The Object of Copyright

A Conceptual History of Originals and Copies in Literature, Art and Design

Stina Teilmann-Lock

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317804598
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Recent years have seen a number of pressing developments in copyright law: there has been an enormous increase in the range and type of work accorded protection; the concept of the 'original work' has entered into national copyright acts; and intangible entities are now entitled to protection by copyright. All these are consequences of legislative and technological developments that can be traced back over two centuries and more. the result. This book presents an interdisciplinary study of the growth of copyright law, largely based on archival research and on archival materials only recently made available online. The new history here articulated helps to explain why print is no longer today the sole or even the chief object of copyright protection.

Taking its key examples from British, French and Danish copyright law, the book begins by exploring how the earliest copyright laws emerged out of the technological understanding of a printed 'copy, ' and out of the philosophical notions of originals and copies, tangibles and intangibles. Dr Teilmann-Lockgoes on to examine the concept of the 'work' as it develops both conceptually and legally, as the object of protection, and then explains how, in a curious consequence, 'the work' turns the 'copy' into the 'mere' material instantiation of the intangible 'original'. The book concludes by addressing the considerable and complicated problems now emerging in copyright law following the inclusion of design within the scope of its protection. In this field Danish law, striving to protect Danish design, has been setting the trend for over a hundred years.

In its examination of terminological exchanges between the diverse legal traditions and philosophical discourse, and in its thorough investigation of particular terms central to copyright legislation, this interdisciplinary book will be of great interest to scholars and students of copyright and intellectual property law; it also makes an important contribution to literary studies, legal history and cultural theory.

1
Books in the world of letters

Daniel Defoe was an eloquent writer on the subject of press regulation. On this particular topic he unfolded his views in the tract An Essay on the Liberation of the Press (1704) and in the periodical Review of the Affairs of France (1704–13).¹ He made the case for the societal value of a free press by arguing that the alternative would be a check on knowledge. As Mark Rose has noted, in developing his argument for freedom of the press Defoe began to ‘appropriate the rhetoric that the stationers regularly used and apply it to authorial property’.² In the seventeenth century, in their ongoing fight to retain a monopoly on printing, the Company of Stationers – the London booksellers’ guild – had invoked the argument that they had a kind of literary property in their ‘copies,’ that is, in the books they were printing.³ (‘Copy’ was here the printer’s term referring to the material from which one sets up the type, as still today in a journalist’s copy). In other words, the booksellers claimed that they had an exclusive right to print particular books.

John Locke’s labour theory of property helped the London booksellers to develop the argument that there could be property in literature, that is, in literature as an intangible. By 1704 Defoe was adopting the property discourse of the booksellers in his representation of the relationship between an author and his writings. In that way, Defoe moved on and away from the usual modes of depicting that relationship current among literary men of the sixteenth and seventeenth centuries. In those days it was normal for authors to be represented or to represent themselves as bucolic shepherds with flutes or as receivers of divine inspiration; Milton figures himself as both. Probably the most frequent representation of the relationship between writer and writings was that of the ‘author as begetter and the book as child.’⁴ By subscribing to the rhetoric of ‘literary property’ Defoe’s tracts marked the beginning of what Rose identifies as a ‘new way of thinking about literature’.⁵

Defoe was concerned with freedom of the press and pointed to the absurdity of a situation where a person might be held liable for a book of which he was in no respect the beneficiary:

For if an Author has not the right of a Book, after he has made it, and the benefit be not his own, and the Law will not protect him in that Benefit, ‘twould be very hard the Law should pretend to punish him for it.⁶

Defoe invoked the logic of ownership – that certain rights and duties attach to that which is one’s own – in an argument directed against the system of prepublication censorship. He raged against the licenser, the ‘tyrants of the press’ who had been exercising their power over what Defoe designates as the ‘World of Letters.’ Censorship had existed since 1487 when the Court of Star Chamber was established, one of its main purposes being to control the recently invented printing press. The Company of Stationers had been instrumental in the exercise of state censorship since 1557 when a Royal Charter was granted to them, authorizing their control over the book trade in England.⁷ The control of the Stationers’ Company over printing was consolidated by the Licensing Act of 1662 which decreed that every printed item was to be licensed and registered at Stationers’ Hall.⁸ In this way, the Licensing Act had worked to regulate printing by the combined measures of making licences a legal requirement for printing books and of confirming the printing privileges of the Stationers.⁹ Since the lapse of the Licensing Act in 1695 the booksellers had been asking for legislation that would restore their former monopoly over printing.

The debate on regulation of the press was intense in the years between the lapse of the Licensing Act in 1695 and the introduction of copyright by the Statute of Anne in 1710. A series of Bills were presented in Parliament while numerous responses came from booksellers in the shape of pamphlets and petitions from printers and men of letters, all of which were advocating particular interests at stake in the issue of printing.¹⁰ Defoe was a prominent figure in the debate and, as has been remarked by Ronan Deazley, in his writings on press piracy he ‘sowed the first seeds of the social contract that would take centre stage in the Statute of Anne.’¹¹ Deazley has argued persuasively that more than anything the legislators of the Statute of Anne were concerned not with protecting author’s rights but with securing a ‘free market of ideas’.¹² The introduction of copyright was not so much an instrument to secure ‘literary property’ or ‘authorial rights’ as it was a move to create a type of book market that would ensure the continued production of learned books that would be useful for the public.

