Ethics and Law in New Media/The History and Development of Copyright

Prehistory

The moral rights of the creator (similar to the current Continental European droit d'auteur) have existed probably throughout the human history, likewise the property rights on a copy (e.g. a book owned by someone). Also censorship (which is not directly related to author but can still remarkably influence the distribution) is very old. But the whole issue was quite modest up to the age of printing press - illegal copying and distribution were just not enough profitable to be practiced (books were copied by hand by literate slaves or later by scribes and monks - an expensive and slow process regardless of property rights). Yet some sources suggest that in the Roman Empire there was some kind of 'copyright transfer' mechanism - authors were able to sell their works to booksellers who then obtained full control of the creation.

During the Middle Ages, books were written and copied almost entirely by monks as the trade became one of the main activities of monasteries. With a relatively small 'market' (literate population) and further restrictions (due to the slowness of copying, access to the manuscripts was often restricted; sometimes also the decisions what to copy were prescribed by superiors), even the earlier attempts of regulation fell largely into oblivion. The rare cases were probably solved by common law (especially in England and later America where the common law tradition has been strong for a long time).

One of the early examples of 'copyright disputes' can be traced to a major saint of the Celtic church, St. Columba. Tradition asserts that sometime around 560 (another source suggests 557), he became involved in a dispute with Saint Finnian over a psalter. Columba copied the manuscript at the scriptorium under Saint Finnian, intending to keep the copy. Saint Finnian disputed his right to keep the copy. The dispute eventually led to the pitched Battle of Cúl Dreimhne in 561, during which many men were killed. (Columba's copy of the psalter has been traditionally associated with the Cathach of St. Columba.) As penance for these deaths, Columba suggested that he work as a missionary in Scotland to help convert as many people as had been killed in the battle. He exiled himself from Ireland, to return only once again, several years later.

The authors of these times were largely working not on unit basis (paid to write a certain manuscript) but rather employed as full-time creative persons (court poets, musicians and entertainers) - the practice which was prevalent in earlier times and is still much more prolific than suggested by some hardcore IP spokespeople. This applies to the authors of some of the most hallowed creative works in human history - William Shakespeare was a professional playwright employed by the court (Lord Chamberlain Hunsdon and later King James); Johann Sebastian Bach was a court musician in Weimar; Georg Friedrich Handel was a conductor and the director of the Royal Academy of Music in London; Wolfgang Amadeus Mozart was employed in Salzburg, Vienna and Prague (a side remark: one of the early exceptions working as a freelance composer - and thus likely having to deal with copyright issues - was Ludwig van Beethoven). Similar examples can be found in abundance up to our days.

The age of printing starts

The exact chronology of Gutenberg Bible is still disputed, but it is mostly suggested that the printing of the first mass-printed book, a copy of a 1300-page Latin Bible, was started by Johann Gutenberg, the inventor of the movable type, in Mainz, Germany in around 1455. The invention made copying radically easier and shifted the publishing benefits from authors to printers/publishers - the situation which has survived until our days (although the widespread use of Internet in fact started a reverse process!). Quite characteristic to the issue, Gutenberg lost his rights to a rich banker who initially had financed his work, dying as an unknown man. Only after a century, he started to be considered the inventor of typography in the West (as similar technology was used by the Chinese much earlier).

16th-century Germany: Luther vs publishers

Swedish writer Karl-Erik Tallmo has brought up a problem which has surfaced in various times and places, including Germany in Martin Luther's time. Luther being a popular writer, his works were often 'pirated' by publishers. While Luther did see the economical problem, his main concern was the changed content (to the point where sometimes he did not recognize the writing attributed to him).

While Tallmo uses the example to justify (albeit in a moderate manner) the traditional model, this example can well be used to show the adequacy of free licenses - all free licenses protect authorship in cases like these, while not resorting to questionable measures.

Copyright laws in England

From first presses to the Stationers

The first act was passed in 1476 when William Caxton first brought the movable type printing press to England. That year the Crown passed a law requiring all printers to inscribe their names and locations, and the titles of all works they wished to print in a government register. If approved, the printer received authorisation to make a copy. Any rights that came with it, by the way, belonged to the printer, not the author. This way, copyright began as a method for the government to control content (see Gantz & Rochester). During the next 80 years, the Crown issued successively stricter rules against "copying," or creating multiple copies of written work, in order to strengthen censorship.

In 1557 Queen Mary gave the Royal Stationers Company of London, a 150-year old guild of bookbinders, engravers, book sellers, and printers a monopoly on publishing. All books had to be published by the Stationers, as the association came to be called, and the company set prices, determined which members could sell which kind of book to which market, and set up an exchange for trading "copyrights." (which were eternal - they did not expire). We should remember that the authors of that time sold their work to printers for a flat fee; any rights, royalties, or extra sales went to the latter. And again, the real reason for the move was censorship - this gave the Queen better control over what was being printed (we must remember that this was the time of Protestant Reformation with all its colourful history and controversies).

