History of copyright law
Encyclopedia
The history of copyright law starts with early privileges and monopolies granted to printers
of books. The British Statute of Anne
1709, 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 work
s were made subject to copyright and copyright now covers a wide range of works, including map
s, performance
s, painting
s, photograph
s, sound recordings, motion pictures
and computer program
s.
Today national copyright laws have been standardized 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.
Copyright
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.
. 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 (10) to CV (13) 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. 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.
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 sixth century B.C. Greek society 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, 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.
, 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
existed. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture
). Pope Alexander VI
issued a bull
in 1501 against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.
In Europe printing
was invented and widely established in the 15th and 16th centuries. While governments and church encouraged printing in many ways, which allowed the dissemination of Bible
s and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing.
The republic of Venice
granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the 'Rerum venetarum ab urbe condita opus' of Marcus Antonius Coccius Sabellicus
". From 1492 onwards Venice began to 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 Konrad Keltes. In 1512 an Imperial privilege was issued to the historiographer John Stadius for all that he should print, the first European privilege which was made to cover more than a single work, or undertaking to protect books not yet published. In 1794 legislation was enacted in the Prussian Parliament which was accepted by the other states of Germany
(except Württemberg
and Mecklenburg
), under which all German authors, and foreign authors whose works were represented by publishers taking part in the book fairs in Frankfurt
and Leipzig
, were to be protected throughout the states of Germany against unauthorized reprints.
As the "menace" of printing spread, governments established centralized control mechanisms, and in 1557 the British 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 British 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. The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing
and the press
. The Areopagitica
, published in 1644 under the full title Areopagitica: A speech of Mr. John Milton for the liberty of unlicensed printing to the Parliament of England, was John Milton
's response to the British parliament re-introducing government licensing of printers, hence publishers. In doing so Milton articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favour of tolerance for a wide range of views.
In 1707 the parliaments of England and Scotland were united as a result of the Anglo-Scottish Union. The new parliament was able to change the laws in both countries and an important early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne
, after Queen Anne
. The act came into force in 1710 and was the first copyright statute. Its full title was "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".
The coming into force of the Statute of Anne in April 1710 marked a historic moment in the development of copyright law. As the world's first copyright statute it granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print. 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:
When the statutory copyright term
provided for by the Statute of Anne began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunction
s from the Court of Chancery
for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743–1748), the London booksellers turned to common law
and starting a 30-year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright
existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749–1751) and Tonson v. Collins (1761–1762).
, 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 the 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 that 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 copyright was a "creature of statute", and 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 voted against perpetual copyright and by confirming that the copyright term
, that is the length of time of work is in copyright, did expire according to statute the Lords also affirmed the public domain
. The Donaldson v Beckett ruling 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 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton
and Geoffrey 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 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 natural 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 there remains confusion about the nature of copyright 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's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute.
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 degrees 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.
After the French Revolution
a dispute over Comédie-Française
being granted the exclusive right to the public performance of all dramatic works erupted and in 1791 the National Assembly
abolished the privilege. Anyone was allowed to establish a public theatre and the National Assembly declared that the works of any author who had died more than five years ago were public property
. In the same degree the National Assembly granted authors the exclusive right to authorise the public performance of their works during their lifetime, and extended that right to the authors' heirs and assignees for five years after the author's death. The National Assembly took the view that a published work was by its nature a public property, and that an author's rights are recognised as an exception to this principle, to compensate an author for his work.
In 1793 a new law was passed giving authors, composers, and artists the exclusive right to sell and distribute their works, and the right was extended to their heirs and assigns for 10 years after the author's death. The National Assembly placed this law firmly on a natural right footing, calling the law the "Declaration of the Rights of Genius" and so evoking the famous Declaration of the Rights of Man and of the Citizen
. However, author's rights were subject to the condition of making depositing copies of the work with the Bibliothèque Nationale and 19th Century commentators characterised the 1793 law as utilitarian and "a charitable grant from society".
The Statute of Anne
did not apply to the American colonies. The economy of early America
was largely agrarian and only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress
"that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tends to encourage genius and to promote useful discoveries." But under the Articles of Confederation
, the Continental Congress had no authority to enact copyright law. The Continental Congress did passed a resolution
urging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years. 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 patent
s 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. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne
.
