Professor Iain Stevenson
Centre for Publishing
University College London
Abstract: This article argues that copyright is even more important today than it was 300 years ago. The principles introduced by the statute of Anne of property rights in creative works being vested in the creator and those rights having an exclusive duration to protect their exploitation remain fundamental in the digital age. As creativity is challenged by those who would replace an orderly and fair intellectual property regime with a free for all, it is essential for copyright to be defended and strengthened. Not everything about the current legislative framework is however essential and the article proposes some amendments and changes to duration and the treatment of orphan works.
Why Copyright is still important after three hundred years
When this year we celebrate the world’s first copyright law formally known as “Anne” and more euphonically as the ‘Statute of Anne’ there is perhaps slight frisson of unease that troubles the minds of those of us who make our livings by the creation of literary property and its commercial exploitation . In its day, the Statute was a true emancipatory Act, allowing a ragged, haggard and much put-upon class of humanity to emerge from the shadows and claim at least part of their due entitlement. Hitherto, writers as a group were exploited shamefully by printers, publishers, readers and booksellers. They had no property rights in what they created and even if their works were runaway successes they did not share in its continued revenue. Anyone other than the creator was enriched by the sales of their work. Only lately had John Milton received the miserly sum of £5 for the entire interest in his great epic Paradise Lost. Poets, playwrights and pamphleteers starved in garrets, romantically in the imagination but in the direst poverty and degradation in reality and if a young man or woman dreamed of a literary career they had better have had private means. Not for nothing were writers known popularly as ‘hacks’: like mistreated hired horses they subsisted on scraps, were brutally treated and abused and once they had outlived their usefulness they were abandoned and neglected.
The Statute of Anne introduced two important new ideas. First that the creators of literary works should have an automatic right of property in those works that could not be arbitrarily removed, although like other real property it could be sold, inherited or rented. Secondly that property right had a duration—the term of copyright—over which the copyright owner had an exclusive right to the enjoyment of a share of the proceeds of the created property and if it was misappropriated, there was a right of redress. Over the next three hundred years, the rights were extended to music, artwork, drama, cinema, broadcasting, computer programmes and electronic games, all the fruits of human intellectual endeavour, and the duration was extended to reach the current seventy years after the year in which the creator dies Other rights, the so-called moral rights, to require that the author be recognised as such on the piece created (paternity) and the right not to have the work altered and incorporated without permission (integrity) appeared although the other more exotic moral rights found in some European jurisdictions like droit de suite (the right for the original artist to be compensated if a work is sold on nor sadly the right to protect parody)have not found favour in the legislation of the land that created copyright.
Virtuously sub-titled ‘An Act for the Encouragement of Learning’, Anne is actually much more important than that. Had it not been enacted, would it really have been possible to imagine the invention of the novel a few decades later, and the inevitable emergence of the legions of great professional writers who could live by their pen like Fielding, Austen, Scott, Dickens and Stevenson down to contemporaries like Mantel, Rowling and Pullman? Would the western literary canon ever have existed if authors had no right to own their work, and would publishers have been created to make it happen? Would Dr Johnson have embarked on his great dictionary, or Charles Darwin explained the origin of species without being able to reserve their rights? Would maps have been made, scientific discoveries pursued, inventions created, diseases eradicated, music made, plays performed, even democracy proclaimed had their been no polity of intellectual property, copyright and its near cousins patents and trade marking? These are big claims I know but it is truly hard to imagine the modern world in anything like its present form without the enactment and subsequent development of the regime founded on Anne.
Yet why do I suggest that as we celebrate Anne’s tercentenary we do so with a sense of unease? Because everywhere copyright is under attack, and there are pervasive, if not persuasive, calls for its modification, curtailment and even abandonment. We live, so runs the argument, in a virtual world without boundaries where the World Wide Web as the graphic and interactive dimension of the internet of interlinked computers is everywhere and nowhere and thus cannot be controlled, legislated for or punished. We stand on the brink of an even more elusive and abusive world known as Web 3.0 where all the world’s content and ideas will reside in amorphous clouds accessible only through the technology owned and maintained by private and unaccountable behemoths like Google and Microsoft. Surely, copyright has had its day and should now on its three hundredth birthday graciously bow out and follow the example of abacuses, whalebone stays and quill pens, picaresque and irrelevant anachronisms, and quit the stage, leaving the world to modern ways of doing things?
Dangerous and pernicious nonsense
I argue most strongly that this is dangerous and pernicious nonsense. Copyright has never been more important and more vital at the beginning of the third millennium than at any other time in its long history. The protection of the ownership and use of content created by the human intellect is today more in need of strengthening and extending than at any point in its history and like many other worthy and useful institutions it is under attack often by those who should be its guardians. Rather than feeling uneasy and apologetic, the friends of copyright should be proud, militant and combative.
Why is the defence of copyright so important? A recent estimate claimed that anything between eight and ten per cent of Britain’s Gross Domestic Product arose from the creative industries which of course depend on a strong intellectual property regime to protect their economic security. In an increasingly competitive world, Britain leads the way in publishing, computer gaming, theatre and pharmaceuticals. From less than two per cent of the world’s population this country produces fifteen per cent of the world’s books and our creation of literature is unquestionably the best in the world. Only if writers, designers and inventors are protected and fairly recompensed can we expect to continue to punch above our weight and hope to recover national prosperity.
