The History of Ideas
“Steal not this book, my worthy friend
For fear the gallows will be your end;
Up the ladder, and down the rope,
There you’ll hang until you choke;
Then I’ll come along and say –
Where’s that book you stole away?”
– Medieval Book Curse
Pre History of Copyrights
The idea that an idea can be owned – is a child of the European Enlightenment. It was indeed in the eighteenth century that the language of “ideas” and “property” first came into contact with one another, and first forged a legal bond. And it was here, too, that the very idea of a property right in ideas was most sharply contested – at the outset, and to the present day.
Ancient Greeks did not think of knowledge as something that could be owned or sold. Plato thought that all ideas were held from birth in the mind, where they had transmigrated from earlier souls. A scribe could be paid fees for his labour, an author awarded prizes for his achievement, but the gift of the gods was freely given. Thus the libraries of the ancient academies were not sold, but were instead transmitted as gifts to the teacher’s most worthy successor. Socrates held the sophists in contempt for charging fees for their learning.
Even during a period of a prospering book trade, during the Roman Empire when no copyright or similar regulations existed, copying by those other than professional booksellers was rare. This is because books were, typically, copied by literate slaves, who were expensive to buy and maintain. Thus, any copier would have had to pay much the same expense as a professional publisher. Roman book sellers would sometimes pay a well regarded author for first access to a text for copying, but they had no exclusive rights to a work and authors were not normally paid anything for their work.
During the centuries following the destruction of the Roman Empire, European literary undertakings were confined almost entirely to the monasteries. The Roman usage, under which authors could dispose of their works to booksellers and the latter could be secure of some commercial control of the property purchased, was entirely forgotten.
A tour of the other great civilizations of the pre-modern world – Chinese, Islamic, Jewish, and Christian – reveals a striking absence of any notion of human ownership of ideas or their expressions. In the Lun-Yii, or Analects, compiled in China in the Fifth century B.C., the philosopher Confucius is recorded as saying,
“I transmit rather than create; I believe in and love the ancients.”
The measure of the greatness of a Chinese scholar was not to be found in innovation, but rather in his ability to render or interpret the wisdom of the ancients, and ultimately god, more fully and faithfully than his fellows. Wisdom came from the past, and the task of the learned was to unearth, preserve, and transmit it. Confucian thought despised commerce and thus also writing for profit; authors practiced their craft for the moral improvement of themselves and others. Reputation, and especially the esteem of future generations, was its own reward, even if it might, incidentally, bestow the worldly gifts of patrons upon its bearer1. This is not to suggest that there was no commerce in books in china. In the land that invented movable type, a book trade flourished as early as the Eleventh century. Still, Chinese authors had no property right to their published words. The contents of books could not be owned. Not even the particular expressions an author might employ could be claimed as his. Chinese characters were thought to have come from nature, and no human being could make a claim upon them that would exclude their usage by others. Only the paltry vessel – the paper and ink of a manuscript or a printed book that bore the ideas and expressions – could be bought or sold.
Throughout the Islamic lands, too, there was no concept of intellectual property for many hundreds of years. All knowledge was thought to come from God. The Koran was the single great scripture from which all other knowledge was derived. A text that embodied the word of Allah, it belonged to no one. There were guardians of its true meaning, to be sure – the great imams who formed schools at the sites of the most important temples. But the principle means of transmitting Koranic knowledge was oral recitation – from teacher to student, in an unbroken lineage from Muhammad himself to his disciples, and from these chosen few forward through the generations. The word “Koran” itself means “recitation,” and oral transmission of the living word was always to be preferred over a written transcription. The book was merely an instrument, a lowly tool, to facilitate faithful memorization of the word, and manuscripts were continuously checked and re checked against oral memory to ensure their accuracy and the authority of their lineage. The Islamic belief that oral recitation, rather than written transcription, best preserved the word of God and kept it pure across the generations meant that the technology of printing was very slow to penetrate into Islamic lands, and it was only widely adopted throughout the Middle East with the advent of the mass newspaper press in the Nineteenth century. To be sure, a certain notion of legal “authorship” did emerge from Islamic scribal practices. But a concept of intellectual property did not. Sha’ria a law against “imposture” or “fraud” was used to prevent the unauthorized appropriation of the reputation or authority of a great teacher through false attribution of written texts. But the teacher did not own the ideas expressed within his books. A thief who stole a book was thus not subject to the punishment for theft – the amputation of his hand. Islamic law held that he had not intended to steal the book as paper and ink, but the ideas in the book – and unlike the paper and ink, these ideas were not tangible property.
The Judeo-Christian tradition elaborated a similar view of knowledge. Moses received the law from Yahweh and freely transmitted it to the people chosen to hear it. And the New Testament sanctified the idea of knowledge as a gift from god in the passage of the book of Matthew in which Jesus exhorts his disciples, “Freely ye have received, Freely give” (10:8). Medieval theologians interpolated this passage into the canon law doctrine “Scientia Donum Dei Est, Unde Vendi Non Potest” (knowledge is a gift from god, consequently it cannot be sold). Selling something that belonged to god constituted the sin of simony. University Professors, Lawyers, judges, and Medical Doctors were thus admonished not to charge fees for their services, although they might receive gifts in gratitude for the wisdom they imparted. Indeed, the language of gift-giving permeated all forms of knowledge exchange in the pre-modern period, and nowhere more so than in the dedicatory prefaces to books through which authors sought patronage in recompense for the symbolic offering of their works. The renaissance elevated the poet, the inventor, and the artist to unprecedented social heights, but their “genius” was still understood to be divinely inspired rather than a mere product of their mental skills or worldly labours. In the Sixteenth Century, Martin Luther could thus preach confidently in his warning to printers, “Freely have I received, Freely I have given, and I want nothing in return.”
In Ireland in the mid-6th-century AD, power depended on connections and access to and control of information. Not a great deal has changed in fourteen hundred years. The short story of Colmcille and the Battle of the Book at Cooldrumman goes something like this-
While studying with St. Finnian in Moville, he secretly copied a book of Psalms, the property of St. Finnian. When St. Finnian found out he demanded both the book and the copy back. Colmcille refused and found himself in court. The High King of Tara, Diarmuid (who was a cousin of Colmcille), gave the following judgement, thought to be the first ruling on copyright in history;
‘To every cow it’s calf, and to every book it’s copy’.
The book and copy was returned to St. Finnian, much to Colmcille’s annoyance. Part of the reason for the ruling was that the King was angry with Colmcille for he had previously given refuge to a murderer.
After he had given the book back fighting broke out over it with Colmcille eventually gaining the book back. After that battle the book came to be known as the “Cathach” (Battle Book). Legend has it that a shrine, Cumhdach, was made for the Cathac. After the Treaty of Limerick in 1691 the book was taken to Trance by the O’Donnells and brought back to Ireland in 1813. It is now housed in the Royal Irish Academy and is the oldest surviving manuscript of the psalms.
Royal Grants/ Censorship
Well into the Eighteenth century, the idea of the writer as God’s handmaiden held sway. Alexander Pope, in 1711, still conceived of the poet as a reproducer of traditional truths rather than an inventor of new ones, and Goethe could write fairly of the German poets of the early Eighteenth century that “the production of poetical works was looked upon as something sacred. It was considered almost simony to accept or to bargain for payment of them. This theologically informed moral revulsion to the idea of an individual profit motive in the creation and transmission of ideas continued to circulate in the United States well into the Nineteenth century. Francis Wayland, the President of Brown University in the 1830s, wrote in his college textbook the elements of moral science that “genius was given not for the benefit of the possessor, but for the benefit of others.” and an intellectual of no less stature than George Bancroft added a Hegelian twist to the Christian tradition, writing in 1855 that: every form to which the hands of the artist have ever given birth, spring first into being as a conception of his mind, from a natural faculty, which belongs not to the artist exclusively, but to man…. mind becomes universal property; the virtually universal proscription of private ownership of ideas in the pre modern world did not, of course, mean that ideas flowed freely within pre-modern regimes. It fell to God’s agents upon the earth to determine how much of the knowledge putatively transmitted from God was actually divine in origin, as well as how widely and by whom such knowledge should be circulated within their kingdoms, empires, and cities. Rulers forged alliances with religious authorities to control the production and circulation of ideas and information – both spiritual and technical – within their realms. Throughout the world, the early modern period witnessed the emergence of elaborate systems of prepublication censorship, state-licensed monopolies to control the burgeoning printing and publishing trades, and the use of royal letters of patent or “privileges” to give exclusive monopolies for the printing and publication of authorized texts. In China, as early as the Tang Dynasty (A.D. 618 – 907), the legal code prohibited the transcription and distribution of a wide range of literature in order to protect the emperor’s prerogatives and interests. The first known ordinance regulating publication was that of the emperor Wen-Tsing, in 835, forbidding the private publication of almanacs. An extensive regulatory apparatus was created around the industry of printing under the Sung Dynasty (960-1179), and official government printing houses were established in the major cities. Exclusive state privileges were implemented for categories of sensitive literature, from astrological charts, prognostications, and almanacs to official promulgations, dynastic histories, and civil service examination literature. Private printing houses could register but privileges were not a form of property right in the modern sense. They were a grace, extended by the pleasure of the authorities, and they were revocable at any time. By the Eighteenth century, a comprehensive system of prepublication censorship and licensing, even of private writing, was in place throughout Imperial China. European monarchies, empires, and city-states created similar legal and institutional structures in response to the introduction of the new technology of printing in the 1450s. Less than a hundred years later, the Reformation rent western Christendom. With the spread of ideological division, regulation of the printed word intensified rapidly. Rulers granted commercial monopolies, or “privileges,” in exchange for submission to state censorship and control. The earliest European initiative occurred in the Republic of Venice in 1469, where Johann Speyer was granted an exclusive monopoly on printing in Venetian territories for a period of five years.11 This monopoly spread rapidly from Venice throughout the Italian states, and from there to France and England.
The republic of Venice granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the Rerum venetarum ab urbe condita opus of Marcus Antonius Coccius Sabellicus. Venice began regularly granting privileges for particular books in 1492. The first, 3 January that year, went to Petrus Franciscus
de Ravenna, a teacher of canon law at Padua University, who had devised a system of training the memory, which he embodied in a book entitled “Foenix”.
Most early Italian enactments in regard to literature were framed not so much with reference to the protection of authors as for the purpose of inducing printers (acting as publishers) to undertake certain literary enterprises, which were believed to be important to the community. The Republic of Venice, the dukes of Florence, and Leo X and other Popes conceded at different times to certain printers the exclusive privilege of printing for specific terms (rarely exceeding 14 years) editions of classic authors; not so much to secure profits for the printers, but rather to encourage, for the benefit of the community, literary ventures on the part of the editors and printers.
The earliest German privilege of which there is trustworthy record was issued in 1501 by the Aulic Council to an association entitled the Sodalitas Rhenana Celtica, for the publication of an edition of the dramas of Hroswitha of Gandersheim, which had been prepared for the press by Konrad Keltes. In 1512 an Imperial privilege was issued to the historiographer John Stadius for all that he should print, the first European privilege which was made to cover more than a single work, or undertaking to protect books not yet published.
England presents an exemplary case. The first royal grant of a privilege to the book trade was the creation of the title of “King’s Printer,” which was given to one William Facques in 1504. This position afforded him the exclusive right to print royal proclamations, statutes, and other official documents.
Hegemony of the Publishers Guilds
In 1557 the Catholic Queen Mary Tudor initiated a 120-year-old monarchic struggle to censor printing presses in England by issuing a charter to the Stationers’ Company, a guild of printers. The intention was to control what was printed to ensure nothing contrary to the views of the crown reached the people. Only members of the company could legally produce books, which had to be approved by the Crown.
(Censoring measure ensuring a monopoly over both production and distribution.) This is extraordinary also because the Charter of the City of London conferred the right to practice any trade whatsoever to its citizens. The Stationer’s Charter abridged that right.
The printers paid authors for their manuscripts and in return received exclusive rights to them. This thus gestures towards two fundamental principles of the original English copyright law.
