Abstract
The passing of the Statute of Anne in 1710 is often identified as the seminal moment in copyright history. For the first time, legislation recognized an author’s—not bookseller’s—right to control the reproduction of books. The author’s copyright—the exclusive right to control copying of books—lasted for a period of 14 years from publication and could, on expiry, be renewed by the author for a second 14-year term. By recognizing the author’s right to property in books ‘and Writings’, the Statute of Anne laid the foundation for the modern edifice of copyright regulation.
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Notes
- 1.
The Act stated that the Stationers’ copyright in books continued for another 21 years.
- 2.
References to ‘other Writings’ occurred only once, in the opening paragraph of the operative part of the Act. The remainder of the Act referred only to ‘Books’. The drafter may have used the term ‘other Writings’ as a convenient catch-all phrase designating pamphlets, posters and similar popular forms of printed material. The phrase might also indicate early understanding that literary property vested in an abstract ‘work’ rather than a physical ‘book’. On the other hand, parliamentary drafters in the United Kingdom only ceased to tie literary property to ‘a Book’ in 1911, when new copyright legislation adopted the categories of copyright works.
- 3.
Although the grant to the Stationers’ Company recognized a power to make copies, thus establishing a formal copyright, the Stationers’ rights related to the printing of books, not the content of the books. The Statute of Anne established, explicitly, copyright in the book, although it did not refer to copyright in the intangible elements of the book—what later came to be known as the ‘literary work’.
- 4.
In 1655, Oliver Cromwell limited the company’s powers in favour of a Council of State. However, in 1623, the Statute of Monopolies, which abolished monopolies in England subject to broad exceptions (applying to certain kinds of ‘new manufactures’ or monopolies granted to corporations, companies and so on), did not remove the Stationers’ exclusive rights.
- 5.
Parliament’s hostility to monopolies at the time of the Statute of Anne was real but can be overstated. Most parliamentarians disliked the arbitrary exercise of royal power. However, in the first seven decades of the eighteenth century, Parliament did not prevent the grant of a number of royal privileges to music publishers.
- 6.
Though the booksellers correctly interpreted the prevailing political sentiment against any cause associated with the Stationers they lobbied hardest for legislation, and in 1709, arranged for their supporters to submit a bill drafted to remedy the damage done by unauthorized reprints to ‘the Properties’ of ‘Proprietors’ and the ‘Discouragement of all Writers’. The first draft of the bill did not limit the duration of copyright. Identification with the cause of ‘writers’ positioned booksellers to secure legislation that in substance favoured them.
- 7.
98 ER 210.
- 8.
28 Eng Rep 257.
- 9.
- 10.
Millar v. Taylor (1769).
- 11.
- 12.
Individual autonomy characterises each of these three movements. The intellectual origins of Reformation are to some degree traceable to the German Renaissance (c fifteenth century), which interpreted, again by degree, the humanism of the Italian Renaissance. Similarly, it could reasonably be argued that the Enlightenment could not have taken place had the Reformation not occurred (a representative presentation of this argument is given by Russell 1946). Philosophically, they are remotely connected. The humanism of the Italian Renaissance, inspired by Greco-Roman culture of antiquity, sought to liberate human reason and capabilities from constraints of conformity and obedience, but it did not reject natural law or revelation, nor the transcendental, sublime or mystical aspects of art and literature. The Reformation opposed religious authority and tradition, and an allied culture that profusely explored sacred and human themes. Beginning with Martin Luther (d. 1546), Reformation leaders established the formulae of ‘faith alone’ and ‘by scripture alone’, which in theory permitted individual believers to discern religious truth independently of authorities propagating doctrine. The Enlightenment, by contrast, divorced itself from belief, or revelation, and asserted that by application of their reason humans could come to discern reality and understand how to improve their conditions of life.
- 13.
In Europe, the dimensions of the Reformation movement began to change. The Reformation transformed from a religious protest into a political cause, co-opted by princes and electors to achieve secession, gain territory, or procure temporal advantages. The Protestant religious program (Calvinist as well as Lutheran) thus formed a backdrop to both internecine state conflicts and those involving multiple states. Conflict in western Europe began before Luther’s death in 1546, closed temporarily in 1555 (Peace of Augsburg), continued fitfully in the later part of the sixteenth century, then erupted in 1618 in a war of Empire and states. This war, brought to an end by the Peace of Westphalia in 1648, consumed a large part of central and western Europe. Its ending weakened the power of the Hapsburg Empire, especially in Germanic territories, and increased the influence of France. It confirmed also the independence of the Netherlands from its former imperial master, Spain. So began the era of nation states, but more significantly, so far as developments concerning social equality are concerned, the Treaty of Westphalia introduced a principle of religious toleration, allowing non-conforming citizens of Catholic, Lutheran or Calvinist states freedom of religious practice. It marked the end of wars in Europe involving primary dispute over religion.
- 14.
