Journal of Law, Information and Science
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Louise Goebel[∗]
Striking a balance between property rights and access to information with respect to new technologies is the aim in any copyright policy debate. These public and private interests are underwritten by the way in which they are understood as a historical process. Traditionally, a privileged role has been attributed to the stationers’ copyright system which was consequently translated to the legislative and common law sphere in the guise of the property rights of the authors.
This paper explores the history of copyright in order to illustrate the need to define copyright and its application to new technologies. The dichotomy between private property and the public domain is firstly explored, followed by a discussion of the eighteenth century literary property debates. The historical creation of monopolies is presented and criticised. Finally, an examination of the ‘interests’ in the book trade is made followed by a critique of print regulation machinery.
It is often said that the invention of printing was the precondition for the economic protection of rights in books. Several centuries later, the invention of photography and its various applications—the entertainment industry’s adoption of the ‘celluloid film-strip’ for instance—resulted in a minefield of legal entanglements in copyright, but also patents, trademarks, privacy rights and laws governing ‘unfair competition’. And most recently, digital technologies provide another occasion for heightened uncertainty from ‘local’ to ‘global’ levels. In the light of an expanding set of new uses for old works, the strength and merits of the ‘originality’ requirement, not to mention the phrase ‘to the public’, the question of how to balance public and private interests is as pertinent as ever. What are the rights of property and rights of access embodied in these new technologies? How are they to be carved up and governed? And what is the role of legislatures, courts and markets in this process? To strive to strike an expedient balance is expected in any copyright policy debate. What is not so commonly recognised is that these public and private interests, the exclusive entitlements of copyright owners and the collectively shared ‘public domain’, are underwritten by the way in which we understand them as historical processes.
This paper seeks to demonstrate that this policy of balance is itself a way of historicising the role of ‘government’ and ‘markets’ in the regulation of monopolistic property rights. Another way of saying this is that the role we ascribe to public and private interests respectively, is a way of superimposing a constitutional heritage on our copyright law and policy. Of course copyright law and policy—not to mention our constitutional heritage—are not objects of consensus. And what better place to start to explore these issues than in the historical antecedents of our ‘political’ definitions of ‘private’ property and ‘common’ property, in the English state and book trade in the centuries around the passage of the first copyright act, the 1710 Statute of Anne (8 Anne c. 21).
Paul Goldstein’s recent work on copyright laws and technological change points out how variable the legal divide between private property and the public domain is and has always been.[1] He caricatures the debate on the ‘metaphysics’ of copyright by dividing up the contending parties into ‘copyright optimists’ and ‘copyright pessimists’:
On one side are lawyers who assert that copyright is rooted in natural justice, entitling authors to every last penny that other people will pay to obtain copies of their works. These are the copyright optimists: they view copyright’s cup of entitlement as always half-full, only waiting to be filled still further. On the other side of the debate are copyright pessimists, who see copyright’s cup as half empty: they accept that copyright owners should get some measure of control over copies as an incentive to produce creative works, but they would like copyright to extend only so far as an encroachment on the general freedom of everyone to write and say what they please.[2]
If we were to characterise recent interdisciplinary scholarship on copyright in Goldstein’s usefully simplified terms, we could say that it is marked by a definite ‘copyright pessimism’ in its appeal to principles, but is ‘optimistic’ in its historical account of copyright’s origins. Many have connected copyright’s history to a contextual framework to view the emergence of legal rights and entitlements in books following the passage of the first copyright act, the 1710 Statute of Anne.[3] Mark Rose, for one, describes this period as one of legal ‘solidification’ of the ‘author’ and the ‘work’ that was linked to the emergence of peculiarly modern conceptions of authorship.[4] The ‘author as proprietor,’ not only a product of ‘positivistic’ definition, was also propagated in natural law justifications for property in the person, an emerging literary ethos of ‘original’ composition, and the willingness of publishers and their supporters to use these ideas to fashion proprietary claims. So Rose analyses the historical fodder, so to speak, of the ‘optimist’s’ case, and is a ‘pessimist’ insofar as his theoretical lesson is that our fundamental Romantic need for authors is inevitably complicit with the private cordoning of the cultural commons.
And Rose is, as we are, indebted to an earlier ‘copyright pessimist-cum-optimist’ in L Ray Patterson, who has consistently argued that the historical reality of copyright lies not with the property of authors, but in its longer-standing regulatory purpose: to address the ‘problems that the monopoly of copyright poses’. Legislators have not solved this problem, says Patterson, because they have not developed or received a ‘sound theory of copyright law’.[5] His account of the source of this inadequacy is basically the one that scholars like Rose still offer; that is,
‘[t]he fault of copyright law ... is in treating copyright as an author’s right rather than a publisher’s right, and the error in characterization is a product of history rather than reason’.[6]
Patterson’s Copyright in Historical Perspective is still a foundational text in copyright historiography. Patterson’s thesis is that the Stationers’ Company’s system of copie ownership and exchange was the main predecessor of the conception of copyright contained in the 1710 Statute of Anne and thus our modern copyright laws. This ‘stationers’ copyright’ had evolved throughout the 16th and 17th centuries with two other forms of ‘copyright’ protection (a term I use loosely in this context), in the ‘license’ and ‘printing patents’. Yet over the course of the 17th century the influence of the license and printing patents on the character of copyright protection receded, albeit for different reasons, and the influence of the customary copyright of the Stationers’ Company emerged as the predominating one.[7] At least this is the picture that copyright historians have largely favoured, and Rose and others have followed in these footsteps. We have since become increasingly literate with details of the property-like features of a privately—‘market’—driven copyright.
