History of copyright law

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Copyright was invented after the advent of the printing press and subsequent widening of public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the eighteenth century. In Britain the King of England and Scotland was concerned by the unregulated copying of books and used the royal prerogative to pass the Licensing Act of 1662 which established a register of licensed books and required a copy to be deposited with the Stationers Company, essentially continuing the licensing of material for the benefit of printers that had long been in effect. The Statute of Anne in 1709 was the first real copyright act, and gave the author in the new nation of Britain rights for a fixed period, after which the copyright expired. Internationally, the Berne Convention in 1887 set out the scope of copyright protection, and is still in force to this day. Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.

Contents

[edit] Chronology

[edit] Prehistory of copyright

Authors, patrons, and owners of works throughout the ages have tried to direct and control how copies of such works could be used once disseminated to others. Mozart's patron, Baroness von Waldstätten, allowed his compositions created for her to be performed, while Handel's patron, George I, jealously guarded "Water Music."

Modern copyright has been influenced by an array of older legal rights that have been recognized throughout history, including the moral rights of the author who created a work, the economic rights of a benefactor who paid to have a copy made, the property rights of the individual owner of a copy, and a sovereign's right to censor and to regulate the printing industry. Prior to the invention of movable type in the West in the mid-fifteenth century, texts were copied by hand and the small number of texts generated few occasions for these rights to be tested. Even during a period of a prospering book trade, during the Roman Empire when no copyright or similar regulations existed,[1] copying by those other than professional booksellers was rare. This is because books were, typically, copied by literate slaves, who were expensive to buy and maintain. Thus, any copier would have had to pay much the same expense as a professional publisher. Roman book sellers would sometimes pay a well regarded author for first access to a text for copying, but they had no exclusive rights to a work and authors were not normally paid anything for their work.[2]

During the centuries following the destruction of the Roman Empire, European literary undertakings were confined almost entirely to the monasteries. The Roman usage, under which authors could dispose of their works to booksellers and the latter could be secure of some commercial control of the property purchased, was entirely forgotten. (In Ken Follet's novel The Pillars of the Earth, a character is astonished to meet a woman who actually owns books, which were normally owned only by churches and monasteries.)

Before legal and economic restrictions on print ownership came into being, one would occasionally find an author's or archivist's book curse inscribed in a given volume. Beyond this, however, two major developments in the fourteenth and fifteenth centuries seem to have provoked the development of modern copyright. First, the expansion of mercantile trade in major European cities and the appearance of the secular university helped produce an educated bourgeois class interested in the information of the day. This helped spur the emergence of a public sphere, which was increasingly served by entrepreneurial stationers who produced copies of books on demand. Second, Gutenberg's development of movable type and the development and spread of the printing press made mass reproduction of printed works quick and much cheaper than ever before. Before printing, the process of copying a work could be nearly as labor intensive and expensive as creating the original, and was largely relegated to monastic scribes. It appears that publishers, rather than authors, were the first to seek restrictions on the copying of printed works. Given that publishers of music and films in particular commonly now obtain the copyright from a creator (although rarely a book author) as a condition of mass reproduction of a work, one of the criticisms of the current system is that it benefits publishers more than it does creators. This is one of the chief arguments in favor of peer-to-peer file sharing systems, making an analogy with the changes wrought by printing.

An interesting attempt at copyright in the early modern period was the notice attached to the ha- Shirim asher li-Shelomo , a setting of the Psalms by the composer Salomone Rossi, which happened to be the first music to be printed with a Hebrew type-face text (1623). It included a rabbinical curse on anyone who copied the contents.

[edit] Movable type

The printing press brought the possibility of compensation for literary labor. Very speedily, however, the unrestricted rivalry of printers brought into existence competing and unauthorized editions of various works, which diminished prospects of any payment, or even entailed loss, for the authors, editors, and printers of the original issue, and thus discouraged further undertaking. Any person with a press and some skills could use movable type to publish books and other items. Scribes and scriveners were no longer needed.

