The rite of copyright: The comparative procedural emphasis of American copyright law.

Author:Zhuang, Jimmy J.


Copyright regimes across the world share a common history and a basic modern international framework. This foundational similarity provides a unique opportunity for a comparative study of the subtler distinctions among copyright regimes. Using examples from the United States, Germany, France, Sweden, and Japan, this essay argues that American copyright law is heavily influenced by an emphasis on procedure and is much less attentive to underlying substantive rights. This essay compares and contrasts the methods by which various copyright regimes address "sweat of the brow" works, author moral rights, the generality of statutory provisions, and recent legislation on digital media. From these comparisons, American copyright laws seem to provide sophisticated procedural mechanisms for the copyright stakeholders as well as in copyright adjudications. For example, American courts determine whether a work is copyrightable using a largely procedural inquiry. However, such procedural means are often more burdensome than helpful in directly addressing the underlying substantive issues, like robust protection for authors' moral rights. This essay therefore highlights the theme that American copyright law places a greater emphasis on procedure than its international counterparts. More broadly, this emphasis reflects America's overarching process-centric legal values. After all, copyright laws are part of America's widely-recognized proceduralistic legal system.


    It was a cold September morning in A.D. 561. Two warring Irish clans were about to face off near modern-day Sligo County, (1) where its favorite son W.B. Yeats would be born thirteen centuries later. (2) Saint Columba was rebelling against King Diarmait for a supposedly unfair edict. (3) The ensuing Battle of Cul Dreimhne was massive and bloody, and claimed over three thousand lives. (4) This is the first known copyright dispute in history.

    Around this time, Christianity was spreading throughout Ireland. (5) Saint Columba, a tireless scribe who reportedly handwrote over three hundred books in his lifetime, had occasioned upon a holy psalms manuscript in a church and proceeded to transcribe a copy. (6) The original manuscript's owner claimed ownership to Saint Columba's copy as well and appealed to King Diarmait, who announced the first copyright ruling in history: "To every cow its calf and to every book its copy." (7) Saint Columba, the copyright infringer, then rebelled at the Battle of Cul Dreimhne. (8)

    1. Common Roots of Copyright around the World

      This stunning early development aside, modern day copyright law progressed through two major stages. The first copyright revolution was publisher-centric and a result of the invention of the printing press. (9) This revolution is linguistically tied to the word copyright, which implicates acts relating to copying. (10) Prior to the printing press, copying a text was laborious, expensive, and time-consuming. (11) Therefore, restricting control to the original text was a sufficient means to control the copying of the text as well. (12) With the printing press, however, mass production of information became readily available. (13) In response, many governmental and religious authorities wanted control over what was printed. (14) Thus, some of the first copyright laws were edicts that either sanctioned or prohibited the printing of specific texts. (15) For example, in 1486, the Duke of Venice sanctioned the printing of a book on the history of Venice through an exclusive grant. (16) Conversely, in 1501 "Pope Alexander VI issued a bull...against the unlicensed printing of books," and in 1559, Pope Paul IV issued a list of prohibited books that could not be printed, entitled the Index Expurgatorius. (17) Renaissance copyright was therefore a means of state censorship. (18)

      However, in order to balance censorship with the promotion of a publishing industry, governments began providing broader monopolistic copyright privileges as a systematic form of printing-approval. (19) Instead of sanctioning or prohibiting individual works, states began to grant exclusive privileges to individual printers (and later, to printing guilds), to whom they trusted to print without subverting state power. (20) Such a system was established in order to support and develop a publishing industry to the state's liking. (21)

      The first copyright revolution thereby developed privileges that became state-backed monopolies on printing, with the resulting copyright belonging to the publishers.

      Moreover, this copyright revolution was not Eurocentric. Even though Pi Sheng beat Johannes Gutenberg to inventing the movable type printing press by almost four hundred years, (22) the Song Emperor in 1068 issued an order banning the printing of the "Nine Books," which were written in the preceding dynasty in order to curb subversion of dynastic power (23)--much like the European authorities would do five centuries later. (24) And like the Europeans, the Song authorities eventually required all publishers to seek a state-granted license before any book could be printed. (25)

      This tremendous monopolist power granted to copyright privilege holders became its own undoing as copyright law entered its second revolution. By the late seventeenth century, the printer guilds in England had become so powerful and its monopoly grew so large that all legally printed books had to register with one consolidated guild--the Stationers' Company. (26) With monopoly came inevitable abuse. The Stationers' Company eventually upset many famous and powerful authors over its course of business by printing against author wishes or without appropriate contractual compensation. (27) John Locke and John Milton had both personally petitioned Parliament for redress against the Stationers' Company. (28) Along with these grievances, the printer guild's tremendous (monopoly-created) influence alarmed Parliament, who finally refused to renew its monopolist privilege in 1695. (29) In its place, after fifteen years of political struggle, (30) the now-famous Statute of Anne was passed in 1710, which granted authors of books the exclusive right to print and copy their works for fourteen years. (31)

      The Statute of Anne became the model legislation for all modern copyright law because it was truly revolutionary in three respects. First, this was the first form of copyright via legislation, rather than licensing. (32) Although copyright was still a state-sanctioned monopoly, it was available for all those who qualified and not just those who catered to the state's interests. (33) Copyright thus became public law instead of private law. (34) Second, this legislation was author-centric. (35) The copyright belonged to the creator of the work and not its publisher. (36) In fact, the statute specifically states that it was enacted as a response to the abuse of the prior system:

      Printers, Booksellers, and other Persons have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future.... (37) Conceptually, this was an all-important legal innovation. Copyright was now an extension of traditional property: a literary work--to be printed and copied--was considered the author's intellectual property ("IP") and was tied to the author's creativity, morals, thinking, and natural rights. Third, and most importantly, the statute pivoted the fundamental purpose behind copyright from censorship to utilitarianism. (38) The statute states that it was enacted "for the [e]ncouragement of [1] earned [m]en to [c]ompose and [w]rite useful [b]ooks." (39) Under the Statute of Anne, copyrights were granted as an incentive to produce intellectual creations. (40) This is a fundamental shift from the prior purpose of a state check against subversive publishing. This innovative copyright revolution therefore developed a system that incentivized authors to produce works that would be protected by legislation. All future copyright regimes would be built on these foundations. (41)

      However, these foundations are not without some degree of internal conflict. For example, the United States was one of the first nations to absorb the revolutionary ideas embodied in the Statute of Anne. (42) Nevertheless, the Americans firmly emphasized a utilitarian-driven copyright purpose, by prefacing the copyright clause in their new Constitution with: "To promote the [p]rogress of [s]cience and useful [a]rts...." (43) This is one of only two clauses in the entire Constitution to state a purpose. (44) Conversely, post-revolution France emphasized a different aspect of the Statute of Anne by focusing on copyright protection of the authors' rights. (45) The National Assembly endorsed an author-centric focus by declaring that a copyright is part of a citizen's natural rights, and by calling France's first copyright statute the "declaration of the rights of genius." (46) These differing emphases of the Statute of Anne continued for all subsequent copyright legislations. For example, modern American copyright law remains much more utilitarian in purpose than European copyright law, which provides far more rights-of-authors protections. (47) Inspired by such fundamentally revolutionary but sometimes conflicting purposes, it should perhaps not be surprising that specific facets of copyright legislations in many countries aim to protect that country's vital interests, with similarities and dissimilarities resonating with contemporary economics. (48)

      In the United States, for example, it may initially be surprising for a casual browser of the U.S. Copyright Act to read that semiconductor chip designs are...

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