We now know that as an historical artefact and an inescapable contemporary circumstance, the profession and ethos of authorship shapes legal and customary forms of regulating bookes and internet sites, and vice versa. The early modern English circumstance that attracted critical interest was the appearance of the ‘author’, along with the ‘assignee or assigns’, as proprietors of copies in the 1710 Statute of Anne. This Act was passed by Parliament some 65 years before the ‘landmark’ decision in Donaldson v Becket in 1774, which ‘settled’ the debate consequent to the passage of the 1710 Act—the ‘Great’ question of ‘Literary Property’. In this Debate, the need to advocate the perpetual rights of authors had arisen because in 1695, the 1662 Licensing Act was allowed to lapse, and with it the statutory authority that bolstered the copie interests of the powerful guild members.[8] Hence the persistent sense of irony that Romantic conceptions of authorship, dear in our collective cultural heart, were actually propagated (at least partly) to legitimate and extend corporate interests in the form of individual property rights.[9]
But Patterson’s other crucial thesis that the ‘problem of monopoly ... always plagued copyright’ makes him a ‘copyright pessimist’ par excellence. Unlike his lesson that courts, legislatures and the public have all been victims of history, this thesis has not received sustained attention.[10] And the historical career of the ‘monopoly’ concept in copyright history warrants careful consideration given the pivotal role it played in the development of the stationers’ copyright and in the regulation of the book trade by the state before 1710. This historical career was against a constitutional backdrop in which political and economic powers were undergoing momentous and bloody changes; the consequences of which—including an institutional and policy ‘divide’ between the procedures of judges and legislators—are still with us today.[11]
We are faced, once again perhaps, with an historical irony. In our contemporary circumstances, where the battle between public utility and market forces continues unabated, a progressive agenda for regulating copyright, this time by debunking its philosophical Romantic supports, has served to confirm its ‘private’ character. We still do not have a historically detailed framework for describing a rationale for the public interest or the public domain, except insofar as it is defined against or exempt from private property interests, with whose economic rationality we are very familiar.[12] There is a consensus, of sorts, that copyright protection consists, rightly or wrongly, in a set of ‘natural’ or ‘naturalised’ private entitlements in original works. There is a vast literature that describes the construction—‘positively’ or ‘textually’—of those private rights. Yet the public domain is relatively vague in this respect. But the ‘public domain’ is always ‘there’ in a sense, as when a ‘work’ has to be broken down into ‘protectable’ (original) and ‘nonprotectable’ (public domain) elements or when deciding whether a work has been ‘dedicated to the public’ or not. Yet as Jessica Litman has argued, the public domain is still thought of as ‘leftovers’ or the place property goes when it dies; either way, whether the public domain be copyright leftovers or copyright heaven, its character is an enigma compared to its historically richer cousin, the copyright owner.[13]
From an historical perspective that extends back to the mid-16th century, it would be a luxury to confidently explain where private property was seen to begin and end, where the public interest was overriding or not, in matters of printing or otherwise. In the following I will discuss what has been said about the public interest and the public domain so far in copyright and publishing history. I will focus on the period following the 1710 Act first. It is here that the historical unification of the stationers’ copyright and a legal theory of authorial property, by an economic rationality, gains momentum. It is speculated here that parts of this historical explanation has predisposed us to understand the political heritage of copyright as a device that operationalises private interests at the expense, for better or for worse, of the public domain. In turn the tendency has been to focus on the ‘uncontrollable’ expansion of property rights and the inevitable diminution of the public domain rather than on its actual political and positive construction.
The stationers’ copyright was, in Patterson’s words, ‘a right recognised among members of the [Stationers’ Company] entitling one who published a work to prevent any unauthorised printing of the same work’.[14] And this was the concept of copyright protection known to the drafters of the first copyright statute in 1710. Through this protracted inheritance we have come to associate modern copyright laws with the idea, though not necessarily the practice, of protecting an author’s property.[15] The events and debates in late 17th and 18th century England, that culminated in the settlement of the ‘literary property question’ in Donaldson v. Becket (1774),[16] marks a turning point for copyright historians in at least two ways: the establishment of publication as the technical boundary between unpublished works and the public domain, and the implantation of the idea that copyright protects the property of authors. John Feather puts it this way:
[I]t established beyond doubt that after a period of time, which Parliament could fix by statute, the rights in a particular book, created by the author, passed into what was later to be known as the public domain.[17]
The questions as they faced the Law Lords in 1774 could be summed up like this: was ‘literary property’ the perpetual right of an author recognised by common law, or a limited monopoly prescribed by an act of state which, to borrow Alain Strowel’s words, sets aside ‘a zone of exclusivity benefiting a particular person in the sphere originally belonging to the collectivity’?[18] Counsel for the appellants put it this way:
The sole right of multiplying copies, is a sole right to exercise a natural faculty: and this, it is obvious, is an extraordinary privilege. A sole right to take profits arising from the exercise of a natural faculty, is a monopoly in itself very extraordinary. This privilege and this monopoly, the respondents chose to call their property, and they were to maintain it at common law. But by that law, it was submitted on the part of the appellants, that the privilege and monopoly never did, nor ever could exist. For a right at common law must be founded on principles of conscience and natural justice.[19]
The opponents of the ‘author’s’ property used a competing discourse which like their adversaries was partly grounded in natural law; except this discourse used the language of the ‘liberty of many’ as an overriding principle. If any such exclusive privilege exists, counsel went on,
‘it has been the creature of the civil magistrate, upon principles of policy; but the respondents disclaimed the aid of the Legislature upon the present question, and derived their claim from the common law’.[20]
The statutory copyright won the day, at least following publication. The clarity of this settlement, though, has to be retrospectively imposed to a large extent because ‘literary property’ wasn’t settled as either customary or statutory, but both. Donaldson v Becket made ‘publication’ the intersection between the person and the public domain.[21] And has since undergone over 200 years of adaptation and change.
In addition to the protection of authorial property, Donaldson v Becket also raised the spectre of monopoly, which had plagued the booksellers and their ‘copie’ system for the previous two centuries and more. This history of ‘civil regulation’ that counsel refers to was described in more detail in this way:
Had the Star Chamber, and the High Commission Court, expressly stated a common law right, it could not be received as an authority in point; and a common law usage cannot arise by mere implication from dark hints of the Star Chamber. The same argument applies to acts of the Privy Council, to edicts, proclamations, the ordinance of the two houses in 1642, and all the ordinances during usurpation. This whole body of precedents forms the history of despotism, but not of the common law. The most that can be said in their favour is, that they supported an usage, first set on foot by acts of state, by patents, bye-laws, etc.[22]
The reason we think that copyright protects the rights of authors, Patterson tells us, is because we have inherited a version of copyright’s history that forgot that the author’s property is an entirely different creature to the publishers’ rights of exploitation. But as the counsel’s brief history of the governmental precedents suggests, the literary property question revolved around the nature of the author’s property, tailored to suit the publishers, as well as the dangers inherent in granting exclusive privileges to well-known monopolisers. This facet of the opponents’ case, as Patterson and Rose both argue, is a feature that has been progressively eroded by the integration of the authorial personality into categories of ownership rights.[23]
This historical development might be reevaluated in the light of counsel’s posture to the governmental heritage: ‘This whole body of precedents forms the history of despotism, but not of the common law’. This suggests more than a passing reference to the original purposes of state regulation of printing and the press. By late 18th-century standards, the extension of royal privileges in the property rights of authors and the ‘liberty of many’ was bound to appear abhorrent: ‘For a right at common law must be founded on principles of conscience and natural justice’. The remainder of this paper will begin to offer some exploratory comments about what might be involved in this ‘history of despotism’ in the period leading up to the 1710 Statute of Anne. These comments might convince the reader that our contemporary vision of the dangers of copyright entitlements has a blindspot that also extends back to the 18th century, if not further.
