COPYRIGHT C. P. U.
Creators, Proprietors & Users
Harry Hillman Chartrand ©
Journal of Arts Management, Law & Society 30 (3), Fall 2000
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
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:
The story begins:
benchmarks will guide our tour of copyright history:
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.
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.
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.
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
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’.
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.
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 Mary and her consort William
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).
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.
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.
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)
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).
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.
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,
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)
the Myth of Creator provided Proprietors with a very effective, if
spurious, argument for greater copyright protection that is used even
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.
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)
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
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.
In 1672 Massachusetts introduced the first copyright law in what was to become the United States of America when it prohibited the making of reprints without the consent of the owner of the copy. As in England, copyright was granted to the printer, not the Creator. Thus the printer John Usher received the first copyright in America granting him the sole right and privilege of publishing the laws of Massachusetts.
Licensing laws were, however, in effect in Massachusetts from 1662 until the 1720s. As with the Monarch and Parliament in England, both the governor and legislature of the colony were quick to take offense at publications that they considered disagreeable, and there were sporadic prosecutions for seditious libel, beginning with William Bradford in 1692 and continuing until the Revolution (Duniway 1906).
While there were Licensing Acts in most of the other colonies, before the 1780s only Massachusetts had a formal copyright statute. There are three reasons:
despite the fact that works of American authors were published in America, the
number of works was limited and a large proportion of the American market was
dominated by British authors. Second,
authors in the colonies were also editors and publishers. There was a sentiment or
trade rule called “courtesy copyright”' or “mutual obligation”' among
publishers, which effectively suppressed piracy.
Third, there was little or no conflict of market share among publishers
on account of the extensive and growing American market.
The market was also strictly segmented.
Each publisher often supported a specific political group confronting the
others. (Shirata 1999)
A year before the House of Lords made its decision on Donaldson v. Beckett, the Boston Tea Party marked the beginning of the American Revolution. Between 1773 and 1783 the United States was at war with Great Britain and there was no trade between the two – including in law books and legal decisions.
Accordingly, the last major copyright decision of the British courts current in legal circles of what was becoming the United States was Millar v. Taylor of 1769. The majority opinion penned by Justice Mansfield in the Millar case - that there was a ‘natural’ author’s copyright - held sway unqualified by the subsequent decision of the House of Lords in Donaldson v. Beckett.
As the revolutionary war played itself out the publishing industry in the colonies increasingly turned towards American authors. However, the trade courtesy that protected printer/publishers afforded no protection to Creators. Some authors began to lobby for ‘copyright’ protection confusing ‘author’s rights’ with the traditional copyright granted to publishers. In response to a petition from poet Joel Barlow, the Continental Congress:
That it be recommended to the several states, to secure to the authors or
publishers of any new books not hitherto printed, being citizens of the United
States, and to their ... executors, and administrators and assigns, the
copyright of such books for a certain time, not less than fourteen years from
the first publication; and to secure to the said authors, if they shall survive
the term first mentioned, and to their ... executors, administrators and
assigns, the copyright of such books for another term of time not less than
fourteen years, such copy or exclusive right of printing, publishing and vending
the save to be secured to the original authors, or publishers, or ... their
executors, administrators and assigns, by such laws and under restrictions as to
the several states may seem proper. (Journal of the Continental Congress
May 2, 1783).
The States responded (Shirata 1999: Table 1). What is surprising given the status of Millar v. Taylor, is that excepting three States, all adopted ‘trade-regulating’ copyright statutes similar to the Statute of Queen Anne. The likely reason being that the various States like:
The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. (Loren 1999)
This consuming fear of monopoly and censorship is captured in the words of Thomas Jefferson:
"I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man."
to Dr. Benjamin Rush ,September 23, 1800.
