COPYRIGHT C.P.U.
Creators, Proprietors & Users

Journal of Arts Management, Law & Society
Vol. 30, No. 3, Fall 2000 

Introduction

The Age of Myth lives! Today’s episode, however, is not about George Lucas, Steven King, Area 51, Harry Potter or the delayed Second Coming.   It is about a great legal myth (or ‘fiction’ as members of the Bar prefer to call it).  It is the Myth of the Creator summed up in Zechariah Chaffe’s words repeated in the prestigious Great American Law Reviews (Berring 1984):

…  intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property… (Chaffe 1945).

In this article I will explode this myth.  I will expose its roots.  I will follow up its trunk to the poison fruit hanging from its branches. I will argue that we should no longer eat of this fruit.  Rather, we should move deeper into the garden to pluck the fruit from another tree - far from the whispering serpent that corrupted us from the very beginnings of copyright in the English-speaking world. 

          The Adam of our tale is played by the artist/author/Creator who brings something out of nothingness; our Eve stars the User - public and private, individual and institutional - of copyrighted works; the serpent is the Copyright Proprietor – printer/publisher/producer/multimedia conglomerate – who scammed the first fruit from Adam’s hands and persuaded innocent Eve to eat of a now poisoned fruit. 

          In keeping with myth, fairy tale and legal fiction, Time plays a critical role in the drama. The Past is always present; the Future is but the realization of our present hopes, fears and dreaming. During our tale we will relive revolutions, witness the rise and fall of kings and queens, and rejoice in the final triumph of democracy.  We will encounter real life pirates as well as ‘privateers’ doing digital battle with global media barons for the entertainment and software dollar of citizen consumers while in temples of enlightenment – libraries, schools, universities and colleges – a haggard priesthood struggles to preserve the last flickering flame of ‘fair use’.  We will consult with seers, witches and wizards about alternative future worlds dominated by:

• global media empires where ‘all-rights’ or blanket licenses extinguish creators’ rights enslaving mind and matter; or,

• creativity havens where new Adams and Eves regain Paradise to eat again but this time from the Tree of Life. 

The story begins:

The Past

Eight benchmarks will guide our tour of copyright history:

(i)       The Abbot’s Psalter, 567
(ii)     The Printing Press, 1456
(iii)    The English Revolution, 1642-1660
(iv)     The Glorious Revolution, 1689
(v)       The Statute of Queen Anne, 1710
(vi)     The Aftermath, 1769 & 1774
(vii)    The American Revolution, 1776
(viii)   The French Revolution, 1789

(i) The Abbot’s Psalter, 567

The first reported case of copyright infringement in the English-speaking world occurred in 567 of the Common Era. An Irish monk (later to become ‘Saint’ Columba of Iona) visited a neighboring monastery. Therein he copied - without permission - the Abbott's Psalter.  When the Abbot found out he demanded the offending copy be turned over to him; Columba refused. The Abbott appealed to the King who ordered the infringing copy be delivered to its ‘proprietor’; Columba complied (Beck 1998).

A mysterious medieval saying continues to haunt the imagination of Western Civilization: The Axiom of Maria Prophetesta or “Maria the Copt” - One becomes two, two becomes three, and out of the Third comes the One as the Fourth (Jung, 1963: 249).  Among other things, this saying was used to explain the mystery of the Christian Trinity: 3 Gods in 1. For purposes of our story, it will guide our exploration of the Myth of the Creator in the case of the Abbot’s Psalter. 

In the beginning there is a Creator of an original work - thoughts, images, sounds - fixed in material form, e.g. the Abbot’s Psalter.  The one becomes two when the work reaches an owner or Proprietor distinct from its Creator, such as the Abbot.  The Creator may be long since dead or far distant but an intimate mental connection is made and ‘knowledge’ transmitted without the need for face-to-face contact between the two.  This is the ‘extra-somatic’ or out-of-body transmission of knowledge that Carl Sagan characterized as a distinguishing feature of the human race (Sagan 1977).

Two becomes three when the proprietor allows access to the work by a third party – a User, or in our case, a visiting monk.  As long as a ‘copy’ must be laboriously made by a hand then access can easily be controlled by a Proprietor and the ‘right to copy’ is not a problem. Thus in the case of the Abbot’s Psalter, the real question is thus how Columba’s efforts escaped notice until the work was completed

The three becomes the Third, however, in the guise of the ‘public’ at large.  In the case of the Abbot’s Psalter, this public included all potential users of Columba’s copy over whom the Abbot would have had no control if the copy was not delivered up to him. 

