A second blog post in a week? Blimey.
The pejorative term ‘pirate’ is often used for those who infringe on copyright, and I’d assumed (for some reason) it was a modern term; maybe stemming from the pirate radio of the 60s, made popular in the Home Taping Is Killing Music era, etc. Turns out I was wrong by nearly 400 years.
In English, the word ‘pirate’ dates from at least the late 14th century, but the first recorded use of the word to mean an intellectual property infringer rather than marauding sea bandit, is by Elizabethan author Thomas Dekker; in his The Wonderful yeare (1603), among the excessively flowery prose in the introduction, he fulminates:
Banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme: doome them euerlastingly to liue among dunces: let them not once lick their lips at the Thespian bowle, but onely be glad (and thanke Apollo for it too) if hereafter (as hitherto they haue alwayes) they may quench their poeticall thirst with small beere.
However – admittedly I’m not great on my Elizabethan English – it appears the aim of his ire are plagiarists and derivative poets, rather than people reproducing his works word-for-word; nevertheless the word gradually came to mean the latter; the OED’s first use of the word in this sense is Daniel Defoe in 1703, discussing in the introduction to an edition of The True-Born Englishman :
Had I wrote it for the Gain of the Press, I should have been concern’d at its being Printed again and again, by Pyrates, as they call them, and Paragraph-Men:
Interestingly, Defoe wasn’t that displeased; he goes on to say:
But would they but do it Justice, and print it True, according to the Copy, they are welcome to sell it for a Penny, if they please.
Ironically, use of the word ‘piracy’ to denote what we would call copyright infringement predates the first copyright law, the Statute of Anne 1709, to which we turn to now. That’s not to say, however, there were measures before that, and sometimes the context of how copyright came about gets forgotten; so it’s worth taking a look.
The practice of copying others’ works was rare – although not non-existent – before the invention of the printing press; the natural constraints of writing and scribing out whole texts made it impossible to mass-produce copies; a rare and incredibly early example of accused copying comes from the 560s, with King Dermot of Ireland mediating a dispute between Fennian of Moville and St. Columba – the former accusing the latter of copying out one of his Psalters (the king ruled in favour of Fennian). But then this was not just historical accident – by making reading & writing the preserve of the clerical class, and making it a deliberately laborious process (think of all that gorgeous blackletter), the Church could control production and distribution of knowledge much more strictly. With no mass readership and no profit motive, unauthorised copying was not a concern; preventing ‘piracy’ wasn’t even a side-benefit, as it did not figure on their radar.
The advent of the printing press certainly meant there were more cases of infringement (an early case cited is that of Wynken de Worde, whose work was copied without authorisation in 1533). Printing patents were an early attempt to regulate the industry, allowing an individual a right to publish works – either a specific work, or more importantly, all of those within a certain subject, often in perpetuity. This was the first attempt to regulate copying – as much out of rewarding favourites and acolytes as to protect markets. But patents had their flaws – by creating a monopoly on subjects they priced many works out of the market, encouraging unauthorised books. And they were only additive – the right had to be granted, so new patents had to be issued for new fields of study; and they did nothing on preventing seditious or undesirable material.
The Stationers’ Company, the guild of printers, opposed the patent system, with its restrictions on general publishing being an extreme barrier to trade. Additionally, with the country increasingly in religious turmoil, clamping down on rebellion and sedition was essntial. With this in mind, in 1557 Queen Mary I granted the Stationers Company an exclusive licence to print and publish, with a register of all published books. Rather than grant additional rights to individuals on an ad hoc basis, this formalised a system covering all publication; monopolies on particular subjects were eschewed in favour of rights linked to individual works, and the rights were entirely the publisher’s – it did not matter if the author was living, or long dead (so it covered ancient works as well as contemporary). You could not publish without being a member of the Company, and members were restricted on what could be published enforced by the notorious Star Chamber. As William Patry details:
After the chartering of the Stationers Company, Star Chamber decrees regulating printing were issued in 1566, 1586 (a particularly important one, drafted by Archbishop of Canterbury John Whitgift), 1623, and 1637. This final decree represented an impressive codification of all the Star Chamber’s printing ordinances. Consisting of 33 clauses, the topics covered in the 1637 decree included prohibitions on the printing of books and pamphlets not licensed by or entered upon the register books of the Stationers Company, and a requirement that licensees ensure that the books they printed did not contain material contrary to the Christian faith and doctrine, or to the discipline of the Church or State. Perhaps this last requirement explains the expansion of the Star Chamber’s authority to include ballads, charts, and portraiture, in addition to books.
Regulations and censorship by Church and State continued up until the turn of the 18th century, although clandestine and illegal publishing still flourished underground. Gradually, the hold of the Stationers Company ebbed away; the Star Chamber was abolished in 1640. The rise of the Enlightenment in the late 17th century brought with it the concepts of enduring literature, personal liberty and individual genius, as did the influence of philosophers such as Locke and authors such as Milton, and growing resentment about the monopoly held by the Stationers. Censorship and control of every book published in England was no longer Parliament’s priority, and in 1694 the Stationers’ monopoly was not renewed.
The Stationers were not, as you can imagine, very happy. For over 100 years they had enjoyed a collective monopoly, which itself had been a way for them to break individual’s monopolies, with the support of an oppressive government anxious to maintain order. With the old political conflicts crumbling away, the main reason for their continued monopoly was economic; however they failed to convince Parliament of the need to secure perpetual publishers’ rights, with a series of proposed bills in the early 1700s that never made it. As a dissenting notes from eleven members of the House of Lords put it, they opposed such bills:
…because it subjects all learning and true information to the arbitrary will and pleasure of a mercenary, and perhaps ignorant, licenser; destroys the property of authors in their copies; and sets up many monopolies.
Facing losing everything, the publishers changed tack; previously having emphasised the hurt to their own industry (and those that depended on it), they started to side with the author and the damage to their livelihood, as well as the negative impact on learning and education in the country. The focus shifted from protecting a valuable industry to safeguarding the nation’s intellect. When, finally, the Statute of Anne was passed in 1710, giving a limited, not perpetual, copyright term to authors, not publishers, it was tellingly entitled: “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned” [emphasis mine].
The first fully-fledged modern copyright law in the world, it was the result not just of its time but the culmination of a series of legal measures that had their roots in another era entirely; in that time the economics, politics and philosophy of English society had shifted enormously; the bill both reflected that change but had its roots in a tradition of monopoly and entitlement stretching back centuries.
Postscript: Comparisons of the Stationers’ attempts to reframe the debate from their economic position to the wellbeing of the national culture, to those of the record companies using the state of music as a rhetorical position to defend their economic interests, are left as an exercise for the reader.
Sources William Patry’s Copyright Law and Practice was excellent stuff, as is An Historical Sketch of the Law of Copyright by John James Lowndes, as well as Monopoly Defeating Mechanisms: Will they Function in The Digital World? by Hasina Haque, all proved invaluable.