At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain
. In 1834 the Supreme Court
ruled in Wheaton v. Peters
(a case similar to the 1774 case of Donaldson v Beckett in Britain) that although the author of an unpublished work had a common law right
to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.
was first established in 1886, and was subsequently re-negotiated in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris). The convention relates to literary and artistic works, which includes films, and the convention requires its member states to provide protection for every production in the literary, scientific and artistic domain. The Berne Convention has a number of core features, including the principle of national treatment, which holds that each member state to the Convention would give citizens of other member states the same rights of copyright that it gave to its own citizens (Article 3-5).
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
it had to abolish its system of registration at Stationers' Hall.
The Berne Convention focuses on authors as the key figure in copyright law and the stated purpose of the convention is "the protection of the rights of authors in their literary and artistic works" (Article 1), rather than the protection of publishers and other actors in the process of disseminating works to the public. In the 1928 revision the concept of moral rights was introduced (Article 10bis), giving authors the right to be identified as a such and to object to derogatory treatment of their works. These rights, unlike economic rights such as preventing reproduction, could not be transferred to others.
The Berne Convention also enshrined limitations and exceptions to copyright
, enabling the reproduction of literary and artistic works without the copyright owners prior permission. The detail of these exceptions was left to national copyright legislation, but the guiding principle is stated in Article 9 of the convention. The so called three-step test
holds that an exception is only permitted "in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author". Free use of copyrighted work is expressly permitted in the case of quotations from lawfully published works, illustration for teaching purposes, and news reporting (Article 10).
governments have viewed copyright as a welfare or support mechanism for artists, instead of (or in addition to) a legal right. These ideas probably found their strongest expression in Scandinavia
n law.
The Eastern European communist state
s professed to employ socialist principles in rewarding their artists and authors, but the reality of their copyright systems was deeply entangled with censorship
and state
control of culture. Cultural workers in the Soviet Union
did well if they could employ "blat
" to their advantage and convince the right party
officials to favour their work.
The Soviet Union did have a number of interactions with the international copyright
system:
Commentators such as Barlow (1994) have argued that digital copyright is fundamentally different and will remain persistently difficult to enforce; others such as Stallman
(1996) 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 system
s in place of exclusive rights for all types of information, including software, books, movies, and music.
Printing
Printing is a process for reproducing text and image, typically with ink on paper using a printing press. It is often carried out as a large-scale industrial process, and is an essential part of publishing and transaction printing....
of books. The British Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
1709, 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
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
statute. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
s were made subject to copyright and copyright now covers a wide range of works, including map
Map
A map is a visual representation of an area—a symbolic depiction highlighting relationships between elements of that space such as objects, regions, and themes....
s, performance
Performance
A performance, in performing arts, generally comprises an event in which a performer or group of performers behave in a particular way for another group of people, the audience. Choral music and ballet are examples. Usually the performers participate in rehearsals beforehand. Afterwards audience...
s, painting
Painting
Painting is the practice of applying paint, pigment, color or other medium to a surface . The application of the medium is commonly applied to the base with a brush but other objects can be used. In art, the term painting describes both the act and the result of the action. However, painting is...
s, photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
s, sound recordings, motion pictures
Film
A film, also called a movie or motion picture, is a series of still or moving images. It is produced by recording photographic images with cameras, or by creating images using animation techniques or visual effects...
and computer program
Computer program
A computer program is a sequence of instructions written to perform a specified task with a computer. A computer requires programs to function, typically executing the program's instructions in a central processor. The program has an executable form that the computer can use directly to execute...
s.
Today national copyright laws have been standardized to some extent through international and regional agreements such as the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
and the European copyright directives
Copyright law of the European Union
The copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
. 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.
Copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
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
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. Uses which are covered under limitations and exceptions to copyright
Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....
, such as fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
, 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
The earliest recorded historical case-law on the right to copy comes from ancient IrelandIreland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
. The Cathach
Cathach of St. Columba
The Cathach of St. Columba is an late 6th century Irish Psalter.It is traditionally associated with St. Columba , and was identified as the copy made by him of a book loaned to him by St. Finnian, and which led to the Battle of Cúl Dreimhne in 561...
is the oldest extant Irish manuscript of the Psalter
Psalter
A psalter is a volume containing the Book of Psalms, often with other devotional material bound in as well, such as a liturgical calendar and litany of the Saints. Until the later medieval emergence of the book of hours, psalters were the books most widely owned by wealthy lay persons and were...
and the earliest example of Irish writing. It contains a Vulgate
Vulgate
The Vulgate is a late 4th-century Latin translation of the Bible. It was largely the work of St. Jerome, who was commissioned by Pope Damasus I in 382 to make a revision of the old Latin translations...
version of Psalms
Psalms
The Book of Psalms , commonly referred to simply as Psalms, is a book of the Hebrew Bible and the Christian Bible...
