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The Book as Intellectual Property: 18th Century

The 18th century was an active time for copyright law. Cultural life in Europe was changing with the rise of the middle-class and increase in literacy rates. Annual book production increased dramatically over the century.

Authorship and Intellectual Property

The increasing demand for books meant that more people consider authorship as a way to make money. This new type of author was seeking commercial success for their books rather than relying on rich patrons for their income.

Hesse (2002, 32) notes that

"Rather than selling a manuscript to a publisher, authors increasingly sought simply to sell the 'rights' to a single edition. With greater frequency, secular authors began to claim that they were the creators of their own works rather than the mere transmitters of God's eternal truths."

In 1710 Daniel Defoe wrote

“A Book is the Author’s Property, ’tis the Child of his Inventions, the Brat of his Brain: if he sells his Property, it then becomes the Right of the Purchaser.”

Frustrations

Although laws were in place in many countries, authors and printers still experienced the frustrations of piracy. Joseph Addison and Richard Steele wrote about these concerns in a December 1, 1709 issue of The Tatler. They stated

"The progress of my intended account of what happened when Justice visited morals, is at present interrupted by the observation and sense of an injustice against which there is no remedy, even in a kingdom more happy in the care taken of the liberty and property of the subject than any other nation upon earth. This iniquity is committed by a most impregnable set of mortals, men who are rogues within the law; and in the very commission of what they are guilty of, professedly own, that they forbear no injury but from the terror of being punished for it. These miscreants are a set of wretches we authors call pirates, who print any book, poem, or sermon, as soon as it appears in the world, in a small volume, and sell it (as all other thieves do stolen goods) at a chapter rate. I was in my rage calling them rascals, plunderers, robbers, highwaymen. But they acknowledge all that, and are pleased with those, as well as any other titles; nay, will print them themselves to turn the penny. I am extremely at a loss how to act against such open enemies, who have not shame enough to be touched with our reproaches, and are as well defended against what we can say as what we can do..."

In 1898, George A. Aitken published and edited version of The Tatler with notes providing insights into the frustrations noted in Addison and Steele's article. It stated that

"a pirated edition of the Tatler which came out just at this time. The following advertisement concerning it, was subjoined to the next page in the original edition of the Tatler in folio, and often repeated into the subsequent numbers: 'Whereas I am informed, that there is a spurious and very incorrect edition of these papers printed in small volume; these are to give notice, that there is in the press, and will speedily be published, a very neat edition, fitted for the pocket..."

 

Statute of Anne of 1710

anneIn 1709, the Statue of Anne was established. Named for Queen Anne, the Statute passed Parliament and became law. The first copyright law, it acknowledged that "books and other writings had been published without the consent of authors or proprietors to their detriment and that of their families" (Copyright Law Revision, 1960, 68). The term of fourteen years was established for copyright protection with a fourteen year renewal.

The image on the right shows the Statue of Anne.

The statute established three principles for authors. First, the author has rights over his works. Second, protection continues upon publication. Third, the author is guaranteed protection based on the terms of the statute.

According to Ringer (1974, 10),

"As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under common law principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles : recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents."

This statute had a tremendous impact on intellectual freedom. According to the Copyright Law Revision (1960, 68), "this statute changed the purpose of statutory copyright from censorship to protection. This protection became necessary with the invention of printing, the first commercially feasible method of mass production of intellectual property."

The Statute included a provision for copyright deposits at several British libraries. In 1814, the British Museum Library began to expand its collection with these deposits. In 1834, Anthony Panizzi was appointed the Keeper of Printed Books. His strict enforcement of the copyright law enabled the library to nearly double by 1852.

In 1731 as the terms of protection for some books began to expire, lawsuits were introduced regarding common law questions.

To read a transcription of the statute, go to The Statute of Anne; April 10, 1710.

An Apology for Printers

Benjamin Franklin had lots of experience as a printer and author.

Read An Apology for Printers by Benjamin Franklin written in 1731. Also read the Publisher's Note, Preface and Introduction to the article written in 1955 on the occasion of Franklin's 250th birthday.

Alexander Donaldson and the Battle of the Booksellers

Although authors were increasingly involved in the publishing process, issues of intellectual property were of more interest to publishers and booksellers. Rose (1993, 4) states that

"the 'question of literary property' was essentially a commercial struggle, a battle between two groups of booksellers. At its heart was the limitation of the copyright term, an issue of little consequence to authors who normally sold their works outright to the booksellers."

