CHRISTIANITY, COPYRIGHT & CENSORSHIP
IN ENGLISH-SPEAKING CULTURE
Harry Hillman Chartrand ©
In the paper, it is demonstrated that the origin of censorship is found in the twin roots of western civilization - the classical world of ancient Greece and Rome, from which censorship of the spoken and written word emerged, and the Judeo-Christian-Islamic world from which censorship of the visual image evolved. The history of censorship through the Reformation and Counter-Reformation is traced. Use and abuse of art for political and religious purposes in Tudor England is explored and the common law origins of a unique English concept of artists' rights called copyright are founded at this time. It is shown that this concept emphasizes the rights of printers, publishers and producers and protection of the public from the power of the artist. This is contrasted with the inalienable rights of the creator emerging from the democratic revolutions of the late 18th and 19th centuries and embodied in the Civil Code. It is shown that despite a revolutionary heritage, the United States maintains an English concept of artists' rights, or rather limitation and censorship of them. It is demonstrated that ongoing controversy concerning censorship is rooted in incomplete separation of Church and State. The spirit of the law including copyright remains Christian even though Christian sin may be Islamic or Buddhist virtue in a multicultural secular society.
As the winds of reaction rise once more off some mythic sea to buffet the coast line of the arts, it is appropriate to step back and consider the origins of an ongoing threat to artistic freedom - censorship. To do so, I begin with the twin roots of western civilization the classical world of ancient Greece and Rome from which censorship of the spoken and written word began, and the Judeo-Christian-Islamic world from which censorship of the visual image evolved.
From these twin roots, I trace censorship through the Reformation and Counter-Reformation. Shifting attention to Tudor England, I outline the use and abuse of art for political and religious purposes; I explore the triangular tension between Roman Catholicism, the Church of England and Protestantism. I show that it was from these tensions that the Puritans fled to America to escape art. Later, these same tensions caused dissenters from the Church of England, unable to attend university because of their faith, to initiate the Industrial Revolution. And I will show that it was from Protestant values that modern economics, emerging in the late 18th century, adopted its hostile attitude to the arts.
I show that the common law origins of a unique English concept of artists' rights called copyright were founded in this period of English history. I demonstrate that copyright emphasizes the rights of printers, publishers and producers as well as protection of the public from the power of the artist. This tradition is contrasted with the inalienable rights of the creator emerging from the democratic revolutions of the late 18th and 19th centuries and embodied in the Civil Code. I demonstrate that the United States, despite its revolutionary heritage, maintains the English tradition of artists' rights, or rather limitation and censorship of them. Finally, I argue that ongoing controversy concerning censorship is rooted in incomplete separation of Church and State. The spirit of the law remains Christian even though Christian sin may be Islamic or Buddhist virtue in a multicultural secular society.
This re-ligio, or linking back, is intended to raise collective awareness of the direction and
position of the problem in space and time (Jantsch 1975). This pilgrim's progress might even compel
advocates of censorship to acknowledge, if not repent, what is a deeply rooted cultural prejudice.
One cannot escape history; it follows every step we take into the future, whether we know of its
presence or not. But, as the Japanese might say:
An obligation not felt, is not an obligation!
(Kahn 1971: 47-54)
English-speakers pride themselves on individualism, democracy and freedom of expression. Yet art has always troubled 'the powers that be'. Art is the technology of the heart; it moves and motivates people - individually and en masse; it therefore threatens rational order. Thus, near the very beginnings of western civilization, Plato warned:
we must remain firm in our conviction that hymns to the gods and praise of famous men are the only poetry which ought to be admitted into our State. For if you go beyond this and allow the honeyed muse to enter, either in epic or lyric verse, not law and the reason of mankind, which by common consent have ever been deemed best, but pleasure and pain will be the rulers in our State (Plato, Book X, 1952: 433-434).
Thus, long before science became accountable for nuclear terror and pollution, our civilization feared art; feared feeling; feared perhaps the mnemonic matriarchal murmurings and memory of Adam's first wife, Lilith - Mother of All Witches - made equal and at the same time, but who fled Paradise when God decided a submissive Eve was better for the patriarchy (Koltuv 1986). In fairness to the ancient Greeks, while sexual apartheid (separate but equal) and slavery were practiced, they attained a harmony between Appolonian Logic and Dionysian Ecstasy not attained by Rome or medieval Christendom and not yet attained in the modern world - a creative balance of nature, humanity and the gods remembered as the Golden Age of western civilization.
Fear of art was reinforced, not diminished, with the rise of Christianity. As one of the three great world religions subscribing to the Ten Commandments (Judaism and Islam being the other two), Christianity prohibits worship of 'graven images'. Among all three 'peoples of the book', censorship of the image traces back to Moses and the Golden Calf. In the book (the meaning of Bible), the Word is sacred but the image, at best, is profane and at worst is evil incarnate.