Patterson identifies two distinct monopolies in the early modern English book trade: the ‘corporate’ monopoly of the Stationers’ Company itself, and the individual monopolies in the stationers’ ‘copies’.[24] The key support for these two interdependent monopolies was the 1557 Royal Charter granted to the Stationers’ Company by Philip and Mary. [25] The Charter contained articles of incorporation, and a series of trading privileges which, amongst other things, devolved responsibility for the registration of licensed books to the Company. Licensed books were those that had undergone official approval, by temporal and spiritual authorities, before publication. The authority of this Charter, which also extended to unlicensed books, was confirmed by Elizabeth, and the Stationers’ Company progressively customised a system of ownership in ‘copies’ and mechanisms for resolving trade disputes over the next century and more.[26]
One of the important features of the history of copyright is the degree of autonomy accorded the Stationers’ Company in harnessing their economic calculations to royal privileges. As Patterson puts it, the interests of these ‘businessmen’ in controlling ‘copies’ was distinct from the government’s interest in ‘regulations of censorship’.[27] These two aims, of the government and the Stationers’ Company, were separate insofar as the Stationers were ‘unhampered’ in the customisation of their own copyright system, in which the ‘license’ and the ‘copie’ were formally entered in the ‘Register Booke’ kept by the Masters and Wardens of the Company.[28] Without going into the minutiae of these press regulations, we can note that the interests of the stationers and government respectively, in the ownership and regulation of ‘copies’, have made the Crown look ‘vulnerable to printed criticism’ and the guild to ‘invasion of literary property’.[29] The exigencies of censorship policy required the establishment of a licensing system, which in turn laid the groundwork for copyright—’a property concept vested with a large public interest’—to develop ‘without any interference from the courts or the legislature for some hundred and sixty years’.[30]
But this is not entirely true, for two reasons. First, licensing of books was not the only ‘policy’ rationale for the regulation of the book trade and the press, nor an evenly pressing one at all times. Secondly, monopolies were potentially explosive creatures in the early modern English context. Edward Coke demonstrates in his Commentaries on the 1624 Monopolies Act how ‘monopolies are against the ancient and fundamental laws of the realm’.[31] He does this by ‘reason’ and proves it ‘by authority’; and this law ‘is grounded upon the law of God’.[32] Hence, practices like ‘forestalling’ or the artificial enhancement of prices, both of which were suspected in the book trade at various points, were signs of civil and political dissent to be governed by the common law as stipulated in the 1624 Monopolies Act.[33] And whether this statute was declaratory or not of the common law was a matter of some debate.[34]
While this is very speculative, one reason to suspect that the stationers’ copyright did operate outside of an economic rationalism and in the more contentious political sphere is found in Raymond de Roover’s history of theories of monopoly. De Roover argues that the ‘learned treatises’ of the 16th and 17th century scholastic school, rather than the more commonly consulted sources in Adam Smith and his contemporaries, are the most likely candidates in this history:
The scholastic Doctors approached economic problems from an ethical and legal point of view. Their primary concern was with social justice. They were much less concerned with the operation of the economic system.[35]
The case of England around 1600 is offered as exemplary of the ‘persistent grip of scholastic ideas on the minds of legislators’.[36] The ‘source of inspiration’ for the ‘theories’ of monopolies in the debates in the Commons was most likely, according to de Roover, the scholastics. The participants included those educated in the universities where ‘Sir Francis Bacon, Sir Robert Cecil and other members of Parliament had received their formal training’.
Secretary Robert Cecil made a distinction between forum conscientiae and forum judicii, no doubt a scholastic reminiscence. Nearly all speakers pointed out that monopolies were a ‘restraint of freedom’ and that they were oppressive to the public and hurtful to the commonwealth, an observation which the Doctors had made long ago.[37]
Against this backdrop it is hard to accept in full the argument that the stationers’ copyright emerged as an ‘economic’ concept without ‘any interference from the courts or the legislature’. One question could be raised here, and that is the question of the extent to which these ‘theories’ of monopolies were reflected in practice. A range of instruments used to grant privileges have all at some point been described as ‘monopolies’. For instance, Patterson calls both the stationers’ copyright and the ‘printing patents’ problems of ‘copyright monopoly’. But what this means is still unclear.
We can return to the difference between a state interest in ‘unlicensed’ printing and the stationers’ interest in ‘piracy’ as a starting point. On the one hand the stationers’ persistent lobbying to successive governments to retain their privileges was largely calculated to secure or enhance existing privileges in the book trade by riding on the back of a public interest. The Stationers’ Company clearly saw the religious and political ambitions of their legislators when they lobbied Parliament in 1643 to revise regulations for the press following the lapse of the Star Chamber decrees: ‘That some speedy course may be taken for such perfect regulation of the Presse, as may procure the publike good of the State, by the private prosperity of the Stationers’ Company’.[38] But the Stationers’ didn’t always remain completely visible to the stated aim of uniting ‘all sections of opinion in one national church’.[39] According to Roger L’Estrange—called by various dissenters ‘Mr Filth’ and ‘old crackfart’ as reward for the vigour with which he took to his position as Surveyor of the Presse during the Restoration years—the system of book licensing established the stationers as ‘both Parties and Judges’ who, as censors, were effectively:
Entrusted to search for their own Copies; to Destroy their Own Interests; to Prosecute their own Agents, and to Punish themselves: for they are the Principal Authors of the Mischiefs which they pretend to now Redress.[40]
For L’Estrange it was not just that the guild was blindly shackled to an economic policy to print any book that might reap profits, but that certain of its members, being sympathetic to the cause of nonconformity, were prepared to illegally use their presses to this end.
In times of civil war, fought on the front of religion, its not hard to see why the link was made between civil stability and the commerce in print.[41] L’Estrange’s suspicion of the economic and political motivations of the guild isn’t surprising. As well as suspected of printing dissent, the Stationers had on more than one occasion been referred to as ‘old monopolizers’.[42] Hence the Stationers might be flaunting the ‘law of the realme ... grounded upon the law of God’ in more than a licentious sense.[43]
Furthermore, according to Sheila Lambert, the link between dissent and print wasn’t always so cast in the late 16th and early 17th centuries.[44] The ‘sermon, the stage-play, the proceedings of courts, the public meeting’, and especially ‘the tradition of manuscript circulation’, were all more potent disseminators of political ideas than the ‘printed word’.[45] Lambert thus throws ‘considerable doubt on the possibility that a couple of hundred squabbling small tradesmen could have been an efficient arm of government’.[46] According to Lambert, the maintenance of civil order by the Crown, by regulating heresies and sedition, was influenced more in terms of the ‘integrity of its foreign policy’ than in a blanket suppression of printed dissent.[47] While traditional histories of the press have assumed an ‘all-pervasive censorship’, Lambert offers a vignette of the period up to the Civil War in which Star Chamber Decrees and other sanctions lay ‘dormant’ or were superseded by those in another jurisdiction.[48] Indeed, Lambert’s description of the Crown’s disposition to the Stationers’ economic interests is a portrait of varying degrees of contempt and disinterest.
