WHAT’S WRONG WITH COPYING? – Rose Review

Vol. 7, No. 2 (March 2017) pp. 1-6 

WHAT’S WRONG WITH COPYING? by Abraham Drassinower.
Harvard University Press, 2015, 288 pp., Hardcover, $39.95 

Reviewed by Mark Rose 
English Department, University of California, Santa Barbara 
mrose@english.ucsb.edu 

Some years ago I published a book, AUTHORS AND OWNERS, in which I told the story of the divorce of copyright from censorship and its reconception as property. I described how in the course of an eighteenth-century legal and commercial struggle in Britain the author was established as a property owner, the originator and proprietor of an intangible object, the literary work. The author and the work – like the twin suns of a binary star locked in orbit, I suggested, these two concepts define the center of the modern copyright system. It is precisely this system that Abraham Drassinower seeks to dismantle in WHAT’S WRONG WITH COPYING?, a philosophical study in which he attempts to extract from the tensions and ambiguities in copyright doctrine a coherent conceptual structure. In place of copyright as a property right, Drassinower proposes a system based on the notion of authorship as speech. Whereas traditional copyright concerns the relationship between the author and the work, a person and a notional thing, Drassinower proposes a view centered on the relationship between multiple speakers, between members of a community engaged in conversation. 

Drassinower’s conceptual starting point is the doctrine of independent creation. Two works may be identical – as in Borges’ wonderful story PIERRE MENARD: THE AUTHOR OF THE QUIXOTE – and yet, if independently created, each is accepted as an original work. This means that a work is an action not a thing. Other key doctrines for Drassinower are the creativity or skill and judgment requirement, the idea/expression dichotomy, fair use, and what he calls “non-use” – that is, when only a material rather than a communicative use is involved as in the classic case of Baker v. Selden¹ concerning accounting forms. From these principles and from close analyses of key cases, including Nichols v. Universal,² Feist Publications v. Rural Telephone,³ and CCH Canadian Ltd. v. Law Society of Upper Canada,⁴ Drassinower constructs a theory based on the concept of writing as an act of communication. The author thus becomes a speaker among other speakers rather than the originator of a commodity. The work becomes a discourse. Moreover, since expression is always social – expression towards another – the author’s discourse must also be conceived as an invitation to dialogue. An author is a speaker speaking to other potential speakers, all of whom have, in principle, equal rights. Drassinower’s approach thus has affinities with Kant’s conception of a book as a speech to the public, a conception shared, I might note, by Milton in the Areopagitica. But Drassinower’s book is not a mere gloss on Kant so much as an exposition of the way the principles of such a dynamic and socially oriented approach are already implicit in Anglo-American copyright. 

“I think these matters are not to be decided by accountants based on percentages.” So said Judge Pierre N. Leval in connection with Salinger v. Random House, the classic case in which J.D. Salinger sued to prevent the use of quotations from his unpublished letters.⁵ From the reduction of law to utilitarian economic analysis to the glorification of the scientific disciplines and the decline of literary and other interpretive studies in our universities, we are in a moment in which quantification increasingly dominates our culture. Indeed, even within literary and historical studies, the last few decades have seen the emergence of quantitative analyses. I am thinking, among other things, of the use of computerized stylistics to determine authorship and of computerized mapping of correspondents as, for example, between cultural centers in Enlightenment Europe. One of the great appeals of Drassinower’s study is that it provides a humanistic theory of copyright, one that puts personhood and expression rather than quantification at the heart of copyright theory. It seeks to rescue copyright from the accountants. 

The conventional justification of Anglo-American copyright is incentive theory. From this point of view, copyright exists to provide incentives for the “encouragement of learning,” as both the Statute of Anne and the U.S. Act of 1790 put it. That is, copyright provides the author with a limited property right as a spur to cultural production. But, as Drassinower shows, the instrumentalist paradigm does not account for such fundamental copyright distinctions as that between an unprotectable telephone directory and a protectable poem. Moreover, the incentive paradigm – like the property-based discourse that underwrites it – inevitably leads to quantification. Most obviously, the notion that more is better, that more cultural production is in itself a good, is an invitation to calculation. More subtly, the notion that copyright doctrine seeks to find a balance between authors’ and users’ rights, between private property and public purposes, is also an invitation to calculation. Which weighs more, the property or the public purpose? The notion of “balance,” Drassinower explains, is an inappropriate metaphor because a balance or scale cannot make distinctions between different kinds of values. 

Both copyright minimalists and copyright maximalists assume the instrumentalist conception of copyright. Thus their disputes about the relative advantages of high and low copyright protection – which will produce the greater benefit? – amount, in Drassinower’s trope, merely to skirmishes on a shared terrain. Divorced from normative standards, from grounding in the concept of personhood and speech, Drassinower suggests, nothing but sterile calculations of efficiency can function as a limiting standard on the endlessly expansive claims of copyright. According to Drassinower’s view, a genuine interrogation of copyright would look less like a “largely empirical debate about the requirements of progress” and more like a discussion of, among other things, the “meaning of authorship” and “the meaning of progress” (152). As it is, however, copyright discourse is, as he puts it, “drowned in oceans of social science evidence” (153). 

