Happy Birthday, Statute of Anne

from the bitter-reminders dept

Early in my legal career I had the opportunity to attend a conference in London organized to celebrate the launch of the Copyright History project. The goal of this project was to translate, annotate, analyze, and even just simply make available the original primary source documents that underpin our modern notions of copyright. It is an important enterprise because all too often we forget just how these historical documents actually do underpin it. History is often like playing a giant game of "telephone," where meaning changes over time, and in the case of many of these documents our understanding of what they were telling us has also changed over time -- and often become distorted. Having access to these original primary source documents means that we can recalibrate our understanding of what these policies actually were intended to do in order to ensure that our modern notions of copyright echo them properly.

At its launch the project included primary source documents from five jurisdictions -- Britain, Germany, France, Italy, and the US (with others added later) -- and the collection now includes documents from 1450 through 1900. For the conference, some of those original documents were brought in by an archivist and displayed under glass for us to examine. One of them was the original parchment copy of Statute of Anne, which attendees of the conference -- including me -- had the privilege of getting to see up close with our own eyes.

The Statute of Anne, whose anniversary of coming into force on April 10, 1710 we celebrate today, is one of the founding pillars of modern US and UK copyright law. At the time of its passage it reflected an enormous change in attitude about how the copy right should be handled. Before it came along English law (which is not to be confused with Scottish law, whose own system already bore more features of what we would recognize as modern copyright law) granted a monopoly in the copy right to a handful of printers that had the king's permission to publish. (It was fitting, in fact, that the Copyright History conference itself took place in a hall of the Stationers’ Company, one of the most powerful companies of the 17th century that then had near-exclusive license to print.) This use of a royal printing license to create a monopoly in publishing limited to just these few printers gave the government the ability to also limit what ideas could be published, which necessarily limited discourse.

However, the political pressure for democratic reform eventually caught up with this system, and by 1695 it finally gave way for good. And that set the stage for the Statute of Anne to be enacted in 1710, which changed the approach to copyright entirely. While the Licensing Act of 1662 was “[a]n act for preventing the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets,” the Statute of Anne was purposefully “[a]n act for the encouragement of learning.” Whereas the former was about government control over ideas, the latter was about spreading them. Instead of using royal printing licenses to administer the copy right as a means of controlling discourse, by its very design the Statute of Anne was meant to stimulate it.

And it did. Right away newspapers proliferated, public houses exploded with popularity (as they had during earlier periods when licensing statutes had lapsed), and democratic ideals flourished as tight government control over ideas yielded. But while the structure of modern copyright law today looks much as it did following the Statute of Anne, its limiting effects on discourse now seem more similar to the period that preceded it.

There were a few other key differences between the Statute of Anne and the licensing statutes before it, beyond just their stated policy goals, which bore on the former's ability to stimulate discourse. For instance, the Statute of Anne fundamentally shifted the role of the author. Before the Statute, authors were largely relegated to subordinate figures, barely mentioned in association with the work. Instead full authority for the work was usurped by the printer, who, as an agent licensed to act on behalf of the government, had the sole discretion to deem it acceptable to be published. With the Statute of Anne, however, authors became central to the whole system. They retained full authority for the work and as such retained the rights to control its publication.

These rights were of limited duration, however, and the Statute of Anne further enhanced public discourse by creating a public domain. In fact, the only reason the Statute of Anne gave authors any limited rights was simply to address the problem of market failure. The fear was that no ideas would be contributed to public discourse at all if it were economically impossible for authors to contribute them. With the goal of the Statute being to get those ideas out there, these limited author monopolies were intended as a means for achieving that end.

Unfortunately, however, while in the early 18th century the focus on protecting and enhancing the rights of authors was intended to facilitate the growth of public discourse around those ideas, today that same focus on authors' rights does the exact opposite. With so much emphasis now being put on the rights of the author as owner of the work to control it, at the expense of the public benefit the system is supposed to impart, it has had the effect of choking off what discourse these works might spawn. Through needlessly lengthy monopolies and overly-expansive interpretations of the reach of these rights, history seems to be repeating itself, returning us to the discourse-choking limitations of the licensing era and forsaking the promise of the Statute of Anne to promote its spread.

For, just like the 17th Century printers, these authors’ copy rights get their teeth from government. They are government-granted monopolies with government-sanctioned reaches. With those rights, and with the government’s blessing, authors can limit ideas’ consumption and dampen their reach and influence long after any economic necessity would justify -- and just as the licensed printers once did. Back then the Stationers’ Company had powers of search and seizure and could prosecute competing printers; today, particularly as copyrights are so often aggregated in the hands of a few large corporate gatekeepers, modern infringement lawsuits look much the same.

