Copyright in the Digital Age

Still the bedrock of creativity and the creative industries

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●     Why Europe’s New Copyright Proposals Are Bad News for the Internet

●     ‘EU copyright legislation will not change in UK after Brexit’ argues Kaye

●     EU copyright reform proposals “sensible” say publishers

●     Publishers stress importance of Robust Copyright Regime Post Brexit

●     Congratulations to Dr. Aislinn O’Connell

●     Fit for Change? Copyright for Publishers in the Digital Age – Abstract/Intro

●     Copyright thesis – Chapter 1 Literature Review

●     Copyright thesis Chapter 2 – A Historical investigation of copyright

●     Copyright Thesis Chapter 3 – Legal Investigation

●     Copyright thesis Chapter 4 – Blocking initiatives

●     Copyright thesis Chapter 5 – Copyright and the UK Economy

●     Copyright thesis Chapter 6 – The Hargreaves Exceptions

●     Copyright thesis Chapter 7 – Alternative approaches

●     Copyright thesis – Conclusions

●     Index, List of Abbreviations, Tables of Cases & Legislation, Bibliography, Appendices 1&2

●     World Book and Copyright Day

●     EU’s new action plan for copyright and digital platforms

●     Google News Leaves Spain

●     Exceptions impact on business: air your views on 20 October 2014

●     Last Copyright Exceptions Come Into Force Today

●     Copyright and the UK Economy

●     Copyright Briefing – July 14

●     Culture of the Public Domain – A Good Thing?

●     An Employment Focus on the Creative Industries

●     Copyright exceptions back on track

●     Exceptions Update

●     LBF14 – Day 2

●     LBF14 – Day 1

●     New Director for Copyright and Enforcement Speaks

●     Copyright and the Future of Global Content Industries

●     Commons Committee warns against diluting IP rights

●     CLSG Launch Report: Streamlining Copyright Licensing for the Digital Age

●     IPso FACTo debate at Stationers Company

●     Publishers Launch Global Exchange on Copyright

●     Funding given to kick-start Copyright Hub

●     IPO thoughts on copyright and the economic effects of parody

●     Modernising copyright – February 2013

●     Stationers and UCL in joint copyright research initiative for communications and content industries

●     Government publishes proposals for changes to UK copyright

●     Stationers offer bursary to copyright research student

●     Hooper recommends UK Copyright Hub

●     Copyright adds extra £3 billion to national accounts

●     Hargreaves warned on damaging UK creative industries

●     PPA pushes for simplified IP rights exchange

●     NLA v Meltwater: a victory for content owners

●     How US publishers pirated Dickens’ works

●     Consultation on legal deposit

●     Minister says search engines must help stop pirates

●     EU votes through the Copyright Term Directive

●     Government backs Hargreaves Review

Chapter 2: A historical investigation of copyright

Introduction

Copyright claims its legislative origins in early eighteenth century Britain, some three hundred years ago, with the implementation of the Statute of Anne.1 However, no idea is formed in a vacuum. To claim that the Statue of Anne was the beginnings of copyright is to deny the development which led to the legislative formalisation of copyright and its subsequent development. Thus, this chapter will trace the origins of copyright from its beginnings through to the Statute of Anne and then to those three hundred years leading to the modern day, from the Irish battle of Cúl Dreimhe through the printing monopoly held by the Stationers’ Company in the late 1600s, the first legislative copyright initiative in the Statute of Anne in 1710, the implementation of the Berne Convention in the late 19th century, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) and World Intellectual Property Organization (WIPO) Copyright Treaty of the 20th and 21st centuries, to the modern bundle of rights which are encompassed under the copyright umbrella today. It will consider the development of copyright, and the points at which different types of creative works were included in the definition of copyright. It will also consider the historically different attitudes held towards copyright by different territories, specifically the differences between European and United Stated copyright, and the greater focus in Europe on the moral rights of authors.

Pre-Statutory Copyright

The first dispute over the right to copy concerned, fittingly, a book – a theme which would continue as copyright law, even when legislatively enacted in the UK, applied firstly only to books. The first recorded case law regarding a copy of a book was a dispute between St Finnian and St Columba (or Colum Cille, or Colmcille), in the south-west of Ireland. In the late sixth century (dated variously from 550-600 AD), according to tradition, and the Royal Irish Academy,2 St Columba copied the Cathach/The Psalter of St Columba from a Psalter belonging to St Finnian.3 There remains some debate about whether the original text (also suggested to be a copy of the Vulgate, and thus a valuable text indeed, it being the official Latin translation of

1 Copyright Act 1709 (8 Ann c 21 or 8 Ann c 19) (Statute of Anne).
2 Royal Irish Academy, ‘The Cathach/The Psalter of St Columba’ (Royal Irish Academy) <https://www.ria.ie/library/catalogues/special-collections/medieval-and-early-modern- manuscripts/cathach-psalter-st> accessed 21 December 2015.
3 Ruth Suehle, ‘The Story of St Columba: A modern copyright battle in sixth century Ireland’ (OpenSource.com, 9 June 2011) <http://opensource.com/law/11/6/story-st-columba-modern-copyright- battle-sixth-century-ireland> accessed 21 December 2015.

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the Church) was loaned to St Columba for the purposes of copying, or merely for reading.4 A dispute subsequently arose between Sts Columba and Finnian as to who the rightful owner of the copied Psalter was. St Columba argued that the copy, made by the sweat of his brow, belonged to him, where St Finnian argued that, as the rightful owner of the original, he should also own the copy. Interestingly, neither was the original author of the text (it being a biblical translation), meaning that issues of authorship did not arise in this particular scenario, only the right over the copy. This parallels nicely with to modern rights scenarios, where the rights holder is often not the author. The Saints took the matter to the High King Diarmait mac Cerbaill for arbitration, who pronounced the judgement ‘To every cow belongs her calf, therefore to every book belongs its copy’.5 St Columba did not agree with this pronouncement, and instigated a rebellion (The battle of Cúl Dreimhne), resulting in some 3,000 deaths – or so the legend says.6 Modern historical scholarship casts doubt on the authorship of the Cathach, although it has not been proven,7 and the Cathach is finishing its adventurous life residing in the Royal Irish Academy.8 Nonetheless, it is interesting to note that the issue of ownership of copies was debated long before the proliferation of copying mechanisms, both in medieval times (with the printing press) and modern (with digital copying).9 While the pronouncement of ownership of the Cathach (regardless of whether or not St Columba abided by the decision) did not specifically use the term ‘copyright’, it could be viewed as the first case on the right to copy.

Copyright, of course, did not come into being in a vacuum – the idea of copyright was pre-dated by the idea of the moral rights of authors, the property right over an individual copy of a text, the right of a benefactor who paid for a work to be created, and the right of the government to control what was being published, both censoring and regulating trade. The germination of some of these ideas can be traced back as far as Ancient Greek, Ancient Roman and Ancient Jewish civilisations.10 However, while these rights were recognised in Ancient civilisations, there

4 Craig W Dallon, ‘The Problem with Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest’ (2004) 44 Santa Clara Law Review 365, 376.
5 Jeremy Phillips, ‘St Columba the Copyright Infringer’ (1985) 12 EIPR 350.
6 Ray Corrigan, ‘Colmcille and the Battle of the Book: Technology, Law and Access to Knowledge in 6th Century Ireland’ (GikII 2 Workshop on the intersections between law, technology and popular culture, University College London, 19 September 2007) <http://oro.open.ac.uk/10332/> accessed 15 January 2016, 8.

7 Brian Lacey, ‘Constructing Colum Cille’ (2004) 21(3) Irish Arts Review 120, 123.
8 Royal Irish Academy (n 2).
9 Corrigan (n 6).
10 Edward W Ploman and L Clark Hamilton, Copyright: Intellectual Property in the Information Age (Routledge & Kegan Paul 1980); Ronald V Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (Westview Press 1996).

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was no need for a right over copying, as the reproduction of texts was a long and laborious process, and required a slave or bookseller who was literate, and thus expensive to maintain. There was no financial incentive to copying texts, and thus no need for a right to protect the rights of an author of a text.

