History of copyright

The history of copyright starts with early privileges and monopolies granted to printers of books. The British Statute of Anne 1710, 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 the first copyright statute. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright and copyright now covers a wide range of works, including maps, performances, paintings, photographs, sound recordings, motion pictures and computer programs.

Today national copyright laws have been standardised to some extent through international and regional agreements such as the Berne Convention and the European copyright directives. Although there are consistencies among nations' copyright laws, each jurisdiction has separate and distinct laws and regulations about copyright. Some jurisdictions also recognize moral rights of creators, such as the right to be credited for the work.

Copyrights are exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.

Early developments

thumb|upright=2|European output of books before the advent of copyright, 500s to 1700s. Blue shows printed books. [[Log-lin plot; a straight line therefore shows an exponential increase.]]

A possible historical case-law on the right to copy comes from ancient Ireland. The Cathach is the oldest extant Irish manuscript of the Psalter and the earliest example of Irish writing. It contains a Vulgate version of Psalms XXX (30) to CV (105) with an interpretative rubric or heading before each psalm. It is traditionally ascribed to Saint Columba as the copy, made at night in haste by a miraculous light, of a Psalter lent to Columba by St. Finnian. In the 6th century, a dispute arose about the ownership of the copy and King Diarmait Mac Cerbhaill gave the judgement "To every cow belongs her calf, therefore to every book belongs its copy." The Battle of Cúl Dreimhne was said to be fought over this issue. However, the account of the dispute over the Cathach copy comes from a significantly later source and its validity has been questioned.

Modern copyright law has been influenced by an array of older legal rights that have been recognized throughout history, including the moral rights of the author who created a work, the economic rights of a benefactor who paid to have a copy made, the property rights of the individual owner of a copy, and a sovereign's right to censor and to regulate the printing industry. The origins of some of these rights can be traced back to ancient Greek culture, ancient Jewish law, and ancient Roman law. In Greek society, during the sixth century B.C.E., there emerged the notion of the individual self, including personal ideals, ambition, and creativity. The individual self is important in copyright because it distinguishes the creativity produced by an individual from the rest of society. In ancient Jewish Talmudic law there can be found recognition of the moral rights of the author and the economic or property rights of an author.

Prior to the invention of movable type in the West in the mid-15th century, texts were copied by hand and the small number of texts generated few occasions for these rights to be tested. During the Roman Empire, a period of prosperous book trade, no copyright or similar regulations existed, and copying by those other than professional booksellers was rare. This is because books were, typically, copied by literate slaves, who were expensive to buy and maintain. Thus, any copier would have had to pay much the same expense as a professional publisher. Roman book sellers would sometimes pay a well-regarded author for first access to a text for copying, but they had no exclusive rights to a work and authors were not normally paid anything for their work. Martial, in his Epigrams, complains about receiving no profit despite the popularity of his poetry throughout the Roman Empire. As there was initially no copyright law, anyone could buy or rent a press and print any text. Popular new works were immediately re-set and re-published by competitors, so printers needed a constant stream of new material. Fees paid to authors for new works were high, and significantly supplemented the incomes of many academics. Prices of reprints were low, so publications could be bought by poorer people, creating a mass-market readership. Heinrich Heine, in a 1854 letter to his publisher, complains: "Due to the tremendously high prices you have established, I will hardly see a second edition of the book anytime soon. But you must set lower prices, dear Campe, for otherwise I really don't see why I was so lenient with my material interests." Before the invention of the printing press, a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying by scribes. An elaborate system of censorship and control over scribes did not exist, as scribes were scattered and worked on single manuscripts. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture). The second author in the world to achieve copyright, Royal printing privileges, was the humanist and grammarian Antonio de Nebrija, in Lexicon hoc est Dictionarium ex sermone latino in hispaniensem (Salamanca, 1492).

From 1492 onwards Venice began regularly granting privileges for books. The Republic of Venice, the dukes of Florence, and Leo X and other Popes conceded at different times to certain printers the exclusive privilege of printing for specific terms (rarely exceeding 14 years) editions of classic authors.

The first copyright privilege in England bears date 1518 and was issued to Richard Pynson, King's Printer, the successor to William Caxton. The privilege gives a monopoly for the term of two years. The date is 15 years later than that of the first privilege issued in France. Early copyright privileges were called "monopolies," particularly during the reign of Queen Elizabeth, who frequently gave grants of monopolies in articles of common use, such as salt, leather, coal, soap, cards, beer, and wine. The practice was continued until the Statute of Monopolies was enacted in 1623, ending most monopolies, with certain exceptions, such as patents; after 1623, grants of letters patent to publishers became common.

The earliest German privilege of which there is trustworthy record was issued in 1501 by the Aulic Council to an association entitled the Sodalitas Rhenana Celtica, for the publication of an edition of the dramas of Hroswitha of Gandersheim, which had been prepared for the press by Conrad Celtes

. According to historian Eckhard Höffner indicated that there was no effective copyright legislation in Germany in the early 19th century.

thumb|left|150px|First page of [[John Milton's 1644 edition of Areopagitica, in it he argued forcefully against the Licensing Order of 1643.]]

As the "menace" of printing spread, governments established centralized control mechanisms, and in 1557 the English Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses. The French crown also repressed printing, and printer Etienne Dolet was burned at the stake in 1546. As the English took control of type founding in 1637, printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, and 800 authors, printers and book dealers were incarcerated in the Bastille before it was stormed in 1789.

Early British copyright law

thumb|250px|The [[Statute of Anne came into force in 1710.]]

In England the printers, known as stationers, formed a collective organisation, known as the Stationers' Company. In the 16th century, the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers' Company could enter books into the register. This meant that the Stationers' Company achieved a dominant position over publishing in 17th-century England (no equivalent arrangement formed in Scotland and Ireland).