So we find ourselves at the turn of the 21st century at the same crossroads we were at 300 years earlier, faced with a choice in how we use government power. Do we use it to enable public discourse, or to stifle it? For although our modern copyright systems trace their lineage back to the author-focused structure of the Statute of Anne, that basic structure alone does not determine which value is fostered. It’s how we implement it that matters to which ultimately survives.

Yet unfortunately, today, while the original document articulating that policy value to promote the spread of ideas has been carefully preserved, thanks to how we've enshrined the notion of copyright in our modern law, the historic change it was to herald has not.

Filed Under: authors, copyright, printers, publishers, statute of anne

RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation

from the must-pay-well dept

Over the last week or so, I've seen a number of folks in the usual crowd of copyright maximalists cheering on a new "paper" put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the "constitutional and historical foundations of copyright protection." The "paper" (and I use that term loosely) itself does no such thing. It's a one-sided polemic about why copyright is property -- argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers... who admit that they work for the RIAA. The basic argument is that copyright is a "natural right," and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.

To do this, the authors rely, almost exclusively, on some arguments that John Locke made. This is the go to move of copyright maximalists. Because John Locke argued that property rights were established as a result of one's labor, and thus a "natural right", and some of the founders were influenced by John Locke, voila, copyright was meant to be given as a natural right. As the paper notes:

The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor. When an individual catches a fish in a stream, he has a right to keep that fish because but-for his efforts, the fish would not have been caught. For the same reason, an author has a right to his works because his efforts made the work possible. Under Locke’s view, "[o]ur handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."

That is, "a person rightly claims ownership in her works to the extent that her labor resulted in their existence." If anything, under Locke's theory, intellectual property should be even more worthy of protection than physical property. Land and natural resources are pre-existing and finite, and one person's acquisition of a piece of tangible property may reduce the "common" that is available to others. Not so with tangible expressions: the field of creative works is infinite, and one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by providing inspiration to others. Moreover, while tangible property such as land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is essentially the "propertization of talent"--that is, "a reward, an empowering instrument, for the talented upstarts" in a society.

Nearly all of this is misleading or out of context. Or just wrong. The idea that Locke was arguing that mere labor alone creates a property right is just silly. As Stephan Kinsella pointed out years ago, this argument makes little sense the more you think about it, as Kinsella demonstrates by talking about who owns a loaf of bread:

But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.

Creation is not sufficient for ownership. That should be obvious, but for some reason the paper assumes that it must be so.

Oh, and Locke actually had much more mixed feelings on copyright. As some have pointed out, back in Locke's time, there was the precursor to copyright, known as The Stationers' Company monopoly, which more or less later morphed into the Statute of Anne (the basis for much of modern copyright). Locke's opinion on the Stationer's Company Monopoly? Not good at all. He argued vehemently against it, and is widely credited by some for it not being renewed. While he did support some of the ideas that were discussed for the eventual Statute of Anne, many of his ideas were actually rejected when that bill came around. As has been noted elsewhere, the Parliament explicitly rejected an earlier version of the Statute of Anne that referred to it as a property right (which also made it unlimited), completely changing the text to note that it was for the promotion of learning.

The central plank of the 1710 Act was then, and remains, a cultural quid pro quo. Parliament, to encourage "learned Men to compose and write useful Books", provided a guaranteed, if finite, right to print and reprint those works so composed. The legislators were not concerned with the recognition of any pre-existing authorial right, nor were they solely interested in the regulation of the bookseller's market.

And yet, the RIAA laywers make a big stink about Locke's impact on the Statute of Anne. They ignore that many of his ideas were rejected by Parliament, and instead pretend that he more or less wrote the damn thing.

In the 1690s, Parliament refused to renew the Stationers’ Company’s printing monopoly, and authors and booksellers in the newly competitive industry began pressing for formal protection for their works. Although he strongly opposed the Stationers’ Company’s monopoly, John Locke himself described literary publications as “property” and argued in a 1694 letter to Parliament that formal publishing rights should last for the life of the author plus seventy years.

In 1710, Parliament enacted the Statute of Anne, which formally granted authors of existing works a 21-year exclusive publication right and authors of new works a renewable 14-year exclusive right.

