Author–Publisher Transactions in the Stationers' Company Records

Chapter 4 Entering into Copyright: Author–Publisher Transactions in the Stationers’ Company Records

Rebecca Schoff Curtin

One of the paradoxes of Anglo-American copyright history is that the role of authors in the early development of copyright is obscure.1 Aside from the com- paratively rare printing privileges granted directly from the Crown to authors, the exclusive right to print a book was, at its origins, a right legally recognized for Stationers, the printers or booksellers who produced and distributed books, rather than authors.2 The Statute of Anne nominally recognized authors’ copyright for the first time.3 It did not however change much the day-to-day busi- ness of the Stationers who had previously enjoyed a virtual monopoly on the legal right to copy.4 Stationers themselves were the most prominent voices

1 This chapter is derived from a longer work, Rebecca Schoff Curtin, “The Transactional Ori- gins of Authors’ Copyright,” The Columbia Journal of Law and the Arts, 40 (2016): 175–235. 2 Leo Kirschbaum, “Author’s Copyright in England before 1640,” The Papers of the Bibliographi- cal Society of America 40.1 (1946): 43–4, 46; R.C. Bald, “Early Copyright Litigation and its Bib- liographical Interest,” The Papers of the Bibliographical Society of America 36.2 (1942): 81; 83. But see Meraud Grant Ferguson, “‘In Recompense of His Labours and Inuencyon’: Early Sixteenth-Century Book Trade Privileges and the Birth of Literary Property in England,” Transactions of the Cambridge Bibliographical Society 13 (2004): 14, 20 (arguing that the first privilege granted to an author, Thomas Linacre, “has far-reaching implications for our under- standing of the desire of early sixteenth-century writers to protect their words and our con- ception of their sense of agency”). For further detail on the first such privilege granted to an author, see Rebecca Schoff Curtin, “The ‘Capricious Privilege’: Rethinking the Origins of Copyright under the Tudor Regime,” Journal of the Copyright Society of the U.S. 59 (2012): 391. On the comparative rarity of privileges granted to authors, see Peter Blayney, The Stationers’ Company and the Printers of London, 1501–57 (New York: Cambridge University Press, 2013) 160 n., and 166–67. Blayney believes that Linacre’s printer, John Rastell, likely suggested that Lina- cre seek the privilege. 3 With respect to works unpublished or yet to be composed, the statute reads, “the Author of any Book or Books already Composed and not Printed and Published, or that shall hereafter be Composed, and his Assignee, or Assigns, shall have the sole Liberty of Printing and Re- printing such Book and Books for the Term of Fourteen Years to Commence from the Day of the First Publishing the same, and no longer.” Statute of Anne, 1710, 8 Ann., c. 19, § 2 (Eng.). 4 Michael F. Suarez, “To What Degree did the Statute of Anne (8 Anne, c. 19, [1709]) Affect Commercial Practices of the Book Trade in Eighteenth-Century England?” Global Copyright: Three Hundred Years from the Statute of Anne, from 1709 to Cyberspace, ed. Lionel Bently, Uma

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lobbying for the statute, which began as a petition to Parliament.5 As for litigation under the new statute, in spite of the seemingly sudden appearance of authors as the initial copyright holders in their new work under the Statute of Anne, as far as recent research has uncovered, a living author did not appear in court on his own behalf for almost twenty years after the passage of the Act.6 How is it possible that authors, arguably the central focus of the incentivizing, utilitarian energies of modern-day copyright law, are eclipsed at its origins?7 Where, then, did the concept of authors’ rights originate and why wasn’t the passage of the Statute of Anne more disruptive to the Stationers’ own under- standing of their commercial relationships with authors? The Statute of Anne notoriously fails to define the right to a “copy.”8 What rights did people think were being recognized for authors and proprietors of books at the time? And, finally, if it is true that authors were marginalized in the early conceptions of

Suthersanen and Paul Torremans (Cheltenham; Northampton, MA: Edward Elgar, 2010) 54, 67. 5 Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968) 142. 6 For the first copyright suit brought by a living author under the Statute of Anne (by John Gay for piracy of his opera Polly in Gay v Read (1729)) and a brief identification of other early suits, see Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Har- vard University Press, 1993) 59; see also Suarez, “To what degree did the Statute of Anne,” 54–5. For what is thought to be the first-ever suit under the Statute of Anne, brought by the stationer Jacob Tonson, see H. Tomás Gómez-Arostegui, “The Untold Story of the First Copy- right Suit under the Statute of Anne in 1710,” Berkeley Technology Law Journal 25.3 (2010): 1247. Gómez-Arostegui has discovered a remarkable exception to the general rule of living authors being absent from the court room prior to the Statute of Anne: in Chiswell v Lee (C33/257, f. 100r (Ch. 1681)), the Chancellor orders an author to certify, as a kind of expert witness, whether the allegedly infringing book was a copy of the author’s book. See H. Tomás Gómez- Arostegui, “What History Teaches Us About Copyright Injunctions and the Inadequate- Remedy-at-Law Requirement,” Southern California Law Review 81.6 (2008): 1197, 1232 n.171. The extent to which Stationers in court prior to the passage of the Statute of Anne may have relied on their dealings with authors as the ultimate source of their rights is a separate and crucial question. See H. Tomás Gómez-Arostegui, “Stationers v Seymour (1677),” Landmark Cases in Intellectual Property, ed. Jose Bellido (Oxford; London: Hart Publishing, 2017) 21. 7 See for example Wendy Gordon, “The Core of Copyright: Authors, Not Publishers,” Houston Law Review 52.2 (2014): 613, 634–5 (arguing that “focus on authorial incentive is far more well- entrenched in our history than is solicitude for commercial disseminators”). But see Jane Ginsburg, “The Author’s Place in the Future of Copyright,” Copyright Law in an Age of Excep- tions and Limitations, ed. Ruth Okediji (New York: Cambridge University Press, 2017), observ- ing that “[i]n the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free- speaking users,” https://perma.cc/F2SD-9DCK. 8 Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) (Oxford: Hart Publishing, 2004) 49.