Copyright as we know it is a surprisingly recent development. It has been with us just a few decades—only as long, roughly, as Hello Kitty and the Star Wars franchise. Before a 1976 statute introduced sweeping changes to American copyright law, the term of protection lasted for just 28 years; if renewed for a second term, copyrights could be held for a maximum of 56 years. Today, thanks to the Sonny Bono Copyright Term Extension Act of 1998, copyright protection lasts for 70 years after the death of the author.
As copyright terms lengthened, the scope of the law broadened. For instance, US copyright law now explicitly covers computer software (since 1980) and architectural works (1990); it also protects the design of semiconductor chips (1984) and vessel hulls (1998). In 1994, the World Trade Organization Treaty made the protection of intellectual property a threshold condition of global trade. Currently, only a handful of countries—such as Bhutan, Ethiopia, and Iran—stand outside the global copyright system.
Copyright protects private property at the expense of the commons. As copyright law expands its reach, it depletes the public domain. Over the past 20 years, it has become rare for works to revert from private to public ownership: that is, from rights-restricted to generally available for use. Because the 1998 law retroactively granted already-copyrighted texts an extension, stretching their overall term of protection to 95 years, 2019 marked the first year in a long time in which a large number of books, films, and songs entered the public domain, including works that debuted in 1923 by William Carlos Williams, Robert Frost, Charlie Chaplin, and Edith Wharton.
Writing during these decades of copyright’s expansion, historians and activists alike have emphasized how important copyright law is to the circulation of culture. Literary historians such as Mark Rose have told the story of “the invention of copyright,” establishing the origins of and rationales supporting our current system, which protects multiple stakeholders under the banner of authors’ rights.1 The contemporary “copyleft”—activists, librarians, and software engineers seeking to design “open access” programs and systems that make possible the free exchange of information—generally agree with copyright’s advocates that copyright law matters deeply, that it saturates much of modern life, and that it determines the behavior of both cultural producers and consumers.
But copyright law arrived long after the invention of printing; it emerged at the beginning of the 18th century as a tool for governments to limit the power of print monopolies. And, as scholars such as Adrian Johns and Robert Spoo have reminded us, past regimes rested on radically different assumptions than our current system. In Without Copyrights: Piracy, Publishing, and the Public Domain (2013), Spoo maintained that British and American modernism was made possible by the United States’ extensive, vigorously defended public domain. In his encyclopedic Piracy: The Intellectual Property Wars from Gutenberg to Gates (2009), Johns argued that the 18th-century print revolution depended on what we would now consider rampant theft: “Enlightenment traveled atop a cascade of reprints. No piracy, we might say, no Enlightenment.”
Legal history can offer useful benchmarks for social and cultural change, but an overemphasis on statutory law and high-court rulings can give a misleading picture of the importance of law to publishing practice. The decisions of courts and legislatures—backed, as they are, by the power of the state—allow us to pinpoint where and when abstract ideas take on real-world force. But the law often lags behind the practices of sharp-eyed businesspeople, and legal discourse operates at a considerable remove from how ordinary people understand their world.2
Slauter seeks to put copyright in its place. Miller, by contrast, calls us to pay closer attention to the courts.
Leading with the law tilts history toward the cultural properties that the law ultimately comes to recognize and protect. It normalizes the relatively recent expansion of copyright’s domain and distracts us from the more shadowy realm where canny entrepreneurs stake out property rights by other means. It also risks leaving by the wayside historical alternatives to the current system that were rejected or superseded by later statutes and rulings.
Two new books approach the history of copyright law via cultural properties long thought to be beyond its reach. Will Slauter’s Who Owns the News? surveys the long history of claiming and defending property in news. Beginning with the royal privileges and licensing arrangements that governed the circulation of early modern news sheets, Slauter examines the development, in the 18th century, of subscription newspapers that depended on advertising revenue and concludes with early 20th-century attempts by international wire services to claim property in the time value of news.
Derek Miller’s Copyright and the Value of Performance examines an equally elusive cultural form across a similar time span, tracing the history of the protection of performance rights in Anglo-American law. Like Slauter, Miller begins in the pre-copyright era, describing the centrality of performance to the monarchical order, and the protection of performance rights by other means: licensing, royal privilege, actors’ charisma, subtle threats by theater managers, and blatant intimidation. Unlike Slauter, though, Miller focuses on the drama of court decisions themselves. Distilling theories of performance from court proceedings, he reads in the 19th-century emergence of performance rights the inexorable workings of the commodity form.
Drawn from journalism history, Slauter’s case studies open out into questions that continue to bedevil the news business: the comparative advantages of licensing vs. ownership, the importance of state investment in infrastructure to the stabilization of media markets, and the implicit tension between copyright and freedom of expression. By contrast, Miller’s case studies derive from statutory and case law and mostly point in a single direction: toward the assimilation of all expressive forms to the copyright system and the eclipse of a wide range of social, political, and aesthetic values by the values of the market.
Slauter’s study reminds us that news has long been thought to resist private ownership, either because of its centrality to the constitution of the public sphere or because of its elusive, ephemeral nature. Of vital importance but fleeting value, news is easily passed along by numerous means; it slips the bounds of the media through which it circulates. Moreover, the practice of news-gathering and reporting has always been a collaborative venture. Both the cutting and pasting that gave 19th-century newspapers their breadth of coverage and the sourcing practices required by modern journalism fit badly with author-centered rationales for intellectual property.
