Copyright C.P.U.   (page 2)

(iv) The Glorious Revolution, 1689

With Restoration of the Monarchy in 1660, however, the new King Charles II began once again to exercise the Royal Prerogative of granting monopolies including that to the Hudson Bay Company (1670).  With respect to the copyright monopoly, the Restoration did not change the status quo.  An act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses was passed in 1662 in keeping with prior laws. This new Act was regularly renewed under Charles II, James II, and in the early years of William and Mary. The rights of the printer/publisher under his copy remained perpetual. 

The final constitutional battle between the Monarchy and Parliament occurred with “The Glorious Revolution of 1689” when the last of the Stuart monarchs, the catholic James II, was deposed by an Act of Parliament and replaced by his ‘protestant’ daughter Anne and her consort William of Orange. 

Franchises were not taken from the personal control of the monarch until the victory of parliament in the civil wars and not completely until the Act of Settlement in 1700, which confirmed the Case of Monopolies of 1602 and the Statute of Monopolies of 1624.  Taxes were not made certain until, after 1689, they could be levied only by consent of Parliament.  By these measures business, based on predictable prices, was permitted to develop unhampered by arbitrary interference of the sovereign. (Commons 1929: 231).

Thus ended the first ‘antitrust’ campaign in the English-speaking world.  The copyright monopoly, however, took another more convoluted path summed up in the words of Patterson:

[Queen] Mary incorporated the Stationers' Company "to set up a mode of regulating the English printing trade that would facilitate the efforts of the Romish clergy to stamp out the Protestant Reformation."  But the motives of the stationers "were of a less exalted kind."  Thus, Elizabeth, relying on the stationers' self-interest, confirmed the Charter to turn the stationers to support the English, rather than the Romish church, and the Stationers' Company became, in turn, the instrument of the Stuarts against the Puritans, in the early seventeenth century; the instrument of the Puritans, against their royalist enemies, when the Puritans came to power; the instrument of the royalists against the Puritans, after the Restoration; and, for a brief time, the instrument of the triumphant Whigs, after "the glorious Revolution," of 1688.  But through all these vicissitudes, the stationers themselves steadfastly remained, what they had always been, eminently practical men; and they consistently protected their monopoly. (Patterson 1993)

Pressure was rising, however, in English society to recognize ‘a free press’.  Aside from Milton, John Locke proposed tolerance of different opinions – religious and political.  Since the introduction of the printing press in 1476, censorship of publications before printing was affected through a series of Licensing Acts.  In 1695 the last of these Licensing Acts was allowed to lapse.  Government control was henceforth limited to post-publication libel law.  Suspension spurred development of “a free press’ that could publish without the prior consent of the authorities.

The Golden Age of the Stationer's Company thus ended with the demise of licensing or prior censorship laws and with it the legal basis of their copyright. The Stationer's Company was not, however, immediately affected.  It remained a book cartel with its members respecting each other’s copyright.  The monopoly was maintained because the name inscribed in the Stationers' ledger was not the name of the author but rather the name of the printer/bookseller/publisher. Author's continued to sell their works to printers, usually for a flat fee, giving up any rights to future royalties, even if the book became popular. Generally, once entered into the ledger, the "copy-right" was respected by the other members of the guild. Within the guild, the "copy-right" to books written by those dead hundreds of years were bought and sold. The printer who owned the copyright for such older manuscripts was the only one who could "legitimately" reproduce the book for sale.

The Company continued to control prices, determine what was published, and exclude outsiders. Working as a guild, the booksellers of London effectively excluded outsiders from competing in the London market. As a guild it required a mandatory seven-year apprenticeship and all members were required to follow guild rules. There was, however, a cloud on the horizon – Scotland.