Albert Hirschman’s history of ‘interest’ and ‘interests’ by philosophers and political economists from the Renaissance to Adam Smith strives to imagine the ‘likely consequences of ... commercial expansion for peace, or of industrial growth for liberty’, in a context with ‘no interdisciplinary boundaries’ between ‘economics’ and ‘politics’.[49] In this spirit Hirschman argues that in the 16th and 17th centuries, concepts of private (economic) and public ‘interests’ looked more like a typology of human behaviours and attributes, which could be used to fashion strategies for government, a sort of raison d’etre. It wasn’t until after the later 17th century that an extrinsic economic operation was attached firmly to private interests, and the balance of those with a ‘public interest’. Hence, conflicts and complementarities in ‘interests’ and ‘passions’ were measured against principles of countervailing tendencies:
A belief that interest could be considered a dominant motive of human behaviour caused considerable intellectual excitement: at last a realistic basis for a viable social order had been discovered. But a world governed by interest offered not only an escape from excessively demanding models of states that ‘have never been seen nor have been known to exist’; it was perceived to have a number of assets of its own.[50]
The two assets were ‘predictability’ and ‘constancy’. The pamphlet Interest Will Not Lie observed that in the apprehension of a ‘man’s interest’ lies clues to his ‘prudence’ and thus reveals ‘how to judge of his design’.[51] In the initial phases of its history, ‘interest’ in economic activity was characterised not so much by its ‘passionate’ uncontrollable tendencies to irrational accumulation, as by its ability to be anticipated and hence pacified:
The by-product of individuals acting predictably in accordance with their economic interests was therefore not an uneasy balance, but a strong web of interdependent relationships. Thus it was expected that expansion of domestic trade would create more cohesive communities while foreign trade would help avoid wars between them.[52]
In this light we could consider the civil-political searches conducted by the Court of High Commission, resided over by a mixture of ecclesiastical-cum-civil personnel, who exercised the ‘residual prerogative of the Crown’. In Lambert’s account, when searching for licentious ‘speech’ this Court regularly bypassed the Stationers’ Company suggesting their economic interests were considered innocuous or unreliable as a means of policing the press.[53] The Commission’s interest in the ‘contents’ of books, as it extended to domestic and imported publications, including ‘pirated’ editions, encompassed a ‘legitimate paternalistic interest’ in the accuracy of books used to instruct children. The ‘rudiments of faith’ needed to be faithful to the ‘original’, at least to the extent that ‘the commandment ‘thou shalt not steal’ should not be omitted and then replaced as an afterthought’.[54] On a more general level, Lambert observes that the government regulation of heresy and sedition, imported or homegrown, was responsive to the ‘requirements of the diplomatic situation’ as the relationship between ‘internal and external risks’ required.[55]
Both Hirschman and Lambert cast doubt on our modern reliance on the history of copyright in a partnership ‘constant’ in its aims to suppress and accumulate, on the part of government and guild respectively. But, as ‘old crackfart’ L’Estrange’s lament goes to show, that ‘web of interdependent relationships’, to use Hirschman’s terms, was itself becoming, in the wake of the Restoration, a problem for the political order. In the words of a post-Restoration tract on religious toleration:
... to surmise the acting of multitudes, contrary to their own interests—is to take all assurance out of humane affairs’.[56]
In the light of these comments there might be a case for rethinking the history of copyright in the century and a half leading up to the 1710 Statute of Anne alongside shifting political and economic ‘interests’ in the civil sphere. The evolution of concepts of public and private interests, itself so intertwined with disputes over definitions of, and consequences of, ‘monopolies’, might shed some further light on the relationship between the publishers and civil authorities in the regulation of ‘print’ and ‘copyright’.
Again we can return to what turns out to be in many respects a useful distinction between a state concern with ‘unlicensed’ printing and the stationers’ concern with ‘piracy’. N Keeble observes:
‘No matter the prevailing temper of sovereign, parliament or established church: Roman Catholics, [Anglicans] and Puritans alike successively took up and refined the censorship machinery of their predecessors’.[57]
The ‘machinery’, it is widely acknowledged, was used to suppress heretical and seditious print, but was itself not faithful to a single political-religious position. This ‘machinery’ actually involves an intermeshing array of ‘policy’ instruments used to confer royal privileges and legal statuses, in statutes, parliamentary ordinances, Decrees of the Court of Star Chamber, Charters, and other ‘letters patents’,[58] as well as the copies, printing patents and licenses that attached to particular books. If we were to try and identify a systematic approach to the issuance of royal grants for the press, we would need to understand more about the machinery that granted a Royal Charter to the Stationers’ Company, and as we will see, extended similar privileges by statute to the merchants of Norwich.[59] Hence, to understand how the web of ‘interests’ and ‘passions’ in a period of such political upheaval was organised we need to understand the mechanical apparatus used to govern copies and the trade.
For one thing, this arrangement between the government and guilds for the regulation of trade and commerce in print was, as is already well known, quite typical. In fact, the distinction between the stationers’ copyright and the ‘printing patents’, to which we will turn shortly, is blurred enough to think of them both as mechanisms for the regulation of guilds, as distinct from the use of the guild to ‘police’ the press. E Wyndham Hulme’s papers on the history of the ‘patent system’ in early modern England identifies Elizabeth’s reign as the one in which ‘modern’ elements began to take shape around the use of patents as an instrument of policy. A ‘native spirit of speculative enterprise’ that took the common form of joint stock companies, signified a newly empowered class of English merchants whose interests did not always conform to the policy of encouraging ‘foreign’ industry.[60] The express policy for the improvement of trade and industry with the use of ‘patents’ also included encouragement for the importation of foreign crafts and merchants, as diplomatically sticky as this could often be. The recipient who was a ‘bringer-in or importer’ of a ‘new industry within the realm’ was not derivative but consequent to the recipient ‘inventor’, who came later.[61] The merchants of Norwich were given a ‘practical monopoly’ of the ‘manufacture of Russels, Sattens, Satten reverses and fustians’, to reward them for the working of a foreign industry ‘considered indispensable for the safety and independence of the Realm’.[62] The Statute 1 & 2 Phil. & Mary, cap 14, AD 1555 was the form this charter took, two years before the Stationers’ Royal Charter. Hulme offers what was at the time of publication the most ‘complete record’ of the industrial monopoly licenses issued during the period 1561—1570. Compiled on the basis of entries in the Calendars of the Patent Rolls and the original Rolls themselves,[63] these ‘industrial privileges’, Hulme tells us elsewhere, ‘followed close upon the heels of the printer’s copyrights’.[64] But his list bears out the difficulty in categorising the privileges for either ‘industrial’ purposes or ‘printing’ purposes. In 1588 a grant was made to Timothy Bright to ‘teach, print, and publish works in shorthand’.[65] In 1589, John Spilman was given a grant to ‘buy all manner of linen rags, &c, to make white writing paper’, that Hulme surmises was possibly connected to Richard Tottell’s petition in 1585 complaining that the French had bought ‘all the linen rags in the kingdom’ preventing him from introducing the manufacture of paper to the kingdom.[66] Another, to Edward Wright in 1598, was to ‘make and utter mathematical instruments’.[67] Edward Darcye’s infamous patent for the ‘sole importation of playing-cards’, disputed in Darcy v Allin,[68] is included. Perhaps one point of clarification would be to examine the line drawn between ‘industrial’ and ‘printing’ patents in grouping these different mechanisms, customs and purposes into a ‘system’ that might be, as Christine Macleod has argued, deceptively simple.[69]
