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April 2011, ISBN 978-0-9689523-9-9 Harry Hillman Chartrand, PhD May 12, 2011 |
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Findings - Post-Common Law (i) Authors’ Rights & Liabilities (ii) Carpenters, Joiners & Digital Locks (iii) Enclosure of the Public Commons & Public Domain (iv) Official Censorship & Blackberries (vi) New Technologies & Backlogs (vii) Perpetual & Inheritable Property (viii) Printing Patents & Orphaned Works
The more things change; The more they stay the same. Old French Saying In compiling the Chronology, composing the Glossary of the Times and tracing the evolution of copyright and performing rights I am led to eight findings tying together then and now. They reflect, I believe, the animating spirit of contemporary Law if not its black letter. Before presenting the findings, however, it is necessary to clarify the meaning of the pre-Common Law era. As noted in the beginning of this Introduction, Common Law is case-based law reasoning from precedents set in prior cases. This is called casuistry. Casuistry, however, must begin again if changes or amendments are made to Statutory Law having the effect of negating such precedents. Prior to passage and coming into force of the Statute of Queen Anne in 1709/10, there was in fact a body of Common Law concerning copyright. It begins with the 1640 Habeas Corpus Act and its 1640 companion statute abolishing the prerogative Court of the Star Chamber created by Henry VII in 1487 and the Court of High Commission for Causes Ecclesiastical created by Elizabeth I in 1559. Jurisdiction over printing and the book trade was transferred to the Common Law courts. Common Law courts did not, however, respond in a timely or effective manner. The result was a licentious freedom of the press that compelled the Commonwealth in 1643 to pass licensing Ordinances that, among other things, reinstated the search and seizure powers of the Stationers’ Company of London. With Restoration of the monarchy in 1660 Commonwealth legislation, in turn, became null and void resulting again in a period of licentious press freedom. It should be noted that the same flood of political libels flowing from a world without copyright also confronted the French Revolutionaries of 1789 (Hesse 1990). Accordingly, in 1662 b the Licensing Act was passed that again, among other things, reinstated the search and seizure powers of the Stationers’ Company. It is important to note that Commonwealth and Restoration licensing statutes were ‘sun-set’ laws, i.e., they had to be renewed or they would lapse. A lapse of seven year thus occurred between 1679 and 1685. This time, however, the Common Law courts reacted vigorously. The Justices met as a group concluding in the words of Chief Justice Scroggs of the King’s Bench: In short it is the proper business of this Court, and our Duties that sit Judges here, to take care to prevent and punish the mischiefs of the Press. (Sensabaugh 1950, 102) Similarly when the Licensing Act of 1662 finally expired in 1695 the Common Law courts quickly filled the gap. However, Common Law cases between 1640 and 1709/10 concerned the ‘right to copy’, i.e., Stationers’ perpetual copyrights; the ‘right to a copy’, i.e., prerogative printing patents and laws against seditious or treasonous libels, the principal subject of licensing acts from the time of Henry VIII onwards. While some jurists questioned why heretical and schismatic religious works should be a concern of the Common Law courts it was concluded that given the monarch was head of the Church of England such works were seditious and treasonous. Both forms of copyright were abolished by the Statute of Queen Anne and accordingly their Common Law precedents became null and void. Nonetheless, the business practices and ethics of the book and printing trade were recognized under the Statute, e.g., registration of a title to obtain copyright “in such Manner as hath been usual” (See Annex B-2, s. II). The Crown also retained regulatory power over book pricing. Such price regulation dates back to a 1534 statute of Henry VIII. It was only extinguished in 1739 by 12 Geo. c. 36 An Act for Prohibiting the Importation of Books Reprinted Abroad, and First Composed or Written, and Printed in Great Britain. I now turn to the eight findings connecting the pre- to the post-Common Law eras. (i) Authors’ Rights & Liabilities The first reference to the ‘author’ in the official record is found in a 1542 Proclamation of Henry VIII. It did not, however, refer to the rights of authors but rather to their liability for works against religious doctrine. In fact during the entire period the author had, in effect, no rights. If lucky a work would be sold to a Stationer for a one-time payment or honoraria. All rights were then assumed in perpetuity by the Stationer copying the title into the Company’s Register – hence copy right. More often, however, a work was in effect given to the Stationer, sometimes with payment for printing, as a form of ‘vanity publishing’. Payment for authors was so low that many of the best writers of the Elizabethan age turned to the theatre. Their talent was attracted by the pecuniary success of the new medium and its generous compensation (Backus 1897, 84-86). With a Stationers’ honoraria an author could not get rich but could