While England and Scotland had been under the same monarch since 1603 they remained separate countries with separate legislatures and separate laws.  This meant that the Stationer’s Company’s copyright did not have force in Scotland.  Furthermore, there was no Scottish copyright law.  As long as the licensing laws were in place London booksellers could limit the competition.  With their expiration, however, the competition began to grow, particularly when:

…  On both sides of the border … statesmen were beginning to realize that an incorporating union offered the only mutually acceptable solution to a problem that had suddenly become urgent: Scotland's need for economic security and material assistance and England's need for political safeguards against French attacks and a possible Jacobite restoration, for which Scotland might serve as a conveniently open back door. England's bargaining card was freedom of trade; Scotland's was acquiescence in the Hanoverian succession.  Both points were quickly accepted by the commissioners appointed by Queen Anne to discuss union, and within three months they had agreed on a detailed treaty (April-July 1706).

Encyclopedia Britannica, “Union, Act of”,

There were many attempts by the Stationer’s Company to restore the old licensing system in the late 1690's and early 1700's, but it was not until 1710 that a new copyright system was enacted. In fact between 1695 and 1710, Scottish and domestic ‘pirates’ made it increasingly difficult for London booksellers. Without the protection of a Licensing Act, any pirate could take a successful work, re-typeset it and then sell it at a lower price with no payments to the author, an editor or for promotion.  Accordingly, few new works were published during this period. 

(v) The Statute of Queen Anne, 1710

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, more commonly called the Statute of Queen Anne, had three objectives. First, it was intended to prevent any future monopoly of the book trade.  Second, it was intended to draw Scotland under a common copyright law to resolve the ‘piracy’ controversy.  Third, it was intended to encourage production and distribution of new works. The vehicle chosen to achieve all three objectives was the Creator.

Until the Statute, the Creator had no economic and limited moral rights to a work after it was sold.  Generally, a work was bought outright by a printer/bookseller/publisher for a flat one-time fee much like an ‘all-rights’ or blanket license today.  No royalties flowed to the Creator from subsequent sales. Creators did enjoy certain ‘moral rights’ including the right not to have the text changed and the right of attribution.  Such rights, however, were based on ‘ethical’ practices of the printers’ guild, not the law. 

The Statute of Queen Anne is considered the turning point in the history of copyright because it was the first law to formally recognize a Creator's rights and, more importantly, it ended prior censorship through pre-publication licensing of works.  Recognition of a Creator’s rights by the Statute was, however, principally a device to attain its primary objective - abolition of the Stationer's monopoly (Feather 1988: 31-36).  In effect, it was a trade regulation bill.  This can be supported by the three factors:

First, a part deleted from the original draft of the 1710 statute clearly emphasized that authors were to be given priority over others with respect to copyright. Parliamentary records reveal that this particular part was removed under pressure from monopolistic booksellers…

Second, there is the similarity between the Statute of Monopoly of 1623 and the 1710 statute. The Statute of Monopoly was, needless to say, intended to abolish the monopolies so rampant during the Elizabethan age. It allowed 21-year monopolies for existing privileges granted without specific terms and 14-year monopolies for forthcoming inventions. The structure of the statute is similar to the first section of the 1710 statute…

Third, there are the claims made by intellectuals around 1710. The Licensing Act of 1662, which gave legal authority to the monopoly in the book trade, was repealed in 1695. John Locke contributed much towards its repeal, writing to peers in the House of Lords and strongly condemning the restrictions on science caused by the provisions of the Act and the monopolies of Stationers Company. (Shirata 1999)

In the end, the Statute of Queen Anne granted an extension of the existing copyright monopoly of the Stationer’s Company for 21 years and granted an exclusive right for new works for fourteen years with an option to renew for the same period.  Furthermore, the Statute recognized the Creator as the initial copyright holder to encourage “learned men to compose and write useful books”. However, it also explicitly recognized the financial interests of “proprietors” who, by sale or assignment of the author's initial copyright, were almost invariably printers/booksellers/publishers. This compromise continues to haunt copyright reform in modern times:

… It is certainly true that the works of creators will not be the subject of mass production and distribution if entrepreneurs cannot be assured of realizing a reasonable return… The problem therefore lies in finding the proper equilibrium which allows a creator to pursue his rights, and to benefit from the use of his works, but which also assures the entrepreneur reasonable returns. This Paper is devoted to a consideration of how this balance may be achieved within the public interest (Keyes & Brunet 1977: 2).

