Feb 182013

It’s become clear that I will need to talk more about copyright policy in general on these pages, even if in a not-particularly-criminal-law context.  As we evaluate criminalizing acts involving technology that cause “harm,” and since some of that notion of harm is predicated on our notion of copyright, it’s important that we truly understand where the concept of copyright comes from and what policy objective it is supposed to achieve.  Particularly because it’s a fair question as to whether modern copyright law still achieves those objectives, or instead potentially represents its own harm.

As I’ve written before:

As we today grapple with copyright’s reach, with some feeling it’s too broad and others not broad enough, it’s always helpful to look back over time and see how we may have arrived at this modern morass. Like with everything else, you can’t know where you’re going without knowing where you’ve been.

In that post I also talked more about the Copyright History project, an academic project intended to give legal scholars and pundits access to the primary sources that have driven the evolution of modern copyright law so that we are no longer dependent on the secondary sources that often have mischaracterized them.

Inspired by the Copyright History project I then wrote this piece about the Statute of Anne, a 1710 statute that modern American (and English) copyright law generally descends from.  Before the Statute of Anne the monopoly on printing belonged to just a handful of printing houses.

But it wasn’t just that there was a printing monopoly: it was that this monopoly was granted by the government. Consequently the government could impose a kind of censorship by controlling, through the printing license, what ideas could be published. Naturally such control limited discourse, and by 1695, under political pressure, it finally gave way for good. In 1710 the Statute of Anne came into being instead, which, while preserving a few characteristics of the earlier licensing system, mostly turned it entirely on its head. Now, instead of using printing licenses as a means of controlling discourse, by its very design the Statute of Anne was meant to stimulate it.

And it did. Right away newspapers proliferated, public houses exploded with popularity (as they had during earlier periods when licensing statutes had lapsed) and democratic ideals flourished as tight government control over ideas yielded. But while the structure of modern copyright law today looks much as it did following the Statute of Anne, its limiting effects on discourse now seem more similar to the period that preceded it.

Read the rest of that piece for a further description of how the Statute of Anne was intended to work and how modern copyright law falls short of its ideals.  This other piece also further expounds upon these ideas:

What … has long been forgotten [is] that the Statute of Anne was passed as “An Act for the Encouragement of Learning.” The intent of the copy right it created was always to stimulate the dissemination of knowledge. Now, three hundred years later, we have the ultimate disseminator of knowledge: the Internet, yet in England — as well as countless other countries — copyright law is evolving to stop the spread of information — the exact opposite effect.

The Statute of Anne did establish one critical conceptual piece of copyright that is still with us today: the notion of the author’s right. It was a significant change from the previous paradigm, when the printers assumed all moral authority for the work. The idea that one’s creation somehow belonged to the creator was revolutionary, at least in England, and consistent with some of the espoused local philosophy of the time. In and of itself, there’s also not necessarily anything wrong with it. Rewarding authors with limited, yet exclusive, copy rights for limited terms to protect against unfair competition was a reasonable bargain to strike in the advancement of the overall goal of the Statute: the promotion of learning.

This right, however, was not to congratulate the author for having written but rather to enable the commercial exploitation of the work. Parliament wanted more books to be written, and granting authors this monopoly of limited duration was seen as the solution for fulfilling that goal.

And yet now we see vastly expanded terms. Vastly expanded protections. On vastly expanded categories of works. With a vastly smaller public domain, and vastly more severe consequences for those who would, no matter how reasonably or inadvertently, infringe.

[T]he end result of this 300-year “evolution” is a law full of absurdities that in no way delivers on the intended goal of the Statute of Anne. The quid pro quo of giving creators a little monopoly so the public could get access to their creations has given way to total domination by the creators over nearly all exploitation of their works, essentially indefinitely, at the expense of the public, and in nearly every country there is. This author-centric copyright law found around the world may be able to trace its lineage back to the Statute of Anne, but like a clone that’s been copied too many times, its DNA has been degraded to the point that it is unrecognizable compared with its ancestor.

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