Early Writings & The Beginning of Book Printing
For more than 2,000 years, the ancient Sumerians, Babylonians, Assyrians and Hittites produced written works by using styluses to carve pictographs and characters onto wet clay tablets that were left to dry in the sun. Some 500,000 such tablets have been recovered. The ancient Egyptians wrote on rolls made of papyrus, and their Chinese counterparts, a bit later, made books from strips of wood or bamboo bound together with cord. Later, the Greeks and Romans used papyrus rolls and waxed wooden tablets. The Romans developed a book trade by dictating manuscripts aloud so they could be copied simultaneously by hand by as many as 30 slaves, thus producing 30 copies at a time. Still later, came the codex, consisting of folded sheets of papyrus bound at one end, thus allowing for writing on both sides of the papyrus. The original papyrus used to make codex was later replaced by parchment and vellum.
By the 6th century AD, the Chinese had developed the means of making multiple copies of manuscripts by inking carved wood blocks and pressing pieces of paper placed over the raised characters on the blocks. Though European printers never completely adopted that method to print books, they did adopt a similar method for producing illustrations and large, ornate letters at the beginning of chapters.
Two 15th century technological developments revolutionized book production in Europe. The first was the development of paper; the second was the creation of the first practical movable type, a feat credited to Johannes Gutenberg in 1436. With movable type, raised letters could be hand-set, word by word, into a frame that held the letters together. The raised letters were then inked; a sheet of paper laid over them and pressed down on the letters with a screw-driven press. Once the desired number of copies had been printed, the letters could be removed and the frame could be re-set for printing the next manuscript. Movable type provided the ability to produce a large number of copies quickly and economically, leading to far wider distribution and accessibility of the printed word, and a dramatic increase in the number of printers over the next century.
It is generally believed that before the invention of movable type printing, the number of books in all of Europe numbered in the thousands but that within 50 years of its invention, that number approached ten million.
The First “Copyright” Dispute & adjudication
The first known dispute over ownership rights to the printed word occurred in approximately 560 A.D., resulting in what may be described as the first copyright adjudication and the first recognition that the ownership of a creative work is akin to ownership of other types of property.
The dispute arose in Ireland between Saint Columba and Saint Finnian. The former secretly, and without the latter’s permission, copied a Latin Psalter owned by Finnian, who placed considerable value on the book. When Finnian learned of what had occurred, he demanded the copy, but Columbia refused to surrender it. Finnian then petitioned Dermott, the King of Ireland, who issued an edict in favor of Finnian stating, "to every cow belong its calf, so to every book belong its copy."
Censorship by the Royal Crown
While it has been said that American copyright law is rooted in English royal censorship, that notion is more romantic than accurate. The British Crown did not invent censorship. Government control of words dates to ancient times, long before any semblance of a copyright, manifesting itself as the punishment for the person who dared speak critically or threateningly against the governmental or religious authority. The punishment of censorship took various forms, including death and the burning of all the transgressor’s writing.
In 456 AD, primarily to suppress heresy, Pope Gelasius issued the first catalog of forbidden books. Later, in 1231, to punish and deter heretical words and deeds in all their manifestations, Pope Gregory IX instituted the Inquisition, which persisted as an agency of religious censorship for almost 500 years.
The publishing advances of the 15th century not only made broad publication and increased readership possible, it also ushered in the concept of prepublication censorship. In 1487, Pope Innocent VIII decreed that printers must submit all manuscripts to church authorities before publication, and that a work could be printed only after it had been officially approved. In 1542, Pope Paul III established the Congregation of the Holy Office to examine and condemn heretical or immoral works. In 1559, Pope Paul IV first issued the Index of Forbidden Books, which was supplemented by his successors until approximately 5000 books were listed and banned.
Early GrantS of Printing Rights OR Privileges
The advent of relatively quick and inexpensive book printing and the birth of bookselling in Europe fueled the need to satisfy the demands of a large, new market of readers and to emphasize the need to protect authors, publishers and booksellers from pirates bent on stealing that new market.
These developments were the primary driving force behind printers, authors and their heirs petitioning for grants of exclusive printing privileges. The 1496 petition of Bernardino Rasma is a good example:
“For when [a printer-publisher] shall have set himself to produce a book of rare beauty--which entails the absorption of all his capital in it--should his brother merchants come to hear of it, they use every cunning device to steal the proofs of the new work . . . and set to . . . print the book before the original designer of the book can finish his edition, which, when it is ready for issue, finds the market spoiled by the pirated edition.”