(vi) The Aftermath, 1769 & 1774

The Statute solved the immediate problems of the British book trade.  It provided: a legal basis for stopping piracy; encouraged publication of new works; brought Scottish printers under a copyright regime; and, secured for the Stationers’ Company an extension of its monopoly over existing works for another twenty-one year.  At the same time, it limited the duration of the copyright monopoly creating thereby, for the first time, a ‘public domain’ for works that fell out of copyright. All of this was achieved by granting the Creator an initial copyright in a work. 

However,

Although the 1710 statute aimed to abolish monopolies, monopolistic booksellers attempted to forge a case which would nullify its scheme and provide eternal protection for their businesses. We can see that in the actions brought after 1731 when statutory copyright protection began to expire. They even colluded to accomplish their goal. A series of these actions [were] known as the “Battle of the Booksellers'' (Shirata 1999).

The London booksellers told tragic tales of piracy ruining honest businessmen, their wives and children. Literary works were the inheritances of innocents and pirates were, in effect, stealing from the mouths of babies. These tales of piracy were adopted by those advocating authors’ rights and used to illustrate the problems of lax copyright protection for authors.

A number of cases were brought to court by printers/ booksellers/publishers during the 1750's and 1760s to gain recognition of a common law copyright independent of the statutory rights established by the Statute of Queen Anne. Publishers argued that an author is entitled to enjoy the fruit of his labor, just like all other forms of property - in perpetuity. A publisher, being merely an assignee of the rights of the author, should therefore also enjoy such rights in perpetuity independent of statute.  It was not, however, until 1769 that a definitive legal decision was rendered on the issue in Millar v. Taylor:

The court of King's Bench, the highest court of the common law, divided on the question, the majority supporting Lord Mansfield, who went to the furthest possible extreme in his identification of the right of exclusive copying and selling the copies of one's manuscript with the right of exclusive holding and selling physical things and their products…  copyright …  like the ownership of physical objects, the perpetual property of the author, his heirs and assigns forever.  This outcome Mansfield expressly contemplated, saying, "property of the copy thus narrowed (i.e. defined as a common-law right] may equally go down from generation to generation, and possibly continue forever."  This conclusion was vigorously protested by Justice Yates, the only dissenting justice, saying, "This claim of a perpetual monopoly is by no means warranted by the general principles of property."  (Commons 1924: 275)

Sir William Blackstone contributed to the plaintiffs' cause. Blackstone had previously published Commentaries on the Laws of England in 1767 in which he interpreted copyright for the first time as a legal concept (Blackstone 1771: 400-407). Using Lockean natural law theory (Locke 1690), he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brainwork.  This became known as ‘the sweat of the brow’ theory.

The plot of the booksellers was, however, ultimately defeated in 1774 by the decision of the House of Lords in Donaldson v. Beckett.  It was this decision that established the basic concept of Anglo-American copyright. When an author fixed his creation on a tangible medium, he obtained a common law right that is eternal in nature.  However, he lost this common law right with publication, or, ‘dedication to the public’.  In effect, the House of Lords accepted the dissenting opinion and reasoning of Justice Yates in Millar v. Taylor:

… Mr. Justice Yates had very clear and definite notions as to the limits of property, but a reference which he makes to the civil law throws a stronger light on his view of the whole subject than any of his direct reasoning.  What the Institutes have to say relating to "wild animals," he observes, "is very applicable to this case." And he then proceeds to draw a comparison between these two singularly related subjects. Animals ferae naturae are yours "while they continue in your possession, but no longer. " So those wild and volatile objects which we call ideas are yours as long as they are properly kenneled in the mind.  Once unchain or publish them, and they "become incapable of being any longer a subject of property; all mankind are equally entitled to read them; and every reader becomes as fully possessed of all the ideas as the author himself ever was." (Sedgwick 1879)

There are number of implications to this decision, implications that haunt copyright to this day.  First,

