Copyright reform – or abolition?

The other day I came across a web site called Question Copyright. One of its leading men is the software developer Karl Fogel, and a prominence such as Brewster Kahle seems to be involved as well.

Their ”mission is to educate the public about the history of copyright, and to promote methods of distribution that do not depend on restricting people from making copies”. They say they want copyright reform, but ”if abolition is that better policy, then so be it”.

Well, copyright reform is badly needed. I have several times written about the necessity of copyright, but at the same time how copyright today unfortunately is applied in ways that I believe would have infuriated many of the founding fathers of the first copyright legislation. (Read for instance ”The Misunderstood Idea of Copyright” or ”What has copyright to do with democracy?”)

At the Question Copyright site, authorship of the various articles is not quite clear. I get the impression that Karl Fogel has written most of the texts but there is also a FAQ submitted by ”admin”.

Karl Fogel has submitted an article named ”The Surprising History of Copyright”, and it is rather surprising. One would have hoped that people who wish to educate the public about copyright history would get their p’s and q’s right. Fogel writes, for example, the following:

The first copyright law was a censorship law. It had nothing to do with protecting the rights of authors, or encouraging them to produce new works. Authors’ rights were in no danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers.

What he refers to is when the Stationers’ Company in 1557 (not 1556 as is stated on the FAQ page) was granted the monopoly of printing in England and in return let themselves be used as an instrument for censorship. But this was not a copyright law and definitely not the first, not even in the old sense, that is, a guild member’s license to print copies of a certain work, sometimes referred to as a print patent. Such copyright had existed since the rise of printing, although the word was not used. The word copyright was probably not used until 1701 (in an entry in the Stationers’ Registry), at least not in writing or in print. And censorship had, of course, also existed earlier. (Even in France there was a printers’ droit de copie long before the droit d’auteur.) What happened in 1557 was that the Stationers’ Company was ”incorporated” with the royal prerogative.

When it comes to the significance of the first statutory copyright law, The English Statute of Anne from 1710, Fogel refers to Lyman Patterson’s writings in order to show that this law was of no real importance for authors. When you read various copyright historians, you will find pretty diverse views on this, from writers such as Ronan Deazley, John Feather, L. R. Patterson, or Mark Rose. Patterson is probably one of those who are most reluctant to see the benefits of the Statute of Anne. Still, when Fogel quotes the following in his note 3 on the Surprise page, it is not a fair rendering of Patterson’s views:

[3] Patterson, in [1], goes so far as to say ”The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.”

If Fogel had quoted this in context, he would have revealed that even a skeptic as Patterson admits that the act entitled authors to important rights and also was aimed against censorship:

The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history. While that Statute made copyright available to authors for the first time, there was only one benefit for the author that was not available for the bookseller – the renewal term – and the statute was designed to destroy (and prevent the recurrence of) the booksellers’ monopoly. Thus the Statute of Anne can best be characterized as an anti-censorship trade regulation statute. (Patterson, ”Copyright and the ‘Exclusive right’ of Authors”, Journ. of Intell. Property Law, 1:1, 1993, p. 12.) ¹⁾

Fogel’s idea is that the statutory copyright of 1710 was a direct continuation of the ideas that granted the monopoly of the Stationers’ Company. But this is not correct. Censorship ended in 1695 when the Licensing Act was abolished. The Act of 1710 granted copyright to authors or their assignees. So it is definitely an authors’ right, although it is true that authors (as today) seldom published their books themselves but were dependent upon booksellers and printers.

It would also be wrong to say that the act was a distributors’ law and not an authors’ law. The famous ”Battle of the booksellers” that took place approx. 1740-1774 is a well known series of court cases, but there were also authors who sued booksellers and others, using their new right, for instance Burnet v. Chetwood 1720, Gay v. Read 1729, Pope v. Curll 1741 (Pope also went to court four more times), Webb v. Rose 1732 (the son of an author) and Forrester v. Waller 1741.

It is true, however, that the Statute of Anne was not the result of a widespread concern for the wellbeing of authors. After censorship was abolished, the Stationers wanted to save what they could of their old privileges, so they strongly advocated the right for authors, hoping that they would assign the rights to the printers/sellers for ever, as the old common law rules allowed. In Parliament there were several members who wanted an antimonopoly law for the book trade, and they also favored the Lockean idea to encourage learning.

There were also some authors who published pamphlets supporting this, Defoe among others. He said that ”‘Twould be unaccountably severe, to make a Man answerable for the Miscarriages of a thing which he shall not reap the benefit of if well perform’d …” The booksellers’ hopes for a perpetual copyright practically came to naught as we know. 14 years at a time was all they got.