In the fifteenth century, the invention of the printing press and the refinement of moveable type by Johannes Gutenberg11 meant that copying texts was no longer the time-consuming process previously carried out by scribes. Furthermore, it was not as prone to errors. This also meant that there were no longer the same restrictions on the free movement and reproduction of radical ideas which were previously imposed by the time, money, and skill required for scribes. The price of books fell by two-thirds between 1450 and 1500,12 with the technology spreading across Europe also.13 The simplicity and relative abundance of new printing technologies led to attempts by the Church to control and regulate the output of printers, partly leading to what would become copyright.14 In 1501, a papal bull was issued by Pope Alexander VI, prohibiting the unlicensed publishing of books.15 Almost sixty years later, in 1559, a first list of banned books, the Index Librorum Prohibitorium,16 was published in the Index Expurgatorius.17 Such an index actually lasted through twenty printed editions, with the final edition being published in 1948, almost four hundred years after the first. It was formally abolished by Pope Paul VI in June 1966.18 The aim of the list was to prevent the dissemination of immoral and heretical books, and thus protect the faith and morals of the devout.

The rapid dissemination of works other than those expressly permitted by the government – ie other than Bibles or government information – led to the need to establish control over printers across Europe. Governments required printers to have a specific licence to produce and trade books. Such licences allowed printers to produce specific works for a specified length of time,

11 Fran Rees, Johannes Gutenberg: Inventor of the Printing Press (Compass Point Books 2005).
12 Jeremiah E Dittmar, ‘Information Technology and Economic Change: The Invention of the Printing Press’ (2011) 126(3) The Quarterly Journal of Economics 1133.
13 ibid 1134.
14 Hector L MacQueen, Charlotte Waelde, and Graeme T Laurie, Contemporary Intellectual Property: Law and Policy (OUP 2007) 34.
15 Gigliona Fragnito, Church, censorship and culture in early modern Italy (Adrian Belton tr, CUP 2001) 195.
16 – –, Index Librorum Prohibitorum, 1559.
17 Paul F Grendler, ‘Printing and censorship’ in Charles B Schmitt (ed), The Cambridge History of Renaissance Philosophy (CUP 1988) 45-46.
18 Hubert Jedin (ed) History of the Church: The Church in the Modern Age (Volume 10, Crossroad Publishing 1981) 186; Max Lenard, ‘On the Origin, Development and Demise of the Index Librorum Prohibitorum’ (2006) 3(4) Journal of Access Services 59.

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and to prevent other printers from producing the same work.19 The licences were limited to the territory in which they were granted, but they also allowed the prevention of foreign imports of the same book. While this certainly sounds similar to modern copyright in certain respects, mirroring almost perfectly the reproduction and distribution rights of modern copyright, an important difference to note is that these rights belonged to the publisher, and not the author of a work.

In England, a monopoly on printing was first granted to Richard Pynson, the King’s Printer in 1518.20 This could conceivably be called the forerunner of English copyright. This monopoly allowed the King’s Printer the privilege of controlling all printing in the country, and was similar to those granted on other articles of common use.21 These monopolies continued to be popular into and throughout the reign of Queen Elizabeth I (1558-1603).22 Copyright monopolies made their first appearances in other European countries within roughly the same period, with the first being granted in the Republic of Venice (1486).23

The control of printing was delegated from the King’s Printer to the Privy Council, then working through the Star Chamber, and then further to the City of London livery company, the Stationers’ Company, which was granted its Royal Charter in 1556.24 The Charter granted the Company the right to license publication of books, entering them into the Stationers’ Company register. It also allowed the Company to search for and seize illicit copies of books, and prevent the publication of any unlicensed book.25 In order to print, one had to be a member of the Stationers’ Company. Given that the Company was a craft guild and thus had the powers of any other guild regarding discipline, this meant that the activity of members of the Company was monitored, and disciplinary procedures were relatively efficient.26

In the late 17th Century, the control of the Stationers’ Company over printing in the UK was confirmed by the Licensing of the Press Act 1662.27 This Act prohibited the setting up of printing

19 MacQueen, Waelde and Laurie (n 7).
20 Robert C Hauhart, ‘The Origin and Development of the British and American Patent and Copyright Laws’ (1983) 5 Whittier L Rev 539.
21 ibid 541.
22 Stanley T Bindoff, Tudor England (Penguin Books 1950) 228.
23 Elizabeth Armstrong, Before Copyright: the French book-privilege system 1498–1526 (CUP 1990) 3.
24 Hauhart (n 20) 546.
25 The Stationers Company, ‘Our History: The Stationers Company Register (1556-1695)’ (The Stationers Company Website) <https://stationers.org/the-hall-heritage/library-archives/24-the-hall-heritage.html> accessed 17 November 2015.
26 Hauhart (n 20) 546.
27 – –, ‘Charles II, 1662: An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses’, in John Raithby

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presses without notice to the Stationers Company. It granted a king’s messenger the power to enter and search premises for unlicensed printing and presses, a power previously only given to Wardens of the Stationers. The penalties were severe, including fines and imprisonment. The Act’s original term was only two years, but was subject to several renewals, as far as a seven-year renewal in 1685 (leading up 1692). When it went before Parliament for renewal in 1695, it was refused.28

It is important to note that these legislative and monopoly rights were not the same as modern copyright, but were rather the forerunners of copyright. The rights were vested in the publisher, not the author, and they were not automatic, having to be registered with the Stationers Company. They were also not universally accepted, being criticised, for example, by John Milton in ‘Areopagitica; A speech of Mr John Milton for the Liberty of Unlicenc’d Printing, to the Parlament of England’, in 1644,29 a speech still relevant today in its defence of freedom of the press.

In the time immediately following the lapsing of the Licensing of the Press Act, multiple suggestions were made to Parliament to instate similar provisions. Meanwhile, a flourishing press industry started to bloom, with the beginnings of newspapers in London after the demise of the government-published London Gazette, and the two newly-established political parties – the Whigs and the Tories – began to realise the advantages of having a propaganda machine available to influence the electorate.30

The Stationers continued to lobby for a new licensing Act but were not successful. When their cries were joined by the voices of authors, including Daniel Defoe,31 the Stationers changed their approach. They lobbied for a return to licensing again, but this time with a focus on protecting authors and guaranteeing them an income, an approach demonstrated by Stationer John How’s 1706 pamphlet ‘Reasons humbly Offer’d for a Bill for the Encouragement of Learning and the

(ed), Statutes of the Realm: Volume 5, 1628-80 <http://www.british-history.ac.uk/statutes- realm/vol5/pp428-435> accessed 17 November 2015, 428-435.
28 – –, ‘Reasons for objecting to the renewal of the Licensing Act, London’ (1695), in Lionel Bently and Martin Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org) <http://www.copyrighthistory.org/record/uk_1695> accessed 17 November 2015.
29 John Milton, ‘Areopagitica; A speech of Mr John Milton for the Liberty of Unlicenc’d Printing, to the Parlament of England’ (1644).
30 Kevin Williams, Read All About It!: A History of the British Newspaper (Routledge 2009).
31 Daniel Defoe, ‘Defoe’s Essay on the Press, London (1704)’, in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org) <http://www.copyrighthistory.org/record/uk_1704> accessed 17 November 2015.

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Improvement of Printing.’32 The Company used this approach and the support of authors to present two bills to Parliament aiming to introduce copyright, in 170733 and 1709.34 They both failed, but it was less than a year before the House of Commons formed a drafting committee for a bill on copyright.35 This would eventually become the Statute of Anne.

The Statute of Anne 1709

In April 1710, the first copyright statute received royal assent. ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned’,36 known as the Statute of Anne for the queen on the throne at the time, was the embodiment of the beginning of modern copyright.