Alexander Donaldson (c. 1727-1794) was a Scottish printer, publisher, and bookseller. In 1748, he established a bookshop in Edinburgh and later was involved in a number of printing firms. He was known for selling cheap reprints of books after their copyright had expired under the Statute of Anne. English poet Samuel Johnson disliked Donaldson saying that Donaldson "is a fellow who takes advantage of the law to injure his brethren" and that he was "no better than Robin Hood, who robbed the rich in order to give to the poor."

Donaldson's Some Thoughts on the State of Literary Property Humbly Submitted to the Consideration of the Public (1764) reflects his position regarding literary property in the 18th century.

The Stationers' Company and their publishers were frustrated when copyrights granted to works published before the Statue of Anne began to expire in 1731. They felt that their rights to exclusively publish books was common law and should be perpetual. Known as the Battle of the Booksellers, their thirty-year campaign involved a series of legal cases pressing for their right to prohibit other publishers from printing their works.

Donaldson felt that people had the right to access materials after their copyright expired. In the case of Donaldson v Beckett (1774), the Lords found in favor of Donaldson stating that there was no common law or perpetual copyright.

Loewenstein (2010, 21) states that

"though the decision in the case 'defeated' property, the proceedings yielded a communal concession that property - all property - is a social institution, no one of the visibilia of the created universe... The critical historian can learn from the disillusioned lawyer that he or she must not ask 'what is property?' and 'who owns it?' but rather 'what practices articulate the social relations of property?' and 'how are cultural arrangements manifest?' They must wonder 'what are the physics of ideas?'"

Commentaries of 1767

William Blackstone (1723-1780) (shown below right) was an English judge and author of Commentaries on the Laws of England (shown below left). This influential, four-volume treatise was published between 1765-1769 focused on rights of persons, the rights of things, of private wrongs, and of public wrongs. These books played an important role in English law and laid the foundation for the American legal system.

blackstoneblackstone

According to Bowker (1912), possibly the first person to use the term "copyright" may have been William Blackstone. In his Commentaries on the Laws of England Book the Secon - Chapter the Twenty Sixth: Of Title to Things Personal by Occupancy, he described the basic principles of copyright.

"When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he had made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may, perhaps, be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway, but, in case of a bargain for a single impression, or a sale or gift of the copyright, the reversion is plainly continued in the original proprietor, or the whole property transferred to another." (Blackstone, 1767).

Catharine Macaulay

macCatharine Maccaulay (1731-1791) was an English author and historian. She felt strongly that women should be educated.

Maccaulay wasn't a fan of Alexander Donaldson or Samuel Johnson. After the Lords ruled that there was no common law or perpetual copyright she pleaded her case in a treatise on literary property and copyright.

Maccaulay's A Modest Plea for the Property of Copyright (1774) provides what she considers as the author's perspective. She felt that publishers wouldn't invest in "elegant editions" if they knew that they would lose their rights to a work. Maccaulay (1774, 42-43) was concerned that people would wait for the cheap copies of books.

"Thus much for the matter of those publications which will succeed this great revolution in literary property. In regard to elegant editions, no proprietors of copyright, who hold such property on the life of an author, or for a small term of years, will find it worth their while to give very good editions of works, left to the public, who are fond of pennyworths in the article of books, should withhold their purchase 'till the property became common; and in their case, the stile, if not the sentiments of the author, will be miserably mangled, and the shops full of those wretched editions of works, which would disgrace even an Irish prefs.

This will be the wretched state of literature, and editions of authors, if literary property continues to stand on the footing which the Lord's decision has put it; - a footing almost as bad as it stood on when this country first emerged from a stage of such Gothic barbarity and ignorance, that the mighty tyrants of the land could neither spell nor scribble their names and titles."

Maccaulay (1774, 46) concludes with a plea to Nobleman.

"when this learned, this excellent Nobleman, considers this important subject in all its extensive view, he will be the first to move for a bill to relieve the holders of copy right from their present distress; to settle the lucrative advantage of authors for their writings on a permanent footing; and thus to encourage useful literature, by rendering it convenient to the circumstances of men of independent tempers to employ their literary abilities in the service of their country."

Copyright Act of 1783

Colonial lawyers were familiar with the English copyright law. Twelve states passed copyright laws prior to the work of the Continental Congress. Delaware chose not to pass a copyright law.