XXX (10) to CV (13) with an interpretative rubric or heading before each psalm. It is traditionally ascribed to Saint Columba
Columba
Saint Columba —also known as Colum Cille , Colm Cille , Calum Cille and Kolban or Kolbjørn —was a Gaelic Irish missionary monk who propagated Christianity among the Picts during the Early Medieval Period...
as the copy, made at night in haste by a miraculous light, of a Psalter lent to Columba by St. Finnian. 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.
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 sixth century B.C. Greek society 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
Movable type
Movable type is the system of printing and typography that uses movable components to reproduce the elements of a document ....
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
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....
, a period of prosperous book trade, no copyright or similar regulations existed, 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.
Early privileges and monopolies
The origin of copyright law in most European countries lies in efforts by the church and governments to regulate and control the output of printers. Before the invention of the printing pressPrinting press
A printing press is a device for applying pressure to an inked surface resting upon a print medium , thereby transferring the ink...
, 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
Scribes
Scribes is a minimalist and extensible text editor for GNOME that combines simplicity with power. Scribes focuses on ways workflow and productivity can be intelligently automated and radically improved...
existed. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture
Print culture
Print culture embodies all forms of printed text and other printed forms of visual communication. One prominent scholar in the field is Elizabeth Eisenstein, who contrasted print culture, which appeared in Europe in the centuries after the advent of the Western printing-press , to scribal culture...
). Pope Alexander VI
Pope Alexander VI
Pope Alexander VI , born Roderic Llançol i Borja was Pope from 1492 until his death on 18 August 1503. He is one of the most controversial of the Renaissance popes, and his Italianized surname—Borgia—became a byword for the debased standards of the Papacy of that era, most notoriously the Banquet...
issued a bull
Papal bull
A Papal bull is a particular type of letters patent or charter issued by a Pope of the Catholic Church. It is named after the bulla that was appended to the end in order to authenticate it....
in 1501 against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.
In Europe printing
Printing
Printing is a process for reproducing text and image, typically with ink on paper using a printing press. It is often carried out as a large-scale industrial process, and is an essential part of publishing and transaction printing....
was invented and widely established in the 15th and 16th centuries. While governments and church encouraged printing in many ways, which allowed the dissemination of Bible
Bible
The Bible refers to any one of the collections of the primary religious texts of Judaism and Christianity. There is no common version of the Bible, as the individual books , their contents and their order vary among denominations...
s and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing.
The republic of Venice
Republic of Venice
The Republic of Venice or Venetian Republic was a state originating from the city of Venice in Northeastern Italy. It existed for over a millennium, from the late 7th century until 1797. It was formally known as the Most Serene Republic of Venice and is often referred to as La Serenissima, in...
granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the 'Rerum venetarum ab urbe condita opus' of Marcus Antonius Coccius Sabellicus
Marcus Antonius Coccius Sabellicus
Marcus Antonius Coccius Sabellicus was a scholar and historian from Venice who authored a history of the world in 1504 entitled Enneades sive Rhapsodia historiarum. He was a pupil of Pomponius Laetus, was professor of eloquence at Udine and Venice. In 1487 he was appointed as a curator of the...
". From 1492 onwards Venice began to regularly granting privileges for books. The Republic of Venice, the dukes of Florence
Florence
Florence is the capital city of the Italian region of Tuscany and of the province of Florence. It is the most populous city in Tuscany, with approximately 370,000 inhabitants, expanding to over 1.5 million in the metropolitan area....
, and Leo X
Pope Leo X
Pope Leo X , born Giovanni di Lorenzo de' Medici, was the Pope from 1513 to his death in 1521. He was the last non-priest to be elected Pope. He is known for granting indulgences for those who donated to reconstruct St. Peter's Basilica and his challenging of Martin Luther's 95 Theses...
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
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
bears date 1518 and was issued to Richard Pynson
Richard Pynson
Richard Pynson was one of the first printers of English books. The 500 books he printed were influential in the standardisation of the English language...
, King's Printer, the successor to William Caxton
William Caxton
William Caxton was an English merchant, diplomat, writer and printer. As far as is known, he was the first English person to work as a printer and the first to introduce a printing press into England...