And, with respect to the copyright monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v. Taylor,
Jefferson, in 1788, exclaimed: “I hold it essential in America to forbid that
any English decision which has happened since the accession of Lord Mansfield to
the bench, should ever be cited in a court; because, though there have come many
good ones from him, yet there is so much sly poison instilled into a great part
of them, that it is better to proscribe the whole.” (Commons 1924:
Four years after the Continental Congress called on the States to introduce copyright the US Constitution was adopted in 1787 and was ratified a year later in 1788. Article I, Section 8 of the Constitution is now known as the “Intellectual Property or Copyright Clause” and states:
The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
importance of the clause is evidenced by the fact that the power to promote
‘progress’ was one of very few powers to regulate commerce initially granted
to Congress. Two years after
ratification of the US Constitution, Congress passed the first Copyright Act of
1790: An Act for the Encouragement of Learning, by securing the Copies of
Maps, Charts and Books, to the Authors and Proprietors of such Copies, during
the Times therein mentioned.
state copyright statutes, most of which were enacted in response to the
Continental Congress Resolution, were modeled on the Statute of Anne and thus
presaged the inevitable. The federal copyright was to be a direct descendant of
its English counterpart. The language in the United States Copyright Clause was
almost surely taken from the title of the Statute of Anne of 1710; the American
Copyright Act of 1790 is a copy of the English Act; and the United States
Supreme Court in its first copyright case, Wheaton v. Peters, used Donaldson v.
Beckett as guiding precedent in confirming copyright as the grant of a limited
statutory monopoly. (Patterson 1993)
of a ‘monopoly-granting’ power in the Constitution and the Copyright Act of
1790 involved great debate and deliberation particularly between Thomas
Jefferson, who initially opposed all monopolies including copyright, and James
Madison who proposed its benefits and inclusion.
this debate Madison played both sides of the fence, supporting natural or common
law rights for Creators on the one hand, and promoting regulation and limitation
of the publishing industry through statute on the other. His apparently
contradictory opinions are expressed in his correspondence with Jefferson and in
the Federalist papers.
documents prove that Madison accepted traditional English ideas of copyright.
That is, he understood copyright as a monopoly granted for only a limited term.
Why did he explain copyright as a natural right in the Federalist when he
clearly understood that copyright and patent were inevitable monopolies to
promote science and literature? He
seemed to believe it would be easier to persuade the people, amid the current
mood of antipathy toward monopolies and England, to accept copyright and patent
as natural rights than as trade regulation laws which were monopolistic in
nature. It is well known that the Americans adopted the common law
after screening aristocratic or prerogative elements out. The Founding Fathers understood the nature of copyright as a
monopoly that was granted for administrative purposes to promote the sciences
and they adopted copyright law after modifying its doctrine to suit American
taste. That was America's first
copyright statute, the Copyright Act of 1790. (Shirata 1999)
The result was a bifocal vision of copyright in the United States. On the one hand, the Constitution and Copyright Act adopted the traditional English idea of copyright as trade regulation to limit the monopoly and censorship powers of the publishing industry and its duration thereby creating a ‘public domain’. On the other hand, lawyers and academics advocated a common law copyright derived from ‘natural law’ arguing that the Constitution and Copyright Act merely gave it written form.
The issue came to a head in the first major American copyright case - Wheaton v. Peters in 1834. As in the earlier British case of Donaldson vs. Beckett of 1774, the waters had been thoroughly clouded. While there had never been a Common Law author’s copyright, only a printer’s copyright, both cases turned on the issue of an assumed common law rights of authors in works prior to the Copyright Act of 1710 and 1790, respectively. The questions facing the court became, in effect: was the Act intended to give additional rights to the author or to replace common law rights, and if there was a common law perpetual copyright, did it continue in Britain after the Statute of Queen Anne and in the United States after Revolution?
Loosed from its historic moorings, copyright took on a life of its own for the vague purpose of stopping illegal copying, and ultimately, came to be viewed as part of the law protecting "intellectual property." (Mead 1999)
The Federal Supreme Court concluded there was no common law copyright and that statutory protection could only be obtained by adhering to the 1790 Act. It also confirmed that copyright was a privilege, not a right. In its opinion, the case was about protection against monopoly and accepted the English precedent for the United States. In the process, however, the Court also rejected what later became known as the “moral” rights of authors.
