You do not hear a lot these days about the history, the origins, of copyright. I think, based on talking to a lot of people, we sort of tend to feel that it's just always been there. Or, it's been one of those things like building roads or constructing sewers or something. It's something governments just start doing at a certain point. It's natural and uncontested.
That's not actually the case with copyright. In fact, some people will trace it back as far as the U.S. constitution (if they're a lawyer, or if they've read some legal history); where there is a clause empowering congress to pass copyright legislation. But copyright's history predates even that. It is kind of surprising where it comes from. It was not created by artists and writers suddenly rising up to demand protection at all. It was created by the publishing industry, which, in the early days of the printing press was a very different industry from what it is today. Information distribution in general was very different from what it is today. I won't have time to go into all the details of that history, I want to fit this talk into an hour. I want to have time to talk about the implications of copyright's history for how we think about and deal with copyright today. And I especially want to leave time for questions at the end.
So, if you go to that website, or you go and look at some other resources on the history of copyright, you will see some stuff I am leaving out here. I don't any of those details that I leave out are terribly imporant, but you might want to know them if you're doing a lot of research into copyright.
Where did it come from? Well, when the printing press first arrived in England in the mid 1470's, there was no such thing as copyright. In fact, there not only was no such thing as copyright, there was a government and a society pretty much completely unprepared for the implications of the mass distribution of printed material. It was just a wild west out there. As soon as the press arrived, people began running off copies of just anything under the sun. Historical works, fact, fiction, religious tracts, political tracts, works by living authors and dead authors. They were not careful about crediting. They would engage in plagarism and reverse-plagarism. Sometimes a printer would write something, print it up and release it under the name of an author who had nothing to do with it, because that author was more famous and that way the work would get more attention. All sorts of things were going on. It was total chaos. From the government's point of view, the worst aspect of this chaos was the political tracts. All of a sudden, anyone with a printing press and a grievance could start writing off seditious pamphlets by the thousands, and distribute them all over the kingdom. If you're a government, especially in England in the 15-16th century, that's a disaster. You can't just have people printing anything they want, who knows what they might say. They might form a rebellion; make trouble.
The government's reaction was very interesting. It shows us, I think, that the idea of privitization of social services was not invented in modern times. The government's reaction was to privitize censorship. They created a guild called the Company of Stationers. The company's charter gave it the sole right, with a couple of exceptions, to own and operate printing presses in England. The company had the right to seize and destroy presses operated by non-members of the company. And they had the right to burn books printed without the company's authorization. In return for this monopoly, the company of stationers was obligated to run the works they printed by the crown's censors first. And naturally, after a certain amount of time, they got pretty good at telling what the censor would and wouldn't like. And they would just do self-censorship. They wouldn't even bother, they would say "look, that's never gonna fly, you can't print that".
This arrangement lasted for about 150 years. During that entire time, there is still no such thing as copyright. The stationers did amongst themselves practiced a certain kind of proto-copyright. They would make arrangements where one member of the compnay would print one thing and no one else would print that. And they were actually were forming little agreements. So this notion of ownership of a work did begin to take hold among the printing community. But it was ownership by the printer and it was ownership of printing rights. It had nothing to do with the author. The works were entered into the compnany of statioiners's registry under the stationer's name, not the authors. This worked pretty well for about 150 years until almost 1700. And then disaster came. Disaster for the company of stationers, at any rate. Although not lovers of free speech.
The government of England changed hands. This is the Revolution of 1688, "The Glorious Revolution", it's sometimes called. I won't go into all the details of that revolution, it's very complex and very important in it's own way independently of copyright. But among the effects, to simplify greatly (and I hope historians in the audience will forgive me), Parliament changed hands and what in some senses had been the opposition now came into power. Furthermore, parliament's power relative to the crown was greatly strengthened. Those now in power had no love for censorship and no love for the company of stationers (for the most part). They decided to let the company of stationers's charter lapse. Now, if you have any experience with government regulated monopolies, you know that the story is never that simple. You can't just turn them off once you have them because they lobby. And that's what the stationers did. They went before parliament, realizing that their livelihood, their monopoly on printing was about to end and they made a rather new argument.
They said an author has a natural right of ownership in their work, and furthermore, this right is transferrable (assignable) by contract to other parties. Like a form of property, it can be sold (or contrated out, or leased). Parliament accepted this argument
The reasons why are perhaps a bit hard to understand today. You have to cast yourself back into the mindset of information technology in the 18th century. The parliament did not like censorship, although they probably sensed that it had it's uses. But they didn't necessarily want a return to the chaos of the period between the arrival of the printing press and the chartering of the compnay of stationers. And the stationers were essentially saying to parliament, "if you do not protect our trade with this monopoly right, we will have an economic disincentive to behave well". "We will not be able to print things reliably, make identical copies, to avoid plagarism (both of the normal and reverse kind), and to protect the integrity of works if it's just a complete free market".