In another example, from 1497, Gabriel of Brasichella and his partners petitioned for a grant, stating that they had:
"spent a great deal of money in this admirable and most useful enterprise [efforts to bring Greek and Latin texts to print], and, because the debt [was] heavier than their own resources [could] bear."
The first grants were issued by the Senate of Venice in 1469 to a German printer, Johannes de Spira, to print the letters of Cicero and Pliny for 5 years. In 1486, author Antonio Sabellico, the historian to the republic, was given the sole right to publish his Decade of Venetian Affairs, with a fine for infringement set at 500 ducats, and no term set for the duration of the right. In 1491, the Senate gave a similar right to Peter of Ravenna to print and sell his work The Phoenix. Heirs were also granted exclusive printing rights. In 1528, Albrecht Dürer’s widow obtained an exclusive right to publish his works, and in 1493, Daniele Barbaro was granted a 10-year privilege by the College (or Cabinet) of Venice to publish a work written by his deceased brother, Hermolao.
In 1476, William Caxton established a movable type printing press at Westminster. This effectively brought the printing trade to England, and English printers began seeking the grant of privileges for exclusive printing rights for the same financial reasons as their counterparts throughout Europe. The first privilege was granted in 1518 to Richard Pynson, the King’s printer and successor to Caxton, for a term of two years.
Henry VIII granted a royal charter to Cambridge University on July 26, 1534 for the perpetual right “to print there all manner of books approved, or hereafter to be approved” in exchange for “. . . Lot and Scot, taxes, tallages, and all other customs and impositions none otherwise and in no other manner than our faithful subjects and lieges pay and render to us . . ..”
A grant issued by the Jewish community of Venice in 1623 illustrates the importance placed on protecting the investment of the printers and the early grant of copyrights:
“We have agreed to the reasonable and proper request of the worthy and honored Master Salamon Rossi of Mantua (may his Rock keep and save him) who has become by his painstaking labors the first man to print Hebrew music. He has laid out a large disbursement which has not been provided for, and it is not proper that anyone should harm him by reprinting similar copies or purchasing them from a source other than himself. Therefore, having seen the license granted by His Excellence, the Cattavero (may his glory by exalted), we the undersigned decree by the authority of the angels and the world of the holy ones, invoking the curse of the serpent’s bite, that no Israelite, wherever he may be, may print the music contained in this work in any manner, in whole or in part, without the permission of the above-mentioned author or his heirs for a period of fifteen years from this date.”
Beginning in 1517, in what might be regarded as the first actual copyright statute, Venice adopted a series of general regulations governing printing and printing licenses. Of these, perhaps the most interesting is the 1545 decree of the Council of Ten, which prohibited publication of an author’s work without proof of the author’s permission.
None of these grants of printing rights were related to censorship, but this soon would change.
Monopolies & The Suppression of Literature
In 1533, Henry VIII banned the importation of foreign publications into England and, to exercise further domestic control, on November 16, 1538, he ordered that all new books to be printed in England had to be approved by the Privy Council before publication.
Following the tradition of the Crown to grant monopolies to various trades in exchange for some form of “loyalty” to the Crown, on May 4, 1557, King Philip and Queen Mary granted a royal charter to the Stationers’ Company.
The royal charter granted a printing monopoly that mandated that only printers who were members of and licensed by the Stationers could print books, and that all books had to be registered with the Stationers as well. The charter also gave the Stationers the authority to search out, seize and destroy any offending works. The charter did not allow for authors to be members of the Stationers and granted authors no rights at all. The Stationers’ charter was confirmed and extended by Queen Elizabeth I on November 14, 1559.
While it has been suggested that this charter was the precursor to copyright law, its purpose was not the protection of the author. The true purpose of the charter can be clearly seen in its preamble:
“Know ye that we, considering and manifestly perceiving that certain seditious and heretical books rhymes and treatises are daily published and printed by divers scandalous malicious schismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience against us, our crown and dignity, but also to renew and move very great and detestable heresies against the faith and sound catholic doctrine of Holy Mother Church, and wishing to provide a suitable remedy in this behalf, of our special grace and from our certain knowledge and mere motion we will, give and grant . . . the mistery, or art of Stationery . . ..”
Parliament’s 1624 enactment of the Statute of Monopolies, abolished most monopolies in England, but allowed for some exceptions from the general ban, including an exception for existing patents for inventors “for the Term of one and twenty Years only,” letters patent “of, for or concerning Printing,” and:
“Provided also, . . . That any Declaration before mentioned shall not extend to any Letters Patents and Grants of Privilege for the Term of fourteen Years or under, hereafter to be made, of the sole Working or Making of any Manner of new Manufactures within this Realm, to the true and first Inventor and Inventors of such Manufactures, which others at the Time of the Making such Letters Patents and Grants shall not use . . ..”
