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Privilege and Property

Privilege and Property: Essays on the History of Copyright

Ronan Deazley
Martin Kretschmer
Lionel Bently
Copyright Date: 2010
Published by: Open Book Publishers
Pages: 450
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    Privilege and Property
    Book Description:

    What can and can’t be copied is a matter of law, but also of aesthetics, culture, and economics. The act of copying, and the creation and transaction of rights relating to it, evokes fundamental notions of communication and censorship, of authorship and ownership—of privilege and property. This volume conceives a new history of copyright law that has its roots in a wide range of norms and practices. The essays reach back to the very material world of craftsmanship and mechanical inventions of Renaissance Italy where, in 1469, the German master printer Johannes of Speyer obtained a five-year exclusive privilege to print in Venice and its dominions. Along the intellectual journey that follows, we encounter John Milton who, in 1644 accused the English parliament of having been deceived by the ‘fraud of some old patentees and monopolizers in the trade of bookselling’ (i.e. the London Stationers’ Company). Later revisionary essays investigate the regulation of the printing press in the North American colonies as a provincial and somewhat crude version of European precedents, and how, in the revolutionary France of 1789, the subtle balance that the royal decrees had established between the interests of the author, the bookseller, and the public, was shattered by the abolition of the privilege system. Some of the essays also address the specific evolution of rights associated with the visual and performing arts. The volume is a companion to the digital archive Primary Sources on Copyright (1450-1900), funded by the UK Arts and Humanities Research Council (AHRC). Privilege and Property is recommended in the Times Higher Education Textbook Guide (November, 2010).

    eISBN: 978-1-906924-20-1
    Subjects: Law

Table of Contents

  1. Introduction. The History of Copyright History: Notes from an Emerging Discipline.
    (pp. 1-20)
    Martin Kretschmer, Lionel Bently and Ronan Deazley

    History has normative force. There was no history of colonialism, gender, fashion or crime until there were contemporary demands to explain and justify certain values. During much of the twentieth century, ‘copyright’ history (the history of legal, particularly proprietary, mechanisms for the regulation of the reproduction and distribution of cultural products – as opposed to the history of art, literature, music, or the history of publishers and art-sellers) was not thought of as a coherent, or even necessary field of inquiry. It was a pursuit of individual often rather isolated scholars, not an urgent contribution to knowledge.¹

    This was not always...

  2. 1. From Gunpowder to Print: The Common Origins of Copyright and Patent
    (pp. 21-50)
    Joanna Kostylo

    The history of intellectual property has been subject to much revision in recent years. It no longer appears to be the domain of legal studies alone but has become a focus of inquiry across diverse fields and disciplines. Most of this work has focused on copyright, while the history of patents remains largely unexplored by this burgeoning area of cross-disciplinary studies. This is partially due to the traditional legal taxonomy which distinguishes sharply between these two institutions, a taxonomy which took root from the eighteenth century onwards.¹ This paper challenges this distinction by exploring some early developments and cross-fertilisation between...

  3. 2. ‘A Mongrel of Early Modern Copyright’: Scotland in European Perspective
    (pp. 51-66)
    Alastair J. Mann

    The copyright history of Scotland is generally seen to be a post-1710 phenomenon.¹ English and European commentators, but also Scottish, have been guilty of this somewhat lazy approach. Scottish historians of copy right, such as they are, have however lauded the role of Scottish judges in the evolution of British copyright law in the eighteenth century. The significance of Scottish legal traditions and theory over the interpretation of copyright, helped lead, it is asserted, to the final judgment of the House of Lords in 1774. Certainly this interest in the ‘battle of the booksellers’ has encouraged an output focusing on...

  4. 3. The Public Sphere and the Emergence of Copyright: Areopagitica, the Stationers’ Company, and the Statute of Anne
    (pp. 67-88)
    Mark Rose

    Associated with the German philosopher Jürgen Habermas, the notion of the public sphere, or more precisely, the bourgeois public sphere, has become ubiquitous in eighteenth century cultural studies. Habermas has also been invoked by scholars concerned with media and democratic discourse. But so far as I know the relationship between the emergence of the public sphere and the emergence of copyright in early modern England has not been much discussed. What I want to do in this paper, then, is to explore the relationship between the Habermasian public sphere and the inauguration of modern copyright law in the Statute of...