The implementation of the Statute of Anne marked the first time that the copyright of a work was vested in the author, rather than the publisher. Although at the time this was a cynical move made by the Stationers in order to maintain control of the printing and publishing industries, knowing that (at the time) there was little an author could do with such rights other than to sign them over to a publisher, its effects were much farther-reaching than could have been anticipated.37

In order to obtain a copyright in one’s work, the Statute of Anne required that books first be registered with the Stationers’ Company and secondly that copies (nine in total) be deposited with the Company, the royal library and various universities.38 Once these conditions were fulfilled, an author was granted a fourteen-year copyright,39 with an extension of another fourteen years if they survived the original term,40 after which the work would fall into the public domain and be freely available for use by anyone, without the need for a licence. For works published before April 10 1710, the copyright term was 21 years, starting on that date.41 During

32 See Ronan Deazley, ‘Commentary on the Statute of Anne 1710’ (2008) in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org).
33 – –, ‘Reasons Humbly Offer’d for the Bill for the Encouragement of Learning, London’ (1706) Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org) <http://www.copyrighthistory.org/record/uk_1706> accessed 17 November 2015.
34 – –, ‘Reasons Humbly Offer’d for the Bill for the Encouragement of Learning, London’ (1706) Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org) <http://www.copyrighthistory.org/record/uk_1709> accessed 17 November 2015.
35 Mark Rose, Authors and owners: the invention of copyright (Harvard University Press 1993) 42.
36 Statute of Anne (n 1).
37 Henry C Mitchell, The Intellectual Commons: Towards an Ecology of Intellectual Property (Lexington Books 2005) 35.
38 Statute of Anne (n 1), s V.
39 Statute of Anne (n 1), s II.
40 Statute of Anne (n 1), s XI.
41 Statute of Anne (n 1), s II.

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the copyright term, only the author of a book, and their nominated agents, would be permitted to reproduce that book. The Statute of Anne, as the earliest incarnation of statutory copyright, only applied to books.42 Copyright protection for other works would come later, with engravings in 1734,43 and plays44 in the 19th century.

The Battle of the Booksellers

When the copyright term granted by the Statute of Anne began to expire, the Stationers needed to find another way to maintain the status quo. They did this by first lobbying for new legislation to extend the length of the copyright term.45 This failed, although modern scholars now know that the copyright term currently is far longer than the writers of the original Statute of Anne could probably ever have envisaged. When lobbying Parliament failed, they turned to a second avenue – the courts. Over a period of thirty years known as the Battle of the Booksellers,46 a series of court cases and attempted injunctions put forth the idea that copyright was a perpetual common law right, meaning that even after the expiration of statutory protection of copyright, copyright would still exist in a work.

The first case that considered the question of perpetual common law copyright was Tonson v Collins in 1762.47 It concerned the reprinting of The Spectator, a daily publication by Joseph Addison and Richard Steele. The case for the plaintiff contained an extensive history of pre- legislative copyright, covering everything discussed above, and was considerably stronger than the defence, with Blackstone stating ‘[p]roperty may with equal reason be acquired by mental, as by bodily labour’.48 The outlook looked good. However, when referred to the twelve judges of the common law courts, it emerged that the case was a collusive one, set up by Tonson in order to obtain a favourable judgement. Fearing the consequences of giving a judgement in a collusive action, the judges refused to continue with the case.49

42 This is visible in the long title (n 1), which specifically mentioned ‘Printed Books’ and not any other type of creative material.
43 Engraving Copyright Act 1734 (8 Geo 2 c 13).
44 Copyright Act 1842 (5 & 6 Vict c 45).

45 – –, ‘An Act for the Encouragement of Learning (Draft)’ (1737) Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org) <http://www.copyrighthistory.org/record/uk_1737b> accessed 15 January 2016.
46 L Ray Patterson, Copyright in Historical Perspective (Vanderbilt University Press 1968), ch 8.

47 Tonson v Collins (1762) 1 Black W 321.
48 Ronan Deazley, ‘Commentary on Tonson v Collins (1762)’ (2008), in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org).
49 ibid.

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The case that succeeded in obtaining a judgement on this matter, in 1769, was Millar v Taylor.50 It concerned the rights to the poem The Seasons, by James Thomson, but the case was between a bookseller, Andrew Millar, and Robert Taylor. Millar had purchased the rights to Thomson’s poem, but after the expiration of the statutory copyright term, Taylor published a collection including the poem. Millar took the case to the Court of the King’s Bench, where Lord Mansfield led a majority of 3-1 in finding that there was a common law right of copyright, which was not extinguished by the Statute of Anne, and thus there was no time after which a work would pass into the public domain.51 This essentially abolished the idea of the public domain, as even the expiration of statutory copyright would leave the rights holder with a common law copyright. Due to the death of Millar shortly after the judgement, it was never appealed. This decision represented a major victory for booksellers, as it granted them unlimited rights to the works for which they had purchased the rights.

The decision in Millar v Taylor was considered by the Scottish courts in Hinton v Donaldson,52 a case brought by John Hinton and Alexander McKonochie against Alexander Donaldson, John Wood, and James Meuros. It stated that the three defendants had printed, published, and sold Reverend Thomas Stackhouse’s History of the Holy Bible, the rights to which had (through sale, death, and remarriage) come to be held by Hinton. Hinton argued that he held a common-law right to publish the book, irrespective of any ‘any municipal law or custom of Scotland’.53 Donaldson, on the other hand, maintained that there was no such right. He also pointed out that such a right had never been sought in Scottish courts, as it did not exist: ‘… works are silent upon the subject, but the reason is plain, because the notion of literary property was not then conceived in Scotland.’54

The judgement given by the court of thirteen judges was in Donaldson’s favour (by a majority of eleven), decrying the English law as foreign, and thus only persuasive, not binding, and deciding en masse that the common law right did not exist.55

50 Millar v Taylor (1769) 4 Burr 2303, 98 ER 201.
51 Catherine Seville, ‘The Statute of Anne: Rhetoric and Reception in the Nineteenth Century’ (2010) 47(4) Houston Law Review 819, 822.
52 Hinton v Donaldson (1773) SCS 1 July 1773.
53 – –, ‘Information for Mess John Hinton of London, Bookseller, and Alexander Mackonochie, Writer in Edinburgh, his Attorney, Pursuers; against Mess Alexander Donaldson and John Wood, Booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock, Defenders (January 2 1773)’ in S Parks (ed) The Literary Property Debate: Six Tracts, 1764-1774 (Garland 1975).
54 ibid.
55 Ronan Deazley, ‘Commentary on Hinton v Donaldson (1773)’ (2008), in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org).

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Thus, England stood alone as a country granting a perpetual right to maintain a monopoly over the printing and distribution of a work. The fact of a United Kingdom which was capable of legal plurality, combined with the ease of reprinting and export from Scottish booksellers meant that the fundamentally different ideas of copyright in the North and South of the land were bound to butt heads, and another case would have to tackle the fundamentally different ideals before too long.

Such a case did not take long to arrive – three bills were issued against Donaldson, and the third would give rise to a conclusion to the thirty-year saga of the Battle of the Booksellers, in the case of Donaldson v Beckett.56 The Donaldson in this case referred to both the aforementioned Alexander and also his brother John. In an appropriate example of events coming full circle, the work concerned was the same as in Millar v Taylor,57 Thomson’s The Seasons. An injunction was granted by the Chancery Court, following the precedent set by Millar, which was subsequently appealed to the House of Lords, in February 1774. As was the custom, the opinion of the twelve common law judges was sought, with five questions being put to them, concerning the existence of a common law right, and whether the Statute of Anne took away such a right, if it did exist. The majority of the judges agreed that the common law right did exist, although to varying degrees. This, according to Professor Ronan Deazley of Queen’s University Belfast, has been misinterpreted as being more emphatically in favour of common law copyright than in actuality, the conventional belief being that it was a ten to one majority in favour of a common law copyright (Lord Mansfield abstaining, as his opinion had not changed since Millar), where the actual majority was seven to four in favour of a common law copyright.58

Regardless of the opinions or the size of the majority opinion of the judges, what mattered in this case was the decision of the Lords, which was not bound to follow the opinion of the judges. Although this was generally the practice at the time, this was one case where the Lords did the exact opposite, and reversed the earlier injunction without costs.59 Five Lords spoke on the day of their vote, one (Lord Lyttelton60) in favour of the right and four (the Bishop of Carlisle61 and

56 Donaldson v Beckett (1774) Hansard, 1st ser, 17 (1774) 14 George III: 953-1003.
57 Millar v Taylor (n 50).
58 Ronan Deazley, ‘Commentary on Donaldson v Becket (1774)’ (2008) in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org).
59 Donaldson v Beckett (n 56) 14 George III 1003.
60 ibid 1002.
61 ibid 1003.

