The Case for Copyright Reform (7 page)

1400s: The Printing Press Threatens To
Disrupt Power

We’re starting with the advent of the Black Death in Western Europe in
the 1350s. Like all other places, Europe was hit hard: people fled westward
from the Byzantine Empire and brought with them both the plague and scientific
writings. It would take Europe 150 years to recover politically, economically
and socially.

The religious institutions were the ones to recover the slowest. Not only
were they hit hard because of the dense congregation of monks and nuns, but
they were also the last to be repopulated, as parents needed every available
child in the family’s economy, agriculture, etc, in the decades following the
plague.

This is relevant because monks were the ones making books in this time.
When you wanted a book copied, you would go to a scribe at a monastery, and
they would copy it for you. By hand. No copy would be perfect; every scribe
would fix spelling and grammatical errors while making the copy, as well as
introduce some new ones.

Also, since all scribes were employed (read controlled) by the Catholic
Church, there was quite some limitation to what books would be produced. Not
only was the monetary cost of a single book astronomical — one copy of
The Bible required 170 calfskins or 300 sheepskins (!!) — but there was
also a limit to what teachings would be reproduced by a person of the clergy.
Nothing contradicting the Vatican was even remotely conceivable.

By 1450, the monasteries were still not repopulated, and the major cost
of having a book copied was the services of the scribe, an undersupplied craft
still in high demand. This puts things in proportion, given the astronomical
cost of the raw materials and that they were a minor cost in ordering a book.
In 1451, Gutenberg perfected the combination of the squeeze press, metal
movable type, oil based print inks and block printing. At the same time, a new
type of paper had been copied from the Chinese, a paper which was cheap to make
and plentiful. This made scribecraft obsolete more or less overnight.

The printing press revolutionized society by
creating the ability to spread information cheaply, quickly and accurately.

The Catholic Church, which had previously controlled all information
(and particularly held a cornered market on the scarcity of information), went
on a rampage. They could no longer control what information would be
reproduced, could no longer control what people knew, and lobbied kings across
Europe for a ban on this technology which wrestled control of the populace from
them.

Many arguments were used to justify this effort, trying to win the
hearts of the people for going back to the old order. One notable argument was
“How will the monks get paid?”.

The Catholic Church would eventually fail in this endeavor, paving the
way for the Renaissance and the Protestant movement, but not before much blood
had been spilled in trying to prevent the accurate, cheap and quick
distribution of ideas, knowledge and culture.

This attempt culminated in France on January 13, 1535, when a law was
enacted at the request of the Catholic Church, a law which forced the closure
of all bookshops and stipulated death penalty by hanging for anybody using a
printing press.

This law was utterly ineffective. Pirate print shops lined the country’s
borders like a pearl necklace and pirate literature poured into France through
contraband distribution channels built by ordinary people hungry for more
things to read.

1500s: Bloody Mary Invents Copyright

On May 23, 1533, the 17 year old girl who would later become Mary I of
England was formally declared a bastard by the archbishop. Her mother,
Catherine, who was a Catholic and the Pope’s protégé, had been thrown out of
the family by her father Henry, who had converted to Protestantism just to get
rid of Catherine. This was an injustice Mary would attempt to correct all her
life.

King Henry VIII wanted a son to inherit the Throne of England for the
Tudor dynasty, but his marriage was a disappointment. His wife, Catherine of
Aragon, had only borne him a daughter, Mary. Worse still, the Pope would not
let him divorce Catherine in the hope of finding someone else to bear him a
son.

Henry’s solution was quite drastic, effective and novel. He converted
all of England into Protestantism, founding the Church of England, in order to
deny the Pope any influence over his marriage. Henry then had his marriage with
Catherine of Aragon declared void on May 23, 1533, after which he went on to
marry several other women in sequence. He had a second daughter with his second
wife, and finally a son with his third wife. Unlike the bastard child Mary, her
younger half-siblings — Elizabeth and Edward — were Protestants.

Edward succeeded Henry VIII to the throne in 1547, at the age of nine.
He died before reaching adult age. Mary was next in the line of succession,
despite having been declared a bastard. Thus, the outcast ascended to the
Throne of England with a vengeance as Mary I in 1553.

She had not spoken to her father for years and years. Rather, hers was
the mission to undo her father’s wrongdoings to the Faith, to England, and to
her mother, and to return England to Catholicism. She persecuted Protestants
relentlessly, publicly executing several hundred, and earning herself the
nickname Bloody Mary.

She shared the concern of the Catholic Church over the printing press.
The public’s ability to quickly distribute information en masse was dangerous
for her ambitions to restore Catholicism, in particular their ability to
distribute heretic material. (Political material, in this day and age, was not
distinguishable from religious material.) Seeing how France had failed
miserably in banning the printing press, even under threat of hanging, she
realized another solution was needed. One that involved the printing industry
in a way that would benefit them as well.