- It came out from a government decreed statute, not some revealed natural right of authors.
- It granted a monopoly, which meant that the publisher could charge a price without considering market pressures.
In 1559, as part of her attempt to resolve the religious controversies that wracked the realm, Elizabeth I issued an injunction against publication of any text unless it had been licensed by censors appointed by the Crown. The Stationers’ Company kept a registry of licensed books and the Crown could, in principle, extend or revoke a license at will and limit it for whatever term it deemed appropriate. Rights to profit from a book derived not from property in ideas, but from a “privilege” extended by royal “grace” alone. These licenses were “copied” into the registry book of the guild and soon came to be treated by members of the guild as exclusive rights to print a particular “copy.” Though created by Royal Prerogative, these “copy” rights were bought, sold, and traded amongst Guild members, as though they were a form of perpetual property. By the 1570s, four prominent members of the Stationers’ Company came to have a monopoly control, through “Letters Patents” that they claimed as their perpetual property rights, over the most lucrative books in print: Christopher Barker, the queen’s printer, controlled the Bible, the New Testament, the Book of Common Prayer, and all Statutes, Proclamations, and other Official Documents ; William Serres had a monopoly on private prayer books, primers, and schoolbooks ; Richard Tottel had a monopoly on common law texts ; and John Day laid claim to alphabet books, the catechism, and the psalms in meter.
A similar process of consolidation of great publishing empires, founded upon monopolistic claims rooted in royal privileges, occurred throughout Christian Europe. By the middle of the Seventeenth century, the Paris Book Publishers and Printers Guild, like its brethren in London, had used its strategic proximity to the royal court to achieve a monopoly on the most valued ancient and religious texts as well as the most lucrative contemporary publications. Each of the more than three hundred German principalities and cities developed its own particular mechanisms to censor books, distribute privileges, and regulate guilds. Authors could not publish their own books, and unless they obtained a privilege in their own name, they were denied any profits from the sale of their books. These went to the publishers alone. Throughout the early modern world the development of commercial printing and publishing thus first occurred through a system of state-licensed monopolies, sanctioned by religious ideologies, that made no mention at all of intellectual property rights. The prevailing theories of knowledge and of political legitimacy made such rights inconceivable.
In the 1700s, cultural life in Europe underwent a dramatic transformation. A shift from intensive to extensive reading and the rise of a middle-class reading public led to an explosion of print commerce in the Eighteenth century. In England, it is estimated that annual book production increased fourfold over the course of the Eighteenth century. France, too, saw a marked increase in the literacy rate and a dramatic increase in the demand for modern secular literature. Whereas in 1747, Johann Georg Sulzer lamented that in Berlin “the general public does little reading,” a half century later Immanuel Kant recorded a literary world transformed: “this incessant reading has become an almost indispensable and general requisite of life.” “People are reading even in places where, twenty years ago, no one ever thought about books ; not only the scholar, no, the townsman and craftsman too exercises his mind with subjects for contemplation.” Increasing literacy and the emergence of a large middle-class readership throughout Europe in the first half of the Eighteenth century put unprecedented strains upon a system of publication that had been predicated on the notion that there was a fixed amount of divine or ancient knowledge to be known, transmitted, and interpreted. These developments put enormous pressure on traditional notions of authorship. The increased demand for
printed matter, and especially for modern secular literature (in particular, novels, theatrical works, and self-help manuals of various sorts), tempted an increasing number of young men (and women) to aspire to become writers. And they were writers of a new sort – oriented more toward the commercial potential of their contemporary readership than toward eternal glory. For the first time, in the Eighteenth century, writers like Daniel Defoe in England, Denis Diderot in France, and Gotthold Lessing in Germany began to try to live from the profits of their pens rather than from elite patronage. And, not surprisingly, they began to make claims for better remuneration for their products. Older notions that a fixed “honorarium” or fee was an appropriate reward for the composition of a manuscript gave way to bolder assertions that the author deserved a share in the profits earned from his creative labour. Rather than selling a manuscript to a publisher, authors increasingly sought simply to sell the “rights” to a single edition. With greater frequency, secular authors began to claim that they were the creators of their own works rather than the mere transmitters of god’s eternal truths. As they came to view themselves as the originators of their work, they also began to claim that their creations were their own property, as susceptible to legal protection and as inheritable or saleable as any other form of property. Daniel Defoe wrote in 1710, “a book is the author’s property, ’tis the child of his inventions, the brat of his brain: if he sells his property, it then becomes the right of the purchaser.” authors thus began to assert that their works were their own property, transmissible by contract to others if the authors desired, but that authors should no longer be constrained to sell their manuscripts in order to see them published. The rise in public demand for printed matter also led to a dramatic expansion in the practice of literary piracy.
Sensing unsatisfied market demand and acutely aware of the artificial inflation in the price of some books due to publishers’ perpetual privileges, less-scrupulous printers and booksellers throughout Europe paid diminishing heed to the claims to exclusive perpetual privileges on the best-selling and most lucrative works. Cheap reprints, produced most frequently across national frontiers or in smaller provincial cities, began to flood urban markets. Publishers of pirate editions successfully represented themselves as champions of the “public interest,” against the monopolistic members of the Book Guilds. Why, they argued, should any particular publisher have an exclusive claim on a work whose authors or heirs were no longer living – by the middle of the Eighteenth century, the traditional system of publication was everywhere in shambles. First in England, and then in France and Germany as well, calls for reform of the regulation of the book trade were coming from all parties involved. Readers wanted cheaper books. Government legislators sought to increase commerce and to encourage a more educated population within their realms. Foreign and provincial publishers – most notably in Scotland, Switzerland, and secondary French cities like Lyon – clamored against the perpetual monopolies of the London and Paris Book Guilds on the most lucrative books. Authors wanted their property rights in their compositions recognized as absolute and perpetual. And even the privileged guild publishers, especially in Hamburg, Leipzig, Frankfurt Am Main, London, and Paris, hoped to see their traditional privileges recognized as perpetual property rights that could be defended against pirates in the courts. Satisfying and sorting out these conflicting claims provoked a host of pressing new questions.
- Were ideas in fact a gift from god, as traditional authorities had claimed, : or were they the property of those who made them manifest, as authors now asserted?
- Was a “privilege” a “grace, ” or was it rather the legal ratification of an anterior, natural right to property?
- Upon what basis could the governments of nations or cities restrict or confirm traditional privileges?
- Could a secular foundation be articulated for the regulation of the publication and circulation of ideas?
The reform of the publishing industry in Europe thus entailed a rethinking of the basis and purpose of knowledge. A variety of European thinkers entered into a momentous debate about the origins and nature of ideas. As a result, a series of philosophical (or, more specifically, epistemological) problems were shown to lie at the heart of what at first glance seemed merely to be questions of commercial policy.
One influential view – that authors have a natural property right in their ideas – was articulated first in England and associated with two key texts : John Locke’s second treatise (1690) and Edward Young’s “Conjectures on Original Composition (1759). In his treatise, Locke famously wrote that “every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.” Three generations later, the poet Edward Young, writing with the assistance of the novelist Samuel Richardson, asserted that the author contributed more than simply his labour to a book – he imprinted its contents with his original personality. according to Young, the labour of an author was thus of a higher order than the labour of an inventor, never mind the labour of a farmer, for the author not only worked upon nature, but produced something from himself, which bore the indelible stamp of a unique personality. While limits might be imposed upon patents for mechanical inventions, products of the mind – bearing the personhood of their author – ought to belong perpetually to their creator. Intellectual property, an invention of the Eighteenth century, thus burst into the world claiming to be real property in its purest form. Young’s reflections, like those of John Locke before him, constituted a dramatic secularization of the theory of knowledge. If all knowledge was derived from the senses working upon nature, as Locke had argued in the essay concerning Human Understanding (1689), there was no role left for divine revelation. In the secular epistemology of Locke, inspiration is internalized and redefined as cognition. Young in turn applied Locke’s epistemology to argue that cognition emanates from the workings of a unique mind. The individual personality supplanted God as the divine font of knowledge. Young’s “Conjectures on Original Composition” was rapidly translated into German and went through two editions there in the two years after it first appeared in English. Meanwhile, in France, both Locke and Young were widely influential. In 1726, for example, the French jurist D’hericourt seized upon Locke’s critical passage to argue in court on behalf of perpetual book privileges for authors, asserting that products
of the mind are “the fruits of one’s own labour, which one should have the freedom to dispose of at one’s will” and forever. One could own one’s ideas just as one owned land that one had cleared with one’s own labour. D’hericourt concluded that a royal book privilege was not merely a grace accorded by the king, to be granted or revoked at his will, but rather a legal confirmation of an anterior natural property right, secured by the author’s labor. The author could sell or retain those rights as he or she wished. Once sold, they belonged to the publisher in perpetuity. In 1763, the encyclopedist Denis Diderot took up the same argument after he was commissioned by the Paris Book Guild to write a letter on the book trade. In Diderot’s words, we can hear the resonance of both Locke and Young: what form of wealth could belong to a man, if not the work of the mind… if not his own thoughts… the most precious part of himself, that will never perish, that will immortalize him? what comparison could there be between a man, the very substance of a man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and which the individual has only appropriated though cultivating it? Like Young, Diderot argued that products of the mind are more uniquely the property of their creator than land acquired through its cultivation. Literary property should, therefore, be even less susceptible to social regulation than land. It was Gotthold Lessing, the greatest writer of the German Enlightenment, who most forcefully developed the notion of the author’s unique personality as a source of property rights in ideas. In a 1772 essay, Live And Let Live, Lessing proposed a reorganization of the German Book Trade that attacked the foundations of the old system. He challenged directly the traditional ban on profits received from writing: “what? the writer is to be blamed for trying to make the offspring of his imagination as profitable as he can? Just because he works with his noblest faculties he isn’t supposed to enjoy the satisfaction that the roughest handyman is able to procure? Freely hast thou received, Freely thou must give! Thus thought the noble Luther_ Luther, I answer, is an exception in many things.” From Lessing forward, German writers clamored insistently for recognition of their claims upon their writings as a form of unique, perpetual, and inviolable property. A generation later, Johann Gottlieb Fichte, a philosopher and disciple of Kant, probed the complexities of the problem even more deeply. Fichte posed a difficult question: if creations of the mind were indeed “property,” what exactly was immaterial property? Literary property seemed to lack the singular physical form that characterized other forms of real property. But this was not the only difficulty with the idea of a property in ideas. After all, a great many people seemed able to share the same ideas, and it seemed intuitively just that as many people as possible should be permitted to express freely the same ideas independent of one another. Fichte’s solution to his puzzlement proved widely influential. For an idea to be regarded as a piece of real property, Fichte argued, it had to be assigned some distinguishing characteristic that allowed one person, and no other, to claim it as his own. That quality, he suggested in 1791 in his essay Proof of the Illegality of Reprinting: a rationale and a parable, lay not in the ideas per se, but rather in the unique “form” in which an author chose to express these ideas. Once published, the ideas in a book belonged to all – but the singular form of their expression remained the sole property of the author. Even ideas that had been “in the air” could become a piece of property through the unique way in which an author expressed them. Fichte’s distinctions – between the material and the immaterial book, and between the content and form of ideas – were to be critical in establishing a new theory of copyright based on the natural right to property in the unique expressions of ideas, rather than in the ideas themselves.
