Marion Joy*
Background
The Avid Readers Forum of Kabarak Law School, is a platform where people interested in acquiring academic knowledge occasionally gather to discuss various legal topics. The Forum's discussions are often based on academic material such as; articles, speeches, judgements, among others. The discussions are led by a sole discussant or a panel of discussants.
On 20 March 2024, the Forum had the privilege of being led by Guto Mogere.[1] Mr Guto is an illustrious lawyer practising at Kenya's premier law firm, Mohammed Muigai LLP. He is a Partner and Head of the Dispute Resolution and Litigation Practice Group in the firm.
Guto discussed two speeches by Thomas Babington Macaulay on copyright law.[2] Macaulay, who was a Member of Parliament in the United Kingdom, made the two speeches before the House of Commons on 5 February 1841 and 6 April 1842.
The piece below is a lightly edited version of the remarks by Guto, preceded by a brief analysis that gives some context to his remarks.
Introduction
Macaulay's first speech, made in 1841, opposed a bill that proposed to extend the term of copyright in a book to sixty (60) years after the death of the writer. Macaulay argued that the bill posed more harm than good because:
- The bill would increase the taxes paid by readers without accruing that benefit to the authors or their descendants. This was because, in most cases, it was not the author's descendants who would inherit the copyright; publishers and booksellers would own the copyright and monopolise it. The publishers would then accrue wealth at the expense of the readers, and worse, no benefit would trickle down to the author's descendants.
- Inheritance of copyright would result in suppressing readership. This would happen in two ways. First, there would be an increase in the price of books because of the publishers' monopoly of copyright. This would reduce the purchase of books. Second, in the event that the author's descendants inherited the copyright, they were likely to stop the circulation of books for personal reasons. This would happen when the descendants did not support the authors or the content of their books. This would deprive the public of much-needed knowledge and literature.
- The bill would lead to an increase in piracy. Macaulay argued that when people were unable to get books legally because they were expensive or limited, they would pirate them.
The bill was eventually voted down by the House of Commons.A year later in 1842, a similar bill was brought before the House. This second bill sought to have the term of copyright in a book at twenty-eight years after publication and twenty-five years after the death of the writer.
Macaulay's second speech was made at this point opposing part of the bill. His speech began by recognising that the second bill had tried to address the concerns he had raised about the first bill. He then explained that nonetheless, the second bill was uncertain and discriminatory. He demonstrated that the proposed twenty eight (28) years would favour young authors (if lucky enough to live long), over older authors. This time, the House passed the bill after adopting Macaulay's suggestions, with modifications.
While the speeches were very monumental in the evolution of copyright law, what struck Guto was Macaulay's stellar style of arguing/persuasion. Macaulay negotiated with his opponents and the entire House of Lords and managed to convince them to adopt his proposals. He did this while maintaining civil language and a respectful tone. He disagreed by arguing as opposed to quarreling.
Such an art of persuasion is one that everyone, especially lawyers, needs to master. This mastery cannot happen without an understanding of how to communicate properly and in turn, argue effectively. Macaulay's speeches offer great lessons on this. It is these lessons that Guto opted to discuss with members of the Avid Readers Forum.
The following part presents the verbatim report of the remarks made by Guto. The remarks began with his salutation and the opening remarks followed by a brief introduction of Thomas Macaulay. He then shared the lessons Macaulay left behind. In lieu of a conclusion, Guto gave his two cents on the bills that Macaulay spoke about. Following a brief and generous introduction by Ms Sylvia Nyanchama, the session's moderator, Guto addressed the Forum in the following manner:
Presentation by Guto Mogere
Salutation and opening remarks
"First, thank you for inviting me to speak to this important club (forum) of which it is my hope that I shall be admitted as a member.
We share a lot of things with each other, in our WhatsApp groups and other social media platforms. I have my own views about that. My views would probably be different if all those platforms were used for sharing literature. I can think of nothing more conducive to the development of the mind than reading.
Reading requires effort. The less you do it, the more difficult it is. But the more you do it, the easier it becomes. Like anything that you do frequently, it can become a habit. Forming a good habit requires effort; it requires that you adjust your routine, to remove a part of it, and to replace that part with something else. It is not simply a matter of making a declaration, or a decision. It cannot happen by decree. It needs action. This action is made easier when the environment that supports it is there. We are all very much a product of the environment in which we live. If we surround ourselves with books and readers, we will become bookish and literate. Even the lowest common denominator, in such an environment, has a better chance of literacy than the most intelligent person who surrounds himself with drunkards and socialites.
