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The Author's Due
Printing and the Prehistory of Copyright
By Joseph Loewenstein
The University of Chicago Press
Copyright © 2002 The University of Chicago Press
All right reserved.
An Introduction to Bibliographical Politics
I conceive you trade in knowledge, and here [at the Royal Exchange] is no place to traffick for it; neither in the book of rates is there any imposition upon such commodities: so that you have no great businesse either here or at the Custome-house. Come let us goe into the fields.
Gabriel Plattes, Macaria
What is the history of authorship, of invention, of mental making?
From the Old Law to the New Bibliography
"The term Literary Property, he in a manner laughed at" Observed of Sir John Dalrymple, arguing for the appellants in Donaldson v. Becket (1774)
In 1909, the Berne Convention of 1886 providing for international copyright protection was revised in Berlin. In order to retain its place in an even barely rationalized international marketplace in intellectual property, Britain acceded to the revision-the British capitulation was confirmed in the Copyright Act of 1911-and English copyright law was thus radically transformed. The Berlin revision fixed the period of copyright protection at the term of the author's life and fifty years after her death, thus obviating the regulatory difficulties that arise in legal systems in which the term of copyright is figured from the date of publication. This was a subtle assault on English ways, since it brought to an end the persistent debate within British law on the appropriate term of copyright, making the author, once and for all, the sole measure of protection.
Profuse and incommensurable international laws were not the only stimuli to simplification. The pressure to simplify was felt from within as well as from without. Thus the unsigned article on "Copyright" in the eleventh edition of the Encyclopedia Brittanica (1910-11) records with obvious perplexity the then current state of legal affairs:
To sum up the position of artistic copyright in 1909, we find five British acts, three dealing with engraving, one with sculpture, and one with painting, drawing and photography, and between them very little relation. We have three terms of duration of copyright-28 years for engraving, 14 for sculpture, with a second 14 if the artist be alive at the end of the first, life and 7 years for painting, drawing or photography. There are two different relations of the artist to his copyright. The sculptor's right to sell his work and retain his copyright has never been questioned so long as he signs and dates it. The painter's copyright is made to depend upon the signing of a document by the purchaser of his work. The engraver and the sculptor are not required to register; but the author's name, and the date of putting forth or publishing, must appear on his work. The painter cannot protect his copyright without registration, but this registration as it is now required is merely a pitfall for the unwary. Designed to give the public information as to the ownership and duration of copyrights, the uncertainty of its operation results in the prevention of information on these very points.
The issue of what is here called "registration" points to the most obviously revolutionary aspect of the Copyright Act, the etiology of copyright now legally mandated in Berlin. According to the new principles articulated there, an author's rights arose from the act of creation itself. This may seem unexceptionable, but in fact it entails a dismissal of very old institutional arrangements in Britain. Up until the Copyright Act of 1911, all suits for infringement of copyright depended upon the procedure mentioned above, registration, which dates from the sixteenth century. In order to secure a printed work from unfair competition, a printer-acting as author's agent as jurisprudential tradition would have it-would record his claim on the work in the Stationers' Register at the printers' guildhall, and this registration constituted the foundation of all claims of copyright. Thus the law, the political structure, of literary property had long been organized around procedures essentially industrial. The Copyright Act of 1911, in accordance with the Berlin agreement, broke with this tradition and reorganized the legal foundations of copyright simply by canceling the necessity of registration.
Thus reconstructed, copyright law functions to protect authorial creativity, to provide a statutory hedge against industrial concerns around an author's somewhat mysterious, if not mystified, creative act; the new law enables a bracketing, a willed forgetting, of the marketplace. The forgetfulness is part of a general simplification, for the 1911 act consolidated all the various forms of copyright within a single text and framed those rights in such a way that the complex realities of the publishing industry become, in effect, ancillary to copyright law. The Encyclopedia Brittanica reviews the changes with composed relief: "The sensible basis on which the new bill was framed, and the authority it represented, commended it."