Beyond the ‘natural’ vs. ‘positive’ law, the first US Copyright Act also involved at least five significant expansions of the copyright concept. First, protection was extended to maps and charts as well as books. The Statute of Queen Anne only protected books. While related, the cost structure of the two industries are arguable quite different. Initial extension of copyright protection was followed in 1802 to include “engravings, etchings and prints”, in 1831 “music and cuts” and, by 1870, works eligible for copyright protection included:
Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, shall ... have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works. (41st Cong. Sess. 2 Ch.230 Sec. 86,1870)
Subsequent copyright acts extended protection to broadcasts, motion pictures and software programs. In this way the Copyright Act of 1790:
stands as the point of divorce between the perceived purposes (which became the protection of authors and publishers) and the methodology of the law (which remained to protect a movable-type based printing industry). The understood goal of the law was set adrift from the actual workings of the law. (Mead 1999)
Second, the language of the 1790 Act represented an apparent if not actual change in philosophy, if not practice:
Whereas, the Copyright Statute of 1709 clearly recognized that the protection was for the benefit of the publishers, with what we would now call a "trickle down effect" to the authors; the U.S. acts uniformly talk about the protection as being primarily for the benefit of the author and only benefiting the publisher as an assignee. But, again, this occurs without any change in how the law worked to benefit the publisher rather than the author. (Mead 1999)
Proprietors, due to the Anglo-American legal fiction that corporate entities (‘legal persons)’ have the same rights as individual human beings (‘natural persons’), could, however, continue to claim copyright in their own right. Furthermore, another peculiarity of the Anglo-American copyright tradition is that copyright to a work created by an employee or under commission belongs to the employer and neither economic nor moral rights attach to the actual author employee.
Third, while language and philosophy may have changed, the financial position of printers and publishers was in fact enhanced. Copyright protection was initially available only to US citizens or residents.
The first national copyright law, passed in 1790, provided for a
14-year copyright ... but only for authors who were citizens or residents of the
US. The US extended the copyright term to 28 years in 1831, but again restricted
copyright protection only to citizens and residents.
policy was unique among developed nations. Denmark, Prussia, England, France,
and Belgium all had laws respecting the rights of foreign authors. By 1850, only
the US, Russia and the Ottoman Empire refused to recognize international
advantages of this policy to the US were quite significant: they had a public
hungry for books, and a publishing industry happy to publish them.
And a ready supply was available from England. Publishing in the US was virtually a no-risk enterprise:
whatever sold well in England was likely to do well in the US.
publishers paid agents in England to acquire popular works, which were then
rushed to the US and set in type. Competition
was intense, and the first to publish had an advantage of only days before they
themselves were subject to copying. Intense
competition leads to low prices. In 1843 Dickens's Christmas Carol sold
for six cents in the US and $2.50 in England. (Varian 1998)
It was not until passage of the International Copyright Act (known as the Chace Act) in 1891 that the United States accorded foreign authors equal treatment if the author's country of citizenship accorded reciprocal protections to the works of American authors. However, special benefits continued to flow to American printers because of the longest-lived U.S. non-tariff trade barrier in history – the "manufacturing clause" of U.S. copyright law (Boyd 1991).
The Chace Act restricted the import of foreign-printed books by denying U.S. copyright protection to, at first, works by all English-language authors, and then to American authors unless their work was printed in the US. It was through this provision, for example, that the works of Henry Miller including the Tropic of Cancer and Tropic of Capricorn were kept out of the United States because only a French printer could be found to publish them. This restriction on granting copyright to works by American authors printed abroad was not removed until 1984.
Fourth, another hotly debated issue during the drafting stage of both the Copyright Clause of the Constitution and Copyright Act of 1790 was the duration of copyright. Initially duration was to be based on the average life span of authors. Thus under the Copyright Act of 1790, the duration of copyright was set at 14 years with the possibility of renewal for another 14 years if the author was still alive. Thomas Jefferson based a proposed term for copyright on the principle that "the earth belongs in usufruct to the living", and computed it by means of actuarial tables:
changing daily by daily deaths and births, have one constant term, beginning at
the date of their contract, and ending when a majority of those of full age at
that date shall be dead. The length of that term may be estimated from tables of
mortality [and is found to be] 18 years 8 months, or say 19 years as the nearest
integral number... The principle,
that the earth belongs to the living, and not to the dead, is of very extensive
application... Turn this subject in your mind, my dear Sir... and develop it
with that perspicuity and cogent logic so peculiarly yours... Establish the principle... in the new law to be passed for
protecting copyrights and new inventions, by securing the exclusive right for 19
instead of 14 years. (Jefferson, Letter to James Madison, September 6,
However, the term was extended in 1831 to 28 years with the possibility of renewal for another 14 years. In 1909, it was extended again to 28 years with the possibility of renewal for another 28 years. In 1976 duration became the author’s life plus 50 years. With accession by the United States to the Berne Convention in 1986, the duration of American copyright is now the author’s life plus 75 years. Put another way, assuming 20 years per generation, American copyright now extends over four generations – a long distance from Jefferson’s limited monopoly based on the principle "the earth belongs in usufruct to the living". Some observers argue that the term of copyright now, in effect, approaches the ‘perpetual copyright’ enjoyed by the Stationers’ Company before 1710.