In 1776, the French mathematician and philosopher, Condorcet expressed even deeper reservations, for philosophical rather than commercial reasons. Writing in direct response to Diderot’s letter on the book trade, Condorcet disputed his Lockean line of argument: “there can be no relationship between property in ideas and [property] in a field, which can serve only one man. [Literary property] is not a property derived from the natural order and defended by social force; it is a property founded in society itself. It is not a true right; it is a privilege.” ideas, Condorcet asserted, are not the creation of a single mind. Nor are they a gift from God to be regulated by royal authority. Ideas inhere in nature and are equally and simultaneously accessible to all. Ideas are intrinsically social: they are not produced by individuals alone; they are the fruit of a collective process of experience. Moreover, Condorcet could see no social value in granting individual claims upon ideas. Since true knowledge was objective, particular claims on ideas could consecrate nothing more than mere style, what Fichte had called “form.” Condorcet, as a man of science rather than literature, had little use for style. Style merely distorted nature’s truths, and to encourage the individuation of ideas was simply to encourage pleasant fictions and personal gain rather than the pursuit of knowledge and the public good: “it is uniquely for expressions, for phrases, that privileges exist. it is not for the substance of things…. privileges of this sort, like all others, are inconveniences that diminish activity by concentrating it in a small number of hands…. they are neither necessary nor useful, and… they are unjust.” While Diderot, Lessing, and Fichte celebrated romantic originality, Condorcet sought to ground public literary culture in scientific rationalism. According to Condorcet, the model of publication based upon authors’ property rights could be replaced with the model of periodical subscriptions, like the Journal Des Savantes. People could subscribe to useful publications and the authors could be remunerated as salaried employees or freelance writers for a nonprofit organization. More important than his specific policy suggestion was Condorcet’s claim that if ideas, as social creations, were to be recognized as a form of property, it must not be on the basis of an individual natural right but rather on the basis of the social utility of a property-based regime. Condorcet thus erected a second, alternative pillar for the modern notion of intellectual property: social utilitarianism. Condorcet argued that knowledge was objective and thus fundamentally social in character, belonging to all. Diderot, along with Young, Lessing, and Fichte, viewed ideas as subjective, originating in the individual mind and thus constituting the most inviolable form of private property.
Two strains of legal interpretation developed from these competing philosophical doctrines. those legal thinkers who sided with the objectivist position of Condorcet elaborated the utilitarian doctrine that there was no natural property in ideas, and that granting exclusive legal rights to individuals for unique forms of their expression could only be justified because such an arrangement was the best legal mechanism for encouraging the production and transmission of new ideas, a manifest public good. Conversely, those who sided with Locke, Young, Diderot, Fichte, and the subjectivist camp argued that there was a natural right to perpetual property in ideas and that legal recognition of that right was simply the confirmation in statute of a universal natural right. The utilitarian position thus understood the public interest as the highest aim of the law, while natural-rights proponents argued that the sanctity of the individual creator should be the guiding principle of any legislator. Over the course of the Eighteenth century, every European country witnessed a series of legal battles over which of these principles would prevail. Vested interests on both sides of the debate vied to capture the legislative advantage.
Traditional Narrative of Copyright
The English were the first to take up the question after the lapsing of the Licensing Act in 1695, which had regulated the book trade and censorship. Intending to end prepublication censorship by suppressing the obligation to submit to prior licensing before publication, parliament inadvertently also called the whole system of privileges into question. If a work were not registered prior to publication, no mechanism existed to protect literary privileges against pirate editions. The Stationers’ Company clamoured for recognition of their traditional privileges as perpetual property rights, while pirate publishers insisted that the lapsing of the act meant that all previously published works were now free for all to reprint. Parliament finally filled the legal vacuum in 1710, when the so-called Statute of Anne definitively separated the question of censorship from that of literary property. The statute ruled that authors, and those who had purchased a manuscript from an author, would have an exclusive right to publish the work for fourteen years (the term that had previously been established for patents on mechanical inventions). This right could be renewed for an additional fourteen years. But after this period (of fourteen or twenty eight years), the work became part of the public domain, and anyone was free to publish it. As a result, all of the monopolies held by the Stationers’ Company on classical texts were abolished. In effect, the Statute of Anne – its full title, appropriately enough, was “a bill for the encouragement of learning and for securing the property of copies of books to the rightful owners thereof ” – represented an uneasy compromise between the position of the Stationers’ Company and the advocates of authors’ natural rights on one side and the position of the pirate publishers and advocates of “the public interest” on the other. Needless to say, neither side was entirely satisfied with this compromise.
The Statute of Anne, often erroneously dubbed the first copyright law, established two levels of copyright.
- The first level was issued in the name of the author for all books that would be published after the act took effect. The term of protection was for fourteen years, renewable for another fourteen years. (To be seen as an “encouragement of learning”)
- The second level reinforced the Stationers’ exclusive rights to previously published works for a non-renewable 21-year term. The addition of these term limits created the first codified notion of a “public domain”, a collection of works old enough to considered outside the scope of the law and thus under the control of the public and the culture at large.
The Statute of Anne was an elaborate attempt to regulate publishers, a way to balance the interests of the book printing industry with the concerns that monopolies were growing too powerful in England.
Two groups emerge here:
- It pitted publishers (pro-monopoly agencies) against the book buying public, which wanted access to inexpensive material.
- It also pitted a new breed of publishers-the pirates-against the established members of the Stationers’ Company.
Another point to be noted here is that, the author is for the first time introduced in the legal matrix of the copyright. The contradictory philosophical assumptions it codified left plenty of room for subsequent court challenges.
A series of cases that pitted London publishers against foreign rivals – Tonson v. Collins in 1760, and Millar v. Taylor in 1769 – led briefly to a recognition of perpetual property rights in the unique expression of an idea.
When the twenty-one years monopoly granted by the Statute of Anne was up, the booksellers–for copyrights were held by publishers and booksellers, not authors–asked for an extension. Parliament declined to grant it.
Thwarted by Parliament, the booksellers turned to the courts for relief. They attempted to secure a ruling that there was a natural right to ownership of the copyright under the common law. The booksellers arranged a collusive lawsuit, Tonson v Collins, but the courts, realising that it was fake, threw it out. A real lawsuit was brought, Millar v Taylor, concerning infringement of the copyright on James Thomson’s poem “The Seasons” by Robert Taylor, and the booksellers won a favourable judgment. (It helped that Lord Mansfield, the chief judge on the case, had previously been counsel to the booksellers.) An appeal was brought to the Lords, but the booksellers, fearing an adverse judgement there, settled. Lord Manesfield who heard the case wrote an opinion that reflected this new theory of “literary property” and the natural law justification for literary copyright: “because it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name, without his consent. It is fit that he [the author] should judge when to publish, or whenever he ever will publish. It is fit he should not only chose the manner of publication; how many; what volume; what print.”
But Donaldson v. Becket in 1774 reversed this decision, and definitively established as British law the compromise concept of a “limited property right” in the unique expression of an idea. After Miller’s death, his estate sold the rights to “The Seasons” to a syndicate of 15 printers including Thomas Becket. A Scottish publishing company run by John and Alexander Donaldson issued an unauthorised copy of “The Seasons” to exploit the flaw in the new common law copyright, appeal it, and once and for all establish a public domain for available works. The case of Donaldson v Beckett, in 1774, brought disagreements on the length of copyright to an end. The outcome of the case resulted in the
decision that Parliament could, and had, put a limit on copyright length. This decision reflected a shift in English ideas of copyright. The English lords who made the decision in 1774 decided that it was not in the public’s best interest to have London publishers control books in perpetuity, particularly as English publishers commonly kept prices high. There were some notions that this was a cultural or class issue. Works in perpetual copyright were seen to have limited access by some citizens to the cultural history of their own land.
The Lords rejected the notice of a perpetual copyright and held that it had not previously existed before the Statute of Anne and older works fall into the public domain and are available to everyone when the copyright term expires. “Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated,” wrote Camden.
The Lords addressed the following questions:
- “Whether, at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same, without his consent? The Lords answered this question in the affirmative with a vote of ten to one.
- “If the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition, and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author? The Lords answered this question in the negative with a vote of seven to four.
- “If such action would have lain at common law, is it taken away by the statute of 8th Anne: and is an author, by the said statute, precluded from every remedy except on the foundation of the said statute, and on the terms and conditions prescribed thereby?”
This question was answered affirmatively, six to five.
The resulting decision indicated that a common law perpetual copyright may have existed before the Statute of Anne was passed, but that any such right was entirely precluded by the statute. Perpetual copyright was thus effectively ended as a legal concept in Britain.
The Donaldson v. Becket decision was crucial in two respects. First, despite the dissenting voice of Eighteenth-century England’s most distinguished jurist, William Blackstone, it established the “encouragement of learning” as the highest aim of the laws regulating books. Second, even though copyright was acknowledged to be a natural right rooted in common law, the Donaldson v. Becket decision held that copyright in practice hinged on government legislation. In England, the utilitarian doctrine of a higher public good trumped the idea of intellectual property rooted in natural right.1618 Authors and publishers in Britain realised that they both benefitted from copyrights and the emerging star system.
In 1837, William Wordsworth’s friend Thomas Noon Talfourd, an author and a member of parliament opened a campaign for revision of the copyright act in favour of authors. He proposed a term of the author’s life plus sixty years for the duration of protection. This drew opposition from Thomas Tegg, who specialised in cheap reprints. This opposition roused Wordsworth to action and he organised a petition drive among British authors in support of the extension of the term. Finally, under the stewardship of Lord Mahon, Parliament passed the Copyright Act of 1842 which lasted up to the 20th century.
It repealed the former Copyright Acts, and provided that in future the copyright of every book published in the lifetime of its author would endure for the remainder of the author’s life and for a further seven years after their death. If this period was less than forty-two years from the first publication, then the copyright would persist for a full forty-two years regardless of the date of their death. Any work published after the author’s death would remain the copyright of the owner of the manuscript for the same forty-two year period.
Noah Webster and the Birth of American Copyright
In early America, both natural rights and utilitarian doctrines were debated within the British colonies, and colonies differed as to which theory formed the basis of their laws.
Noah Webster, a young schoolmaster was the most vocal campaigner for copyright in the state legislature. Fearing the loss of profits from his Grammatical Institute of the English Language to pirate editions, he petitioned state legislatures one by one, to grant him copyright in his book either through a general copyright statute that like the Statute of Anne would encompass the works of all writers in America or through a specific law that would bestow copyright on the Grammatical Institute. Other copyright advocated like Thomas Paine and Joel Barlow lobbied for a general act.
Backed by the efforts of Noah Webster, the Connecticut legislature passed the first American Copyright Statute in 1783; an act “for the Encouragement of Literature and Genius.” By 1786, twelve of the thirteen states had enacted copyright statutes, all in the form of a comprehensive general act.
Webster did not give up his campaign for copyrights, and wanted to maximize the rewards by pleading for perpetual copyrights. In 1982 he succeeded in bringing an amendment to the Act to include the protection of design, engraving and etching of paintings.
In 1831, through another amendment the term of copyright extended from fourteen (renewable for fourteen more) to twenty-eight years (renewable for fourteen more). Copyright protection came under the purview of the patrimonial descent. The law also allowed the author’s widow and children to file for a renewal.
National Interest and the Growth of Copyright
As the constitutional convention drew near, it became clear to many, including James Madison that the national interest required a national copyright. Lamenting the confederation’s “want of concert in matters where common interest requires it,” Madison noted as an instance of “inferior moment” the lack of uniformity in the laws concerning literary property. The convention did not have to revisit the question of the need for copyright, for many of the delegates, George Washington included, had been present at the debates over the state copyright acts.
On September 5, 1787, less than two weeks before the constitutional convention ended, David Brearly of New Jersey presented the proposal of the Committee of Detail for a clause in the constitution empowering the Congress to enact a national copyright law. The clause, modeled on the Statute of Anne, passed unanimously and evidently without debate, linked copyrights to patents,
“Congress shall have the power… to promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The law entitled “Act for the encouragement of Literature and Genius”. It granted the author control over the printing, publishing, and selling of a work for a term of fourteen years, renewable for another fourteen years. The law also required that the author “furnish the Public with sufficient Editions”, such that the author could not benefit from the protection of the law while restricting access to his work.
This article in turn became the basis of the United States Copyright Statute of May 31, 1790. This was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War. The author or inventor was acknowledged as an individual with special claims upon her own ideas – but the public good dictated that those claims be limited. It secured authors the “sole right and liberty of printing, reprinting, publishing and vending” the copies of their “maps, charts, and books” for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive. It did not however, afford any protection to materials originating outside the US.
