Re: Article on Protection of History

John Schaeffer <shaeffer[_at_]oslaw.com> writes:
>
> I am in the research stage on an article addressing how the protections
> of works involving history under American Copyright law has not kept up
> with current understanding of history. My thesis is that American
> Copyright law continues to perceive history as an objective constant,
> and, thus, to prevent any one person from owning history, copyright law
> affords works founded on historical events very little protection.
>
> It is my understanding that the current philosophy of the teaching and
> understanding of history has a much stronger subjective component
> (probably a better work than deconstructionism). In particular,
> history is currently colored by the understanding that it involves the
> collection and categorization of particular facts from the myriad of
> facts in a manner that supports the authors views.
>
> My position is that the acceptance of a broad subjective component to
> history has demonstrated that there are a myriad of ways to tell the
> story of any historical event. Applying this position to copyright
> laws should translate into broader protections for works founded on
> historical events by underscoring the expression of creativity that goes
> into a work founded on history and challenging the premise that any
> broader protections to history would take events out of the public
> discourse.
>
> My question -- while probably not the most appropriate for this forum --
> is whether anyone knows of any good references discussing the current
> philosophy of history?

I question your premise that a more subjective understanding of history warrants reconsideration of the copyright law's traditional approach to protection of works of history. I believe the traditional dichotomy between protected expression on the one hand and facts or ideas on the other will still generate the right results.

That there may be a "myriad of ways" to tell "the story" of any historical event doesn't mean that a historian should be able to protect his or her idea about how to tell it. There was recently a wonderful piece of history on PBS based on the diaries of a late 18th and early 19th century New England midwife. Telling that story as a way to get at history was clearly an original idea, but subsequent historians should clearly have the right to apply that idea to telling different historical stories or even to tell the story of the same midwife (provided in the latter case that they don't take too much of the first author's protected expression).

Nor does the new approach to history pressure the standard doctrine that works of fiction are entitled to greater protection than factual works. Other than literary criticism or other fair use, there are few reasons why subsequent writers need to retell the events of the "lives" of fictional characters. But, again using that same PBS special as an example, subsequent historians need to have broad leeway to retell the facts of the midwife's life (again not using too much protected expression) to illustrate their points, or stories, about social life in that time and place. The traditional copyright doctrine still has it right: a novelist has more claim to the facts about the lives of his or her creations than a historian has to the lives of the real people he or she decides to write about, no matter how original or creative that decision may have been.

        --Paul Sleven (psleven[_at_]cybernex.net) Received on Fri Apr 17 1998 - 00:14:42 GMT