It is also a matter of morality and fairness. The new attack dogs who seek to undermine or abolish copyright be they respectable and legal like Google or dishonest or predatory like Pirate Bay and the legion of illegal file sharers share one common characteristic. Fundamentally they are parasites. They create nothing new, they organise (sometimes brilliantly like Google), they distribute, they take, but they do not make, they do not create, they do not make something new. If the way of the future is to be constant recycling, endless Google searching, unrestricted plagiarism and piracy, then human progress comes to a juddering halt. Humanity loses its creative spark and the only ideas are old ones constantly warmed over.
The arguments against copyright are well rehearsed. Even if it is a good thing, it cannot be policed in a borderless electronic world say the critics. In the Intenet age, everyone is happy to be an author and to have their work shared for free. Wikis are the new publishers, free for all and unshackled. Blogs and social networking are done for enjoyment not recompense. All you need to address the world and become the next Herman Melville (or indeed Adolf Hitler) is a cheap laptop and an IP address. Google is being selfless and philanthropic by digitising all the world’s books (and of course controlling access to them-free now but for how long?). Copyleft and Creative Commons are all the protections the world’s authors, composers, performers, academics, pop groups, artists, designers, scientists, poets and knowledge workers need. Of course and they had better believe in the tooth fairy, Father Christmas and Mother Goose as well, just to be sure.
Copyright pirates: thieves, cheats and criminals
All arrant nonsense of course. Copyright needs to be made stronger and more easily regulated to ensure that in a digital world, quality content is disseminated fairly and in a timely manner, assuring to its creators just rewards. Other systems have large loopholes and are ultimately unenforceable. Copyright pirates will always seek to loot content for their own benefit but should be seen for what they are: thieves, cheats and criminals who steal the creative work of others solely for their own benefit without scruple. In a digital world, copyright is in fact enforceable as for example the widespread success of ‘notice and takedown’ control of infringing websites has shown. Even seemingly all-powerful Copyright refuseniks like Google can be shown the error of their ways and if not completely house-trained they do at least begin to show some continence. The recent settlement between Google and the Association of American Publishers may be impenetrable and inconclusive but it has at least equipped the publishers with a pooper scooper. It is not without significance that the very last law passed by the outgoing Brown administration in April 2010 was the much contested Digital Economy Act which introduced important copyright safeguards for owners of creative works and may in its way ultimately become a Statute of Anne for the twenty-first century.
This is of course not to argue that all is perfect in the present administration of copyright. The framers of Anne, or indeed the Acts of 1912, 1956 and 1988 which underpin the current regime would be amazed by the problems and issues that copyright holders now face, and the definitions and procedures they enacted do now look outmoded. The Digital Economy Act is only a beginning and an imaginative new approach is needed to create a workable and flexible copyright system that continues to benefit those who work by brain. Key problems are what to do about orphan works, where the author is dead, the work is out of print and there are no traceable heirs. The creative industries should devise a scheme to make these available and perhaps the proceeds could go into a fund to support education, research or support of creative endeavour. The duration of copyright is probably now too long and could be shortened to say thirty years, with the option of renewable licences. The granting of licences to reproduce copyright material should be simpler and cheaper. Private study rules should be widened and easy availability of material for all should be a realisable goal. Legal deposit is probably no longer either necessary or desirable. For the sake of future scholars, the registration and preservation of databases, websites and e-mails should be encouraged and indeed made mandatory. Piracy must not be colluded with nor should censorship be hidden under the guise of copyright control.
Yet, these are all minor and solvable issues compared to the central grandeur and immutability of the principle of Anne enacted here with the approval and support of the Stationers’ Company three centuries ago. There is no more noble aim that the ’Encouragement of Learning by vesting the copies of printed books in the authors and purchasers of such copies during the times mentioned.’ It is up to us as the successors of those who fought for that right to protect it and adapt it to the age of Google, the World Wide Web and Computing in the Clouds.
Professor Iain Stevenson
Iain Stevenson is Professor of Publishing and Director of Teaching at
the University College London (UCL’s ) Centre for Publishing and is Leader of the award-winning UCL MA in Publishing, established in 2006.
Since gaining a PhD at UCL in 1981 he has had extensive publishing industry experience with Longman, Macmillan, Pinter, Leicester University Press, Wiley, and The Stationery Office. He has been consultant to The British Library and London Transport Users’
Committee, International IDEA, and the Australian Sustainable Tourism Publishing Company. He created the award winning MA in Publishing Studies at City University London and was Senior Tutor for Research and Professor of Publishing Studies in the Department of Journalism and Publishing there between 1999 and 2006. He was active on the governing and advisory boards of the Publishers Association and the Royal Geographical Society. He founded the environmental publisher Belhaven Press in 1986.
A Fellow of the Royal Geographical Society, Iain Stevenson has published much on the history of cartographic publishing and the history of scientific and educational publishing . His current research is centred upon the history of British publishing especially scientific, technical and medical publishing and publishing in Scotland concentrating on cartography. He also researches the applications of new technology in publishing, especially e-books and alternatives to the printed monograph in academic and scholarly communication. He is consultant to the forthcoming BBC Radio 4 series ‘The People’s Post’ to be broadcast in 2011.
His new book, Book Makers: British Publishing in the Twentieth Century, was published by British Library Publishing in Spring 2010.