Wheaton v. Peters
The great question of whether authors have a perpetual right at common law, a question that had earlier confronted the English courts might have appeared to have answered when the constitution empowered congress to extend copyright only for limited times. The constitutional clause, however, constrained only the Congress and not the states, and in the U.S., it is the states and not the federal, national government, that are the repositories of common law. The first lawsuit that addressed this question in the United States was that of Wheaton v. Peters.
The case arose out of the printing of the Supreme Court’s own opinions. Henry Wheaton, the third reporter of decisions, had compiled with great care the opinions of the Court, complete with annotations and summaries of the arguments in Court. Useful material but which made the volumes of his reports costly and out of the reach of most lawyers. His successor as reporter, Richard Peters, in addition to publishing the current volumes of reports, had gone over his predecessor’s work, eliminating the arguments and other extraneous material, and publishing an abridged edition in which he reduced twenty-four volumes into six. Peters knew that at $ 7.50 per volume, Wheaton’s reports had been beyond the reach of many lawyers. He also understood that busy lawyers preferred a summary and synthesis to learned annotations. While the reporter did receive a $1,000 per year salary from the government, it did not cover the full expenses of preparing the reports and the reporters relied on the sale of the books to recoup their costs. By creating more affordable volumes, 75% lower, Peters devastated the market for Wheaton’s more expensive books.
Wheaton turned to his former law partner Elijah Paine to file a suit against Peters. After a two year standoff between the two judges, the case went against Wheaton. The judge, Joseph Hopkinson, ruled that copyright is purely the creation of statute and one must comply with the requirements of registering a copyright, putting a notice in the work covered, etc., in order to receive protection. Judge Hopkinson also ruled that there was no federal common law, one must look to the states and, even then, the states did not necessarily adopt the entire English common law — assuming there was a common law copyright.
Wheaton then appealed the case to the Supreme Court. Through Paine, he retained Daniel Webster to argue the appeal. In late September 1833, Wheaton sailed back to America from Liverpool to assist in the case. Wheaton’s complaint asserted rights under both the copyright act and the common law. Although the statutory period of extension for Wheaton’s Reports had not yet expired, he pleaded the common law court as a precaution against the ruling that he had failed to comply with all the Act’s formal requirements for protection including the deposit of his copies with the Secretary of State within six months of publication.
The Supreme Court dealt a blow to the natural law mystification of the author by ruling that the copyright is a privileged monopoly and that it should be limited to allow competitive printing to disseminate knowledge cheaply. Justice John McLean, who himself had publishing experience as the founder of an Ohio newspaper, wrote the opinion of the Court. In it, he declared that while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters — “this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.” McLean declared there was no common law right: “Congress, then, by this act, instead of sanctioning an existing right, as contended, created it.” McLean also rejected Wheaton’s contention that requiring registration and the other conditions of the law were improper. Congress was giving Wheaton and other creators a special protection and it was not unreasonable to expect them to observe the formalities, the Court ruled.
Pirate Printers and Public Interest
In early-nineteenth-century America, the first great publishing houses in New York, Philadelphia, and Boston built fantastic fortunes on unauthorized, and unremunerated, publication of British writers. They justified their practices on the utilitarian grounds that copyright was statutory and that it was in the American public interest to have great works available for the cheapest possible prices. Harper’s Monthly, for example, was created exclusively from unauthorized reproductions of copies from British magazines. The Reverend Isaac K. Funk, founder of Funk and Wagnalls, made his initial fortune by pirating Ernst Renan’s The Life of Jesus.
Unlike Britain, in America it was the authors and not publishers who lobbied for greater copyright protection. For decades, American authors voiced frustration over getting under priced in the American marketplace by pirated versions of the works of Charles Dickens and Walter Scott. Likewise, British authors and political leaders pushed the
U.S. Congress to adopt a reciprocal copyright agreement to limit piracy. However, throughout the 19th century, the agreements against copyright protection for foreign works remained far stronger than those for extending protection.
Those who propagated international copyright protection used two arguments. The first was that lack of protection for British authors was bluntly unfair to them. And second that international copyright would lead to the development of a national body of literature in America in the same league as the British tradition and not merely its offshoot.
The logic of copyright and economic gains as incentive for creativity did not hold much ground as the arguments against international copyrights were much more persuasive. The anti copyright brigade argued that expanding American literacy especially on the frontier demanded cheap yet excellent books. There was no inherent “property right” in literature (courts on both sides of the Atlantic had upheld this argument). Moreover, property rights for foreigners meant granting a monopoly to them at the cost of the American reading public. Lastly, it was argued that the American publishing houses and the labour they employed needed the de-facto protectionism that piracy afforded.
Undeterred by the cultural, political and economic forces rallied against them, a corps of 55 British writers and poets petitioned the US Congress in January 1837 to approve a bilateral copyright treaty. This included Carlyle, Southey and Maria Edgeworth. Senator Henry Clay backed the British authors but few others did. Clay submitted a bill five times between 1837 and 1842 but all five attempts failed. Several prominent American authors and political leaders including Washington Irving, Edward Everett and John Quincy Adams supported the bills. Only two major American publishing houses, Appelton and Putnam were in support.
Frustrated by the Americans’ unwillingness to agree to a level literary playing field, in 1842, British Prime Minister Palmerston made high level contacts with the executive branch to get them to agree to a copyright treaty, which, unlike Clay’s bills would have to be approved only by the senate. This also made no difference.
That year, an Englishman who had the ear of many Americans, Charles Dickens, toured the United States. At many stops, Dickens pleaded a case for international copyright. His audiences, however, were filled with fans who had paid very low prices for American printed, leather bound copies of his works that earned no income for Dickens. They were in no mood to pay more money for the books, which is what Dickens was asking them to do. He returned to England bitter and frustrated, more, over the slavery in the United States than the copyright situation. When his account of his tour, American Notes came out in 1843, 50,000 pirated copies sold in the United States in three days.
The more intensive lobbying by the American publishing industry in the name of the public interest repeatedly thwarted the movement for extended copyright protection. Thus the Sherman and Johnson publishing house text to the Senate and the House in 1842:
“All the riches of English literature are ours. English authorship comes to us free as the vital air, untaxed, unhindered, even by the necessity of translation, into the country; and the question is, shall we tax it, and thus impose a barrier to the circulation of intellectual and moral light? Shall we build up a dam to obstruct the flow of the rivers of knowledge?”
Knowledge was there for the taking if public good could justify the grab. American readers were hooked on inexpensive books and British works not only carried heavier social and intellectual value but also were cheaper. In 1843 a copy of Charles Dickens’s A Christmas Carol sold for six cents in the United States, while in England it cost the equivalent of two dollars and fifty cents.
Cultural Transformation and Copyright Control: Stowe v Thomas
An 1853 case pitting Harriet Beecher Stowe against writer F.W. Thomas who had translated Uncle Tom’s Cabin into German without her permission directly raised the issue of natural rights and control over the work and the new forms it may take. The publisher of a Philadelphia German Language Newspaper, Die Friei Presse, Thomas had translated Uncle Tom’s Cabin without permission or payment and sold the book in the United States.
The copyright Act then in force in the U.S. was silent on the issue of translation. The courts interpreted the copyright act narrowly and ruled in favour of the defendant. The court ruled that the 1831 Copyright Act protected only the precise words Stowe used and not her ideas, which were really the subject of translation. Judge Grier wrote in his decision “the claim to literary property, therefore, after publication, cannot be in the ideas, sentiments of the creation of the imagination of the poet or novelist, as disserved from the language, idiom, style or the outward semblance and exhibition of them.”
Seventeen years later, this reading of the law would be turned around and translations were included in the bundle of rights handed to the author. It would also include the transformation of a literary work into a new form such as dramatization of cinema. Here however, the courts strictly interpreted the idea expression divide, making the transformation of cultural works for wider dissemination easier.
Gentlemanly Publishing and the Collapse of Courtesy
By the 1870s the American debate became sharply focused. On one side, trade protectionists, printers’ unions, and publishing houses whose fortunes were rooted in pirating British literature argued against any international agreement. On the other side, advocates of indigenous authors allied themselves with partisans of free trade and international copyright, claiming universal natural rights of authorship. After the civil war, the British government made several attempts to convince the US government to agree to a treaty and authors strengthened their organization.
The resistance to internationalization of copyright was also possible, in part because the American publishers colluded to keep prices artificially high through a courtesy principal. Any major publishing house would announce its intention to bring out a foreign publication through a trade journal or through letters to other publishers. The venerable publisher Henry Holt championed the courtesy principal. He wanted to be able to sell pirated editions of books without many other cheap editions coming out in competition, but also to push American publishing towards “gentlemanliness”.
Holt had prided himself on introducing Thomas Hardy to the American reading public and had monopoly over the publishing of his works. On more than one occasion, he berated other publishers such as the Harper Brothers, for trying to bring out competing editions to Hardy’s work. More often than not, other publishers deferred to Holt and let his house retain the monopoly.
“we of course claim Hardy as our man as we have introduced him to the American reading public and when we add that we have published all his works with direct arrangement with the author, we trust that you will withdraw in our favour.”
He wrote to Lippincot in 1875. Lippincot allowed Holt to publish The Hand of Ethelbert without competition. Holt paid Hardy, but did not have to. Hardy was in no position to negotiate a better deal.
However, by the 1870s, a host of new players entered the field, who did not adhere to the courtesy principal, thereby substantially raising the competition. In 1874, the Chicago publishing firm of Donnelley, Gassette and Lloyd recognized that every respectable middle class American household would seem more respectable with a sizeable library of British works lining the walls of its parlour. The firm started the Lakeside Library, selling books at startlingly low prices of ten, fifteen or twenty cents per volume. Within five years the Lakeside library carried 270 titles. Soon after the Lakeside Library announced its intentions Erastus Beadle, the baron of the civil war era dime novels, introduced a competing list, the fireside Library. George P. Munro, a former Beadle employee started the Seaside Library which grew to be the most successful of the cheap books line. By 1877, American public had its choice of fourteen cheap book libraries. The paper was uniformly cheap and flimsy, the typesetting sloppy and the format hard to read. But as the publishers soon realized, the spine was the most attractive and visible part of the book. By the 1880s most libraries appeared in cloth bindings at a slightly higher price, but with the same cheap paper inside. Of course none of these publishers were part of the eastern seaboard elite club of publishers who were led by Henry Holt so they did no conform to the courtesy principle.
The system began to collapse and by the late 1870s there was complete chaos in the publishing market. Munro cut a deal with a soap company and started giving out a volume with each bar of soap sold. Cheap libraries started bringing out works by authors who had no public reputation in the United States. As American works from earlier in the century entered the public domain, the publishers started bringing out libraries of American authors.
By the late 1880s major American publishers and authors united to champion international copyright in an attempt to bring some stability back to the market. In 1882, Author’s Club, the major vehicle for American authors to express themselves changed itself into the American copyright League under the stewardship of journalist and novelist Edward Eggleston, Century Magazine editor Ricahard Watson Gilder and lawyer and critic Brander Matthews. Gilder was also a close friends with Richard Roger Bowker who ran both Publishers Weekly and the Publisher’s Copyright League. As a result, both leagues worked in concert when testifying of pleading in print for international copyrights.
Photography was the first new technology to challenge copyright law. In 1865, the Congress had amended the copyright Act to include photographic prints and negatives to the classes of copyrightable works. Twenty years later, the Supreme Court first addressed the constitutionality of this action.
Napoleon Sarony, a noted New York photographer sued the Burrow-Giles Lithographic Company for infringing his copyright in a picture of Oscar Wilde. Burrow –Giles had reproduced and sold 85,000 copies of the picture without Sarony’s consent. The Supreme Court quickly dismissed the printer’s argument that because it consisted of images not words, a photograph could not be a “writing” of the sort the constitution intended.
Burrow-Giles’s second argument was more nettlesome: “ a photograph being a reproduction on paper of the exact features of some natural object of some person, is not a writing of which the produce is an author.” The Court accepted that this may be true of “ordinary” photographs, but this was not in the case of Sarony’s image of Wilde. Only five years earlier, in the Trade-Marks Cases, Justice Miller who presided over the case had ruled against protection of symbols and devices used to advertise goods as they were neither original, nor creative. Nonetheless, Miller again writing for a unanimous Supreme Court, now upheld Sarony’s copyright on the grounds that the photograph was art, not commerce.