At first sight this decision may seem very simple and natural. At common law perpetual copyright existed. The statute of Anne took it away.  But it may be doubted whether another instance is to be found in which a right of property, admitted to have been in existence for hundreds of years, has been by means of this sort wiped out of existence.  The report of the decision omits to give the reasons on which the judges rested their answers. There is no question that the statute was devised by its promoters for the better security of authors… but the singular thing concerning the matter is the high-handed manner in which we find an acknowledged right treated.  If English legislation has one peculiarity more marked than another, it is its respect for vested rights of property; yet here we find an admitted right, said to have existed from time immemorial, swept away in the very act of protecting it.  It is impossible to avoid the conclusion that literary property was, even by those who looked upon it with favor, regarded in 1774 as differing in many essential respects from other sorts of property. (Sedgwick 1879)

Second, not only common law property rights were eliminated. Traditional ‘moral rights’ of the Creator previously recognized by the guilds were also effectively eliminated from the Anglo-American copyright tradition.  Once sold, a work could be used or abused as a Proprietor chose.  The Creator, having received an initial payment, had no further rights over the disposition of a work.

Third, even though Millar was overturned, it successfully established in the public mind the Myth of the Creator reflected in Chafee’s comment:

…  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… (Chafee 1945)

The change, however, was less a boon to authors than to publishers, for it meant that copyright was to have another function. Rather than being simply the right of a publisher to be protected against piracy, copyright would henceforth be a concept embracing all the rights that an author might have in his published work. And since copyright was still available to the publisher, the change meant also that the publisher as copyright owner would have the same rights as the author. (Patterson 1968)

Thus the Myth of Creator provided Proprietors with a very effective, if spurious, argument for greater copyright protection that is used even today:

The idea that copyrightists use to demean the public interest in copyright law -- that the raison d'etre of copyright is to induce authors to create works -- is a stale fiction that has been used for centuries by publishers in their lobbying efforts in legislative bodies and litigation efforts in courts.  In 1643, for example, the booksellers of London petitioned Parliament for new censorship legislation that would protect their copyrights, arguing that without such laws, authors could not feed their families and "many pieces of great worth and excellence will be strangled in the womb." More recently, in American Geophysical Union v. Texaco, Inc., the court reasoned that if it did not grant the copyright holder the right to license others (for a fee) to copy an article for research purposes, authors would not be able to support their families.

Both arguments are suspect, the first because in 1643 the author in England was not entitled to copyright, which had been developed by, for, and limited to printers and publishers, the second because the subject of the litigation in Texaco was articles in learned journals, the authors of which, as is customary, received no compensation. One may reasonably ask: is an uncompensated author deprived of resources to support his or her family when the purchaser of a publication in which the writing appears makes a personal copy for research purposes? An affirmative answer comes very close to suggesting phantom reasoning, which is the natural companion of legal fictions in that its foundation is ideas generated by emotion rather than logic. (Patterson 1997)

Thus, what started out in 1710 as a statutory device to regulate the book trade, prohibit monopoly and end pre-publication censorship, was transformed, at least in the popular imagination, into a ‘natural law’ for the encouragement, protection and reward of Creators.  In reality, however, Creator’s rights - economic and moral – were effectively sacrificed to the pecuniary interests of Proprietors. Once a work was typeset and published the Creator’s Common Law rights vanished like a wild animal into the forest leaving behind a Proprietor enjoying the rights and privileges granted by an admittedly time limited monopoly.

The most significant point about Donaldson is that it was a compromise, i.e., a political, decision.  The Lords, by holding that the common law was the source of the author's copyright prior to publication, appeared to give the author a victory.  But the common-law copyright, being only the right of first publication, was no copyright at all since it did not entail the exclusive right of continued publication.  The common-law copyright concept, however, proved to be very useful to those claiming that the natural law was the source of the statutory copyright. Their argument was that the common-law copyright, clearly a product of natural law, was the source of the statutory copyright and therefore that the statutory copyright was merely the securing of a natural-law right. Thus, the harm of the Donaldson ruling was that it laid the groundwork for the future enhancement of the copyright monopoly on the basis of the natural-law-property theory.  In a sense, the booksellers, while losing the battle, won the war for their successors. (Patterson 1993)

This was the state of English law in 1776 when the laws of England were rolled into the Common Law of a revolutionary United States of America.