On the FAQ page, apart from the already covered question concerning the origins of copyright legislation, the web site’s ”admin” also addresses a few other topics.

”Do musicians, writers, and artists depend on copyright to earn a living?”, the ”admin” asks and says: ”The vast majority of musicians, writers, and artists will never see a dime of copyright royalties in their lives.”

That depends on whether you mean hobby musicians, writers, and artists or people who more or less work full time. It is true, of course, that many artists, musicians and writers before their careers take off, drive taxis or work in hospitals at the same time as they develop their artistic skills and try to find an audience. Avantgarde artists may not be able to support themselves on their art even after they have become well-known. This is typical for several branches, however. You could have a small firm for manufacturing some kind of kitchen gadget, for example, that also has a pretty modest commercial impact. This, however, seldom makes people say that since your income is so low, you might as well earn nothing. I think it is appropriate, that the person who does the work, also should reap the fruits of his or her efforts, even if it sometimes is ”beer money”, as it is said on the FAQ page.

Then the author of the FAQ page enters into a strange reasoning about plagiarism: ”Copyright does not prevent plagiarism, it prevents copying — that’s why it’s called ‘copyright’.”

Well, if copyright legislation is successful in preventing plagiarism is of course another matter – but the fact is that plagiarism constitutes copyright infringement if it is not mere ideas or facts which are taken, but considerable amounts of the exact expression of a work – and if it is published, not just used in a limited classroom environment. That the FAQ also extenuates the use of plagiarism as a method is serious. The educational system today has immense problems with students who don’t learn and write themselves, but copy other people’s texts from the web. One could argue about which is most severe, the infringement or the fact that many students copy things they don’t understand, and never will learn. I would say the latter is the bigger problem.

Then the FAQ writer launches the notorious question about whether immaterial works can be stolen or not: ”If I steal your bicycle, now you have no bicycle. If I copy your song, now we both have it.” Of course, immaterial assets can be stolen. If you steal money, you don’t steal a few scraps of paper or pieces of metal – you steal symbols of value. Money we may not copy; only the national bank has that right. When it comes to cultural goods, those who oppose copyright always try to make the point that when you steal or take away a digital copy, for instance, nothing has been lost. But what is taken away in such a case is not the work itself but a piece of its market. What is also taken away is the creator’s control. The artist may not wish to appear with his/her work in a certain context. Maybe a song writer doesn’t want his/her work to appear in, for example, a TV commercial or in a movie advocating neo-nazism.

”Would creativity dry up without copyright?”, the FAQ asks next and says that ”the world before modern copyright was hardly a barren cultural desert: Homer, Chaucer, Shakespeare, J.S. Bach, Li Bo, Leonardo Da Vinci, Michelangelo…” But most great pre-copyright artists were supported by patrons, if they were not rich and financially independent themselves. When copyright came it gave opportunity to many writers and artists to exploit their own talent and earn a living from their own work. Note that for quite some time, writing for money was out of the question for a gentle or nobleman. That is why even early remuneration for writing was called honorarium, a honorary payment.

Several Swedish writers – to name a few examples from my own country – could earn a living on their writings when the first Swedish copyright law (1810) had come into force. Thus, writers such as Magnus Jacob Crusenstolpe, Karl August Nicander, and C.J.L. Almquist found a market for their writings in the 1830’s. Copyright together with an emerging public sphere, to a large extent formed by the liberal press, was the basis also for several women writers to succeed: Emilie Flygare-Carlén and Fredrika Bremer, for instance. Flygare-Carlén even managed to tenfold her income between the 1830’s and 1840’s.

The FAQ concludes by saying that the best solution would be to abolish copyright altogether. I agree with many of the copyright critics, that there are several problems with copyright today – for instance is there urgent need to defend the public domain, urgent need to uphold the right to quote, the right to copy for private use, etc.

I am quite sure though, that if we abolished copyright law, we would rather soon have to reinvent it – or at least something very similar to copyright. The information age needs instruments that may ensure cultural ”content providers” that it is possible to embark on big cultural projects, with large personal and financial investments, that will pay off to those who did the work. The information age also needs instruments to secure the integrity of works. Today, when copying is done so easily, it is more important than ever to make sure that the information copied is correct and that it has not been tampered with. Handing down corrupt information to future generations will not further knowledge, but quite the opposite. Copyright is a great help for both these purposes.

1) Patterson certainly has merits, but even he is not always to trust. For instance, he says that the famous court case of Donaldson v. Becket, where the Statute of Anne’s status in relation to earlier common law was finally settled, ”carefully avoided the use of the term copy or copyright” (Copyright in Historical Perspective, 1968, p 16.). But this is not true. In the court proceedings, copy is mentioned eight times (as a noun), and copyright twelve times (footnote text not counted).

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