The court had found that Sarony had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the “author” of “an original work of art” over which the Constitution intended Congress to grant him exclusive rights.
The court’s decision hinged on the assumption that congress and the courts could confidently distinguish between works that were sufficiently artful to qualify for copyright and those that were not.
Mayhem in the Market: tilting the balance
A critical shift in the political balance occurred in the 1880s as the older American publishing houses on the east coast began to see their profits eroding in the face of a new generation of mass penny-press publishers, expanding especially in the mid-western states, who undercut their costs and reached yet wider markets. In the face of this challenge the older houses reshaped their business strategies and their arguments about intellectual property. They now realized that they would be better positioned than the new generation of publishers to sign exclusive copyright agreements with foreign authors that would be enforceable within the United States.
The signing of the Berne Convention in Europe in 1886 added further momentum to a shift in the views of major publishing houses like Harper’s and Scribner, who recognized the advantage of the movement for American adherence to some form of international agreement, at least with England. American theologians, including the Reverend Isaac Funk, now denounced the “national sin of literary piracy” (which had allowed him to make his fortune on his pirated Life of Jesus) as a violation of the seventh commandment. And their voices resounded on the floor of Congress.
The publishers and authors came together in their championing of international copyrights but the Senate did not respond for a long time. The best efforts were in January 1886 when the Senate committee on Patents held hearings on the international copyright bill. Witnesses in favour of the bill included Bowker, George Putnam, Lowell, Henry Holt and Mark Twain. Bowker presented a petition signed by 145 of the most noted American authors including Louisa May Alcott, Henry Ward Beecher, Walt Whitman, Oliver Wendell Holmes Sr. and Joel Chandler Harris.
Testifying against the bill, Philadelphia pirate Henry Carey Baird made a succinct attack. He had five major points:
- Only unexpressed thought is property, but expressed thought belongs to the public.
- Property laws are domestic concerns, and should not be the subject of treaties.
- British authors are welcome to naturalise in the U.S. if they want protection equal to American authors.
- United States should not trade away its public interest to protect the rights of foreigners, and
- Foreign authors should not have the power to influence or fix the price of American books.
The printers had with them the force of organised labour on their side. Between January and March of 1886, unions and trade groups deluged Congress with petitions opposing the measure and it died soon after.
Ironically, the last part of the political machine that would eventually convince Congress to agree to international copyright protection was the printers unions in various cities. With the downward spiral of book prices squeezing the profits from the cheap editions, publishers had to cut costs as well. Most pirate printers operated from small cities were workers unions were weak and they abandoned the unionized white men who were unwilling to print and bind for pennies per day. Instead, many employed nonunion women and reused printing plates to set type. The unions realised that though the lack of international copyright was protecting more jobs, the workers were of the wrong kind – women instead of men.
By the late 1880’s the unions flipped sides and joined the major publishers and authors in support of copyright. In 1888, the typographical union passed a resolution in favour of the bill then pending in the congress. Local chapters soon sent messages to their representative in favour of the passage. The debate lasted through the winter of 1890-91 and the bill was eventually passed by both houses in March of 1891 and promptly signed by President Benjamin Harrison.
Prior to the International Copyright Act, protection required American authors to gain residency in the country in which they desired copyright protection. For example Mark Twain obtained residency in Canada to protect his publication of The Prince and the Pauper. To protect foreign literature in the United States, British authors would have an American citizen serve as a collaborator in the publishing process, and then have the book registered in Washington, D.C. under the collaborator’s name.
When the International Copyright Act of 1891 was finally passed, foreign authors had to have their works in Washington, D.C. “on or before the day of publication in this or any foreign country.” This too would create a problem, but by the early 1900s British authors were granted American Copyright since it was published abroad thirty days from its deposit in Washington, D.C. This would then allow American publishers time to release an authorized edition.
By the opening of the twentieth century, as America came to be a full-fledged competitor in international commerce in intellectual property and a net exporter of intellectual property, American legal doctrine began to move toward an increasing recognition of unique authorial rights rooted in the sanctity of the personality of the creator, rather than simply in commercial privileges extended for utilitarian ends. The personality theory of intellectual property had been present in the Anglo-American tradition since the eighteenth century, but the single most important source for this shift in principle was the Supreme Court decision written by Justice Holmes in Bleistein v. Donaldson (188 U.S. 239) in 1903.
The case was between two printers, the plaintiff claiming that the defendant had infringed its copyright by reproducing three posters it had prepared to advertise a circus. The trial court and Circuit court had held for the defendant following a long line of cases that excluded advertising from copyright. The argument of the defendant, Donaldson, was that the images were of such a generic nature as to contain insufficient originality to qualify as artistic creation susceptible to copyright protection. The Holmes court demurred, arguing that the courts were not to be put in the role of literary or artistic critics, that is, judges of the artistic merit of a work, and that moreover, any created image “is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.”
Through the Holmes decision the rhetoric of authorial originality and natural rights made its way into American jurisprudence at the very moment when America began to supplant Europe as the hegemonic global economic power.
The course of twentieth-century American copyright law – from Bleistein v. Donaldson through United States adherence to the Berne Convention in 1988 to the Digital Millennium Copyright Act of 1995 – has been a story of the steady strengthening of the proprietary rights of intellectual property owners at the expense of public access and interest. It is a history of the tipping of the balance in the founding principles of eighteenth-century intellectual property law away from the aim of public utility through “encouragement of learning” toward the enhancement of private commercial gain.
Story of France
Carla Hesse in her study of the copyright in the 18th century France argues that the French revolution provided a distinctly different starting point for the debate over authorship. As Hesse noted “The French Revolution offered the occasion for an usually explicit and fascinating debate in France about the identity and role of the author in modern life, a debate whose legal resolution continues to provide the foundation for French Copyright Law.”
In France, the Crown endorsed the notion of ideas as property, whereas the will to overthrow the absolute author was the position of the French revolutionaries. At the beginning of the Eighteenth century, the French crown, hoping to strike a compromise between Parisian publishers and their provincial competitors, had declared that privileges were not a form of perpetual property, as the Parisian publishers claimed, but rather “a grace founded in justice”; as a result, privileges could be limited, renewed, or even revoked, at the King’s will. This ruling permitted the Crown officers administering the book trade considerable latitude in redistributing privileges. The ruling did little, however, to undermine the monopolies of the Paris Book Guild, or to forestall a growing flood of books illegally produced by provincial and foreign printers. In 1777, the French Crown, confronted with mounting criticism, was forced to revise the system of privileges. While still refusing to recognize the concept of “literary property,” the King for the first time granted authors their own category of privileges (privileges d’auteur). These new privileges were to be perpetual and inheritable, like any other form of personal property. However, once an author sold a manuscript to a publisher, the publisher’s claim would be limited to ten years, with the possibility of a single renewal. This meant that the publisher’s privileges were to be restricted at the same time as unlimited privileges were extended to authors. The Paris Book Guild, predictably enraged, refused to acknowledge the new law and essentially went on strike against crown officials until the revolution in 1789. The revolution changed everything. “Freedom Of The Press” was declared and literary privileges abrogated. The royal administration of the book trade was abolished, and so were the Parisian Book Guilds. Authors were now widely celebrated not as private creators and possessive individuals, but rather as civic heroes, servants of public enlightenment. Hoping to establish the French Book Trade on a new, secular footing, the Abbe Sieyes in 1791 proposed passing a “law on the freedom of the press” that he had written with the help of Condorcet, among others. Like the English Statute of Anne, the Sieyes law recognized authors’ texts as a form of property, originating with their creators, and susceptible to legal protection; yet at the same time, the Sieyes’ law reflected Condorcet’s concern for the “public interest” by limiting exclusive claims upon literary property to the lifetime of the author, plus ten years. In the heated climate of revolutionary Paris, the law proposed by Sieyes satisfied no one. Many journalists rejected any law that threatened to limit the free circulation of texts. Revolutionary pamphleteers denounced it as a resurrection of discredited feudal privileges. Veteran book publishers demanded a restoration of their former rights and privileges. It was only in 1793, after the Paris Book Guild had ceased functioning as a lobbying group, and after the seizure of power by the Jacobins, that the national convention was able to pass a slightly revised version of the Sieyes law, now touted as a “Declaration Of The Rights Of Genius.” The law of July 19,1793, became the basis for all subsequent literary property law in France. It ratified the compromise proposed by Sieyes in 1791 and, like the British Donaldson v. Becket decision of 1774, enshrined the concept of a limited property right as the best means to strike a balance between remunerating authors and protecting the public interest in the advancement of learning.
German writers and intellectuals closely followed the debate over intellectual property in France. As observed by Martha Woodmansee, since there was no unified German state until 1870, there was no centralized authority to regulate the book trade. Still, a number of individual German states did pass laws similar to the revised Sieyes law. In 1794, for example, the largest German state, Prussia, revised its general legal code to reaffirm the privileges of publishers, but also to extend similar privileges to authors. During the Napoleonic period, when the French Civil Code was imposed on many German states, even more principalities followed the French model: Baden was the first German state to grant real copyright to authors (1806, 1810), and the phrase Rechten Des Urhebers (authors’ rights) was first used in Bavaria in 1813. Beginning with the Congress of Vienna in 1815, authors’ rights were increasingly and more uniformly recognized in German law. It was not, however, until 1870 that imperial Germany successfully adopted a uniform copyright law similar to those of the French and the English.
Russia and China
In Russia and China the eighteenth century battles were fought in much the same terms, although with different actors. Theocratic authority gave way to secular power within a Marxian framework, which drew upon the Lockean notion that new ideas and inventions were the result of the mind working upon natural resources. This led to a labour theory of intellectual production that was assimilable to the Marxist notion of the labour theory of value. But Marx gave it a twist la Condorcet. He argued that labour was inherently social rather than individual in nature, even in the case of mental labour, when the mind worked alone with its own resources. In his early manuscripts, Marx suggested that this was because the creating individual was the product of social experience – he owed his livelihood and education to the society that produced him. Because he worked with natural resources that should belong to all, his mental labours were social, and hence the products of them should belong to society as a whole. The people, in the form of the revolutionary people’s state, were thus to lay claim to the right to exploit the creations of individual authors and inventors. The early Bolsheviks thus famously “nationalized” a list of great Russian writers following the 1917 revolution. And Chinese authorities during the Cultural Revolution promulgated the following popular saying: “is it necessary for a steel worker to put his name on a steel ingot that he produces in the course of his duty? If not, why should a member of the intelligentsia enjoy the privilege of putting his name on what he produces?” The story of intellectual property in Russia and China, despite brief experiments with liberal property-based regimes in the early twentieth century, has essentially been a story of the devolution of a monopoly on ideas and inventions from theocratic regimes to communist states. In both the soviet and Chinese communist regimes, however, there was an increasing recognition of the necessity to create non property-based incentives for individual authors and inventors. A system of state-issued awards, prizes, and privileges became the socialist mechanism for encouraging creation and invention. The Soviet Union created a system of “authors’ certificates” that recognized individual contributions to the public good, and the Chinese, after the Cultural Revolution, followed suit. While the state retained the power to exploit, or not exploit, the contributions of these individuals, the certificates made their bearers eligible for material rewards and for remuneration from the profits generated by their creations. In socialist countries, the logic of utilitarianism – married to a state monopoly on the distribution of knowledge – led to a system of public patronage of authors and inventors rather than a recognition of their individual property rights.
Islamic states have followed yet another path. These states have remained theocracies, and so Sharia, or Koranic law, remains the highest authority, even for secular potentates.
