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Introduction to Intellectual Property

3.2 Early Copyright Systems

Introduction to Intellectual Property3.2 Early Copyright Systems
  1. Preface and Foreword
  2. 1 Patent Basics
    1. Introduction
    2. 1.1 The Foundations of Patent Protection
    3. 1.2 The Weakness of Early Patent Systems
    4. 1.3 America’s Uniquely Democratic Patent System
    5. 1.4 The Role of the U.S. Legal System
    6. 1.5 What the U.S. Patent System Wrought
    7. 1.6 Patent-Eligible Inventions
    8. 1.7 Criteria for Patenting
    9. 1.8 Other Types of Patents
    10. 1.9 The Patenting Process
    11. Assessment Questions
  3. 2 Patent Enforcement
    1. Introduction
    2. 2.1 The Right to Enforce Patents
    3. 2.2 Deciding Whether and How to Enforce a Patent
    4. 2.3 Patent Litigation
    5. 2.4 Getting Started
    6. 2.5 Pretrial Procedures
    7. 2.6 Trial
    8. 2.7 Post-Trial Procedures
    9. 2.8 Appeals
    10. 2.9 Litigation Alternatives
    11. 2.10 Patent Trolls and Efforts to Thwart Them
    12. Assessment Questions
  4. 3 Copyright Basics
    1. Introduction
    2. 3.1 The Basics of Copyright
    3. 3.2 Early Copyright Systems
    4. 3.3 Copyright in America
    5. 3.4 Eligible Works
    6. 3.5 Rights and Term
    7. 3.6 Infringement and Remedies
    8. 3.7 The Fair Use Defense
    9. 3.8 Changes in Copyright Law
    10. 3.9 New Technology Challenges to Copyright
    11. 3.10 Alternative Forms of Copyright
    12. 3.11 Copyright in a Changing World
    13. Assessment Questions
  5. 4 Trademark Basics
    1. Introduction
    2. 4.1 Core Concepts
    3. 4.2 Early Trademark Systems
    4. 4.3 U.S. Trademark Law
    5. 4.4 The Four Types of Trademarks
    6. 4.5 The Subject Matter of Trademarks
    7. 4.6 The Spectrum of Distinctiveness
    8. 4.7 Bars to Trademark
    9. 4.8 Establishing Trademark Protection
    10. 4.9 Trademark Infringement
    11. 4.10 Trademark Remedies
    12. 4.11 Fair Use of Trademarks
    13. Assessment Questions
  6. 5 Trade Secret Basics
    1. Introduction
    2. 5.1 Trade Secret Protection
    3. 5.2 The Foundations of Trade Secrets Law
    4. 5.3 Elements of a Trade Secret
    5. 5.4 The Secrecy Requirement
    6. 5.5 Misappropriation of Trade Secrets
    7. 5.6 Remedies Available for the Misappropriation of Trade Secrets
    8. Assessment Questions
  7. A | Glossary
  8. Answer Key
    1. Chapter 1
    2. Chapter 2
    3. Chapter 3
    4. Chapter 4
    5. Chapter 5
  9. Index

Learning Objectives

After completing this section, you will be able to

  • Understand the role early copyright systems played in enforcing monopolies.
  • Appreciate the degree to which authors’ rights were ignored at that time.

As was the case with patents, the granting of book privileges (now called copyrights) began in the Republic of Venice in the fifteenth century. Prior to that, printed books were considered part of the public domain and anyone could copy or reproduce them. But in 1492—the same year Columbus sailed the Santa Maria to the New World—a Milanese author named Donatus Bossius petitioned the sixth duke of Milan, Gian Galeazzo Sforza, for an exclusive privilege for his book, arguing that without such a privilege he would be unjustly deprived of the fruit of his effort. He was granted a ten-year privilege, and the practice soon spread throughout Europe.

The French copyright system was introduced in 1498. Exclusive rights to not only books but also translations, maps, type designs, engravings, and artwork were granted by the monarch for periods initially ranging from two to ten years. There were stipulations attached to such grants, sometimes including even price controls on the published works.

It is important to realize, however, that authorship was not required for the granting of early copyrights. In fact, the early copyright systems of Europe more often than not enabled printers and publishers to establish quite effective monopolies over the commerce in books, the arts, and other cultural works that limited the diffusion of culture in society. The owners of such privileges may have waxed poetic about “droit d’auteur” (authors’ rights), but this was often just a way of deflecting public criticism of their monopolistic power and superprofits.