Protection for the authors and their representatives was sought through special privileges obtained for separate works as issued. According to Elizabeth Armstrong (whom the Curators of the Bodleian Library awarded the Gordon Duff Prize in 1965 for her essay on Printers' and authors' privileges in France and the Low Countries in the sixteenth century), "The republic of Venice granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the 'Rerum venetarum ab urbe condita opus' of Marcus Antonius Coccius Sabellicus".[3] "Venice began regularly granting privileges for particular books in 1492. The first, 3 January that year, went to Petrus Franciscus de Ravenna, a teacher of canon law at Padua University, who had devised a system of training the memory, which he embodied in a book entitled "Foenix". [4]

Most early Italian enactments in regard to literature were framed not so much with reference to the protection of authors as for the purpose of inducing printers (acting as publishers) to undertake certain literary enterprises which were believed to be important to the community. The Republic of Venice, the dukes of Florence, and Leo X and other Popes conceded at different times to certain printers the exclusive privilege of printing for specific terms (rarely exceeding 14 years) editions of classic authors; not so much to secure profits for the printers, but rather to encourage, for the benefit of the community, literary ventures on the part of the editors and printers.

The first copyright privilege in England bears date 1518 and was issued to Richard Pynson, King's Printer, the successor to William Caxton. The privilege gives a monopoly for the term of two years. The date is 15 years later than that of the first privilege issued in France. Early copyright privileges were called "monopolies," particularly during the reign of Queen Elizabeth, who frequently gave grants of monopolies in articles of common use, such as salt, leather, coal, soap, cards, beer, and wine. The practice was continued until the Statute of Monopolies was enacted in 1623, ending most monopolies, with certain exceptions, such as patents; after 1623, grants of Letters patent to publishers became common. The period of common-law copyright for Great Britain was brought to a close by the Act of Queen Anne in 1709. The Act had a certain effect in the British Colonies, therefore it is regarded as being the first copyright law that affected the future United States.

The earliest German privilege of which there is trustworthy record was issued in 1501 by the Aulic Council to an association entitled the Sodalitas Rhenana Celtica, for the publication of an edition of the dramas of Hroswitha of Gandersheim, which had been prepared for the press by Konrad Keltes. In 1512 an Imperial privilege was issued to the historiographer John Stadius for all that he should print, the first European privilege which was made to cover more than a single work, or undertaking to protect books not yet published. In 1794 legislation was enacted in the Prussian Parliament which was accepted by the other states of Germany (except Württemberg and Mecklenburg), under which all German authors, and foreign authors whose works were represented by publishers taking part in the book fairs in Frankfurt and Leipzig, were to be protected throughout the states of Germany against unauthorized reprints. This Berlin enactment may be credited as the first step towards a practical recognition of international copyright. Enforcement of the provisions of interstate enactments proved to be difficult, at least until after 1815.[citation needed]

[edit] Earliest copyright disputations

One of the earliest copyright disputes reputedly took place in 557 A.D. between Abbot Finnian of Moville and St. Columba over St. Columba's copying of a Psalter belonging to an Abbot. The dispute over ownership of the copy led to the Battle of Cúl Dreimhne (also know as Battle of Cooldrumman), in which 3,000 men were killed.[5] In 1557, the English monarch, Mary I, chartered a London guild of printers, bookbinders, and booksellers known as the Stationers' Company, probably in an attempt to prevent the spread of the Protestant Reformation. Only Guild members were allowed to practice the art of printing and the master and wardens of the society were empowered to search, seize, and burn all prohibited books, and to imprison any person found to be printing without a license. In return for their role in preventing the publication of books deemed heretical or seditious, the Guild's members enjoyed the economic benefits of a monopoly over the printing industry. From 1557 to 1641, the English Crown exercised authority over printing and the Stationers' Company through the Star Chamber. After the abolition of the Star Chamber in 1641, the English Parliament continued to extend the Stationers' Company's censorship/monopoly arrangement through a series of ordinances and Licensing Acts between 1643 and 1692.

During its time, the Stationers' Company developed a private system for handling disputes between its members (sometimes referred to as a Stationer's Copyright). Under this system, specific Guild members held monopoly rights in a particular work that were treated as being perpetual. Although Guild members could purchase a manuscript from an author, authors could not become members of the Guild and were not entitled to any royalties or additional payments after purchase. Members were allowed to buy and sell rights over particular works to each other. As a method to keep track of which members claimed rights in what works, the Guild required that copyrights be recorded in a registration book at the Guild's Hall. The Licensing Act of 1662 also required printers to deposit a copy of each work with the Guild to prevent changes to the work after it was reviewed by censors. Many aspects of the Stationers' system were later incorporated into modern copyright laws.

Following the English Civil War, which was partly fought over the Crown's abuse of monopolies, the Stationers' power was threatened when the last Licensing Act expired in 1694. Without their monopolies, London's booksellers faced an unregulated influx of cheap texts printed outside Britain, and in Scotland, that began flooding the English market. After years of lobbying Parliament by authors and members of the Conger, the world's first modern copyright statute was enacted – the Statute of Anne, 8 Anne, ch. 19 (1710).

