I’m an attorney with an interest in copyright law. When Noah asked me to participate in this roundtable, I decided to do some research on the history of copyright. I have no background in history.
Why do we have copyright? I figure Wikipedia is probably a decent barometer of common thought. The Wikipedia article on copyright currently has a “justification” section quoting the World Intellectual Property Organization, which states that copyright exists:
“To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”
Awwwwww. It gives creators dignity, and it somehow makes everything cheaper!
Unfortunately, as it turns out, history presents a more sobering story.
Copyright in Anglo-American law can be traced back to the practices of the Stationers Guild, an organization founded in London, England, in 1403. At the time, all commerce was dominated by trade guilds, each having a monopoly on their respective trades. People could only enter a trade by becoming a guild member, and the only way to become a guild member was to perform a lengthy apprenticeship in a guild affiliated business.
The Stationers were not writers, but were tradesmen who manufactured and sold books. Originally, the guild consisted of booksellers, book binders, text letter writers, and book illustrators. After the creation of the movable type printing press (the first English language book created with the new technology arrived in 1473 or 1474) membership shifted to printers and booksellers.
The printing press helped foster social change, in part by aiding the spread of new religious movements. The government responded with laws to restrict freedom of speech, starting in 1534, when a new law was passed making it possible to commit treason through writing alone, books needed to be approved, or “licensed”, before publication and the importing of foreign books, which could contain unregulated ideas, was banned[i]
The government’s increasing desire to regulate books provided an opportunity for the Stationers. In 1557, Queen Mary I, who probably saw a benefit in establishing closer ties between state censor and privacy industry, issued a charter for the Stationers Guild, turning it into the Stationers’ Company. This new charter ensured:
“…only members of the entrenched printing structure would print and sell books, gave them the right of search and seizure of any premises for allegedly pirated or contraband and illegal imported literature, and made fines and imprisonment for three months without trial mandatory for any person whom the company deemed guilty of violation of the law and of their charter.”[ii]
As you might expect, there was a limit to abilities of the authorities, and the monopolists, to stop the pirate book trade. In 1588, for example, Presbyterian tracts were printed by presses that were moved around the country to avoid detection. Evidently, the consequences of getting caught could be extreme: “A contemporary who’s published handbills criticizing Queen Elizabeth the First had both his arms chopped off…”[iii]
The Stationers Establish A Proto Copyright: for their Benefit Only
Over time, a practice emerged in the Stationers Guild where a member would enter into a registry the first edition of a new work, and the other guild members would recognize that the right to print those books belonged to the registering member alone.
Authors had no legal protections at all. While the registration system created some incentive for a printer to pay an author for the first physical copy of a book, if a printer obtained an authors manuscript without payment and reproduced it, an author had no legal recourse.
The parallels to certain 20th century media are really startling:
“All property rights in a printed piece belonged to the publisher. The author might receive payment for delivering a manuscript, and an occasional bonus if it sold well, to ensure access to his future writings. A successful book could go into twenty or thirty editions within a few years, but the author received no more than his first piece of coin. … Writers of broadside ballads rarely got more than a few coppers and all the ale they could drink. Rich amateurs were satisfied to see the finished work and have the opportunity to distribute it among their peers.” [iv]
Statutory Protection “for authors”
Eventually, social change caused a snag in the guild’s monopoly. The end of the 17th century brought the “Age of Enlightenment”, and a new Bill of Rights. The House of Commons became fed up with the practices of the Stationers (Evidently, there was concern over the price and quality of books), and refused to renew the law granted them a monopoly over the book trade. This created a problem for the vested interests:
“For five straight years thereafter, the Stationers’ Company unsuccessfully petitioned Parliament for a new licensing act and then regrouped to develop a new strategy: placing authors out in front as the alleged victims and as the necessary beneficiary of protection against their victimization.”[v]
Forming an alliance with notable authors of the day, the Stationers successfully lobbied for a copyright statute.
They got their wish, in more ways than one. Under the new Statute of Anne, passed in 1710, (granting a copyright of 14 years, with 14 year renewal), the business of making books continued much the same. Authors still generally sold their books to printers, for a flat fee, and the printers owned the books until the expiration of the copyright term. Evidently, authors lacked the ability to effectively bargain with the era’s joint bookseller/ publishers.
It was apparently enough of a problem that, in 1735, a charitable organization, the “Society for the Encouragement of Learning” was formed, dedicated to the mission of publishing books on behalf for authors and giving the profits to authors.
Here’s the really juicy part: in 1738, the Society lobbied for amendments in copyright laws to improve the economic position of authors, proposing a rule which would limit an author’s ability to assign copyright for a term greater than ten years. The Society’s leader, John Caterel, a patron of the arts, stated in 1738 that “the true worth of books and writing is in many cases not found out till a considerable time after publication thereof; and authors who are in necessity may often be tempted to sell and alienate their right which they will hereby have to the original copies of books before the value thereof is known.”[vi]
Ultimately, the amendment was blocked by the House of Lords. As for the Society, the booksellers, protecting their own interests (evidently, many booksellers were also owned printers), refused to carry their books, and the society went out of business in 1748, a failure.
That’s the end of my copyright research. I’m not going to make any direct parallels between the state of the 1730s book industry and media today. Today’s market is undoubtedly more complex, and diverse, than the 1730 book trade. I do think, however, that many of the issues of the time are still relevant to author’s today. To what extent, I’ll leave as an exercise to the reader.
I mainly relied on the sources listed in the endnotes when writing this article, as well as the article “Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475 – 1641” by David Harvey, available at http://www.anzlhsejournal.auckland.ac.nz/pdfs_2005/Harvey.pdf.
[i] Religious squabbles were something of a national past time in the 1500s, which saw the Catholics fighting the Lutherans, and later the Protestants fighting the Presbyterians.
[ii]Sanjek, Russell American Popular Music and Its Business: The Beginning to 1790.
[iii] Moore, Alan “Going Underground” in Dodgem Logic #1
[iv] Sanjek.
[v] Patry, William Patry on Copyright
[vi] Sanjek.
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Update by Noah: This is part of a roundtable on copyright issues. You can read the entire roundtable here.