Simply Mad About the Mouse

Who Owns This Sentence?

By David Bellos and Alexandre Montagu

Norton, 384 pages, $28.99

"Every three months, the Performing Rights Society of Britain sends me royalties on "Caught Steelin'," a country-funk instrumental I co-wrote and recorded 20 years ago. Whenever it appears on the soundtrack of, say, a daytime TV show about antiques, I receive about 12.5% of the royalty pie. I receive thinner slices from sales of the books I have written; the typical royalty on paperbacks is 8%. When the painter Walter Sickert defined genius as the "instinct of self-preservation in a talent," what he might have meant was: Always keep your copyrights, for some day they may keep you.

Copyright law began in London in 1710, with the Act for the Encouragement of Learning (known, after the queen of the day, as the "Statute of Anne"). This fixed into law an ancient moral principle: Plato was outraged when a student named Hermodorus published his lecture notes in Sicily without permission -- perhaps history's first bootleg recording. Pliny the Elder compared unattributed copying to theft ("plagiarism" comes from a Latin word for "kidnapping"). This moral sense endures in university honor codes; former Harvard president Claudine Gay, see me after class.

Authors of books still claim the "moral right" to be named as the perpetrator of the work. But the creator is also often the little guy, deprived of his moral right by legal maneuvers. Richard Berry, who wrote the much-covered R&B hit "Louie Louie" in 1955, once told me that he saw no royalties until he lawyered up in the 1980s.

In "Who Owns This Sentence?" David Bellos and Alexandre Montagu explain how copyright became an invisible economic architecture that governs not just vital matters such as royalties, but also ephemera such as commercial trademarks and medical patents. Mr. Bellos is a professor of French and comparative literature at Princeton, and Mr. Montagu is the founder of an intellectual-property law firm in London. They ask whether the invisible hand has now bent the little guy's arm so far back that copyright has changed from a means to incentivize creativity to an "engine of inequality."

Before 1710, British printing had been regulated by the Licensing of the Press Act (1662). The act granted a print monopoly to the Stationers' Co. The Stationers bought the rights to authors' work (the "buy-out," as it's known) took all the profits; it was also effectively the censor on behalf of the state. The 1662 law expired in 1695, and 15 years of debate and lobbying began. John Locke called it "absurd" that the work of Julius Caesar or Livy could be copyrighted. The printers protested a "notorious invasion of the property of the rightful proprietors." In 1710, Parliament proposed a compromise. The printers retained "right of copy" (the right to print and sell) for 21 years. The authors, or their assignees, retained ownership of the contents. The book business was born.

In 1774, a new law affirmed that publishers only had limited rights to dead authors' work, after which it entered the public domain. The printers were still in charge, and authors had yet to receive royalties, but competition now gave the public more and cheaper books. Then as now, publishers gambled on living writers, but found the dead more dependable earners.

Meanwhile, copyright began to be applied to other media. In 1735, Parliament approved a petition from William Hogarth and his club, the Sublime Society of Beefsteaks, that engravings should be considered printed matter. In 1777, the publisher Longman was caught stealing the sonatas of Johann Christian Bach, the youngest son of Johann Sebastian. Lord Mansfield, bless him, ruled that music was one of the "other writings" covered by the Statute of Anne. These precedents would shape American and global jurisprudence as copyright spread around the world.

While the British argued over commercial rights, the French discovered that copyright, like the rights of man, was inalienable. Denis Diderot argued in 1761 that a book expressed the "spirit of the man of letters." In 1777, a French law granted authors lifetime rights of property in their works. The philosopher and mathematician Nicolas de Condorcet, notably, rejected the claim that copyright encouraged "learning," and asked why he could freely print a "general theory of mechanics" but would be breaking the law if he reprinted a "pretty poem" without permission.

The treatment of copyrights and practical intellectual property, such as patents, remains unequal. "Why should Donald Duck belong exclusively to Disney for nearly a century," the authors ask, "but a miracle cure belong to the company that created it for twenty years at most?" Copyright law is a jerry-built skyscraper. Condorcet died late enough to benefit from the French law of 1793, which extended his exclusive rights 10 years after his death. The American copyright law of 1790, by contrast, was closer to the British law: 28 years from publication, plus another 14 if you were still alive, but nothing posthumously for your heirs.