The monopoly came to an end in 1695, when the English Parliament did not renew the Stationers' Company's power. The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works. It established a pragmatic bargain involving authors, the booksellers and the public. The Statute of Anne ended the old system whereby only literature that met the censorship standards administered by the booksellers could appear in print. The statute furthermore created a public domain for literature, as previously all literature belonged to the booksellers forever.

According to Patterson and Lindberg, the Statute of Anne:

Common law copyright

A debate raged on whether printed ideas could be owned and London booksellers and other supporters of perpetual copyright argued that without it scholarship would cease to exist and that authors would have no incentive to continue creating works of enduring value if they could not bequeath the property rights to their descendants. Opponents of perpetual copyright argued that it amounted to a monopoly, which inflated the price of books, making them less affordable and therefore prevented the spread of the Enlightenment. London booksellers were attacked for using rights of authors to mask their greed and self-interest in controlling the book trade. When Donaldson v Beckett reached the House of Lords in 1774, Lord Camden was most strident in his rejection of common law copyright, warning the Lords that, should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover, he warned, booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "Knowledge and science are not things to be bound in such cobweb chains."

In its ruling, the House of Lords established that the rights and responsibilities in copyright were determined by legislation. There is, however, still disagreement over whether the House of Lords affirmed the existence of common-law copyright before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly decided against perpetual copyright and, by confirming that the copyright term (the length of time that a work is in copyright) did expire according to statute, the Lords also affirmed the public domain. The ruling in Donaldson v Beckett confirmed that a large number of works and books first published in Britain were in the public domain, either because the copyright term granted by statute had expired or because they were first published before the Statute of Anne was enacted in 1710. This opened the market for cheap reprints of works by Shakespeare, Milton and Chaucer, works now considered classics. The expansion of the public domain in books broke the dominance of the London booksellers and allowed for competition, with the number of London booksellers and publishers rising nearly threefold, from 111 to 308, between 1772 and 1802.

Eventually an understanding was established whereby authors had a pre-existing common-law copyright over their work, but that with the Statute of Anne parliament had limited these rights in order to strike a more appropriate balance between the interests of the author and the wider social good. According to Patterson and Livingston, confusion about the nature of copyright has remained ever since. Copyright has come to be viewed both as a natural-law right of the author and as the statutory grant of a limited monopoly. One theory holds that copyright is created simply by the creation of a work, the other that it is owed to a copyright statute.

In August 1906, The Copyright Law for Music Act 1906, known also as the T. P. O'Connor Bill, was added to copyright law when it was passed by the British Parliament, following many of the popular music writers at the time dying in poverty due to extensive piracy by gangs during the piracy crisis of sheet music in the early 20th century. The gangs would buy a copy of the music at full price, copy it, and resell it, often at half the price from the original.

Early French copyright law

thumb|1652 example

In pre-revolutionary France all books needed to be approved by official censors and authors and publishers had to obtain a royal privilege before a book could be published. Royal privileges were exclusive and usually granted for six years, with the possibility of renewal. Over time it was established that the owner of a royal privilege has the sole right to obtain a renewal indefinitely. In 1761 the Royal Council awarded a royal privilege to the heirs of an author rather than the author's publisher, sparking a national debate on the nature of literary property similar to that taking place in Britain during the battle of the booksellers.

In 1777 a series of royal decrees reformed the royal privileges. The duration of privileges were set at a minimum duration of 10 years or the life of the author, which ever was longer. If the author obtained a privilege and did not transfer or sell it on, he could publish and sell copies of the book himself, and pass the privilege on to his heirs, who enjoyed an exclusive right into perpetuity. If the privilege was sold to a publisher, the exclusive right would only last the specified duration. The royal decrees prohibited the renewal of privileges and once the privilege had expired anyone could obtain a "permission simple" to print or sell copies of the work. Hence the public domain in books whose privilege had expired was expressly recognised. Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute. Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen-year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.

At the Philadelphia Convention in 1787, both James Madison of Virginia and Charles Cotesworth Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which allows the granting of copyright and patents for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act was the Copyright Act of 1790. It granted copyright for a term of 14 years "from the time of recording the title thereof" with a right of renewal for another 14 years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. Only works both printed within the United States and created by citizens were eligible. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.

Another core feature is the establishment of minimum standards of national copyright legislation in that each member state agrees to certain basic rules which their national laws must contain. Though member states can if they wish increase the amount of protection given to copyright owners. One important minimum rule was that the term of copyright was to be a minimum of the author's lifetime plus 50 years. Another important minimum rule established by the Berne Convention is that copyright arises with the creation of a work and does not depend upon any formality such as a system of public registration (Article 5(2)). At the time some countries did require registration of copyright, and when Britain implemented the Berne Convention in the Copyright Act 1911 (1 & 2 Geo. 5. c. 46) it had to abolish its system of registration at Stationers' Hall. have argued that the Internet deeply undermines the economic rationale for copyright in the first place. These perspectives may lead to the consideration of alternative compensation systems in place of exclusive rights for all types of information, including software, books, movies, and music.

Expansions in scope and operation

Move from common law and ad hoc grants of monopoly to copyright statutes.
Expansions in subject matter (largely related to technology).
Expansions on duration.
Creation of new exclusive rights (such as performers' and other neighbouring rights).
Creation of collecting societies.
Criminalisation of copyright infringement.
Creation of anti-circumvention laws.
Courts' application of secondary liability doctrines to cover file sharing networks

References

External links

Primary Sources on Copyright (1450–1900) <small>(British, French, German, Italian, US documents)</small>
International Copyright and Neighbouring Rights: The Berne Convention and Beyond Companion website with historical documents related to international copyright