation. Developing Prof. Sir John Baker’s idea of a ‘comparative historicist’ perspective – ‘comparative’ work between past and present – Dr Cooper gave examples of the value of ‘looking backwards before looking forwards’. Dr Cooper discussed CREATe’s recent work on reversion rights published in the European Intellectual Property Review in which an historical perspective is put into conversation with contemporary comparative work (by Dr Ula Furgal) and current law reform perspectives (by Prof. Martin Kretschmer and Prof. Rebecca Giblin). Dr Cooper also discussed the ways in which legal history sometimes takes us to different ideas about copyright, some of which may seem surprising to us today, which in turn can be a ‘destabilising influence’ (see further Dr Cooper’s monograph Art and Modern Copyright CUP, 2018).
What other perspectives, on the relevance of legal history, were discussed at the Seminar?
Prof. Rebecca Probert, University of Exeter, a family law expert who has advised on law reform in recent times, spoke about the diverse contribution of legal history to the reform of marriage law, both in nineteenth century and today: sometimes looking to the past is a means of preventing reform, especially as marriage is often related to religious and traditional values, but there have been other contexts in which legal history has been used progressively, to support change, where a past context is no longer seen as relevant.
Prof. Chantal Stebbings, University of Exeter, spoke about tax law: as fiscal reform is often rooted in tradition, there have been numerous instances in which the historical basis of tax law acted as a barrier to law reform. Accordingly, change is often achieved through ‘dislocation’ –where the practice of how the law is applied significantly diverges from statutory tax law – which, argued Prof. Stebbings, is a dangerous alternative to law reform, both as it is inaccessible and as inhibits legal coherence. The discussion contrasted ‘dislocation’ in tax law – where principles were settled, ‘immovable and static’ – to areas of law, like copyright, which were in the process of crystallising in the nineteenth century (see Sherman and Bently ‘The Making of Modern Intellectual Property Law’, CUP, 1999). For example, referring to Art and Modern Copyright (Chapter 5), Dr. Cooper showed how the practice of treating photographic copyright as akin to (what we would today term) a publicity right (in trade interpretations of section 1 of the Fine Arts Copyright Act 1862, supported by magistrate court rulings) fed into more fluid late nineteenth century legislative debates about what copyright should be about.
Dr. Charlotte Smith spoke about the reform of clergy discipline in ecclesiastical law. Today law makers do not refer to legal history, as clergy discipline seeks to reflect modern values of professional self-regulation. By contrast, in the mid-to late nineteenth century, legal history was frequently referred to by parliamentary enquiries, but this largely stemmed from a single historical account by William Stubbs. While Stubbs was an historian – Regius Professor of Modern History at Oxford – he was also a senior member of the Church of England (as the Anglican Bishop of Oxford) and his account, which was not rooted in primary research, promoted a particular view of the Church of England’s spiritual authority and silenced a counter-narrative. The discussion drew out the importance of historical accuracy and the dangers of history being constructed as a polemic supporting a particular viewpoint. The latter danger is, of course, one very familiar to those working in the field of copyright law and reminds us of the importance of impartial work with primary sources.
Dr David Foster, UCL, turned to case law on discretionary trusts, exploring how the judgments of the House of Lords in McPhail v Doulton  AC 424, were rooted in a specific legal historical understanding of equitable discretion from an earlier point in time, which was not the only interpretation available, and Prof. Catherine Macmillan, King’s College London, spoke about contract law, referring to examples of legal history in the reform of privity, frustration and mistake, as ‘the good, the bad and the ugly’ of law reform. The Seminar also included papers by Dr Ruth Paley, History of Parliament, on predatory marriage, and Dr Mark Wilde, University of Reading, on the law relating to infrastructure projects.
Those interested in copyright history may wish to read two forthcoming CREATe Working Papers to be published this Spring. First, the proceedings of the recent CREATe event ‘Digital Resources on Copyright History’ which includes contributions from Prof. Jane Ginsburg on the new Vatican section of the CREATe funded ‘Primary Sources on Copyright History 1450-1900’ (ed. Lionel Bently and Martin Kretschmer, www.copyrighthistory.org) and from Prof. Ian Gadd and Dr Giles Bergel on the recently launched Stationers Register Online resource, also funded by CREATe. Secondly, CREATe will be issuing a Working Paper of ‘Copyright History as a Critical Lens’, recently published as an Opinion in the European Intellectual Property Review (Vol. 44, Issue 3, 2022), in which Dr Cooper reflects on the CREATe Public Lectures, Autumn 2021, which explored the theme of ‘Intellectual Property and its History’. To receive updates on these publications and other CREATe activities, please sign up to the CREATe blog.