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Privilege and Property Essays on the History of Copyright Privilege and Property Essays on the History of Copyright Edited by Ronan Deazley, Martin Kretschmer and Lionel Bently PRIVILEGE AND PROPERTY Daniel Chodowiecki’s allegorical copper plate of 1781 shows unauthorised reprinters and original publishers, respectively as highwaymen and their victims while the Goddess of Justice is asleep. The full title reads: ‘Works of Darkness. A Contribution to the History of the Book Trade in Germany. Presented Allegorically for the Benefit of and as a Warning to All Honest Booksellers.’ The identities of most of the characters have been identified: the bandit chief is the Austrian publisher Johann Thomas von Trattner (1717-1798) who made a fortune by reprinting books from other German- speaking territories. His victims are the publishers Friedrich Nicolai (in the centre), and Philipp Erasmus Reich (fleeing into the background). The small bat-like monster hovering overhead (a position normally reserved for angels in religious paintings!) is modelled on Gerhard van Swieten (1700-1772), an influential adviser and doctor of Maria Theresa of Austria who eased censorship regulations but encouraged the reprinting of foreign books in Austria. Nicolai’s right arm extends the bat monster’s line of gaze and points to the head of the Goddess Justitia, sleeping as if drugged by the poppy blossoms above her head. Apart from a scriptural-theological aspect (equating reprints with ‘works of darkness’) and a more juridical one (comparing reprinting to robbery), the title, by describing the etching as a ‘warning to all honest booksellers’, also evokes moral principles in civil society. The ‘honest’ bookseller is one who does not deal in reprints. Ironically, Christian Friedrich Himburg, the Berlin publisher of the copper print was himself to be branded a pirate for a 1777 two-volume Goethe edition which in turn was soon reprinted by two other publishers: in 1778 by Schmieder in Karlsruhe and by Fleischhauer in Reutlingen. Source: Antiquariat Voerster, Stuttgart. For more details see: Chodowiecki’s Allegory ‘Works of Darkness’ (1781), Primary Sources on Copyright (1450-1900), www.copyrighthistory.org Ronan Deazley is Professor of Law at the University of Glasgow. He is the author of On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (2004) and Rethinking Copyright: History, Theory, Language (2006, 2008). Martin Kretschmer is Professor of Information Jurisprudence and Director of the Centre for Intellectual Property Policy & Management (CIPPM) at Bournemouth University, UK. His research includes a long-term project on artists’ labour markets and earnings funded by the Arts Council and Collecting Societies ALCS and DACS, as well as numerous interdiscipli- nary studies addressing specific policy issues (funders include European Commission, Economic and Social Research Council (ESRC), and the UK Strategic Advisory Board for IP Policy). Lionel Bently is the Herchel Smith Professor of Intellectual Property Law at the University of Cambridge, and Director of the Centre for Intellectual Property and Information Law, Cambridge. His published works include: The Making of Modern Intellectual Property Law (with Brad Sherman) (1999) and Intellectual Property Law, 3rd ed (2008). Lionel Bently and Martin Kretschmer are joint project directors of the Arts and Humanities Research Council (AHRC) funded digital archive: Primary Sources on Copyright (1450-1900), www.copyrighthistory.org Privilege and Property Essays on the History of Copyright Edited by Ronan Deazley, Martin Kretschmer and Lionel Bently Cambridge 2010 Open Book Publishers CIC Ltd., 40 Devonshire Road, Cambridge, CB1 2BL, United Kingdom http://www.openbookpublishers.com © 2010 Ronan Deazley, Martin Kretschmer, Lionel Bently. Contributors are free to re-publish their contributions in whatever other ways they choose. Some rights are reserved. This book is made available under the Creative Commons Attribution-Non-Commercial-No Derivative Works 2.0 UK: England & Wales License. This license allows for copying any part of the work for personal and non-commercial use, providing author attribution is clearly stated. Details of allowances and restrictions are available at: http://www.openbookpublishers.com As with all Open Book Publishers titles, digital material and resources asso- ciated with this volume are available from our website: http://www.openbookpublishers.com ISBN Hardback: 978-1-906924-19-5 ISBN Paperback: 978-1-906924-18-8 ISBN Digital (pdf): 978-1-906924-20-1 Acknowledgment is made to the The Jessica E. Smith and Kevin R. Brine Charitable Trust for their generous contribution towards the preparation of this volume. All paper used by Open Book Publishers is SFI (Sustainable Forestry Initiative), and PEFC (Programme for the Endorsement of Forest Certification Schemes) Certified. Printed in the United Kingdom and United States by Lightning Source for Open Book Publishers Contents Contributors vii Introduction. The History of Copyright History: Notes from an Emerging Discipline 1 Martin Kretschmer, with Lionel Bently