May 13, 2016
Public Domain a Space for Free Usage or Pirate Fodder
“Authors’ moral claims of labourious entitlement merely masked the power grab of the printers. If we speak of a grab, we imply that copyright was seized from somewhere. So whence, in this account, was copyright wrested? From the public domain.” (Ginsberg 1)
Copyright law began with the first statute, Statute of Anne 1710. Its purpose was to have a government process that would control copyright instead of private printers which was the rule of the day under the Licensing Act of 1662 that had all printing under the control of The Stationers Guild. They limited which printers could print, how much and what could be printed, or the idea of censorship. The creation of the Statute of Anne came out of the desire to have more freedom from censorship that was the primary job of the Stationer’s Guild. We might assume that this effected texts written but the real issue was the pamphlets that were mostly political in nature that were not able to be openly printed by the Guild. Public sentiment at the time wanted to have more freedom to print or as we know it freedom of the press. The statue of Anne in changing the guild monopoly and more printers were open to print thus financial gains, censorship in most regards lessened except for Parliamentary proceedings. Here we are embracing governmental transparency, explosion of financial gains from freedom of new printers, and limited ownership of authors works. The idea of 14 years of copyright ownership with ability to extend that another 14 years or 28 years in all that the author (or owner of the authors rights) had control over who printed their text. A few interesting points are derived from this creation. The first being that in a time that life expectancy was not nearly as long as today, twenty-eight years may seem a reasonable amount of time for the author to make a decent living out of this time period. IT would have if the author was well situated in the literary world (popular) but it was not often an author could live by their pen alone without a benefactor. In this case printers still held the power as often authors outright sold their copyright to the printer. Secondly, the statute covers only the idea of the “book” and not defining what that might mean. In other words, pamphlets, sheet of music, etc. are not covered under this statute. What happens to them, I will discuss in depth later on in this essay, Finally, the place of concern, where does the ownership go after those 28 years? Or who has ownership? Whatever your thoughts, the idea of this “place” was not truly considered then this statute was created, and no one considered that a “place” would be created from this termination of rights; today we call it the Public Domain.
This mad grab of power is what created the public domain. For the grab to occur then a place, a depository existed of the already written text, to be grabbed from. Yet, we understand that no place truly existed at this early war of ownership, but it was generated out of the process of protection. In fact, the term of public domain did not exist in the early laws but it was understood to be there –nameless. Jane Ginsberg, her article, ‘‘Une Chose Publique’’? The Author’s Domain and the Public Domain in Early British, French and US Copyright Law, states:
[i]n France, the term had been employed by the mid-19th century to mean expiration of copyright term…This does not mean that the broader concepts that the ‘‘public domain’’ today embraces did not exist in some form in the eighteenth century, but simply that no single locution conveniently and universally captured the concept of non-property in works of authorship,” (2).
The depository existed in theory even if it remains nameless for a century. I intend to argue that this un-intend space creates a process of constant reform to this idea of ownership but that it is this space where “free use” inhabits and what items are in it that are then not covered by copyright protection and that it is the idea of piracy that presents the “holes” in the law. Piracy in this sense is the connection between government officials and the business of printing, that took advantage of these “holes” and made a tidy profit. Copyright laws within past and present, demonstrate that it favors financial powers such as printers or bookseller to today’s media empires, that piracy is often the printing that fell into the space created by The Statutue of Anne, not because it was free to use but because it was not properly labeled by the copyright law.
What really is public domain to anyone: writer, reader, business man, etc., anyone that has any interest in music, art, text, prints, and I’m sure things yet to be discovered? It appears that this depository of free “book” creates a war over the idea of possession. Possession in this case is this word that has a negative connotation to physically control, or to seize, to appropriate, to impound and so on…they are all warring words to this “free” book and do with as you will. Or is the idea to not let the possession of the “book” become free, to not let it enter public domain. How else can rule over this ephemeral depository that holds for the public, ideas that are of free use to them? To do something like this it has to be done in law, court of deciding war of ideas in most cases. Since the concern is over ‘free’ meaning no money to exchange hands, then this fight is not about what is free, but what is NOT free. The truth of copyright law is so that the idea (book, music, art, etc.) does not lapse out of the hands of business and be available to the public for free, as the public always has access—for a price, thus the money makers continue to make money, and often that is NOT the author/artist. How did this system to protect authors from the business of printing end up only further controlling the system to their future profits and did this financial control take place at the beginning with the Statute of Anne?
