BREAKING THE CHAINS OF COPYRIGHT: From the fetters of copyrights to the free-circulation of information
Stephanie Burel
LW 556 April 2002
ABSTRACT:
The end of the twentieth century is the clear emblem of a new ‘Information Age’ in which economic activity is based increasingly on information and intellectual products. New technologies, such as the internet, constitute a new market for creative works based on use of a new type of ‘property’: ownership of information. A property today easily accessed: from book extracts to newspapers releases, all types of expression are included thus enabling people’s freedom of expression to be enforced at large and recognising the benefits of public access as a means to future progress. Nevertheless, this is also a crucial time for reviewing the current legal restrictions existing that limit the free-flow and re-use of information. Recently, these restrictions, in forms of copyright, have become dramatically more severe. The situation will deteriorate further, if the trends are not reversed and will take a heavy toll on technological restrictions in the first place.
I will argue that our market-orientated societies would be better off without such drastic legal measures and thus freely enjoying and benefiting from the fruits of knowledge and information, rather than accepting Copyright as the only means to control this new industry. Copyrights in the form of drastic measures are inevitably inappropriate since its enforcement is a tool for the exercise of State power, giving the excuse of securing the creators and publishers’ property, rather than securing the development of knowledge and sciences through the means of an incentive for the benefit of the public.
INTRODUCTION
PART I: Historical Justification for Copyright
The development of my argumentation against the use of Copyright at our time of this new ‘Information Age’ starts by analysing the rationale behind its creation to demonstrate that although legislators claimed that Copyright was primarily necessary for the public’s sake by the means of a reward to the author, it was in fact created by publishers for the fruits of Copyright economic benefit[1]. Therefore, using the argument of an authors natural right [2]of reward to extend Copyright today collapses and the controversies of the concept itself makes us lose our confidence in Copyright’s ability to control today’s new technologies.
The Crown, at the Heart of Copyright’s Foundation
Contemporary copyright laws are the result of a long evolutionary process that originated with the invention of the printing press. The printing press allowed the multiples copies of written work to be produced on a mass scale with a minimum time and effort. As a new technology that increased the rate of production of copies and generated profits, the printing press had a great impact on society, affecting not only the public but also authors and rulers. In the case of the public, it might be deceptive to state that the printing press, in itself secured public literacy, as people are always in need of a reason or a motive to read, and religion offered that motive. Nevertheless, the printing press may take the credit for terminating a monopoly or knowledge. This was exercised in the name of religion by the priests of Ancient Egypt and continued to be exercised by the clergy in Europe until medieval times. In the case of authors, the printing press provided a degree of independence. With the increased interest in reading among the middle class, authors could, to a certain extent, write what they desire rather than what aristocrats wanted to read. Amongst rulers the printing press was perceived as a threat as it provided the means of spreading ideas and philosophies that might undermine their authority. Rulers, therefore, tries to impose a Draconian control over the use of the printing press, which took the form of strict censorship.
Although professional authors played an economic role in the bookmaking process in the 16th Century, they had no status before the law: the printers paid authors for their manuscripts and in return received exclusive rights to them. Thus authors only benefited from professional compensation and standing through the bookmaking process and could only be assured that their work would not be pirated or misrepresented in the market. However, if Copyright does not originate from authors themselves, it emerged with the creation of the Stationer’s Company, a guild of printers who had the exclusive rights of and unlimited monopoly over the production of books which would then had to be approved by the Crown, the confiscation of unsanctioned books and the duplication of books on the basis of a record publication, known as a register. This led to the first enunciation of the term copyright in 1701[3]. In other words, the creation of Copyright was a ‘sweet deal’ for publishers since they had the exclusivity-monopoly power to print and distribute specific works: the functional foundation of copyright. Furthermore, the operation of the Stationer’s Company show two fundamental principles of original English Copyright law:
1. Copyright law emanates from a governmentally decreed statute, not
some revealed natural right of authors
2. It granted a monopoly to publishers who could set a price for books without considering market pressure, yet it had no dimension of property to them
In other words, Copyright originally worked in the interests of an ‘autocratic’ and absolutist ruler who wished to maintain control over a potentially threatening information and a guild of publishers which in return for monopolistic rights enforced censorship.
In 1662, Parliament passed the Printing/Licensing Act, by which the Secretary of State’s Office became responsible for pre-publication censorship. To prevent any changes from being made after the licensing of the book a copy was required to be deposited with the licensor upon application for a licence. The Act did not overlook the interests of the Stationers’ Company and retained the requirement of registration on the Stationers’ register as a prerequisite for publication. It was initially to last for three years, was renewed several times before it was allowed to expire in 1679. It was revived in 1685, and was to be renewed again in 1694, but the House of Commons did not sanction the renewal. As a result, the Company’s power to restrain printing ceased.