Indeed, this was most glaringly revealed in the grant of exclusive privileges to French opera. According to a 1929 book by Henry Prunières,iv Louis XIV in 1669 granted a perpetual monopoly over all operatic performances in France to Jean-Baptiste Lully, the director of the Paris Opera. Lully also gained sole publication rights to opera librettos, and sold shares in the rights to printers. He then used his copyright privilege to limit the number of musicians who could perform outside the Paris Opera and to suppress competitors like the Comédie Francaise. In the end, Lully became fabulously rich and bequeathed his monopoly rights to his heirs.

Not exactly your starving artist asking merely to enjoy the fruits of his work.

Early copyright systems also quickly evolved into means of censorship and surveillance of the population’s reading habits. The 1566 Edict of Moulins in France, for example, required that any new book had to be approved and licensed by the Crown. Manuscripts first had to be read and approved by a censor before a permit was granted to print a book. The permit could be revoked if officials or influential citizens later complained about the book’s content.

A picture of the Marble Court in the Versailles Palace in France.
Figure 3.4 The Marble Court. Versailles Palace, France. (credit: photograph by Kimberly Vardeman via flikr / CC BY 2.0)

Interestingly, a decree in 1777 enabled authors who did not sell off their rights to gain a copyright in perpetuity. But like the A.J. Liebling quote about freedom of the press belonging only to those with enough wealth to own one, so, too, were authors’ inalienable rights often just a lofty theory trumped by harsh economic reality. Because few authors had the capital required to print a book, they usually sold off their “exclusive rights” to commercial publishers.

Much the same situation prevailed in the English copyright system, where copyright law began as a monopoly grant to benefit favored guilds and as a means to censor public opinion on behalf of the Crown.

The Statute of Anne

In 1557, the Worshipful Company of Stationers was granted a royal privilege that enabled it to control the book trade for the next 150 years. Only in 1709 did a new copyright statute, the Statute of Anne, begin to erode the monopolistic power of the Stationers Company. It stipulated that a copyright could be obtained by anyone, and instead of a perpetual right, the term was limited to 14 years with the right to renew for one additional 14-year term. According to Professor John Feather of Loughborough University in Britain, the statute “wholly ignored the authors of books, and certainly was not intended to confer any additional rights on them.”v

Assessing early European copyright systems as a whole, Zorina Khan observes that they “resulted in ‘odious monopolies,’ higher prices and greater scarcity, large transfers [of money] to officials of the Crown and their allies, and pervasive censorship [while it also] disadvantaged smaller book producers, provincial publishers, and the academic and broader community.”vi

It wasn’t until 1774 in England, in the landmark case Donaldson v. Beckett, that a court ruled that authors have a fundamental right to their writings—at least until publication, after which the Statute of Anne still gave the rights to the publishers. The immediate claim in the case was whether Scottish bookseller Alexander Donaldson had acted as a pirate when he published an edition of James Thomson’s The Seasons, a work for which Thomas Beckett and other London booksellers claimed the copyright. But the larger principle at issue was whether copyright was a limited right granted by government under the Statute of Anne, or a common law right of publishers that existed in perpetuity despite the limitations of the statute.

The case would prove pivotal in deciding not only the future of publishing, but also of authors, in whose name the London publishers claimed to be acting. The court took the claim of authors’ rights further than the publishers ever intended, however. It reaffirmed the limited statutory nature of copyright and also recognized that authors—with the decline of patronage, authors were only then emerging as independent professionals writing for a mass market of book buyers—were the true originators and proprietors of the product of their own creative labors.

The title page of a book or pamphlet containing the poem The Seasons by James Thomson. The title and author appear on the right-hand page, and on the left there is a drawing of a well-dressed person reading under a tree in a field.
Figure 3.5 Photograph of Frontispiece – The Seasons by James Thomson Published by Alexander Donaldson. This work is published from the United States. (credit: Wikimedia Commons / Public Domain)

As Michel Foucault would put it nearly two centuries later,

“The coming into being of the notion of ‘author’ constitutes the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy, and science.”

In the century after Donaldson v. Beckett, European copyright systems expanded to include sheet music, maps, design, sculpture, and even lectures. The doctrines of “work for hire” and “fair use” would emerge (more on these later), but the law would still remain largely arbitrary, confused, and frequently injurious to the public until late in the nineteenth century.

However, the process of transforming copyright from a scheme of monopoly privileges for publishers into a property right for the actual creators of cultural works had begun.

Footnotes

  • iv Henry Prunières, “La vie illustre et libertine de Jean-Baptiste Lully,” Librairie Plon, Paris, 1929, courtesy of B. Zorina Khan.
  • v John Feather, “Publishing, Piracy, and Politics: An Historical Study of Copyright in Britain,” Mansell, New York, 1994, courtesy of Khan.
  • vi Op. cit., Khan.
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