The Competitiveness of Nations
in a Global Knowledge-Based Economy
June 2004
Mark Rose *
Nine-Tenths of the
Law: The English Copyright Debates and the Rhetoric of the Public Domain
Law & Contemporary Problems
66 Winter/Spring 2003, 75-87
http://www.law.duke.edu/journals/66LCPMarkRose
Index
II - Civil Society and the Birth of the Public Domain
III - The Discourse of the Public Domain
IV - The Weakness of Public Domain Discourse in the Law
Introduction
To
compare the present moment in the history of intellectual property to the
English enclosure movements of the early modem period, as James Boyle and
others do, is to employ a version of a metaphor that reaches back to the early
history of copyright in the late seventeenth and early eighteenth centuries - the
literary work as a kind of landed estate. [1]
Embedded in this metaphor is an implicit narrative
about the origin of copyright, a version of the familiar Enlightenment
narrative about the origin of landed property in general. In the beginning, so the story goes, all the literary world lay free and open, but then various
parts were settled and enclosed and literary property came into being. The story implies that the public domain, the
literary commons, precedes copyright. But
this is not quite the case. By 1557,
when the Stationers’ Company was chartered, printing and publishing had already
become a highly regulated activity in which rights to print books of all kinds,
both new and old, were either assigned directly by the crown or managed by the
Stationers’ Company. [2] True,
many aspects of writing lay open in the pre-copyright period. Shakespeare, for example, had no hesitation
about appropriating others’ works in ways that would clearly constitute
infringement today. So far as printers
and booksellers were concerned, however, the book trade was regulated in all
its dimensions, including such matters as the number of presses a printer might
own and the number of apprentices and journeymen he might keep. Thus, even such Latin
* Professor of English,
University of California, Santa Barbara.
1. James Boyle, The Second Enclosure Movement and the Construction
of the Public Domain, 66 LAW & CONTEMP. PRODS. 33 (Winter/Spring
2003). On the landed estate metaphor,
see Mark Rase, Copyright and Its Metaphors, 50
UCLA L. REV. 1(2002).
2. See generally CYPRIAN
BLAGDEN, THE STATIONERS’ COMPANY: A HISTORY, 1403-1959 (1960). Whether printing was open or regulated in the
early period of printing in England was the subject of intense debate in the
seventeenth and eighteenth centuries. One
party insisted that printing was originally common, while another argued that
it was part of the royal prerogative and the personal dominion of the king. See ADRIAN JOHNS, THE NATURE OF THE
BOOK: PRINT AND KNOWLEDGE IN THE MAKING 324-79 (1998). I am grateful to David Lange for raising
questions about the status of printing in England in the earliest period.
75
and
Greek classics as Aesop, Cicero, Ovid, Terence, and Virgil were protected
titles, the property of the Stationers’ Company itself, which could assign individual
books to whichever guild members it chose for printing. [3] We must be cautious,
therefore, about projecting into the past an idyll of communality from which we
have supposedly declined. The absolutist
regimes of the Tudor and Stuart monarchs were characterized by pervasive
regulation, and they were very different from the post-revolutionary civic
society in which copyright law emerged.
Civil Society and the Birth of the Public
Domain
Copyright
and the public domain were born together. They were formed in the course of the long
social process that Jürgen Habermas
identifies as the emergence of the “public sphere.” This process involves the circulation of cultural
products as commodities rather than as displays of aristocratic magnificence,
and it involves a sense of civil society as a collectivity distinct from either
the private realm of the family or the public realm of the state. The emergent sense of civil society was crucial
to the transformation of the old regime of royally chartered regulation into
the new regime of property rights defined by the legislature and the courts. It was also an important rationale for the
limited term of copyright, a limitation that brought the public domain into
being. As Samuel Johnson remarked in
conversation in 1773:
There seems... to be in authours a stronger
right of property than that by occupancy; a metaphysical right, a right, as it were,
of creation, which should from its nature be perpetual; but the consent of
nations is against it, and indeed reason and the interests of learning are
against it; for were it to be perpetual, no book, however useful, could be universally
diffussed amongst mankind, should the proprietor take
it into his head to restrain its circulation. No book could have the advantage of being
edited with notes, however necessary to its elucidation, should the proprietor
perversely oppose it. For the general
good of the world, therefore, whatever valuable work has once been created by
an authour, and issued out by him, should be
understood as no longer in his power, but as belonging to the publick; at the same time the authour
is entitled to an adequate reward. This
he should have by an exclusive right to his work for a considerable number of
years. [5]
Thus,
the establishment of the author as an owner and the establishment of the rights
of the public at large were both Enlightenment products, embedded in
Enlightenment modes of thought.