[edit] The birth of modern copyright

England's Statute of Anne (1710) is widely regarded as the first copyright law. The statute's full title was "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." This statute first accorded exclusive rights to authors (ie, creators) rather than publishers, and it included protections for consumers of printed work ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain. Although the Statute of Anne created a system of monopoly rights similar in many ways to the Stationers' Company's private system, it introduced three major changes.

Unlike previous laws that gave broad monopoly power to the Stationers' Company, who would then administer a private system of copyright between Guild members, the Statute of Anne directly outlined a public copyright system that applied to the public in general. Second, the Statute recognized a copyright as originating in the author, rather than a Guild member. Lastly, it placed a time limitation on the monopoly enjoyed by holders of a copyright. Specifically, the Act provided that an owner of the copyright in any book already printed should have the exclusive right of publishing it for twenty-one years. For works not yet published, the act provided an exclusive right to publish for fourteen years from the time of first publication, with the stipulation that the right could be extended by an author for another 14 years. However, printers argued that the texts were property owned by the authors, and therefore could be sold as such to the printers, who would then own the rights.

There were territorial loopholes in the 1710 Act. It did not extend to all British territories, but only covered England, Scotland and Wales. Many reprints of British copyright works were consequently issued both in Ireland and in North American colonies, without any license from the copyright holder required. These works were frequently issued without payment to British copyright holders, so they were cheaper than London editions. They were popular with book-buyers, but were not copyright infringements in the formal sense of the word, being within the law. The term was used, however.

In Ireland and North America there were reprint publishers who sought out formal arrangements with and made payments to British copyright holders. This illicit reprint trade was also engaged in by some Scottish publishers. These publishers were sometimes prosecuted.

Irish reprints became a matter of great concern to London publishers. Their reprints undermined direct sales to Ireland. They also crossed the border into England, and were especially sold in English provincial markets which were becoming increasingly important to London publishers. Booksellers who sold these reprints in England, Scotland, and Wales were subject to prosecution.

Between 1710-1774 there was legal debate about what length of time was meant in the 1710 act.

In the 1730s, publishers in Scotland began to reprint titles that they no longer considered to be covered by copyright. Scottish publishers printed what they perceived to be public domain English works whose copyright had expired. They sold these titles in Scotland, and in the English provinces. English publishers objected to this, on the basis of what they saw as common-law rights and property (under the concept of common-law rights in the English system), which predated the Copyright Act. Under common-law rights, rights in published works were held to continue into perpetuity.

The case of Donaldson vs Beckett, in 1774, brought disagreements on the length of copyright to an end. The outcome of the case resulted in the decision that Parliament could, and had, put a limit on copyright length. This decision reflected a shift in English ideas of copyright. The English lords who made the decision in 1774 decided that it was not in the public's best interest to have London publishers control books in perpetuity, particularly as English publishers commonly kept prices high. There were some notions that this was a cultural or class issue. Works in perpetual copyright were seen to have limited access by some citizens to the cultural history of their own land.

Concepts of the roles of the author and publisher, of copyright law, and of general Enlightenment notions, interacted in this period. Authors had been previously seen to be divinely inspired. Patronage was a legitimate way to support authors, in part because of this. Authors who were paid, rather than entering into patron-relationships, were often regarded as hacks, and looked down upon. However, the notion of individual genius was becoming more common during the 1770s (the generation after Donaldson v Beckett), and being a paid author therefore became more accepted.

In Great Britain's North American colonies, reprinting British copyright works without permission had long happened episodically, but only became a major feature of colonial life after 1760. It became more commonplace to reprint British works in the colonies (mostly in the 13 American colonies). The impetus for this shift came from Irish and Scottish master printers and booksellers who had moved to the North American colonies in the mid 18th century. They were already familiar with the practice of reprinting and selling British copyright works, and continued the practice in North America, and it became a major part of the North American printing and publishing trade. Robert Bell was an example. He was originally Scottish, and had spent almost a decade in Dublin before he moved to British North America in 1768. His operations, and those of many other colonial printers and booksellers, ensured that the practice of reprinting was well-established by the time of the American Declaration of Independence in 1776. Weakened American ties to Britain coincided with the increase of reprinting outside British copyright controls.

The Irish also made a flourishing business of shipping reprints to North America in the 18th century. Ireland's ability to reprint freely ended in 1801 when Ireland's Parliament merged with Great Britain, and the Irish became subject to British copyright laws.

