Sep 162008

Long ago I promised to explain why I’d gone to London earlier this year. Seeing how I’m about to be in London again, I figured it was time to catch up from the last time.

When I told my friend that I was off to London for a conference on the history of copyright, she immediately exclaimed, “How interesting!” Soon, however, her conscience got the better of her and, fearing she’d perhaps misrepresented her sentiments, hastily followed up with, “For you.”

Actually, she was right the first time. Copyright, that legal doctrine that permeates modern life, regulating nearly every bit of human expression regardless of where in the world it was made, is of such importance to our lives today that any study of it is inherently interesting even if just by virtue of its inescapable relevance. As we today grapple with copyright’s reach, with some feeling it’s too broad and others not broad enough, it’s always helpful to look back over time and see how we may have arrived at this modern morass. Like with everything else, you can’t know where you’re going without knowing where you’ve been.

But as conference co-organizer Lionel Bently noted, it has often been difficult if not impossible to use history to support copyright analysis because its historical sources have not been readily accessible. Instead scholars have had to rely upon second-hand interpretations of those seminal documents that established copyright policy over the centuries — but they have done so at their peril. Jane Ginsburg noted in her closing remarks that often those secondary sources, those readily-accessible documents today’s scholars have come to depend on, contain errors: mistranslations, misinterpretations, or some other mischaracterizations.

When all that’s available are those secondary sources they pollute future policy with their incumbent errors. To defeat their poisonous reach, Bently and co-organizer Martin Kretschmer decided to assemble the original underlying documents into an accessible repository so that future scholars will no longer be dependent on second-hand descriptions of them, instead being able to see with their own eyes exactly what policy had been laid out so many years ago, how, and, indeed, even why.

This conference was therefore partly a chance to formally unveil this repository, available at, and partly a chance to discuss the impact of many of the materials contained within. Although the archive is expected to grow, by design its initial contents were kept limited so that it would capture only the most important documents from Italy, France, Britain, Germany, and the US from the period 1450 to 1900. Each document exists in the system as both a capture of its original image and as searchable text. Translations are also available. Each national editor carefully chose each document according to a set of criteria vetted by an interdisciplinary advisory board in order to reach those documents that either everyone would agree were pivotal (e.g., the Statute of Anne), that might contradict our sense of how copyright was intended to work, that would reflect interdisciplinary aspects (e.g., the relationship between copyright, culture, and commercial practice), or that could reflect how different jurisdictions spoke to each other (e.g., how policy values migrated from one place to another).

The rest of the conference then drew upon these resources to explore how and why copyright has developed throughout the centuries in these places. Unfortunately jet lag and a crashing computer prevented me from taking thorough notes on all the many excellent presentations, but I believe in most instances there are actual papers backing each presentation that will soon be published. As someone new to copyright scholarship I at first feared that I would be lost, that all these other distinguished scholars around me would already know everything about every area of its history. But soon it became clear that no one knew the whole picture. Everyone knew about their specialized piece and how it plugged into several other areas, but no one as yet has digested all of copyright’s history. It’s only through events and resources such as this that such an achievement might even begin to be possible.

 Posted by at 10:15 am

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