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Lords Effingham,62 Apsley63 and Camden64) against it. Despite extensive discussion, the only question actually put before the Lords was whether to overturn the injunction granted against Donaldson,65 but in finding for the defendant, they effectively agreed that the Statute of Anne was the only source of a copyright at English law. Whether the Statute created a new right or superseded the previous common law right, however, was not directly answered by the vote. While Lord Apsley’s speech in the House could be considered a declaration of the law at the time, which denied entirely the existence of any common law right, the question of whether the Statute of Anne created a new right, or abrogated a previously existing common law right remains a topic for discussion, as it has not been explicitly answered.

There were some perpetual copyrights at UK law, granted by the Copyright Act 1775 (also known as the Universities Act 1775),66 although they have been repealed by the Copyright, Designs and Patents Act 1988. Those perpetual copyrights were bestowed on ‘the Two Universities in England, the Four Universities in Scotland, and the several colleges of Eton, Westminster, and Winchester to hold in Perpetuity their Copy Right in Books given to or bequeathed to the said Universities and Colleges’, and were maintained in legislation until the CDPA. The relevant section of the CDPA67 allowed for the continued existence of the copyright until fifty years after the date of implementation of the Act, meaning that those rights expire in 2039, at which point there will be no longer be any perpetual copyright in the UK. The CDPA68 also granted special rights to Great Ormond Street Hospital (GOSH) in respect of the work Peter Pan, or The Boy Who Wouldn’t Grow Up, by JM Barrie,69 but this is a right to royalties in perpetuity, meaning that the hospital may collect royalties on any performance, publication, or adaption of the play. It is not a true perpetual copyright grant – it does not allow GOSH to retain creative control over the work, which entered the public domain in 2008, 70 years after the death of Barrie.70

After the conclusion of the Battle of the Booksellers, copyright law in the UK continued to be refined and improved, with a series of Acts being implemented, known as the Copyright Acts

62 ibid 1003.
63 ibid 1001.
64 ibid 992.
65 ibid 1003.
66 Copyright Act 1775 (15 Geo 3 c 53).
67 Copyright Designs and Patents Act 1988 (CDPA) sch 1 13. 68 ibid s 301.

69 JM Barrie, Peter Pan; or The Boy Who Wouldn’t Grow Up (Hodder & Stoughton 1911).
70 Catherine Seville, ‘Peter Pan’s Rights: “To Die Will Be An Awfully Big Adventure” (2003) 51(1) Journal of the Copyright Society of the USA 1.

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1734 to 1888.71 These fourteen Acts amended, added to, and even repealed the pre-existing copyright law, with notable additions being the extension of copyright to creative works other than books, (through the Prints Copyright Act 1777, the Sculpture Copyright Act 1814, The Dramatic Copyright Act 1833) and the extension of the copyright term to life of the author plus seven years, or forty-two years, whichever was longer (through the Copyright Act 1842). The next notable development of UK copyright law was the Berne Convention for the Protection of Literary Property. Before discussing that, we will consider how copyright developed in other territories in the 15th to 19th centuries.

Global Copyright Development

It would be short-sighted to consider only the development of copyright in the UK without also looking at how it developed in other territories at the same time. For the purposes of comparison, we will consider two other territories. In order to see how copyright developed in other parts of the world, this chapter will consider firstly a state which exemplifies the Continental European ideal of the right of the author, as opposed to the Anglo-American copyright ideal. Secondly, it will consider the other side of the Anglo-American coin, in examining the history and the development of copyright in the US. The exploration of the history of these two regimes will allow for a greater understanding of the way in which they are similar to and distinct from the UK copyright regime.

France

Outside of the UK, copyright was developing in other territories. Although the development of printing meant that the rights over printed works were a concern for most developed countries, not all territories took the same approach as England. In France, the concern was far more focused on the rights of the author than on the right to copy. This focus on moral, rather than economic, rights over a work and regarding the control of works remains one of the greatest differences between French and Anglo-centric conceptions of copyright even to this day.72 Pre- Revolutionary France utilised a system of privileges similar to that of England – the first French

71 By order of the Short Titles Act 1896 (59 & 60 Vict c 14), the Copyright Acts 1734 was the Collective Title of the following fourteen Acts: The Engraving Copyright Act 1734 (8 Geo 2 c 13); The Engraving Copyright Act 1766 (7 Geo 3 c 38); The Copyright Act 1775 (15 Geo 3 c 53); The Prints Copyright Act 1777 (17 Geo 3 c 57); The Sculpture Copyright Act 1814 (54 Geo 3 c 56); The Dramatic Copyright Act 1833 (3 & 4 Will 4 c 15); The Lectures Copyright Act 1835 (5 & 6 Will 4 c 65); The Prints and Engravings Copyright (Ireland) Act 1836 (6 & 7 Will 4 c 59); The Copyright Act 1836 (6 & 7 Will 4 c 110); The Copyright Act 1842 (5 & 6 Vict c 45); The Colonial Copyright Act 1847 (10 & 11 Vict c 95); The Fine Arts Copyright Act 1862 (25 & 26 Vict c 68); The Copyright (Musical Compositions) Act 1882 (45 & 46 Vict c 40); and The Copyright (Musical Compositions) Act 1888 (51 & 52 Vict c 17).

72 Anne Latournerie, ‘Petite histoire des batailles du droit d’auteur’ (2007) 5 Multitudes 37 (French) 37-8. 68

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monopoly was granted before that of England.73 Interestingly, where English privileges attached to books and therefore authors, the first French privilege was for the arrangement of a musical work, granted by King Henri III to his lutenist, Guillaume Morlaye, in 1551.74 The monopoly, or privilege, was relatively short (3 to 10 years) with a possibility of renewal at the end of that term.75

In 1761, the granddaughters of celebrated French author Jean de la Fontaine were granted the right of ownership of his works by inheritance.76 This decision of the Royal council sparked a debate in France which was similar to the Battle of the Booksellers discussed supra, questioning the nature of literary property. It was followed by two decisions in 1777 restricting the rights of publishers to the life of the original author.77 These privileges, as they were issued by royal grant, were not law; this contrasts with the situation in the UK at the time, which by then had implemented the Statute of Anne.

During the French Revolution, in August of 1789, all privileges were abolished. This included privileges of printing, necessitating a new regime.78 The first suggestion for this appeared in January of the following year, a proposed law by Abbé Sieyès, a notable French abbot, aimed at struggling against the spread of seditious material and ideas.79 It spread the responsibility for this between publishers, authors, and government. It also suggested that privileges be limited, allowing for the eventual movement of works into the public domain. This would have released the works of such authors as Racine, Molière, Rousseau, and Voltaire into the public domain.80 However, as Anne Latournerie eloquently states, this first tentative attempt to give authors a legal recognition of their rights was not truly an effort aimed at granting authors more freedom, but rather a disguised attempt at shifting responsibility on the part of others81 and thus it did not succeed.

The next dispute to arise was centred on the use of theatrical works. The playwright Pierre- Augustin Beaumarchais headed a committee which presented a petition to the Harp Assembly

73 It was granted in 1551: ibid 39.
74 ibid.
75 ibid.
76 ibid 41 « les ouvrages de leur aïeul leur appartenaient naturellement par le droit d’hérédité » (The works of their forefather naturally belonged to them through the right of inheritance).