During and after the era of privileges, grants and monopolies, writers and scholars began to raise their voices against the exclusivity available to all but the creators of written works, and the censorship inherent in the monopoly created by the Crown. In 1577, John Wolfe demanded that he be able to print what he pleased. He was imprisoned twice. John Milton, in pursuit of free speech and in opposition to censorship, wrote Areopagitica in 1644 to argue against a proposal in Parliament that would require licenses to print books.
In time, several laws were enacted to trim some of the powers of the Stationers, only to have the Licensing Act enacted to restore those powers primarily for censorship purposes. The term of the Licensing Act was limited time, but as it expired, it was renewed.
The notion that the true owner of printing rights was the author was also gaining momentum at this time and, indeed, an order was issued by the House of Commons to that effect in 1640. The order stated:
“the Masters and Wardens of the Company of Stationers shall be required to take especial Order that the printers do neither print nor reprint anything without the name and consent of the Author. And that if any Printer shall notwithstanding print or reprint anything without the consent and name of the Author that he then shall be proceeded against as both Printer and Author thereof, and their names to be certified to this House.”
John Locke, whose Second Treatise of Government strongly influenced the framers of the United States Constitution, was an important force in the ultimate defeat of the Licensing Act and dissolution of the Stationers’ printing monopoly. Locke was as much opposed to the Stationers’ printing monopoly as he was to Crown censorship, but he supported copyrights and advocated authors’ rights for longer periods of exclusivity than those in effect or under discussion now. While the Licensing Act was under consideration for renewal, Locke wrote a letter dated January 2, 1692, to his friend, Edward Clarke, a Member of Parliament, stating:
“I wish you would have some care of book-buyers as well as of booksellers and the company of stationers, who having got a patent for all or most of the ancient Latin authors (by what right or pretence I know not) claim the text to be theirs, and so will not suffer fairer or more correct editions than any they print here, or with new comments to be imported without compounding with them, whereby these most useful books are excessively dear to scholars, and a monopoly is put into the hands of ignorant and lazy stationers. . . . By this monopoly also of those ancient authors, nobody here, that would publish any of them anew with comments, or any other advantage, can do it without the leave of the learned, judicious stationers. . . . And particularly, I think, that clause, where printing and importation of any books, to which any have a right by patent is prohibited, should be at least thus far restrained that it should be lawful for anyone to print or import any Latin book whose author lived above a thousand years since.”
While the Licensing Act was extended for another two years, when it came up for renewal again in 1695, Locke purportedly provided Clarke with a memorandum articulating the arguments against monopolies and censorship, which stated in part:
"That any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning; and for those who purchase copies from authors that now live and write, it may be reasonable to limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years."
Locke’s argument provided to Clarke proved to be very influential in the House of Commons ultimate refusal to renew the Licensing Act, thus ending the Stationers’ printing monopoly and the Crown’s use of it to suppress the free exchange of ideas.
Some have characterized the Stationers’ monopoly, given in exchange for executing the Crown’s censorship mandate, as the “beginnings of copyright,” because a copyright is essentially an individual monopoly with the same attributes of the Stationers’ charter. This is, of course, untrue, as eloquently observed by James Appleton Morgan in 1875 in addressing the relationship between monopolies and copyrights:
“The privilege of an author to the exclusive sale of his works for a limited number of years, although practically in the nature of a monopoly, is not a monopoly in the odious meaning of the term. A monopoly proper is a right given to one individual to produce or traffic in a commodity which others are fully as able to produce or traffic in as he, if permitted to do so. A monopoly is a rule against competition. But there can be no competition in the productions of a man’s brain. A man has, by natural law, a right to the exclusive power of first disposing of his own productions or manufactures; and the pursuit and enjoyment of that exclusive right can never be a monopoly. The author only has given him, by law, what in morality, equity, and good conscience he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right.”
That sentiment was echoed by the Register of Copyrights in 1961:
“Copyright has sometimes been said to be a monopoly. This is true in the sense that the copyright owner is given exclusive control over the market for his work. And if his control were unlimited, it could become an undue restraint on the dissemination of the work.
“On the other hand, any one work will ordinarily be competing
in the market with many others. And copyright, by preventing mere
duplication, tends to encourage the independent creation of
competitive works. The real danger of monopoly might arise when
many works of the same kind are pooled and controlled together.”
The United States Supreme Court was even more direct: “[C]opyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”