Koranic property law traditionally applied only to tangible things that could be apprehended by the five senses. It is notoriously silent on the question of ownership of ideas. In Islamic jurisprudence, however, where the Koran is silent, governments are permitted to make a new law, as long as it does not explicitly conflict with Koranic injunctions. As a consequence, in the twentieth century a body of intellectual property law has emerged in most Islamic states, based on western legal codes. These western-style copyright laws have recently come under new scrutiny by Muslim jurists, and a lively debate has emerged between legal scholars as to whether any concept of ownership of ideas is compatible
with Sharia. Some scholars argue that the concept of “intellectual property” is inherently incompatible with the Koranic injunction against the ownership of anything intangible, suggesting that it will only lead to private monopolies of some individuals over knowledge. Others make the distinction between ideas and their tangible expression and defend the modern concept of copyright. Because these states remain essentially theocratic in nature, however, the law has preserved the state’s right to censor all publications as it deems necessary, and to assert the broad discretionary power of the government to set limits on the terms and duration of an author’s or inventor’s rights in relation to his creations. In Iran, for example, the duration of private copyright claims is set at thirty years after the author’s death. The state then retains an exclusive right on the creation for another thirty years before it is made accessible to the public at large. Moreover, Islamic states in general do not extend copyright protection to non nationals, although some bilateral agreements have been signed between Arab nations. In the international arena, Islamic law has thus tended toward the utilitarian position that the state’s interest is higher than any notion of the universal natural rights of authors or inventors.
Global Copyright: Expanding the Regime
lt is no coincidence that the English phrase “Intellectual Property” should first appear in 1845, according to the Oxford English Dictionary. By then, a broad consensus had emerged that “copyright” should strike a balance between the interests of the intellectual property owner and the public good: authors and inventors could profit from their works and their ideas, but only for a limited span of time.
Because the modern laws regulating intellectual property rest on a largely unexamined set of contradictory philosophical assumptions, these laws have been uniquely vulnerable to challenge – not least by the continuing rise of new methods of distributing ideas and information across national boundaries. As a result, the philosophical tensions at the heart of modern concepts of intellectual property have been played out on an increasingly global scale, reworking the balance between private rights and the public interest, often in dramatic new ways. The industrial revolution created an international market for literary works and mechanical inventions – and so created a new need for a regime of international intellectual property rights.
Industrialization and Global Expansion of Copyright
In the nineteenth century, industries grew to serve new markets. Artisanal workshops were replaced by ever-more rationalized and highly capitalized enterprises that operated on increasingly global scales. In response to industrialization, copyright was augmented both with new economic and moral rights, while it was transplanted worldwide. New economic rights allowed culture industries to undertake greater risks in producing more capital-intensive works and disseminating them in mass markets. Moral rights allayed authors’ fears regarding just such industries and markets.
1. The Rise of the Culture Industries
The industrial revolution increased the production of hard goods. Better transport, starting with the railway and steam ships, enabled these goods to be distributed across longer distances. From the nineteenth to the twentieth century, media technology improved in great leaps forward that allowed cultural goods to be made in more easily reproduced forms and to be marketed more broadly and quickly. Culture industries arose to exploit these goods, but they had to secure returns on their investments to continue production cycles. At the same time, the very power of new media increased risks of piracy. Authors in turn had new concerns for their reputations on the mass market. To start, more capital had to be sunk into improved printing presses that increased outputs for larger markets at lower costs. Then, in accelerating waves of technological innovation, came photography, the cinema, sound recording, radio, and television, each medium with its own needs for investment and all helping to address markets on continental and finally global scales. Directors like D.W. Griffith and Abel Gance pioneered epic motion pictures, with sets, costumes, and casts at unheard-of costs, contributing to the very “aura” with which new works captured the popular imagination. Highly paid stars, like Valentino in the film industry and Caruso in the recording industry, brought name recognition,
comparable to that focused by trademarks, to crystallize and stabilize mass demand for cultural goods. Thus culture industries have had needs for constant capitalization and for securing reliable markets that matched their mass scale. Furthermore, investment risks have increased as technology has made copying media more widespread, putting these media not only into pirates’ hands, but also ultimately into users’ homes. In the twentieth century, copyright has therefore been looked to as a means for securing and protecting income streams, and it has been expanded accordingly. For example, neighboring rights have been accorded to media producers, along with royalties from an increasing range of sources, such as the sale of blank tapes for home recording.
2. Rights Extended to New Media
In the nineteenth century, three French authors went to a cafe where they heard a popular song written by one of them and saw a stage number based on the work of the others. They refused to pay for their refreshments, stating to the cafe owners: “You use our work without paying us; there’s no reason for us to pay your bill.” Litigation ensued, the authors’ claims were vindicated, and they went on to associate with their publishers to collect royalties for public performances of music. Ultimately, such associations came to collect royalties for manifold uses, most notably for publicly broadcasting works, especially music, into private businesses and homes. At the same time, copyright was contractually allocated out into diverse entitlements that allowed the same works to be exploited in diversified forms and media. English courts, before and under the Statute of Anne, had dealt with translations, compendiums and abridgments of prior works, but the courts had shied away from imposing liability absent close copying. French courts, under the Laws of 1791 and 1793, were initially reluctant to find infringement in what leading French commentary then called “[t]he trans-mutation of form that the translator causes the original to undergo.” But in the course of the nineteenth century, as trade in books became increasingly globalized, authors and publishers started to claim rights to stop translations in foreign markets. Ultimately, the right of translation was subsumed under the more general right to control the making and exploitation of derivative works. It was no longer merely a matter of protecting a work against being replaced by literal or close copies in the market that the work initially targeted. Rather, copyright reached new markets in new media: for example, it allowed controlling whether literary works were adapted to the stage or film. It is, however, difficult to delimit this right to control deriving new works from prior works. When do new authors pass from taking the “substance” of prior works to merely drawing “inspiration” for their new works from old ones? If no clear line is drawn, rights of translation, adaptation, etc., could be asserted to stop virtually all new authors from elaborating on prior works and from releasing still newer works to the world. In response, courts devised limiting doctrines in cases of derivative works, most notably ruling that copyright does not protect “ideas,” “themes,” “facts,” etc., but rather only “expression” or “forms.” At much the same time, courts also came to ask whether plaintiff ’s work is copied in defendant’s “substantially” similar work or whether “essential” or “characteristic traits” of one work are taken in the other. Where, in transforming plaintiff ’s work, defendant left little of significance in its expressive texture recognizable in a new work, no infringement would be found. The very wealth of the case law on point testifies to how acute the tension has remained between copyright, as expanded to derivative works, and such limiting doctrines. Furthermore, the ideal of “art for art’s sake” was invoked in the nineteenth century to legitimate aesthetic indifference to profit and popularity. Authors became concerned with violations of more intimate interests, for example, the misattribution of their authorship or the alteration of their works, notably as these reached the mass market. French judges were pioneers in recognizing and protecting such interests: “confronted with the facts, they found equitable solutions” in the case law, out of which grew the moral rights to control the disclosure of works, to obtain the attribution of authorship, and to maintain the integrity of works. For example, in a seminal case, a French court vindicated the American artist Whistler’s right to withhold disclosure of a portrait, which he had been commissioned and paid to make and deliver, although it ordered the artist to return the payment received on the commission. In subsequent cases, the courts initially referred to creators’ interests in protecting their “reputations,” and ultimately to their “moral rights” as such, in ordering that credit be given to them as authors or that their works not be altered against their wishes.
3. Rights Transplanted Globally
During the nineteenth century, media markets expanded rapidly. English novels quickly crossed the Atlantic by steamship to be pirated in cheaper editions on the mass market in the United States, thanks to improved printing and the refusal to recognize copyright in foreign works. At the same time, France was already a major publishing center, while Belgium was a center for pirates copying French books, and the French government threatened Belgium with trade reprisals until it concluded a treaty and made law to assure copyright protection for French works. French competition with Belgian and Swiss publishers had led to the first major International Copyright Treaties. In 1858, a Congress of Authors and Artists convened by Victor Hugo held its first meeting in Brussels in an effort to formulate a truly international basis for the universal protection of authors’ rights. Unable to secure agreement on such a universal regime, the Congress instead enunciated a doctrine of “National Treatment,” asking each nation to extend the legal protections it offered to domestic writers and inventors to foreign writers and inventors as well. Some visionaries proposed imposing the same “law of copyright. . . [in] a single code, binding throughout the world.” A more modest proposal prevailed: simply conclude one copyright treaty, binding as many countries as possible, to compel the same choice of laws in cases of foreign law, works. After years of negotiation culminating in 1886, a handful of countries concluded the Berne Convention. Most were European, and some had vast overseas empires to bring into the Berne Union, making it a global institution. From the start, the Berne Convention imposed the principle of national treatment. Each country protected qualifying works as if authored by its own nationals. That is, it applied national law to protect these foreign works on its territory. It was no accident that Great Britain and France, both moving forces in international copyright in the nineteenth century, were then major exporters of literature. By contrast, “[u]nlike the British and the French, the American book industry was not linked to an international cultural project or ethos of world ascendancy in literature and the arts.” Through most of the nineteenth century, publishers in the United States were largely content with a home market on a continental scale, and most of them prompted their legislators to refuse copyright in foreign works.
As a result, national authors were placed at a disadvantage relative to foreign authors on whose works no royalties had to be paid: either national authors had to settle for lower royalties, or their publishers had to price their books above the market to recoup their royalties. Starting in 1891, the United States began to protect the copyrights of foreign authors through bilateral arrangements, and U.S. publishers had to pay royalties on works of foreign authors, enabling U.S. authors to compete on an even footing with them. Before that date, most of the books published in the United States were by foreign authors; afterwards, most were by U.S. authors. The Berne Union became the global forum where competing industries, media, and other groups reached compromises in revisions every few decades. Over the twentieth century, the Berne Convention came to include a growing panoply of minimum rights that covered increasingly diverse works. The original Berne Act of 1886 included the right to control translations, and later Berne Acts confirmed rights to control new media such as the cinema, broadcasting, and reprography. Most often, treaty countries incorporate minimum rights into domestic legislation; however, where they do not, the courts in most countries may grant these rights to Berne claimants above and beyond national treatment. For example, when a French film was televised in Germany and retransmitted by cable into Belgium, suit was successfully brought in Belgium on the basis of article 11bis of the Berne Convention itself, which sets out the minimum right prohibiting such retransmission. The Rome Convention has accorded minimum rights in live performances, sound recordings, and broadcasts, and the TRIPs Agreement applies almost all Berne and most Rome rights in all W.T.O. countries. Thus minimum rights have served to transplant copyright and related rights worldwide.
Despite the doctrine of “National Treatment,” the process of internationalizing copyright protection tended to strengthen universalist claims for protection of inviolable natural rights against statutory limits imposed by particular nations on utilitarian grounds. This progressive shift in the legal spectrum toward the enforcement of natural rights has led to a steady strengthening of private intellectual property right claims over the doctrine of the public interest. Thus, over the course of the Nineteenth and Twentieth centuries, the private claims of holders of authorial rights or copyrights have been repeatedly extended from the initially modest ten to fourteen years after the author’s death to the current terms of fifty and sometimes seventy five years after the author’s death in most countries with liberal copyright regimes.
Positions on copyright were clearly not the product of disinterested jurisprudential reflection. By the Nineteenth century it became clear that nations that were net exporters of intellectual property, such as France, England, and Germany, increasingly favoured the natural rights doctrine as a universal moral and economic right enabling authors to exercise control over their creations and inventions and to receive remuneration. conversely, developing nations that were net importers of literary and scientific creations, such as the United States and Russia, refused to sign on to International agreements and insisted on the utilitarian view of copyright claims as the statutory creations of particular national legal regimes. By refusing to sign international copyright treaties, the developing nations of the Nineteenth century were able to simply appropriate the ideas, literary creations, and scientific inventions of the major economic powers freely. The United States offers an exemplary case. As it evolved from being a net importer of intellectual property to a net exporter, its legal doctrines for regulating intellectual property have tended to shift from the objectivist-utilitarian side of the legal balance toward the universalist-natural-rights side. The tension between utilitarian interests and authors’ natural rights has also played itself out in modernizing societies beyond the United States and Western Europe.
