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Dear Illiberal Undemocrats · Friday March 05, 2010 by Crosbie Fitch

A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.

However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.

The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.

So, what happens when the public find themselves in possession of ever more powerful reproduction technology?

  • The people are in fundamental conflict with those in possession of the privilege that suspends their liberty.

To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.

The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.

The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.

This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.

Alex Bowles said 3449 days ago :

About this:

The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.

Are you sure? I believe that the law was actually a considerable liberalization, in that prior to its passage, the freedom to print anything was strictly limited to royally chartered guilds, the output of which was subject to review by the Church.

In other words, even authors didn’t have the right to print their own works. The act of printing itself was monopolized.

In 1709/10, this changed. The right to print (not copy, mind you, but to simply print) was vested in authors, who could subsequently name their own terms when negotiation with the guilds – which were barred from printing new material (i.e. less than 14 years old) without the author’s permission.

I don’t think this changes the thrust of you argument, but it’s important to understand how the law evolved of you want to see in continue its slow but ancient trajectory towards freedom.

Crosbie Fitch said 3449 days ago :

Yes, prior to the Statute of Anne, there were de facto monopolies, and various edicts either permitting or constraining printing (and not just in England). However, 1710 marks the point at which the suspension of the individual’s right to copy published works was permanently established, the final nail hammered in, reserving such copying as the transferable privilege of a copyright holder.

I do not intend to imply that prior to 1710 people were blissfully engaging in free cultural intercourse. Far from it.

Everyone should read up on the history of copyright and all that precedes it to make up their own mind as to whether we are on a trajectory toward freedom or away from it.

Alex Bowles said 3449 days ago :

Um, I think there may be another historical error here – specifically, your suggestion that copyrights were transferable beginning in 1710.

In fact, copyrights were not considered property – at least at the outset. They did not acquire property’s defining characteristic (legally transferable title) until the latter half of the 19th century. This development followed a century of cultural and economic development in which the publishing trade became enormously powerful. Only at this point did the notion of privilege as a function of property value become a matter of serious commercial consideration.

After all, copyright (really, print-right) was initially a mechanism for censorship. It was exercised by the church and crown, and existed not to govern the flow of commerce, but the flow of ideas themselves. Only after this restriction was relaxed could the commercial side of printing really take off. And again, it took more than a century before it was developed enough to demand its own modification to the law (specifically, the transformation of author’s rights into property rights).

Crosbie Fitch said 3449 days ago :

Alex, this is not really the place to argue the minutiae of copyright’s complex history. My point remains that copyright IS a transferable privilege and was ESTABLISHED by the Statute of Anne in the 18th century. It is not inaccurate to describe it as a transferable 18th century privilege.

That various aspects of copyright have changed over the years doesn’t change that essential point. One can also quibble over the nuances and meaning of assignable vs transferable, that the latter term may not have appeared until later acts, but I don’t see that linguistic distinction as important as the one between right qua privilege (legally granted right) and right qua right (natural right).

When you say ‘another historical error’, what was the other one? Do you still dispute the accuracy of the first passage of mine that you quoted?

Here’s a more expansive description of copyright as enacted by the Statute of Anne – I embolden the part about assignablility, that it was not usually the authors who remained holders of the privilege:

During the course of the seventeenth century, copyright became intertwined with politics and censorship. The Company of Stationers, which received its legitimacy from a royal charter, rode through the turmoil of the civil war and restitution of the crown, but the previous arrangements to bring order to the trade slowly changed into arrangements to control the press. The Licensing Act that governed the book trade expired in 1692 and the House of Commons refused to renew it. There were many reasons, but one of them was the belief that the Stationers had abused their monopoly.

Chaos ensued. The book trade went from a tightly regulated enterprise to a wide-open free-for-all. The stationers petitioned Parliament for relief, and it finally came in 1709 with the Statute of Anne. The outcome wasn’t exactly what the stationers wanted.