And out of the Third comes the One as the Fourth – the State, or the King, in the case of the Abbot’s Psalter. The State is the One in that it is responsible - by royal birth, force of arms or election - for the well being of all citizens including Creators, Proprietors and Users.  One ancient responsibility of the State is censorship of subversive or heretical creeds, ideas and the works that transmits such mental contagion to the public.

Censorship, of course, arose long before copyright.  Thus the Golden Calf led to the Mosaic injunction in Judaism, Christianity and Islam: ‘Thou shalt not bow down to graven images!’  Plato’s Republic banned poets from doing anything save singing the praise of the Gods and Great Men in fear that pleasure and pain, not reason and law, would become rulers of the State (Plato, Book X, 1952: 433-434).  And, there is the first Emperor of China’s Great Book Burning of 213 B.C.E. (Wilhelm, 1950: xlvii) and his alleged assertion: Before Me, No History!  Copying was not a significant problem for ancient or medieval monarchs and dictators who could, and regularly did, reduce a limited number of hand-made copies of proscribed works and/or their Creators to ashes. 

(ii) The Printing Press, 1456

As Europe prospered in the later Middle Ages, an increasingly literate population created a market opportunity for a new type of Proprietor to enter the picture  – the printer entrepreneur.  With Gutenberg’s invention of the ‘moveable type’ printing press in 1456 C.E., once a work was ‘fixed’ in type, copies became cheaper and cheaper as the costs - of acquiring a work from a Creator and typesetting it - were spread over a larger and larger print run – the secret of mass production.  Furthermore, unlike hand copying, once a work was fixed in type each copy was identical; transcription errors could not slip in between production of one copy and the next.  In fact, invention of the printing press marked the true beginnings of the Industrial Revolution – mass production of standardized commodities.

As owner of a capital intensive and technically demanding piece of equipment, the printer quickly became the Proprietor of a Creator’s work.  With few printers and many Creators, Proprietors dictated the terms of sale for a Creator’s work. Usually this involved a single upfront payment extinguishing all future economic and/or moral claims of the Creator to the fruit of his or her efforts. Capital and technical expertise rather than creativity ruled (and still rule) the terms of trade.

Beyond altering the balance between Creator and Proprietor, the printing press also threatened to make copies so readily available that censorship would not be possible.  It quickly became apparent to the Tudor monarchs of England (as well as those of continental Europe) that it was much easier and more effective to control a limited number of presses than a large number of subversive or heretical Creators.  A hand written manuscript could, after all, only be read by a relatively few; typeset copies, on the other hand, could be read by and corrupt many.

Under Common Law many rights initially derive from inscribing or copying one’s name and explaining one’s ‘title’ to property on a register. Thus in medieval England to obtain the right to farm a particular piece of land, one’s name had to be inscribed or written, by oneself or a scribe of Church or State, on a register of tenants.  This was, and is, called ‘copyhold’ to the land (Mead 1999). 

Accordingly, the first copyright law of 1476, the year William Caxton introduced the printing press in England, was a licensing law requiring printers to inscribe their name, location and titles of works they wanted to print on a register.  If approved for publication, the Crown granted a copye to the printer. The rights flowing from this copye constituted “copyright” and were held by the printer Proprietor, not the Creator.  The power of English printers was reinforced a half century later when Henry VIII in 1523, 1529, and 1534 imposed increasingly strict regulations on foreign craftsmen and finally prohibited the free importation of books (Encyclopedia Britannica, publishing, history of England).

The power of the printers was also fostered by other developments in English society.  Since the time of King John and the Magna Carta in 1215, there had been a progressive erosion of the power of the English Crown.  In effect, two things happened.

 First, the powers of the Crown were progressively limited by ‘rights’ granted first to the barons at Runnymeade and then to other ‘estates’ of the kingdom. 

The gild franchises of the merchants and manufacturers gave to them a "collective lordship" similar to the private lordship of the barons, for their gilds were erected into governments with their popular assemblies, their legislatures, their courts, their executives, and even with authority to enforce fines and imprisonment of violators of their rules. Their most important sovereign privilege granted by the King was that of binding all the members by a majority vote so that they could act as a unit. These merchants' and manufacturers' gilds, at the height of their power, were not only legalized "closed shops" but also legalized governments.  (Commons 1939: 225).

These ‘gild franchises’ were the first ‘monopolies’ of the English-speaking world, the monopolies against which Adam Smith was to bitterly complain and Thomas Jefferson fear. The financial and physical capital and technical skills required of printers, together with their ‘copyrights’, made them candidates to become, collectively, what is called even to this day, ‘the Fourth Estate” – the Press.