if the work was performed. This arguably remains true (Litman 2010). It was in fact only in 1644 that Milton in his Areopagitica raised author’s rights, arguably for the first time. That even he, the most famous poet of the time, had little bargaining power with publishers is reflected in the following quote: 1667, April 27. Milton executes this day the contract disposing of the copy-right of his Paradise Lost to Samuel Simmons, a printer and stationer of London, for the present sum of five pounds, and five pounds more when 1300 copies of the first impression should be sold in retail, and the like sum at the end of the second and third editions… This is one of the earliest authenticated instances of a copy-money being given by previous agreement for an original work. (Timperley 1839, 544) It should be noted that Simmons, the publisher, became rich while Milton got £5 for each re-printing. Later in the century John Locke formalized his labour theory of value giving birth to the ‘sweat of the brow theory’ of copyright. Locke, however, later argued against not just perpetual Stationers’ copyright but also against perpetual author’s rights in his 1694 Memorandum. The idea that an author’s rights are extinguished on sale of a work to a proprietor is implicit in the 1709/10 Statute of Queen Anne and was subsequently confirmed by the dissenting opinion of Justice Yates in the 1769 Court of King’s Bench case of Miller v. Taylor. Yates argued that any moral or other rights of the author are extinguished on sale or assignment to and publication of a work by a proprietor. Yates’ opinion was confirmed by the 1774 decision of the House of Lords in Donaldson v. Beckett. This was three years before the King of France in 1777, following the Enlightenment precepts of Immanuel Kant, declared authors had perpetual moral and economic rights to their works (Hesse 1990). In the French Revolution these rights were limited in time to favour the public domain. Nonetheless, this concept fundamentally changed bargaining power making the publisher/producer an agent of the author not the plenary owner of a work under the Civil Code. Even an employee retains moral rights to one’s work. Under Common Law, however, all rights of the author were and remain subject to assignment to a proprietor. This is most apparent with the blanket or ‘all rights’ license including, in Canada, the waiver of all moral rights in favour of a proprietor.
(ii) Carpenters, Joiners & Digital Locks The historical connection between Carpenters, Joiners, Smiths & Letter Founders of the 1662 Licensing Act (reproduced in full as Annex B-2) and the Digital Millennium Copyright Act of the United States was first noted by Patterson (2003/3). I have since extended it to include the Canadian Copyright Modernization Act, Bill C-32, June 2010 (Chartrand 2010). Carpenters, joiners, et al were the craftsmen who could build presses – legal or illegal. Hackers and console cowboys are the craftsmen who can pick the digital locks of the DMCA and CMA. The wording of this historic Act bears an uncanny resemblance to both post-Common Law statutes: Licensing Act … no joyner, carpenter, or other person shall make any printing press, no smith shall forge any iron-work for a printing press, no founder shall craft any letters which may be used for printing for any person or persons whatsoever; [nor import or buy materials] belonging unto printing, unless he or they respectively shall first acquaint the… master and wardens of the… company of stationers... for whom the same presses, iron work or letters are to be made, forged, cast, brought or imported… 13 & 14 Car. II, c. 33, 1662. Digital Millennium Copyright Act No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title. 17 U.S.C. § 1201(a)(2)(A), 2000. Copyright Modernization Act No person shall… (c) manufacture, import, distribute, offer for sale or rental or provide - including by selling or renting - any technology, device or component if (i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure… Bill C-32, s.47, June 2010. (iii) Enclosure of the Public Commons & Public Domain Dislocation of the rural population in the early Tudor period resulted from the plague but especially from the enclosure movement. Land owners recognized wool as more valuable than turnips for peasants tilling traditional common lands and enclosed it to keep sheep. The dislocation was then amplified by disestablishment of the Roman Catholic Church in England and disbursement of its land and property to the supporters of Henry VIII. As recorded in this work the result was successive statutes and proclamations against vagabonds, rogues and sturdy beggars including bards, minstrels and common players (actors). Some observers suggest another enclosure movement is underway today, this time of the public domain (Boyle, 2003; Patterson 2002/3). Stretching the point there is also a movement to disestablish or delegitimize Government and disburse or privatize its property to free marketeers. Among the crown jewels of the Nation-State is the public domain of knowledge – all that’s free to know. It is connected to freedom of information, speech (Patterson 2002/3, 41) and national patrimony. In fact the Statute of Queen Anne justified modern copyright as a means of encouraging learning by rewarding authors but only for a limited time after which