The Origin of Copyright

Expression as Knowing in Being and Copyright Onto-Epistemology

Wenwei Guan

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000411188
• Edition: 1
• Topic: Droit
• Subtopic: Loi sur les droits d'auteur

Contemporary copyright was born in a heroic era of human history when technologies facilitated idea dissemination through the book trade reaching out mass readership. This book provides insights on the copyright evolution and how proprietary individual expression's copyright protection forms an integral part of our knowing in being, driven by the advances of technology through the proliferating trading frameworks.

The book captures what is central in the process of copyright evolution which is an "onto-epistemological offset". It goes on to explain that copyright's protection of knowing in originality's delineation of expression and fair use/dealing's legitimization of unauthorized use and being are not isolatable, but rather mutually implicated. While the classic strict determinism has been subject to an onto-epistemological challenge, the book looks at the proliferation of global trade and advent of information technology and how they show us the beauty and possibility of intra-dependence between copyright authorship, entrepreneurship, and readership, which calls for a fresh copyright onto-epistemology.

Building on its onto-epistemological critiques on the stakeholder, force, and mechanism of copyright evolution, the book helps readers understand why, not only copyright, but also law in general, and justice too, need to be onto-epistemologically balanced, as this is categorically imperative for being, the fundamental law of nature.

1 The Origin of Copyright

Expression's Onto-Epistemological Dynamics in Historical Perspective¹

DOI: 10.4324/9781003163282-1

1.1 Copyright Goes Modern, Global, and Digital in Trade

1.1.1 The Intellectual History of Copyright Goes Modern, Global, and Digital

Human intellectual contemplation of the universe as an integral part of practices in being should certainly be as old as the human species. Therefore, intellectual creation and protection therein can be traced back to a date long before our modern society. Although “inventive property” and “literary property” were “essentially defenseless in classical times,” known references to literary and intellectual piracy can still be spotted in classical writings, such as discussion of “false poets” and plagiarism in ancient Greek and Rome, indicating evidence of a conceptualization of creator’s property in intellectual.² The most prominent example is Roman epigrammatist Martial who, for the first time, used plagium, a term that previously denoted kidnapping or “man-stealing” to include literary piracy.³ Other examples include year-long monopolies granted to chefs over particular creations in culinary arts in 500 BCE in Greek, a case of the ownership of a painting and the table on which the painting appears in first-century CE Rome, and Roman law, which offered “maker’s marks” legal protection. Although the history of intellectual property protection can be traced back to as early as ancient Greece and Rome, the first formal intellectual property rights protection is said to be a decree issued in Venice between 1544 and 1545 which protected copyright against piracy.⁴ Some research even suggested that, slightly earlier than that in a 1474 statue of the Venetian Republic, the very first lasting patent institution of the protection of intellectual property was set up already.⁵ It is commonly agreed, however, that the British Statute of Monopolies 1623 and the Statute of Anne 1710 are the origins of modern patent law and copyright law.⁶

It is worth mentioning here that the time when the British Statute of Monopolies and Statute of Anne marked the beginning of the modern intellectual property regime in about the early 18th century was also the time when the Industrial Revolution started in England and spread throughout Europe and North America. From 1760, as research shows, “the number of patents granted in England grew rapidly in direct relation to the Industrial Revolution.”⁷ Most importantly, the era around the Industrial Revolution was also the time when classical philosophers such as Hobbes in 1651, Locke in 1689, and Rousseau in 1762 were constructing the social contract theory that marked the beginning of modern law. It was also around the same time that Sir Isaac Newton constructed modern physics as seen in Mathematical Principles of Natural Philosophy in 1687. Modern law defeats medieval mythology by replacing it with the cult of knowledge and thus defended the individual autonomy. Newtonian physics’ “strict determinism” laid down the modern foundation of classic epistemological belief in representationalism, the metaphysics of individualism, and the intrinsic separability of knower and known.⁸ In the way that Newtonian science offers the indispensable epistemological support to law’s modernization, the protection of intellectual property provides a perfect combination of the defense of individual autonomy and the cult of knowledge. It thus must be something more than a simple coincidence that it was also the time that capitalism came to dominance in the West and provided the main mechanism of industrialization throughout Europe and North America. Modern copyright law, therefore, will inevitably reflect the capitalist perspective of knowing in being, a Newtonian onto-epistemology born together with the Industrial Revolution and the rise of capitalism.⁹