. 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
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
. Early copyright privileges were called "monopolies
Government-granted monopoly
In economics, a government-granted monopoly is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of...
," particularly during the reign of Queen Elizabeth
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
, 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
Statute of Monopolies 1623
The Statute of Monopolies was an Act of the Parliament of England notable as the first statutory expression of English patent law. Patents evolved from letters patent, issued by the monarch to grant monopolies over particular industries to skilled individuals with new techniques...
was enacted in 1623, ending most monopolies, with certain exceptions, such as patents; after 1623, grants of Letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
to publishers became common.
The earliest German privilege of which there is trustworthy record was issued in 1501 by the Aulic Council
Aulic Council
The Aulic Council was originally an executive-judicial council for the Holy Roman Empire....
to an association entitled the Sodalitas Rhenana Celtica, for the publication of an edition of the dramas of Hroswitha of Gandersheim
Hrosvit
Hrotsvitha , also known as Hroswitha, Hrotsvit, Hrosvit, and Roswitha, was a 10th-century German secular canoness of the Benedictine Order, as well as a dramatist and poet who lived and worked in Gandersheim, in modern-day Lower Saxony...
, which had been prepared for the press by Konrad Keltes. In 1512 an Imperial privilege was issued to the historiographer John Stadius for all that he should print, the first European privilege which was made to cover more than a single work, or undertaking to protect books not yet published. In 1794 legislation was enacted in the Prussian Parliament which was accepted by the other states of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
(except Württemberg
Württemberg
Württemberg , formerly known as Wirtemberg or Wurtemberg, is an area and a former state in southwestern Germany, including parts of the regions Swabia and Franconia....
and Mecklenburg
Mecklenburg
Mecklenburg is a historical region in northern Germany comprising the western and larger part of the federal-state Mecklenburg-Vorpommern...
), under which all German authors, and foreign authors whose works were represented by publishers taking part in the book fairs in Frankfurt
Frankfurt
Frankfurt am Main , commonly known simply as Frankfurt, is the largest city in the German state of Hesse and the fifth-largest city in Germany, with a 2010 population of 688,249. The urban area had an estimated population of 2,300,000 in 2010...
and Leipzig
Leipzig
Leipzig Leipzig has always been a trade city, situated during the time of the Holy Roman Empire at the intersection of the Via Regia and Via Imperii, two important trade routes. At one time, Leipzig was one of the major European centres of learning and culture in fields such as music and publishing...
, were to be protected throughout the states of Germany against unauthorized reprints.
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
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
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
, which had 53 printing presses. The French crown also repressed printing, and printer Etienne Dolet
Étienne Dolet
Étienne Dolet was a French scholar, translator and printer.-Early life:He was born in Orléans. A doubtful tradition makes him the illegitimate son of Francis I; but it is evident that he was at least connected with some family of rank and wealth.From Orléans he was taken to Paris about 1521, and...
was burned at the stake in 1546. As the British 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
Bastille
The Bastille was a fortress in Paris, known formally as the Bastille Saint-Antoine. It played an important role in the internal conflicts of France and for most of its history was used as a state prison by the kings of France. The Bastille was built in response to the English threat to the city of...
before it was stormed in 1789. The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing
Printing
Printing is a process for reproducing text and image, typically with ink on paper using a printing press. It is often carried out as a large-scale industrial process, and is an essential part of publishing and transaction printing....
and the press
News media
The news media are those elements of the mass media that focus on delivering news to the general public or a target public.These include print media , broadcast news , and more recently the Internet .-Etymology:A medium is a carrier of something...
. The Areopagitica
Areopagitica
Areopagitica: A speech of Mr. John Milton for the liberty of unlicensed printing to the Parliament of England is a 1644 prose polemical tract by English author John Milton against censorship...
, published in 1644 under the full title Areopagitica: A speech of Mr. John Milton for the liberty of unlicensed printing to the Parliament of England, was John Milton
John Milton
John Milton was an English poet, polemicist, a scholarly man of letters, and a civil servant for the Commonwealth of England under Oliver Cromwell...
's response to the British parliament re-introducing government licensing of printers, hence publishers. In doing so Milton articulated the main strands of future discussions about freedom of expression. By defining the scope of freedom of expression and of "harmful" speech Milton argued against the principle of pre-censorship and in favour of tolerance for a wide range of views.