their work enters the public domain. The European Union is actively converting national patrimony into digital media to keep it in the public domain. In the Anglosphere, however, much is being privatized including court documents and even statutes. While technically they remain in the public domain when digital value is added, e.g., pagination, such works again fall under copyright. They become available on the world-wide web only for a price but as noted by Patterson not all people have the coins to make the turnstiles turn. (iv) Official Censorship & Blackberries Harvey (2005) argues that it took more than 250 years from the introduction of censorship in 1401 and almost 200 years from introduction of the printing press in 1476 for the Crown to introduce licensing laws in 1662 b that recognized the true nature of print. Practices developed to censor the old manuscript technology continued in progressively modified form but remained focused on content not the physical media itself – the printing press. Only gradually did the importance of carpenters, joiners, smiths & letter founders become apparent to the censors. The constant, however, across three centuries and two communication media was the Stationers’ Company of London. From the Oxford Constitutions of 1407, Catholic Mary I’s Charter of 1557, Anglican Elizabeth I’s confirmation of that Charter in 1588, Puritan Cromwell’s 1653 assent to search and seizure by the Company, Charles II’s amplification of the Charter in 1684 and William and Mary’s confirmation in 1690, the Stationers’ Company worked hand-in-glove with the Crown to enforce licensing, a.k.a., censorship. Courts changed from prerogative to Common Law but policing including the power of search and seizure remained firmly in the hands of the Company as well as its own guild court to try members of the Company offending the licensing laws. Harvey (2005) and Patterson (2003/3), among others, argue, that the licensing system failed. Illegal, legal and foreign presses pumped out what the Crown considered licentious, seditious and treasonous libels throughout the period. With expiration of the Licensing Act in 1695 and the Statute of Queen Anne in 1709 the Company’s role in censorship came to an end. Nonetheless the problem of libels and licentious works continued. The response was two-fold. First was the Stamp Act of 1711. Paper is a tied good in printing and paper now required an official stamp before printing together with a tax paid to the Crown. This permitted a form of forensic investigation. Works on unstamped paper immediately attracted the attention of the authorities because of tax evasion. Works on stamped paper, on the other hand, allowed relatively easy identification of the printer if not the actual but often anonymous or pseudonymous author of libellous and seditious works. Second, such works were denied copyright registration and protection by provisions like that contained in the Revised Statutes of Canada of 1906: 7. Exception to immoral works No literary, scientific or artistic work which is immoral, licentious, irreligious, or treasonable or seditious, shall be the legitimate subject of such registration or copyright. R.S. 1906, c.70, s. 7 Today in the Anglosphere censorial concerns focus on ‘kiddy porn’ and ‘how-to’ terrorist works. As with the Licensing Act of 1662 it is the technology, not the bookseller and content, which is the focus. In this era printers take the guise of Internet Service Providers or ISPs. And the forensic instrument of choice, the new stamp so to speak, is the ISP address associated with every web communication. For example, the proposed Great Fire Wall of Australia is intended to filter from public view foreign porn and terrorists web sites. India, the United Arab Emirates and other Nation-States are pressing Blackberry to open its servers to search for and seize seditious, treasonous and terrorist encrypted communications. Reports of Interpol and related police successes against global child porn on the Web are now almost daily news. And for decades digital filtering and customs barriers have permitted Islamic States to censor inappropriate cultural images especially of women. The national right to censor inappropriate foreign content is recognized in a number of multilateral treaties including explicit exceptions from the free trade requirements of the General Agreement on Tariffs and Trade (GATT). On these subjects, at least, ISPs and Government work hand in glove like the Stationers’ Co. and the Crown. The pragmatic reason is licensing of ISPs and telecommunications in general is a Crown or State prerogative: Comply with the Government’s request or lose your license and possibly go to jail. If ISPs are the modern equivalent of printing members of the Stationers’ Co. then media conglomerates – global and national – are the booksellers. It is they who hold copyright on the majority of content –audio-video recording, broadcast, Internet, print, et al. They are principally concerned with piracy of their copyrighted properties especially on the increasingly ubiquitous and digitally converging Internet. Legislation such as the Digital Millennium Copyright Act makes it illegal to break digital locks on copyrighted content. It also grants copyright owners powers of digital search and seizure reminiscent of the Stationers’ Company. In