The Statute of Anne was an attempt to restore order to the book trade and, at the same time, to address perceived abuses by the stationers. It provided two kinds of copyright. For past works, it extended the stationer’s copyright for a period of 21 years. For future works, it gave the author (or any assignee!) the exclusive right to print the work for 14 years, with the stipulation that the right could be extended by an author for another 14 years. There are two important points here. First, the statute allowed people outside the Stationer’s Company to hold the copyright (although it was the assignees rather than the authors who normally held it). Second, the statute attempted to break the monopoly of the stationers by limiting the term of copyright — a radical change for the stationers, who until then had enjoyed perpetual copyright.

From “Copyright and Authors” by John Ewing

Alex Bowles said 3447 days ago :

Really enjoyed Ewing’s essay – thanks for the link.

However, I’m still surprised to see you glossing over what seem (to me at least) to be important details. After all, one of the things I’ve always admired about you is your unwillingness to be anything less than absolutely precise. Your systematic differentiation between rights and privileges is a case in point, and an prime example of the clarity that is so conspicuously absent from most copyright discussions.

That’s why I find your equation between assigning rights (sorry, privileges), and selling them outright to be so remarkable. Put simply, these are not the same. A rough analogy can be made in the difference between renting an apartment and buying one. Sure, you can say the apartment you rent is ‘your’ home, but of course, it isn’t really. Same thing goes for a publisher that has simply been assigned a publication right. Even if the assignment is perpetual, this arrangement can still introduce important limits (equivalent to rules against sub-leasing) that dramatically limit a publisher’s capacity to exploit the work.

From their perspective, this is an enormous difference. It may not be apparent to the author, who sees no practical difference between having to assign his copyright and sell it, especially when both transactions come with equivalent terms and result in the same thing (publisher places a bet by risking the costs of distribution / author gets paid something in the process).

However, when you consider what happens on the other side of the table, you’ll find that the ability to formally own, stockpile, combine, and resell these privileges leads to dramatic changes in their behavior of publishing enterprises (to say nothing of their commercial prospects). This shift is especially pronounced when you move beyond books, images, compositions, and other forms of expression that generally stem from solitary authors, and consider expressive forms that are born from collaboration, such as encyclopedias, films, symphonic recordings, mass media broadcasts, and grand architectural plans.

So again, there’s a vital difference between psudeo-property rights (such as the ability to assign, introduced in 1709), and the ability to flat-out sell, which didn’t come into play until England’s Copyright Act 1842 declared that copyrights were personal property in the fullest sense, and thus (and for the first time) capable of bequest. This significant development didn’t ‘go global’ until 1889, when the Berne Convention harmonized the different copyright laws maintained by its signatories so that they all included this definition of copyright as fully transferable property – nearly 200 years after the Statute of Anne.

On a separate note, while I enjoyed Ewing’s essay, I’m worried that his perspective may suffer from being too narrow, leading to a less nuanced view than the circumstances demand. For instance, while he may be correct to note that the Statue of Anne was not passed due to an abiding concern with author’s well being, it did reflect a (well-placed) concern that the unrestricted power of the Stationers had risen to the level of a national security threat. Ewing made no mention of this larger concern and I think his argument suffers for it.

In truth, matters were far less one-sided. After all, by this point the practical value of the scientific revolution had becoming abundantly clear – particularly with regard to astronomy, navigation, and the resulting conquest, accumulation of wealth, and ability to employ armies.

Even if the Crown didn’t care about individual authors, they recognized that a culture hostile to free inquiry and the liberal circulation of ideas would align them with historic enemies like Spain and Portugal (both in serious decline) and at a disadvantage in relation to powers like France and Holland (both ascendent, scientifically savvy, leery of domination by clerics, with the latter home of the Dutch East India Company).

So yes, the Stationers may have clung to some of their power through all-too-familiar means to do so (“pity the artist!”). And yes, we’re still living with some of the myths they managed to invent. But on the other side of the coin, they were fighting a losing battle against a new kind of progress (scientific) which has also continued unabated, and which, 300 years later, is having the last laugh by decoupling matter and media for good.