Early British copyright law
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). But the monopoly came to an end in 1694, when the English Parliament did not renew the Stationers Company's power.In 1707 the parliaments of England and Scotland were united as a result of the Anglo-Scottish Union. The new parliament was able to change the laws in both countries and an important early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
, after Queen Anne
Anne of Great Britain
Anne ascended the thrones of England, Scotland and Ireland on 8 March 1702. On 1 May 1707, under the Act of Union, two of her realms, England and Scotland, were united as a single sovereign state, the Kingdom of Great Britain.Anne's Catholic father, James II and VII, was deposed during the...
. The act came into force in 1710 and was the first copyright statute. Its full title was "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".
The coming into force of the Statute of Anne in April 1710 marked a historic moment in the development of copyright law. As the world's first copyright statute it granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print. 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
Quid pro quo
Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...
; 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
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
standards administered by the booksellers could appear in print. The statute furthermore created a public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
for literature, as previously all literature belonged to the booksellers forever.
According to Patterson and Lindberg, the Statute of Anne:
"... transformed the stationers' copyright - which had been used as a device of monopoly and an instrument of censorship - into a trade-regulation concept to promote learning and to curtail the monopoly of publishers... The features of the Statute of Anne that justify the epithet of trade regulation included the limited term of copyright, the availability of copyright to anyone, and the price-control provisions. Copyright, rather than being perpetual, was now limited to a term of fourteen years, with a like renewal term being available only to the author (and only if the author were living at the end of the first term)."
When the statutory copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
provided for by the Statute of Anne began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s from the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743–1748), the London booksellers turned to common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and starting a 30-year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright
Common law copyright
Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property...
existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749–1751) and Tonson v. Collins (1761–1762).
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 inherit the property rights to their descendants. Opponents of perpetual copyright argued that it amounted to a monopolyMonopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
, which inflated the price of books, making them less affordable and therefore prevented the spread of the Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
. 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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in 1774 Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright
Perpetual copyright
Perpetual copyright can refer to a copyright without a finite term, or to a copyright whose finite term is perpetually extended. Perpetual copyright in the former sense is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based...
, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that 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 copyright was a "creature of statute", and 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
Common law copyright
Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property...
, promoted by the booksellers, was used to support their case for a perpetual copyright
Perpetual copyright
Perpetual copyright can refer to a copyright without a finite term, or to a copyright whose finite term is perpetually extended. Perpetual copyright in the former sense is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based...
. The Lords clearly voted against perpetual copyright and by confirming that the copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
, that is the length of time of work is in copyright, did expire according to statute the Lords also affirmed the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. The Donaldson v Beckett ruling 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
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
was enacted in 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton
John Milton
John Milton was an English poet, polemicist, a scholarly man of letters, and a civil servant for the Commonwealth of England under Oliver Cromwell...
and Geoffrey Chaucer
Geoffrey Chaucer
Geoffrey Chaucer , known as the Father of English literature, is widely considered the greatest English poet of the Middle Ages and was the first poet to have been buried in Poet's Corner of Westminster Abbey...
, 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 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 natural 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 there remains confusion about the nature of copyright 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
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
. One theory holds that copyright's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute.
Early French copyright law
In pre-revolutionaryFrench Revolution
The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
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 degrees 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
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
in books whose privilege had expired was expressly recognised.
After the French Revolution
French Revolution
The French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
a dispute over Comédie-Française
Comédie-Française
The Comédie-Française or Théâtre-Français is one of the few state theaters in France. It is the only state theater to have its own troupe of actors. It is located in the 1st arrondissement of Paris....
being granted the exclusive right to the public performance of all dramatic works erupted and in 1791 the National Assembly
National Assembly
National Assembly is either a legislature, or the lower house of a bicameral legislature in some countries. The best known National Assembly, and the first legislature to be known by this title, was that established during the French Revolution in 1789, known as the Assemblée nationale...
abolished the privilege. Anyone was allowed to establish a public theatre and the National Assembly declared that the works of any author who had died more than five years ago were public property
Public property
Public property is property, which is dedicated to the use of the public. It is a subset of state property. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership...
. In the same degree the National Assembly granted authors the exclusive right to authorise the public performance of their works during their lifetime, and extended that right to the authors' heirs and assignees for five years after the author's death. The National Assembly took the view that a published work was by its nature a public property, and that an author's rights are recognised as an exception to this principle, to compensate an author for his work.