Life Before Anne–Censorship
Censorship was designed to control the printing of ideas, as well as how much and where that item would go. With the invention of the printing presses a new world opened up where suddenly the possibility of making and distributing an item before even the day was over, created a concern (I think potentially a panic) that in this new world the need of controlled measures on this process were needed. Much like today process of digital creations that can be made and disturbed within seconds, how to you use control measure on this kind of time explosion? Britain and France’s answer was to have governmental controls in place to stop unapproved printing, thereby stopping the flow. Ginsberg sums up, “in France, a royal minister supplied the required ‘‘approbation du roi’’, but the booksellers’ guild, the ‘‘corporation des libraries’’, implemented the ‘‘privilege du roi’’. In England, however, the Stationers’ Company ultimately covered both,” (4). The government had created these groups that limited (controlled) the number of sanctioned printers and what was to be printed. In Britain, the Licensing Act that created this control, “a 1677 King’s Bench decision in a suit brought by the Stationers’ Company, referring to an earlier House of Lords ruling,”(4). This act lapsed in 1695 and was not renewed, the public outcry for change had prevented it from occurring until the Statute of Anne was created.
Statute of Anne Creates Public Domain
The Statute of Anne states the “book” as the item in question, but does not state what that definition would include. In the future the question of this definition would include illustrations in the book, the plates of the printing press, musical score sheets, letters of author, further editions, or we would ask movie rights? It did not appear to cover anything other than the first printing because of the “1735 Hogarth’s Act, provided for exclusive rights in prints and engravings,”(Ginsberg 8). Taken from the original statute:
And that if any other Bookseller, Printer, or other Person whatsoever, from and after the Tenth Day of April, One thousand seven hundred and ten, within the
times Granted and Limited by this Act, as aforesaid, shall Print,
Reprint, or Import, or cause to be Printed, Reprinted, or Imported
any such Book or Books, without the Consent of the Proprietor or
Proprietors thereof first had and obtained in Writing, Signed
in the Presence of Two or more Credible Witnesses…. copyrighthistory.com/anne.html
In essence it covers the original document only and that is where the idea that this statute is incomplete arises from issues, such as what if you wrote a text but did not publish it, is it still your property? Ginsberg addresses this concern: “The case law, however, indicates a diﬀerent view. Noncompliance with formalities seems not to have been raised as a defence when the claim concerned an unpublished work. Arguably, one who publishes an unpublished manuscript knows that he is invading the author’s right,” (10). As Ginsberg continues, it seems clear that that is left undefined becomes part of the public domain. She states:
“If authors’ rights did not detract from a pre-existing public domain, we might nonetheless posit that the Statute of Anne created both copyright proprement dit (that is exclusive rights arising out of the creations of authors rather than compensating or encouraging printers’ investments) and the concomitant public domain. For if the statute delineated the author’s domain (and, derivatively, the bookseller’s, too), then everything the statute left out might be deemed publici juris.” 7
If this is the case that there are many pieces of writing, illustrations, musical scores that since were not intended to be published or were intended but were not published, they also fell into this gray area. In it not free to use but it is the idea that if you can get away with it, then why not do it. Adrian John, in Book of Nature and the Nature of the Book posits, “a large number of people, machines, and materials must converge and act together for it to come into existence at all…material embodiment of, if not a consensus, then at least a collective consent.” (60). The concept of the rules is so that a consensus can occur, that all people will agree on its production. In a perfect world, we would not need rules and in a slightly less perfect world, we would all agree, but since we are in neither, then of course the idea is that we may not all agree, or we may appear to agree but are lying. This is also a grey area that is created in the creation of this text. I argue that in this space of grey, lies the makings of what we would call piracy. A powerful word that means an act of reproduction without permission. Since the grey area is created then we must assume that we lack of permission will not stop reproductions of text
How Pirates and Politicians Worked Together
Public demand for current and accurate Parliament debates reached its climax early 1771 when “Tuesday 5th February 1771, Colonel George Onslow read to the House of Commons in London a resolution of 26th February 1728” that the printing of Parliament debates was not allowed without permission. (Bullard 1). Patrick Bullard discusses in his article, “Parliamentary rhetoric, enlightenment and the politics of secrecy: the printers’ crisis of March 1771, “Since the mid-1760s John Almon, a Piccadilly bookseller (and former hired-pen to Lord Temple) who continued to enjoy a lucrative connection with opposition pamphleteers, had been attempting to find a safe way of satisfying the considerable public appetite for accurate political information, which had itself been stimulated by the publications of his friend John Wilkes, (Bullard 2). What is not often discussed is that one, the public had, “considerable public appetite for accurate political information” and two, “lucrative connection with opposition pamphleteers.”(2). The desire for news was a potentially large business model but that until it became such, the idea that someone needed to feed the public was being done by illegal means. These illegal means was really the local printers that was trying ot meet the demands of the public, and since they felt it the politics should be public knowledge, the idea of printing these debates continued. In other word, illegal means equals piracy of the political ideas that were discussed in the House of Commons; and making plenty of money from it. When a need is not fulfilled and there are public demands to be met, if the government or any ruling power (albeit business as well) does not act then anarchy will prevail and in this case not so much anarchy but freedom to exercise rights of expression. As I discussed earlier, the open bounty of the public domain which its use is free to anyone of the public, then the printers had a point of argument on their side. Even if the act was condemned by the government, if had not really been enforced since its’ inception in 1728.