On May 2, 1783, a resolution was passed by the Continental Congress recommending that the States secure the "authors or publishers of new books the copyright of such books". At that time copyrights were secured for "not less than fourteen years from the first publication" and could be renewed for another fourteen years. Each state then created their own acts similar to those established by the Continental Congress. For instance Massachusetts set a twenty-one year exclusive right.

The New Hampshire act spoke specifically to intellectual aspects of the literary production stating

"as the improvement of knowledge, the progress of civilization, and the advancement of human happiness, greatly depend on the efforts of ingenious persons in the various arts and sciences; as the principal encouragement such person can have to make great and beneficial exertions of this nature, must consist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind: Therefore, to encourage the publication of literary productions, honorary and beneficial to the public, be it enacted..."

In Connecticut the act specifically stated that the purpose was "for the encouragement of literature and genius." However the body of the text also focused on financial gains stating

"whereas it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind."

In some states the emphasis was on respecting literary property. For instance Maryland stressed that injury was caused when books are reprinted without the consent of the author or proprietors.

Connecticut, Copyright, and Author Petitions

Prior to 1783, authors often sent their books back to England to be printed. Much of the Colonial printing business was in printing broadsides, pamphlets, and dealing with imported books.

Andrew Law petitioned the Connecticut General Assembly in October of 1781 regarding his music book titled A Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody. Because not copyright law was in place, he was granted a five-year patent.

Noah Webster petitioned four states in 1782 to protect his book A Grammatical Institute of the English Language.

John Ledyard (1751-1789) appealed to the Connecticut General Assembly for copyright protection for A Journal of Captain Cook's Last Voyage to the Pacific Ocean (1873). The book documented Cook's third and final voyage around the world and was the first travelogue to document Hawaii. Rather than passing a private bill for Ledyard, the assembly chose to pass the first general colonial copyright statute. Ledyard became the first author to register a book under a state copyright law in Connecticut on January 29, 1873.

Below left is an image of John Ledyard. Below right is the title page to A Journal of Captain Cook's Last Voyage to the Pacific Ocean (1873), the first book to be registered under state copyright law.

johnsledyard

Federalist Papers

madisonThe Federalist Papers were published between October 1787 and August 1788. James Madison wrote a section called Number 43 related to the "miscellaneous powers" that began with the topic of copyright.

It stated

"A power 'to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.' The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress."

Copyright Act of 1790

Creation of a federal copyright system was discussed at the Constitutional Convention in Philadelphia on August 18, 1787. According to Evina (2004), James Madison of Virginia and Charles Pinckney of South Carolina were both delegates that submitted proposals to be reviewed by the Committee on Detail. Eventually these proposals became Article I, Section 8 of the U.S. Constitution giving the Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times the Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

ramsayOn April 15, 1789, author, physician, and historian David Ramsay (1749-1815) of South Carolina submitted a petition to South Carolina Representative Thomas Tudor Tucker requesting "that a law may pass securing to your petitioner his heirs and assigns for a certain term of years the sole and exclusive right of vending and disposing." (Evina, 2004).

The image on the left shows David Ramsay.

Benjamin Huntington of Connecticut presented a bill known as HR 10 on June 23, 1789 during the First Session of the First Congress. During the Second Session of the First Congress, an amended bill including just the copyright elements without mention of patents was passed.

On May 31, 1790, the first federal copyright law of the United States of America was enacted by Congress and signed by President George Washington. Known as the Copyright Act of 1790, it stated that it was "an act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies." Similar to the acts passed by states, it set the length at fourteen years with a renewal of another fourteen years. According to Evina (June 2004),

"several highlights of HT 10 relating exclusively to copyrights include: the bill applied only to books; it prohibited unauthorized printing or importation from abroad; it required registration in an unspecified depository; and it expressly stated that nothing in the act prohibited importing, reprinting, or selling books within the United States that had been written or printed in foreign countries."

This refusal to regulate materials from foreign countries would become an issue of contention over the next hundred years.

The first copyright entry was for The Philadelphia Spelling Book by John Barry on June 9, 1790. It was registered in the U.S. District Court of Pennsylvania.

Skim the Copyright Act of 1790.

Copyright and the Underground in France

According to Darnton (1979, 27-28), in eighteenth century France

"legality in publishing derived from a privilege, the exclusive right to reproduce a text, granted by the grace of the king, administered through the Direction de la librarie, and registered with the Communaute des libraires et des imprimeurs of Paris. Although they had something in common with modern copyrights, book privileges, like privileges in general under the Old Regime, involved ancient notions and institutions - the authority of the king, a baroque bureaucracy, and a monopolistic guild.