77 ibid.
78 ibid 42.
79 ibid.
80 ibid 43.
81 ibid 43 « …la première tentative révolutionnaire de donner aux auteurs une reconnaissance légale de leur droits sur leur textes n’était donc pas la recherche d’une liberté pour les auteurs, mais plutôt l’exigence d’une responsabilité. »

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in late 1790. This petition requested that authors have more rights over their works and, together with the outline of the proposal made by Sieyès, formed the backbone of the next proposal for a law, headed by Le Chapelier.82 The essential difference was that Le Chapelier had added that authors had rights over the fruit of their own mind, which were intrinsically different to any other kind of property rights. It allowed authors control over the public performance of their works during their lifetime and extended inheritance rights of that control for five years pma.83

This was not, however, the law which was to prevail. The ultimate solution at the time was a law enacted in 1793, known as the Chénier Act,84 which gave authors the exclusive right to distribute and sell their works. This right extended for ten years after the death of the author, and passed on to their heirs and assignees. In general, this law was well received, although it was subject to deposit of copies of the work with the Bibliothèque Nationale, similar to what was required in the UK, and it has later been criticised as being ‘utilitarian’.85

Although the UK law was clearly concerned with the right to copy and controlling printing, thus demonstrating its essentially commercial concerns, the French development of similar laws was more concerned with the rights of the artist or creator. This is visible not only through the law itself, but also the range of artistic works which were considered from the very beginning – the grant of the first copyright-like monopoly to the musician Morlaye,86 as opposed to the commercial printer Pynson in the UK,87 is demonstrative of this attitude difference.

The United States

The early development of copyright in the United States, while not expressly imported from the English provisions, can easily be identified as having been strongly influenced by the development thereof. The first copying monopoly was granted in Massachusetts in 1672,88 but there was not much development in terms of copyright before the American Revolution. Although at the time of the implementation of the Statute of Anne the United States was a British territory, it was never subject to the provisions of the Act, probably because it was not a colony which was greatly concerned with the importance of printing or copying. At the

82 ibid 44.
83 ibid 44.
84 ibid 45.
85 Peter K Yu, Intellectual Property and Information Wealth: Copyright and related rights (Greenwood Publishing Group 2007) 141–142.

86 Latournerie (n 72) 39.
87 Hauhart (n 20).
88 – –, ‘Usher’s Printing Privilege, Massachusetts (1672)’ in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900) (copyrighthistory.org).

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formation of The Articles of Confederation,89 the first Constitution of the original thirteen United States, the Articles did not grant the authority to issue a copyright, but it did pass a resolution which suggested that States secure an exclusive right to copy for authors of a duration of not less than fourteen years, with an additional fourteen years if the author were to survive the first fourteen-year period.90 These provisions were essentially identical to those of the Statute of Anne.91 In the three years following this resolution, twelve of the thirteen States passed copyright statutes, with the majority following the Statute of Anne, and the other five providing copyright terms without renewal, for fourteen, twenty and twenty one years.92 Delaware was the only State not to pass a copyright statute.93

Later in the 1780s, when the Constitution was being drafted, at the Constitutional Convention 1787, proposals were submitted to allow Congress to grant copyright.94 This resulted in the inclusion of the ‘copyright clause’ in the United States Constitution, which was ratified in September of 1788. The clause, variously known as the Intellectual Property Clause, the Copyright and Patent Clause, the Patent Clause, and the Progress Clause, grants power to the United States Congress

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.95

This particular clause, as one might expect from its various names, is the clause from which American copyright and patent law derives its authority. The inclusion of the phrase ‘for limited times’ also excluded the possibility of perpetual copyright or patent rights.

The copyright power granted by this clause was first executed in the form of the Copyright Act 1790.96 It is an almost verbatim quotation of the Statute of Anne, with an additional provision

89 Articles of Confederation and Perpetual Union (1781) (US).
90 Raymond V Robinson, ‘Confederate Copyright Entries’ (1936) 16(2) The William and Mary Quarterly, Second Series 248.
91 Yu (n 85) 142.
92 Brian Pelanda, ‘Declarations of Cultural Independence: The Nationalistic Imperative Behind the Passage of Early American Copyright Laws, 1783-1787’ (2011) 58 Journal of the Copyright Society of the USA 431.
93 Robinson (n 90) 248.
94 Irah Donner, ‘The Copyright Clause of the US Constitution: Why Did the Framers Include It with Unanimous Approval?’ (1992) 36(3) The American Journal of Legal History 361.
95 United States Constitution (1788) Art I, s 8, cl 8.
96 Copyright Act 1790, 1 Statutes At Large 124 (US).

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for the extension of protection to maps and charts.97 Along with the Statute of Anne, it did not extend protection to musical compositions or newspapers, nor did it prohibit the copying of foreign works.98 Again, being copied from the Statute of Anne, it required that statutory formalities be met before the copyright would be issued – a lack of compliance with those formalities would result in the work falling into the public domain immediately. Among the requirements of these formalities was the statement that authors must include a copyright notice in their work.99

The first revision to this new US copyright legislation came in 1831, with another Copyright Act.100 This first amendment extended the copyright term by a factor of two, from fourteen to twenty-eight years, and retained the option to renew (but only for fourteen years), meaning a possible tripling of the length of the copyright term.101 It also allowed for a renewal being obtained by the author’s widow or children in the event of their death, allowing for greater flexibility of copyright grants.102 The Act further changed some of the formalities required to obtain a copyright grant.103 The United States, in parallel to the UK, played host to a debate on the statutory versus the common law nature of copyright in the form of Wheaton v Peters,104 an 1834 case which struck a blow against the idea of perpetual common law copyright. This case was not dissimilar to the earlier discussed Donaldson v Beckett.105

After the upheaval of establishing the United States, the American Civil War then reshaped the fledgling nation once more. The Confederate States implemented in 1861 an Act of Congress which was broadly similar to the pre-existing law.106 This was amended in 1863 to allow the continued protection of the works of Confederate citizens or residents that had been registered under the laws of the United States before separation.107 The same privilege was extended to

97 The long title of the Act was ‘An Act for the encouragement of learning, by securing the copies of maps, Charts, and books, to the authors and proprietors of such copies, during the times therein mentioned’, (emphasis added) indicating this inclusion.
98 Copyright Act 1790 (n 96) s 5.

99 ibid s 3.
100 Copyright Act 1831, 4 Statutes at Large 436 (US). 101 ibid ss 1-2.
102 ibid s 2.
103 Robinson (n 90).
104 Wheaton v Peters, 33 US (8 Pet) 591 (1834).
105 Donaldson v Beckett (n 56).
106 Robinson (n 90) 248-9.
107 ibid 249.

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Confederate copyrights after the Civil War, with their entry into the federal copyright records in the Library of Congress in 1870.108

While US copyright law was based on English law, its development is distinct from its predecessor. It retained formalities regarding the registration and deposit of copyright works for much longer than the UK, even as far as requiring registration in the 21st century in order to obtain statutory damages.109

The International Standardisation of Copyright Law

In the two hundred years following the implementation of the beginnings of modern copyright, seen in the form of the Statute of Anne, copyright developed separately and concurrently in other territories around the world. The fact that each country administered copyright separately meant that authors’ rights were only protected in the country in which they first published their work. Thus, anyone could copy and publish a work in a country other than its country of origin. From this, the need arose for international protection of copyright. Although there is still no single copyright treaty which applies worldwide (and thus no copyright work is automatically protected worldwide), there are a variety of treaties, agreements, guidelines and legislation which provide agreement between countries to protect works originating elsewhere. In this section, three international agreements will be discussed as well as the legislative history of copyright in the European Union, culminating in the InfoSoc Directive, which was still in effect in 2015. This analysis of the history and the effect of international instruments will then inform the discussion of future measures which may or may not be needed to maintain an effective copyright regime in the face of the digital shift. While there are two international conventions which deal with copyright (the Berne Convention110 and the Buenos Aires Convention111), this chapter will deal mainly with the Berne Convention. This is because, as of 23 August 2000, all parties to the Buenos Aires Convention were also parties to the Berne Convention, and thus the Buenos Aires Convention had effectively been superseded.112

108 ibid.
109 17 US Code § 412 – Registration as prerequisite to certain remedies for infringement.
110 Berne Convention for the Protection of Literary and Artistic Works (1883).
111 Buenos Aires Convention on Literary and Artistic Copyright (1910).
112 The final country to ratify both the Berne and Buenos Aires Conventions was Nicaragua. WIPO, ‘Contracting Parties: Berne Convention’ (WIPO) <http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15> accessed 15 December 2015.