The extension of the renewal term of copyright … is unconstitutional because (1) it is motivated by a desire to establish perpetual copyright; (2) it provides nothing to authors (most of the authors being dead); (3) it does nothing to encourage the arts … ; (4) its effect will be to discourage the arts by preventing the timely entrance of works into the public domain; and (5) it exceeds any reasonable interpretation of the constitutional requirement of "limited times." The Constitution's framers, though suspicious of monopoly, considered copyright to be a bearable monopoly only because the term was to be limited; the expiration of copyright was considered indispensable for copyright's proper functioning. The U.S. Supreme Court for the most part has adhered to the framers' view. The extension of the term of copyright to 95 years, however, overthrows the constitutional foundations of copyright law. (Phillips 1998)
Fifth, and finally, three words sum up the US rationale for granting copyright: progress, learning & knowledge. All three relate to the public domain and thereby to the third party in the copyright equation: the User.
With respect to ‘progress’, Article I, Section 8 of the Constitution gives Congress the power to “… promote the Progress of … useful arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings… ”. Such time limited rights are explicitly made available only to ‘authors’. The purpose of such rights is to promote the progress of the arts. This requires works be accessible to the public, that is, to Users. Thus such works are to become freely available to Users after the ‘limited’ time has passed, that is, they should enter the public domain.
With respect to ‘learning’, the Copyright Act of 1790 is entitled: An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. Derived from the title to the Statute of Queen Anne, the US Copyright Act justifies ‘securing the Copies’ as an encouragement for learning among the people, that is, Users.
importance of ‘learning’ lead to the ‘Fair Use’ clause of the Copyright
Act limiting the copyright monopoly even during its limited duration. In the simplest terms, this means: nonprofit copying is fair
use. This provision allows public libraries, educational institutions and
individuals to copy works without paying royalties to Proprietors and still
avoid the charge of ‘copyright infringement’.
contrast in Canada (following the British tradition), the corresponding
provision is ‘fair dealing’. In
the simplest terms, this means copying a work, without payment of royalties to
its Proprietor, constitutes an infringement except under extremely tightly
defined conditions. For example, under current provisions of the Canadian
Copyright Act, a public or educational library is required to assure itself that
a patron is engaged in bona fide 'research and private study' before making
photocopies available to him or her and to thereby obtain a 'fair dealing'
exception to copyright infringement. Similarly,
under the Canadian Act the only way a teacher can copy a work for classroom use
without infringing copyright is to hand copy on an erasable surface.
With passage of the Millennium Digital Copyright Act by the US
Congress, however, it appears that the 'fair dealing' concept is beginning to
slip into American copyright law.
unlike the title to the Statute of Queen Anne and Article 1, Section 8 of the US
Constitution, the American Copyright Act of 1790 explicitly recognizes that
copyright may be held by ‘Proprietors’, not just ‘Authors’. It is by
this device that ‘moral rights’ of a Creator have been effectively
extinguished by the American courts. It
is also by this device that the media empires of the 20th and 21st
centuries, worthy successors to the Stationer’s Company, have arisen.
With respect to ‘knowledge’, President George Washington said in his message to Congress leading to enactment of the 1790 Copyright Act: "Knowledge is, in every country, the surest basis of public happiness." (Washington 1790). Thus long before the concept of a ‘knowledge-based economy’, knowledge was recognized by the Founding Fathers of the American Republic as intrinsically valuable to the public good. The Copyright Act was a device intended to minimize monopoly, foster learning and increase the knowledge of the people and thereby raise the level of happiness in America. Such public happiness, however, is reduced to the extent that copyright usurps the public domain beyond its constitutional limits (Patterson 1993).
This was the state of copyright law in the United States when the French Revolution was but a year old.
The English Revolution resulted in the eventual restoration of the monarchy and constitutional accommodation between the Crown, the aristocracy and the people. The American Revolution resulted in the end of the monarchy and removal of aristocratic privilege but also in constitutional accommodation with the Common Law, that is with the rule of precedent and traditional practice. Development of the Common Law was a process whereby the courts of law converted customary bargains and business practices into a common law of property and liberty (Commons 1924: 229). Copyright was one such business practice accommodated by the American Revolution, e.g. adoption of the wording and ‘market’ spirit of the Statute of Queen Anne and maintenance of ‘printer’s copyright’.