It’s a total shitshow, as you recognize better than most. And there’s a lot of deliberate obfuscation as a result – which is why I think it’s unwise to gloss over the exact legal meaning of some of the debate’s most central terms. If the object of the game is to disentangle the myths that persist, then it seem important to note that copyright as property – and not simply assignable privilege – is a 19th Century invention.

Crosbie Fitch said 3447 days ago :

Alex, I’m not trying to belittle the difference between assignability and transferability per se. I’m only saying that quibbling about it may be interesting, but it does not invalidate my original article.

I made no claim regarding this aspect of copyright in the original article. It may well be an interesting historical detail, and I encourage readers to read up the history for such details.

You appear to be suggesting that I’ve made two historical errors. I don’t see that I’ve made any, but you may yet convince me otherwise.

Omitting what you regard as essential historical points may be an editorial shortcoming in your view, but I don’t believe this constitutes historical error on my part.

Do you disagree with any of the following:
1) 1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.
2) Copyright is a privilege enacted in the 18th century, and therefore can be described as an 18th century privilege.
3) Copyright is a transferable privilege and therefore can be described as a transferable 18th century privilege.

My use of ‘transferable’ is not to focus on the precise manner in which copyright is transferable or can be treated as a legal property, nor to imply that no legislative changes have occurred in its transferability/assignability since 1709.

I’m using ‘transferable’ to add weight to my point that natural rights are inalienable whereas privileges aren’t.
The inalienability of a natural right is a matter of natural law, not legislation. Legislation may stipulate that the holder of a privilege may neither assign nor transfer their privilege (as with droit de suite), but that doesn’t make the privilege an inalienable natural right.

Alex Bowles said 3442 days ago :

CF,

I disagree with all three points, though with some moreso than others.

More importantly, I see the general thrust of this argument – that the 1709 law represented a sudden and sweeping suspension of liberty – as very unsound. Far from being the regressive act that this framing suggests, I see it as a fundamentally liberal proposition, and one that paved the way for greater liberalization – even as it introduced elements that grew into barriers to that larger trend.

When it comes to successfully framing present-day issues (i.e. to do so in a way that persuades more people of copyright’s illiberality), it seems to be critically important that the larger trend be represented correctly.

In response to your specific points, consider the following.

1) When saying “1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.” You make no distinction between mechanical and non-mechanical copies.

With regard to non-mechanical copies (i.e. transcriptions by hand) I don’t believe the law said anything one way or the other. After all, the process is so labor intensive as to be irrelevant to the act of publishing in any conventional sense of the word.

And with regard to printed copies, the public’s right had been well and truly derogated long before 1709. That was the whole point of the printing guilds – not simply to extend monopoly powers over specific works, but to monopolize the very act of printing. That is to say, prior to 1709, it was illegal to simply own or operate a free press. Moreover, the law that was superseded in 1709 gave specific authority to members of the Stationers guild to hunt down and destroy presses that were not owned and operated by the guild. To suggest that this environment was one in which “individual’s natural right to make copies” was respected is – frankly, absurd. How can a person be ‘free’ to do something when possessing the means of doing that thing is a crime? That’s like saying you’re free to write what you like – just don’t make any use paper, pencil, or ink.

Of course, the ability of anyone to operate a press – even to publish the King James Bible – was, itself, a major liberalization. Prior to the Reformation, vernacular copies of the Bible had been outlawed, as had – at one point – the freedom to even read the Bible. Forget about physically copying (an inconceivable liberty) – simply going to existing sources to create a direct mental impression instead of relying on the interpretations of clergy was considered a no-go.

So sure, the ‘right’ to copy may have existed (indeed, it did, and was well exercised in any number of matters, from agriculture to military strategies). However, like any other human right now widely accepted today, it wasn’t recognized by the prevailing authorities – at least not with regard to printed materials. Indeed, the right to copy anything may not have been regarded as a right at all, and was instead considered (if considered at all) as something reflexive, like the ‘right’ to eat, sleep, or breathe. And again, acceptance of this reflexive freedom had never been extended to books.

