The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
The Changing Role of Copyright
By Roger Parry
The Changing Role of Copyright
This is an extract from at time of writing forthcoming book by Roger Parry to be called The Ascent of Media and published in 2011. It provides a very brief overview of the development of copyright.
The nature of copyright has changed over the ages to reflect new technologies, new media types and new social attitudes. The past gives insights into the way a revised legal regime might develop to reflect the realities of control intellectual property in a time of digital media.
Before mechanical printing, that is before Gutenberg in the 1440’s, copyright was not a concept recognized or requested by authors. The costs of making copies of books by hand were very high, literacy very low and the number of copies made, therefore, very small. Most of the texts were classic religious or scientific issues. The value created went to the books “manufacturer” – the scribe or the monastery – rather than the original author who was often not an identifiable individual in any event.
Before printing was invented contemporary writers made their living in other ways. Chaucer, for example in the late 1300’s, wrote because he could afford to and he enjoyed Royal patronage. Edward III granted him “a gallon of wine a day, for life”. He probably controlled the making of the initial copies of his books himself so that he could enjoy some literary income from the limited sales.
At the time that William Shakespeare was writing his plays, around 1600, there was still no legal way for an author to own the copyright on his work although mechanical printing was well established. One reason he never published the text of his plays in his lifetime was that he made his money from the tickets at live performances. To keep their work propriety he, and most of his contemporaries, only provided their actors with the scripts of their own characters. The entirety of the play’s text remained with the writer to make unauthorized performance and publishing the full text more difficult.
The idea of patents over inventions of machines and techniques had been around since the 1400’s when the Republic of Venice recognized various glass-making methods as being “patent” and thus restricted their use to certain approved artisans. But the notion of being able to control an idea or to own intellectual property or a story was not familiar in the Middle Ages. It was a source of frustration to authors and playwrights that any printer rather than the writer themselves benefited from the sale of copies their work.
The scarcity and the value in a printed document was protected by the relatively high cost of making it and by the fact that, in England, the Crown had granted monopoly rights to members of The Stationers Company. They were the only ones who could legally, operate printing machinery. The Stationers enjoyed a form of copyright as all printed work had to be lodged with them in their library. The only mass media of the time was, thus, controlled by them by virtue of their printing monopoly rather than a legal framework over intellectual property.
But as science and industry evolved specialist writers wanted a way to retain the value of their own ideas. They lobbied for a solution and Queen Anne obliged. In 1710 the British Parliament enacted the so-called Statute of Anne – at the time the term “copyright” was not in use. The Statute was subtitled:
“An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors”
It went on to give the rationale as
“Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing Books and Writings without the Consent of the Authors (of such Books and Writings ) to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future… [ we propose this Act]
The idea was that to encourage writers to share knowledge and produce entertainment they must be allowed to obtain an income no matter who chose to publish their work. They, the writer, would own the copyright (not the printer) and it would stay with them for 14 years. At the time it was a radical idea but it proved very successful and paved the way for the professions of author and journalist and greatly helped the development of the novel as an art form.
It is probably no co-coincidence that what is regarded as the first English language commercial novel Robinson Crusoe by journalist Daniel Defoe was written just a few years after copyright protection was accepted and it proved the forerunner of many other works of fiction. It was this huge increase in books that led a group publishers to commission Dr Johnson to write his famous dictionary for which he was paid the handsome fee of 1,500 guineas to hand over his copyright to the consortium -an early example of an advance.
Initially the Americans colonies adopted the same rules but after their revolution they wanted their own copyright legislation which was written into the Constitution in 1787. Perhaps tellingly the US Copyright Clause made much more explicit the industrial importance of intellectual property. Its stated aim was:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
But America only recognized the rights of its own authors, not of foreigners.
Carey’s Library of Choice Literature was launched in America in 1838 with reprints of English novels that were sold a chapter at a time. No copyright was paid to the British authors, the paper and binding were cheap and subscribers received the book through the mail at the special low prices designed for newspapers. But the US Post Office, lobbied by traditional US booksellers, decided the publication was not a newspaper at all and it would be charged at a higher rate which put it out of business
Another format of unauthorized book re-printing was then tried by an American entrepreneur called Park Benjamin. He came up with what he claimed as a weekly paper which looked and felt like a magazine called Brother Jonathan. And this time the Post Office allowed it. The publication carried works by the likes of Charles Dickens (who did not get paid) and quickly had more than 30,000 subscribers. Dickens like other British writers was only able to capitalize on his American popularity by doing lucrative US speaking tours. These ticketed live events were a Victorian response to illegal copying which would be repeated by the music business 150 years later when record sales slumped in the face of digital downloads and live music become a key source of income.