Like their religion's founder and brother Jews of the Diaspora (the son of the Emperor Vespasian, Titus, destroyed the Temple of Solomon in 79 C.E. exiling the Jew to the farthest reaches of the Empire), early Christians suffered persecution and martyrdom for 300 years at the hands of pagans and, forever after, at the hands of opposing Christians and non-Christians resisting conversion and/or colonization. Their ideas and beliefs were violently suppressed; their bodies burned and tortured; their souls, in passionate martyrdom, sacrificed to a God who had no form, no name and no graven image - to the bewilderment of peoples around the world.
Confiscated Christian property was, however, returned in 313 C.E. by the Edict of Milan (Langer 1952: 119). Soon afterwards Christianity was declared the official religion of the Roman Empire. But the same Christians who had called for respect, tolerance and understanding then began to pillage and burn pagan temples and libraries; to destroy or deface what might have been a much fuller inheritance from the classical world. To be fair, the First Emperor of China - Ch'in Shih Huang Ti - who built the Great Wall, the only human structure visible to the naked eye from the moon, conducted a great book burning in 213 B.C.E. Essentially he believed: Before Me, No History! One of the few books to survive, from a literature continuous for almost 3,000 years, was the I Ching - The Book of Changes (Wilhelm, 1950: xlvii). These artistic and cultural tragedies, taken together with 20th century updates by Hitler, Stalin, Pol Pot and Idi Admin, show that more than rain forests can be lost forever due to intolerance and human arrogance.
As early as the first Council of Nicaea in 325 C.E., the Church (invested with authority by the Emperor) began banning the written word. This event was key to the future. The Patriarch of Alexandria, Athanasius, contended Christ was of one substance divine. Arius, remembered as an Alexandrian priest, contended Christ was of two parts and the divine did not die on the Cross but was raised up into heaven. Athanasius won: Arianism was declared heresy. Arian missionaries, however, were the first to reach and convert the German tribes bordering the Empire.
With Christian ascendance, the geopolitical centre of power shifted from the Latin West to the Greek East, from Rome to a new Christian capital - Constantinople - in 330 C.E. And with this shift, according to some, artistic expression rapidly declined (Langer 1952: 123). The changing status of art can be demonstrated by contrasting the Athens of Pericles (490 - 429 B.C.E.) with Constantinople (330 C.E. to 1453 C.E.).
Athens was the artistic and cultural capital of ancient Greece. Sports played an important role, but was balanced by the Athenian ideal of a healthy mind in a healthy body.
The polis is the place of art .... The magus, the poet who, like Orpheus and Arion is also a supreme sage, can make stones of music. One version of the myth has it that the walls of Thebes were built by songs, the poet's voice and harmonious learning summoning brute matter into stately civic forum. The implicit metaphors are far reaching: the "numbers" of music and of poetry are cognate with the proportionate use and division of matter and space; the poem and the built city are exemplars both of the outward, living shapes of reason. And only in the city can the poet, the dramatist, the architect find an audience sufficiently compact, sufficiently informed to yield him adequate echo. Etymology preserves this link between "public," in the sense of the literary or theatrical public and the "republic" meaning the assembly in the space and governance of the city. (Steiner 1976: 322)
In Constantinople, the balance was different. Built as a new Christian capital of an ancient empire, Constantinople banned the gladiatorial games of pagan Rome, a form of human sacrifice as savage as the Aztec. But the Roman passion for blood sports (sublimated into human/animal contests) continued and was fueled as a matter of public policy. The passion and riots associated with contemporary competitive sports, e.g. British soccer hooligans or Michigan football fans, have their institutional origin in the factions of the new Christian capital (Constantinople) called the Blues and the Greens. They did not simply play, or bet, on sports. Victory was not just victory, it was the Will of God fulfilling itself in games of deadly political power.
While [Constantinople] inherited from her elder sister the passion for chariot races, the Byzantine hippodrome [loosely translated as race track] acquired a political significance which had never been attached to the Roman circus. It was here that on the accession of a new Emperor the people of the capital acclaimed him and showed their approval of his election... The hippodrome was again and again throughout later Roman history the scene of political demonstrations and riots which shook or threatened the throne... It may be said that the hippodrome replaced, under autocratic government, the popular Assembly of the old Greek city-state (Bury 1958: 86).
Meanwhile in the West, St. Jerome (331- 420 C. E.), reacting to the growing Greek influence in Christian affairs, translated the Bible - Old and New Testaments - into Latin. He then made it public, i.e. he published a Bible to be read by all, not just by the clergy. This Latin Bible was therefore called the 'Vulgate'. But translation from Hebrew, Aramaic and Greek was not the only Bible-building exercise. Certain gospels were included, i.e. those of Luke, John, Mark and Matthew; others were excluded, e.g. the Gnostic gospel of Thomas, the gospel of Philip and the gospel of Truth (Hoeller 1982).