The French Revolution was different. Essentially everything was swept away especially the law. Before the Revolution, Roman law governed in the south of France. In the northern provinces, including Paris, customary law based on feudal Frankish and Germanic institutions held sway. Marriage and family life were controlled by the Roman Catholic Church and governed by canon law. Furthermore, beginning in the 16th century, many issues were governed by royal decrees and ordinances and by a case law developed by the parlements..
The ‘rationalizing’ tendencies of the French Revolution went much further than that of the American. This was reinforced by Napoleon. An example of his continuing ‘rationalizing’ influence on the daily life of each and every American is driving on the right-hand side of the road.
Perhaps most extraordinary of all was his insistence in the interest of speed that everybody keep to the right-hand side of the road in order to expedite and simplify traffic problems. Where his armies went, right-hand driving has remained, even in Russia. He never got to Sweden, and the Swedes didn’t switch until 1967. He never got to England, and they still drive on the left-hand side (McLuhan, Fiore 1968: 106).
After the [French] Revolution, codification [of the law] became not only possible but … necessary. Powerful control groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state. The Napoleonic Code , therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from "sublimated common sense"; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason (Encyclopedia Britannica June 2000).
The Napoleonic or ‘Civil’ Code remains, in one form or another, the dominant legal system in the non-English-speaking world including Latin America, France, Germany, Japan and most of Asia. The rationalizing tendencies of the French Revolution also succeeded in resolving the schizophrenic character of copyright in the Anglo-American tradition – market regulation or Creator’s rights - by splitting rights into two distinct classes:
... The European edifice of author's rights rests on two pillars: the author's economic rights and moral rights. Economic rights allow the author to assign or license to others the right to use the work... and are the principle means by which an author reaps profit from the work. Moral rights grant the author continuing control over the work despite its exploitation... In this scheme of things, the author is front and centre stage; later exploiters and users of the work are secondary players and stand in the wings.
Anglo-American law takes a more pragmatic approach to copyright. Copyright is essentially a vehicle to propel works into the market: it is more an instrument of commerce than of culture. It is geared more to the media entrepreneur than the author. It is ready to grant copyrights not just to authors but to secondary users who add value to the work: record companies, broadcasters, movie studios, and even printers... Unfair competition rather than authors' rights seems to be the guiding force behind copyright. Whether rights should be extended to a work is more a question of political pragmatism depending on the strength of a particular interest group ... In such a scheme, economic rights are emphasized: moral rights are unheard of, save insofar as particular complaints can be slotted into some common law theory or statute designed to prevent unfair competition. Unless an author has retained some moral rights by contract, the assignment or licensing of the work pro tanto terminates his or her involvement with it (Vaver 1987: 82-83).
The Civil Code recognizes rights broad enough to make Creators master of their self-expression, no matter how this expression may be subsequently used, for example, translation into another language, adaptation to the screen, etc. It empowers the Creator by recognizing inalienable ‘moral rights’ in terms broad enough to survive any contractual transfer, i.e. they cannot be extinguished. Furthermore moral rights are available only to flesh-and-blood creators, they alone being capable of self-expression. While ‘legal persons’, i.e. corporations, can enjoy economic rights, moral rights as “inalienable’ are “attached” to the very “person” of the author. Thus “author’s rights’ only protect works if they bear some “imprint of personality” (Geller 1994). The agreement of the Andean Pact expresses the nature of ‘moral rights’ available under the Civil Code tradition:
IV: MORAL RIGHTS
11: Inalienable, Unattachable, Impresciptible and Unrenounceable
The author shall have the inalienable, unattachable, imprescriptible and unrenounceable right:
(a) to keep the work unpublished or to disclose it;
(b) to claim authorship of the work at any time;
(c) to object to any distortion, mutilation or alteration of the work that is prejudicial to the integrity thereof or to the reputation of the author.
the author's death, the exercise of moral rights shall pass to his successors in
title for the period referred to in Chapter VI of this Decision. Once the
economic rights have lapsed, the State or designated agencies shall assume the
defense of the authorship and integrity of the work (Andean Community 1993).
