The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse.[1] There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called “copyright wars,” of intense struggles—intellectual as much as practical, political as much as theoretical—between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. [2] This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity.[3] The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law—accounts rooted in a vision of the inherent dignity of authorship.

One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne,[4] the world’s first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory.

My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett [5] affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain.[6]

The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism.[7] At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts.

Following a sketch of the shared terrain on which the copyright wars take place (Part II), I make some observations about minimalism as a critical stance seeking to oppose a particular normative conception of copyright law to the realities of copyright expansion (Part III). I then briefly describe the historical correlation between instrumentalism and copyright expansion (Part IV). I conclude with some remarks about the absence in instrumentalist discourse of an account of the necessary role of the public domain in copyright law, and about the presence of such an account in rights-based discourse (Part V).

[1] See William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 169–73 (Stephen R. Munzer ed., 2001).

[2]  See, e.g., WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 1–41 (2009). For discussion of copyright maximalism and copyright minimalism, see Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 285–88 (1996). For discussion of copyright politics, see JESSICA LITMAN, DIGITAL COPYRIGHT (2001).

[3] For examples of such contestation, see ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY 23, 53 (2010); Abraham Drassinower, Authorship as Public Address: On the Specificity of Copyrightv vis- `a-vis Patent and Trade-mark, 2008 MICH. ST. L. REV. 199; Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1548 (1993); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 303–04 (1988); and Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 518 (1990). See also Maurizio Borghi & Stavroula Karapapa, Non-Display Uses of Copyrighted Works: Google Books and Beyond, 1 QUEEN MARY J. INTELL. PROP. 21 (2011) (arguing for protection of non-display uses of digital works through data protection law in order to account for authorship rights more adequately than traditional copyright law); Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 CARDOZO ARTS & ENT. L.J. 1059 (2008) (calling for a recognition of the tradition of authors’ rights extant in the Anglo-American copyright regime).

[4] 1710, 8 Ann., c. 19 (Eng.)

[5] 1774, 1 Eng. Rep. 837 (H.L.)

[6] For varying formulations of that unease, see Anne Barron, Copyright Infringement, ‘Free-Riding’ and the Lifeworld, in COPYRIGHT AND PIRACY 93 (Lionel Bently et al. eds., 2010); Maurizio Borghi, Copyright and Truth, 12 THEORETICAL INQUIRIES L. no. 1, art. 2 (2011), http://www.bepress.com/til/default/vol12/iss1/art2; Maurizio Borghi, Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment, in 5 NEW DIRECTONS IN COPYRIGHT LAW 197 (Fiona Macmillan ed., 2007); Abraham Drassinower, From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law, 34 J. CORP. L. 991 (2009) [hereinafter Drassinower, From Distribution to Dialogue]; Abraham Drassinower, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law, 16 CANADIAN J.L. & JURIS. 3 (2003) [hereinafter Drassinower, A Rights-Based View]. See also Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350–51 (1970) (arguing that instrumentalist account provides a weak general case for copyright protection); Diane Leenheer Zimmerman, Copyright as Incentives: Did We Just Imagine That?, 12 THEORETICAL INQUIRIES L. no. 1, art. 3, at 29, 54–58 (2011), http://www.bepress. com/til/default/vol12/iss1/art3 (juxtaposing instrumentalist account of copyright law with issues concerning the nature of the creative process).

[7]  See Hugh Breakey, Natural Intellectual Property Rights and the Public Domain, 73 MOD. L. REV. 208 (2010); Abraham Drassinower, Taking User Rights Seriously, in IN THE PUBLIC INTEREST 462 (Michael Geist ed., 2005).

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The Statute of Anne is often referred to in debates about copyright law and policy to suggest that copyright must be fundamentally rethought because society and technology have changed significantly since the days of the printing press.  What is not nearly as common is a collection of commentary which discusses the Statute of Anne within its broader historical context, extracting lessons that are fruitful for modern copyright policy and reform.

(edited by Professors Lionel Bently, Uma Suthersanen and Paul Torremans), is a book which accomplishes the uncommon and provides the reader with unique insights.

This book is a result of the ALAI 2009 London Congress, which leading copyright experts and scholars from across the globe attended in order to celebrate the 300th anniversary of The Statute of Anne.  The format of the book is one of multiple authors, each contributing one chapter to the book.  A quick glance at the list of contributors shows representation from Argentina, Belgium, Canada, Germany, Italy, Finland, France, Japan, The Netherlands, Poland, Spain, Sweden, UK, and the USA.  A broad range of perspectives are canvassed in the book by experts working in academia, copyright and patent offices, libraries, technology companies, book trade associations, and copyright collectives.

With 300 years to cover since the Statute of Anne, there are many topics that could be covered and it would be easy to get lost in the possibilities, but the book is well organized and divided into three main parts: Part I (The Statute of Anne and its role in the world of copyright), Part II (Digital libraries and online licensing), and Part III (The borderless era: international exhaustion, global administration and formalities).  Within 522 pages, key global copyright issues are covered in great detail.

Part I (Chapters 1 to 11) begins with the history of copyright and the Statute of Anne.  In the introduction to Part I, co-editor Professor Lionel Bently notes that the Statute of Anne is often characterized as the world’s first copyright Act, but he warns that this claim should be treated with caution.  He notes that the Statute of Anne wasn’t the world’s first regulation system for printing and publishing books.  Additionally, Bently reminds readers that while the Act was influential, there were significant contributions in other jurisdictions (both before and after the Act) to the worldwide development of copyright law.  This introduction sets the stage for the rest of the chapters in Part I, which outline historical research that provide insights that a strict legal analysis of contemporary legislation alone could not possibly uncover.

Part II (Chapters 12-21), starts the book’s coverage of the digital age.  Co-editor Professor Uma Suthersanen provides an introduction to digital libraries and online licensing.  As part of laying out some background thoughts for the Chapters in Part II, Suthersanen states that the zeitgeist of this and the coming centuries is that the growing power of custodians of information must be regulated (along with the power to grant access to works and to remunerate authors).  In Chapter 13, Dame Lynne J. Brindley succinctly summarizes many of the challenges that libraries now face, as they strive to rise (like the Phoenix) into new purveyors of knowledge in the Internet era.  Underpinning these strategic challenges for libraries are broader copyright, information management, cultural and public policy issues which are discussed and analyzed throughout the chapters in Part II.

Three specific themes are covered in Part III (Chapters 22-32), all relating to the “borderless era”: international exhaustion, global administration and formalities.  This third part of the book is introduced by co-editor Professor Paul Torremans, who stresses the fundamental and global nature of the issues addressed within these chapters.  Two differing perspectives on the potential benefits of copyright formalities in the digital era are offered in Chapter 29 (by Stef van Gompel) and Chapter 30 (by Jane Ginsburg). Various aspects of copyright exhaustion are covered in Chapters 23 to 27, and the contributors must be commended for providing in depth and valuable commentary on a topic that might have been treated very narrowly in the hands of others.

Global Copyright: Three Hundred Years Since the Statute of Anne, From 1709 to Cyberspace is a fascinating read and a rich reference resource.  Throughout the book, there are many cross-references to other chapters, as authors make note of intersecting discussions existing in the rest of the book.  Additional online supplementary materials for the book exist on the .  The website currently includes translations for several of the chapters into French and/or Spanish.  The website also hosts copies of expert responses (from 21 different jurisdictions) to a questionnaire that covered topics such as copyright history, on-line exploitation, international exhaustion, and formalities.

This book is ideal not only for legal scholars and students, but also for anyone with a desire to better understand the past, present and future challenges of copyright law and policy.

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