The printing of uncopyrighted English works for the English-language market also occurred in other European countries. The British government responded to this problem in two ways: 1) it amended its own copyright statutes in 1842, explicitly forbidding import of any foreign reprint of British copyrighted work into the UK or its colonies, and 2) it began the process of reciprocal agreements with other countries. The first reciprocal agreement was with Prussia in 1846. The US remained outside this arrangement for some decades. This was objected to by such authors as Dickens and Mark Twain.

[edit] The natural rights debate

As the first copyrights under the Statute began to expire, a legal battle erupted over what rights, if any, existed after a copyright term expired. The book publishers argued that a perpetual common law copyright existed beyond the term outlined in the Statute, akin to the situation prior to passage of the Statute. The publishers argued that copyright was a natural right. The first major victory for the book publishers came in the case of Millar v. Taylor. The case involved the poet James Thomson's book, "The Seasons." A bookseller, Andrew Millar, purchased the publishing rights to "The Seasons" in 1729. After the copyright's term expired, Robert Taylor began publishing his own competing publication, which contained Thomson's poem. The judge assigned to the case sided with the publishers, finding that common law rights were not extinguished by the Statute of Anne. Under Mansfield's ruling, the publishers had a perpetual common-law right to publish a work for which they had acquired the rights.

The decision in Millar, however, was made by an English court and so did not extend to Scotland, where a reprint industry continued to thrive and a Scottish court rejected the notion of a perpetual common-law copyright in Hinton v. Donaldson. The debate culminated in the landmark case of Donaldson v. Beckett. The decision by the House of Lords in February of 1774 rejected common-law copyright. Lord Camden, attacked the publisher's foundation for a common-law right:

The arguments attempted to be maintained on the side of the respondents, were founded on patents, privileges, Star Chamber decrees, and the bye (sic) laws of the Stationers' Company; all of them the effects of the grossest tyranny and usurpation; the very last places in which I should have dreamt of finding the least trace of the common law of this kingdom; and yet, by a variety of subtle reasoning and metaphysical refinements, have they endeavored to squeeze out the spirit of the common law from premises in which it could not possibly have existence.

Although the decision in Donaldson firmly established that, in England, works to which a copyright has expired fall to the public domain, the debate itself has resurfaced in the United States and elsewhere in the years since.

[edit] Early internationalisation

The Berne Convention of 1886 first established the recognition of a common copyright amongst several sovereign nations. (International recognition of copyright was also provided by the Universal Copyright Convention of 1952, but that convention is today largely of only historical interest.) Contrary to English tradition, copyright is granted automatically to creative works under the Berne Convention; an author does not have to actively register or otherwise apply for copyright to be applied to the work. As soon as the work is "fixed", that is, written or recorded on some physical medium (e.g. words written on page, music recorded onto tape, etc.), its author is automatically granted exclusive rights to the distribution of the work and any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.

  • Evolution to deal with successive waves of new technology.
  • Origins of collecting societies.
  • Conflicts (then resounding lack of conflict) over term extensions.

[edit] Diversion: copyright and communism

See also: Copyright in Russia and Copyright law of the Soviet Union

Historically, many societies governed by socialist governments have viewed copyright as a welfare or support mechanism for artists, instead of (or in addition to) a legal right. These ideas probably found their strongest expression in Scandinavian law.

The Eastern European communist states professed to employ socialist principles in rewarding their artists and authors, but the reality of their copyright systems was deeply entangled with censorship and state control of culture. Cultural workers in the Soviet Union did well if they could employ "blat" to their advantage and convince the right party officials to favour their work.

The Soviet Union did have a number of interactions with the international copyright system:

  • Unsuccessful lawsuits brought by Western lawyers in an attempt to make the Soviet state recognise foreign copyrights or pay royalties to foreign authors (the USSR did occasionally pay foreign authors for the use of their works, but only if they were of a suitable ideological colour).
  • Accession to the Universal Copyright Convention, with the intention of allowing the Soviet state to appropriate international copyright in works by dissident Soviet authors, and thereby control the distribution of those works outside the Communist bloc.