When it comes to the copyright regime, although the Statute of Anne 1710 is commonly considered as the first copyright law in a modern sense in the UK and in the world, the original of copyright indeed can be dated back more than a century and a half before that.¹⁰ According to Patterson, the Statute of Anne was indeed England’s sixth copyright statute after the Star Chamber Decrees of 1586 and 1637, the 1643 and 1649 Ordinances, and the Licensing Act of 1662, which were in fact acts of censorship and acts for the book trade.¹¹ The Statute of Anne, according to Patterson, whose provisions can be related directly to the 1662 Licensing Act, “was simply a trade regulation statute designed to destroy and prevent monopoly in the book trade.”¹² The disorder in the book trade owing to the end of Licensing Act’s sanctions for the stationer’s copyright in 1694 and the great opposition to stationers’ monopoly limited to company members and the perpetuity of copyright finally led to the birth of the Statute of Anne. ¹³

Under the 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,” the Statute of Anne was enacted in 1710. The Statute provided for two copyrights: the statutory copyright for all subsequent publications and the stationer’s copyright in published works to be phased out after 21 years. According to the Statute, the Author and his Assignee or Assigns “shall have the sole Liberty of printing and reprinting” book or books for a term of 14 years, and upon the expiration, “the sole Right of printing or disposing of Copies shall return to the Authors” for another term accordingly.¹⁴ Upon the expiration of the old copyright, the booksellers resorted to Parliament or courts through their battle for perpetual copyright between 1710 and 1774, through the Millar and Donaldson cases, after which copyright ceased to be a publisher’s right and became an author’s right for a limited term,¹⁵ thus establishing a modern copyright regime.

Anglo-American kinship certainly made possible the extension of the Statute of Anne’s great influence on American copyright law.¹⁶ Owing to the absence of the federal government’s power to enact national copyright legislation under the Articles of Confederation, the Continental Congress adopted a resolution in May 1873 “recommending the Several States to secure to the authors or publishers of new books the copyright of such books.”¹⁷ The Statute of Anne as a model for copyright laws was enacted by all of the 13 states, except Delaware, with New York being the last of the 12 states to comply, on April 29, 1786.¹⁸ The dominant idea of copyright as reflected in the preambles of the state copyright statutes “was the idea of copyright as an author’s right” that reflects the resolution that the Continental Congress had recommended, “to secure copyright to authors or publishers.”¹⁹ Together with recognizing copyright as author’s right, “the other three ideas—that copyright is to promote learning, that it is a government grant, and that it is to prevent monopoly—were also present in the state statutes.”²⁰ The idea of recognizing copyright as a natural right of the author in the state statutes was reversed in a later federal statute where copyright was considered as “a statutory privilege, granted at the will of the government.”²¹ Going beyond being a model of the copyright law of the states, the Statute of Anne served as a model for America’s first federal copyright act, passed in 1790, which underwent major revisions in the copyright laws of 1831, 1870, 1909, and 1965.²² Although, in addition to protecting indigenous authors’ property interests, the early establishment of American copyright laws served to function as a declaration of cultural independence from Britain, inextricably intertwined with the construction of a distinct national identity,²³ American copyright laws nevertheless rooted themselves firmly on the Statute of Anne.

At around the time of the Statute of Anne 1710, most countries, including Denmark in 1741, the United States in 1790, France in 1793, and Germany in 1838, enacted copyright regulations to protect their nationals’ works. Copyright protection, however, remained somewhat isolated until Demark in 1828 offered foreign authors protection through reciprocal treaty arrangements with individual countries. France in 1852 extended copyright protection to all authors, regardless of nationality, which started the move to the international coordination of international copyright protection, which led to the 1886 Convention in Berne and the International Convention for the Protection of Literary and Artistic Works between 10 Berne Union countries. The Berne Convention was subsequently amended at Berlin in 1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967, and at Paris in 1971. Changes required as to moral rights and formalities, probably also tolerance to local piracy, have barred the USA from joining the Berne Convention, and practically left room for American local press industries to develop for more than a century.²⁴ The USA eventually joined the Berne Convention in 1988, one hundred and two years after its birth.²⁵

Around the time when the USA joined the Berne Convention in 1988 is also a critical moment of international intellectual property development. In the 1970s developing countries focused very much on establishing new rules on a New International Economic Order (NIEO) that depend on greater access to technology protected by intellectual property rights in developed countries. Developed countries, however, have been very much concerned with the World Intellectual Property Organization (WIPO) system’s failure of providing effective protections to the interests of their technology-based and expressive industries.²⁶ At around a critical moment “when the negotiations between developed and less-developed countries over the revision of the Paris Convention were deadlocked at WIPO,” the Agreement...