As the humanist imperatives of his discourse suggest, Drassinower has a finely developed sense of language and metaphor. Indeed, at the heart of his study is a specifically metaphorical agenda, the attempt to transform the fundamental trope in which copyright is framed from property to speech, from commodity to communication. Speech implies response. All speakers are in principle equally empowered to participate in the conversation. This account offers equality in place of efficiency and dialogue in place of balance as, in Drassinower’s phrase, “metaphors structuring copyright interpretation” (120). The conventional notion is that the utilitarian or instrumentalist account of copyright provides better for the public domain than a rights-based account. Drassinower challenges this assumption, arguing that instrumentalism can offer only an impoverished vision of the public domain as absence or loss – the name for that which, in the cause of the public interest, is decreed beyond protection. But Drassinower’s rights-based account – copyright as the right of all speakers – offers an affirmative view: the public domain as a matter of intrinsic worth, a nonnegotiable, constitutive aspect of copyright law. Interestingly, the term that Drassinower actually uses here is “dignity” not “worth” – he speaks of the “inherent dignity” (157) of the public domain – perhaps precisely because of the commercial and economic overtones implicit in “worth.” 

WHAT’S WRONG WITH COPYING? Drassinower’s title asks, and he illustrates his question with a wonderful picture of a quizzically staring parrot, head askew. The meaning of the title gradually becomes clear as the book progresses. What’s wrong is the whole discourse that placing copying at the heart of the matter entails. Grounding the account of copyright in speech rather than property entails a dislocation of copying as the organizing principle of copyright doctrine. Copyright, then, “is not an exclusive right of reproduction but an exclusive right of publication” (225). This dislocation resolves some of the tensions in present doctrine. The current status of translation, for example, is incoherent. As a derivative right, a translation must be authorized, but at the same time a translation generates its own copyright. But translation, as Drassinower repositions it, is not properly authorship and thus should not attract an independent right. The “dignity of translation,” he explains, “is of a different order than that of authorship” (223). Indeed, grounding the account of copyright in speech rather than property requires the elimination of the whole concept of the derivative work. “Derivative authorship” is, Drassinower remarks, an “oxymoron” (223).

I note that in denying translation the “dignity” of authorship and generalizing to reject the concept of any kind of derivative authorship Drassinower is in effect revisiting and deconstructing the historical process through which the concept of derivative works emerged, starting with the establishment of the translation right. In the United States the pivotal case was Stowe v. Thomas⁶ in which Harriet Beecher Stowe failed to prevent an unauthorized German translation of UNCLE TOM’S CABIN. Justice Robert C. Grier’s 1853 decision declared that Stowe’s copyright was limited to the literal text of her novel in English. Invoking William Blackstone’s classical description of the nature of the protected work –“the same conceptions, cloathed in the same words”⁷ – Grier declared that the identity of an author’s novel does not consist in the characters, ideas, or information “but only in the concrete form which he has given them, and the language in which he has clothed them.”⁸ Anyone then would have the right to translate Stowe’s novel into whatever other language they pleased. 

The hinge on which Blackstone’s classic formulation turned was the common eighteenth-century metaphor of the dress of language, an ancient trope going back to the Roman rhetorician Quintilian. But metaphors are potentially fluid and unstable. In 1847, shortly before Stowe brought suit, the American treatise writer George Ticknor Curtis had proposed that “the mere act of giving to a literary composition the new dress of another language” did not create a new work.⁹ The body under the dress remained the same. Thus Curtis in effect flipped Blackstone’s metaphor, insisting that it was the “body” of the work rather than the “dress” that copyright protected. Stowe had invoked Curtis unsuccessfully in her pleadings, but ultimately Curtis’s transformation of Blackstone’s metaphor prevailed. In 1870 Congress in effect overturned Grier’s decision by explicitly granting authors the right to translations of their works. And in 1879, Eaton S. Drone, the author of the principal American copyright treatise of the later nineteenth century, aggressively defended the principle that the author retains the translation right. The translator creates nothing, Drone argued. “He takes the entire creation of another, and simply clothes it in a new dress.”¹⁰ Once the protected work was no longer understood as “the same conceptions clothed in the same words” but as some kind of underlying “body” or “creation” the way was clear to establish that other kinds of derivative rights such as movies adapted from plays would also be protected. 