With relief, and with sober caution: "commended it, in spite of many controversial points." Radical and simple as it was, the act of 1911 still had the feel of the Provisional. And no wonder: during the preceding two decades the marketplace for intellectual property had been an unruly one, partly because of new forms of unfair competition, partly because of pressure on the patent system, but largely because of new developments in what we now call "the media." The proliferation of phonographic recording (Edison's phonograph dates from 1877; the Path and Gramophone phonograph factories began production in 1893; Victor initiated its Red Seal issues in 1902) and the development of the pianola provoked a rethinking of the landscape of intellectual property similar to the rethinking that had attended upon the invention of photography. Such new apparatuses for sound reproduction blurred already contested boundaries between musical text and musical performance, and between artisanal and mechanical production. The legal difficulties presented by the new technology were thrown into relief by a 1908 case brought in America: the plaintiff, a music publisher, alleged infringement of musical copyright when two songs were transcribed on piano rolls. This was plainly a small matter compared to the more fully consequential problem of phonographic reproduction, which led to the articulation of mechanical rights, the so-called neighboring rights proximate to the monopoly in recording. In 1910, the parliamentary committee that was charged with digesting the Berlin revisions in order to draft the 1911 legislation recognized that the new medium of "publication" could not easily be subsumed within existing legal structures. The committee therefore recommended the formation of the Mechanical Copyright Licences Company to protect composers' rights in mechanical reproduction. The Copyright Act of 1911 provided for compulsory licensing of mechanical reproduction and then conferred copyright on the producers of the licensed recordings. This was obviously not a simplification, but it did secure, if only temporarily, a remarkable comprehensiveness in the face of burgeoning disseminative technology.
Most important, the Berlin revisions forced Britain to respond to new technology in Parliament and not in the courts, by statutory intervention in the law and not by interpretive extension of it. The displacement of common law by statute is, of course, characteristic of legal developments since the mid-nineteenth century, a key feature of the rise of parliamentary democracy. This displacement, which reverses a key shift in the late seventeenth-century history of copyright, effects a partial erasure of the past from the code of law; it secures an enfeebling of memory. The past was variously subsiding, for as the Parliamentary Committee on Copyright was assimilating the Berne Convention, W. A. Copinger, the greatest English authority on copyright law, was dying. The Copyright Act of 1911, by making an antiquarian curiosity of the Stationers' Register, quite literally closed a book on the history of literary culture.
On the other hand, the antiquarians were particularly curious during these years. The Bibliographical Society, which Copinger had founded in 1892, was rolling up its sleeves, reopening the Stationers' Register. The Bibliographical Society was on a campaign against selective memory. In 1903, with Sidney Lee's 1902 facsimile of the First Folio under review, W.W. Greg pronounced not only on Lee's ignorance of the regulation of the Tudor and Stuart book trade, but on the historiographical amateurishness of virtually all professed literary historians; as if Copinger were setting his historiographical agenda, Greg remarks, "With regard to the old copyright regulations, it should be frankly confessed that we know very little about them." Greg's mentor and student, A. W. Pollard, rose to the challenge of this review in his Shakespeare Folios and Quartos (1909) by attempting to specify the various property rights variously haunting Renaissance dramatic manuscripts, performances, and printed texts. Together, Greg and Pollard made it their larger project to clarify the history of copyright, of stationer's registration, of printing, and of publishing, even as that history was being wiped from the practice of the law. To sum up the conjunctural paradox: in 1909, the Berlin revision of the Berne Convention represented literary culture, for the purposes of law, as a vacuous space with author and a book-buying public at its poles, and with the book as a thin material line of communication between them; in 1909, Shakespeare Folios and Quartos represented literary culture as a space thick with books, with scribes and printers, guildhalls and printshops and bookstalls, proclamations and regulations, actors and acting companies, booksellers and book buyers, a crowded historical field within which one might hope to discern conventions and recurrences and so bring into focus the historically specific lineaments of author and literary work. Legislator and bibliographer offer us two starkly different representations of literary culture, but both, I think, respond to the same conceptual-regulatory crisis, the revolution in reproductive technologies.