But without the benefit of more detailed hindsight, one could observe that this ‘system’, whatever it was, came under attack in the constitutional contests for political, spiritual and economic powers. Privileging royal favourites in its ‘dispensatory’ powers, for instance, was one of the urgent issues of debate in the Commons. The shadow of suspicion cast over the reigns of the Tudors to the Stuarts remains with us today as an episode in political despotism. Copyright historians like Patterson and Bruce Bugbee follow Hulme in a fairly standard account of the prerogative grants, to simplify somewhat, in which many are described as ‘arbitrary’ grants rather than genuine predecessors to modern patents.[70] For the author of Walker on Patents, none of the 17th century prerogative grants were genuine:
Despotic kings were wont, in many countries, to confer monopolies upon their favourites, regardless of any meritorious right to the things monopolized; and it sometimes happened, in England and elsewhere, that, in pursuance of this practice, a monopoly of an invention was granted to its true inventor. Such a grant, however, was always a matter of kingly grace, and never a matter of legal right.[71]
And the inventor’s ‘rights of property’ is comparable in ‘dignity’ and ‘honour’ only to the rights in the ‘labours’ of an author.[72] But at the time of the passage of the 1624 Monopolies Act, the authority of the common law, the legislature and the royal prerogative in the definition of ‘monopoly’, was far from settled.[73]
The ancient powers of the Crown, we are told, were at that time referred to the ‘well known citation’ in Year Book, 40 Ed. III, fol 17, 18, that compelled the Crown to grant privileges for the ‘sake of the public good’.[74] However, many of the industrial grants of the 14th and 15th centuries were ‘clearly against common right’, while those of the Tudor dynasty further ‘divested’ the patent system of ‘all constitutional value’.[75] John Feather does point out that the ‘extreme assumption’ was ‘always modified and the full claim was never authoritatively sustained’.[76] It might be the detail of these modifications to the Royal Prerogative in the ‘policy’ of print that we could use as one of the sources to trace the modification of the machinery of privileges and ‘monopolies’ in the regulation of print and guilds.
This has already been done to some extent in the history of the printing patents, which originated in the Italian states before being ‘carried over into English practice’. These printing patents conferred privileges, and capacities to protect these privileges, in individual works and classes of works.[77] They were similar to the stationers’ copyright to the extent that they were forms of economic protection for printed works. It is this ‘species’ of privileges that Patterson argues was to be ‘obscured’ in the face of the progressively predominating influence of the stationers’ copyright. Yet, as Patterson points out, it was the printing patents, particularly those for classes of works, that ‘led to the rise of the monopolists within the company itself’.[78]
The patents controversy of the 1580s was the ‘first effort’ to address the problem of copyright monopoly and, Patterson argues, illustrates its ‘real nature’:
The printing patent was objectionable primarily because it made exclusive the right of publication to works that would otherwise be available to all printers for publication. The patented works were, for the most part, works which today would be in the public domain.[79]
The characteristic of the ‘monopoly problem’ here, that would also mark the later trade in classics, was the use of privileges ‘to foreclose competition’ which—but for an ‘arbitrary grant of the sovereign’—would be in the public domain.[80] In Coke’s commentary on the 1624 Monopolies Act, he describes a monopoly as an ‘allowance by the king’ which takes away the ‘freedome, or liberty that they had before’.[81] The petition, which sparked the controversy, was presented to the Privy Council in 1577 entitled ‘The griefes of the printers glasse sellers and cutlers susteined by reson of privileges granted to privatt persons’. It was thus one ‘showing common cause against monopolies’.[82]
There were two official outcomes of this episode. The recommendations of the 1583 Commission formed the basis of the 1586 Star Chamber Decree.[83] And secondly, at the turn of the century, the English Stock—’a publishing organisation in the nature of a joint-stock company’—was established by letters patent under James I.[84] The disputes in the company caught the attention of crown officials partly because of the ‘rising tide’ of Puritanism and the danger that secret printing presses might exist.[85] But as both Lambert and Patterson point out, the government’s interest also extended to the patents themselves. The Commission viewed certain printing patents as falling within the proper scope of ‘maintaining order in the book trade’, but the ‘general patents’ for classes of books were a different matter. The Commission recommended ‘to her maiestie that hereafter no generall title of bookes of Art nor scholle bookes except bookes perteyning to her maiesties service be not Drawen into privilege’.[86] This recommendation, and admonition, hints at the broader purpose of the patents as devices for trade regulation, as well as the dangers inherent in their monopolising tendencies. This was not something isolated to the Stationers’ claims. Such dangerous tendencies were treated with hostility by both City authorities and in Parliament.[87]
The English Stock, as characterised by John Feather, was the ‘internal’ response to the industrial disputes surrounding patents. A key problem facing the corporate status quo was the gap emerging between ‘privileged’ and ‘unprivileged’ printers, ‘between the rich and the poor’.[88] Changes in the book trade in the 17th and 18th centuries – the rise of patterns of distribution and consumption particular to a ‘print culture’—were a constant source of internal strife within the guild, and sometimes the agitators were also dissenters as well as ‘poor’. John Wolfe, leader of the insurgents—a ‘Secret Combination’—during the controversy has been oft quoted:
‘Tush’, said he, ‘Luther was but one man, and reformed all ye world for religion, and I am that one man, yat must and will reforme the gouernement in this trade’.[89]
According to Feather, the response of the Masters and Wardens to the threats posed by piracy – but also the dangers of a dissenting presence – was to transform patent rights into a ‘very different kind of property’. By regularising their role in the guild organisation, including entry in the Company’s register of copies, the ‘corporate’ response to the complaints of ‘poorer members’ began ‘to take on the appearance of a business on its own account’. The Company devised rules, regulations and an ‘equitable’ policy for distributing work and profits amongst its members.[90]
What the English Stock represents basically, is the emergence of ‘ownership’ rights, in copies and printing patents, that accrued to corporate—not individual—persons. As Feather explains it, the English Stock settled a ‘clear legal basis’ for ‘rights in some of the most valuable copies in the trade’, and confirmed along the way, ‘probably coincidentally’, the function of the Company in the establishment and enforcement of these rights:
The English Stock copies unequivocally had their origin in the exercise of the Royal Prerogative; the Stationers’ Company had transformed them into commercial properties.[91]
Patterson is much more wary of using the term ‘property’ in connection to the publishers’ interests. But he also marks this episode as a turning point in the eventual decline of the printing patents as an influence on modern copyright. For one thing, the ‘patents cases’, spanning 1666 to 1775, progressively delimited the royal prerogative over print. For another, the development of literature made the stationers’ copyright the more valuable of the two.[92] The royal prerogative was limited, in Patterson’s words, to a ‘proprietary interest of the sovereign in a few types of works, eg, bibles, as head of the Church, and law reports, as head of state’.[93] Furthermore, the ‘major idea present in the printing patent not present in the stationers’ copyright was the idea that copyright was a grant of the government’.[94]