The Latin Bible maintained continuity of the Catholic faith in the West during occupation by Germanic tribes. As an aside, the word 'German' derives from the old Celtic meaning 'neighbor'. These Germanic tribes began their reign as ethnic overlords with little cultural affinity with their Latinized subjects and who, with the exception of the Franks - but including Visigoths, Ostrogoths and Vandals - subscribed to heretical Arian Christianity separating themselves, yet again, from their Catholic subjects. Clovis, king of the Franks, alone among the German leaders, chose Roman Catholicism and founded the first modern European nation - France. His name was later corrupted to 'Louis'.
With the growing influence of the Greek language and culture, a new civilization emerged in the East - the Byzantine or Eastern Roman Empire. And,
In the East arose the great heresies that troubled the Church in the fourth and fifth centuries: Arianism, Nestorianism, Monophysitism - all the complex arguments in which the Greek spirit, reveling in subtle theological metaphysics, clashed with the sober, lucid genius of the Latin world, and from which violent conflict arose between the Eastern episcopate - that supple servant of the Crown - and the haughty obduracy of the Roman pontiffs. (Diehl 1957:7)
But in both East and West, the clergy and the educated caste knew the One God to be invisible and ineffable, but they also realized to be governable the illiterate masses needed objects of veneration - not for worship but to focus faith. Many Greek and Roman gods and their graven images became venerated, reflecting the 'double faith' theory - one faith for the literate, and another - artistic images - for the ignorant, i.e. illiterate (Cantor 1969: 78).
There is another side to the 'double faith' theory, i.e. retention of ancient images and pagan ideas by the educated elite themselves. It has been argued that the Renaissance - a thousand years later - was not a 'rebirth' of ancient learning and art. Rather, it was a 'coming out' by the elite class who had retained aesthetic and intellectual contact with the classical world through an aesthetic and philosophic underground (Seznec 1972) involving alchemy, astrology and necromancy (Jung 1958).
By the 8th century icons had become a characteristic religious feature of both Western and Eastern Roman Empires. Icons, i.e. works of art, became such powerful tools in the hands of the Church that the Eastern Emperors began a campaign for their elimination. This inquisition, the Iconoclastic Controversy, lasted for over a century and a half (Diehl 1957: 167). It failed. Icons and other objects of veneration remained an integral part of Catholic and Orthodox Christian worship even after the great schism of the 9th century between the Petrine Doctrine of the Church of Rome claiming the Pope as successor of St. Peter versus the Caesaropapism Doctrine of the Byzantine Church claiming the Emperor as God's Vicar on earth (Cantor 1969: 55, 90).
Following the schism and paralleling the success of the Arians in converting the German tribes, brother Saints Cyrus and Methodius, on behalf of the Greek Orthodox Patriarch of Constantinople, reached the Slavic tribes in the 9th century converting them to the Eastern rite and, in the process creating a new alphabet - Cyrillic script still used in most of eastern Europe including Russia. This rivalry between east and west Christendom continued during the Middle Ages with catholic Teutonic Knights taking lands in the East - Drang nach Osten - from pagan and later orthodox Slavs until 1400 C.E. when they were stopped after taking Lithuania, Estonia and Latvia - less than 100 years before Columbus 'discovered' America. Soon after, the Russian Orthodox Church assumed supremacy in eastern Christendom with the fall of Constantinople to the Turks in 1453 C. E. Moscow became the 'Third Rome' founded on seven hills.
Thus traditional differences between Eastern, Central and Western Europe are not just political or linguistic, they are also alphabetic. Marshall McLuhan, following the lead of his mentor, Harold Innis (Innis 1950, 1951) noted we recognize the fundamental difference between perception of literate and preliterate peoples but that we do not appreciate the impact of alphabets. It is possible, even today, to encounter highly educated people who are quite unaware that only phonetically literate man lives in a 'rational' or 'pictorial' space. The discovery or invention of such space that is uniform, continuous and connected was an environmental effect of the phonetic alphabet in the sensory life of ancient Greece. This form of rational or pictorial space is an environment that results from no other form of writing, Hebrew, Arabic, or Chinese (McLuhan, Fiore 1968: 7).
The schism between Pope and Byzantine Emperor concerning who was the Vicar of Christ played itself out in the West in the medieval struggle known as the Investiture Controversy between the Holy Roman Emperors (the Western Emperor, successors to Charlemagne) and the Pope. Did the Emperor receive His Authority directly from God, or was it invested by the Pope? In response, the Church hierarchy essentially decided there was too much interference by the laity in its internal affairs, and therefore they (emperors, kings and princes) would be shut out.
But the church itself, from the time of the investiture controversy, became more and more interested in secular affairs, and so the papacy of the high middle ages competed successfully for wealth and power with kings and emperors. The church itself became a great superstate by the papal administration (Cantor l969: 273).