She devised a monopoly where the London printing guild would get a
complete monopoly on all printing in England, in exchange for her censors
determining what was fit to print beforehand. It was a very lucrative monopoly
for the guild, who would be working hard to maintain the monopoly and the favor
of the Queen’s censors. This merger of corporate and governmental powers turned
out to be effective in suppressing free speech and political-religious dissent.

The monopoly was awarded to the London Company of Stationers on May 4,
1557. It was called
copyright
.

It was widely successful as a censorship instrument. Working with the
industry to suppress free speech worked, in contrast to the French attempt in
the earlier 1500s to ban all printing by decree. The Stationers worked as a
private censorship bureau, burning unlicensed books, impounding or destroying
monopoly-infringing printing presses, and denying politically unsuitable
material from seeing the light of day. Only in doubtful cases did they care to
consult the Queen’s censors for advice on what was allowed and what was not.
Mostly, it was quite apparent after a few initial consultations.

There was obviously a lust for reading, and the monopoly was very
lucrative for the Stationers. As long as nothing politically destabilizing was
in circulation, the common people were allowed their entertainment. It was a
win-win for the repressive Queen and for the Stationers with a lucrative
monopoly on their hands.

Mary I died just one year later, on November 17, 1558. She was succeeded
by her Protestant half-sister Elizabeth, who went on to become Elizabeth I and
one of the highest-regarded regents of England ever. Mary’s attempts to restore
Catholicism to England had failed. Her invention of copyright, however,
survives to this day.

1600s – 1700s: The Monopoly Dies And
Is Resurrected

After Bloody Mary had enacted the copyright censorship monopoly in 1557,
neither the profitable industry guild nor the censoring Crown had any desire to
abolish it. It would stand for 138 years uninterrupted.

As we have seen, the copyright monopoly was instituted as a censorship
mechanism by Mary I in 1557 to prevent people from discussing or disseminating
Protestant material. Her successor, Elizabeth I, was just as happy to keep the
monopoly after Mary’s death in 1558 to prevent people from discussing or
disseminating
Catholic
material.

During the 1600s, Parliament gradually tried to wrestle control of the
censorship from the Crown. In 1641, Parliament
abolished
the court where copyright cases had been tried, the infamous
Star Chamber
. In effect,
this turned violation of the monopoly into a sentence-less crime, much like
jaywalking in Sweden today: While it was still technically a crime, and
technically illegal, you could not be tried for it and there was no punishment.
As a result, creativity in Britain soared.

Unfortunately, this wasn’t what Parliament had had in mind at all.

In 1643, the copyright censorship monopoly was
re-instituted
with a vengeance. It included demands for pre-registrations of author, printer
and publisher with the London Company of Stationers, a requirement for
publication license before publishing anything, the right for the Stationers to
impound, burn and destroy unlicensed equipment and books, and arrests and harsh
punishments for anybody violating the copyright censorship.

Fast-forwarding a bit, there was something called the Glorious
Revolution in 1688, and Parliament’s composition changed radically to mostly
people who had previously been at the business end of censorship and weren’t
all too keen for that to continue. Therefore, the Stationers’ monopoly was made
to expire in 1695.

So from 1695 onward, there was no copyright. None. Creativity soared
– again – and historians claim that many of the documents that
eventually led to the founding of the United States of America were written in
this time.

Unfortunately, the London Company of Stationers were not happy at all
with the new order where they had lost their lucrative monopoly. They gathered
their families on the stairs of Parliament and begged for the monopoly to be
reinstated.

It is noteworthy that authors did not ask for the copyright monopoly,
the printers and distributors did. There was never an argument along the lines
that nothing would be written without copyright. The argument was that nothing
would be printed without copyright. This is something else entirely.

Parliament, having just abolished censorship, was keen on not
reinstituting a central point of control with a possible abuse potential. The
Stationers responded by suggesting that writers should “own” their works. In
doing so, they killed three birds with one stone. One, Parliament would be
assured that there was no central point of control which could be used to
censor. Two, the publishers would retain a monopoly for all intents and
purposes, as the writers would have nobody to sell their works to but the
publishing industry. Three, and perhaps most importantly, the monopoly would be
legally classified as Anglo-Saxon Common Law rather than the weaker Case Law,
and therefore given much stronger legal protection.

They publishing lobby got as they wanted, and the new copyright monopoly
was re-enacted in 1709, taking effect on April 10, 1710. This was the copyright
lobby’s first major victory.

What we see at this point in history is copyright in its unspun form: a
monopoly with heritage from censorship where artists and authors were not even
considered, but where it was always for the publishers’ profit.

Also, the Stationers would continue to impound, destroy and burn others’
printing presses for a long time, despite not having the right any longer.
Abuse of power came immediately, and would last until the pivotal
Entick vs. Carrington case
in 1765
, when yet another of these raids for “unlicensed” (read
unwanted) authors had taken place. In the verdict of this court case in 1765,
it was firmly established that no right may be denied to any citizen if not
expressly forbidden by law, and that no authority may take upon itself any
right not explicitly given by law.