In step the pirates—which are no more than business ventures that larger controlling powers have ignored. Almon had created a more respectable magazine, “London Museum which Almon commenced publishing on 1st January 1770,” that addressed these Parlimentary debates. Then others joined the business, “sudden and irreverent entry of the daily, tri-weekly and weekly newspapers into the same market,” that caused Parliament to stop and take notice. There was a long back and forth about arresting these printers to punish them, a trial commenced but Almon ends up ______. The real issue to this warring is that the frustration of the public was the idea that Parliament proceedings were secret and this set off the idea that secret government happenings were occurring or why would they not allow the debates printed? Suspicions rules this day. The point that makes the whole affair interesting is that, “Perhaps the key feature of all this reporting, however, was its extremely unreliable mediation through mens’ memories, note-taking being officially forbidden in the House before 1784.”(Bullard 9). In other words, did it not matter if the fight between the lords and the illegal printings were accurate because no one could be accurate. Most of the printings in the press at this time were when members recalled the day or two before debates. If the possibility of accurate reporting was not possible than why was Parliaments so adamant about not printing anything? Or is that why, because they had not power to make sure that the correct printing was able. It further point to the idea that, “idea of a political culture of secrecy was that the very act of a politician going to Almon…with the notes of a parliamentary speech took on a distinct political content.” (12).
If the largest fear if piracy is the inaccurate printing and reprinting or the lack of control of what is said, especially when it is fed to the printers by the politicians? Copyright at this point only protected the author of the book and not of the pamphlet or i.e. the press. These printers are not protected and not controlled yet the government without censorship on this type of printing, did create the opportunity for piracy to step in?
Printers as Pirates
The idea today of copyright ownership consists for more than ownership of the original text. It address’s future printings of the text and all piece’s parts that, quote form today’s act. Clearly, ownership today can offer’s an author today the ability to live quite comfortably on the proceeds of their pen. This was not always the case, even after the idea of protection for printing right began in 1710, the idea that an “Authors who lacked social and literary connections found it practically impossible to live by the pen. They required the ongoing ﬁnancial support of aﬄuent benefactors since it was usual practice to sell manuscripts to publishers for a one-oﬀ fee without being able to take a share of any future proﬁts.” (seaward 2). In essence they gave away the rights to that manuscript for it to be published. IF the publishing went well then again future profits would usually not be their gain. Without this step, the author’s readers would not grow so quickly and easily thus creating the potential for future manuscripts selling. Benefactors still had the power over authors futures but now we add printers also gaining from the author’s success. At this stage author’s created the product but often their input ceased to influence the future, it was the power between the benefactor and the printers that controlled this financial transactions, “Vast discrepancies in wealth and power meant that patronage networks were a crucial component of eighteenth-century society” (2). This is important to note because governmental controls were in place that still decided the who and the what. These lovely triangle is not a balanced one, one where two other parties did all they could to persuade the government, French censorship was repressive in theory, it was in practice characterized by nuance and ﬂexibility,”(Seaward 2).
To consider the flow of how the printers that kept them quite profitable I will focus on one key printing house, Societe Typographique de Neuchatel (STN). Seaward states that, “The STN became involved in most areas of the print trade including publishing its own texts, reprinting counterfeit editions, swapping works with other wholesalers and selling books by both legal and clandestine methods. The company specialized in the printing and reprinting of popular books which were likely to sell in large numbers,” (2). From a business standpoint it is easy to its potential success, in printing what the public wanted. The only issue is did they have the legal right to do so? The one consideration I had considered is that in essence it is illegal to print say in France a text that was not approved by the censors, but it is not illegal to print that French text in Switzerland. The concept of international law over individual governments laws is not enforce. Seaward states, “since international copyright law did not yet exist…in its counterfeit operations the STN risked incurring the wrath of foreign governments and other publishers who possessed privileges and permissions,”(4). Today looking back, I consider that the idea of chasing down these rogue printers would not be an easy task and who would undertake it? After all, even if we consider this a form of piracy, it is a gray area of the rules and in these spaces, anarchy occurs; not all anarchy is bad for the world. Yet I further that it is this grey space that let other countries that had this ability to exploit and easily from the far reach of the censors, especially in France “to evade the many rules and regulations of France’s complex system of state censorship.”(6).