By granting a privilege, the king did not merely allow a book to come into being: he put his stamp of approval on it; he recommended it to his subjects, speaking through one or more censors who expatiated on its importance and even its style in long-winded permission and approbations that were usually printed in the book along with a formal lettre de pivilege from the king. Privileges were also properties, which could be bought and sold... but they extended only as far as the king's authority. Outside the kingdom, other publishers could reprint a French text as often as they pleased, unless their own governments objected. The privileged publisher in France might cry about piracy, but he could only ask the Directeur de la librairie, the customs officials, the guild inspectors, and the police to close the borders to the rival edition and to confiscate any copies that might reach the domestic market.

The whole system stimulated the production of French books outside France because the spread of the French language had created a demand for cheap, pirated editions everywhere in Europe and because only books of unalloyed orthodoxy could be published legally within the kingdom. By its very nature, the organization of publishing in France forced the Enlightenment underground into exile - into the print shops of Amsterdam, Bouillon, Geneva, and Neuchatel."

Authorities in France faced a dilemma. They were allowing a multi-million-livre publishing industry to exist underground and beyond its borders. Administrators like Malesherbes recognized this problem and created a grey area of the law that granted special permissions that authorized books without the royal imprint. When the clergy or other government officials questioned this practice, they would find a way to informally deal with the situation.

Darnton (1979, 523) notes that

"eighteenth-century publishing was no gentlemanly game... the publishers lived in a different world from that of their modern counterparts, and they operated from different premises. Lacking the protection of adequate copyrights, surrounded by pirate, hounded by spies, and threatened by traitors, they could not afford to be truthful. So they told the public whatever they thought would sell books."

The French Revolution of 1789 ended privilege. In 1793, France enacted their own copyright law based on the recognition that authors have a natural right to control their creative works. The law views the works as more than simply property. The term of the copyright was connected to the life of the author.

Resources

Addison, Joseph & Steele, Richard (December 1, 1709). The Tatler, 101. Available: http://archive.org/stream/tatlerste02steeuoft#page/346/mode/2up

Aoki, Keith, Boyle, James, & Jenkins, Jennifer (2006). Bound by Law? Tales from the Public Domain. Available: http://web.law.duke.edu/cspd/comics/digital.php

Armstrong, Elizabeth (2002). Before Copyright: The French Book-Privilege System, 1498-1526. Cambridge University Press. Preview Available: http://books.google.com/books?id=D_RosDW0L3UC

Bowker, Richard Rogers (1912). Copyright: Its History and its Law. Houghton Mifflin Company. Available: http://archive.org/stream/copyrightitshist00bowkuoft

Boyle, James (2013). The Public Domain: Enclosing the Commons of the Mind. Yale University Press.

Boyle, James (Spring 2003). The second enclosure movement and the construction of the public domain. Law & Contemporary Problems, 66(33), 33-74.

Boyle, James (1997). Shamans, Software and Spleens: Law and Construction of the Information Society. Harvard University Press. Preview Available: http://books.google.com/books?id=125Sc5fAVP4C

Chafee, Zechariah (July 1945). Reflections on the law of copyright. Columbia Law Review, 4. Available: http://www.jstor.org/discover/10.2307/1117985

Cole, John Y. (1995). Of Copyright, Men, and a National Library. Library of Congress. Available: http://www.copyright.gov/history/125thanniversary.pdf

Copyright Law Revision (1960). Studies.

Darnton, Robert (Summer 1982). What is the history of books? Daedalus, 111, 65-83.

Drone, Eaton S. (1879). A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States. Little, Brown, and Company. Available: http://archive.org/stream/atreatiseonlawp01drongoog#page/n4/mode/2up

Evina, Frank (May 2004). Copyright Lore. Copyright Notices. Available: http://www.copyright.gov/history/lore/2004/may04-lore.pdf

Evina, Frank (June 2004). Copyright Lore. Copyright Notices. Available: http://www.copyright.gov/history/lore/2004/june04-lore.pdf

Evina Frank (September 2004). Copyright Lore. Copyright Notices. Available: http://www.copyright.gov/history/lore/2004/sept04-lore.pdf

Evina, Frank (February 2005). Copyright Lore. Copyright Notices. Available: http://www.copyright.gov/history/lore/2005/feb05-lore.pdf

Fine, Richard (2010). American authorship and the ghost of moral rights. Book History, 13, 218-250.