[edit] Modern US copyright legislation

[edit] Recent history: globalization and technological crisis

  • Digital technology introduces a new level of controversy into copyright policy.
  • Inclusion of software as copyright subject matter on the recommendation of CONTU and then later with the EU Computer Programs Directive.
  • Enactment of TRIPS.
  • Controversy over the copyrightability of databases (Feist Publications v. Rural Telephone Service and contradictory cases); links to the debate over sui generis Database rights.
  • Enactment of the WIPO Copyright Treaty; nations begin passing anti-circumvention laws.
  • Some copyrighted works are more difficult to protect. Music, for example, may be played or sung by anyone after it has been published. But if it is performed for profit, the performers must pay a fee, called a royalty, to the copyright owner. A similar principle applies to performances of plays. As a written work, a play is protected in the same way as a book; anyone who wants to perform it must pay a royalty.

[edit] Analysis: recurring themes in the history of copyright

The history of copyright has several key themes: responses to innovations in media technologies, expansions in the definition, scope and operation of copyright, and international dissemination of the evolutions occurring in particular states.

[edit] Responses to technological innovation

The genesis of copyright can be seen as a process through which capitalist societies found a way to wed the printing press and the marketplace (see also print culture).

This commercial regulatory system, designed for the printing press, was successively expanded to include photography, phonography, film, broadcasting, photocopying (reprography) and computer programs as those technologies became widespread. These expansions were at first controversial but over time became stable components of commerce in the relevant industries.

The placement of present disputes over copyright in this historical trajectory is an interesting problem. Some commentators would add the Internet and digitised works in general to the end of the above list of technological expansions. In that view, the same functions of copyright (especially creating marketplace incentives for the production of works) remain necessary or desirable for digital material and will therefore eventually become stable and consensual. In contrast, commentators such as Barlow (1994) have argued that digital copyright is fundamentally different and will remain persistently difficult to enforce; others such as Stallman (1996) have argued that the Internet deeply undermines the economic rationale for copyright in the first place. These perspectives may lead to the consideration of alternative compensation systems in place of exclusive rights.

[edit] Expansions in scope and operation

  • Move from common law and ad-hoc grants of monopoly to copyright statutes.
  • Expansions in subject matter (largely related to technology).
  • Expansions in duration.
  • Creation of new exclusive rights (such as performers' and other neighbouring rights).
  • Creation of collecting societies.
  • Criminalisation of copyright infringement.
  • Creation of anti-circumvention laws.
  • Courts' application of secondary liability doctrines to cover file sharing networks

[edit] Regulatory leadership and internationalisation

  • Early role of the UK; reciprocity and the Berne convention; the United States as a "pirate nation."
  • Shift to leadership by the US during the 20th century (though some expansions continued to flow from Europe); the South and the Far East as centres of copyright breaking.

[edit] Notes

  1. ^ Martial, The Epigrams, Penguin, 1978, James Mitchie
  2. ^ Martial, The Epigrams, Penguin, 1978, James Mitchie
  3. ^ Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press, Cambridge: 1990, p. 3
  4. ^ Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press, Cambridge: 1990, p. 6
  5. ^ Gantz, John and Rochester, Jack B. (2005), Pirates of the Digital Millennium, Upper Saddle River: Financial Times Prentice Hall, p. 30-33; ISBN 0-13-146315-2

[edit] References

  1. Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions, Little, Brown, & Co. (1879).
  2. Dietrich A. Loeber, ‘“Socialist” Features of Soviet Copyright Law’, Columbia Journal of Transnational Law, vol. 23, pp 297--313, 1984.
  3. Joseph Lowenstein, The Author's Due : Printing and the Prehistory of Copyright, University of Chicago Press, 2002
  4. Christopher May, "The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property", Prometheus, 20(2), 2002.
  5. Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769).
  6. Lyman Ray Patterson, Copyright in Historical Perspective, Vanderbilt University Press, 1968.
  7. Brendan Scott, "Copyright in a Frictionless World", First Monday, volume 6, number 9 (September 2001), http://firstmonday.org/issues/issue6_9/scott/index.html.
  8. Charles Forbes René de Montalembert, The Monks of the West from St Benedict to St Bernard, William Blackwood and Sons, London, 1867, Vol III.
  9. Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books, Rothman Reprints Inc., 1899 (1971 reprint).
  10. Drahos, P. with Braithwaite, J., Information Feudalism, The New Press, New York, 2003. ISBN 1-56584-804-7(hc.)
  11. Paul Edward Geller, International Copyright Law and Practice, Matthew Bender. (2000).
  12. New International Encyclopedia
  13. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)
  14. Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press (Cambridge: 1990)
  15. Gantz, John and Rochester, Jack B. (2005), Pirates of the Digital Millennium, Upper Saddle River: Financial Times Prentice Hall; ISBN 0-13-146315-2

[edit] See also

[edit] External links