CopyRant Part 2
For Part One, click here.
So, picking up the thread on copyright, from my last CopyRant, I thought it would be again helpful to look at how copyright first started. In a lot of ways, how the system began has defined a lot of the issues and problems, and continues to do so today. Copyright as a legal concept has existed since approximately 1557 but what about before that, and how did it come about?
Towards Copyright
Prior to the creation of copyright, the promotion and dissemination of “the arts,” was generally provided by a system of patronage. In that system, the arts relied on the sufferance of the governing political regime, or at least the continued support of the various patrons. Outside of that, the arts also survived on a grass-roots, folk level. But in general, there was not a robust economy around the spread of creativity.
The first copyright was enacted via a royal charter of incorporation to the Stationer’s Guild of London, in 1557. What I found most interesting about this is that the very first incarnation of copyright really paid no attention whatsoever to the originator of a work, but granted sole rights to the publisher. This is an issue that seems to crop up again and again in the world of intellectual property.
Read more after the break...
The Stationer’s Guild was granted “a monopoly on book production, ensured that once a member had asserted ownership of a text (or "copy") no other member would publish it.”, by the terms of the charter. This is the first time that a legal framework was created to control how ideas could flow, at least via a “fixed form” representation. The monopoly granted to the Stationer’s Guild was also considered perpetual. Authors were themselves excluded from membership in the guild.
The next step on the journey of copyright was the Statute of Anne, widely considered the first “real” copyright law. The SoA switched the responsible owner of a copyright to the author. It also established a 21 year term for existing works, with a 14 year term for any works published after its enactment.
Early Issues
Under the earlier system of patronage, the arts, the products of creativity, were dependent on the goodwill and favor of the patrons. Art that challenged the status quo, or poked fun at entrenched authorities, was left without a good chance of survival under this system. It also under-represented the majority of the population, who were left with the grass-roots level for the spread of an alternative cultural context. Most of that grass-roots was oral, rather than recorded, and this does represent a significant loss of the creativity of that period then. Some of the earliest books are attempts to capture that oral culture, such as Grimm’s Fairy Tales.
So, obviously one of the issues that copyright was meant to solve was to create a real marketplace for ideas, at least in the form of those “fixed representations.” And that did in turn start with those with the most to gain from creating those representations, the printers themselves. But this in turn created other problems.
Vesting sole rights in a publisher put them in the same controlling position that the earlier patrons had held. A publisher could stop publishing a work, causing it to be effectively lost. The creators of the works themselves were left out of this system as well. As an attempt to overhaul that earlier system, the Statute of Anne is actually quite a good compromise. It more properly moved ownership of the rights to the end result of creativity to the authors, while ensuring that the time frames involved were limited to a reasonable period.
The earlier system under the Stationer’s Guild did a see a large increase in “illegal” publishing, in competition with the legitimate monopoly. From Wikipedia again: “To be sure, enforcement of the rules was always a challenge, in this area as in other aspects of the Tudor/Stuart regime; and plays and other works were sometimes printed surreptitiously and illegally (as often happens under regimes with strong censorship controls).”
Personally I think this is actually quite similar to the situation we now see with the internet and the larger rights’ holders. One could argue that because of their distribution power, that these entertainment corporation now represent a much larger version of the Stationer’s Guild, and although their copyrights are not officially perpetual, they have been extended dramatically over recent years. With their control over the official publishing and exchange of creative works, they’ve also created a marketplace for the illegal exchange of these products, as evidenced by the success of peer-to-peer file-sharing.
So, even in these early days, a lot of the issues around copyright had already appeared. The one thing not really taken into account here is the way that the ideas of the past act as “raw material” for the ideas of the future. The Stationer’s Guild charter didn’t include this as a concept at all, and the Statute of Anne really just avoided the issue by including a limited time frame. But it was only a matter of time before arguments were made to extend that timeframe.
That’s all for today… any glaring assumptions or holes? Questions? I used Wikipedia a bit to confirm stuff I’d already read, and here again is my “copyright reading list.”
- Digital Copyright by Jessica Litman
- Code and Other Laws of Cyberspace by Lawrence Lessig
- The Future of Ideas: The Fate of the Commons in a Connected World by Lawrence Lessig
- Free Culture: The Nature and Future of Creativity by Lawrence Lessig
- Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity by Siva Vaidhyanathan
- The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System by Siva Vaidhyanathan
- DarkNet: Hollywood's War Against the Digital Generation by JD Lasica
peace,
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