In short, the philosophy of liberty, which is not a doctrine but a kind of syllabus of different writings and documents, especially those of the seventeenth to eighteenth centuries, reaching apotheosis, though not finality, in the declarations of independence promulgated during the revolutions of the United States and France (1776 and 1793). The philosophy of liberty locates sovereignty in the collective of people ruled by law, and determines that sovereignty is the consequence of each qualified person’s native endowment as free and equal. Each person possesses the same sovereign right to determine government in a polity. Thus the only legitimate government or law is one that gives effect to the expressed will of qualified persons acting together to select, directly or by proxy, executive, parliament and judiciary.
- 15.
Charles-Louis de Secondat, Baron de La Brėde et Montesquieu.
- 16.
François-Marie Arouet.
- 17.
Or as John Locke explained (Two Treatises of Government, 1689/1988) a person’s rights to life, property and individual liberty is inviolate by reason of natural law, and natural rights are not to be abrogated by coercion. A government must protect these rights, and is legitimate to the extent that it does so; its continuation must be by popular consent.
- 18.
The Bill transferred from crown to parliament asserted or residual political power of the monarch, although the crown remained the source of state power.
- 19.
For an account of how leading Enlightenment figures differed in interpreting ideas of universal liberty, and equality without distinction, see Siep Stuurman ‘Global Equality and Inequality in Enlightenment Thought’ Reeks Burgerhartlezingen Werkgroep 18e Eeuw nummer 3 Burgerhart Lecture 2010.
- 20.
One of the most famous contemporary advocates of universal equality, Guillaume Raynal (‘Abbé Raynal’ d 1796) in the bestselling L’Histoire philosophique et politique des établissements et du commerce des Européens dans les deux Indes (‘Philosophical and Political History of European Possessions and Trade in the Two Indies’ 1770) affirmed that all men are, without qualification, equal ‘in the eyes of the Supreme Being.’
- 21.
For modern case discussion of the effect of the copyright clause, see, for example, Harper & Row v. Nation Enterprises, 471 US 539 (1985) and Eldred v. Ashcroft 537 US 186 (2003).
- 22.
Copyright Act 1790, An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.
- 23.
For representative letters, see Atkinson and Fitzgerald (2011), pp. 245–261.
- 24.
Letter to James Madison, 6 September 1789 (see Atkinson and Fitzgerald 2011).
- 25.
The case concerned the suit of Wheaton, the Supreme Court’s Reporter of Decisions. Wheaton compiled reports of the court’s decisions together with case notes and received income from the sale of volumes compiled. His successor, Peters, continued to compile reports and he abridged for sale Wheaton’s earlier texts. The cheaper abridged versions outsold Wheaton’s original texts and Wheaton sued Peters for copyright infringement. However, Wheaton had not fulfilled registration formalities required by the copyright legislation and the Court denied his putative copyright. The Court ruled that the statute, and not rights implied from natural law, determined the legal issues.
- 26.
In the equivalent period leading into the 1830s, the UK passed the Sculpture Act 1833 and the Dramatic Copyright Act 1833.
- 27.
The poet Walt Whitman, then a Manhattan newspaper editor, to pour scorn on Dickens, published a derogatory letter about the United States presented to suggest it came from Dickens. For detailed consideration of Whitman’s attitude to copyright, see Buinicki (2003).
- 28.
Décret de la Convention Nationale du dix-neuf juillet 1793 relatif aux droits de propriété des Auteurs d’écrits en tout genre, des Compositeurs de musique, des Peintres et des Dessinateurs (avec le rapport de Lakanal) or Decree of the National Convention, of 19 July 1793, concerning authors’ property rights in all types of writing and the rights in their work of composers of music, painters and illustrators.
- 29.
See, e.g., brief focused discussion and material collected by Karl-Erik Tallmo at www.copyrighthistory.com.
- 30.
See Hegel (1821/1991).
References
Atkinson B, Fitzgerald B (eds) (2011) The library of essays on copyright. Ashgate, Farnham, pp 245–261
Bently L, Sherman B (1999) The making of modern intellectual property law. Cambridge University Press, Cambridge
Buinicki MT (2003) Walt Whitman and the question of copyright. Am Lit Hist 15(2):248–275
Deazley R (2004) On the origin of the right to copy – charting the movement of copyright law in eighteenth-century Britain (1695–1775). Hart, Oxford
Hegel GWF (1821/1991) Elements of the philosophy of right (Grundlinien der Philosophie des Rechts). Cambridge, Berlin
Locke J (1689/1988) Two treatises of government. Cambridge University Press, Cambridge
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Russell B (1946) A history of western philosophy. Allen & Unwin, London
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Atkinson, B., Fitzgerald, B. (2014). The Eighteenth Century: Liberty and Literary Property: Statutory Copyright. In: A Short History of Copyright. Springer, Cham. https://doi.org/10.1007/978-3-319-02075-4_4
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