3. See BLAGDEN, supra note 2, at 243 fig. XII (reprinting a
broadside of 1766 listing some of the titles that were part of the company
monopoly).
4. JURGEN HADEPMAS, THE
STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN INQUIRY INTO A CATEGORY OF BOURGEOIS
SOCIETY 57-67 (Thomas Burger trans.,1991).
5. JAMES
BOSWELL, BOSWELL’S LIFE OF JOHNSON 546-47 (R.W. Chapman ed., Oxford Univ. Press
1953) (1791).
76
The
1709 Statute of Anne [6] recognized
authors as owners and also provided for term limits- twenty-one years for books
already in print and fourteen years for new books, with the possibility of a
second fourteen-year term if the author were still living at the end of the
first term. But even after the passage
of the Statute, the major London booksellers continued to treat literary property
- including works by such classic English writers as Shakespeare and Milton- as
perpetual properties, and they regularly secured chancery injunctions against
those who would reprint such classic texts. In practice, then, the public domain did not
exist even after the passage of the Statute of Anne. The London booksellers’ claims were based on
the theory that an author enjoyed a perpetual common-law right of property in
his or her work, and that this property right was transferred to the bookseller
by deed when the work was sold. The
statutory right, the booksellers argued, was merely a supplement to the
common-law right, and that right lasted forever. These claims led to six decades of legal
struggle over the question of literary property, as it was called, and to two
great cases in which the matter was resolved.
First,
in the King’s Bench case of Mil1ar vs.
Taylor [7] a divided
court upheld the author’s common-law right and the perpetuity. Then, in Donaldson vs. Becket [8] the House of Lords overturned Mil1ar
and declared that literary property was limited to the terms specified in
the Statute. For the first time, classic
works became free for anyone to print. Soon
after the Donaldson decision, booksellers in Edinburgh and London issued
multi-volume collections of classic British works under titles that emphasized
the national character of the publications. The Edinburgh bookseller John Bell, for
example, introduced a multi-volume Shakespeare even as Donaldson was
pending, and then, after the decision, went on to publish Bell’s British Theatre
in twenty-one volumes (1776-80) and the monumental Poets of Great Britain
in one hundred and nine volumes (1776-82).
The Discourse of the Public Domain
We
need to distinguish, however, between the fact of the public domain and what
might be called the discourse of the public domain - that is, the construction
of a legal language to talk about public rights in writings. One component in the development of this
discourse was the strong anti-monopoly sentiment that reached back to the days
of Queen Elizabeth and came to a head in the Jacobean Statute of Monopolies in
1623. [9] Although
this act abolished most existing monopolies and established limited terms for
the grants of monopoly rights in inventions, it explicitly excluded printing
privileges from these limita-
6. Statute of Anne,
1709, 8 Ann., c. 19 (Eng.). On the
Statute and for fuller discussion of the literary property struggle, see generally
MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPY RIGHT (1993)
7. 98 Eng. Rep. 201
(K.B. 1769).
8. 1 Eng. Rep. 837
(H.L. 1774).
9. Statute of
Monopolies, 1623, 21 Jac. 1, c.3
(Eng.).
77
tions. By the
late seventeenth and early eighteenth centuries, the great London booksellers
had become wealthy and important men in large part as a consequence of their
monopolies of ancient and modern classics. There was considerable resentment against what
was known as the “trade.”
One
of the earliest writers to agitate against the booksellers’ perpetual
monopolies was John Locke. In 1693, the
Licensing Act, [10] the instrument through
which the Stationers’ Company was empowered to regulate the trade, faced
renewal. Concerned particularly with the
guild’s monopolies in Latin writers, Locke wrote to his friend, Edward Clarke,
a Member of Parliament, urging him to speak in Parliament for the interests of
the educated public at large:
I wish you would have some care of book-buyers as well as all of
booksellers and the company of stationers, who having got a patent for all or most
of the ancient Latin authors (by what right or pretense I know not) claim the
text to be theirs, and so will not suffer fairer or more correct editions than
any they print here, or with new comments to be imported without compounding
with them, whereby these most useful books are excessively dear to scholars,
and a monopoly is put into the hands of ignorant and lazy stationers. [11]
One year later, when the
Licensing Act was again being considered, Locke drafted a formal Memorandum for
Clarke in which he repeated his objection to the guild’s monopolies in the
Latin classics and argued that copyrights in contemporary authors should also
be limited in term:
That any person or company should have patents for the sole printing of
ancient authors is very unreasonable and injurious to learning; and for those
who purchase copies from authors that now live and write, it may be reasonable
to limit their property to a certain number of years after the death of the
author, or the first printing of the book, as, suppose, fifty or seventy years.