  5. 4. Early American Printing Privileges. The Ambivalent Origins of Authors’ Copyright in America
    (pp. 89-114)
    Oren Bracha

    Latent in existing accounts of early American copyright is a particular version of American exceptionalism. These accounts tend to ignore the colonial period or minimise its significance to the vanishing point. It is well established that in England and the Continent copyright had a rich and complex history that extends back to the early sixteenth century. By contrast, the reader of standard American copyright history is likely to be left under the impression that, with the exception of an early isolated incident in Massachusetts, nothing interesting happened in that region until the late eighteenth century. The flipside of the coin...

  6. 5. Author and Work in the French Print Privileges System: Some Milestones
    (pp. 115-136)
    Laurent Pfister

    In France, the history of literary property was born with the concept of literary property. Since the eighteenth century, those contesting the concept of literary property have endeavoured to locate it within an historical context, with both supporters and opponents developing historical narratives to bolster their particular claims. In hisLetter on the booktrade, in 1763, Diderot devotes lengthy passages to the history of the subject in order to demonstrate its long-standing provenance.¹ In 1859, with the controversies about the duration ofdroit d’auteurin full swing, the lawyer Édouard René de Laboulaye published a number of historical sources all...

  7. 6. A Venetian Experiment on Perpetual Copyright
    (pp. 137-156)
    Maurizio Borghi

    The recognition that rights pertaining to intellectual creations are of limited duration is one of the ‘constitutional moments’ in the making of many copyright laws at the end of the eighteenth century. In the English case ofDonaldson v. Becket(1774) the House of Lords rejected the claim that authors were entitled to perpetual copyright in their published work, and decisively affirmed the pre-eminence of the statutory time-limited protection.¹ In France, the royalarrêtof 30 August 1777 on the duration of privileges established a seminal distinction between authors’ absolute property right in their creations and the limited duration in...

  8. 7. Les formalités sont mortes, vive les formalités! Copyright Formalities and the Reasons for their Decline in Nineteenth Century Europe
    (pp. 157-206)
    Stef van Gompel

    At present, the national copyright laws of most countries do not contain copyright formalities such as the registration of copyright, the deposit of copies, the affixation of a copyright notice, and so on. This is due, in particular, to the prohibition on formalities, which was introduced into the international copyright system at the 1908 Berlin Revision of the Berne Convention for the Protection of Literary and Artistic Works.¹ This prohibition on formalities is inspired mainly by pragmatic reasoning. When international copyright protection was first explored, there was a strong desire to relieve authors from the multitude of formalities with which...

  9. 8. The Berlin Publisher Friedrich Nicolai and the Reprinting Sections of the Prussian Statute Book of 1794
    (pp. 207-240)
    Friedemann Kawohl

    In the eighteenth century, the Holy Roman Empire consisted of hundreds of mostly small, German-speaking principalities or lands. Trading across these borders posed particular challenges to the book market. The War of the Austrian Succession in the 1740s weakened the power of the Habsburg dynasty which had provided the Emperor for centuries. The Viennese censorship regime was bound to book privileges individually bestowed on publishers and authors. The privilege fees also offered a continuous stream of income for the Treasury, and the Austrian trade balance benefited from domestic reprints of books that their original North German publishers had failed to...

  10. 9. Nineteenth Century Controversies Relating to the Protection of Artistic Property in France
    (pp. 241-254)
    Frédéric Rideau

    During the second-half of the eighteenth century, the Parisian booksellers, like their counterparts in London who were waging a ‘battle’ against the Scottish book trade, sought to defend their monopolies on books against their provincial rivals by justifying them on Lockean property grounds.¹ In France, most of the fundamental concepts of the author’s right had in fact been discussed with regard to literary productions, and a perpetual property right was ultimately secured to the author by the Royal Decrees of 30 August 1777. To a certain extent, the king himself recognised, following Louis d’Héricourt, that privileges could bear a different...