By contrast, copyright in the Anglo-American tradition recognizes only those rights necessary for inducing the making and marketing of works. It avoids burdening the contractual transfer of economic rights either by denying moral rights (in the US) or by codifying them in terms that permit authors to contractually waive them (in Canada). Copyright is available to anyone – legal or natural persons - capable of having works created or putting them on the market including business enterprises that employ creators and direct their work. To qualify for copyright protection works must, in the British legal tradition, display an investment of “skill and labor” or, under American law “some minimum level of creativity”, but without requiring any “imprint of personality” (Geller 1994).
This is the state of the law as we enter the Present. In summary, in the English-speaking world we have copyright that is considered by the public and the creative community as a ‘natural right’ of the Creator. In law, however, it is a trade regulation statute with monopoly power typically exercised by large, increasingly global, media Proprietors. All Creator rights are subject to transfer by contract; no rights are considered inherent and inalienable to the individual Creator in spite of Chaffe’s eloquent incantation:
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)
This is the Myth of the Creator with which we live today. And the clash between Civil Code’s author’s rights and Anglo-American copyright fuel an ongoing controversy between the United States and France (as well as much of continental Europe). The United States wants the Europeans to extend all authors’ rights to American media corporations selling entertainment products in the European Union. The Europeans refuse arguing many of these rights are available only to ‘natural persons’, not corporate entities.
French have a saying: The more things change, the more they remain the same!
In the case of copyright, this is too true.
Just like the printing press of 550 years ago, a new means of storing,
displaying and distributing knowledge (or organized information) – words,
images and sounds – has emerged: digitization.
Proprietors of older ‘analog’ media – broadcasting, printing, sound
and video recording are threatened. The borders of Nation States are eroding
before the information and e-commerce onslaught of the Internet – the primary
distribution channel for this new media. Heretical works – now kiddie-porn and
hate propaganda – are subject to investigation, prosecution and censorship for
the sake of children and gullible victims of bigotry and racism. Charges of
‘piracy’ abound. Cybersquatting disputes are now being adjudicated by World
Intellectual Property Organization arbitrators.
Privateers sail the newly discovered seas seeking new lands and riches
planting ‘software patents’ (Amazon.com) and building ever swifter and
better ships to capture merchant ships on the high seas of the World-Wide Web
(MP3.com and soon MP4). The plight of Creators (Metallica) is hoisted up the
flagpole by Proprietors (the Recording Industry Association of America) in a new
‘Battle of the Booksellers’ with its call to stamp out pirate havens on the
Internet (Napster). New Stationers’ Companies arise (AOL/Time-Warner,
Microsoft, News Corp., Disney, et al) fighting for ‘perpetual
copyright’ for ‘their’ works through a Digital Millennium Copyright Act
that may, or may not, prove as short-lived as Millar vs. Taylor before
another Donaldson vs. Beckett lets Mickey Mouse play free in the public
domain. Extension of copyright
protection to computer programs and software has led to widespread ‘hacking’
over the World Wide Web that constitutes copyright infringement in the form of
accessing and copying protected works and damaging such works. Copyright has also been used as the principal argument of
Microsoft in its defense against the U.S. Department of Justice anti-trust case
to break its near-monopoly of personal computer operating systems software.
And wave after wave of new law is being introduced and adopted striving
to put the new wine of digital technology back into the old bottle of
printer’s copyright (Table 1).
Bills Introduced and Public Laws Passed by Congress
Source: US Copyright Office
Why is this happening and where is the public interest in this tidal wave of legislation?
Our current copyright law is based on a model devised for print media, and expanded with some difficulty to embrace a world that includes live, filmed and taped performances, broadcast media, and, most recently, digital media. That much is uncontroversial. The suitability of that model for new media is much more controversial. As one might expect, to the extent that current legal rules make some parties "haves" and others "have-nots," the haves are fans of the current model, while today's have-nots suggest that some other model might be more appropriate for the future. Meanwhile, copyright lawyers, who, after all, make their livings interpreting and applying this long and complex body of counterintuitive, bewildering rules, insist that the current model is very close to the platonic ideal, and should under no circumstances be jettisoned in favor of some untried and untrue replacement (Litman 1996).
the ‘digital age’ it is not just ‘corporate pirates’ against whom
Proprietors raged. It is also
private citizens with access to the Internet and the ability ‘to copy’
including some 335,000 Napster users identified by the Recording Industry
Association of America and since stricken from the Napster’s rolls and who
remain potentially liable for copyright infringement.