In 1793 a new law was passed giving authors, composers, and artists the exclusive right to sell and distribute their works, and the right was extended to their heirs and assigns for 10 years after the author's death. The National Assembly placed this law firmly on a natural right footing, calling the law the "Declaration of the Rights of Genius" and so evoking the famous Declaration of the Rights of Man and of the Citizen
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
. However, author's rights were subject to the condition of making depositing copies of the work with the Bibliothèque Nationale and 19th Century commentators characterised the 1793 law as utilitarian and "a charitable grant from society".
Early United States copyright law
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
did not apply to the American colonies. The economy of early America
History of the United States (1776–1789)
Between 1776 and 1789, the United States emerged as an independent country, creating and ratifying its new constitution, and establishing its national government. In order to assert their traditional rights, American Patriots seized control of the colonies and launched a war for independence...
was largely agrarian and only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress
Continental Congress
The Continental Congress was a convention of delegates called together from the Thirteen Colonies that became the governing body of the United States during the American Revolution....
"that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tends to encourage genius and to promote useful discoveries." But under the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
, the Continental Congress had no authority to enact copyright law. The Continental Congress did passed a resolution
Resolution (law)
A resolution is a written motion adopted by a deliberative body. The substance of the resolution can be anything that can normally be proposed as a motion. For long or important motions, though, it is often better to have them written out so that discussion is easier or so that it can be...
urging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years. 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
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
passed a copyright statute. Seven of the States followed the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
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
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
of Virginia and Charles Cotesworth Pinckney
Charles Cotesworth Pinckney
Charles Cotesworth “C. C.” Pinckney , was an early American statesman of South Carolina, Revolutionary War veteran, and delegate to the Constitutional Convention. He was twice nominated by the Federalist Party as their presidential candidate, but he did not win either election.-Early life and...
of South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...
in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which allows the granting of copyright and patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s 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
Copyright Act of 1790
The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...
. 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. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
.
At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. In 1834 the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled in Wheaton v. Peters
Wheaton v. Peters
Wheaton v. Peters, , was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright. This was also Chief Justice John Marshall's last major...
(a case similar to the 1774 case of Donaldson v Beckett in Britain) that although the author of an unpublished work had a common law right
Common law copyright
Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property...
to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.
Early internationalisation
The Berne ConventionBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
was first established in 1886, and was subsequently re-negotiated in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris). The convention relates to literary and artistic works, which includes films, and the convention requires its member states to provide protection for every production in the literary, scientific and artistic domain. The Berne Convention has a number of core features, including the principle of national treatment, which holds that each member state to the Convention would give citizens of other member states the same rights of copyright that it gave to its own citizens (Article 3-5).
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
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
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
Copyright Act 1911
The Copyright Act 1911, also known as the Imperial Copyright Act of 1911, is an Act of the Parliament of the United Kingdom which received Royal Assent on 16 December 1911. The act established copyright law in the UK and the British Empire...
it had to abolish its system of registration at Stationers' Hall.
The Berne Convention focuses on authors as the key figure in copyright law and the stated purpose of the convention is "the protection of the rights of authors in their literary and artistic works" (Article 1), rather than the protection of publishers and other actors in the process of disseminating works to the public. In the 1928 revision the concept of moral rights was introduced (Article 10bis), giving authors the right to be identified as a such and to object to derogatory treatment of their works. These rights, unlike economic rights such as preventing reproduction, could not be transferred to others.
The Berne Convention also enshrined limitations and exceptions to copyright
Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....
, enabling the reproduction of literary and artistic works without the copyright owners prior permission. The detail of these exceptions was left to national copyright legislation, but the guiding principle is stated in Article 9 of the convention. The so called three-step test
Berne three-step test
The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...
holds that an exception is only permitted "in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author". Free use of copyrighted work is expressly permitted in the case of quotations from lawfully published works, illustration for teaching purposes, and news reporting (Article 10).
Copyright in communist countries
Historically, many societies governed by socialistSocialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
governments have viewed copyright as a welfare or support mechanism for artists, instead of (or in addition to) a legal right. These ideas probably found their strongest expression in Scandinavia
Scandinavia
Scandinavia is a cultural, historical and ethno-linguistic region in northern Europe that includes the three kingdoms of Denmark, Norway and Sweden, characterized by their common ethno-cultural heritage and language. Modern Norway and Sweden proper are situated on the Scandinavian Peninsula,...
n law.