If the nature of the news makes it an unlikely candidate for copyright protection, so too does the proximity of the news to political power: its ability to threaten—or be marshaled in the service of—authority. Slauter emphasizes the political economy of the news business, showing how the fragile bargain brokered between the British monarchy and the publishing guilds—offering exclusive printing privileges in exchange for surveillance and censorship—exploded at the turn of the 18th century, producing a sudden upsurge in the unfettered circulation of the news.
Copyright, however, wasn’t what eventually tamed the unruly market for news. Credit or blame for that must go instead to collaboration in the trade, the development of subscription newspapers, and monopoly power. Slauter recovers the many effective, extralegal ways through which publishers established and enforced property rights. Although, for most of the history he charts, the news remained decidedly outside the purview of copyright, Slauter shows how courts and legislatures clarified their sense of the core principles of the law by testing them against the extreme case of property in the news.
Throughout his book, Slauter urges us to regard copyright as only one of a number of strategies that news organizations have used to protect and develop their businesses. Given journalism’s current crisis of sustainability, it is bracing to be reminded of the substantial, if indirect, investment the US government made in the news through the early 20th century. For instance, the Post Office Act of 1792 set extremely low rates for sending newspapers through the mail to readers and charged no fee whatsoever for the exchange of papers between printers. Such statutory subsidies are one way for governments not to own the news, but, instead, to make sure it pays.
Histories that are attentive to the practices that enable the business of culture to thrive offer us a clearer picture of the place of law in culture and suggest alternatives to our current system.
Slauter seeks to put copyright in its place. Miller, by contrast, calls us to pay closer attention to the courts. These, he argues, are sites where intangible cultural properties—such as musical and dramatic performances—are conjured as material things, so that imitation can be controlled and performances made profitable. Miller tracks and analyzes a broad range of cases concerning the burgeoning 19th-century entertainment industry—cases involving dramatic literature, popular melodrama, burlesque entertainments, opera music, and musical rearrangements. Some of these cases have been mined by legal scholars for their contributions to doctrine, but Miller brings a nuanced awareness of the complexities of theater history and culture to the task of understanding what was at stake in these cases, unfolding the local rivalries and outsize personalities, the multifaceted collaborations and fierce competition that shaped an increasingly lucrative industry.
It is telling, however, that even Miller’s considerable narrative verve and scholarly resourcefulness are unable to bridge the gulf between the two fields he seeks to bring together. One reason is that he chooses everywhere to subordinate theater history to the history of the law.
Miller organizes his study as a kind of literary historical casebook, beginning with legal precedent and following up with the business decisions and performance practices that brought litigants to court in the first place. He is drawn to the courts themselves as theatrical environments: stages for debate about all aspects of performance, neglected sites where literary critics can observe performance theory in the wild, as it were. The theater of the law simplifies and clarifies the competing claims of theatrical entrepreneurs. The precision of legal reasoning gives order to the messiness of theatrical history; the prestige of law elevates the banality or crude appeal of popular entertainment; the seriousness and consequence of legal judgment offers a counterweight to the unscrupulous practices of theater managers.
Yet leading with the law causes Miller to overestimate the importance of law to theatrical practice, which in turn weakens his claims about the power of the “performance-commodity” to determine the course of literary and cultural history. Indeed, his evidence frequently points to historical forces that are arguably more important to performance than the law, such as the transformative effect of the advent of recorded sound on the value of musical performance (and the sheet music business). One would need to turn Miller’s book inside out to put copyright in its place.
The Cost of Copying
Nevertheless, Miller’s account of the often ingenious attempts by managers and performers to lay claim to immaterial aspects of performance points to just how much of cultural life takes place beyond the sphere of law—how much culture is produced in ignorance of, or indifference to, law’s strictures, if not in outright defiance of them. The performance cultures described by Miller, like the transformations of the news business narrated by Slauter, are subject to numerous, overlapping forms of regulation: social customs, professional norms, influential precedents, concentrations of power, and cultural assumptions so ingrained as to be largely invisible.
Histories that are attentive to the practices that enable the business of culture to thrive—and writers, editors, and performers to get paid—not only offer us a clearer picture of the place of law in culture. They also suggest alternatives to our current system, in which intellectual property rights are overwhelmingly geared to the interests of corporations, not consumers.
Given the steady extension of copyright terms, the expansion of intellectual property rights to cover new kinds of objects, and the global reach of many of these laws, imagining another system can seem impossible. But the system of royal privileges must have seemed unchangeable, too, until all of a sudden it wasn’t.
This article was commissioned by Leah Price. 
- Rose’s Authors and Owners: The Invention of Copyright (Harvard University Press, 1993) helped galvanize interest in the history of copyright among an interdisciplinary group of scholars working in law and literature. For a history of the development of this field as it intersects with the concerns of book historians, see my “Copyright and Intellectual Property: The State of the Discipline,” Book History, vol. 16, no. 1 (2013). ↩
- Laura J. Murray, S. Tina Piper, and Kirsty Robertson, Putting Intellectual Property in its Place: Rights Discourses, Creative Labor, and the Everyday (Oxford University Press, 2014) uses a series of case studies—including online knitting communities, plant hormones research, and the production of replica paintings—to argue that the role of the law in stimulating and protecting creative activity has been vastly overrated. ↩