So with regard to point 2, no – copyright – in the absolute sense – was not enacted in the 18th Century. Yes, the first example of a law that reflects aspects of our own may have been introduced in the 18th Century (which is why this is called the first modern copyright law), but copyright taken literally – which is to say, the right to make literary copies – was firmly restricted long before 1709.

The importance of the 1709 law (in my view, at least) is that it separated the act of making copies in general from the act of making particular copies. By severely limiting the power of the state to limit the production of copies in general, the market for the making of copies expanded dramatically. The fact that more individuals took advantage of the law’s monopoly protection did not mean that the scope of copyright law changed dramatically. After all, it only applied to books (which has always been subject to limitations) and it only applied for 14 years (a major reduction from the perpetual monopolies that existed prior t 1709).

What we now see at the major expansions didn’t take place until the next century, when the duration of the law’s protection was amplified, along with the number of expressive forms that it covered.

Your larger point, that no true right is transferable – is well taken. Once you adopt the basic view that the rights of man are intrinsic and inalienable, you understand that the definition of a right is something that cannot be granted by law – period. It can simply be recognized and protected. Obviously, something transferable fails this test immediately.

What I find interesting is that the original 1709 law was closer to this original sense of right, as opposed to its more modern incarnation as a simple privilege. Throughout the 18th Century, hiring a printer seems to have been more like hiring an accountant or a lawyer. That it to say, they were authorized to exercise your rights on your behalf, but at no point were they allowed to operate independently, or contrary to your interests.

But once copyright became fully transferable (as opposed to merely assignable), this limited relation between author and agent evaporated. Once a right has been given title and sold off, the author had no further claim whatsoever, and the owner of the right had no obligation outside of the agreement to pay. Of course, some countries accepted the idea of the author’s moral right – allowing them to renounce any work that was altered insufferably – but that didn’t become a universal convention. And again – all this happened in the 19th Century. Even if the seeds of this development were planted a century prior, I think it’s misleading to suggest that they attained their present form immediately, or that the authors of this law actively condoned an interpretation of their act that did not, in fact, develop for another 140 years.

So put simply, Queen Anne predated the idea of copyright as titled and fully transferable property by a long time. While the development of copyright as property may represent a fundamental injustice, it’s unfair to lay it at the feet of people who were dead well before its introduction.

The most important point of all is that recognizing the public’s right to copy is actually a very new development. Because is has – for economic reasons – been considered a privileged (in that very few were privileged enough to afford a press), we’ve not considered whether the act itself is a fundamental right.

Returning – again – to the notion of rights as intrinsic qualities of being human that can’t be granted by law, and can only be recognized by law, it’s only now – when the means to copy and distribute have become so advanced that these acts seem like walking or breathing – do we finally start to consider that, perhaps, we’ve been wrong to ever think of them as privileges. Only now is it dawning on many people that this has always been a fundamental right. For those who measure the progress of history by the extent to which governments first recognize, then accept, and finally protect these rights, the ability to use the internet in the most natural fashion becomes the vanguard of legal development.

My suspicion is that this is truly uncharted territory. Even if the 1709 law did establish the trajectory of current thinking, its grant of privileged hardly overturned a robust and well-established concept of right. To the contrary, recognition of the natural right to copy literary works was so anemic that only now – 300 years later – is is even beginning to be discussed seriously.

To that end, I think the most important step is the reflexive framing of copyright law as a matter of privilege, and not a true right – which cannot be transferred, and can only be limited in response to a specific criminal charge, and the due process of trial in an open court.

Crosbie Fitch said 3423 days ago :

You make many good points Alex, and I would have been more disposed to discuss them had they not been made in support of your claims of two historical errors on my part (of which I remain unconvinced).

I continue to see the three points I posed in my previous comment as correct. That you cannot agree with them helps explain your position that I have made historical errors.

Anyway, here’s another recent post you may be interested in concerning the Statute of Anne and the significance of 1709/10 in copyright’s history: Blawg Review #258

“Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we’ve come to know it.”



 

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