Professor Kaplan, who served as justice for the Massachusetts Supreme Judicial Court and was the Royall Professor of Law Emeritus at Harvard Law, passed away two days ago. It seems a little eerie; his classic book, An Unhurried View of COPYRIGHT (1967), was lying open on my desk when I came upon his obituary. I had returned to the little book specifically to write this week’s post. Perspective is needed for the current Canadian debate and Professor Kaplan’s work came to mind.
In the foreword of the book, then-Dean of Faculty of Law for Columbia University, William Warren wrote:
The timeliness of Professor Kaplan’s analysis of the law of copyright in light of technological and social developments is underscored by current efforts, begun some ten years ago, by the Register of Copyrights, to accomplish a sweeping revision of our Copyright Law … Even more recently, new aids to dissemination including the growth of computer technology, have magnified the problem of control in securing “exclusive rights,” and increased the numbers of claimants for protection.
Professor Kaplan’s emphasis on the desirability of greater freedom of dissemination of ideas is especially significant because it is at odds with the strong contemporary trend towards more restrictive and longer protection of the exclusive rights of writers and composers. In addressing himself to the challenging issues involved in the protection of literary property with clarity, erudition, and wit, he renders a special service by questioning some of the timeworn assumptions in the copyright field.
An Unhurried View of COPYRIGHT was one of the first books on copyright that I found. I had no knowledge of the law and no recognition of the name “Benjamin Kaplan.” I read his book, all the while completely unaware of his history as a jurist and as a copyright expert. What had drawn me to the book was its modest size and accessible prose. But the unpretentious demeanor of the book should not be confused for a lack of rigour – Professor’s Kaplan talent was such that he could convey the intricacies of copyright to those outside his discipline.
Professor Kaplan is quoted, as saying “I had no thought of a career … If I had, I might have become a reporter or something to do with writing.’’ Speaking of the challenge in explaining a case’s outcome, he said it requires a judge to “explain it in a way that satisfies not only the Bar and the specialists but also the general intelligent public. There is not much difference in the end between judging and teaching. The job of the judge, like that of the teacher, is to instruct, to educate.”
BTW: This theme of accessible language is present in Canadian courts as well. Former Canadian Supreme Court Justice Right Honourable Robert George Brian Dickson (1916-1998) was noted for the clarity of his writing. I remember reading years ago that Justice Dickson was the pioneer in making our high court decisions readable. After sifting through a heap of old newspaper clippings I found the article: “Doing the write thing,” by Richard Blackwell for the Globe and Mail. (A further hunt through Google puts the date at 5 November 2005). Dickson was keenly aware that the nature of the disputes that reached the Supreme Court had relevance to large segments of the Canadian population and thus should be comprehensible.
Coming back to Professor Kaplan’s wisdom, the last pages from An Unhurried View of COPYRIGHT are prescient. He speaks of a “bedtime story or pipedream which you are at perfect liberty to disbelieve.” That pipedream takes form as:
… linked or integrated systems of networks of computers capable of storing faithful simulacra of the entire treasure of accumulated knowledge and artistic production of past ages and of taking into store new intelligence of all sorts as produced. The system will have a prodigious capacity for manipulating the store in useful ways, for selecting portions of it upon call and transmitting them to any distance, where they will be converted as desired to forms directly or indirectly cognizable … (p.119)
At the end he suggests:
Probably the law of the future will lose patience rather quickly with the mere idiosyncratic withholding of access. But I should hope there will be play for the humane development of the “moral rights” of authors to prevent abuses in the exploitation of their creations. This will be especially important if copyright itself recedes as a significant control … It may appear sensible to displace copyright and substitute other, perhaps more direct, encouragements to original production. We may in any case expect legislators of the future to regard copyright as only one among a number of expedients for stimulating creativity. (p.120-122).
In a companion piece, Bryan Marquard of the Boston Globe writes: “Those fortunate enough to sit in his classrooms at Harvard Law School, however, had the greatest proximity to a professor who, along with the subject at hand, taught them how to write, how to think, how to love language.” Benjamin Kaplan died August 18, 2010 from pneumonia. He is survived by a son, daughter, grandchildren and great-grandchildren. He was 99 years old.
Saturday morning update:
Last night I kept wondering about the work of Felicia Lamport, Professor Kaplan’s late wife. As described in some of the links above, she was a well-known poet and satirist. Yet I had a feeling that I had seen her work in a different context. This morning I found it: Heteronyms!! This piece was originally published in the Smithsonian Magazine in 1988.