What do perpetual copyright protection, the abolition of the requirement to deposit copies of copyrighted works in public libraries, and the judicial power to deny copyright protection to “immoral” books have in common? They all serve the public interest. So, at least, various participants in late eighteenth-century and nineteenth-century copyright law debates in Britain were able to argue, with some degree of credibility. The list is striking to modern eyes because under modern Anglo-American conventions each of the claims appearing in it is usually seen as fundamentally at odds with a normative approach to copyright that is based on the constitutive value of the public interest. The elusive, malleable, and shifting meaning of this value in British copyright discourse during one of its most formative eras is the topic of Alexander's book.
Copyright Law and the Public Interest surveys the development of British copyright law during what might be called “copyright's long nineteenth century” stretching in between the debates of the late eighteenth century and the 1911 Imperial Copyright Act. This was a crucial period when much of the modern copyright framework had consolidated and when many of the social conditions that shaped this framework appeared. Despite some attention devoted to certain episodes, however, the period has suffered from relative neglect in the historiography of British copyright. Therefore, Alexander's book, apart from its interpretive thesis, is an extremely valuable contribution to scholarship in the field by virtue of providing a much-needed comprehensive survey of British copyright during this era. The survey reveals the depth of the doctrinal and conceptual transformation experienced by copyright during this time. At the dawn of the nineteenth century British copyright had a limited domestic regulatory function, focused on the book trade and dominated by the traditional concept of the exclusive right to print a copy of a text. A century later, copyright had become a comprehensive system governing the field of cultural production, having both an international and a colonial dimension, and organized around a broad concept of the right to enjoy the market value of intellectual works.
Alexander's interpretation of this great transformation of British copyright revolves around the concept of the public interest. The thesis is straightforward: although the concept of the public interest played a constitutive role in many of the crucial moments of copyright development, it had no uniform or fixed meaning. The public interest was, rather, a flexible and polymorphic concept. It encompassed different, sometimes conflicting, meanings and values at different times and in different contexts. Moreover, Alexander shows that at times public interest arguments were employed to justify diametrically opposed conclusions and agendas by different participants in a single debate. Descriptively, the thesis is persuasive and well supported. Alexander meticulously maps the myriad copyright contexts in which public interest arguments assumed different guises, covering the entire terrain in between the literary property debate and the early twentieth-century comprehensive statutory reform. Although the thesis is amply supported, it is, nevertheless, not as startling or unfamiliar, as, at times, Alexander seems to imply. Students of intellectual property law and history are familiar with the malleability of the main justificatory concepts in this field. This is true not just of public interest arguments, but in regard to all of the known major justificatory frameworks, including natural rights arguments, authors’ rights perspectives, and democratic theories. The availability of alternative interpretations at crucial junctures and the dependence of application on empirical assumptions that are hard to verify make those frameworks a fertile ground for generating many competing arguments, especially when molded in the hands of interested parties. Therefore, the discovery that sophisticated interlocutors in nineteenth-century copyright discourse managed to mold public interest arguments in many shapes in the service of their various agendas hardly comes as a shock.
Ultimately much of the value of Alexander's public interest thesis resides not in its abstract conclusion, but in the detailed mapping of the many meanings of this trope and the strategies for its use during a crucial period in copyright's history. To the modern reader some of these variants will ring familiar whereas others may seem outlandish, marking the extent to which some of the fundamental assumptions underlying this field have changed. The complex mosaic of copyright public interest arguments excavated by Alexander also delivers a lesson on what could be expected of history in this field. Participants in contemporary intellectual property policy debates often appeal to history in the hope of uncovering immutable and universal principles that can guide modern choices. Alexander's account reveals that a serious historical study is more likely to uncover what she calls “the abyss at the heart of copyright law” (298)—the fact that copyright has always been a battleground of competing normative visions and conflicting interests, rather than a field based on universally accepted, uniform principles. In this way and others the book, in addition to being an essential read for the student of copyright history, also provides much food for thought to those interested in contemporary intellectual property debates.