[12]
Locke’s comments blend
traditional anti-monopoly sentiment with the Enlightenment commitment to the
circulation of knowledge, a view he shared with other members of the recently
founded Royal Society. His Memorandum
was influential in securing the lapse of licensing in 1695, but it remained
unpublished until the early nineteenth century.
Whether
Locke’s Memorandum was known to the drafters of the Statute of Anne is
unclear, but the Statute shows both the influence of anti-monopoly sentiment
and of the Enlightenment commitment to the circulation of knowledge. The title emphasizes the encouragement of learning:
“An act for the encouragement of learning, by vesting the copies of printed
books in the authors or publishers of such copies, during the times therein
mentioned.” [13] And,
although the preamble opens by addressing the need to protect literary
property, it goes
10. Licensing Act, 1662,14 Car. II, c. 33 (Eng.).
11. Letter from John
Locke to Edward Clarke (Jan. 2, 1693), in THE CORRESPONDENCE OF JOHN
LOCKE AND EDWARD CLARKE 366 (Benjamin Rand ed., 1927).
12. LORD
PETER KING, THE LIFE OF JOHN LOCKE 208 (London, Henry Colburn 1829). On Locke’s role
in securing the end of licensing, see Raymond Astbury,
The Renewal of the Licensing Act in .1693
and its Lapse in 1695, 33 LIBR. 296-322 (1978).
13. Statute of Anne,
1709, 8 Ann., c. 19 (Eng.).
78
on
to say that the purpose of the Act is also “the encouragement of learned men to
compose and write useful books.” In this
way, the Statute aligns itself with broad civic purposes as well as with
private property. [15] As
originally introduced in Parliament, the booksellers’ bill said nothing about
term limits. These, along with the
provision for authors, were added in the legislative process, probably because
of the suspicion about booksellers’ monopolies, as is suggested by the fact
that the terms of protection are modeled on those of the Jacobean Statute of
Monopolies. [16] Nonetheless,
although the influence of anti-monopoly and Enlightenment ideas on the Statute
of Anne is clear, the Statute is a sketchy document that did not in itself
directly contribute much to the development of a discourse of the public
domain.
What
the Statute did, however, was set the stage for the legal debate over the
booksellers’ claims about perpetual copyright. The single most influential figure in this
struggle, and the one who more than any other determined the frame in which the
debate took place, was Lord Mansfield, the great Chief Justice of the Court of
King’s Bench. Mansfield certainly
appreciated the progress of knowledge, but he saw the copyright question
primarily as a matter of property rights, and in his opinion in Millar he
formulated the classic statement of the author’s natural right: Upon what basis
was the author’s common-law right founded?
From this argument - because it is just, that an author should reap the
pecuniary profits of his own ingenuity and labour. It is just, that another should not use his
name, without his consent. It is fit
that he should judge when to publish, or whether he ever will publish. It is fit he should not only choose the time,
but the manner of publication; how many; what volume; what print. It is fit, he should choose to whose care he
will trust the accuracy and correctness of the impression; in whose honesty he
will confide, not to foist in additions: with other reasonings
of the same effect. [17]
Mansfield concluded that
perpetual copyright followed as a matter of course from these fundamental
principles. He had nothing to say about
the kinds of issues John Locke had raised seventy years earlier, and most
likely he knew nothing of Locke’s Memorandum.
The
most prominent opponent of the common-law right was Justice Joseph Yates, who
cast the sole dissenting vote in Millar and who maintained that by their
very nature writings, being immaterial, were incapable of being regarded as
property. An author had a property in
his manuscripts, of course, but the act of publication necessarily constituted
a gift to the public. A published work
was “like land thrown into the highways. The legislature might create a limited
14. Id.
15. Ronan Deazley has recently emphasized the civic purposes of the
Statute of Anne, arguing that the statute incorporates an exchange between the
author and society in which the author receives a limited monopoly in return
for making the work public. Ronan Deazley, On the Origin of the Right to Copy: Charting the
Movement of Copyright Law in Eighteenth Century Britain (1695-1775) at 81 (2001)
(unpublished Ph.D. dissertation, Queen’s University of Belfast) (On file with
author).
16. Statute of
Monopolies, 1623, 21 Jac. 1, c. 3 (Eng.).