So, I commend you all for putting together this club(forum), and I encourage you to keep it as active as you possibly can. It can never be too active. Knowledge is an objective good. Its goodness is inherent. And it is not subject to the law of diminishing or marginal returns. The more knowledge you accumulate the better.
But also, the knowledge does not stay there. That is why cultivating the habit is even more important. The brain is, like any other muscle, only as good as the amount of exercise it gets at any one point. The exercise you did 5 years ago cannot keep you muscular today. When the muscles are not being used, they atrophy. They do not even stay the same. They wither and disappear. It is the same with the brain. You could pass your Form 4 math exam because you were doing mathematics every single day for about 12 years. Today if you attempt that exam you will certainly fail. So, we learn that to keep the thinking muscles strong, they must be constantly, and regularly engaged, stretched and strained. So, I'd encourage us to keep reading and to make sure that we are reading outside and beyond our comfort zones.
Introducing Macaulay
I was asked to send an article that I would recommend. I was not told who I would be speaking to. What I sent was an extract from the Hansard, the Parliamentary transcripts of the House of Commons. The speech was given in the course of a debate on the law of copyright. The speaker was not a practicing lawyer, but the speech I think, should be enjoyed by lawyers and non-lawyers alike.
It has been almost two hundred years since this speech was given. We are grateful for the keepers of the Hansard to have taken such a good record of it, because, I read somewhere, that the speaker spoke quite quickly. His delivery was sometimes too rapid for the transcribers. But he had built such a reputation for clear, logical, and persuasive speech, that they made sure never to miss a session in which he was scheduled to speak, and never to miss a word of what he said.
The speaker is Thomas Babington Macaulay. He was a member of the Parliament. When he stepped outside Parliament, he was a historian. History, not politics, was his true passion. It was also his source of living. Such was the passion that he sacrificed his seat in Parliament to complete his History of England. It was demanding work, running into thousands of pages, and taking up the better part of 10 years. It is a history I would recommend to anybody for the reason that his command of language is second to none.
Some lessons from Macaulay's speeches
This brings me to the reasons that I selected this piece of work for this discussion today. I have a number of them.
The first is the use of language. Nobody can read this and fail to notice its elegance. Whether you agree with his side of the debate or not, you cannot help but be taken by its sheer appeal. The way that he uses words is almost mesmerising. It is luminous. It brightens what would otherwise be a dull topic. This is important. It is especially important to those of us who want to be advocates.
Our work as advocates is mainly the work of communication. To advocate is to speak for. For us to justify our role as the people who will speak for others, we have to speak better than the people for whom we speak. That proposition, that we speak better than the people for whom we speak, is the only justification for our existence. To do that effectively, we obviously must have the correct linguistic skills. But we are not born with them. Like everything else which we would want everyone else to value, and to pay for, there must be a deliberate and concerted investment.
Language skills are as important in the courtroom as they are across the negotiating table. They are as important in the drafting of pleadings as they are in the drafting up of contracts. They are as important in the writing of emails as they are in the preparing of submissions. Everything that we do as lawyers; the difference between the good lawyer and the bad lawyer is the difference in their language capabilities. It is also the difference between the good lawyer and the best lawyers. Words are our stock in trade.
One of the things that really struck me about this speech that I have asked you to read, is that he was not reading it. The text that has come down to us is the transcriber's notes. He wrote many books in his time. This is not among them. If you are impressed by his oratorical skill, you should only wonder what his written work would look like. Of course, some will not even wonder what that might be. Those types are not to be found among us. Nothing would stir their imagination. But of course, the very best among us will not stop at wondering. They will do something about it. And it is those people whose speeches we will find ourselves reading.
The other point of interest in this speech is the courtesy of the language. This is a political debate taking place in Parliament. But notice the respect with which the opponent is addressed. Notice the effect that has upon you, the impartial reader, who has yet to pick a side. It draws you instantly to his side. Instinctively, you judge this man to be a fair-minded one. You assume that if he could be courteous to his opponent, or that if he could pay him a compliment where he thought one was due, then it must mean that his criticisms are also legitimate, authentic, genuine.
Too often, we are unable to distinguish an argument from a quarrel. We see this in court as well as in politics. The fact that someone disagrees with us makes them an enemy. And because they are enemies, it means we must disagree on everything. And because we disagree on everything, we cannot be respectful to each other. The difference between an argument and a quarrel is this. In an argument, we want to persuade. In a quarrel, we want to injure. There can be no room in effective argument, for name calling or for gratuitous abuse. One of the reasons the quality of political debate has sunk so low is because we seem to have forgotten this basic point. We have to play the person as well as the ball. We see that here (Kenya). We see that in America as well. We saw it in our recent law society elections, where every opportunity to endear yourself to the voter, by showing an unexpected courtesy to your opponent, was squandered.