New ‘digital copyright’ and other devices and techniques are being
proposed by Proprietors to stop individuals infringing ‘their’ copyright.
And where is the public domain in whose interest the copyright monopoly
was granted by the Constitution?
The most compelling advantage of encouraging copyright industries to work out the details of the copyright law among themselves, before passing the finished product on to a compliant Congress for enactment, has been that it produced copyright laws that the relevant players could live with, because they wrote them. If we intend the law to apply to individual end users’ everyday interaction with copyrighted material, however, we will need to take a different approach. Direct negotiation among industry representatives and a few hundred million end-users would be unwieldy (even by copyright legislation standards). Imposing the choices of the current stakeholders on a few hundred million individuals is unlikely to result in rules that the new majority of relevant players find workable. They will not, after all, have written them. There are, moreover, few signs that the entities proposing statutory revision have taken the public’s interests very seriously. Instead, they seem determined to see their proposals enacted before they can be the subject of serious public debate (Litman 1996).
And what of Creators? How have they fared in the tidal wave of new copyright laws introduced since 1989 and US accession to the Berne Convention? In order to accede to the Berne Convention, Congress had to make some token movements towards ‘moral rights’. Thus the Visual Artists Protection Act of 1990 became Section 106A of the Copyright Act. However, rights of paternity and integrity of one’s work is available only to artists of ‘recognized’ reputation. Recognized by whom? Recognized by the Courts. Similarly, the Architectural Works Copyright Protection Act, Pub. L. 101-650 was passed in 1990. Its provisions, however, are so weak with respect to the ‘moral rights’ of architects that it has not been incorporated into the Copyright Act.
Then there is the case of Tasini et al. v. The New York Times et al. In the initial 1997 case, a federal district court in New York was asked to determine whether publishers were entitled to place the contents of their periodicals into electronic data bases and onto CD-ROMs without first securing the permission of freelance writers whose contributions were included in those periodicals. A federal district court in 1997 decided in favor of the Proprietors. The freelance writers appealed. On September 24, 1999, a three-judge panel of the Second Circuit Court of Appeals reversed the lower court’s decision. The Proprietors then approached the US Court of Appeals for a full trial hearing. In April 2000, the Court refused to order a trial before the full court.
In spite of this apparent victory, freelance writers are generally subjected to a ‘blanket’ or ‘all rights’ licensing agreement with Proprietors. This means that having made an initial and one-time payment to a Creator, all rights are assumed by the Proprietor including those for media yet to be invented. Take an extreme case. An author writes a short story that is published in a magazine or journal. Someone in Hollywood likes the story and decides to make a movie. The Creator, however, has no residual rights and the Proprietor makes a deal netting millions of dollars. The Creator gets not a penny. The mistake made by the New York Times et al in Tasini was failing to get authors to surrender all rights in the initial contract. It is unlikely that they will make the same mistake in future.
That is how the law stands today. Almost 300 years ago the Myth of the Creator was born with a Statute intended to break the perpetual copyright monopoly of the Stationers’ Company and bring Scotland under a common law of copyright ending piracy in a new ‘Great Britain’. The legal fiction was planted that all rights originated with the creator but that any ‘natural’ or moral rights of that Creator are extinguished on publication. Furthermore, the economic rights of the Creator are compromised in the financial interest of Proprietors or ‘copyright owners’. Thus economic rights of the Creator can, and usually are, transferred to Proprietors in return for a one-time payout by the stroke of a pen on an ‘all rights license’. The Myth survived the American Revolution and has now led, full circle, back to a virtual perpetual copyright extending onto four generations and covering all existing and any as yet to be invented means of fixing the work of a Creator in material form. In effect, copyright has become the legal foundation for the industrial organization of the arts/entertainment/media industry.
So what of the future? Whether it is UFOs, the X-Files, Star Wars or Star Trek, science fiction has emerged as the main source of the new myths and fairy tales of our post-modern world. ‘Sci-fi’ literature can be classified as forecasting either ‘utopian’ or ‘anti-utopian’ futures. Using these two classes, two alternative futures for copyright and intellectual property in general can be cast.