In any case, the American law had, the authors write, "minimal effect." Piracy of imported literature was the norm in the United States throughout the 19th century. That changed because of a dispute over a staple of the American printing industry, circus posters. When the Wallace Circus ordered nearly identical promotional posters from the rival printing firms of Bleistein and Donaldson, Bleistein sued Donaldson for infringement. In 1903, the Supreme Court ruled in favor of Bleistein. The real loser was the unknown artist who created the posters for the Wallace Circus and was paid $100.

"The word author," the U.S. Copyright Reform Act of 1909 confirmed, "shall include an employer in case of works made for hire." Messrs. Bellos and Montagu call this definition of employer as author an "offence to common sense." The author and employer are supposed to be different parties to the transaction, they insist. They argue that the 1909 act discreetly restored the "feudal" pre-1710 system of buy-outs by giving employer-owners an incentive to buy up and exploit authors' rights (soon to be known as intellectual property, or IP").

Thanks to Johann Christian Bach's precedent, the Summy Co. and Warner/Chappell Music raked in around $2 million between 1949 and 2016 from the rights to "Happy Birthday to You." In 1996, the American Society of Composers, Authors and Publishers even tried to shake down the Girl Scouts for singing "God Bless America" around the campfire. By then, the United States had turned from pirate to international IP policeman, pushing the expansion of copyright across the world.

Fifty years ago, the authors write, the value of cross-border copyright licensing was less than a billion dollars. By 2021, it was $508 billion. The wealth of 16 of the world's 50 richest people, they claim, derives "in whole or part from copyright industries." While copyright law has spread across the globe, copyright ownership has centralized. The capital valuations of Microsoft, Apple, Alphabet, Amazon, Meta and Disney are, the authors write, "almost entirely constituted" by the ownership and sale of copyright material. The income of musicians and writers, meanwhile, has declined.

To the authors, it is as if intellectual property were back in the hands of a "small cartel of wealthy printers." As copyright spreads, the "tax on reading" once paid by 17th-century Londoners has become a global levy on everything from phone apps to Mickey Mouse plushies. They estimate that the U.S., heartland of an "empire of I.P.," extracts a "net tribute" of $80 billion from the rest of the world. "There is probably no way of computing," the authors assert, "what share of your expenditure trickles upwards through retailers and distributors and manufacturers to the ultimate owner of the almost everlasting rent-generating monopolies."

The authors argue for comprehensive changes in copyright law, but even if you accept their diagnosis that might not be the right prescription. If market agglomeration is harmful or wrong, that's an issue for antitrust law, not copyright law. Royalty payments did not decline because copyright owners agglomerated. Incomes from selling new music and Shakespeare reprints alike declined because digitization depressed the value of information. Where copyright is defended, as in the film and TV business, it still pays.

Immanuel Kant thought writing could no more be owned than a "puff of hot air," but the philosophers at the Walt Disney Co. proved otherwise. The initial copyright on Mickey Mouse was set to expire in 1984 until Disney's lobbying secured a 20-year extension in the Copyright Act of 1976. Disney obtained a further extension in the Sonny Bono Copyright Term Extension Act of 1998. Though Mickey's earliest incarnations entered the public domain on Jan. 1, his earning potential is regularly refreshed by tweaks to his design.

The law of the land is "Don't mess with the Mouse," but for how long? Messrs. Bellos and Montagu predict that artificial intelligence will transform IP. When copyright holders sell us infinite recombinations of popular material, will the moral right to these products belong to their original sources or to the computer code that shapes them? A precedent may lie in the struggle against illegal sampling in music, in which copyright holders and artists allied against the pirates.

As this thoughtful book shows, copyright law has been revised and rewritten according to changing needs. The authors are right that we need a "broad debate," and they claim their proposals would return copyright to its original purpose: "providing limited support to living creators" but giving nothing to the IP imperialists or to creators' heirs.

This would throw my babies out with the corporations' bathwater. Presumably, the authors intend to pass down some of their assets to any children. Why shouldn't mine enjoy the royalties when -- as will surely happen sooner or later -- a Hollywood movie makes a hit of "Caught Steelin'"?" [1]

1. REVIEW --- Books: Simply Mad About the Mouse. Green, Dominic.  Wall Street Journal, Eastern edition; New York, N.Y.. 03 Feb 2024: C.7.