The success of Brother Jonathan led others followed suit. Publishers would wait for boats to arrive from England and literally pirate new books at the docks and have them reprinted in the cheap American format within hours. A book that might have cost a pound in London cost pennies in New York.
The publications were called “pamphlet novels” and met with much disapproval. English geologist Charles Lyle when visiting the USA commented:
“Many are of the opinion that the small print of the cheap editions in the United States will injure the eyesight of a rising generation, especially as they are often read in railway cars, devouring whole novels, printed in newspapers in very inferior type”.
British publishers responded by stealing and reprinting the works of newly popular American writers like Mark Twain. These were the low cost “yellow-back” books which were sold by the newly formed WH Smith at railway stations. In the face of all this intellectual theft in 1886 the Bern Convention, which was inspired by the French author Victor Hugo, tried to give copyright international status. But it was not until more than 100 years later in 1988 that the UK and USA passed laws to bring them fully into line with the Bern principles.
Copyright or Intellectual Property (“IP”) is at the heart of the economics of all media and it is no surprise that books, as the first mass medium, were the first to encounter the issues relating to ownership of ideas.
The notion that a creative artist owns the right to reproduce his or her work was extended to the visual arts and sheet music, then to recorded sound, radio, television and film. The duration of an author’s or composer’s copyright has been extended time and again over the past three centuries (driven by vocal lobbying by publishers and music companies). In some cases it can now be 50 years or more.
Copyright law is constantly changing to keep up with new technologies. For example the 1911 UK Copyright act gave films protection as “works of dramatic art” defined as a “series of photographs” owned by the photographer. It was not until the 1956 they were protected and defined as “films” in their own right to include script, characters and music. It was the same 1956 Act that extended copyright law to television which was, then, a relatively recent invention and initially rights were protected as there was only the BBC involved.
Copyright is always trying to achieve a balancing act between providing a creator with fair reward for their work but not preventing open discussion of ideas. Limited use of copyright material – for example a quote in a newspaper or brief mention on television – can be done under what is called “fair dealing” exemptions in the UK and “fair use” in the USA
Copyright legislators have always lagged behind technology and practice and now the advent of digital media has called this whole area of law into question. Once any medium – text, sound or video – is digitized it is exceptionally simple to make a perfect copy at almost no cost, instantly, anywhere in the world.
Chaucer was protected by the cost of writing books by hand, Shakespeare by holding onto his originals, Dickens by charging for his readings and film makers, for many years, by the cost and complexity of their medium.
The logic that led Queen Anne and her ministers to “encourage learning” still holds today. Whilst it is true that many creative people will produce simply for the love of their art, much of the very best of media content needs investment. And creative artists deserve their reward. The Web has given us huge freedom in terms of access to a huge range of global media but without some new form of copyright solution it may threaten the very creativity and invention that we all admire and enjoy.
Roger Parry is Chairman of Future plc (consumer media), Media Square plc (marketing communications), Mobile Streams plc (mobile media) and YouGov plc (market research).
He was CEO of More Group plc and CEO of Clear Channel International. He was a founder and Deputy Chairman of Clear Media in China. He was a founder of Internet Indirect plc, a director of New Media Spark plc and of iTouch plc. He was Chairman of Johnston Press plc from 2001 to 2009. He is Chairman of Shakespeare’s Globe Trust.
Roger was a journalist with BBC and ITV, and a consultant with McKinsey& Co.
Roger was educated at the universities of Oxford and Bristol. He is the author of three books and is a Visiting Fellow of Oxford University. Roger is 56. Married, one son. He lives in London and Hampshire.
 The UK non-conformity with Berne was that pre the 1988 act there was no statutory protection of authors’ moral rights, and this was remedied in the 1988 Act. But the UK argument was that the moral rights were fully protected in common law, and the UK was a full, and original, signatory of Berne and not excluded because of this defect. The main reforming US Act was 1976, which liberalised the previously ‘offensive’ requirement for registration, but left in place the US manufacturing clause, which denied protection to foreign works not printed in the US. This was repealed in 1986 and the US was accepted into Berne in 1989. Clive Bradley.
Abstract: Copyright Laws have evolved over time to reflect changes in technology and social attitudes. They were not needed before the widespread use of mechanical printing. The legal power of copyright started in 1710 with the objective of “the encouragement of learning”. Before copyright the protection of authors was based in the high cost of making copies. Shakespeare never published the full text of his plays in his lifetime to protect his income. When copyright has been ignored authors like Charles Dickens and Mark Twain were forced to rely on paid speaking tours to make money in countries where their works were printed without permission. The extension of the protection of intellectual property to music, film and television has been slow and complex. The development of digital media and the Web now needs a new legal regime without which there is a threat to the continued development of the creative arts.