But in the 7th century, Islam swept out of the Arabian peninsula taking away the Holy Land and much of Africa from Christendom. Islam accepted Christ as prophet but only as the last prophet before Mohammed, Blessed Be His Name, last in the line, or Seal of the Prophets stretching from Abraham and his two sons Isaac and Ishmael to Moses, Solomon and Christ. Like the Arian heresy, Islam contended Christ did not die on the Cross. He was uplifted into heaven to return to the Temple of Solomon, in Jerusalem, on the last day when he will sit, at the right hand of Mohammed, and together with Solomon, judge the quick and the dead.
Islam also reaffirmed humankind had been created in God's image and therefore no representation of the human form was permissible. Thus geometric art became highly developed in Islamic culture, but representational art languished. Many Christians in Syria, Egypt and North Africa, who resented objects of veneration welcomed Islam as a purification of a church that had betrayed its own teachings. The book of Islam, almost a third testament to the Christian Bible, is called the Koran: The Recitation. For more than a thousand years, the entrance examination to the University of Cairo has been recitation of the Koran, by memory - from beginning to end.
In fairness, despite practicing sexual apartheid and slavery, Islam's treatment of both Christians and Jews contrasts with the treatment of Jew and Moslem in Christendom. A highly cultured and intellectual Jewish community flowered in Moorish Spain between the 10th and 11th centuries. For the first time since the great Jewish scholar Philo and the Diaspora in the first century C.E. (and not again until the 18th century) a large community of Jews was accepted into western society and given the opportunity to participate in all aspects of life (Cantor 1969: 397). This community did much to re-link Latin Christendom with the classical world lost to barbarian invasion and book burning.
The great 12th century Jewish scholar, Maimondes (Rabbi Moses ben Maimon, 1135-1204 C.E.) contributed. This attempted reconciliation between Aristotle and Judaism was preceded by 11th century Islamic scholars such as Avicenna striving to reconcile Islam with, among others, Neoplatonism (Corbin 1980) to be followed by Thomas Aquinas' 13th century struggle to reconcile Christianity with knowledge so long lost. Jewish scholars who translated Greek and Latin classics, preserved in Arabic, into Latin were a major force in revivifying classical learning. Alas, fundamentalism overtook Islam in 13th century Spain and persecution of the Jew became common. It was not, however, until King Ferdinand and Queen Isabella, just before Columbus' voyage of discovery, that the Jewish community was expelled from Spain.
In the 12th and 13th centuries the position of the Jew in Europe deteriorated rapidly. The Fourth Lateran Council in 1213 C.E. prescribed absolute ghettoization and ordered all Jews to wear a yellow label as sign of their status. By the middle of the twelfth century the concept of 'blood libel' - the myth that Jews had a propensity for the ritual murder of Christian children had become established in Western Europe. Repeated pogroms followed (Cantor 1969: 393-394). In the 1290's, the kings of England and France expelled the Jew; many fled east to lands recently colonized by the Teutonic Knights and created a distinct and vibrant Yiddish culture that all but died during the 1940s.
In addition to militant conversion, colonization of heathen lands and persecution of the Jew, there existed a pervasive suspicion of art. This atmosphere is chillingly captured in Umberto Eco's novel, The Name of the Rose, in which Brother Jorge's fear of the power of comedy to endanger the authority of the Church feeds a medieval tale of murder and the destruction of a great library - the collected enlightenment of an age - by the fires of censorship (Eco 1980).
But, in fact, the chief instrument of repression in the West was the Inquisition against heretics. This came in three waves, none of them very pleasant: the Medieval, Spanish and Roman Inquisitions. Its origins lay in Roman law which:
advocated a judge-centred court with absolute powers... There was nothing, therefore, very novel about the procedure used by the famous papal Inquisition... The Inquisition was a special ad hoc court commissioned by the papacy to deal with heretics. It basically followed civil-law procedure, and there was certainly nothing original in its use of torture as far as the history if Roman law is concerned. (Cantor 1969: 343)
After crushing Arianism, there was no serious heresy in Western Christendom between the 6th and 11th centuries. In the 11th century, however, a major heresy Catharism - emerged in southern France and northern Italy. First, the civil authorities took notice of the artistic license and lifestyles of these heretics and then the Church asked the State to take action. Pope Innocent proclaimed a fourth crusade, not against Islam, but against heretics in southern France.
The northern French barons enthusiastically responded... They looked upon it as a heaven-sent opportunity to carve out fiefs for themselves ...(it) took on the qualities of a land grab (Cantor 1969: 453)
Censorship and prohibition were normal, if informal, practices throughout the so-called Middle Ages,. Finally, during the Counter-Reformation, in 1571, Pope Pius V formally established the Sacred Congregation of the Index and created the Index Librorum Prohibitorum, i .e. the list of prohibited books. This special Congregation carefully reviewed books and issued new indexes whenever needed (Colliers 1956: 391). Finally, in 1592, the revised Counter-Reformation, politically correct edition of the Vulgate was issued - just in time for national languages to displace Latin as the principal medium of literary and scientific expression.