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The Berne Convention 1886

In the late nineteenth century, at the behest of the French Association Littéraire et Artistique Internationale (ALAI), headed by Victor Hugo, the Berne Convention was developed.113 Given that it was developed in France originally, the Berne Convention concentrates on the moral rights of authors more so than the economic concerns which were evident in UK legislation at the time. The Berne Convention for the Protection of Literary and Artistic Works was negotiated first in Berne, hence the name, in 1886. It was subsequently renegotiated a number of times, in Berlin,114 Rome,115 Brussels,116 Stockholm117 and lastly in Paris in 1971.118 The Berne Convention followed the model of the Paris Convention,119 which set out protection rules for patents, industrial designs and trademarks, and took those rules to apply them to copyright works. The Convention implements several requirements which standardised copyright, to a certain extent, on an almost global scale. In 2015 there were 168 states parties to the Berne Convention. 120

The Berne Convention established several protocols which ensured that copyright works were protected in international territories. Like any international treaty, it has its flaws, but it was responsible for the implementation of several important international minimum copyright standards. Although originally applied to fewer categories of works, as of revisions made in Rome121 and Brussels,122 all production in the literary, scientific and artistic domains falls under the scope of the Berne Convention,123 regardless of the mode of expression. This means that ‘books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography,

113 Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (Edward Elgar 2008) 26–27. 114 Berlin Act (1908).
115 Rome Act (1928).
116 Brussels Act (1948).

117 Stockholm Act (1967).
118 Paris Act (1971).
119 Paris Convention for the Protection of Industrial Property (1883).
120 WIPO (n 112).
121 Rome Act (n 115).
122 Brussels Act (n 116).
123 Berne Convention for the Protection of Literary and Artistic Works (as amended).

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topography, architecture or science’124 are all included and protected. The Convention set out rights which must apply to those creative works as exclusive rights of authorisation, including translation,125 reproduction,126 public performance,127 public recitation and communication to the public, 128 and adaptation of copyright works.129 It also set out moral rights available by default to copyright authors.130 The Convention established a minimum copyright term of fifty years pma for the majority of works. Exceptions to this general rule include anonymous or pseudonymous works, audiovisual works, and applied art and photographic works.131

Other standardised protections include:

National Treatment

The Convention requires that each member of the Berne Union (ie the signatories to the Convention)132 must extend to nationals of other member countries the same protection afforded to its own nationals.133 For the purposes of the convention, authors who are habitually resident in a Berne Union country are considered nationals of that country.134 Thus, if a work is produced in any Berne Union country, it is protected by copyright in all Berne Union countries. This applies both to published and unpublished works.135 Furthermore, this also applies to works published in a Berne Union country, even if not by a Berne Union national, and those works published simultaneously (defined in the Convention as within thirty days of first publication) in a Berne Union country and a non-Berne Union country.136

Formalities

The Berne Convention abolished the need for formalities (such as registration and deposit) in order to avail of copyright protection. Although the Berne Convention was, at its beginnings, a small treaty, with only eight original signatories, it grew massively in popularity over the course of the 20th century. The United States, a notable exception to the growing acceptance of the Berne Convention, did not ratify Berne until 1988, a full century later. Although registration is

124 Berne Convention (n 123) Art 2(1). 125 ibid Art 8.
126 ibid Art 9.
127 ibid Art 11.

128 ibid Art 11ter. 129 ibid Art 12. 130 ibid Art 6bis. 131 ibid Art 7.

132 ibid Art 1.
133 ibid Art 5(3). 134 ibid Art 3(2). 135 ibid Art 3(1)(a). 136 ibid Art 3(4).

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not required for copyright to attach to works in the US, under its Berne obligations, registration is still required to obtain statutory damages in case of infringement.137

Rule of the Shorter Term

The Berne Convention establishes that the term of copyright protection for most types of works is the life of the author plus fifty years. It is permitted to provide a copyright term longer than this, thus it is recognised that some countries may have shorter terms of protection than others. Although the Convention states that the law of the country where protection is claimed will apply (lex loci protectionis),138 it also stated that an author is not normally entitled to a longer term of protection abroad than at home.139 Thus, the Convention introduced the Rule of the Shorter Term. This applies quite simply: where country A provides a term which is longer than that of the country of origin (country B) of a foreign work, country A may apply the shorter term to works from country B. Application of this rule is not mandatory.

Fair Use

The Berne Convention authorises the inclusion of ‘fair’ use of copyright works in other works or broadcasts.140 This forms the basis of many fair use and fair dealing exceptions worldwide.

The Berne Three-Step Test

The Three-Step Test was first implemented in the Berne Convention, but it has been transposed into several other international copyright agreements, and thus remains one of the most important tests which applies in modern copyright law with regard to the fair exploitation of works. It is found in Article 9(2) of the Convention, and concerns the possibility of exceptions to copyright protection:

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.141

137 17 US Code § 412 – Registration as prerequisite to certain remedies for infringement. 138 Berne Convention (n 123) Art 5(2).
139 ibid Art 7(8).
140 ibid Arts 10, 10bis.

141 ibid Art 9(2).

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This test has been transposed into many other copyright instruments, including the TRIPS Agreement,142 the WIPO Copyright Treaty,143 and the European InfoSoc Directive.144 The interpretation of this particular test has been a contentious point at times,145 but it remains one of the most enduring standards in determining fair uses in modern copyright law.

The three steps, quite simply are:

  1. The reproduction must be in a special case
  2. It must not conflict with a normal exploitation of the work
  3. It must not unreasonably prejudice the interests of the author.

The Three-Step Test has been accepted as a standard for the establishment of fair use or fair dealing exceptions.146

BIRPI

The Berne Convention set up a small bureau to handle administrative tasks, similar to that which had been set up in order to administer the Paris Convention. In 1893, these two bureaux merged to form the United International Bureaux for the Protection of Intellectual Property, which was often referred to by its French acronym, BIRPI. Over the course of the next eighty years, BIRPI moved from Berne to Geneva in order to be closer to the United Nations and other international organisations, accepted the Rome Convention147 in order to extend copyright protection to physical manifestations of intellectual property (such as audiocassettes, videotapes, DVDs) became the World Intellectual Property Organization (WIPO)148 and became one of the United Nations’ seventeen specialised agencies.149 In late 2014, the WIPO Convention had 188 contracting parties: the Holy See, Niue, and 186 of the UN member states, with the seven UN member states who had not ratified the Convention being East Timor, Marshall Islands,

142 Agreement on Trade-Related Aspects of Intellectual Property, 1994 (TRIPS Agreement) Art 13.
143 WIPO Copyright Treaty, 1996 (WCT), Art 10.
144 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10 (InfoSoc Directive).

145 See, for example, Martin Seftleben, Copyright Limitations and the Three-Step Test (Information Law Series Set Vol 13, Kluwer Law International 2004).
146 It is on the basis of the three-step test that the Hargreaves exceptions discussed in Chapter 6 were implemented, as the test was transposed into the InfoSoc Directive (n 137).

147 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961.
148 WIPO was established by the Convention Establishing the World Intellectual Property Organization, 1970 which entered into force on 26 April 1970. It became a UN specialised agency in 1974
149 Agreement between the United Nations and the World Intellectual Property Organization, 1974.

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Federated Stated of Micronesia, Nauru, Palau, Solomon Islands and South Sudan.150 As WIPO, the organisation is tasked with protecting and promoting intellectual property in all its forms, as stated in the preamble to the WIPO Convention.151

TRIPS Agreement 1994

In 1947, the signing of the international trade agreement known as the General Agreement on Trade and Tariffs (GATT),152 and the creation of the International Trade Organization (ITO) also laid down the framework for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). In 1994, at the Uruguay Round of renegotiation of the GATT,153 the TRIPS Agreement was one of many outcomes, alongside the establishment of the World Trade Organization (WTO). Ratification of the TRIPS Agreement is a necessary component of membership of the WTO. The TRIPS Agreement covers more than just copyright, running the spectrum of IPRs from patents to copyright and trademarks, and placing particular emphasis on the ideal of free access to medicines for all member states.