turn this has led to a new legal calling – the copyright troll supported by forensic software companies. These are arguably analogous to the informers employed by the Surveyor of the Press in 1660 and their predecessors. Fines were usually split with half going to the informer and half to the Crown. As in the Stationers’ Company the interests of printers/ISPs and booksellers/ media conglomerates do not always conform. Hence ISPs in a number of countries are legally resisting conducting digital search and seizure for copyright proprietors. The relationship between the Crown or State and media conglomerates is further complicated by the unique contribution the media can grant a campaigning politician – good or bad press. Licensed by the State the media industry nonetheless thereby has a unique political economic relation to it, i.e., political power translates into economic profit and economic profit translates into political power. This political economic relationship extends to legislation favourable to the profitability of the industry. As noted by Litman, among others: The most compelling advantage of encouraging copyright industries to work out the details of the copyright law among themselves, before passing the finished product on to a compliant Congress for enactment, has been that it produced copyright laws that the relevant players could live with, because they wrote them. (Litman 1996). A coincidence of interest between the State and copyright proprietors may also develop. For example, digital search of internet records by agents of copyright holders may uncover obscene or terrorist-related content. If this information is disclosed to the authorities then copyright holders will act as a policing agent for the State just like the Stationer’s Company. (vi) New Technologies & Backlogs Old wine in new bottles is an old story. When the oral era ended the manuscript era began with a backlog of tall tales and stories of a mnemonic age. Manuscript supplanted the oral because it more accurately recounted and preserved a story not subject to the vagaries of human memory, generation after generation. When print emerged there was a backlog of ancient and medieval manuscripts by famous long-dead authors. Conversion of manuscript to print initially pre-occupied the industry to the detriment of contemporary authors. Print supplanted manuscript because each copy was mechanically identical, the message always the same, not subject to the vagaries of dictation by which manuscripts were ‘mass’ produced or the idiosyncrasies of the solitary transcriber. The printing press of 1440 was the first engine of mass production and an enabling technology for all other industries. Photography and audio-video recording then fixed sight and sound just as the manuscript had fixed human speech. Broadcasting then made ‘recorded’ and ‘live’ sights and sounds available to a mass listening and viewing audience. Radio thus began with a backlog of phonograms, plays and books while television began with a backlog of black & white movies of the 1930s and 40s. Cable increased the number of channels permitting narrowcasting to niche markets. Audio-video recording and broadcasting, however, involved sight and sound not print, not text. Earlier experiments with interactive text in the 1970s and 80s such as Telidon in Canada and the electronic phone book in France were, in effect, washed away by the 1990s digital tsunami called the Internet. Unlike print and audio-video recording digital technology is able to convert all human communications – text, sight and sound - into a common format permitting easy and accurate duplication as well as near instantaneous global transmission. As in previous communications revolutions there is a backlog of content awaiting digitization. Also contemporary authors, artists and creators in general must contend with competition not just from living peers but with the famous dead. This is a primary differences between the Arts and Sciences: New knowledge does not necessarily displace the Old. The digital is, however, unlike previous revolutions. First, it is not a one-to-one conversion but rather all-into-one. All analogue content – text, sight, sound – is being converted into digital format. It should be noted that when a work is converted from say film into DVD a new term of copyright begins for the work fixed in the new format. The backlog includes not just works under copyright but also those in the public domain and the patrimony of Nation-States. For works in the public domain and national patrimony the question becomes: Who will digitize and what will be the terms of access? As noted above [(iii) Enclosure of the Public Commons & Public Domain] the European Union is taking an active role on behalf of its member states to ensure the public domain and national patrimony remain ‘free’. In the Anglosphere, however, the commercial sector is the most active with access being financial in nature. (vii) Perpetual & Inheritable Property The 1709 Statute of Queen Anne was intended, among other things, to end perpetual Stationers’ copyright – the right to copy. The term was limited to 14 years with a possible extension of another 14 if the author was still alive. This time limitation was intended to encourage learning by growing the public domain of knowledge as quickly as possible. Thomas