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Chapter II: Copyright English and Colonial Origins

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Chapter II: Copyright English and Colonial Origins Owning Ideas: Chapter 2 __________________________________________________________________________ Chapter II: Copyright English and Colonial Origins This chapter traces the development of various administrative, political and legal means employed in sixteenth century England as part of the regulation of the book trade, into the late eighteenth century general copyright regimes of both England and the American states. Since it is easy to lose sight of the forest in the multitude of trees consisting of doctrinal and ideological details, one should keep in mind the overarching argument of this account. As in the previous chapter the underlying argument about the early history of Anglo-American copyright is twofold. First, it is designed to show that the early practices and the conceptual scheme embedded in them were fundamentally different from the modern framework of copyright that eventually emerged out of them. Second, while tracking the gradual yet profound changes undergone by copyright law and practice over a period of two centuries, the chapter demonstrates that by the end of the eighteenth century some of the transformations that led to the modern framework did not yet occur while others were still in an embryonic stage. On the eve of the Constitution the practices that Americans were familiar with as “copyright” were already much different from the ir sixteenth century English origins. At the same time, however, they were just as different from the doctrinal and conceptual framework of copyright at the beginning of the twentieth century. In general terms modern Anglo-American copyright is a regime of general rights of authors in their creative works. Taking this abstract definition apart, one can detect several components constituting it. First, modern copyright is a general right in the sense used in the previous chapter to describe modern patents. It is a set of standard entitlements enjoyed as a matter of right by any subject of the legal regime that meets a predefined set of general criteria. Second, copyright is usually thought of and referred to as a property right or as ownership. This is a somewhat complex and elusive concept. Ownership is sometimes referred to or assumed to be total control of something. Yet in actual legal doctrine property rights in general and copyright in particular never constitute in any meaningful sense total control. More importantly, ownership is hardly ever conceptualized by modern jurisprudence as absolute control. Instead the dominant image of ownership is that of a bundle of various entitlements enjoyed by the owner vis-à-vis the object of ownership. Modern copyright doctrine fits well within this image. It confers upon the owner a set of various entitlements regarding different aspects and possible uses of the protected object of the right- the “work.” 117 Owning Ideas: Chapter 2 __________________________________________________________________________ This set, as well as the scope of each entitlement within it, is far from constituting absolute control, but it is fairly comprehensive and diverse. Third, the object of the property right created by copyright- the intellectual “work”- is conceptualized as an abstract or intangible entity to which the various entitlements apply. Different legal doctrines define the work and govern its protected boundaries. While debates rage regarding the optimal scope of the work and while such scope may change or remain vague in some respects, an overarching theme of the modern conceptual scheme of copyright is the depiction of its object as such an intangible entity in which the entitlements or the control allowed to the owner subsist. Finally, just as the inventor is the conceptual correlative of the invention in patent law, in copyright it is the author that occupies this position in relation to the work. The modern concept of copyright is founded on the general principle of individual original authorship. The author is the creator of the work and the person to which the original entitlements are awarded by law. The exact doctrinal details that define authorship may differ or be disputed. The relation between the ideal concept of authorship and the actual doctrinal arrangements may be complex and sometimes even fictional. Nevertheless, modern copyright protection is founded on a generalized form of the principle of authorship, on the assumption that the guiding light of protection is individuals who create original new works. The early origins of copyright in England were different from the conceptual and doctrinal scheme described above on every count. The protection of exclusive printing and publishing rights in books was based not on a regime of a general right but on particularistic privileges awarded by the sovereign as a matter of specific discretion either to certain individuals or to a specified group of individuals as part of the regulation of the book trade. Although the language of “property” can be found in connection to such privileges as early as the middle of the seventeenth century, it was not until much later that a concept of ownership similar to the modern one started to appear. Copyright or similar devices were not thought of as general control of or as a bundle of entitlements in some intangible object. Instead it was conceptualized and practiced as an exclusive privilege to exercise a certain economic activity, to engage in the printing or publishing of a certain book. Finally, neither the work nor the author played any significant part in the early days of copyright. Early copyright discourse simply had no concept of an intangible object- the “work”- in which the rights consist. Similarly, copyright did not originally single out the writer of a text as the obvious or even as the most common subject of the relevant rights. Nor was there a developed concept of authorship as the basis of rights in books, much less a 118 Owning Ideas: Chapter 2 __________________________________________________________________________ generalized principle of protecting original authorship in the context of other subject matter. The transformation of these various elements was slow, gradua l and complex. The seeds of the later developments can often be discerned in an embryonic form in the older practices. But the process leading from one to the other was neither linear nor inevitable. Moreover, by the end of the eighteenth century copyright was still in several important respects quite different from its modern form. On this most abstract level the historical story of Anglo-American copyright appears to be identical to that of patents. However, once one plunges into the specific details of this process important differences appear. Instead of a perfect match between the two stories one ends up with a complex pattern of similarities and dissimilarities- convergence and divergence. Moreover, the historical actors themselves often exhibit an awareness of this complex pattern, resulting in attempts to rationalize it, shape it or harness it to their purposes. I. English Copyright A. Early Copyright Like patents the practices that eventually gave rise to what we call today copyright first appeared in the Italian republics, from where they were probably imported to other European countries and to England. 1 Usually these were specific privileges granted by the government to a printer or a publisher which included an exclusive right to print or sell certain books. In some places there appeared also independent arrangements of different degrees of formality between printers and publishers to recognize each other’s exclusive rights to publish certain books. Such arrangements were usually connected to a guild apparatus, which in turn, received some sanction 1 About the early origins of copyright in Venice and other Italian republics see BRUCE W. BUGBEE, THE GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 43-48 (1967); LEONARDAS VYTAUTAS GERULAITIS, PRINTING AND PUBLISHING IN FIFTEENTH-CENTURY VENICE (1976); Victor Scholderer, Printing at Venice to the End of 1481, 25 The Library 130 (4th Ser. 1924). For an argument about a possible personal connection between one of the earliest English printing patents (possibly the earliest) and Venice see JOSEPH LOEWENSEIN, THE AUTHOR’S DUE: PRINTING AND THE PREHISTORY OF COPYRIGHT 69, 75 (2002). 119 Owning Ideas: Chapter 2 __________________________________________________________________________ or recognition from the government. A final common characteristic was that while the interest of the printers and publishers in such arrangements was mainly commercial the governments involved had an additional substantial motive: censorship. The early development of copyright in England which started in the first part of the sixteenth century shared these general characteristics. Copyright developed in England in two parallel tracks that interacted with each other until they finally converged in the eighteenth century. The first channel was the printing patent. This was a discretionary privilege patent granted by the crown on the basis of its prerogative power. Like invention patents the early printing patents constituted yet another undistinguishable category of royal patent grants. Hence, during the seventeenth century the printing patent was caught up in the struggle and discourse of monopolies. Nevertheless the specific characteristics of the book industry and the issues intertwined with it gradually gave rise to an emerging practical recognition of the printing patents as a unique class of grants with its own
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