But every cloud has a silver lining; even theology. The end of sexual apartheid in Christendom began - theologically speaking - in 1950 with declaration of the papal dogma of the Assumption of the Virgin (Jung 1958: 170-171). This was the theological root of feminism. Mary was accepted into Heaven - in physical form, i.e. dirty earth was finally accepted as of divine origin and therefore capable of redemption. This is a high point in Christian theology - acceptance of the material world as capable of salvation. Alas, application of the dogma in the real world leaves much to be desired.
Evolution of English culture is generally recognized to have been different than that in continental Europe for at least four reasons. First, the old Roman law never took hold in England. Instead, a distinct legal system based on precedent - the Common Law evolved. Second, England was a multicultural society with Norman, Dane, Saxon and Celt all claiming pride of place and heritage.
Third, the Protestant Reformation took a distinctly English flavor when the Church of Rome was replaced by a catholic yet protestant Church of England. To a degree, this left the Reformation unresolved in England awaiting denouement in a two act drama consisting of the English Civil War of the 1640s and the Glorious Revolution of 1688 including the Declaration of Rights in 1689.
Finally, the flip side of censorship as prohibition is censorship as propaganda encouraging politically or religiously correct art. National historiography, the origins of nations, differ between the nations states that coalesced into modern Europe out of Germanic occupation of the Western Empire. In France, it was the Chanson de Roland concerning the glories of Charlemagne's champion. In England, it was the Arthurian legend and the Holy Grail:
In the history of myths of national origins few have been as influential and have had such a curious development as those popularized by Geoffrey of Monmouth in his History of the Kings of Britain. His writings, appearing about 1138... had a marked influence in subduing the social animosities of the Bretons, Anglo-Saxons, and Normans and drawing them together into a single nation. Geoffrey's fanciful account was used by early Plantagenet monarchs to support their regal claims and for both Tudors and Stuarts it came to constitute a useful prop to their dynastic ones. Though confidence in its historical reliability had almost evaporated by the eighteenth century, as the chief source of the Arthurian legend its influence carried on ... as a spur to Celtic imagination... into our own day. (MacDougall 1982: 7)
The power of this myth - including the images and works of art it inspired - can be seen in the schism between the Churches of Rome and of England over Henry Vill's divorce. In his argument with the Pope, Henry VIII drew on the Arthurian legend to prove the independence of the English Crown and Church. The argument went like this:
With Elizabeth I, this legend was played out as the Fairy Queene. It was Her Court, not that of Louis XIV a century later, that revolutionized the nature of consumption and began a consumer boom that still influences our modern sense of style and fashion (McCraken 1988). To keep Catholic and other nobles loyal, in very troubled times, Good Queen Bess exploited the hegemonic power of things and used the court to communicate the legitimacy of Her Rule.
Before her time, the family was the traditional unit of consumption. One bought for future generations. One bought that which would last because it took five generations of patina to move one's family into the "gentle" class. She, however, forced the ambitious to rise above their station by spending now, for themselves -- to be the prettiest peacock at court, the most generous. Members of the court were compelled to consume their way to honor, power and gentility. This shift from long- to short-term consumption had a dramatic impact on the evolution of Western culture contributing to the breakdown of feudal society. At the same time, in England and other European countries, punitive feudal 'sumptuary' legislation remained in place for two more centuries to restrict "status fraud", i.e. persons of the lower classes dressing or otherwise pretending to be of a higher station in society.
With establishment of a new Church, the Bible-building process continued in England coming to fruition under Elizabeth's successor, James I. This resulted in a literary work that William Blake, and later Northrop Frye, called "The Great Code of Art" (Frye 1982: xvi). Like newly Protestant countries on the continent, England now had a second Vulgate - a Bible readable by the public - in the national language, its meaning not kept secret in the Latin of Rome. And despite more than 300 years of the scientific enlightenment, many contemporary English-speaking Christians still believe the King James' version of the Bible to be the literal Word of God. But has the written word become a graven image?
Submission to the new church and new bible was used to separate Roman Catholic and Protestant from the ruling class, i.e. members of the Church of England with the monarch as Vicar of Christ and Defender of the Faith - the Investiture Controversy revisited. As well, the myth of the divine right of kings was used to maintain prerogatives of the Crown. Parliament needed an argument to prove its supremacy relative to the successor's of the Tudor dynasty - the Stuart Kings. They found it in another great English myth which was then politically nurtured and in whose service art served as hand maiden the Anglo-Saxon Myth. The argument went something like this:
The clash of these two myths - the Holy Grail and Throneworthiness - lead to the English Civil War of the 1640s. But is was not just about politics. It was also about religion - about a catholic or protestant future. With respect to the arts, the tone of Protestant debate was somewhat different from what Martin Luther said of music:
the art of prophets, the only art that can calm the agitations of the soul, ...one of the most magnificent and delightful presents God has given us. [Prochnow 1964: 189]
To the English Protestants, especially the 'Puritans', art was not a frill; it was an evil inspired by the Devil to tempt sinners from the serious work of God. And Anglican Royalists and Roman Catholics were, of course, the most blatant sinners. To a degree, Mayflower Puritans fled England in the 1620s to escape art as well as the Royalists and Roman Catholics who worshipped graven images. Thus, the beginning of the national historiography of the United States of America is anti-art .