The follow-up Licensing Act of 1662 established a register of licensed books, along with the requirement to deposit a copy of the book to be licensed. Deposit was administered by the Stationers' Company who were given powers to seize books suspected of containing matters hostile to the Church or Government. By 1681 the Licensing Act had been repealed and the Stationers' Company had passed a by-law that established rights of ownership for books registered to a number of its members so as to continue regulating the printing trade themselves. However, as the controversies regarding the issue grew, the Parliament annulled the previous acts in 1694. To make things more messy, the Stationers' acts did not cover Scotland, which during these years became a source of 'bootlegged' writings.

The Statute of Anne

In 1710, the British Parliament passed a remarkable statute that for the first time protected the rights of authors rather than publishers of books. It was entitled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned." (the quotes used here are taken from Edward Samuels' The Illustrated Story of Copyright). The Statute of Anne, which is widely considered to be the first Copyright Act in the world, introduced two new concepts - an author being the owner of copyright and the principle of a fixed term of protection for published works (not more than 28 years). In addition, the authors had to publicly register their claims of authorship, in order to protect the "many Persons" who "through Ignorance" might otherwise "offend against this Act." The Act also brought about the depositing of nine copies of a book to certain libraries throughout the country - "for the Use of the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh.". Not doing so could result in a forfeiture of the value of the printed copies of the books, plus £5 for every copy not so delivered. All in all, the act was a remarkable piece of legislation of its time. However, the Stationers still largely retained their monopoly - and the act covering also Scotland, it ended the influx of illegal-in-England books as well.

The United States

The Constitution, 1787

The Article 1, Section 8 of the original Constitution gives Congress the power to promote "science and the useful arts" through laws protecting intellectual property, but for limited time only. But from the very beginning, the American school of copyright regarded it differently from traditional European practices - as put by Samuels: "we don't have to pay all authors in advance in order to get them to create their works. Instead, we pay them in rights - rights in the very works that they create".

The Copyright Act, 1790

Set the initial copyright period to 14 years, extendable to another 14 (nowadays, the Creative Commons is trying to revive the system as the Founders' Copyright). The law had clear similarities to the English Statute of Anne, including the requirement that one copy of the work be deposited with the clerk of the local district court, and one copy be delivered to the secretary of state - at the time, Thomas Jefferson - "to be preserved in his office." (Samuels ironically remarks that "What a way to build a library! Jefferson must have loved it.").

However, as described by Gantz and Rochester, the century following the Act was marked by rampant disregard of copyrights (called "100 years of American piracy" by G. and R.). First, the Act only covered American authors, and the US being remarkably poorer in terms of culture at that time, all British works were 'bootlegged' with no limits (for sure, consumers loved it - as the price of the locally printed copy was just a fraction of that of the imported original). In turn, works of the US writers were sold to Canada and Britain - again with absolutely no compensation to authors. From 1790 to 1874, American publishers had an informal agreement - the market was divided so that only one publisher copied any given British author. In 1874 however, a new publisher in Chicago found a new business strategy - to offer a full 'library' of affordable 10-cent classics for American homes... Finally an all-out publishing war followed, with some publishers (who had established formal contacts with British authors) starting to finally consider international copyrights.

The International Copyright Act 1886 and the Berne Convention

In 1875 the British Royal Commission suggested that the present Acts should be improved and codified and strongly advised the Government to enter into a bilateral copyright agreement with America to provide reciprocal protection of British and US authors. After preparatory work had been carried out for the forthcoming Conference of Powers (resulting in the framing of the Berne Convention for the Protection of Literary and Artistic Works), the International Copyright Act of 1886 was passed - but the US finally backed off from signing the Convention. The 1886 Act abolished the requirement to register foreign works and introduced an exclusive right to import or produce translations. British copyright law was extended to works produced in British possessions. The UK ratified the Berne Convention with effect from 5th December 1887.

Interestingly enough, the US did not sign the Berne Convention for a long time, doing it finally in 1988. For a quite long period, the 28-year period set by the founders of the US was deemed appropriate. Yet it started to lengthen during the 2nd half of the 20th century, gradually leading to the international copyright system where the copyright can be as long as 70 years after the death of the author. Exceptions are photographs and f ilms - for photography the Berne Convention sets a minimum of 25 years protection from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn't been shown within 50 years after the creation.

The system seemed to work relatively well even through the age of considerable technical inventions and discoveries - until the days of Internet arrived.

References

• GANTZ,J., ROCHESTER, J.B. Pirates of the Digital Millennium: How the Intellectual Property Wars Damage Our Personal Freedoms, Our Jobs, and the World Economy. Financial Times Prentice Hall 2004
• A History of Copyright. The UK Intellectual Property Portal (From Internet Archive; originally located at http://www.intellectual-property.gov.uk/resources/copyright/history.htm).
• TALLMO, K.-E. The Misunderstood Idea of Copyright. Computer Sweden, September 2nd 2005.
• The U.S. Copyright Office.
• Stanford Copyright & Fair Use.
• IPwatchdog.com
• SAMUELS, E. The Illustrated Story of Copyright.

Food for Thought

• Copyright started as a measure to regulate printing, later it gradually started to regulate copying (i.e. duplication). What did the change bring along?
• Compare the disregard of foreign copyrights in the 19th century USA to the similar phenomenon in the former USSR. What was similar, what was different?

To Do

• Nothing here this week - due to the large reading volume of the previous topic