17. Millar v. Taylor,
98 Eng. Rep. 201,252 (K.B. 1769).
18. Tonson
v. Collins, 96 Eng. Rep. 180, 185 (K.B. 1761). In this case, Yates was counsel for the
defense. Yates later used a similar
phrase in his minority opinion in Millar: “[W]hen an author prints [and publishes his work, he lays it entirely open to
the public, as much as when an owner of a piece of land lays it open into the
highway.” Millar, 98 Eng. Rep. at 234 (Yates, J.,
dissenting).]
HHC: [bracketed]
displayed on page 80 of original.
79
privilege
as it had done in the Statute, but there could be no common-law right. Yates touched upon some of the arguments drawn
from anti-monopoly and Enlightenment thought, noting that, if copyright were
determined to be perpetual, works might be priced at exorbitant rates or
arbitrarily withdrawn from circulation. Moreover, he invoked the concept of dedication
to the public and, in speaking about land thrown into the highway,
he even came close to the trope of a literary commons. Nevertheless, the heart of his position was a
scholastic point about the nature of property. How could ideas, which have no bounds or marks
or anything that is capable of visible possession, give rise to a common-law
right of property?
Their whole existence is in the mind alone; incapable of any other
modes of acquisition or enjoyment, than by mental possession or apprehensions safe
and invulnerable, from their own immateriality: no trespass can reach them; no
tort affect them; no fraud or violence diminish or damage them. Yet these are the phantoms which the author
would grasp and confine to himself... [19]
The legal struggle in which
Mansfield and Yates were antagonists was thus only indirectly a struggle over
knowledge and the public domain. It was
essentially an argument over the theory of property. Moreover, in terms of logic and rhetorical
power, Mansfield got the better of the day, for his argument not only invoked
high-minded principles of fitness and justice but also implied a forward-looking
theory of property. Yates’s position, on
the other hand, implied a rigid conception of property of a kind that would
soon become outmoded.
Donaldson
overturned Millar, but this climactic case, too, was framed in terms
of property theory. Was there a
common-law right of literary property? Did
it survive publication? Was it taken
away by the Statute? Before voting on
whether to sustain the chancery injunction on which the case turned, the lords
solicited the opinions of the twelve common-law judges on these questions. The judges were divided in their opinions, but
it appears that a majority maintained that there was a common-law right, that
it survived publication, and that it was not taken away by the Statute. In overturning Millar, then, the lords
were probably going against the majority opinion of the judges. But on what grounds did they do so? What, in other words, was the rationale
through which the public domain was finally confirmed? Given the nature of the process- the matter
appears to have been decided by a simple voice vote- it is of course impossible
to say. The major statement of the day,
however, came from Mansfield’s old political and legal antagonist Lord Camden,
who delivered a long address to the House after the judges had spoken.
Camden
began by tracing the legal record and explaining his specifically legal reasons
for rejecting the common-law right. But
then he moved to the broader grounds of public policy:
If there be any thing in the world common to all mankind, science and
learning are in their names publici juris, and they ought to be as free and general as air
or water.
19. Millar, 98
Eng. Rep. at 233 (Yates, J., dissenting).
80
They forget their Creator, as well as their fellow creatures, who wish
to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to
enlighten one another’s minds, and improve our faculties, for the common
welfare of the species? Those great men,
those favoured mortals, those sublime spirits, who
share that ray of divinity which we call genius, are intrusted
by Providence with the delegated power of imparting to their fellow-creatures
that instruction which heaven meant for universal benefit; they must not be
niggards to the world, or hoard up for themselves the common stock. [20]
In this passage, Camden
was perhaps echoing the distinguished Scottish jurist and author Lord Kames,
who had recently published a speech delivered in a Scottish case in which he
countered Lord Mansfield’s opinion on the common-law right. [21] Whereas Mansfield had
grounded his opinion in the fundamental principle of the individual’s right to
property, Kames grounded his in “the first principles of society.” “Why,” he asked, “was man made a social
being, but to benefit by society, and to partake of all the improvements of
society in its progress toward perfection?” [22] He went on to contend
that the limited term was useful because it provided an incentive for authors
at the same time that it avoided the evils of a perpetual monopoly which would
raise the price of books and limit their sale to the rich. As a result, commerce would decline and fewer
books would be written. Thus, Kames
said, “a perpetual monopoly of books would prove more destructive to learning,
and even to authors, than a second irruption of Goths and Vandals.” [23]
Likewise,
Camden asked rhetorically about the social nature of mankind. “Why did we enter
into society at all, but to enlighten one another’s minds, and improve our
faculties, for the common welfare of the species?” [24] Camden, too, touched upon
anti-monopoly and Enlightenment themes. But
Camden’s speech did not emphasize the destructive potential
of a perpetual monopoly; instead he focused on the meanness of writing for
money. The climax of his speech would be
much quoted in later years:
Glory is the reward of science, and those who deserve it, scorn all
meaner views: I speak not of scribblers for bread, who teaze
the press with their wretched productions; fourteen years is too long a
privilege for their perishable trash. It
was not for gain, that Bacon, Newton, Milton, Locke,
instructed and delighted the world; it would be unworthy such men to traffic
with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound
for his Paradise Lost, he did not reject it, and commit his poem to the flames,
nor did he accept the miserable pit-
20.