Also, the problem of imported books, which might be ‘pirated’ or a threat to civil stability, poses a distinctive historical trajectory. In terms of the stationers’ interests, the importation of foreign ‘piracies’ was becoming ‘almost as great a problem as illicit printing at home’.[95] From the turn of the 17th century, according to Lambert, the Company became concerned about the importing, not of ‘vain, lascivious or even popish’ books, though the ‘popish threat was a common-form excuse’, but ‘standard school books and Protestant religious texts’.[96] These patented works included, ‘almost without exception’, according to John Feather, scholarly works involving ‘long periods of compilation and expense’.[97] The Stationers lobbied the government time and time again on the particular issue of importation, and set up ‘stocks’, like the English stock, ‘to get the importing trade into its own hands’.[98]
The rise of literature and the ‘original work’ might well have been outcomes of the stationers’ copyright system. But the distinction between ‘patent’ works and literature hasn’t been thoroughly examined in terms of, for instance, whether the ‘litigious’ element lay in ‘reproduction’ or ‘importation’, themselves subject to different and various ‘policy’ rationales.[99] What defined the set of interests in the protection of ‘learned’ works involving ‘long periods of compilation’ and expense, as distinct from the ‘interests’ in literature? It has already been observed by historians that the protection of such works was necessary to reward those publishers and occasional authors who invested in these ‘large and slow-selling works’, many of which were composed in Latin and printed in ‘large and expensive folios’.[100] This might be another facet of copyright history that could be re-examined to explore the question of distinctive public and private ‘interests’ in different classes of books and different modes of distributing books. This would involve reviewing the centrality of literary conceptions of authorship in refining categories of private property and a consideration of the differences between ‘corporate’ and ‘individual’ legal statuses. We could thus cast our eye with renewed interest over the various policy rationales for protecting laboriously compiled works with specific civic functions.[101]
What is our present constitutional heritage? It is this question which this paper has sought to explore. I started by observing that the division between property and the public domain also works as an historical explanation of the difference between positive rights and entitlements, and exemptions from those rights and entitlements. This tendency, I argued, has not necessarily been diminished by debunking the origins of copyright by exposing its philosophical heritage in Romantic conceptions of authorship. Our understandings of the balance of public and private interests in copyright laws are still coloured by the historically privileged role attributed to the stationers’ copyright system and its consequent translation to the legislative and common law sphere in the guise of the property rights of authors.
The observation that the public domain constitutes ‘leftovers’ is not new in itself – though it is a point taken up relatively rarely. Both Jessica Litman and David Lange, for instance, have both made compelling arguments for the positive and essential role that the public domain plays, as a legal device, in the apportionment of rights and entitlements.[102] This work has contributed to the discussion of the actual construction of the public domain and enhances our understanding of the way the public domain is active in the minutiae of legal decision-making. But I also argued that there might be a ‘blindspot’ in copyright history that has caused our attention to be diverted from constitutional questions. This ‘blindspot’ is not so much a function of how the first copyright act, the 1710 Statute of Anne, was interpreted by the courts at the other end of the 18th century, but of how we have historicised the passage of that act and its reception. That is, the history of copyright in the 18th century also contains a history of copyright in the century and a half before the 1710 Act in which the stationers’ copyright emerges as the predominant rationality for the protection of rights in copies. Patterson makes this same observation in a sense; we have forgotten, he argues, the purpose of copyright in the regulation of monopolies. But because Patterson himself insists on the historical lack of legislative and common law interference in the development of a private property concept, his regulatory lesson is diminished. Rather than focusing on the lack or absence of legislative and common law interference in the development of economic protection for rights in copies, I have attempted to demonstrate the possible avenues for exploring the presence of a governmental, and thus ‘public’, interest in the formative years of Anglo-American copyright concepts and laws. This governmental history also extended beyond the exercise of censorial authority, and encompassed a range of ‘policy’ interests in books and the distribution of books.
I explored several potential avenues for extending a governmental history of copyright: the debates about the political and economic functions of ‘monopolies’ in organising interests, the consequent passage of the Monopolies Act from which the ‘monopolies’ of the book trade were ‘exempted’, the administrative and bureaucratic ‘machinery’ of press regulations, the ‘patent system’ which extended privileges for industry and trade, including the book trade, and the imperatives provided by ‘foreign’ and ‘civic’ policies respectively in the regulation of imported books. Three broad recommendations for future research can be made on the basis of this seemingly erratic list. First, the ‘jurisdiction’ of ‘copyright’ was variable, in form and purpose, throughout the period before the 1710 Act. That is, the intermingling of public and private interests was not constant but contained the impressions of the constitutional upheavals of the 16th and 17th centuries. And we do not as yet have a very clear or detailed picture of this. And secondly, the stationers’ copyright ‘system’ was less unified by an economic rationality than we think when we turn our attention to the development of different rationales for regulation and the different statuses of corporate and individual ownership. Corporate ownership, exemplified in the example of the English Stock, might be one place to begin to explore the (continuing) policy role of ‘patents’ in the regulation and protection of, to use a modern term, ‘informational works’ in the period before the 1710 Act. And I am indebted to L Ray Patterson for the last point, and that is, copyright history does bear out the integral regulatory role of copyright in harnessing ‘monopolies’. Thus we could build on the ‘anti-trust’ origins of copyright concepts and practices for the history of our present copyright dilemmas.
How would our contemporary visions of the constitutional ‘divide’ between public and private domains seem to the early modern ‘copyright reformer’? At least one observation could be made to round off this historical excursion into the public interest and the public domain. At the dawn of copyright, the idea of letting ‘market forces’ do the ‘civic’ job of regulating intellectual property would seem as absurd as an extension of the Royal Prerogative in cyberspace today. And maybe there is yet another irony here, and that is that this might not be such an absurd idea at all.
[∗] BA (Hons). Faculty of Arts, Griffith University.
[1] P. Goldstein (1994) Copyright’s Highway: the law and lore of copyright from Gutenberg to the Celestial Jukebox, Hill and Wang, New York.
[2] ibid., p. 15.
[3] 8 Anne c. 21. See D. Saunders (1992) Authorship and Copyright, Routledge, New York; B. Sherman & A. Strowel (eds) (1994) Of Authors and Origins: Essays on Copyright Law, Clarendon Press, Oxford; M. Woodmansee and P. Jaszi (eds) (1994) The Construction of Authorship: Textual Appropriation in Law and Literature, Duke University Press, Durham. Copyright has provided an occasion to extend theories of authorship, especially in ways recommended by Michel Foucault in ‘What is an Author?’, D. F. Bouchard (ed) (1980) Language, Counter-memory, practice: selected essays and interviews, Cornell University Press, Ithaca, pp. 113-138. For a Foucauldian analysis that recommends important revisions to his thesis, see Carla Hesse (1990) ‘Enlightenment Epistemology and the Laws of Authorship in Revolutionary France’, Representations, 30, Spring, pp. 109-137.