Observing the way that Drassinower’s argument leads to the elimination of the translation right and the related concept of the derivative work points, I think, to the complex and, as I will suggest, sometimes uneasy relationship between his theoretical project and the historical material on which it draws. At the same time it confirms the importance of Drassinower’s alertness to language and metaphor. As the evolution and inversion of Blackstone’s metaphor instances, the metaphors in which we think sometimes take on a life of their own as agents in the historical process.¹¹

As I have noted, Drassinower’s agenda can be understood as the attempt to transform the fundamental trope in which copyright is framed from property to speech. Key to this is the proposition that creativity – or some equivalent concept – rather than labor grounds copyright. But the explicit articulation of creativity theory in the law is relatively recent. Feist v. Rural Telephone was decided in 1991. This is not, I think, a significant difficulty. Drassinower’s project – unlike my own in AUTHORS AND OWNERS – is not to provide an historical narrative of copyright’s development, but rather to offer a philosophical analysis that resolves tensions and inconsistencies. Whereas I, pursuing my historical narrative, might be satisfied with – might indeed rejoice in – the identification of gaps and contradictions in the historical process, Drassinower’s quite different project seeks to resolve such perplexities into a self-consistent theoretical account. 

At the same time, however, Drassinower reaches back into the period of copyright’s formation to find an historical anticipation of his theoretical account in the classic debate between Lord Mansfield and Sir Joseph Yates in Millar v. Taylor in 1769. Lord Mansfield was the defender of the author’s common-law right whereas Yates denied that writing, being immaterial, could be a property. Although Yates accepted that the Statute of Anne could provide the author with a limited statutory protection, the only property right he acknowledged was the author’s right to his physical manuscript. Lord Mansfield, as Drassinower notes, countered Yates by remarking that he was talking about the author’s “copy” rather than his manuscript, specifying that he used “copy” in the technical sense in which that term had been used for ages to signify an incorporeal right to the sole printing and publishing of a discourse. What Mansfield was in truth invoking, Drassinower argues, was a right to an action not a thing. Thus Mansfield might be seen as anticipating Drassinower’s own twenty-first century founding of copyright in action rather than in property, even as the eighteenth-century struggle resulted in the establishment of copyright under the rubric of property. This is not the way we usually think of Mansfield, the proponent of common-law copyright and perpetuity. The historical irony, Drassinower reports, is that “grasping Mansfield as having posited copyright as property” is grasping him from Joseph Yates’ point of view not his own (178). 

I don’t think I have ever before understood Mansfield’s position in quite this way, but I accept – at least in a general way – Drassinower’s representation, as I gratefully accept his generous comments about my own work. Drassinower talks about writing as an invitation to dialogue and the relationship between his new book and my old one perfectly illustrates his point. But at the same time I note that there remains an ambiguity, a duplicity, about the old term “copy” that should not be lost. “Copy” was indeed used to refer to a right rather than a thing, but at the same time it seems to have retained – and indeed continued to retain, at least into the 20th century – a sense of the physical manuscript prepared for the press. Think of newsroom “copy paper” and of “copy boys” running “copy” from reporters to editors. Moreover, even as he remarked that he used the term “copy” in the technical sense, Mansfield insisted – as the booksellers had done – that the copy was a form of incorporeal property. It was of course Blackstone, arguing in Tonson v. Collins in 1762¹² and later developing his argument in the second volume of his COMMENTARIES in 1766, who fully transformed discourse into property in formulating the notion of copyright protecting specific sentiments “clothed” in specific words and thereby defining “identity” of a literary composition. Was Mansfield in 1769 thinking along lines that truly anticipate Drassinower’s argument or was he, already influenced by Blackstone, allowing the booksellers’ notion of “copy” to acquire solidity and the aspect of a thing rather than an action? It is of course impossible to say. 

My point is not that Drassinower is “wrong” in his citation of Mansfield. I don’t think he is. In fact, I found his reading of Mansfield one of the most exciting and provocative moments in his book and I would not have him excise it. But nor do I think the citation of Mansfield is really essential to his argument. History and philosophy have different agendas. History – a narrative of struggles, contentions, and ambiguities – provides, I think, too slippery a foundation for the erection of an elegant intellectual edifice such as Drassinower is constructing. Drassinower’s enterprise is not to tell stories but to rationalize and formalize the residue of history, to reconstruct from its contradictions a coherent and more humane account of copyright. That I believe he has done and done brilliantly. 

Suggested Citation: 7(2) The IP Law Book Review 1 (2017).

© 2017 Mark Rose

A version of this review also appears in Jurisprudence: An International Journal of Legal and Political Thought.

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1. 101 U.S. 99 (1879).
2. 45 F.2d 119 (2d Cir. 1930).
3. 499 U.S. 340 (1991).
4. 2004 SCC 13.
5. 811 F.2d 90 (2d Cir. 1987); Transcript of Appearance, October 3, 1986, 17.
6. 23 F.Cas. 201 (C.C.E.D. Pa. 1853).
7. COMMENTARIES ON THE LAWS OF ENGLAND, vol 2 (Oxford: Clarendon Press, 1766), 406.
8. 23 F. Cas. 206.
9. A TREATISE ON THE LAW OF COPYRIGHT (Boston: Charles C. Little and James Brown, 1847), 293.
10. A TREATISE OF THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES (Boston: Little, Brown, and Co, 1879), 451.
11. I discuss the evolution and inversion of Blackstone’s metaphor in my AUTHORS IN COURT: SCENES FROM THE THEATER OF COPYRIGHT, forthcoming from Harvard University Press, Spring 2016.
12. 1 Black W. 321.