The doctrine of free trade dominated Victorian policy discussions for decades — including those about copyright law. But the application of free trade doctrine to copyright policy discussions was not at all straightforward. Professed free trade supporters disagreed profoundly on the question of copyright. Some saw it as an illegitimate restriction on trade, while others viewed it as a mode of enforcing a natural property right. Why did the application of free doctrine to copyright policy result in such widely divergent positions on the proper scope and purpose of copyright law? This article attempts to answer that question, focusing on the 1878 Royal Commission on Copyright as illustrative of the extent to which free trade doctrine failed to guide copyright policy consistently. The complex relationship between free trade and copyright is a powerful example of the extent to which political ideologies are not predictive of individual views on the optimal scope of copyright protection. ….
Although politicians, economists, and authors - and plenty of Victorians were all three - strove to fit copyright law into broader theories, questions of copyright policy and reform did not enter the realm of party politics as such. As Scrutton explained “the reform of the Copyright laws is not a ‘party question’ and authors are not deemed to have votes.” The Copyright Commission illustrates how individuals with similar political and economic views could disagree about exactly where copyright and other kinds of intellectual property fell within the framework of their ideologies and how those with opposing political views could find common ground in their approach to copyright. In 1883, the economist Henry Sidgwick also noted the dilemma faced by those attempting to apply classical economic principles to copyright law.
A different kind of problem has somewhat perplexed and divided the adherents of natural liberty in respect of property in the results of intellectual labour. On the one hand it has seemed clear that the man who works with his brain has as much right to have the fruits of his labour secured to him as the man who works with his hands. On the other hand since the only effective way of protecting such fruits is to prohibit imitation on the part of others, it is not surprising that this very exceptional interference with the freedom of action of those others should have been thought by some persons to conflict with the principles of natural liberty.
For writers like Scrutton and Sidgwick in the 1880s, the Commission’s debates brought this complicated relationship between copyright and political economic thought to the fore. It is a paradox that attracts insufficient attention today. Fundamental philosophical differences about the purpose of copyright law and the empirical challenges presented by assessment of its effects, for good or ill, still make it difficult to assign copyright a role within larger political or economic frameworks. Moreover, the question of copyright law was often viewed as rather difficult, esoteric, and, ultimately, perhaps just not as important as other political and economic questions of the day. In consequence, disagreement about copyright’s normative foundations and the complexity of its application created surprising allies and enemies. The fact that the great minds the nineteenth century had difficulty placing debates over copyright firmly into prevailing economic theories and political agendas provides another compelling reason why the royalty proposals must be set within the context of such theories and agendas in order to be understood.