WILLIAM COBBETT, XVII THE PARLIAMENTARY HISTORY OF ENGLAND col. 999 (London, R.
Bragshaw 1813).
21. The case was Hinton
v. Donaldson, in which the Scottish Court of Session decided that, despite
the King’s Bench decision in Millar, so far as Scotland was concerned,
there was no common-law right of literary property. 1 Hailes
Dec. 535 (Seas. Cas.
1773). It was reported by Boswell in The
Decision of the Court of Session upon the Question of Literary Property, and
issued while Donaldson was pending so that the Scottish case might be
taken into account in the lords’ decision. See JAMES BOSWELL, THE DECISION OF THE
COURT OF SESSION UPON THE QUESTION OF LITERARY PROPERTY (Edinburgh, James
Donaldson 1774).
22. BOSWELL, supra note
21, at 19.
23. Id. at 20.
24. COBBETT, supra note
20.
81
tance as the reward of his labour;
he knew that the real price of his work was immortality, and that posterity
would pay it. [25]
If copyright were
confirmed as perpetual, Camden said:
All our learning will be locked up in the hands of the Tonsons and the Lintons of the
age, who will set what price upon it their avarice chuses
to demand, till the public become as much their slaves, as their own hackney
compilers are... [E]very valuable author will be as much monopolized by them as
Shakespeare is at present… [26]
Thus, Camden combined a
denunciation of the very idea of professional authorship with a derisive swipe
at “dirty” booksellers.
Camden’s speech was widely circulated in newspapers and
magazines, and it was generally regarded as a key factor in the lords’ vote
against perpetual copyright. But the
extravagance of his rhetoric and anachronistic contempt for literary commerce
made him an easy target for, among others, the republican historian Catharine
Macaulay. She responded immediately with
a pamphlet in which she heaped sarcasm on the notion that worthy authors ought
not to be concerned with money:
There are some low-minded geniusses, who will
be apt to think they may, with as little degradation to character, traffic with
a bookseller for the purchase of their mental harvest, as opulent landholders
may traffic with monopolizers in grain and cattle for
the sale of the more substantial product of their lands. They will be apt to consider, that literary
merit will not purchase a shoulder of mutton, or prevail with sordid butchers
and bakers to abate one farthing in the pound of the exorbitant price which
meat and bread at this time bear… [27]
The reverberations of his
speech continued to be heard for many years with the arguments for the author’s
common-law right - now, typically, coming from authors themselves - often being
fashioned as responses to Camden. The
poet Robert Southey, for example, who agitated for
new copyright legislation in the early nineteenth century, singled out Camden’s fervid passage about glory as the reward of
science:
Is it possible that this declamation should impose upon any man? The question is simply this: upon what
principle, with what justice, or under what pretext of public good, are men of
letters deprived of a perpetual property in the produce of their own labours, when all other persons enjoy it as their
indefeasible right - a right beyond the power of any earthly authority to take
away? Is it because their labour is so light, - the endowments which it requires so
common - the attainments so cheaply and easily acquired, and the present
remuneration so adequate, so ample, and so certain? [28]
Whereas
Camden had cited Milton and Shakespeare as examples of authors who did not care
about money, Southey noted that Milton’s
descendants had died in poverty and that Shakespeare’s were still living in
poverty. Many books of the highest merit
achieved recognition slowly and therefore permanent copy-
25. Id. col.
1000.
26. Id. Kames had also mentioned that the “best authors
write for fame.” BOSWELL, supra note
21, at 21. Camden, however, was much
more dismissive of professional writers than was Kames.
27. CATHARINE MACAULAY,
A MODEST PLEA FOR THE PROPERTY OF COPY RIGHT 14-15 (Bath, R. Cruttwell 1774).
