By Karl Fogel

Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

The first copyright law was a censorship law. It had nothing to do with protecting the rights of authors, or encouraging them to produce new works. Authors’ rights were in no danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few. The new technology was making seditious reading material widely available for the first time, and the government urgently needed to control the flood of printed matter, censorship being as legitimate an administrative function then as building roads.

The method the government chose was to establish a guild of private-sector censors, the London Company of Stationers, whose profits would depend on how well they performed their function. The Stationers were granted a royal monopoly over all printing in England, old works as well as new, in return for keeping a strict eye on what was printed. Their charter gave them not only exclusive right to print, but also the right to search out and confiscate unauthorized presses and books, and even to burn illegally printed books. No book could be printed until it was entered in the company’s Register, and no work could be added to the Register until it had passed the crown’s censor, or had been self-censored by the Stationers. The Company of Stationers became, in effect, the government’s private, for-profit information police force. [1]

The system was quite openly designed to serve booksellers and the government, not authors. New books were entered in the Company’s Register under a Company member’s name, not the author’s name. By convention, the member who registered the entry held the “copyright”, the exclusive right to publish that book, over other members of the Company, and the Company’s Court of Assistants resolved infringement disputes. [2]

This was not simply the latest manifestation of some pre-existing form of copyright. It’s not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers’ right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called “patents”) allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party.

For about a century and a third, this partnership worked well for the government and for the Stationers. The Stationers profited from their monopoly, and through the Stationers, the government exercised control over the spread of information. Around the end of the seventeenth century, however, owing to larger political changes, the government relaxed its censorship policies, and allowed the Stationers’ monopoly to expire. This meant that printing would return to its former anarchical state, and was of course a direct economic threat to the members of the Company of Stationers, accustomed as they were to having exclusive license to manufacture books. Dissolution of the monopoly might have been good news for long-suppressed authors and independent printers, but it spelled disaster for the Stationers, and they quickly crafted a strategy to retain their position in the newly liberal political climate.

The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher’s cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property.

Their argument succeeded in persuading Parliament. The Stationers had managed to avoid the odium of censorship, as the new copyrights would originate with the author, but they knew that authors would have little choice but to sign those rights back over to a publisher for distribution. There was some judicial and political wrangling over the details, but in the end both halves of the Stationers’ argument survived essentially intact, and became part of English statutory law. The first recognizably modern copyright, the Statute of Anne, was passed in 1709 and took effect in 1710.

The Statute of Anne is often held up by champions of copyright as the moment when authors were finally given the protection they had long deserved. Even today, it continues to be referenced both in legal arguments and in press releases from the publishing industry. But to interpret it as an authors’ victory flies in the face of both common sense and historical fact. [3] Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers’ monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning. In the memorable words of the contemporary Lord Camden, the Stationers “…came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security.” [4] To make their argument more palatable, they had proposed that copyright would originate with the author, as a form of property that could be sold to anyone — anticipating, correctly, that it would most often be sold to a printer.

This proposal was a shrewd tactical move, because one of Parliament’s concerns was to prevent the re-establishment of a centralized monopoly in the book trade, with its attendant potential for a renewal of censorship by the crown. Benjamin Kaplan, professor of law emeritus at Harvard University and a respected copyright scholar, describes the Stationers position succinctly:

“….The stationers made the case that they could not produce the fragile commodities called books, and thus encourage learned men to write them, without protection against piracy… There is an apparent tracing of rights to an ultimate source in the fact of authorship, but before attaching large importance to this we have to note that if printing as a trade was not to be put back into the hands of a few as subject of monopoly — if the statute was indeed to be a kind of “universal patent” — a [legal] draftsman would naturally be led to express himself in terms of rights in books and hence to initial rights in authors. A draftsman would anyway be aware that rights would usually pass immediately to publishers by assignment, that is, by purchase of the manuscripts as in the past. … I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors’ interests together with their own, and this tactic produced some effect on the tone of the statute.”[5]

The Statute of Anne, taken in historical context, is the smoking gun of copyright law. In it we can see the entire apparatus of modern copyright, but in still-undisguised form. There is the notion of copyright as property, yet the property is really intended for publishers, not authors. There is the notion of benefiting society, by encouraging people to write books, but no evidence was offered to show that they would not write books without copyright. Rather, the Stationers’ argument was that publishers could not afford to print books without protection from competition, and furthermore that printers could not be depended to reproduce works faithfully if given unfettered freedom to print. The corollary, they implied, was that without the prospect of reliable distribution, authors would produce fewer new works.

Their argument was not unreasonable, given the technology of the time. Making a perfect copy of a printed work required access to the original press and compositor, anyway; if reliable reproduction were to be encouraged, then a single-holder copyright system had a certain logic to it. And the publishers would now be effectively forced to pay authors in return for exclusive printing rights (although in fact the Stationers had sometimes paid authors even before, simply to guarantee the completion and delivery of a work). The authors who succeeded in selling this new right to printers had no particular motivation to complain — and naturally, we don’t hear very much about the authors not so favored. The consolidation of author’s copyright probably contributed to the decline of patronage as a source of income for writers, [6] and even allowed some authors, though always a small minority, to support themselves solely from the royalties their publishers shared with them. The fact that a given copyright could only held by one party at a time also helped prevent the proliferation of divergent variations, a problem that had vexed authors perhaps even more than plagiarism.

But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.

This is the secret that today’s copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. The Statute of Anne was just the beginning. Having granted the premise that copyrights should exist at all, the English government found themselves under pressure to extend copyright terms further and further. In the long legal saga that ensued, what’s important is not the particular sequence of laws and verdicts, but the identity of the plaintiffs: they were just the sort of stable, settled business interest capable of sustaining litigation and lobbying over a period of decades — that is, they were publishers, not authors. They had proposed the author’s copyright out of economic interest, and only after the crutch of a censorship-based monopoly had been taken away from them. When it became clear that the tactic worked, they lobbied to strengthen copyright.

And this is still the pattern today.

References:
[1] These events can be read in any history of copyright. A good online resource regarding their legal implications is “Copyright And `The Exclusive Right’ Of Authors” http://www.lawsch.uga.edu/jipl/old/vol1/patterson.html Journal of Intellectual Property, Vol. 1, No.1, Fall 1993, by Professor Lyman Ray Patterson, Pope Brock Professor of Law at the University of Georgia and a noted copyright scholar. His description of this earliest copyright is concise and revealing:
The event in the history of Anglo-American copyright that led to the shaping events of the seventeenth and eighteenth centuries was the Charter of the Stationers’ Company granted in 1556 by Philip and Mary …. The Charter gave the stationers the power to make “ordinances, provisions, and statutes” for the governance of “the art or mistery of [s]tationery,” as well as the power to search out illegal presses and books and things with the power of “seizing, taking, or burning the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation ….”
The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world.
[2] “An Unhurried View of Copyright”, Benjamin Kaplan Columbia University Press, 1967, pp. 4-5.
[3] Patterson, in [1], goes so far as to say “The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.”
[4] Kaplan, p. 6.
[5] Kaplan, pp. 7-9.
[6] “Five Hundred Years of Printing” pp. 218-230, S. H. Steinberg, Penguin Books, 1955, revised 1961

[This is an excerpt of the original article which can be found at QuestionCopyright.org]