Because consider what a print run means. You have to gather a lot of dead tree pulp together, you have to arrange the plates for your press (which is quite labor intensive), if there are illustrations you have to get an engraver (and make those illustrations in metal), and then you print off thousands of copies (a great expense), you distribute them around (which may cost some money as well), and they you see if works sells. You haven't even collected any revenue yet. Now what if your competitors waiting in the wings can just watch you invest in 100 works, watch three of them that actually pay off and start selling, and then they run off copies of just those works? Well, they're not paying the cost of investment in the other 97. They have much lower risk. The stationer's argument was, "we need to be protected from that situation. We're caught in this sort of game theoretical dilemna. If you give us a monopoly, we will behave better."
You also have to think about the technology of printing. It's often said that the Internet is sort of an extension or the augmentation of the priting press. Kind of the final realization of the printing press's potential. But there is an important sense in which that is wrong. If you have a copy of a printed work and the printing printing press (especially the 18th century printing press) making a copy of that work is terribly difficult. And if you have illustrations, it's just not possible. You can duplicate them to some degree of approximation, but you can't really make a copy. And as far as the words and the text, you're gonna be very tempted to abridge the chapters that you think are boring, you're gonna have more misspellings because you won't have time to do it with the same care the original printer did. With the printing press, you can only make more copies if possess the master. With the internet, you can make copies from copies. The internet is masterless. In fact, with the internet, making perfect copies is what comes naturally and if you want them to have any variation you have to put in extra effort to do that. It's the reverse of the printing press.
They don't think like we think today. They were thinking "look, there's a natural monopoly physically inherent in printing because whoever prints it first has sort of created the work that's out there in the public; and they got the original plate". And if we just make our laws embody this monopoly without the odium of censorship, then we will have essentially the same arrangement we had during the entire 150 years of the compnay of stationer's heyday. And everything will be just as good as it was then only without censorship. And parliament didn't really object. It was actually a fairly reasonable argument given the technology and given the economics of the time. But, if you remember just one thing from this talk, please let it be: Copyright was not designed by the writers and artists asking for a means to earn a living; for an economic basis for creativity. It was designed by the publishing industry to support a certain kind of distribution mechanism. One that is completely obsolete today.
So, let's fast forward a bit. I've been going around for about a decade talking to just about everyone I meet about copyright. Literally I will talk to people on the bus stop, taxi drivers, free software developers in IRC channels, strangers at parties, just everyone. And I've compiled a pretty good picture, I think, of how people think about copyright. Especially in the United States. I've also done it in Europe a little. What you hear when you talk to people about copyright does not look like that *points to slide behind him*. You hear 4 or 5 points consistently over and over. They are:
1. Artists and writers, they need copyright to earn a living. They depend on it. It's very important to them. Without copyright they're out in the cold, cruel world.
Pretty much everyone will express that sentiment at some point when you're talking about copyright.
The second thing you hear is: Copyright is largely about the protection from plagarism. Over and over I hear sentiments like "if somebody writes a book they should get credit for it". Now, modern copyright law is not written really about preventing plagarism as you probably already know. And especially, given the Internet, it's very easy to find out who really wrote a work first. There is a reason people think that plagarism is one of the primary functions of copyright. It is that every time a copyright lobby talks to congress, or puts out a press release, or issues a C&D letter, they include a sentence about how artists and writers need to be protected from plagarism. Because they know that that resonates emotionally with all of us. And I can give you some pretty glaring examples of this. In fact, I will. Because it's just too good to resist. This is Hilary Rosen, the former head of the RIAA, talking to a college audience. This is from a few years back, late 90's early 2000's. She's describing what she says as she goes around talking about the importance of not copying things to college students. She says, "analogies are what really work best. I asked them 'what have you done last week?' and they might say they wrote a paper on this or that. So I tell them, 'oh, you wrote a paper and you got an A? would it bother you if somebody could just take that paper and get an A too?'. So this sense of personal investment does ring true with people." Well, she's right, it does ring true with people. But her analogy is completely inapplicable to copyright. When people download songs from the Internet, they don't replace the artist's name with their own. In fact, they recommend the file to their friends and say "hey, check out this band" and they give the band's name accurately. What she should have asked was, "what if somebody could show your paper around and show everyone else that you got an A? would you have a problem with that?" and of course the students would have said "no we dont have a problem with that".
This tactic is, once you're watching out for it, you will see it in just about every article, every press release, every mention by an industry lobbyist or industry figure about copyright. It's quite amazing.