A closer look at Defoe’s writings on literary ‘property’ shows him to be reasoning in line with such a free market of ideas, in spite of his new utilization of property rhetoric. In a famous line of the Essay on the Liberation of the Press he points to a ‘certain sort of Thieving which is now in full practice in England, and which no Law extends to punish, viz. some Printers and Booksellers printing Copies none of their own.’¹³ Such complaints over what Defoe designates as press piracy sound very much like what we would think of, today, as piracy or violations of intellectual property. However, Defoe’s definition of press piracy diverges in some ways from ours. It is worth quoting at length:

An Author prints a Book, whether on a Civil or Religious Subject, Philosophy, History, or any Subject, if it be a large Volume, it shall be immediately abridg’d by some mercenary Bookseller, employing a Hackney-writer, who shall give such a contrary Turn to the Sense, such a false Idea of the Design, and so huddle Matters of the greatest Consequence together in abrupt Generals, that no greater Wrong can be done to the Subject; thus the sale of a Volume of twenty Shillings is spoil’d, by perswading People that the Substance of the Book is contain’d in the Summary of 4s. price, the Undertaker is ruin’d, the Reader impos’d upon, and the Author’s perhaps 20 Years Labour lost and undervalued: I refer my Reader, for the Truth of this, to the several Abridgments of the Turkish History, Josephus, Baxter’s Life, and the like. I think in Justice, no Man has a Right to make any Abridgment of a Book, but the Proprietor of the Book; and I am sure no Man can be so well qualified for the doing it, as the Author, if alive, because no Man can be capable of knowing the true Sense of the Design, or of giving it a due Turn like him that compos’d it. This is the first Sort of the Press-Piracy, the next is pirating Books in smaller Print, and meaner Paper, in order to sell them lower than the first Impression. Thus as soon as a Book is publish’d by the Author, a raskally Fellow buys it, and immediately falls to work upon it.¹⁴

Defoe defines press piracy as either the printing of abridgements of published books or the reprinting of books in poor quality, on cheap paper in small print. Both types of press piracy are injurious to three categories of people: to the ‘Undertaker’ who has published the book and is deprived of his reward, to the reading public that is deceived into thinking that the reprint contains the substance of the original book, and to the author who is not valued on the basis of what he says in the original, intact book. In this way, that which Defoe objects to is not the violation of a property right as such. Rather it is the diffusing of distorted communication that constitutes the main problem: the ‘innumerable Errors, by which the Design of the Author is often inverted, conceal’d, or destroy’d, and the Information the World would reap by a curious and well studied Discourse, is dwindled into Confusion and Nonsense.’¹⁵ Printing is a means to ‘polish the Learned World, make men Polite, and encrease the knowledge of Letters, and thereby all useful Arts and Sciences.’¹⁶ The context that Defoe speaks in is the World of Letters where the exchange of opinions and knowledge should be free but where freedom comes with personal responsibility. The major problem of press piracy would come from the fact that

one Man Prints another Man’s Works, and calls them his own; again, another Man Prints his own, and calls them another Man’s. A. is Loaded with B’s Crimes, and B. Applauded, with A’s virtues – – A. Prints a Lampoon, and lays it to C; C. Prints D’s Works, and sets E’s name to them.¹⁷

When Defoe proposes to see literature as property it is not because he wants to make a plea for enabling authors to make a living from their writings just as they might have made a living from selling, say, bread or shoes. He does not perceive of authors as the creators of marketable product. The interests of booksellers and authors might coin – and with those of the reading public too – but their stakes in the issue of the press diverge. Booksellers might be useful for authors in their ambition to contribute to the free market of ideas. However, the ‘mercenary booksellers’ who employ ‘Hackney-writers’ to make abridgements of books to undersell on the market disrupt the free exchange of ideas by offering for sale volumes that may be inaccurate or misleading.

Rose makes the point that the ‘right to control publication has economic implications, and it sometimes becomes difficult to distinguish what we might call matters of propriety from matters of property’ adding that he uses the terminology with some hesitations as ‘propriety’ was often a synonym for property among the booksellers.¹⁸ We might add that the scene that was set for the first copyright act was one where there were booksellers who offered products: books. And there were authors who needed a means to air their ideas but had less regard to their commercial worth. So the starting point for copyright law was a negotiation between the interests of publishers and the interests of authors and their publics, between books as products and books as carriers of ideas. These two frameworks for copyright law, the commercial and the intellectual, would continue to be playing their parts in the development of copyright law: a synthesizing of interests would come to contribute to a later shift in the law.

The Statute of Anne 1710

In 1710 the British Parliament passed the world’s first copyright statute; it was also the first act to enable authors to acquire copyright of their own works. The Statute of Anne, which bore the full title ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned,’ was passed into law on 5 April 1710.¹⁹ The Act provided for ‘a sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years’ to stationers who already had privileges in existing published works. A further copyright of 14 years was offered to ‘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.’ After this 14-year term a renewal was possible for a second period of 14 years in cases where the author was still alive.²⁰ Thus the statutory copyright granted by the Statute of Anne was directed, significantly, not only at publishers who were members of the Company of Stationers, but also at authors. By giving economic benefits to authors, and not only to the stationers who had been asking for such a law, Parli...