and Ronan Deazley 1. From Gunpowder to Print: The Common Origins of Copyright and Patent 21 Joanna Kostylo 2. ‘A Mongrel of Early Modern Copyright’: Scotland in European Perspective 51 Alastair J. Mann 3. The Public Sphere and the Emergence of Copyright: Areopagitica, the Stationers’ Company, and the Statute of Anne 67 Mark Rose 4. Early American Printing Privileges. The Ambivalent Origins of Authors’ Copyright in America 89 Oren Bracha 5. Author and Work in the French Print Privileges System: Some Milestones 115 Laurent Pfister 6. A Venetian Experiment on Perpetual Copyright 137 Maurizio Borghi 7. Copyright Formalities and the Reasons for their Decline in Nineteenth Century Europe 157 Stef van Gompel 8. The Berlin Publisher Friedrich Nicolai and the Reprinting Sections of the Prussian Statute Book of 1794 207 Friedemann Kawohl 9. Nineteenth Century Controversies Relating to the Protection of Artistic Property in France 241 Frédéric Rideau viii Privilege and Property 10. Maps, Views and Ornament: Visualising Property in Art and Law. The Case of Pre-modern France 255 Katie Scott 11. Breaking the Mould? The Radical Nature of the Fine Arts Copyright Bill 1862 289 Ronan Deazley 12. ‘Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words’: The Birth of the Performing Right in Britain 321 Isabella Alexander 13. The Return of the Commons – Copyright History as a Common Source 347 Karl-Nikolaus Peifer 14. The Significance of Copyright History for Publishing History and Historians 359 John Feather 15. Metaphors of Intellectual Property 369 William St Clair Bibliography 397 Index 427 Contributors Isabella Alexander is a Newton Trust Lecturer in Law at the University of Cambridge and Beachcroft LLP Fellow in Law and Director of Studies in Law at Robinson College, Cambridge. Her publications onclude ‘The Lord Chancellor, the Poets and the Courtesan: Public Morality and Copyright Law in the Early Nineteenth Century’, in Law and the City: Proceedings of the 17th British Legal History Conference (2005) and ‘Criminalising Copyright: A Story of Pirates, Publishers and Pieces of Eight’ (2007) 66 Cambridge Law Journal 625. She is the author of Copyright and the Public Interest in the Nineteenth Century (2010). Maurizio Borghi is a Lecturer in Intellectual Property Law at Brunel Law School, and holds a Ph.D. from Bocconi University of Milan. He stud- ied social sciences and philosophy at the University of Milan, has been a researcher at Bocconi University and a visiting scholar at the Center for the Study of Law and Society of the University of California, Berkeley. He has authored a monograph on the history of copyright (La manifattura del pensiero, 2003), edited a book on digital copyright (Proprietà digitale, 2006, with Maria Lillà Montagnani), and translated philosophical works from German and French. He is also author of a number of articles and papers on different topics, including philosophy and copyright law. Oren Bracha is an Assistant Professor of Law at the University of Texas School of Law. He received his LL.B. from the Tel-Aviv University Faculty of Law in 1998 and his S.J.D. from Harvard Law School in 2005. Bracha is a legal historian and an intellectual property law scholar who has published various articles about the history of intellectual property, copyright law, and internet law. His forthcoming book Owning Ideas is an intellectual history of American intellectual property law in the nineteenth century. Bracha was a law clerk for Chief Justice Aharon Barak of the Supreme Court of Israel. During his time at Harvard Law School he worked on various projects for the Berkamn Center for Internet and Society. His fields of interest and schol- arship include intellectual property, cyberlaw, legal history and legal theory. x Privilege and Property John Feather has been Professor of Library and Information Studies at Loughborough since 1988, having worked in publishing and librarianship before moving to Loughborough. He has served as Head of Department (1990-94, 2003-06), Dean of Education and Humanities (1994-96) and Pro- Vice Chancellor (1996-2000). He has been a Visiting Professor at UCLA, and undertaken many other international tasks for the British Council, the EU, and UNESCO among others. He was a founding Board member of AHRC, and has served on committees and advisory bodies of learned societies, pro- fessional bodies and government and international agencies. His many pub- lications include A History of British publishing (2nd ed, 2006), and Publishing, Piracy and Politics. An Historical Study of Copyright in Britain (1994). Stef van Gompel is a Ph.D. candidate at the Institute for Information Law (IViR) of the University of Amsterdam. His dissertation covers the his- tory of, rationales for, and possible future of, the prohibition on copyright formalities (Article 5(2) Berne Convention). Before he started his Ph.D. programme, Mr Van Gompel worked at IViR, first as an intern, and later as researcher. He wrote articles on collective rights management, orphan works, and the possible term extension of related rights in sound record- ings.
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