Johns, Adrian (1998). The Nature of the Book: Print and Knowledge in the Making. University of Chicago Press. Available: ACLS Humanities E-Book at http://hdl.handle.net.proxy.ulib.uits.iu.edu/2027/heb.01007.0001.001

Johns, Adrian (2010). Piracy: The Intellectual Property Wards from Gutenberg to Gate. University of Chicago Press. Preview Available: http://books.google.com/books?id=jFMEPUO7LS0C

Johns, Adrian (2010). The piractical enlightenment. In, C. Siskin & W. Warner, This is Enlightenment. University of Chicago Press, 301-322.

Library Reproduction of Copyrighted Works (1983).

Library Reproduction of Copyrighted Works (1988).

Loewenstein, Joseph (2002). Ben Jonson and Possessive Authorship. Cambridge University Press. Preview Available: http://books.google.com/books?id=A_0zSaYp7mQC

Loewenstein, Joseph (2010). The Author's Due: Printing and the Prehistory of Copyright. University of Chicago Press. Preview Available: http://books.google.com/books?id=AL9pDlFgoVIC

Lommen, Mathieu (ed.) (2012). The Book of Books: 500 Years of Graphic Innovation. Thames & Hudson.

Maccaulay, Catharine (1774). A Modest Plea for the Property of Copyright. Available: http://goo.gl/gtgx4

Nierman, Judith (August 2005). UCC Finally Protected American Authors Abroad. Copyright Notices. Available: http://www.copyright.gov/history/lore/2005/082005-lore.pdf

Ng, Alina (2012). Literary Property and Copyright. Northwestern Journal of Technology and Intellectual Property, 10(7)4, 531-577. Available: http://goo.gl/lwDkS

Pallante, Maria (March 4, 2013). The Next Great Copyright Act. US Copyright Office. Library of Congress. Available: http://www.copyright.gov/docs/next_great_copyright_act.pdf

Pallante, Marcia (April 12, 2012). Orphan Works & Mass Digitization: Obstacles & Opportunities. US Copyright Office. Library of Congress. Available: http://www.copyright.gov/regstat/2013/Pallante-OrphanWorks.pdf

Pollard, Alfred (1912). Fine Books. G.P. Putnam's Sons. Available: http://archive.org/stream/finebooks00pollrich#page/n9/mode/2up

Reitz, Joan M. (2012). ODLIS: Online Dictionary for Library and Information Science. ABC-CLIO. Available: http://www.abc-clio.com/ODLIS/odlis_a.aspx

Ringer, Barbara (1974). The Demonology of Copyright. The Second of the R.R. Bowker Memorial Lectures New Series. R.R. Bowker. Available: http://www.copyright.gov/history/demonology_of_copyright.pdf

Rogers, Edward S. (December 1908). Some Historical Matter Concerning Literary Property. Michigan Law Review, 7(2), 101-112. Available: http://books.google.com/books?id=rQJLAAAAYAAJ

Rose, Mark (1993). Authors and Owners: The Invention of Copyright. Harvard University Press. Preview Available: http://books.google.com/books?id=HMB4hdF4lTMC

Rudd, Benjamin W. (1971). Notable Dates in American Copyright, 1783-1969. Available: http://www.copyright.gov/history/dates.pdf

Russ, Benjamin W. Notable Dates in American Copyright, 1783-1969.

Saunders, David (1992). Authorship and Copyright, Routledge.

Simonova, Natasha (2012). Passing through Vanity Fair: The Pilgrim's Progress in the marketplace." Authorship, 2(1). Available: http://ojs.ugent.be/authorship/article/view/761/752

Strauss, William (July 1959). The Moral Right of the Author. Available: http://www.copyright.gov/history/studies/study4.pdf

Towheed, Shafquat (2007). Geneva v. Saint Petersburg: two concepts of literary property and the material lives of books in Under Western Eyes. Book History, 10, 169-191.

Weil, Arthur (1917). American Copyright Law. Callaghan and Company. Available: http://archive.org/stream/americancopyrigh00weil#page/n5/mode/2up

West, James L. W. (1992). The Chace Act and Anglo-American Literary Relations. In, Studies in Bibliography, 45.

Wirten, Eva Hemmungs (2011). A diplomatic salto mortale: translation trouble in Berne, 1884-1886. Book History, 14, 88-109.

WIPO (2011). The Changing Face of Innovation.


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