A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.
Baldwin's The Copyright Wars argues that modern debates over the proper scope of copyright represent echoes of still-unresolved conflicts that arose early in the 18th century and have recurred in various forms ever since. The philosophical conflict between the "author's rights" ideology that came to predominate in Continental Europe and the "copyright" ideology that prevailed (until very recently) in the English-speaking nations, Baldwin argues, underlies many modern debates about the respective interests of creators and users of expressive works. On Baldwin's reading, the internet era raises no truly novel issues, but merely puts a contemporary gloss on copyright's unending three-way struggle between authors, readers, and disseminators.
Haggart's Copyfight eschews Baldwin's long view in favor of a close look at copyright's very recent history, focusing on the implementation of the 1996 WIPO Internet treaties in the United States, Canada, and Mexico. Haggart's thesis is that the conventional portrayal of the United States as a hegemonic power in copyright has been overstated, and that the differing ways that the North American nations have implemented the 1996 WIPO treaties shows that smaller nations can and do exercise substantial autonomy in setting copyright policy. That autonomy can be, and increasingly is, used by smaller nations to set copyright rules that contradict the preferences of larger nations, an oppositional phenomenon that Haggart suggests will only grow in importance in this century.
Although both books are outstanding, their very different perspectives occasionally produce a form of tunnel vision. Baldwin's book features impressive historical depth, but fails adequately to address the unique challenges of contemporary technology to the law and the historically unprecedented obstacles that contemporary law raises to certain forms of socially valuable innovation. Haggart's book, in contrast, demonstrates a keen and nuanced appreciation of the contemporary copyright debate and the ways that international and domestic institutions have interacted to set policy during the past two decades, but fails to appreciate the ways in which the much lengthier course of historical development constrains future copyright policy-making. The review concludes by suggesting respects in which either book might serve as a guide to future copyright policy-making at the national and international level.
15 J. Marshall Rev. Intell. Prop. L. 698 (2015-2016)