With the execution of Charles I in 1649, Cromwell and the Puritans excised art and music, laughter and gaiety during the Commonwealth, a pseudo-republican form of government replacing the monarchy until 1660. Black and white was all that God would tolerate in His Commonwealth - this land England.
But with restoration of Charles II, art took revenge with a hedonism and pleasure-seeking unparalleled in the history of English art - the Restoration plays are examples. The scar left by the power of art, first controlled and then unleashed, helps explain English ambivalence towards art. Furthermore, until the American and French Revolutions of the late 18th century, England was the only country in which the Commons controlled public spending. And the Commons were simply unwilling to support 'aristocratic indulgences' such as art.
The only exception was art lotteries. The first collections of the British Museum were funded through a lottery approved by Parliament in 1753 (Chartrand, Ruston 1981). Modern use of lotteries to support art, beginning in the 1970s, is not therefore without precedent in English cultural history.
In fact, between the 1640s and the Second World War, the national arts policy in all English countries, including the United States, was no support. At the end of World War II, the English world faced clear evidence of the power of art in the hands of Hitler and Stalin. This led to modification of the traditional policy by creating a unique English compromise: the arm's length arts council - funded by, but independent of, the State (Chartrand, McCaughey 1989).
The United States exercised this compromise in two ways. First, in response to cultural penetration of Latin America by the Nazi propaganda machine, the United States Information Agency was created during World War II to propagate American culture abroad, but not at home. Second, in 1965 the NEA was created. Nonetheless, public funding of art, even at arm's length from political influence, is a very fragile flower with unique and recent English cultural roots.
The Anglo-Saxon myth was used again 50 years after the death of Charles I to overthrow of his son's successor, James II, accused of being a Roman Catholic. In 1689, he was replaced on the throne by William of Orange who claimed Anglo-Saxon roots, adherence to the Protestant faith, support of the Church of England and, most importantly, the supremacy of Parliament. This period - 1689 to 1690 - is known as the Glorious Revolution. It was William's sister-in-law, Queen Anne, in whose name the first copyright act was passed - the Statute of Queen Anne in 1709. Both apologists and critics spewed forth art in every medium of expression. In prose, Jonathon Swift and Daniel Defoe were critics:
In his satire, Jure Divino, he [Defoe] characterized the Saxon kingdoms (as all kingdoms) as being built, not on freedom, but "on Violence and Blood." The right to property, so cherished by the middle class, took its origins not from any natural right (contra Locke), but from violence (MacDougal 1982: 76).
The men responsible for technological innovations . . . during the beginning of the Industrial Revolution were non-conformists who had been excluded from the universities and learned their science indirectly while pursuing their trade. (Senate Special Committee, 1970, p. 21)
Paralleling the Industrial Revolution, there was a consumer revolution in 18th century England in which Josiah Wedgewood played a major role. He shifted the source of fashion from the nobility to the bourgeois marketeer, or "market ethnographers" who watched for patterns and regularities and adjusted products and marketing strategies to take advantage of emerging opportunities. By the 19th century such independent observers had attained unprecedented social mobility. Thus McCraken notes: "In the person of Beau Brummel we see nothing less than the abrogation of powers of influence that had previously been possessed only by the monarch" (McCraken 1988: 25) - the beginnings of the star system?
But then a new intellectual force captured the imagination of England - economics, a new secular religion of progress. Economics, as a discipline of thought or "a recognized field of tooled knowledge" (Schumpeter 1949: 143) emerged in the late 18th century at about the same time as political rights of the individual became a reality with the American and then the French Revolutions. Adam Smith, writing as the flood tide of revolution began to inundate the old order of privilege and preference, demonstrated a strong awareness of the cultural matrix of economic phenomena (Smith 1776). One of his successors, however, stripped economics of all cultural context -and trivialized art.
Jeremy Bentham (1748-1832) was a lawyer turned reformer. He believed in "La Raison" (Schumpeter 1949: 115) as the ultimate test of value to society. To Bentham, neither God nor some "natural harmony" was at work in human affairs. He assumed that all the pleasures and pains of an individual resulted from simple physical sensation and could be measured and added into a quantity called 'happiness'. Assuming the happiness of each individual was weighted equally, they could be added up to the common good or welfare of society. The test of public policy became the greatest good for the greatest number. Thus the social good was nothing more nor less than the sum of individual sensations of pleasure or pain -- the only ultimate realities (Schumpeter 1949; 131) -- the two sovereign masters of humanity (Clough 1964; 825).