Yes, because during the debate over what to do about this, Locke referred to publishing rights (not copyright, by the way) as property, these lawyers claim it was a key basis for copyright. Except... they leave out the part where Parliament rejected most of Locke's suggestions and went in a different direction. It's the details like this that matter.

Furthermore, much of the argument in the paper is that Locke believe copyright is some sort of "natural right," rather than a utilitarian issue (i.e., for the betterment of society). And yet, when you look at all of Locke's comments on the matter, even when he's making what appears to be a natural rights argument, it's really a utilitarian argument in disguise. The RIAA lawyers accidentally make that very point when they argue that Locke would have supported copyright more than traditional property (while ignoring the fact that he quite obviously did not) because it would "increase the pie." But, of course, increasing the pie is a utilitarian argument. Which is exactly what Locke was making when it came to such works, contrary to the claims of the authors of the paper.

The paper then makes the further leap that since the US's Copyright Clause had similarities to the Statute of Anne, that the founders also believed wholeheartedly in the (already not really accurate) idea that he thought copyright was property. Derek Bambauer, in talking about just how inaccurate and ridiculous the RIAA paper is, reminds us of Dotan Oliar's incredibly detailed paper on the origins of the US Copyright Clause, which should be required reading for anyone arguing about this clause and what it actually means. As that paper shows in much more detail than anything the RIAA lawyers wrote, the RIAA's claims are, well, bunk. Oliar looks at the historical record of the various proposals put forth for the copyright clause, and notes that Congress explicitly rejected the ones that were more based on a "natural rights" or "property rights" view, and like the English Parliament before them, chose instead to support a limited bill for the purpose of promoting progress, rather than any sort of property right.

Specifically, the study of the Convention’s record provides three indications that the Framers intended the Progress Clause as a limitation on Congress’s intellectual property power. First, Madison and Pinckney’s initial proposals to vest patent and copyright powers in Congress were plenary and did not include language relating to the promotion of progress in science and useful arts. Had the Framers been content with such plenary patent and copyright powers, they would have likely adopted them as proposed. The Framers’ choice not to adopt the plenary proposals, but rather to subject their exercise to specific ends, tends to prove that the Progress Clause was added as a limitation.

That paper, unlike the RIAA paper, is quite detailed and thorough (and actually acknowledges the views of those who have argued otherwise, before explaining why the evidence suggests they're wrong). Reading through the details there, you're left with a pretty convincing case that the majority of framers of the Constitution were not looking to secure some sort of "natural right" or "property right," but to explicitly to use the "promote the progress" clause to limit Congress' ability to do damage with copyrights and patents. Yes, there were some who viewed copyright as a natural rights issue, but it is clearly not the majority, or else they wouldn't have rejected putting such language forward. Besides, the fact that in a large group of politicians, you can find a few to make a crazy argument does not mean that the entire body agreed with those views. Can you imagine what these lawyers must think of Congress? One Rep suggests raising taxes and they must think that, clearly, the entire country supports raising taxes. Because that seems to be the only way their argument in this paper makes any sense.

The RIAA paper also brings up the UN's declaration on human rights, arguing that its Article 27 shows that it is a widespread belief that copyright is a natural property right. Except, as we've discussed in great detail, this is not what the declaration on human rights actually says. Not only does that same clause argue that "everyone has the right to freely participate in the cultural life of the community, to enjoy the arts," but official commentary and associated declarations also, explicitly, note that the rights being discussed do not equate to copyright and should not be equated with copyright. Not surprisingly, the RIAA paper ignores all of that.

It also ignores some key US cases, which flatly reject this idea, including the 1834 decision in Wheaton v. Peters -- considered the first real copyright case in the Supreme Court, in which the Supreme Court comes down pretty firmly against the idea of copyright as a natural right, and establishes that it is a creature purely of statute. In fact, the court there refers back to the Statute of Anne as well, and notes that there, too, they have rejected the natural rights argument for copyright.

No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of Anne was passed in 1710.

The court then went much further in noting that the Constitution explicitly presents limits on copyright, and there is no evidence that it was establishing the recognition of a natural right:

That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.

Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.

This case is widely known to copyright scholars. It seems rather stunning that these RIAA lawyers (or the CFIF, which published the paper) would be ignorant of it. Thus, it's not difficult to conclude from all of this that the authors of the paper did not undertake a scholarly look at whether or not copyright was long viewed as a natural right and thus, as property, but rather that they cherry picked a few quotes out of context, and then pretended those quotes had much more impact than they really did.

Filed Under: copyright clause, history, john locke, natural rights, statute of anne, utilitarian
Companies: riaa