  11. 10. Maps, Views and Ornament: Visualising Property in Art and Law. The Case of Pre-modern France
    (pp. 255-288)
    Katie Scott

    In art, in printed images particularly, privilege, or the legal precursor of copyright in French law, derived originally from that pertaining to published texts; indeed, from the mid-seventeenth century,intaglioprintmaking having no corporate body of its own, privilege in prints was administered by the Paris Corporation of booksellers, publishers and printers.¹ Consequently, it is habitually treated as a derivative instance of the law, as a poor relation in an expanding family of intellectual property rights. Painting, by this account, followed poetry not only as the misprision of Horace’s epigrammatical phrase suggested, in mode and function, but also, when mechanically...

  12. 11. Breaking the Mould? The Radical Nature of the Fine Arts Copyright Bill 1862
    (pp. 289-320)
    Ronan Deazley

    Throughout the mid to late nineteenth century the issue that came to dominate the concerns of the national copyright regime was that of international copyright relations. From the 1830s onwards, a network of bilateral copyright treaties began to mushroom throughout Europe. In 1838, Britain passed the International Copyright Act which was designed to facilitate the negotiation of such bilateral arrangements, although efforts under the 1838 legislation came to nothing as no agreements were ever concluded under the Act. After the enactment of a second International Copyright Act in 1844, however, the British government enjoyed more success in negotiating a series...

  13. 12. ‘Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words’: The Birth of the Performing Right in Britain
    (pp. 321-346)
    Isabella Alexander

    ‘Neither bolt nor chain, iron safe nor private watchman, can prevent the theft of words’.¹ In 1872, the playwright James Robinson Planché penned these words in his autobiography. Planché is not well known today – indeed his reputation was in decline during his own lifetime. However, by the time of his death in 1880 Planché had written around one hundred and eighty plays for the theatre, covering every type of dramatic genre. He was also a tireless campaigner for improvement of the theatre and the rights of dramatic authors. In 1830 he convinced the Member of Parliament and fellow-dramatist George Lamb...

  14. 13. The Return of the Commons – Copyright History as a Common Source
    (pp. 347-358)
    Karl-Nikolaus Peifer

    The recent history of copyright law arguably has been shaped by an Anglo-American understanding of copyright as property. The integration of intellectual property rights into the global trade system with the WTO TRIPS Agreement,¹ the WIPO Internet Treaties² and subsequent implementations reveal adroit d’auteurconcept in retreat, even in the European Union. The central economic premise of the property-based approach is one of exclusivity and control. In a paradigm of scarcities, incentives can be best provided by dictating terms of use. In the digital environment, this logic has helped the publishing and entertainment industries to defend technological measures of...

  15. 14. The Significance of Copyright History for Publishing History and Historians
    (pp. 359-368)
    John Feather

    But of course there was – or there was doubt about what his ‘death’ actually meant. Similarly, there is no doubt that copyright is a significant issue in the publishing industry, and therefore in the history of publishing, and therefore for the publishing historian. Or is there?

    In the history of copyright in Britain, it has long been accepted that one of the key sequences of events was a series of cases in the courts in England and Scotland between 1765 and 1774, culminating inDonaldson v. Becketin 1774.¹ It is argued that the House of Lords’ decision in this...

  16. 15. Metaphors of Intellectual Property
    (pp. 369-396)
    William St Clair

    In this essay, I discuss the main metaphors within which intellectual property has historically been conceptualised, presented, and debated in England; in the United Kingdom of Great Britain (1707); the United Kingdom of Great Britain and Ireland (1801); and the United Kingdom of Great Britain and Northern Ireland (1922). The law and practice of intellectual property were different in Scotland and Ireland before they became constituent parts of the United Kingdom, and practice in Scotland continued to differ from practice in England for around a century after a statutory copyright regime for the whole of the United Kingdom of Great...