From experience, I can say that this is the only trick I have used to any effect in court. Being courteous and respectful will always earn you some esteem. I say that it works like a trick because the courts find it uncommon. It takes the opponent by surprise and sometimes takes the wind out of their sails. It will take the witness by surprise. For many people, being on opposite sides means being nasty. When you are kind, your opponent finds themselves reciprocating. And then, for some people, it is impossible to be kind and to disagree at the same time. It is a sort of cognitive dissonance, which they are unable to untangle. They therefore find themselves forced, by nature, to agree with you. It is a simple, basic, natural human instinct.
Then, of course, there is the advocacy. The art of persuasion. What tools of advocacy do we see here? We see all of them. The use of language, which we have talked about, as well as the unfailing courtesy. But look at how he states the problem. He reminds them that such a discussion must be emptied of any mysticism, and must be dealt with, not upon cloudy principles, but by looking at practical purposes. He urges them to look at the question, not as philosophers or prophets, but as practical men, and legislators.
Then look at the use of analogy.Observe how he takes different cases which illustrate his point. Why do we do this? Because we want to create a vivid picture in the imagination of the person listening. They should not only hear the words, there should be both audio and visual stimulation, save that the visual activity is taking place only in the imagination. But to do this one has to know the subject well, and to have read widely upon it. This technique can only work where the selection of the example that you seek to rely on is apt. It will fail miserably and completely if it is distinguishable in some relevant aspect.
Notice the sense of balance and proportion. He concedes that his opponent, to whom he continually pays respect, has brought this bill with the purest of motives, and that he knows he regards the subject, with a parental interest. I think once he said that, he bought himself the widest latitude within which to attack the Bill. Certainly, he cannot be accused of taking it personally, which always dilutes the effectiveness of any argument. Once a personal interest is detected, objectivity is impaired. He then goes on to say that he is not sure that the solution which he offers is necessarily the correct one. And then makes the rest of the argument on the very narrow point, that is, that it is less bad.
Which, incidentally is the other lesson of advocacy. Look for the best point. And then ask yourself, 'what is the best that can be said about this point?' Bad points drown out good ones. A single point is all that is needed. Rarely are two or three points the basis of genuine, legitimate argument. There will be a single point, the one which really divides the parties. The others are incidental and subsidiary. Identifying that point is not always easy. But that is the point of the forensic advocate. There is nothing duller, nothing less appealing than listening to disagreement on things that do not matter; on things which are only accessories to those that do.
Finally, my other reason for recommending this speech is its longevity.Two centuries on, and you will be hard pressed to find a better exposition of the law on intellectual property. It explains the law of copyright the way it should be explained; by reference to principle. We study the law but do not actually think about it. And we have robbed ourselves of our powers of analysis. We have many law graduates who, because they do not engage the animating principles of the law, actually know some law but do not understand any of it. Many of them have been trained to pass exams, they are great test takers, but have no training in thinking, and so of course, avoid all forms of thought.
As you study the law, ask yourself how it works, what is it there for, what is the objective, the motive, the mischief? How do the principles in this area of law work with the principles in another area of law? How does a change of direction in one area affect other areas? At first the different areas of law seem unconnected. But that means you have only not dug deep enough. It is a seamless web. Our work is to discover and explain how it is all reconciled.
An afterthought
As for the effect of these speeches? Not too much, I am afraid. Macaulay was worried about a sixty (60) year, then a twenty-five (25) year posthumous monopoly for the author.He says that this would not compensate the author, nor add any motive to produce any better works. The cost to the public, in the absence of a motive to the author, he said, cannot be justified. Well, our Kenyan Copyright Act extends that monopoly for fifty (50) years. I cannot think of how this was justified.
He warns that the danger of a law like this, is that its evil effects would be corrected, not by law, but by piracy. And we see that today. When DSTV is too expensive, people will still find a way to watch football. And they will find cleverer and cleverer ways. It is the same problem we face with marijuana and with changaa. And even with the highly controversial issue of abortion. When you make things illegal, or too expensive, and yet people want or need those things, experience teaches us that you only create the conditions conducive for criminality to prosper.
Thank you for listening to me"
*Marion Joy is a Lawyer and former coordinator of the Avid Readers Forum. She wishes to thank Guto Mogere, for his great thinking and research, which is the basis of this piece. This piece is substantively his.
[1] Guto Mogere is a Partner and Head of the Dispute Resolution and Litigation Practice Group in Mohammed Muigai LLP.
[2] The speeches are available at https://yarchive.net/macaulay/copyright.html
