Key Points:
Property
rights: the historical context
Why
copyright was established: natural law or artificial creation?
Justifications
for the establishment of copyright
How
history influences our understanding of copyright
When we discuss intellectual
property in the 21st century, most of us acknowledge that some form
of property exists in those ideas that spring forth from our minds and onto our
pages, canvasses or computer screens. This sense of proprietorship seems so
instinctual that the mere suggestion of claiming another’s intellectual
property as one’s own is often greeted with great disgust. The strength of
these emotions would suggest that intellectual property belongs to the natural law,
a body of moral, reasoned law that was best described by Christopher Saint
German in 1518 as ‘written on the heart’ of all humans – indeed, this much was
said when early positive intellectual property laws were drafted. This article
will attempt to examine the contrary. By looking at the intellectual climate
that sustained the drafting of early copyright laws, it will demonstrate that,
far from belonging to the natural law, intellectual property (specifically,
copyright) was an artificial creation intended to serve politics and the
marketplace.
The 1710 Act for the Encouragement of Learning (commonly
called the Act or Statute of Anne) is not unfairly known as the source of most
intellectual property laws in jurisdictions that claim British heritage. The
act is commonly cited as the source of the intellectual and legal foundation of
contemporary notions of intellectual property. However, recent
interdisciplinary work from fields as diverse as English literature, history
and law has found these 18th and 19th century copyright
laws to be intellectually bankrupt – the result of vapid political compromise
rather than strenuous intellectual consideration. The chief critic of these
laws, Professor Catherine Seville argues that the non-existence of a “rationale
of copyright” at the heart of historical copyright laws poses serious concerns
for contemporary jurisprudence.
The
Act of Anne was succeeded by the Copyright Act of 1842. It established a
60-year copyright term for authors, which, if it had expired at the time of the
author’s death, would be assigned to his or her heirs. The 1842 Act was itself
the successor of five bills, introduced each year to Parliament since 1837. The
man who drafted the first five of these bills, Serjeant Talfourd, originally
envisaged a far more philosophically ambitious act. Talfourd’s bill would
establish a perpetual copyright vested in the author. Talfourd’s “rationale of
copyright” is clear in the accompanying pamphlet literature and petitions to
Parliament; his goal was to turn ‘copyright’ into ‘literary property’. For
Talfourd, literary property should have taken its cues from real or chattel
property, which can be assigned to heirs unlimited by any temporal period. This
was a radical departure from the more utilitarian conception of copyright that
was prominent in the litigation surrounding the original 1710 Act. Opposition
from radical proletarian movements, who decried the bill as a “tax on
knowledge” for its perceived potential to drive up book prices, eventually forced
the proponents of the bill to compromise on a 60 year term. The compromise was
unabashedly political and Seville is right to note that this leaves
contemporary copyright law – assailed as it is by immeasurable digital
infringement – vulnerable. However, discovering the current law morally
bankrupt should not preclude a closer study of the intellectual developments
that it catalysed.
* * *
The
antecedents of early copyright laws are too many and too detailed to attempt
any more than a brief adumbration here. In the English context, the concept of
having the sole right to print a text dates back to the Licensing Acts of 1534
and 1557, which granted a monopoly on printing to the London Stationer’s
Company. This act required a copy of all printed texts to be lodged with the
London Stationer’s Company, which would determine whether the work would be
banned, censored or published. Upon publication, the “copy” would be entered
under the printer’s name at the register of the Stationer’s Company, which
guaranteed the printer the sole right of reprinting that copy. This was known
as the, “right to copy”, hence the word, “copyright”. The monopoly functioned
chiefly as a means of censorship, but the customary practices of the
Stationer’s Company, to which all London printers were obliged to belong,
created a de facto perpetual
copyright. Until the 1770s, London publishers maintained copyrights for the
works of Shakespeare and Milton, in spite of the fact their authors had died
over a century and half earlier (in Shakespeare’s case). The Licensing Act was permitted to lapse
during the English Civil Wars. This lapse survived the interregnum and the
restoration (although censorship was restored) and it was not until the turn of
the century that authors and publishers began lobbying for a legal articulation
of their customary copyright practices. By 1710, the commercial conditions of
the book trade were markedly different to those that had existed before the
Civil Wars; technological advances had drastically lowered the price of printed
material and a flourishing English economy and increased literacy had broadened
the market for literature. Whereas early authors had almost always sought
remuneration in the form of aristocratic patronage, the authors of the 18th
century tentatively began to try their luck in the open marketplace. The 1710
Act ostensibly intended to protect as wide a market as possible for books by
establishing the maximum copyright term of 28 years (a 14 year term, which
could be extended by a further 14 years if the author was still alive by the
time the first 14 years had elapsed).