The assumption that pleasure and pain could be measured became reified as money. Lack of money was the source of misery. Enough money was the source of happiness. This led to equating value to society -- of an object, product, process or person -- with its dollar price in the marketplace. This assumption fostered development of an illusory calculus which became the centerpiece for the economic theory of consumer behaviour -- the marginal utility theory of value (Blaug 1968; 304).
In the Benthamite tradition, however, maximizing pleasure was restrained by the tenets of Ethical Hedonism, a very protestant ethic. This ethic, beyond the moral value of legislation which made "status forgeries illegal" (McCracken 1988; 33). But when the protestant ethic collapsed, only hedonism remained -- in all its unrestrained, irrational incarnations. Without a generally accepted moral code, the law became the institution empowered to moderate individual pleasure-seeking following the principles of crime and punishment proposed by Bentham (Becker 1968).
To Bentham culture, custom and tradition as well as art were irrelevant because they were irrational and interfered with pure reason (Bell 1976: 224). And because men are not just equal but nondescript and malleable (Schumpeter 1954: 132-4), therefore tastes would become so through another Benthamite policy -- compulsory education. Even aesthetics were affected, shrinking to analysis of the pleasurable sensations evoked by a work of art. In this aesthetic, a thing is beautiful because it pleases, it does not please because it is 'objectively' beautiful (Schumpeter 1954: 1267). This aesthetic, combined with Benthamite functional utility, meant that beauty of form was rejected as "irrational". This reached logical conclusion in the aphorism: form follows function.
Following Bentham, each generation of economists struggled for release from utilitarian inhibition (Chartrand 1990). Alfred Lord Marshall accepted the economic importance of the arts, but retained moral doubts:
Education in art stands on a somewhat different footing from education in hard thinking: for while the latter nearly always strengthens the character, the former not infrequently fails to do this. Nevertheless the development of the artistic faculties of the people is in itself an aim of the very highest importance, and is becoming a chief factor of industrial efficiency... Increasingly wealth is enabling people to buy things of all kinds to suit the fancy, with but a secondary regard to their powers of wearing; so that in all kinds of clothing and furniture it is every day more true that it is the pattern which sells the things. Increasingly wealth is enabling people to buy things of all kinds to suit the fancy, with but a secondary regard to their powers of wearing; so that in all kinds of clothing and furniture it is every day more true that it is the pattern which sells the things. (Marshall 1920: 177-8).
Even Keynes thought he had finally thrown off the restrictive restrictive Protestant hedonism and escaped the Benthamite tradition (Innis 1951: 79-80):
I do now regard that [the Benthamite tradition] as the worm which has been gnawing at the insides of modern civilization and is responsible for its present moral decay. We used to regard the Christians as the enemy, because they appeared as the representatives of tradition, convention and hocus-pocus. In truth, it was the Benthamite calculus, based on an over-valuation of the economic criterion, which was destroying the quality of the popular Ideal. Moreover, it was this escape from Bentham ... which has served to protect the whole lot of us from the final reductio ad absurdum of Benthamism known as Marxism (Keynes 1949: 96-7).
In spite of Keynes' hope, his personal involvement with the Bloomsbury Group and his founding role in creating the Arts Council of Great Britain (Keynes 1975), the impact of Bentham continues. It limits what phenomena are considered legitimate subjects of economic investigation. It continues to blind mainstream economists to the cultural context of economic behaviour.
Henry VIII not only founded a new Church, he and his Tudor dynasty also set the seal on the status of the artist in English-speaking culture - a status founded on suspicion and limitation of artists' rights. This process began in response to the first engine of industrial mass production, not the steam engine, but the printing press innovated in the 15th century. In the religious wars and climate of intolerance characterizing the Reformation, the free dissemination of knowledge by this engine was viewed, from the start, as a threat to established order.
With introduction of the printing press in England, the Tudor monarchs began to grant to approved printers the right to copy approved works, i.e. copyright. Thus, the roots of copyright are censorship and feudal grants of commercial privilege (MacDonald 1971). In fact, when the first formal copyright law was passed, the Statute of Queen Anne in 1709, the owner of copyright was almost always the book seller and it was book sellers who lobbied for the law (Chafee 1984: 722).
Subsequent development led to at least philosophic recognition in the English-speaking world of the unique rights of a creator:
... 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 1984: 506-507).
But such moral rights of the creator are in fact not the historical root of copyright and are not reflected in English legal tradition. The residual of feudal and crown law did not vanish with the advent of democracy, even in the United States. On the contrary, it survives in attenuated form to plague democratic law and government and oppress the artist. Obsolete in practice, they still influence the spirit of the law (Gray 1981).
Today, copyright and other forms of intellectual property legislation are justified in English-speaking cultures as a protection of, and incentive to, human creativity which otherwise could be used freely by others. In return, the society expects creators to make their work available and that a market will be created in which such work can be bought and sold. But while society wishes to encourage creativity, it does not want to foster harmful market power. Accordingly, the state builds in limitations to the rights granted to the creator. Such limitations embrace both time and space. Rights are granted for a fixed period of time, and protect only the fixation of human creativity in material form (Chartrand 1987). Intellectual property rights thus provide the legal foundation for the industrial organization of art and science (Commons 1957).