[4] M. Rose (1988) ‘The Author as proprietor: Donaldson v. Becket and the genealogy of modern authorship’, in Sherman & Strowel; M. Rose (1993), pp. 23-55. See also M. Woodmansee (1984) ‘The Genius and the Copyright: economic and legal conditions of the emergence of the ‘author’’, 18th-Century Studies, 17, 4, pp. 425-448; (1994) The Author, Art and the Market: rereading the history of aesthetics, Columbia University Press, New York.
[5] L. Ray Patterson (1972) ‘Copyright and the Public Interest’, A. Kent & H. Lancour (eds) Copyright: current viewpoints on history, laws and legislation, R. R. Bowker, New York, 44. See also (1968) Copyright in Historical Perspective, Vanderbilt University Press, Nashville; L. Ray Patterson & S. W. Lindberg (1991) The Nature of Copyright: a law of users’ rights, University of Georgia Press.
[6] Patterson (1972) p. 44.
[7] See Patterson (1968) pp. 3-19.
[8] For a detailed account of this episode see R. Astbury (1978) ‘The Renewal of the Licensing Act in 1693 and its Lapse in 1695’, The Library, 5th ser., 33, pp. 296-322.
[9] See for example M. Salokannel (1994) ‘Film Authorship in the Changing Audio-visual Environment’, B. Sherman & A. Strowel (eds), pp. 57-78; J. Gaines (1992) Contested Culture: the image, the voice, and the law, BFI Publishing, London. Both authors use the earlier analysis of Foucault (1980) and B. Edelman (1979) Ownership of the Image: elements for a Marxist theory of law, Routledge & Kegan Paul, London (trans. E. Kingdom & P. Hirst).
[10] But see T. Ross (1992) ‘Copyright and the Invention of Tradition’, 18th-Century Studies, 26, 1, 1-27. Ross examines the creation of a ‘public domain’ in the 18th century as a historical outcome of the evolution of a canonical tradition, the formation of a ‘national culture’, and the emergence of an ethos in which ‘ideas’ could belong to everyone. Ross is an important alternative analysis of the ‘conceptual nursery’ contained in the literary property debates. He favours the predominance of an ‘aesthetics of readership’ rather than Romantic conceptions of creation.
[11] See R. C. Van Caenegem (1988) Judges, Legislators and Professors: chapters in European legal history, Cambridge University Press, Cambridge.
[12] See J. Frow (1996) ‘Information as Gift and Commodity’, New Left Review, 219, pp. ; (1994) ‘Timeshift: technologies of reproduction and intellectual property’, Economy and Society, 23, 3, pp. 291-304.
[13] J. Litman (1990) ‘The Public Domain’, Emory Law Journal, 39, 4, pp. 965-1023. For another excellent analysis of the ‘shrinkage’ of the public domain in a series of American cases, see D. Lange (1981) ‘Recognising the Public Domain’, Law and Contemporary Problems, 44, pp. 147-178.
[14] Patterson (1968) pp. 43-44.
[15] See also J. Feather (1988) ‘Authors, Publishers and Politicians: the history of copyright and the book trade’, EIPR, 12, pp.377-380; (1994) Publishing, Piracy and Politics: an historical study of copyright in Britain, Mansell, New York.
[16] [1774] EngR 47; 1 ER 837.
[17] J. Feather (1988) p. 380.
[18] A. Strowel (1994) ‘Droit d’auteur and Copyright: between history and nature’, in B. Sherman & A. Strowel (eds) p. 237.
[19] [1774] EngR 47; 1 ER 837, 839-840.
[20] [1774] EngR 47; 1 ER 837, 840.
[21] For a detailed and comprehensive discussion of the significance of the ‘common law copyright’ see H. B. Abrams (1983) ‘The Historic Foundations of American Copyright Law: exploding the myth of common law copyright’, Wayne Law Review, 29, 3, pp. 1119-1187.
[22] [1774] EngR 47; 1 ER 837, 841.
[23] See also J. Ginsburg (1990) ‘Creation and Commercial Value: copyright protection of works of information’, Columbia Law Review, 90, pp. 1865-1938.
[24] ‘The stationers’ copyright thus was a monopoly of a member of a company which was itself a monopoly’ (Patterson (1974) p.44).
[25] Reprinted in Edward Arber (1875-1894) A Transcript of the Registers of the Company of Stationers, 1554—1640 A.D., v. I, pp. xxviii-xxxii.
[26] This is necessarily condensed. The differences between the ‘copie’ and the ‘license’ are actually much more complex than this suggests. In Atkins Case (1666) 124 ER 842, 845, the difference between the ‘license’ and ‘patent’ is put this way: ‘It is one thing to license a book to say, this book is fit for publick view; and another thing to say, this book thus licenced shall be printed by any that can get it into his hands. License to print, that goes to the bookseller or printer, licenced to be printed, goes to the King’.
[27] Patterson (1968) p. 21.
[28] For a detailed history of the Company and their customs see C. Blagden (1960) The Stationers’ Company: a history, 1403—1959, London, George Allen and Unwin.
[29] Patterson (1968) p. 37.
[30] Patterson (1968) p. 20.
[31] Edward Coke (1986) ‘Against Monopolists, Propounders, and Projectors’, The Third Part of the Institutes of the Laws of England, William S. Hein Company, Buffalo, pp. 181.
[32] ibid.
[33] 21 Jac c. 3. It is outside the immediate scope of this essay to examine the ‘exemptions’ in this Act that pertained to the book trade. The Act contained general exemptions for ‘corporations’, and specifically exemptions for ‘printing patents’. Given that the Monopolies Act was directed to limiting the exercise of the royal prerogative, as much as if not more than to the regulation of ‘commerce’, then it might be the case that the ‘exemptions’ for the book trade marks the relevance of this Act for regulating ‘copyright’. Because of the ‘exemptions’ for the book trade this Act is usually considered as a ‘footnote’ in copyright history.
[34] E. W. Hulme (1896) ‘The History of the Patent System Under the Prerogative and at Common Law’, Law Quarterly Review, XII, pp. 141—154. ‘‘All men of the law know’, said Bacon in 1601, ‘that a bill which is only expository to expound the common law doth enact nothing’’ (at p. 151). This was also part of the problem in the interpretation of the 1710 Act and its effect on the ‘common law copyright’ of authors.
[35] R. de Roover (1974) ‘Monopoly Theory Prior to Adam Smith’, in J. Kirshner (ed.) Business, Banking and Economic Thought in Late Medieval and Early Modern Europe: selected studies of Raymond de Roover, University of Chicago Press, Chicago, p. 276.
[36] ibid., p. 282.
[37] ibid., pp. 282—283.
[38] Cited in Patterson (1968) p. 130.
[39] ibid., p. 128.