The Eastern European communist state
Communist state
A communist state is a state with a form of government characterized by single-party rule or dominant-party rule of a communist party and a professed allegiance to a Leninist or Marxist-Leninist communist ideology as the guiding principle of the state...
s professed to employ socialist principles in rewarding their artists and authors, but the reality of their copyright systems was deeply entangled with censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
and state
Communist state
A communist state is a state with a form of government characterized by single-party rule or dominant-party rule of a communist party and a professed allegiance to a Leninist or Marxist-Leninist communist ideology as the guiding principle of the state...
control of culture. Cultural workers in the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
did well if they could employ "blat
Blat (Russia)
Blat is a term which appeared in the Soviet Union to denote the use of informal agreements, exchanges of services, connections, Party contacts, or black market deals to achieve results or get ahead....
" to their advantage and convince the right party
Communist Party of the Soviet Union
The Communist Party of the Soviet Union was the only legal, ruling political party in the Soviet Union and one of the largest communist organizations in the world...
officials to favour their work.
The Soviet Union did have a number of interactions with the international copyright
International copyright
While no creative work is automatically protected worldwide, there are international treaties which provide protection automatically for all creative works as soon as they are fixed in a medium...
system:
- Unsuccessful lawsuits brought by WesternWestern worldThe Western world, also known as the West and the Occident , is a term referring to the countries of Western Europe , the countries of the Americas, as well all countries of Northern and Central Europe, Australia and New Zealand...
lawyers in an attempt to make the Soviet state recognise foreign copyrights or pay royalties to foreign authors (the USSR did occasionally pay foreign authors for the use of their works, but only if they were of a suitable ideologicalIdeologyAn ideology is a set of ideas that constitutes one's goals, expectations, and actions. An ideology can be thought of as a comprehensive vision, as a way of looking at things , as in common sense and several philosophical tendencies , or a set of ideas proposed by the dominant class of a society to...
colour).
- Accession to the Universal Copyright ConventionUniversal Copyright ConventionThe Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....
, with the intention of allowing the Soviet state to appropriate international copyright in works by dissident Soviet authors, and thereby control the distribution of those works outside the Communist blocEastern blocThe term Eastern Bloc or Communist Bloc refers to the former communist states of Eastern and Central Europe, generally the Soviet Union and the countries of the Warsaw Pact...
.
Copyright and technology
- Digital technology introduces a new level of controversy into copyright policy.
- Inclusion of software as copyright subject matter on the recommendation of CONTUCONTUCONTU, or the Commission on New Technological Uses of Copyrighted Works, was established in 1974 by United States Congress to study issues associated with copyrighted works in computers and computer-related works. It has been argued that the Commission erred in recommending the extension of...
and then later with the EU Computer Programs Directive. - Enactment of Agreement on Trade-Related Aspects of Intellectual Property RightsAgreement on Trade-Related Aspects of Intellectual Property RightsThe Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPS). - Controversy over the copyrightability of databases (Feist Publications v. Rural Telephone ServiceFeist Publications v. Rural Telephone ServiceFeist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...
and contradictory cases); links to the debate over sui generis Database rightsDatabase rightsIn European Union law, database rights are specifically coded laws on the copying and dissemination of information in computer databases...
. - Enactment of the World Intellectual Property Organization Copyright TreatyWorld Intellectual Property Organization Copyright TreatyThe World Intellectual Property Organization Copyright Treaty, abbreviated as the WIPO Copyright Treaty, is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization in 1996...
; nations begin passing anti-circumvention laws.
Commentators such as Barlow (1994) have argued that digital copyright is fundamentally different and will remain persistently difficult to enforce; others such as Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
(1996) 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 system
Alternative compensation system
Various alternative compensation systems have been proposed as ways to allow the widespread reproduction of digital copyrighted works while still paying the authors and copyright owners of those works. This article only discusses those proposals which involve some form of government intervention...
s 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 in duration.
- Creation of new exclusive rights (such as performers' and other neighbouring rights).
- Creation of collecting societies.
- Criminalisation of copyright infringement.
- Creation of anti-circumventionAnti-circumventionAnti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow...
laws. - Courts' application of secondary liabilitySecondary liabilitySecondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents; however,...
doctrines to cover file sharing networks
See also
- History of music piracyHistory of music piracyMusic piracy is the copying and distributing of copies of a piece of music for which the composer, recording artist, or copyright-holding record company did not give consent. It is a form of copyright infringement, which is a crime in many countries...
- History of patent lawHistory of patent lawThe history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474 which was issued by the Republic of Venice. They issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic...
- CopyleftCopyleftCopyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
- International copyrightInternational copyrightWhile no creative work is automatically protected worldwide, there are international treaties which provide protection automatically for all creative works as soon as they are fixed in a medium...
- Copyright infringementCopyright infringementCopyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
Further reading
- Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions, Little, Brown, & Co. (1879).
- Dietrich A. Loeber, ‘“Socialist” Features of Soviet Copyright Law’, Columbia Journal of Transnational Law, vol. 23, pp 297–313, 1984.
- Joseph Lowenstein, The Author's Due : Printing and the Prehistory of Copyright, University of Chicago Press, 2002
- Christopher May, "The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property", Prometheus, 20(2), 2002.
- Millar v. TaylorMillar v. TaylorMillar v Taylor 4 Burr. 2303, 98 ER 201 is an English court decision that held there is a perpetual common law copyright and that no works ever enter the public domain...
, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769). - Lyman Ray PattersonLyman Ray PattersonLyman Ray Patterson was an American law professor and an influential copyright scholar and historian....
, Copyright in Historical PerspectiveCopyright in Historical Perspectivenopyright in Historical Perspective is an influential work of copyright scholarship by Lyman Ray Patterson. The book traces the history of Anglo-Saxon copyright from the outgoing 15th century to the late 19th century....
, Vanderbilt University Press, 1968. - Eric Anderson, Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891, 2010. http://www.archive.org/details/PimpsAndFerretsCopyrightAndCultureInTheUnitedStates1831-1891
- Brendan Scott, "Copyright in a Frictionless World", First MondayFirst Monday (journal)First Monday is an open-access electronic peer-reviewed scientific journal for articles about the Internet.-Publication:First Monday is sponsored and hosted by the University of Illinois at Chicago...
, volume 6, number 9 (September 2001), http://firstmonday.org/issues/issue6_9/scott/index.html. - Charles Forbes René de MontalembertCharles Forbes René de MontalembertCharles Forbes René de Montalembert was a French publicist and historian.-Family history:He belonged to a family of Angoumois, which could trace its descent back to the 13th century. Charters carry the history of the house two centuries further...
, The Monks of the West from St Benedict to St Bernard, William Blackwood and Sons, London, 1867, Vol III. - Augustine BirrellAugustine BirrellAugustine Birrell PC, KC was an English politician, barrister, academic and author. He was Chief Secretary for Ireland from 1907 to 1916, resigning in the immediate aftermath of the Easter Rising.-Early life:...
, Seven Lectures on the Law and History of Copyright in Books, Rothman Reprints Inc., 1899 (1971 reprint). - Drahos, P. with Braithwaite, J., Information Feudalism, The New Press, New York, 2003. ISBN 1-56584-804-7(hc.)
- Paul Edward Geller, International Copyright Law and Practice, Matthew Bender. (2000).
- New International EncyclopediaNew International EncyclopediaThe New International Encyclopedia was an American encyclopedia first published in 1902 by Dodd, Mead and Company. It descended from the International Cyclopaedia and was updated in 1906, 1914 and 1926.-History:...
- Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)Computer Associates Int. Inc. v. Altai Inc.Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...
- Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press (Cambridge: 1990)
- Siegrist, Hannes, The History and Current Problems of Intellectual Property (1600-2000), in: Axel Zerdick ...(eds.), E-merging Media. Communication and the Media Economy of the Future, Heidelberg 2004, p. 311-329.
- Gantz, John and Rochester, Jack B. (2005), Pirates of the Digital Millennium, Upper Saddle River: Financial Times Prentice Hall; ISBN 0-13-146315-2
- Löhr, Isabella, Intellectual cooperation in transnational networks: the league of nations and the globalization of intellectual property rights, in: Mathias Albert ...(eds.), Transnational political spaces. agents - structures - encounters, Frankfurt/Main 2009, p. 58-88.
- Ronan Deazley, Martin Kretschmer and Lionel Bently (eds) Privilege and Property: Essays on the History of Copyright. Open Book Publishers (Cambridge: 2010). ISBN 978-1-906924-18-8
- Selle, Hendrik, Open Content? Ancient Thinking on Copyright, Revue internationale des droits de l'antiquité 55 (2008) 469-84.
External links
- Primary Sources on Copyright (1450-1900) (British, French, German, Italian, US documents)
- International Copyright and Neighbouring Rights: The Berne Convention and Beyond Companion website with historical documents related to international copyright