28. Inquiry in the Copyright
Act, 21 Q. REV. 211-12 (1819) (attributed without evidence to Robert Southey in Quarterly Review Index).
82
right
was a necessity if the “reward of literary labour”
was to be “in just proportion to its deserts.” [29]
The
reaction continued in the late 1830s and early 1840s in the movement for
copyright reform led by Thomas Noon Talfourd in
collaboration with his friend William Wordsworth. Talfourd, too,
invoked Camden’s remark about glory.
When the opponents of literary property speak of glory as the reward of
genius, they make an ungenerous use of the very nobleness of its impulses, and
show how little they have profited by its high example... The liberality of
genius is surely ill urged as an excuse for our ungrateful denial of its
rights... Do we reward our heroes thus? Did we tell our Marlboroughs,
our Nelsons, our Wellingtons, that glory was their reward,
that they fought for posterity, and that posterity would pay them? We leave them to no such cold and uncertain
requital; we do not even leave them merely to enjoy the spoils of their
victories, which we deny to the authour; we
concentrate a nation’s honest feeling of gratitude and pride into the form of
an endowment, and teach other ages what we thought, and what they ought to
think, of their deed, by the substantial memorials of our praise. Were our Shakespeare and Milton less the ornaments
of their country, less the benefactors of mankind? [30]
Thus, the language of
civil society - or rather the language of nationalism into which it had by this
point mutated - could be deployed against the limited term as well as against
the perpetuity.
Talfourd and Wordsworth both believed that copyright was a
natural right of authors and should last forever, but they were willing to
compromise on an extended term of sixty years to be computed from the death of
the author. Their reform movement led to
the Copyright Act of 1842, which extended the term to the life of the author
plus seven years or a total of forty-two years, whichever was longer. [31] The pivotal figure in
defeating Talfourd’s movement for a greatly extended
term was Thomas Babington Macaulay, whose speech to the House of Commons in
1841 has become a standard point of reference in discussions of the history of
copyright, one often quoted for his epigrammatic description of copyright as “a
tax on readers for the purpose of giving a bounty to writers.” [32] Macaulay refused to be
drawn into theoretical discussion of the nature of property - the subject that
had dominated the copyright debates in the courts - and he also avoided
invoking Camden. Instead, he eloquently
recapitulated the anti-monopoly tradition, combining it with a utilitarian
calculus about the benefits to be derived from a limited monopoly. “Copyright is monopoly, and produces all the
effects which the general voice attributes to monopoly,” Macaulay said. [33] Considered in itself,
therefore, copyright had to be regarded as an evil, but it was necessary to
submit to this evil in order to pro-
29. Id. at 213.
30. THOMAS NOON
TALFOURD, Speech Delivered in the House of Commons (May 18, 1837), in
THREE SPEECHES DELIVERED IN THE HOUSE OF COMMONS IN FAVOUR OF A MEASURE FOR
AN EXTENSION OFCOPYRIGHT 16-18 (London, Edward Moxon
1840).
31. Copyright Act, 1842,5 & 6 Vict., c. 45 (Eng.).
32. Thomas B. Macaulay,
A Speech Delivered in the House of Commons (Feb. 5, 1 & 41), in VIII
THE LIFE AND WORKS OF LORD MACAULAY 201 (London, Longmans, Green, and Co.
1897).
33. Id. at 198.
83
vide
for authors. But, he added, “the evil ought not to last a day longer than is necessary
for the purpose of securing the good. [34]
The
nineteenth century controversy over Talfourd’s
copyright campaign can be understood as a recapitulation of the eighteenth
century literary property debates. Once
again, the issue of perpetual copyright was raised, and once again the
legislature rejected the idea of a perpetual monopoly. But the notion that an author really should
have a perpetual copyright remained alive after 1842, as did the memory of
Lord Camden’s speech. Thus, in 1879, Eaton S. Drone, the author of a
standard treatise on British and U.S. copyright, praised Lord Mansfield’s
argument for the author’s common-law right as “one of the grandest judgments in
English judicial literature,” [35] and
argued that Donaldson was wrongly decided through the influence of Lord Camden’s “specious harangue.” [36]
It would seem that this extravagant speech would have moved the peers
only to disgust; that the highest judicial tribunal of England, deliberating on
one of the greatest questions ever brought before it, would have been guided by
the pure principles which had been so forcibly expounded by the Chief Justice
and the profoundest jurists of England, other than by the fallacious theories
of Judge Yates and the Sophomoric rhetoric of Lord Camden. But it was not so. [37]
Drone was writing only a
few years before the term “public domain” entered Anglo-American copyright
discourse through the French of the Berne Convention. [38] This reminds us that,
though one might speak with Yates of a published work as a “gift to the public”
or as “land thrown into the highway,” or one might, as Camden did, employ the
Latin tag publki juris,
there was, in the early period, no positive term in which to speak
affirmatively about the public domain.
