Lionel Bently

Privilege and Property : Essays on the History of Copyright

Read for free online: this volume conceives a new history of copyright law. Privilege and Property is recommended in the Times Higher Education Textbook Guide (November, 2010).

AUTHORSHIP OF POPULAR MUSIC IN UK COPYRIGHT LAW

While the commercial distribution channels of popular music (such as record retailers, radio stations, video channels, web stores), attribute authorship to performers, copyright law requires that a ‘musical work’ be invented ex post facto out of the ‘sound sculpture’ produced by the artist (and others, such as the producer) in the recording studio. This article explains how copyright law came to privilege some types of authorship, discusses the potential effects of recognizing a multiplicity of authorial contributions in the production of music, and argues for a closer correspondence of legal and aesthetic understandings of culture.

From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property

Contemporary trademark commentators frequently assert that trademark rights have been expanded too much, and that one of the root causes of this expansion is the tendency to treat trademarks as a form of property. This forthcoming book chapter places the proprietary model of trademarks in its historical context, particularly that of the second half of the nineteenth century. During this period, English law witnessed the conceptualisation of trade mark protection as property, without a concomitant expansion of rights. For example, English law in the 1870s or 1880s did not provide that trade-mark rights extended to the use of the protected sign on dissimilar goods. This raises a number of questions, including whether the concept of property has greatly changed in the past 130 years, and whether contemporary accounts over-emphasize the role of property rhetoric as a causal factor in the expansion of trade-marks law. While remaining agnostic about whether the expansion of trade marks rights is in fact the result of the use of property rhetoric, the chapter concludes that based on the historical record, it was less the adoption of property rhetoric than a transformation in its meaning that has brought about the change in trademark protection.

'The Sole Right . . . Shall Return to the Authors': Anglo-American Authors' Reversion Rights from the Statute of Anne to Contemporary U.S. Copyright

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors. The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.