Developing nations, which are net importers of cultural goods and technology, find themselves in the position of the United States in the nineteenth century. And the tendency has been for these nations to hold fast to the utilitarian claim that the national public interest should come before recognition of the natural right to property in international copyright, patent, or trademark claims asserted by exporting nations.
TRIPS as a Watershed
For the first time since the General Agreement on Traffic and Trade was originally launched in 1947, the Uruguay Round of multilateral trade negotiations included an attempt to harmonize international intellectual property rights protection. At the end of these negotiations in 1994, the final Act signed by the negotiating states included an agreement to regulate and protect trade related aspects of intellectual property rights (TRIPs). This incorporated much of the Paris and Berne Conventions previously administered by the World Intellectual Property Organization (WIPO) bringing intellectual property into the trade regime overseen by the new World Trade Organization (WTO).
The incorporation of the regime for the protection of intellectual property into the WTO recognizes that widely perceived threats to the rights of owners of intellectual property are not only caused by differences in the legal construction of intellectual property in different national legislation, but also by the (non-) inclusiveness of such legislation and the impact this has on the trade in intellectual property. Previously, in many jurisdictions formal legislation had been devised to emulate the main aspects of the protection that owners might enjoy in the developed states. However, WIPO did not have the power to address international enforcement issues in any effective manner. Therefore, one of the major shifts that the TRIPs agreement represents is a move to a more effective and stringent dispute resolution mechanism for intellectual property within the organizational structure of the WTO.
An Outline for the TRIPS Agreement
On 15 April 1994 in the Moroccan city of Marrakeech the negotiating states formally brought the Uruguay Round of negotiations to a close by signing and adopting the Final Act. This established the World Trade Organization as a formal institution incorporating the legal structure of the 1947 General Agreement on Tariffs and Trade, as well as the subsequent additions which were agreed in the successive round of negotiations. As part of this Final Act intellectual property rights (IRSs) were included in the international trade regime for the first time and as such, the agreement ‘is probably the most significant development in international intellectual property law this century’ (Blakneney 1996:v). The WTO included 111 states in its initial membership who became signatories to the TRIPs agreement, rising to 128 in 1995 with some 20 further prospective members waiting to join. The previous governance structure for intellectual property overseen by WIPO included 135 states, though of the 18 convention administered, the Paris Convention had the most signatories standing at 108. With the exception of the Berne Convention (95 signatories) other agreements overseen by WIPO had between 20 and 50 signatories. The membership of the United Nations, which is a reasonable proxy for the number of states in the global system in currently over 180 states, Joining the WTO automatically involves accession to the TRIPs agreement and so the scope of intellectual property governance will be widened considerably.
The World Intellectual Property Organization replaced the United International Bureaux for the Protection of intellectual Property (known as BIRPL, its French acronym) in 1970 and became a specialized agency of the UN in December 1974. However, it traces its legal history back to the Paris Convention for the Protection of Industrial property enacted in 1883 and the Berne Convention for the Protection of Literary and Artistic Works from three years later. And while there had been national protection for intellectual property for the least two centuries prior to these agreements, these conventions were the first attempt to further the humanization and protection of intellectual property internationally. The TRIPs agreement incorporates most of the provisions of both these treaties into the WTO’s trade regime and by doing so considerably enhances their legal enforceable mechanisms. The TRIPs agreement formally covers intellectual property in copyright; patents; trademarks geographical indications (for wine, predominantly) industrial designs integrated circuit topographic and undisclosed information (trade secrets), all of which have been subject to separate agreements under WIPO. The main aim of which agreement is to bring all member states legislation into harmony and thus to bring the same level of protection to intellectual property that was previously only available in developed states to all states in the global trading system.
The preamble to the TRIPs agreement which itself was subject to some considerable negotiations was finally agreed on the basis of the signatories desired to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, would adopt the provisos of the TRIPs, agreement (GATT 1994, AIG:2) the recognition that intellectual property rights are private rights, was only balanced by an allowance of the need for the ‘public policy objectives of nations systems for the protection of intellectual property, including developmental and technological objectives’ rather than any provision for the formalized public realm of knowledge protected by law. The historical problem of WHO’s largely ineffective ability of sanction states of their domiciled companies who did not observe the formally adopted agreements is reflected in the desire to promote adequate protection.
The Keystone of the TRIPs, agreement is the adoption of the principles that are central to the WTO (like the GATT before it) in the realm of intellectual property, national treatment, most favoured nation treatment (MFN) and reciprocity. Though they do not dissolve specific agreement within conventions under the auspices of WHO, in the main these principles will be effective across the various elements of the TRIPs agreement (Verma 1996: 337-338). National treatment requires signatories to accord the same fights and protection to both nationals and non-nationals in their jurisdiction. Though there are some exceptions these are only allowable ‘where such exceptions are necessary to secure compliance with [national] laws and regulations which are not inconsistent, with the TRIPs agreement itself (Blackeney 1996:41). The TRIPs agreement explicitly extends national treatment to cover performers producers of phonograms and broadcasting organization, where such treatment was ambiguous under the WIPO supervised conventions.
As with the WTO overall, the application of most favored nation (MFN) status to all members requires that any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country be
accorded immediately and unconditionally to the nationals of all other members (GATT 1994, AIC:4). And while there are again several exceptions linked to the previous conventions which some members of the WTO have acceded to, in the main these do not compromise this requirement., Reciprocity as a principle has a long history within intentional agreements and its formal inclusion in the TRIPs agreement does little in itself to change the intellectual property regime. The introduction of MFN, however, does shift the ground for intellectual property governance somewhat and is directly the result of its inclusion within an institution concerned with international trade law. Whereas, under the auspices of WIPO there were many smaller scale treaties and conventions on various aspects of intellectual property, under TRIPs all such specialized agreement if entered into would immediately apply to all the members of the WTO. So most importantly, where there has been resistance to incorporate particular sectoral legislation covered by limited conventions in the past, these now by virtue of the membership of the WTO become as wide in scope as the main conventions. Most-favoured nation treatment is the key tool for expending trade agreements and is therefore in one sense the most important innovative aspect of the TRIPs agreement.
The central intention of the TRIPs agreement is to provide a legal framework for a single intellectual property regime throughout the international system. Through its articulation to the WTO, intellectual property has become part of the trade regime, which has been progressively widened since the original GATT-1947 agreement on trade and traffic was concluded. Though the international regime for intellectual property pre-dates GATT its institutionalization under a single administration, WIPO was delayed until the 1970s. Even then this organization was little more than an administration agency for a diverse number of multilateral agreements with varying membership. Thus, the TRIPs agreement presents WTO members with a single framework for dealing with the diverse aspects of intellectual property, replacing WIPO’s more fragmented set of treaties and sectoral agreements.
The TRIPs agreement, however, does not represent a direct legal structure for the recognition of intellectual property, It is not a model piece of legislation that can be incorporated directly into national law. Rather, it stets the minimum standards that should be reflected in the national legislation of all WTO members. It does not preclude members sitting more rigid or stronger protection for IPRs except where such extension above and beyond the minimum standards represent an infringement of the agreement’s article in some way. By incorporating the previous agreements (the Berne and Paris Conventions, and other specialized treaties) into a single framework, the agreement aims to homegenise membership and extend its coverage to all states who wish to become members of the WHO. Within all member states and intellectual property owner should have recourse to a prescribed set of procedures and remedies that will be legislated in national laws to protect their rights. The agreement is concerned with the effect of legislation not the legislation itself. National legislature are required to ensure IRPs are protected but the method for the protection is only important as regards its consequences, not its form. But national legislative enaction of the TRIPs agreement’s principles are subject to the WTO’s dispute settlement mechanism under the agreement. Therefore, unlike the WIPOs stewardship of previous conventions, the WTO offers a considerably more robust mechanism for states to appeal to where the national laws of a particular state are seen to impede the rights of other nationals.
While the character of intellectual property, what is actually to be protected, is modified to some extent by the agreement, the main area of discontinuity with prior practice is in the enforcement of IPRs. By bringing intellectual property under the purview of the WTO, the TRIPs agreement stipulates the procedure shall be applied in such a manner as to avoid the creation of barriers to legitimate trade central to intellectual property law (GATT 1994, AIG 19). The enforcement of intellectual property rights (or more often their non enforcement) should not be used to disrupt trade flows. For instance, if only nationals are protected this would act as a barrier to non nationals who would received no protection for the IPR element of goods or services they wished to export to that jurisdiction. Nondiscrimination must be explicitly part of a clear and fair registration procedure for IPRs where they require registration to be recognized (the exceptions being copyright and trade secrets – ‘undisclosed information’). The agreement provides a set of conditions which national legislation for registration must fulfill, broadly based on the requirements of openness and prompt enacting of procedures.
The perceived lack of robust enforcement procedures available under WIPO’s stewardship of the existing convention was one of the main underlying motives for the inclusion of intellectual property in the Uruguay Round and its subsequent inclusion in the WTO. The members of the WTO are required to enact suitable procedures to ensure the ‘effective’ action against any act of infringement of intellectual property… including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement. (GATT 1994, AIC:19). These procedures must be fair and equitable and available under civil law. In the section of the agreement covering Civil and Administrative procedure and Remedies there are a number of requirements which national legislations should include, ranging from the need for courts to have power to obtain evidence of infringements to the need of procedure fair settlement with regard to damages. The agreement’s significant departure from previous intentional legislation in encompassed within its adoption of precedents developed in British law to grant applicants across to the premises of the defendant to seize and discover materials that might potentially represent an IPR infringement (Blakeney 1996: 126). This represents a major extension to the manner in which the rights of intellectual property owners can be protected prior to formal infringement through actual sale and is based on the 1976 Anton Piller v. Manufacturing Processes case under the Court of Appeal in Britain. This ability to act prior to an act of infringement of rights (the legal acceptance of the likelihood of infringement) had previously been available in only a small minority of jurisdiction.
In the closing decades of the twentieth century the outlines of a serious conflict over the nature and scope of intellectual property have emerged in the international arena. In general, developing nations – including not only China, Taiwan, Russia, and the Middle eastern states, but African and South American nations as well – have employed the utilitarian argument, derived from Condorcet, that intellectual property is inherently social in nature and that the state has the right to limit the individual claims of its citizens as well as others in the name of the public good. This argument is used, as it was in Nineteenth century America, to justify these nations’ refusal to recognize copyright and patent claims by non-nationals. Conversely, the United States and Western Europe have witnessed a shift in their jurisprudential traditions away from the utilitarian side of the Eighteenth-century intellectual property balance and toward an unprecedented strengthening of the doctrine of the universal natural rights of authors and inventors to the exclusive commercial exploitation of their creations and inventions. And since the 1970s the United States and Western European nations have been increasingly aggressive in using trade sanctions and international trade agreements to coerce developing nations to recognize precisely this view of intellectual property rights. The consequences of this evolution in western, and especially American, intellectual property law are troubling for several reasons. The dominance of the natural-rights view leads to immediate suffering and to the appropriation of local knowledge for international gain. The loss of a legal balance in the global arena risks giving monopolistic power to exporter nations. Equally important, it puts at risk the liberal political balance between individual gain and the public good that was the foundational aim of the intellectual property laws within western democratic polities themselves.
A Critique of International Copyright Regimes
“How is it possible to want to deny man today, hundreds of thousands of human beings, not hundreds of thousands, I am wrong, hundreds of millions, billions of human beings who now live in poverty, in underdevelopment—how is it possible to want to block the access to technology for billions of human beings, a technology that they need for such basic things as nourishment, such as life itself”
–Fidel Castro in a speech he delivered in 1967 in Guane, Pinar del Rio, in Cuba on the problems of printing and supplying books in his country.
The words of Fidel Castro quoted above highlight the specific issues of the application of a northern copyright regime on southern states. The internationalization of copyright legislations prevailing in the western nations ignored the very different situations prevailing in the global south. Many of the southern countries gained their independence from colonial rule between the 1940s and the 1960s. Soon after they assumed self-rule, they realized the colonial nature of the international treaties such as the Berne convention that they had automatically been signed into as colonies of the northern nations. For countries struggling with poverty, illiteracy and beginning their journey as independent nations, the strict imposition of copyright regimes devised by and beneficial to the northern states became an obstacle to their growth and development.