An online database (FBTEE: French Book Trade in Enlightenment Europe) “results from a research project undertaken by Simon Burrows and Mark Curran,” that covers the printing business of STN over its thirty years where you can research their history. (6) Interestingly, the most popular item sold was a political pamphlet written by Theodore Rilliet de Saussure, that sold 16,787 copies. Fascinating it is not a best-selling author or even a play, it is political discourse on “politics and martial issues.” When I looked up the piece, the search headings reference the following: Causes celebres, Criminal Law, Geneva, Illegitimacy, Incest, Judicial Memoires, Judicial proceedings, Law, Rilliet affair, Scandal, Switzerland. Since the pamphlet is in French, I am only able to reference these headings which is telling enough, the “Rilliet affair” states:
Keyword definition: Works relating to or produced by either side in the cause célèbre known as the Rilliet affair, a legal and pamphleteering battle between Théodore Rilliet and his wife Ursula and his brother in law, the Baron de Planta, whom Rilliet accused of incest. When Rilliet’s claims were found to be defamatory by a Genevan court, he was stripped of his citizenship. This gave rise to further pamphlets and brought a political dimension to the affair. A sub-category of ‘Law’ and ‘Causes celebres’. http://fbtee.uws.edu.au/main/
Further use of the database revealed that of the copies most where sold in Geneva where the case was settled but they reached as far as London (6) and Venice (1). Using this case, we can see how far the book trade for the years of 1769-1794 reached, and this is quite impressive for this time. This also demonstrates the power of this one printing house. Yet it is the way that they sold and distributed the texts they sold that defines the political climate of this time. From this FBTEE database, you can review the correspondence to governed officials in the areas that they conducted business which is Switzerland and France on the whole. Seaward states:
STN made contact with 209 government agents and from amongst this grouping, was in regular communication with at least 99 individuals. These 99 constituted around 3.5 per cent of the 2833 individuals and businesses who were in correspondence with the STN. This represents a substantial segment of the STN’s total correspondent base. Even though the STN’s correspondents were predominantly agents of local government, this is not to say that they were of marginal signiﬁcance to the company.(7)
It seems obvious that without this governmental connections, the success of this company would not have occurred to this level, nor and most importantly, would we see how the system for how the outreach of the printing houses ability to reach wide shores was possible.
By reviewing these historical incidents, we can see that piracy of intellectual property was born out of the business idea that what lies in the public domain, is free game of usage. The principal seems sound but we what we call piracy is nothing more than building a profitable business. The idea that piracy occurred is clear but it is also clear that it took government officials, lack of complete legal definitions and statutes for protection that covered more than the “book.” If it wasn’t for public domain and pirates, further more involved laws to cover the holes created in this new venture of copyright, who knows it copyright would have existed. Pirates only demonstrated how more money could be made and the “why” were the weakened aspects of early statutes. Today, centuries later filled with trial and error, discussed by Paul Saint Armour in his book, The Copywrites, our current copyright law is “the length of the authors life plus 70 years, or 95 years form publication in the case of anonymous works, pseudonymous works, and works made for hire,”(2). This was extended due to the, “Sonny Bono Copyright Term Extension Act lengthened the US copyright term from 50 to 70 years after an individual author’s death or from 75 to 95 years from its publication for work for hire,” (2). This extension was brought on by a giant media company that wants to protect its images from its inception that would now be in the public domain for free use, instead they have gained those 20 extra years which to me is really piracy. The owners not so much its creator, are less likely to outlive their copyright and in this game the conglomerate will find another way to side step the law in their favor-pirates. Now the business is that of piracy.
The reasoning is still money production and the fight is still protected under the umbrella of authors rights. A final thought: will copyright outlive the android with its removal parts and unending system, will copyright finally be in perpetuity.
Bullard, Patrick. “Parliamentary Rhetoric, Enlightenment and the Politics of Secrecy: The Printers’ Crisis of March 1771.” History of European Ideas, 31.2 (2005): 313-325.
FBTEE: French Book Trade in Enlightenment Europe, online database, Focus on Societe Typographique de Neuchatel (STN). May 9, 2016. http://fbtee.uws.edu.au/main/
Finkelstein, David and McCleery, Alistair, eds. Book History Reader. “The Book of Nature and the Nature of the Book.” Adrian Johns. Routledge, New York.2002. Print.
Ginsburg, Jane C. “‘Une Chose Publique’? the Author’s Domain and the Public Domain in Early British, French and Us Copyright Law.” The Cambridge Law Journal, 65.3 (2006): 636-670.
Saint-Amour, Paul. K. The Copywrites: Intellectual Property and the Literary Imagination. Cornell U.P., London. 2003. Print.
Seaward, Louise. Seaward, Louise. “The Société Typographique De Neuchâtel (STN) and the Politics of the Book Trade in Late Eighteenth-Century Europe, 1769–1789.” European History Quarterly, 44.3 (2014): 439-457.