An example illustrates the economic role of copyright. Consider a literary work which becomes a play through the licence of its copyright. In turn, the play becomes a film which, in turn, is spun-off into posters, toys and a soundtrack. Both the film and soundtrack are broadcast on radio and television. Eventually a book is made concerning the making of the movie, and a sequel of the movie is then produced - all based on the playwrights' original copyright. Even museums and archives are related to copyright in that most artifacts and documents, contained are within the public domain, i.e. copyright has lapsed through time.
But legal systems are the product of specific cultures. For example, in French-speaking and most Western European countries, droits d'auteur or author's rights are the core of what in English-speaking countries is called copyright. Such rights are rooted in the Republican Revolution of the late 18th century, and the Rights of Man Movement .
... 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).
Yet another tradition exists among aboriginal peoples. Native or 'collective' copyright has not yet been embodied in statute. It is based on an alien collectivist understanding of creation. To tribal peoples, a song, story or icon does not belong to an individual but to the collective. Rights are often exercised by only one individual in each generation generally through matrilineal descent. There is, however, a proposal before the American Congress to convert Amerindian art into 'inalienable communal property' (Suro 1990).
The legal and economic literature concerning copyright is filled with references to monopoly and fear of the power of artists or their heirs to abuse the public. This fear exists even though each work of art is unique and the bargaining power of the average artist is negligible. Art is bought and sold in a highly differentiated marketplace - the marketplace of ideas, images, fashions and style. But, the lawyers say:
We should start by reminding ourselves that copyright is a monopoly. Like other monopolies, it is open to many objections; it burdens both competitors and the public. Unlike most other monopolies, the law permits and even encourages it because of its peculiar great advantages. Still, remembering that it is a monopoly, we must be sure that the burdens do not outweigh the benefits. So it becomes desirable for us to examine who is benefited and how much and at whose expense (Chafee 1984: 506).
Rather than recognizing copyright as an inalienable right of the creator, it is considered a necessary evil in English and American law:
It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright ... The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures. (Macaulay, 1841 speech to the House of Commons quoted in Chafee 1984: 507).
The difference in the 'spirit of the law'- copyright in English Common Law tradition and authors' rights in the Civil Code - can be demonstrated by analogy with current proposals to incorporate 'a right of native self-government' into the constitution of another English-speaking country, Canada. The government proposes that some form of self-government for the native peoples be incorporated within ten years - its limits defined by Parliament (Government of Canada 1991). Amerindian leadership rejects this because they have 'an inherent' right to self-government because they are a free and independent people who signed treaties, as equals, with the Europeans during the period of colonization. Copyright is like the government's proposal: a right is granted through the favor and patronage of the government and can be limited or withdrawn at the government's pleasure. The Amerindian position is like authors' rights: the author has an inherent and inalienable right to his or her creation.
Thus, in English-speaking societies including the United States, the rights of the artist are considered 'a bounty' granted through the patronage of government. Contrary to the philosophic argument that intellectual property carries rights unlike other forms of property, in fact, artists' rights are more limited and easily alienated. The use of blanket licences by publishers is an example of how all rights of the artist can be extinguished for the commercial purposes of third parties. The inherent mistrust of the artist, part of Christian history and tradition, continues to move and motivate the law.
Similarly, when one considers pornography and obscenity in English-speaking societies, the Christian past steps boldly forward into the present in the guise of 'community standards'. These are used to limit what an artist may express without fear of criminal prosecution. And what are the heresies in contemporary English-speaking societies? Generally, visual expression of the sexual and scatalogical functions of the human body - created in the image of God. Yet the things found offensive by English-speaking Christian culture are often used in other cultures as images of God's glory, e.g. full-penetration displayed in paintings or sculpture in many Hindi temples. What is Christian sin (and a crime in English-speaking countries) may, in fact, be Buddhist or Islamic virtue, or vice versa. Polygamy and polyandry are other examples.
One cannot escape history. It follows us every step into the future, even if we are unaware of its presence. Despite philosophic praise of freedom of expression and the importance of artistic creativity, contemporary English-speaking societies have not acknowledged the presence of old taboos and fears which censor and limit artistic freedom. Even the basic law intended to reward the artist, copyright, is limited and constrained to protect the public from the artist's alleged power. Obscenity laws continue to enforce Christian morality. In the United States, it appears as if the revolution is incomplete. The Church has not been separated from the State. Rather, the State has become the enforcer for one particular morality - Christianity. In the process the rights and freedoms of artists have been sacrificed to an invisible and ineffable God whose earthly minions have burned and censored art throughout their history - Catholic, Protestant and Orthodox. It is time to at least acknowledge, if not repent, our prejudices if a truly multicultural, secular society is to evolve in America.
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