Vol. 21 No. 1 (January, 2011) pp.19-21
COPYRIGHT LAW AND THE PUBLIC INTEREST IN THE NINETEENTH CENTURY, by Isabella Alexander. Oxford and Portland, Oregon: Hart Publishing, 2010. 344pp. Hardback. £55.00/ $110.00. ISBN: 9781841137865.
Reviewed by Irini Stamatoudi, LL.M., Ph.D., Athens, Greece. Email: stamatoudi [at] syrigos.gr.
The issue of public interest will always be timely when copyright is discussed or new elements or provisions are introduced into it either to expand it or to limit it. The public interest debate is in fact inherent in copyright law; it constitutes the filter used to draw the lines of protection. It is a notion which is vague and can only be defined with difficulty; on top of everything it is a notion which is under continuous evolution and shaped on the basis of the socio-economic factors of the era and the interests involved.
This book is based on Isabella Alexander's doctoral dissertation at the University of Cambridge. It explores the notion of public interest in the first steps of the formation of copyright law in Britain as we know it today, taking into account the particular circumstances from 1774 to the 1911 Imperial Copyright Act. Thus, the book does not explore the origins of copyright traced back into the eighteenth century but instead the form it came to take during the second century of its existence in Britain, on which is based present copyright law in Britain, former colonies and other common law countries.
The book is divided into eight chapters including the introduction and conclusion. In its introductory chapter Alexander sets the basics, the notion of public interest and how it has been occasionally approached, and prepares the reader of what is to follow in the main core of the book. In fact, she sets out -- according to her view -- the three main justifications for having copyright law: a) recognizing the natural right of an author to claim ownership of his work; b) rewarding authors for creating a work; and c) providing incentives for authors to create and disseminate works. She focuses on the third of these and expressly writes that she “seeks to uncover the historical pedigree of claims that copyright operates in the public interest, whether as an overarching goal, or through the balancing of competing claims” (p.3). Isabella Alexander is essentially (and necessarily because of the facts of this era) dealing with literary copyright but she also examines other then-emerging forms of creation.
Before getting into the ‘scope and structure’ of her book Alexander briefly makes a review of other treatises akin to her subject starting from R. Maugham’s treatise published in London in 1828 on the laws of literary copyright and ending with Gillian Davies’ book on copyright and the public interest, published in 2002 . However, there have also been more recent publications relevant to this such as J. Boyle’s, THE PUBLIC DOMAIN – ENCLOSING THE COMMONS OF THE MIND, (and for a very recent study published after Alexander’s book see Dusollier, 2010). [*20]
Chapter two looks into copyright before the nineteenth century focusing almost entirely on the history and shape of the Statute of Anne and on relevant case law. She examines the role and impact of the book trade and how this trade has shaped the law of the time. She looks into resolved and unresolved issues of that period, such as the issue of common law damages in infringement cases and the status of unpublished works which were only dealt with by law later in time. Alexander concludes that although copyright in the eighteenth century (referring basically to the Statute of Anne) aimed to ‘encourage learning,’ it was never solely about the public interest in the spread of knowledge. Other concerns have also been taken into account such as the dislike of monopolies and the concerns regarding the protection of private property and the regulation of the book market.
Chapters 3 to 6 consider different phases of copyright’s development in the nineteenth century always focusing on the role of the book trade. Taking an original approach in chapter 3 Alexander focuses on two key issues which she arguesplayed a pivotal role in terms of public interest: the legal deposit of published books in certain designated libraries in Britain and the non-protection of works considered to be immoral, seditious or libelous. These two issues are barely comparable to each other but their combination allows a fresh look at this era. One could allege that, although they are both said to deal with “encouraging learning,” the first one focuses on method and the second on quality. This censorship of the time probably aimed to filter ‘good’ from ‘bad.’
Chapter 4 examines many important developments of the nineteenth century concerning copyright law such as the extension of protection to oral works (e.g., lectures and plays) and the extension of its scope to cover works of foreign authors. It also examines the background to the 1842 Copyright Act focusing on the arguments concerning public interest and its opposition to the natural rights of authors.
By the second half of the nineteenth century interest groups have evolved and copyright has considerably strengthened. Chapter 5 focuses on the Royal Copyright Commission, which was appointed in 1875 in order to examine the future of copyright. Many views were presented at the Commission, which were divided between whether copyright should be abolished or expanded. At this stage, it became evident that copyright was bound to expand in the years to come.
Chapter 6 examines the issue of infringement and its developments during the eighteenth and nineteenth centuries. It also examines the foundation of fair dealing and how it was conceived at the time. However, it is only after the 1911 Copyright Act that fair dealing has emerged as a separate principle.
Chapter 7 looks into the formation of the 1911 Copyright Act, the predecessor of modern UK copyright law. It explores the expansion of protection for music publishers, the international developments that had to be incorporated into UK law, as well as the pending claims of the public. Alexander follows this chain of thought to [*21] demonstrate that the public interest debate -- even when it was genuinely linked to the interests of the public (which was not always the case, as it was occasionally used to serve a variety of private interests) -- was never capable of holding copyright expansion back. The 1911 Act proves this argument, although it did not manage to cope with all or most pending issues at the time.
The book is mainly historical in substance. Nonetheless, it articulates that public interest has not always been used in a clear and straightforward way. It has rather been manipulated so as to serve the interests of the groups that raised arguments in its name. And this can only be right, since there is no clear cut or widely accepted definition as to what the ‘public interest’ is or as to what the ‘public’ is whose ‘interests’ are at stake.
This book is very interesting and well-researched in what it is: an insight in the notion of public interest in British copyright law of the nineteenth century. No comparative elements can be found and no important parallels are drawn with modern copyright law. They would significantly have added to the impact of the book but at the same time, it would have required a much longer and extensive study. Taking all these into account, one comes to the conclusion that this book makes a significant contribution in the area.
Boyle, J. 2008. THE PUBLIC DOMAIN – ENCLOSING THE COMMONS OF THE MIND, New Haven: Yale University Press.
Davies, Gillian. 2002. COPYRIGHT AND THE PUBLIC INTEREST. London: Sweet and Maxwell. (2d ed.).
Dusollier, S. “Scoping Study On Copyright And Related Rights And The Public Domain,” submitted to WIPO on 7.5.2010 (CDIP/4/3/REV./STUDY/INF/1)).
Maugham, R. 1828. A TREATISE ON THE LAWS OF LITERARY PROPERTY. London.
© Copyright 2011 by the author, Irini Stamatoudi.