When the
first copyright terms expired in 1728-9, the London Booksellers litigated to
preserve their customary practices in the face of intense competition from
Scottish reprinters. This litigation, which came to an end on the side of the
Scots in the landmark 1774 case Donaldson
v. Beckett, unearthed several powerful rationales of copyright. The London
Booksellers attempted to find an historical and legal justification for
perpetual copyright. For the most part, they focused on two arguments: the
historical and customary practice of perpetual copyright and the legal argument
that copyright was a positive law articulation of the natural law. The natural
law argument is the most fascinating. At its most elaborate, this argument was
argued in Lockean terms; men on both sides of the bench directly and indirectly
quoted the famous passage from John Locke’s seminal Second Treatise of Government (1689), in which Locke described the
genesis of private property. “The labour of his body, and the work of his
hands, we may say, are properly his,” wrote Locke, “[w]hatsoever then he
removes out of the state that nature hath provided, and left it in, he hath
mixed his labour with, and joined to it something that is his own, and thereby
makes it his property”. The ancillary arguments of this position made requisite
that an author’s mental labours be equivalent to traditional, physical labour.
This argument also stimulated a debate over the constitution of this ‘state of
nature’ from which an author’s literature was removed. This argument was
favoured by celebrated jurists William Murray, Lord Mansfield (now celebrated
as the ‘chief architect’ of the commercial law) and Sir William Blackstone.
More
fascinating than this however, is an argument developed in an anonymous 1761
pamphlet, An Enquiry into the Nature and
Origins of Literary Property. The pamphlet ends with the author answering
objections to the idea of literary property in dialogic form. He meant to
answer the query whether imitating a machine (thereby infringing a patent) was
similar to printing copyrighted books:
“He who makes an Utensil in imitation of another, must necessarily work with the same ideas as the original Proprietor had, and so fully acquires a property in the work of his own hands. But the most learned Book in the World may be copied by one who has no ideas at all. What pretence hath such a one to property in the Work of the Mind, who had employed in Copying it only, the work of the Hand.”
This argument, popular in the 18th
century, is not far removed from the arguments made by artists and industry
figures in our own time to justify the protection and enforcement of their
copyrights. Surprisingly, the anonymous author’s response to this criticism was
not to defend the labour of the imitator, but rather to attack the proprietor’s
claim to original, intellectual labour at the moment the literary property was
conceived. This argument made, the pamphleteer went on to argue that authors
should have ample copyright protection to furnish a pecuniary incentive for
their labours and to sustain their lives, but nothing else. Thus copyright law
took on the utilitarian character of a patent, rather than the metaphysical
aspects of a perpetual property. The argument in An Enquiry earned several famous proponents in the highest courts
of England and Scotland and eventually prevailed in the House of Lord’s ruling in favour of limited copyright
in Donaldson and Beckett.
The utilitarian rationale, backed as it was
by an intense philosophical opposition to the concept of literary property,
survived until the 1842 Act, at which time it was challenged by an entirely
different philosophical notion of copyright, only for both philosophies to be
cast aside in favour of political compromise. While the contempt or ambivalence
that internet moguls and those that use their services have levelled at
copyright is certainly cause for concern, it is also true that there is an
immensely rich corpus of philosophy that awaits anyone with an interest to
reinvestigate copyright’s antecedents. Is it fair that we still live with the
descendent of a political compromise forged 170 years ago when Tories and Whigs
held the balance of power over Britain and her Empire? Or is it time to
assemble from the detritus of this compromise a new rationale of copyright more
fit to meet contemporary demands.