"Ad Imprimendum Solum"
Pollard's historical representation was thick but imperfect, and he soon recognized as much. The received wisdom in bibliography was rapidly changing: though the traditions of Shakespeare scholarship continued to provide the organizing questions, these years saw an exceptional ferment in research into all aspects of the Renaissance literary marketplace. So it was no wonder that Pollard felt that he must undertake his historical account of Shakespearean book culture again, and only a few years after the appearance of Shakespeare Folios and Quartos, in the Sandars Lectures of November 1915. The opening of these lectures dates them: "Legal writers on English copyright have not shown much interest in the steps by which the conception of literary property was gradually built up, nor are any data easily accessible for comparing the course of its development in England and foreign countries." Pollard's words derive from the era of the Berlin Convention and of the British Copyright Act, the era of the law's forgetting and of bibliographic anamnesis.
Pollard approaches the history of the text as a problem in the history of regulation, as I mean to do. Hence the title of his first lecture, "The Regulation of the Book Trade in the Sixteenth Century." Now, by "regulation" one may mean many things, but Pollard tended to surprisingly narrow constructions. This tendency provoked a bibliographical debate, the pertinence of which endures, and not simply because it remains unresolved merely as a matter of historical interpretation.
The debate concerns the meaning of a proclamation of King Henry VIII dated 16 November 1538. The proclamation begins by announcing the need for censorship, for an essentially and-as I shall be obliged to put it again and again in these pages-narrowly or crudely ideological regulation. Here are Pollard's citations and discussion (such early typographical conventions as the use of i for j and u for v and vice versa, or the use of long s and double V, are normalized to accord with modern practice, as they will be throughout this book; abbreviations will also be silently expanded):
"The Kynges moste royall majestie beinge enfourmed, that sondry contentious and sinyster opinyon[s], have by wronge teachynge and naughtye printed bokes, encreaced and growen within this his realme of Englande," forbids the importation, sale, or publication, "without his majesties speciall licence," of any English books printed abroad, and then proceeds:
Item that no persone or persons in this realme, shall from hensforth print any boke in the englyshe tonge, onles upon examination made by some of his gracis privie counsayle, or other suche as his highnes shall appoynte, they shall have lycence so to do, and yet so havynge, not to put these wordes Cum privilegio regali, without addyng ad imprimendum solum, and that the hole copie, or els at the least theffect of his licence and privilege be therwith printed, and playnely declared and expressed in the Englyshe tonge underneth them.
Here we have the first of several enactments which forbade the printing of any book in English except after it had been examined by some (which implies two or more) of the Privy Council, "or other suche as his highnes shall appoynte." Incidentally we may note that while a distinction appears to be drawn between a licence and a privilege, the one word "privilegium" seems to be used as a Latin equivalent for both. Every book, as I understand the proclamation, required a licence; but this licence was not to be paraded by the use of the words "Cum privilegio regali," without these words being limited and restricted by the addition "ad imprimendum solum." These must therefore be construed "only for printing," i.e. not for protection, unless this was expressly stated, in which case the "licence" was raised to the higher rank of a "privilege." The words "ad imprimendum solum" have been generally interpreted as equivalent to "for sole, or exclusive printing." Whether or not they can legitimately bear this meaning in Tudor Latin is perhaps doubtful. It seems quite clear from this Proclamation that this is not the meaning they were originally to bear.
To cite Pollard at length, as I have done, is to preserve a bibliographic tradition. In 1919, E.M. Albright initiated the tradition with almost the identical citation followed by the acerbic comment, "I cannot agree with Mr. Pollard in his innovation." Albright's analysis provoked a response in The Library from Pollard, and he later revised his original argument for the second edition of Shakespeare's Fight with the Pirates, but the matter did not rest there-in 1954, Greg made his own settled intervention in the dispute.
Excerpted from The Author's Due by Joseph Loewenstein Copyright © 2002 by The University of Chicago Press. Excerpted by permission.
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