The
one strong form of discourse that was available to counter the arguments for
perpetual copyright was the anti-monopoly tradition. Although this tradition reached back to the
sixteenth century, for various reasons it did not lead to an effective major
statement until Macaulay’s speech in 1841. Locke’s Memorandum had, of course,
invoked the old anti-monopoly feeling, but the Memorandum remained
unpublished until the nineteenth century. Ironically, Locke was most often cited by the
supporters of the perpetuity, who relied on his labor theory of property for
the foundation of their claim, but who were
34. Id. at 199.
35. EATON S. DRONE, A
TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN
AND THE UNITED STATES 37 (Boston, Little, Brown and Co. 1879).
36. Id. at39.
37. Id. at 40. Drone also argued that Wheaton v. Peters,
33 U.S. 591 (1834), the foundational American case in which copyright was
held to be limited in term, was of dubious authority. DRONE, supra note
35, at 43-49. It is worth noting that
the line of Anglo-American copyright treatises from Robert Maugham to Drone
strongly supported authors’ rights and, among other reforms, the extensions
championed by Sergeant Talfourd. See id.; ROBERT MAUGHAM, A TREATISE ON THE
LAWS OF LITERARY PROPERTY (1828).
38. On the use of the
term in Anglo-American discourse, see Jessica Litman,
The Public Domain, 39. EMORY L. J. 965,975 n.60
(1990).
84
unaware
that he actually had opposed perpetual copyright. The sketchy and ambiguous Statute of Anne,
clear though it was on the matter of the terms, was not an effective source of
rationale for the defense of the general public interest either. Perhaps the most important early published
statement in defense of the public interest was Lord Kames’s
speech, but, despite Kames’s personal stature both as
a jurist and an author, his speech was delivered in a comparatively marginal
context and it was soon lost in the publicity that attended the Donaldson decision
and Lord Camden’s address to the House of Lords.
The Weakness of Public Domain Discourse in
the Law
James
Boyle notes that the anti-monopoly position did not represent an affirmative
defense of the public interest so much as it did a criticism of literary
property. [39] Perhaps,
when blended with Enlightenment ideas about the circulation of knowledge as it
was by both Locke and Kames, the anti-monopoly position might be understood as
having something of an affirmative dimension. Nonetheless, it is clear that such arguments
were better suited to legislative deliberation than to common law debate. Indeed, every time the matter came before the
legislature, the perpetuity was defeated. [40] Whenever it came before
the English law courts, however, the issue was approached in terms of property
theory. Samuel Johnson might speak
eloquently about works belonging to the public for the general good of the
world, but the lawyers had a harder time than Johnson in dismissing a property
right that, as even Johnson said, “should from its
nature be perpetual.” That the English
lawyers were able to develop a strong discourse of property rights but not an equivalent discourse of public rights should not be very
surprising. As the adage has it,
possession is nine-tenths of the law - or, as I would like to understand it,
the law is mostly about property. The
eighteenth century common lawyers had a much easier
time thinking about copyright in terms of property rights - either pro or con -
than they did in thinking about how to formulate the claims of civil society. The conclusion that one is forced to reach,
then, is that in the early period in which modern copyright was forming in
England, the legal discourse related to the public domain was feeble when
compared to the strong arguments for authors’ property rights.
The
comparative weakness of public domain discourse contributes to Eaton S. Drone’s
conviction that Donaldson was wrongly decided, [42] and the compara-
39. Boyle, supra note
1, at 120-125.
40. That is to say, in
1709, when the House of Commons limited the term in the Statute of Anne; in 1774,
when the House of Lords refused to confirm the perpetuity in Donaldson; and
in 1842, in the context of Talfourd’s movement for an
extended term, when Parliament limited the term to the author’s life plus seven
years. Although Donaldson was, of
course, a legal decision, nonetheless, the act of overturning the chancery
decree by a vote of the full House of Lords was in practice more like a
legislative than a legal decision.
41. BOSWELL, supra note
5, at 546.
42. DRONE, supra note
35, at 40-42.