The copyright provisions in the TRIPS Agreement are largely based on those of the Berne Convention,154 stating, ‘members shall comply with Articles 1 through 21 of the Berne Convention’ with the exception of Article 6bis.155 This means that the TRIPS Agreement directly transposes requirements on what constitutes a literary or artistic work, national treatment, the abolition of formalities, the rule of the shorter term, the three-step test and the duration of the copyright term. Thus, for countries which may have been reluctant to ratify the Berne Convention, the temptation of membership of the WTO and access to the trade benefits associated with membership may be a powerful motivator to accept the TRIPS Agreement provisions.

The TRIPS Agreement differs from the Berne Convention in that it extends protection also to computer programs and compilations of data156 and adds additional protocols regarding the duration of the copyright term when not based on the life of the author.157 The TRIPS Agreement

150 WIPO, ‘Contracting Parties: WIPO Convention’ (WIPO) <http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=1> accessed 15 January 2016. 151 WIPO Convention (n 141), Preamble.
152 General Agreement on Tariffs and Trade (GATT), 1947.
153 General Agreement on Tariffs and Trade (GATT), 1994.
154 TRIPS Agreement (n 135) Art 9.
155 Article 6bis of the Berne Convention concerns moral rights.
156 ibid Art 10.
157 ibid Art 11.

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also has a separate national treatment clause, similar to the Berne and Paris Conventions.158 It goes further than those, though, in requiring also most favoured nation (MFN) treatment.159 MFN requires that WTO members accord to all other WTO members those advantages that it accords to its most favoured trading partner within the WTO, ensuring that the same privileges apply to all WTO members. There are several minor exceptions to this, but as a general rule, it requires that the treatment afforded to one WTO member be afforded to all WTO members. MFN is a practice applied to many WTO agreements.

The TRIPS Agreement is maintained and overseen by a WTO body known as the Council for TRIPS, ensuring that WTO members meet their obligations under the Agreement. The objective of the Agreement, as stated in Article 7, is to:

contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.160

The sheer size of the WTO, combined with the ratification of the TRIPS Agreement as a requirement of membership, means that the international reach of the TRIPS Agreement is considerable.

WIPO Copyright Treaty

In the early 1990s, it became clear that the Berne Convention was failing to protect some aspects of copyright which could not have been envisaged in the less technologically advanced world which existed when the Berne Convention was agreed and renegotiated. Thus, in order to deal with some of the newer aspects of copyright which required agreement, the WIPO Copyright Treaty (WCT) was adopted.161

The Treaty is a special agreement under Article 20 of the Berne Convention,162 and extends copyright protection to computer programs,163 and compilations of data (databases) which constitute intellectual creations ‘by reason of the selection or arrangement of their contents’.164

158 ibid Art 3.
159 ibid Art 4.
160 ibid Art 7.
161 WCT (n 136).
162 ‘Governments of the countries of the Union reserve the right to enter into special agreements among themselves …’ Berne Convention (n 123) Art 20; WCT (n 136) Art 1.

163 WCT (n 136) Art 4. 164 ibid Art 5.

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It also extends the rights of distribution and rental which might otherwise not have been available under the Berne Convention proper.165 It prohibits the circumvention of technological measures designed to protect works166 (TPMs) and modification of rights management information without authorisation.167 The WCT was accompanied by a matching treaty on the topic of related rights, the WIPO Performances and Phonograms Treaty (WPPT),168 which provides similar protection to that provided by the WCT for performers and producers of phonograms who are nationals of contracting states, including on TPMs and rights management information.169

The WCT has not been so widely accepted as the Berne Convention proper, with only 94 countries being signatories.170 This may be because the Treaty does not take into account regional differences between most and least developed countries with regard to copyright enforcement,171 or because the treaty may be viewed as too heavy-handed in certain aspects. Certainly, with regard to TPMs, considering the existence of personal copying exceptions in many states, the inability to circumvent TPMs in lawfully making copies of legitimate creative content is an onerous requirement. Ratification of the WCT has been slow, with implementation across the EU member states only coming into effect in March of 2010,172 and Canada’s implementation in 2014, almost two decades after the Treaty was first signed. 173

While the ideas of the WCT are laudable in providing extra protection for copyright in light of the technological advances which have surged through in the last thirty years, a treaty written in the mid-1990s could not possibly have envisaged the explosion of digital content which overtook the copyright sphere in the two decades following its agreement, and thus it is perhaps not as relevant as those who envisaged it may have hoped. While the WCT does provide important extra protection for computer programs and databases, this protection is duplicated

165 ibid Arts 6-8.
166 ibid Art 11.
167 ibid Art 12.
168 WIPO Performances and Phonograms Treaty 1996 (WPPT). 169 WPPT (n 160) Arts 17-18.

170 WIPO, ‘Contracting Parties: WPPT’ (WIPO) <http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=20> accessed 15 December 2015. 171 The TRIPS Agreement, by contrast, makes special provisions for least developed countries, WTO, ‘Responding to least developed countries’ special needs in intellectual property’ (WTO.org 16 October 2013) <https://www.wto.org/english/tratop_e/trips_e/ldc_e.htm> accessed 15 December 2015.
172 WIPO, ‘Contracting Parties: WCT’ (WIPO) <http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=16> accessed 15 December 2015.
173 ibid.

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by the TRIPS Agreement and other aspects of the Treaty fail to consider the copyright landscape of the modern world.

European Union Directives

The harmonisation of copyright law in the EU can be traced back as far as the signature of the Berne Convention, in 1886 – all European Member States are signatories. It is also a requirement of accession to the EU to comply with the provisions of the Convention.174 In the interests of promoting the economic, political, and legal union of the European Union, copyright is one of the areas which has been the source of extensive legislation in an attempt to harmonise the law between the now 28 member states. Thus, although as mentioned, all EU Member States are by necessity Berne Convention signatories, there are many additional Directives which implement varying degrees of copyright standardisation across the union.

Copyright harmonisation began in the EU with the adoption of the Computer Programs Directive175 in 1991 (note that this pre-dates both the TRIPS Agreement and the WCT), which extended copyright protection to Computer Programs. It was a notable event in European copyright law, being the first time that copyright law was harmonised in any way between European member states.176 The following year (1992) marked a second Directive, creating Rental Rights,177 setting out minimum standards for the holders of related rights – ie those relating to performers, phonogram and film producers and broadcasting organisations – and allowed those rights holders the exclusive right to authorise or prohibit the lending or rental of their works. The Rental Directive was codified and updated in 2006.178 It was only a year after the Rental Rights Directive that two more Directives on copyright were introduced. The Satellite and Cable Directive179 granted the right of communication to the public by satellite for authors, performers, producers of phonograms and broadcasting organisations, allowing them to permit

174 EU Community Acquis, Ch 7: Intellectual Property – the body of legislation to which members of the EU are required to submit.
175 Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs [1991] OJ L122/42.

176 The most recent version of this Directive was implemented in 2009: Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L111/16.
177 Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [1992] OJ L346/61.

178 Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [2006] OJ L376/28.
179 Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission [1993] OJ L248/15.

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or forbid the broadcasting of their works via satellite, 180 while the Duration Directive standardised the copyright term across the European Union, at seventy years pma.181 Although this may be seem to have been an extension of all lesser copyright terms (such as those under the Berne Convention) to the longest term in the EU at the time, this is not strictly true. France, at the time, gave a copyright term of eighty years pma to those who had died in the service of their country (‘mort pour la France’). This has survived still, in the form of a thirty-year extension over the usual 70-year pma copyright term, although no author has been listed as mort pour la France since 1945, nor any composer since 1946.182 Similarly, Spain had had an eighty year pma term, which was changed only in 1987,183 meaning that copyright coming into effect until that time was still in force, and indeed continues to be in force today. The Directive also provided extensive guidance on when date of publication of performances, phonograms, films, photographs, and broadcasts should be calculated from, and how for long those related rights should stay in force.