Jefferson, some 80 years later, proposed a slightly longer term based on the principle “the earth belongs in usufruct to the living” computing it at 19 years using actuarial tables (Jefferson, Letter to James Madison, September 6, 1789). Since that time, however, the duration of copyright in the Anglosphere has been progressively extended to about 100 years. …This term of protection is the equivalent of three generations, or perhaps now four. While a copyright for multiple successive generations is not perpetual, it feels very much like a way-station on the road to infinity and thus presents a problem in view of the constitutional requirement that copyright be granted only for limited Times. (Patterson & Birch 2009, 273) This extension has resulted partially from the ‘alien’ influence of European artists and authors who inspired the Berne Convention of 1886. Such artists and authors, however, did not and do not create under Common Law copyright but rather under Civil Code ‘rights of the author’. These include impresciptable moral rights of the Natural Person that no Legal Person can enjoy. Moral rights include employees. Such rights cannot be assigned or waived in favour of a proprietor. Anglosphere creators do not enjoy such rights so the benefit of term extension falls inequitably to proprietors (Paterson & Birch 2009). Near perpetual copyright is ironic in this digital age wherein information processing or computing power doubles every 18 months according to Moore’s Law and computer programs have a functional shelf life of perhaps 5 years but remain protected by copyright for 100. (viii) Printing Patents & Orphaned Works The printing patent or license was a privilege granted directly by the monarch to an individual - sometimes but not usually the author of a work - or to an organization including the Stationers’ Company. Its term could be fixed or granted in perpetuity therefore becoming inheritable property. It granted ‘the right to a copy’ that being either a specific title or an entire class of works such as the statutes, almanacs, etc. Recently in the United States digital conversion of a whole class of works called ‘orphaned works’ came within the decision of a single lower court judge to being, in effect, licensed to one company – Google. Orphaned works are those still under copyright but whose owner and/or author cannot be located. The licensing of this entire class of works to a single company was opposed by a number of parties including the European Union. While finally denied by the judge in this specific case, it is not clear how licensing of entire classes of works will legally develop in the United States and elsewhere. It is clear, however, that this pre-Common Law concept retains some currency in the post-Common Law era.
In Law it is called precedent; in economics, path dependency; and in the TV sci-fi series Battlestar Galactica it is: “This has all happened before and will all happen again”. The eight findings of this study thus indicate that many business practices and ethics of the pre-Common Law era survive to haunt post-Common Law copyright and performing rights. Why is this important? Copyright and performing rights are two planks in the legal foundation for the industrial organization of the emerging global knowledge-based economy (Chartrand 2007). This new economy has displayed two characteristics to date. First, it is based on knowledge workers, i.e., those who create and/or manipulate knowledge in the form of words, numbers, images and sounds. Second, in the developed world, especially in the United States, this economy is characterized by an apparently ever shrinking middle income class. With respect to the first characteristic, the average knowledge workers as an independent creator enjoys limited bargaining power relative to the modern day Stationer as producer or publisher. In effect the blanket or ‘all rights’ license has returned copyright to being property owned by the Company with a low one-time honoraria paid to the average author/creator. As employees, knowledge workers in the Anglosphere, with the exception of university professors, retain no rights whatsoever to their work, not even paternity. They have become virtual servants in the corporate domus. With respect to the second characteristic, income distribution, much has been made of technological change and off shore production displacing workers and causing the decline of a middle class that for a century or so depended on a manufacturing based economy. In many ways income distribution in the knowledge-based economy is increasingly looking like that in the pre-Common Law era when the middle class was only just emerging and income distribution was radically skewed towards rich property owners. In a knowledge-based economy under existing copyright and performing rights this trend will continue. To reverse it will require a change in the bargaining relationship between author/creator and proprietor. The rights of corporations or Legal Persons must be balanced by increasing the bargaining power of the average Natural Person as author/creator – as freelancer or employee – because: intellectual property is, after all, the only absolute possession in the world... The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property… (Chaffe 1945).
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