Abstract
A characteristic of lawyers, shared by practitioners and legal academics alike, is to believe that legal institutions and rules exist at the center of things – shaping how people see the world, how they think and go about their lives, how they engage in leisure activities and how they carry on business. If this is particularly evident in the academy then it is (probably) because it is exactly our job to reflect on the relationship between law(s) and the multitude of activities and emotions that constitute the human condition. It takes a particular level of intellectual refinement supported by solid empirical research to step back from this foundational misapprehension and to understand, not just that legal institutions are not always central, but are also often used in ways that seems to contradict what we understand as their basic (legal) character.
One of the great achievements of Kathy Bowrey’s new book is her use of detailed and meticulous archival research on the history of three so-called “copyright industries” – literary publishing, film and music - to de-center the role of the eponymous legal institution of copyright in the development of those industries. Using historical materialist method and a critical feminist lens, the book examines copyright’s relationship with capital accumulation, international trade and cultural policy. The evidence it presents for de-centering copyright is mixed and Bowrey’s argument is appropriately nuanced in light of that evidence Focussing on the commercial exploitation experiences of a collection of celebrity authors and artists, the book draws our attention to the competing importance of other intellectual property rights and, in particular, of contractual relationships. The book does not allow us to come up with a simple explanation of the relationship between the commercial exploitation of creative works and various legal devices employed in the process; it certainly does not allow us to side-line copyright. Instead, it puts copyright in its proper place. At the same time, and despite its de-centering, the book offers its readers an excellent and detailed institutional history of copyright.
The role of copyright in the development of the cultural industries is not the only thing de-centerd in this account. Bowrey gives close and compelling attention to the role of the author in copyright law. The evidence presented in the book undermines the rhetorical claims of copyright to be author-centric. Instead, the book demonstrates that the concept of the author has been consistently instrumentalized to justify the extension of copyright to the publishing and production houses that are engaged in the reproduction and distribution of copyright works. This analysis is critical to the book’s account of the political economy of copyright law, historically and currently. As Bowrey writes, the book provides “[h]istorical answers to contemporary questions about corporate control” (210), noting elsewhere that “[t]he enduring rhetoric of the universal right of authors fabricated in the late nineteenth century masks contemporary recognition of how historical disadvantage is perpetuated” (95). The tragedy or irony (or farce) is that authors – and especially celebrity authors – continue to be complicit in this state of affairs, regularly appearing in influential fora in order to argue for extensions to copyright rules that, in the end, favour the production houses. The picture the book paints of a complex, bureaucratic and confused legal landscape that is not understood by those whose livelihoods and cultural environment are affected by it, nor necessarily by the judges who are called upon to make selective interventions into it in individual disputes, amply justifies Bowrey’s skepticism about the capacity of celebrity authors to act as “representative spokespeople” (103, 201).
The book also challenges the tendency of political economic accounts to focus on those putative occidental centers of the cultural industries, London and New York. It examines the relationship of these cities in the colonial and post-colonial period with the development of the literary, film and music industries in Australia, primarily, but also with some attention to the Canadian position. Here, not only do we see a geo-political correction to dominant themes in scholarship, but also a theoretical one. With the “imperial legal heritage” (69ff) of copyright in its sights, the book explores the way in which the more common theoretical focus on the relationship between copyright and modernity tends to suppress its imperial dimension. In this respect (as in others), the book resonates with the work of Canadian scholars Laura Murray, Tina Piper and Kirsty Robertson in Putting Intellectual Property in its Place: Rights Discourses, Creative Labor and the Everyday (Oxford: OUP, 2014), a book that also seeks (as its title suggests) to de-center and re-position the institution of intellectual property in the light of a rich empirical account of industry behaviour. I can only speculate, but I would like to think it is not a coincidence that the two most important recent works using empirical research to de-center all sorts of assumptions about intellectual property law and its real operative life come from scholars based in former colonial states. It is time for a project that opens up mainstream intellectual property discourse to a much wider range of post-colonial voices and experiences.
Perhaps, in the end, while this book teaches us that copyright law is not as central as we think to the commercial exploitation of creative works, it also shows us that its significance is not what is ascribed to it by positive claims about rights. This is a critical lesson that we need to ingest over and over again. Learning it through reading accounts of the experiences of nineteenth and twentieth century celebrity authors, artists and performers is as enjoyable and interesting as it is important. The role of these figures in driving the dynamics of the relationship between the cultural industries and copyright, and the fate of non-celebrity authors to be dragged in the wake of these dynamics, is beautifully exposed and analyzed. Where do we go from here? Let us hope that one of Bowrey’s celebrities is mistaken in his claim that “The revolution is for display purposes only” (Banksy, Wall and Piece. New York: Random House, 2006, 2).