[40] Cited in N. Keeble (1987) The Literary Culture of Nonconformity in Later Seventeenth-Century England, University of Georgia Press, Athens, p. 105.
[41] The importance of print culture to English political history is fundamental and multi-faceted in the early modern era; to understand ‘political discourse’ one cannot avoid an examination of its print culture. See J. G. A. Pocock, G. J. Schochet & L. G. Schwoerer (eds) The Varieties of British Political Thought, 1500—1800. Some ‘crucial moments’ include: ‘the advent of a humanist discourse and a print medium cabbage of conveying it; the explosion of unlicensed printing at the outset of the mid-seventeenth-century internal wars; the growth of journalism and another explosion of printed matter in the troubled late seventeenth century’ (2). See also E. Eisenstein (1993) The Printing Revolution in Early Modern Europe, Canto edition, Cambridge University Press, Cambridge.
[42] John Milton (1886, 1644) ‘Areopagitica: For the Liberty of Unlicensed Printing’, Famous Pamphlets, Routledge, Broadway. A famous expression of this sentiment is in Milton’s pamphlet on the 1643 Parliamentary Ordinance for the pre-publication licensing of books: ‘For that part which preserves justly every man’s copy to himself, or provides for the poor, I touch not, only wish they be not made pretences to abuse and persecute honest and painful men, who offend not in either of these particulars’ (p. 16).
[43] Edward Coke (1986), p. 181.
[44] S. Lambert (1992) ‘State Control of the Press in Theory and Practice: the role of the Stationers’ Company before 1640’, R. Myers & M. Harris (eds) Censorship and State Control of Print in England and France, 1600—1910, St. Paul’s Bibliographies, Winchester, pp. 1-32. For an extension of Lambert’s history, see M. Mendle (1995) ‘De facto Freedom, de facto authority: press and parliament, 1640—1643’, The Historical Journal, 38, 2, pp. 307-332. For a standard history of press regulations, see F. S. Siebert (1965) Freedom of the Press in England, 1476—1776: the rise and decline of government control, University of Illinois Press, Urbana.
[45] Lambert (1992) p. 6.
[46] ibid., p. 2.
[47] ibid., p. 8.
[48] Lambert notes the difficulties in policing bookselling in the City of London, a ‘realme’ in which the Company’s sanctions on bookselling were restricted, and the trade in ‘wares’ was open to all ‘freeman’ (18).
[49] A. O. Hirschman (1977, 1997) The Passions and the Interests: political arguments for capitalism before its triumph, Princeton University Press, Princeton, p. 3.
[50] ibid., p. 48. See pp. 48-66.
[51] Cited at ibid., p. 49.
[52] ibid., pp. 51-52.
[53] Lambert (1992) pp. 10-11.
[54] ibid., pp. 12-13.
[55] ibid., pp. 8-9.
[56] Cited in Hirschman (1997) at p. 49.
[57] Keeble (1987) p. 72.
[58] The ‘letters patent’ was ‘the regular administrative instrument for the granting of lands, titles, offices, and other privileges’ (C. Macleod (1988) Inventing the Industrial Revolution: the English patent system, 1660—1800, Cambridge University Press, Cambridge, p. 2).
[59] Hulme (1896) p.145. Hulme published a series of articles on the history of the patents system: see also (1897) ‘On the consideration of the patent grant, past and present’, Law Quarterly Review, LI, July, pp. 141-154; (1900) ‘The History of the Patent System Under the Prerogative and at Common Law’, LQR, LXI, January, pp. 44-56; (1902) ‘On the History of Patent Law in the Seventeenth and Eighteenth Centuries’, LQR, LXXI, July, pp. 282—288. See also Macleod (1988) p. 10-39.
[60] Hulme (1896) p.144.
[61] ibid., p. 152.
[62] ibid., p.145.
[63] ibid., pp. 145-150.
[64] Hulme (1900) p. 44.
[65] ibid., p. 49.
[66] ibid., pp. 49-50.
[67] ibid., p. 51—my emphasis.
[68] [1669] EngR 186; 74 ER 1131.
[69] Macleod’s (1988) study attempts to explain how ‘a recognisable patent system emerged from the monopoly muddle’ (p. 1).
[70] See Patterson (1968) pp. 82-84; B. W. Bugbee (1967) Genesis of American Patent and Copyright Law, Public Affairs Press, Washington, DC, pp. 27-43; B. Kaplan (1967) An Unhurried View of Copyright, Columbia University Press, New York, pp. 3-6.
[71] A. W. Deller (1937) Walker on Patents V. II, Deller’s Edition, Baker, Voorhis and Co., New York, p. 1153. See s. 223 entitled ‘Patents are not odious monopolies’. For other histories of copyright and anti-trust more contemporary with Patterson, see J. Taubman (1960) Copyright and Anti-trust, Federal Legal Publications, New York; M. Conant (1978, 1960) Anti-trust in the Motion Picture Industry: economic and legal analysis.
[72] Deller (1937) pp. 1189-1190.
[73] Hulme (1896); J. Baker (1979) An Introduction to English Legal History, Butterworths, London, pp. 169-83.
[74] Hulme (1896) p. 143.
[75] Year Book, 40 Ed. 111, fol. 17, 18., ibid., pp. 143-144.
[76] Feather (1994) p. 11.
[77] Feather (1994) pp. 11-12. See also Patterson (1968) pp. 78-113; Bugbee (1967) pp. 15-43, Abrams (1983) pp. 1147-1152.
[78] Patterson (1968) pp. 78-80.
[79] Patterson (1968) p. 91.
[80] ibid.
[81] Coke ( 1986) p. 181.
[82] Cited in Patterson (1968) p. 92 – my emphasis; See also Lambert (1992) p. 12.
[83] This Decree has not been characterised so much by its censorial function as by its regulatory function. The 1637 Star Chamber Decree and the 1662 Licensing Act are more exemplary in this respect.
[84] Patterson (1968) pp. 106-7.
[85] ibid., p. 95.
[86] ibid., pp. 102, and see 101-103.
[87] Lambert (1992) p. 12.
[88] Feather (1994) p. 22.
[89] Cited in Patterson (1968) p. 97.
[90] Feather (1994) pp. 22-25.
[91] Feather (1994) p. 25.
[92] Patterson (1968) p. 113.
[93] ibid., p. 88—my emphasis.
[94] ibid., p. 113.
[95] Lambert (1992) p. 17.
[96] ibid.
[97] Feather (1994) p.13.
[98] Lambert (1992) p. 19.
[99] For a discussion of ‘policy’ rationales in the revolutionary France and America see J. Ginsburg (1994) ‘A Tale of Two Copyrights: literary property in revolutionary France and America’ in B. Sherman & A. Strowel (eds), pp. 131—158. See also Hesse (1990) & Ross (1992).
[100] Feather (1994) pp. 13-14.
[101] This work has already begun. See Ginsburg (1994); Hesse (1990); Ross (1992).
[102] But see Lange (1981); Litman (1990).
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