After the implementation of the Duration Directive, several questions arose as to whether works which had existed before the Directive came into force were protected by the Directive – ie were works able to be pulled back out of the public domain? As the Butterfly184 case showed, they were indeed protected, even if they had previously fallen into the public domain. The court chose to apply the Directive to those works, the effect of which was seen in the Puccini185 case not long after. This case was important not only because it confirmed the Butterfly ruling but also because it ruled that the application of the Rule of the Shorter Term was discriminatory and thus in breach of Article 12 of the EC Treaty186 – thus it could no longer apply in Europe and all works should be protected for their longest possible duration. Of course, the implementation of the Duration Directive means that such cases should no longer arise. The Duration Directive

180 Satellite and Cable Directive (n 179) Arts 2, 4. 181

Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights [1993] OJ L290/9.
182 Code de la Propriété Intellectuelle (Livre I – Titre II), Art L 123-10.
183 In 1987, Spain changed their copyright law, resulting in the still-active Ley 22/1987, de 11 de noviembre, de Propiedad Intelectual: Boletín Oficial del Estado núm 275, del 17 de noviembre de 1987. 184 Butterfly Music Srl v Carosello Edizioni Musicali e Discografiche Srl (CEMED) (Case C-60/98). In this case, the implementation of legislation which extended the copyright term from 30 years to 50 years pma revived the copyright of those works which had fallen into the public domain but were within the new 50-year pma period.

185 Land Hessen v G Ricordi & Co Bühnen- und Musikverlag GmbH (Case C-360/00) 6.
186 Treaty establishing the European Economic Community, 1957 (TEEC), now repackaged as the Treaty on the functioning of the European Union, 2007 (TFEU).

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was updated several times; in 2006 all changes were consolidated into the Copyright Term Directive.187

Shortly after this, in 1996, the Database Directive188 extended protection further for databases by creating a sui generis right for the creators of databases which did not fall under copyright requirements established in the TRIPS Agreement, as well as the database right. The database right covered both electronic and hard copy databases, and protected those databases which could be considered creative works ‘by reason of the selection or arrangement of their contents’.189 The sui generis right applied to those databases which aimed to be complete and thus had no discretion in selection or arrangement. There is a requirement, however, that a substantial investment (eg time, money) must have been made in the database.190 It may be considered analogous to the rights of phonogram producers in that they are related to copyright, but are not true copyright. The term of protection for the sui generis right is fifteen years, but the timer could be reset if substantial changes are made.

In 2001, a new Copyright Directive to harmonise EU copyright law was implemented, with multiple purposes, including ratifying the WCT and allowing for copyright exceptions. Variously known as the Copyright Directive, the Information Society Directive or the InfoSoc Directive,191 it was, at the time, somewhat controversial, as seen by the fact that there have been no fewer than six judgments against member states for non-transposition of the Directive.192 The Directive specified and separated the rights of reproduction from the right of communication to the public and the making available right (which have two names thanks to the combination of the WCT and the WPPT), with the intention of specifically covering publication and distribution via the internet.193 Thus, even with the advent of easy online distribution, authors should, in theory, still have been able to control their own works.

187 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) [2006] OJ L372/12.
188 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases [1996] OJ L77/20.

189 ibid Art 3.
190 ibid Art 7(1).
191 InfoSoc Directive (n 137).
192 Commission of the European Communities v Kingdom of Spain (Case C-31/04), Commission of the European Communities v Republic of Finland (Case C-56/04), Commission of the European Communities v French Republic (Case C-59/04), Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-88/04), Commission of the European Communities v Kingdom of Sweden (Case C-91/04), Commission of the European Communities v Kingdom of Belgium (Case C- 143/04).
193 InfoSoc Directive (n 137) Arts 2 & 4.

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The Directive further allowed Member States to implement certain exceptions to copyright law for a variety of purposes, including teaching and scientific research, quotation, private use, incidental inclusion of a work in other material, use of works located permanently in public places and many more.194 Several of these exceptions were implemented in the UK in 2014, and two of them are specifically discussed in Chapter 6. The implementation of these exceptions is, according to Article 5(5), subject to ‘certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder’,195 which is a reiteration of the Berne Three-Step Test, as discussed earlier.

The InfoSoc Directive required of member states that they provide adequate legal protection against the circumvention of TPMs, similar to the WCT.196 The Directive also requires that member states provide protection against the manufacture, import, distribution or advertising of materials designed to circumvent TPMs. The Directive prevents circumvention not only of access measures, but also copy protection measures, which renders it quite restrictive – even in countries where private copying is lawful, circumventing copy protection is not, nor should there be any materials available to aid in the circumvention of such protection.

The Directives discussed here are only some of the EU Copyright Directives – they serve to show the extent and breadth of harmonisation and development of European Copyright law. However, there is still also variation between member states in the level of copyright protection they provide. The optional nature of the copyright exceptions in the InfoSoc Directive as well as the differing Continental/civil law and UK & Ireland/common law attitudes to moral rights also leave space for differing interpretations of copyright protection. However, it is clear from the swathe of Directives standardising copyright that EU Member States have a strong commitment to protecting copyright which continues into 2015 and beyond.

Conclusion

When one considers the development of copyright from its very early stages, it is clear to see that there has always been debate over the provenance of copies of books, and the permissibility of reproducing works without the permission of the original owner. However, it would be foolish to think that the implementation of the Statue of Anne, more than three centuries ago, was the single most influential event in copyright history. Objectors to copyright may cite its UK

194 ibid Art 5(3). 195 ibid Art 5(5). 196 ibid Art 6.

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beginnings, which were certainly steeped in ideas of monopoly, censorship, and control, as reasons for abolishing copyright as it currently stands,197 but to argue on this point is short- sighted and reductive and fails to take into account the merging of copyright ideals as viewed in different countries. The development of copyright over the three hundred years since the implementation of the Statute of Anne has moved decisively away from its origins in control by publishers towards a more open arena where authors and content creators have more control over the ways in which their work is exploited.

Certainly, the shift of rights from publishers to authors was a watershed event in the history of the book, but over the intervening three hundred years, where the original intention was for publishers to maintain control, the development of copyright has given far more autonomy to content creators. The development simultaneously of rights in different countries can be considered either an indictment of the Church’s desire to control the spread of ideas or a representation of the fact that floodgates of information leave one with a need for something to navigate through the swift-moving waters of creative content. The truth lies somewhere between these two, with, of course, variation between one side and another throughout the years. IP legislation, copyright included, needs to walk a fine line between encouraging creativity and protecting creators.

The development of national, regional,198 and near-global199 law on copyright has shown clearly that there is respect (almost world-wide) for the effort and artistry which goes into producing creative content and that there is, and has been, a movement towards greater protection of authors’ rights with regard to their creative content. The extension of rights beyond simply printed material to the variety of new forms of content200 which have developed through the intervening centuries, combined with multilateral agreements ensuring protection of creative works in multiple territories, without the need for multiple registrations,201 are strong examples of the development of copyright with regard to protecting content creators. The sad corollary of increased protection, however, is that enforcement mechanisms are required in order to maintain this level of protection. These measures will be discussed in the next two chapters,

197 See, for example, the Copy-me web series, Episode 3: Early Copyright History, available in Alex Lungu, ‘Ep 3: Early Copyright History’ (copy-me.org, 13 October 2014) <http://copy- me.org/2014/10/copy-me-webseries-early-copyright-history-episode-3/> accessed 17 November 2015. 198 See section on European Union Directives.

199 See section on The Berne Convention 1886.
200 Compare, for example, the long title of the Statute of Anne (n 1) to the list of protected materials in Berne (n 123) Art 2(1).
201 WCT (n 136).

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which will consider several implementations of protection of copyright materials, through graduated response mechanisms, notice and takedown, and blocking injunctions.

Copyright as a property right has seen much change since its legislative debut in 1710. However, two things have remained clear throughout the storied history of copyright. The first of these is that copyright is an essential property right, which must be maintained in order to protect content creators and ensure the continuation of the creative industries. The second is that copyright as a doctrine is flexible and adaptable – capable of assimilating great change, from the inclusion of new forms of creative content202 to the development of new forms of distribution. Copyright laws can be adjusted, changed, added to, or developed without losing the essential thread of what copyright protects – the right of the author to control what happens to their work, and balancing this against the ability to distribute information and artistry. This flexibility and adaptability is more important than ever before as copyright attempts to deal with the shift to digital, and the changes in usage habits which have accompanied this.

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© Copyright in the Digital Age