Henry VIII and his successors issued more and more proclamations against heretical or seditious books. The most important was issued in 1538 against "naughty printed books," which made it necessary to secure a license from the Privy Council or ‘the Star Chamber’ of the King before printing or distributing any book.

In this attempt at control, an increasingly prominent part came to be played by the Stationers' Company.  Since its formation in 1403 from the old fraternities of scriveners, limners, bookbinders, and stationers, it had sought to protect its members and regulate competition.  Its first application for a royal charter in 1542 seems to have gone unheeded; but in 1557, an important date in the English book trade, the interests of the crown (then the Roman Catholic Mary Tudor), which wanted a ready instrument of control, coincided with those of the company (under a Roman Catholic first Master), and it was granted a charter that gave it a virtual monopoly.  Thereafter, only those who were members of the company or who otherwise had special privileges or patents might print matter for sale in the kingdom.  Under the system of royal privileges begun by Henry VIII, a printer was sometimes given the sole right to print and sell a particular book or class of books for a specified number of years, to enable him to recoup his outlay.  This type of regulation now came into the hands of the Stationers' Company.  After licensing by the authorities, all books had to be entered in the company's register, on payment of a small fee.  The first stationer to enter a book acquired a right to the title or "copy" of it, which could then be transferred, as might any other property.

Encyclopedia Britannica, “Publishing, history of - England”

Once the former guild was granted a charter of incorporation by Queen Mary, it re-organized itself into the Company of Stationers of London. With official recognition of the Company's monopoly, its bylaws and its ‘copyrights’, the Company soon became an official institute. The quasi-right known as Stationers' Copyright was based on royal prerogative or letters patent covering the entire publishing industry as an estate. This monopoly was assigned to members as a virtual freehold interest.  No consideration was given to the author's right

Second, as the regulatory powers of the Estates grew the taxing authority of the monarchy declined.  As Parliament – both the House of Commons and the Lords – increasingly refused to approve new taxes, monarchs realized they could raise money (and political favors) by granting charters to new groups or ‘companies’. The number of ‘monopolies’ soared, particularly during the early years of the reign of Elizabeth I.  Near the end of her reign, however, these Crown grants of monopoly were increasingly:

….  adjudged against the "common right and public good," and "against the common law," because, being a monopoly, it was "against the liberty of the subject," and "against the commonwealth.” (Commons 1939: 226).

The process came to a head with the 1624 passage by Parliament of the Statute of Monopolies to abolish the power of the guilds.  This was part of an evolutionary process whereby the Common Law courts progressively stripped the guilds, with one notable exception, of their monopoly powers and assumed responsibility for their regulation.

The next hundred years, until the Act of Settlement in 1700, was substantially the struggle of farmers and business men to become members of the Commonwealth, whereby they might have courts of law willing and able to convert their customary bargains into a common law of property and liberty. The court which abolished the power of the gilds began to take over the work of the gilds. Their private jurisdiction became a public jurisdiction. And the very customs which the gilds endeavored to enforce within their ranks became the customs which the courts enforced for the nation.  The monopoly, the closed shop, and the private jurisdiction were gone, but the economics and ethics remained. Much later, in the modern commonwealth, other functions of the gilds, such as protection of the quality of the product and the qualifications of practitioners, have also been taken over by courts or legislatures  (Commons 1939: 230).

The notable exception to the Statute of Monopolies of 1624 was the copyright monopoly granted to the Stationers’ Company.

(iii) The English Revolution, 1642-1660

Funding the monarch through grants of monopolies was a contributing factor to the English Civil War (1642-1649) that culminated in the beheading of King Charles I to be followed by Cromwell’s ‘puritanical’ Commonwealth (1649-1660).  During Cromwell’s Commonwealth, the copyright monopoly was in fact strengthened as a means of controlling the press. 

The Long Parliament (1640-1660) continued the licensing statutes and strengthened censorship regulations with the threat of fines and imprisonment of authors, publishers, sellers, and buyers of scandalous or libelous materials or inaccurate accounts of Parliamentary sessions. All printed materials had to be licensed by Parliament and published by a member of the Stationer's Company. All presses outside of London, Oxford, and Cambridge were banned. Every item printed needed to have a title page giving the author, publisher, and place of publication.

The Act of the Long Parliament affirmed the rights of individual publishers to their copies and forbade other publishers to “counterfeit” works of other publishers. This was necessary because Parliament had done away with the King’s Star Chamber, under whose provisions the copyright system had developed. It also during this period that John Milton protested censorship in his Areopagitica and made his call for a ‘free press’.