Perhaps the most powerful and chilling anti-utopian future to emerge since George Orwell’s 1984 was penned by William Gibson in a series of novels beginning, ironically, in 1984 with Neuromancer. It was in this first novel that the terms ‘cyberspace’ and ‘virtual reality’ were coined (Gibson 1984) almost a decade before the Internet and the World-Wide Web became a popular reality. Followed by Count Zero, Mona Lisa Overdrive and Virtual Light, Gibson created a whole new genre of science fiction alternatively called ‘cybergothic’ or ‘cyberpunk’.
In Gibson's vision of the future, the mind's eye fills with swirling multimedia, merging and mutating into a consensual hallucination called cyberspace. This ‘virtual reality’ rushes forward to Users fueled by techno-greed for bits and bytes. Hackers and ‘console cowboys’ fight with global corporations for the high ground in a continuous war for encrypted information. And in this war individuality and privacy erode before the ceaseless search for power and profit by a techno-corporate elite who knows which buttons to push while the rest of humanity cannot even program a VCR.
Copyright protection in cyberspace, that today includes encryption technology, evolves into what Gibson calls ‘ICE’, i.e. intrusion counter-measures electronic. This, he projects, will include ‘black ice’ using electronic feedback that may prove fatal to hackers. Protection of intellectual property in Gibson’s future also includes ‘cerebral bombs’ implanted in the brains of corporate executives and timed to go off if an executive ‘defects’ to another corporation.
Gibson’s world of the near future is one in which copyright, copyright protection and intellectual property rights in general runs wild. The corporate sector uses both increasingly restrictive laws as well as technological means to tightly control access to the expression of ideas fixed in material form.
While admittedly extreme, Gibson’s vision of the future is a logical extension of trends in copyright law and technology current in the Present. Extension of the term, the scope and the coverage of Anglo-American copyright are fueled by corporate Proprietors pursuit of profit. Little consideration has been given to the rights of Creators and Users.
By contrast, a ‘utopian’ alternative future for copyright can be cast using the ancient myth of ‘the Trojan horse’. When the United States acceded to the Berne Copyright Convention in 1989 it did so mainly to benefit its corporate copyright Proprietors by extending the term of copyright protection for existing works to the life of the author plus 75 years. Thus Disney can protect Mickey Mouse for an additional 25 years. This extension may, in the long run, parallel the short run gains of the Stationers’ Company through the extension granted by the Statute of Queen Anne in 1710. The Berne Convention has entered the gates of the American copyright citadel and may prove to be a Trojan horse for Creators.
The Berne Convention contains the full range of Creator’s economic and moral rights allowed under the Civil Code. As noted above, certain token moves had to be made by the U.S. for its accession to be accepted by the Berne Union, e.g. the Visual Artist Protection Act. As the American creative community becomes more familiar with the Berne Convention it is possible that pressure will build for adoption of more of the Civil Code rights recognized by the Convention. First and for most these include generic rights of paternity and integrity. Second, the Berne Convention recognizes ‘rights of following sales’ or ‘droit de suite’ in French. At the state level, the right of following sales has already been granted to visual artists who are resident in California. A young artist sells low but as his or her career matures earlier works increase in value. While collectors benefit from the re-sale of these early works, the artist gets nothing. The right of following sale insures a percentage of all subsequent sales go back to the artist.
Another right recognized by the Berne Convention is the ‘public lending right’ currently recognized by more than 19 countries around the world including Canada. Canadian public lending rights (PLRs) are granted for books written by Canadian authors and held in Canadian libraries. PLRs assume the public benefits from libraries but authors suffer lost sales. Therefore, market failure exists justifying a public policy response. PLRs compensate authors from a special federal fund. Payment is capped so no one author receives too much. Payment is restricted to Canadians and goes directly to the creator and cannot be transferred to Proprietors.
Assuming the Trojan horse that is the Berne Convention does alter the landscape of American copyright the next step towards enhancing the financial viability of the creative life would be adoption of the current policy of the Republic of Ireland (Eire) that exempts copyright income earned by resident creators from income tax. The exemption applies only to individuals, not to corporations. The result has been an influx of creative talent who pay sales and other taxes offsetting the tax expenditure to the public treasury. In addition, such talent enriches the cultural as well as economic life of the country.
If the Berne Convention proves to be a true Trojan horse, then American creators will finally be able to enter the Garden again but this time eat of the fruit of a tree that fulfills the promise of the Myth of the Creator:
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