The Copy South Dossier compiled by the Copy South Research group highlights the opposition to the inequalities perpetuated by international copyright treaties by the newly independent nations of the South.
Economic growth and development often led the list of their national priorities. Their needs in the information field – greatly expanded levels of literacy, the rapid establishment of schools and universities at all levels, getting even limited access to printed materials, especially in technical and scientific fields – were very different from those of rich nations. And their proposed solutions were very different as well. For example, the position of India was that “the high production costs of scientific and technical books standing in the way of their dissemination in developing countries could be substantially reduced if the advanced countries would freely allow their books to be reprinted and translated by underdeveloped countries.
The importance of the wording of the first 1886 Convention, as originally ratified and thoroughly reflecting Western copyright values, is reinforced by the fact that any amendments or changes to the Convention require the unanimity of all members, Moreover, ‘reservations’ (an international law concept allowing a country to make exceptions in its own legislation for its own jurisdiction) to the Berne Convention are not permitted. Hence, Berne is a particularly rigid and inflexible treaty. And although Berne has been amended – in minor ways – on different occasions between 1886 and 1971, when the Paris ‘revision’ (the current version) was formulated, its basic structure and ideology has remained in place.
As a follow-up to several UNESCO-initiated discussions in the early 1960’s, representatives from 23 African countries met in Brazzaville Congo in 1963 to begin formulating proposals to reform international copyright conventions to better reflect the needs of the “new” African nations and the southern world more generally. Through a process of consultations and meetings over the next few years, the suggestions of these groups specially regarding reduction in the duration of copyright, translation rights, easier acquisition of licensed reproduction rights from Western publishers, national jurisdiction over the regulation of uses for educational or scholastic purposes were concretized and presented as the Stockholm Protocol of 1967. Even though it contained a watered down version of the initial demands and proposals of the represented nations, it met with fierce opposition from the northern copyright industries, specifically Britian, and was not incorporated into international legislation. The final set of copyright proposals aimed at meeting the needs of developing countries became the 1971 Paris Appendix to the Berne Convention. But the Appendix contained no provisions for free educational use or for any reduction in duration of copyright. Nor did it adequately address the indigenous knowledge issue. In effect, the changes that were achieved after the years of struggle were inconsequential.
The have been a number of movements against the imperialist agenda of the international copyright regimes spearheaded by the global north which are worth mentioning.
- A 1976 seminar in Tunis produced a report entitled Information in the Non-Aligned Countries. The following excerpts give a flavour of the anti-imperialist sentiment that was being expressed:
a) Since information in the world shows a disequilibrium favouring some andignoring others, it is the duty of the non-aligned countries […] to change this situation and obtain the de-colonization of information and initiate a new international order in information.
b) The peoples of developing countries are the victims of domination in
information and this domination is a blow to their most authentic cultural values, and in the final analysis subjugates their interests to those of imperialism.
- AfriTAN—the African section of the TRIPS Action Network —has focused on access to medication as part of their resistance to the TRIPS agreement. Action Aid Pakistan has developed TRIPS resistance to Agricultural Issues. The Gene Campaign has worked with the Centre for Environmental Concerns in India to focus on intellectual property, environment, and agricultural issues. RAFI (Rural Foundation Advancement International) now operating under the name Action Group on Erosion, Technology and Concentration (ETC) has also been instrumental in global south resistance to TRIPS.
- In the Pacific region, native Hawaiians and the Maori in New Zealand have also developed a position critical of TRIPS and western intellectual property rights. Mililani B. Trask, Native Hawai’ian and Indigenous Expert to the United Nations for the Permanent Forum on Indigenous Issues stated that, ‘The TRIPS agreement within the WTO which is intended to internationalise current intellectual property laws constitutes a major threat to the cultural integrity and rights of indigenous peoples, including territorial and resource rights.’
In his essay Burn the Berne, Alan Story proposes to shift the focus of the copyright discourse away from the glorified debates around the e-book and copyright piracy to the issue of access to basic information needs that still plagues a large part of the world today. Through a detailed examination of the Berne Convention, TRIPS and the WIPO Copyright Treaty, Story build a case for the rejection of the current international copyright regimes from the vantage point of the global north that finds itself left out of the balance of interests that copyrights attempt. Examining the language of the different treaties, he asserts that since the United States’ incorporation into the agreement, the Berne has expanded and later treaties such as TRIPS and WTC that emerged “under Berne’s shadow.”
The essay highlights and develops three main points of critique from which the internationalization on copyright regimes is evaluated.
a) The Concept of national treatment mandates poor countries to protect the intellectual property of rich northern nations at the cost of their own national and public interest. In that, national treatment endorses formal equality but perpetuates substantive inequality by treating as similar things that are entirely different.
b) The balance metaphor in copyrights cannot hold good at the international level as the very different conditions prevailing in the different nations make a balance impossible.
c) The value systems justifying copyrights are not universal and factual but emerge out of specific socio-cultural and economic conditions prevailing in western Europe and do not correspond to the realities of southern nations.
Towards the first critique, Story quotes a study by the IMF to show the imbalance of trade in copyrighted works. According to 1999 International Monetary Fund (IMF) figures the U.S. emerges as the principal exporter of copyrights followed closely by the United Kingdome while on the other hand, no country of the South had a surplus and, in fact, not a single one of the fifty least-developed countries had any calculable intellectual property revenues whatsoever. There is, therefore a large financial incentive for the rich northern nations to enforce their own standards of strict copyright protections in the future. The southern countries are reduced to markets for the intellectual products of the north creating linear monetary flows and freezing cultural exchange.
The clause for national treatment serves to ensure the protection of northern copyrighted works in the southern nations, often at the cost of their own development. When the Berne was established. All of its member nations were at similar stages of development. In that context, the principal of national treatment would have enabled equal flows between the member states. It would be prudent here to remember America’s refusal to join the Berne Convention to specifically avoid giving copyright protection to foreign works so as to be able to use them freely in “national interest.”
In the current scenario, where the contexts and situations of the member states are widely different, the notion of equality as espoused by the principle of national treatment needs to be examined. Story compares the context from which creative works emerge in different nations to highlight the dissimilarity of their creation. A slim book of Urdu poetry produced in India cannot be treated as the same as J. K. Rowling’s newest Harry Potter edition. Their producers do not have the same capacities to defend infringement in courts; their conditions of production and existence are so widely dissimilar that to treat the two as similar would be a gross discrimination. Story asks a few rhetorical questions to make the distinctions clear;
“Do the foreign works actually need equal treatment in countries of the South with the locally produced works? Are the consequences the same if they do not receive it? Does Rowling’s story have the same cultural meaning in the U.K. as the meaning that the Urdu poems have in India? And have they both been produced for the same reasons and in even roughly similar or equal circumstances?”
In essence, what international copyright regimes attempt to do is reduce and homogenise all forms of cultural production to a single, one-dimensional property phenomenon, that is, to a capitalist commodity, and then proclaim the essential equality of all commodities in the global marketplace; all other aspects or characteristics of such production are neglected, indeed suppressed.
The rhetoric of balance in the copyright discourse also falters when applied to the international copyright system. The convention, for instance fixes certain minimum standards to be maintained by all member nations and no maximum limits. Any changes to this minimum requirement would mean the standards of protection being raised higher. This, in turn, means that many of the information requirements for users in the countries of the South are necessarily and always under threat. “What could be more unbalanced than a “there are no maximums” agreement?”
Quoting the first sentence of the preamble to Berne Story highlights the lack of balance in the language of the convention. “the desire to protect, in as effective and uniform a manner as possible, the rights of authors in
their literary and artistic works.” leaves out any mention of fair use, public good or any of the other users rights which are left to the discretion of the member countries. In a copyright context where the owners are the rich north and the global south the users, the absence of any notion of public rights or fair use creates a sharp divide between the two groups. A convention that offers unlimited rights to the owners of copyrights without any attention to the rights of the public cannot, necessarily be a balanced system.
Story looks at the conflict resolution system as a marker of the balance possible within any system. Looking at the struggle to effect change through the Stockholm Protocol and the meager results achieved in the form of the Paris appendix as a failure of the Berne to provide a balanced approach to the needs of the southern nations. For the countries of the South, the sharp conflicts over Berne in the 1960s and the meager results achieved reveal that Berne could not accommodate their needs; it was a system that simply could not be balanced.
Moreover, the international protection regimes rely on the notions of authorship, ownership and creativity that emerge from a specific western context. The very different creative flows and practices in the south do not find a place in the economic model of copyrights and are not given the status of valuable property. This perpetuates the global inequalities prevailing in the copyright regimes at multiple levels and furthers the hegemonic dominance of the northern countries through monopolistic trade practices. A large number of creative and authorial practices in the southern nations are oral and collective. They do not subscribe to the proprietary ownership values based in individual appropriation of creativity and culture and are thus outside the scope of copyright law. There is no space in the language or the scope of the Berne Convention agreement to include alternative systems of knowledge and culture creation that are not strictly linear and commoditized. In that, along with the economic hegemony, the Berne also perpetuates an ideological hegemony regarding how creativity and communications come to life, the centrality of those individually “creating” expressive works and the individual source of their expressions, the importance and meaning of these works, and what should happen to the fruits of their creativity.
There are two closely related consequences stemming from the internationalization of the Berne copyright paradigm;
- Berne’s particular approach to the creation and use of expressions is naturalised or normalised as the only way to understand and regulate expressive communications, or “works,” to use the traditional copyright term of art.
- Critical self-reflection or self-interrogation of the Berne copyright model is necessarily restrained and limited by the particular ideological spectacles through which both the world and the creation, use, and regulation of expressions are examined.
In conclusion, Alan Story acknowledges that the debate on copyright is not the primary concern on the southern nations battling much larger issues of poverty, hunger, increasing foreign debt and the like. In a context where a large number of students and academics do not have access to computers and Internet connections, the importance of digital piracy and digital freedom take a back seat. Copyright does, however, create restrictions in areas such as public health and education that are pertinent to the development agenda in favour of preserving the market share and economic benefits of the copyright rich north. It would be fruitful to quote in detail, some of the situations Story lists to elaborate these restrictions;
- In Southern Africa, nursing teachers, public health nurses, and other medical personnel who wish to distribute copyrighted materials to students and patients about HIV/AIDS, how to avoid becoming infected, and how to deal with the symptoms, are required to pay copyright royalty fees. As a result, circulation of such information is seriously restricted. Most such fees are paid to publishers in developed countries.
- The traditional and limited Berne exemptions such as the right to use quotations (Article 10(1)) or the “fair practice” use of works “for teaching” (Article 10(2)) fail to appreciate the much wider access requirements to learning and resources materials across Africa.
- Distance learning is an increasingly common avenue for the provision of educational opportunities in Africa, in part because of internal transportation and communications barriers. Distance learning students are particularly in need of good access to materials because they cannot easily visit a library at their schools or universities. Yet, copyright use allowances often are restricted only to those uses that occur within the physical location of a school or a library, and hence tens of thousands of students and their teachers cannot access badly needed print materials.
- There is a major problem with the translation of materials. This is particularly serious because many African countries have more than ten languages. In the production of materials across Africa, “local languages are ignored in favour of English, French, or Portuguese,” one librarian noted. There are also few translations of works from one African language into another (e.g., from Bantu (South Africa and elsewhere) into Edo, Yoruba, or Hausa (Nigeria), or vice versa). Generally, the right to make a translation must be individually acquired for each translation into a different language. The overall situation reinforces the inequality of languages, privileges European languages, and means that tens of millions of Africans are unable to get access to or read books and articles published in languages other than their own.
- Copyright clearance officers in schools and universities in South Africa regularly engage in heated negotiations with publishers, especially international publishers, regarding the cost and use of works to be photocopied for student use. The rates charged are extremely expensive, and most copyright clearers generally tend to prefer dealing with local publishers where copyright fees are less expensive.