RECOGNITION OF AUTHORSHIP or LITERARY PROPERTY
The Straw Man
In 1710, authors were finally legally recognised through the Statute of Anne which emerged when The ‘Battle of the Books’ took place during the first three quarters of the 18th century, as independent publishers, in sympathy with the ‘Society for the Encouragement of Learning’, challenged copyright holders by producing unauthorised editions of popular English literature. The non-renewal of the Licensing Act led to the spread of pirate copies of books, especially in the provinces, which weakened the position of the London publishers who constituted the vast majority of the Stationers’ Company. As soon as it was realised that Parliament was not sympathetic to their case, the Stationers changed their strategy and in 1707 petitioned Parliament to protect Authorship and ‘literary property’. Publishers argued that the interests of both the public and authors were harmed by the lack of price stability:
‘An Act for the Encouragement of Learning, by Vesting the Copies of printed Books in the Authors or Purchasers, of such Copies, during the Time therein mentioned.’[4]
In other words, publishers appealed to the interests of authors to renew their monopoly protection. Their stated aim was to protect the creator of the work, in reality, they were aware that any property right that might be recognised for authors would eventually be theirs through assignment.
Two levels of copyright were put in place. The first was issued in the name of the authors for all books published after the act took effect with a term of protection of 14 years, renewable for another 14 years, in order to promote the encouragement of learning and as an incentive to produce more books and therefore, anyone was virtually eligible to hold copyright. The second level of copyright was allowed to the Stationer’s Company to have their rights reinforced to previously published works to a non renewable 21 years. The Act was thus the first codification of the ‘public domain’[5] based on a collection of works old enough to be considered outside the scope of the law and thus under control of the public and the culture at large. It gave legal expression to the idea that the social value of disseminating information and culture was great enough to justify limiting the property interests of publishers. Indeed, it did recognise the publishers’ need for protection, however it destroyed the monopoly of the Stationers Company:
‘Printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their family…’ Preamble of the Statute of Anne
However, not long after the Act was passed, the Stationers continued to charge exorbitant prices for classics of English literature and editions of the Bible to which they owned the copyright. The Act was thus another proof of the system’s ‘hypocrisy’ towards authors who were said to be its main beneficiary and were finally confronted to only another regulation of the practice of printing and selling books, not writing them, and a recognition of the public interest in the process. The codification of authorship was merely an appeal to a ‘straw man’. The publisher is the real player in the legal and commercial game. Mainly, the Statute of Anne was an elaborate attempt to regulate publishers, a way to balance the interests of the book industry with the concerns that monopolies were growing too powerful in England, in vain. In this context, I would say that money or economic reward to publishers, and power to the State, made the practice which had honestly, nothing to do with the aim of the Act’s wording of protecting authors in the first place.
In sum, looking at the historical background of Copyright in the UK, it seems that the concept was born out of publishers’ desire to benefit from literature’s increasing popularity at that time with the impact, on society, of new technology enabling a clever saving-labour device and thus did not emerge from a concern for authors’ rights. They are not natural property rights which took a definite form as the result of the invention of the printing press. Concepts of market and private property clearly shaped the way Copyright was extended and used, and perhaps to the detriment of the public which should have been and should still be the primary beneficiary of Copyright through a well distributed and controlled information. Copyrights are needed as an incentive to produce something valuable that otherwise would be a public good, which would thus be supposedly under-produced on the free-market.
The American Way
Looking at the development of Copyright in the UK was fundamental to understand the concepts’ origin since England was its place of birth. However, I found it interesting to briefly look at the way Copyright evolved in the United States since it emerged as a consequence of its developments in the UK but then had many differences as well. The United States has, today, a fundamental role in dealing with Copyright in the ‘Information Age’, since it has the lead in our market-orientated world. The USA has had an interesting approach and rationale, behind their application of Copyright, which I shall consider to confirm that Copyright do derive from a privilege system but where the judiciary primarily aimed at a balance between public good and private reward.
In reaction to the USA’s increasing piracy between publishers and lack of incentives for authors to create original work, Noah Webster[6] fought to get each state to pass a copyright act that would protect his work as both an author and a publisher and finally succeeded in January 1983 when the Connecticut legislature passed the first American copyright statute entitled ‘Act for the Encouragement of Literature and Genius’. Like in the UK, any author resident in the USA control over the printing, publishing and selling of a work for a term of fourteen years in return for ‘furnishing the Public with Sufficient Editions’ so that an author could not benefit from the protection of the law while restricting access to his work. Such a balance between public good and private reward served as the germinal idea of American copyright. As it has been seen, the introduction of the author into the law of copyright occurred in the first decade of the eighteenth century, and culminated in the Statute of Anne. However, reluctant to the dangerous monopoly licensing gave both the state and the favoured publishers, James Madison and Noah Webster set about establishing the working principles of American copyright just after the Revolution.
The most important and explicit phrase emerging from the Convention became Article 1, Section 8: Congress shall have the power to ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries’. In other words, Copyright are meant to benefit the public first and foremost through the incentive principle that Copyright allows enough monopoly to ‘promote’ further creative works but only for limited times.