85
tive weakness of public domain discourse remains
evident today. As Lawrence Lessig puts it, “to question the universality and inevitability
of complete propertization is [today] to mark yourself as an outsider.” [43] The two hundred years of
progressive expansion of property rights that followed the resolution of the
eighteenth century copyright debates resulted in the present state of
copyright. In this period, protection
has been systematically extended to cover a wider and wider range of materials
for longer and longer periods of time. Macaulay’s
“tax on readers” speech, for example, was framed in opposition to Talfourd’s proposal that the term of copyright be extended
to the life of the author plus sixty years, but in both Britain and the United
States, the basic copyright term is now longer than that which Macaulay
opposed. True, Locke and Johnson both
imagined copyright terms that were long and based on the author’s life, but neither
imagined anything like the depth of protection that modern copyright affords. In the early period, protection did not extend
to abridgements or translations, and the right protected was specifically the
right to print and publish. Today,
protection extends to every kind of derivative that may be produced from a
work, and the right protected is not merely the right to print but to make
copies of any kind including photocopies for one’s own use. Copyright has therefore ceased to be primarily
a matter of concern to booksellers; or even a matter of concern to booksellers
and authors. It has become a subject of
general concern.
Conclusion
Habermas’s study of the public sphere in connection with
the dual emergence of copyright and the public domain in the eighteenth century
also describes the structural transformation of the public sphere, the process
that he describes as its “hollowing out” in the context of advanced capitalism
in the nineteenth and twentieth centuries. [44] Just as the early history
of copyright is embedded in the formation of the public sphere, so the later
history is embedded in the structural transformation of the public sphere. Any detailed discussion of that history is
beyond the scope of this discussion, but it is apparent that the eighteenth
century debates did not produce a legal discourse of public rights strong
enough to balance the discourse of property rights. [45] Perhaps the single
43. Lawrence Lessig, The Architecture of
Innovation, 51 DUKE L. J. 1783,
1784 (2002).
44. HABERMAS, supra note
4, at 141-80.
45. My focus has been
on the English copyright debates of the eighteenth century, but in revolutionary
France and the republican United States the discussion was somewhat different
from that in Britain. In late eighteenth
century France, the author was represented in some quarters as a public servant
with the nation as his or her heirs, but within a few decades authorial legal
identity began its course toward reprivitization. See CARLA HESSE,
PUBLISHING AND CULTURAL POLITICS IN REVOLUTIONARY PARIS, 1789-1810, at 83-124,
205-39 (1991). American discourse
of the Federal period also emphasized the public nature of print. See Meredith L. McGill, The Matter
of the Text: Commerce, Print Culture and the Authority of the State in American
Copyright Law, 9 AM. LITERARY HIST 21 (1997). How do we get from the public concerns of the
Federal period to the emphatically privatized position of Eaton S. Drone in
1879? One turning point is Wheaton v.
Peters, 33 U.S. 591 [(1834), in which, as McGill notes, the U.S. Supreme
Court emphasized the limited nature of U.S. copyright, but also, I would add,
incorporated the property discourse of the English debates into American
law. For an excellent comparative
discussion of French and American copyright law in the early period, see Jane
C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary
France and America, in OF AUTHORS AND ORIGINS: ESSAYS ON COPYRIGHT LAW 131
(Brad Sherman & Alain Strowel eds., 1994).]
HHC: [bracketed]
displayed on page 87 of original.
86
most
important moment in the establishment of the public domain was, as this article
suggests, the foundational case of Donaldson in 1774, which confirmed
that the term of protection was limited. But, at the same time, Donaldson appears
in hindsight to have been, so far as the development of a discourse of the
public domain is concerned, something of a rhetorical disaster. Lord Camden’s
famous speech to the House of Lords may have influenced the lords in their
decision, but it also probably did long-term damage to the cause of the public
domain.
At
the present moment, as we attempt to argue for the value of the public domain,
we need to understand that we are fashioning a rhetoric
as well as a politics of the public domain. Casting a defense of the public domain on the
model of the environmental movement seems promising. As Boyle notes, before the movement, the
environment was in effect invisible. [46]
Likewise, one element of the task today is to make
the public domain visible - to develop an affirmative discourse that will make
it a positive and prominent part of the social and cultural landscape. Part of the rhetorical strength of such an
environmental model is that it draws on a metaphor that is already deeply embedded
in copyright thought. Rhetoric is
crucial. And the English copyright
debates of the eighteenth century illuminate both the difficulties and the
importance of the rhetorical task.
46. Boyle, supra note 1, at 69-74.
87
The Competitiveness of Nations
in a Global Knowledge-Based Economy
June 2004