Revisiting the Historical 'Copy-wrongs' of 'Copy-rights'! Are we resurrecting the Licensing Era?

• Author: Akhil Prasad; Aditi Agarwalai
• Position: Gujarat National Law University, Gandhinagar, India akhil_99@hotmail.com
• Pages: 231-237

Page 231

1. Once upon a time

When the copyright law took off formally, it was only with the forward technological leap with the invention of the printing press. Since Gutenberg's invention of the Printing Press, a classic invention of the bygone era, mankind has entered into a much higher form of technology marked by the advent of personal computers. Indeed, a lot of water has flown beneath the bridges since then. The law of copyright which commenced with the protection of literary property has witnessed rapid strides in technological developments and with the changing socio economic dynamics of the society, the worth and value of information as a 'knowledge commodity' and the societal outlook towards it has witnessed a progressive change.

However, few would be aware of the startling facts which lead to the emergence of copyright as a discipline of law. Without revealing the suspense or the substance, let us odyssey in exploring the historical origins of this law and discover a historical road which is less travelled by.

1.1. A historical insight of the pre Gutenberg era

Centuries ago, when copyright for the protection of intellectual works did not exist, the owners did not have any control over their works. The works were produced with no profit motive and everyone was free to use a creative work for learning or enjoyment purposes.

During those times, reproducing a text could only be done by hand copying. This was mostly done by monks and did not enjoy much 'audience' as most of the populace was illiterate. However, apart from the monks, the information was passed on in a 'Chinese whisper' fashion, from mouth to ear and the version was likely to change when it was transmitted from one person to another to another. Indeed there was little credibility.

Due to the immense labour and time involved in reproducing a work, devising a system of copyright was neither practically feasible nor economically viable. In other words, history reflects that information was virtually "free" at one point of time. The concept of 'value' to information was alien. In this regard, relevant to quote would be the views of Richard Stallman, an American software freedom activist who has aptly commented:

"The idea of copyright did not exist in ancient times, when authors frequently copied other authors at length in works of non-fiction. This practice was useful, and is the only way many authors' works have survived even in part."

Indeed, there was no protection of intellectual works yet works were produced as social reward which came in the form of recognition was most important. Irwin writes that the first form of protection for intellectual literary creation took place in ancient Egypt and notes that recording of human communication was at the hands of the priest or holy man who was considered to be the first to lay claim to knowledge (as cited in Mendis, 2003). If persons other than the members of the priesthood were overheard reciting the sacred rituals, they were liable to immediate execution. (Ploman & Hamilton, 1980, as cited in Mendis, 2003, p. 6) Page 232

1.2. The first 'copycat' dispute

It may be interesting to note that one of the earliest known disputes in relation to matters concerning reprographic tactics and copyright is as old as the fourth century which was adjudicated upon by the High King of Ireland (Anonymous, n.d.). It was in the King Diarmed's royal court that a dispute between St. Abbot Finnian and his former pupil St. Columba was agreed to be decided upon by the parties.

The facts of the matter reveal that St. Columba had fraudulently copied the work owned by St. Finnian and made unauthorized copies to distribute it for free to the local churches. King Diarmed saw the book as Finnian's property, the ownership of which entitled Finnian to its product, the copy. The king concluded that both the original and the copy belonged to Finnian, observing, "To every cow her calf, and accordingly to every book its copy" (Wittenberg, 1978, p.7). Columba was fined 40 head of cattle for making an unauthorized copy (Anonymous, n.d.). The king's ruling thus pointed in the direction of the future development of copyright law (Stearns, 1992).

The king based his understanding on the very thumb rule that a calf belonged to the cow wherever the cow was kept which was based on the Brehon Laws relating to the ownership of animals found wandering. The other reason for such a dictum was the fact that paper as well as printing had not been invented then and the books were manually copied onto Vellum which was manufactured from calf hide or were bound in calf skin. St. Columba never obeyed the decree.

That notwithstanding, it has been said that St. Finnian didn't write the psalter in question, which [was] a book full of psalms, he just owned it (see Menzies, 1992, p.22 cited in Dallon,, 2004, p.376). The issue decided by Diarmed was about allowing the wealthy and powerful to control the flow of knowledge, and allowing the commoditization of information. Finnian was by no means the "author" of the work. Another view expressed by the Count de Montalembert notes that, "Columbia had a passion for fine manuscripts . . . He went everywhere in search of volumes, which he could borrow or copy, often experiencing refusals which he resented bitterly." (See Menzies, 1992, p.23) Thus, the oldest record where any dispute as regards what we refer to as 'copyright' today exhibit, that the scales of justice was inclined to benefit the owner of the title to the "property" and not the creator or "author" of the work who is the owner in the true sense or the 'first owner of copyright'.

It was only following the invention of the printing press of moveable type in 1436 by a German - Johannes Guttenberg that the art of printing spread rapidly throughout Europe. The printing press was a mixed blessing. On one hand where it became easy to produce works in print that is to duplicate and to distribute, the other end of the 'new technology' was open to abuse. As a consequence the author was out of protection as soon as the work got into print which necessitated the need for a copyright regime.

The development of copyright is thus traceable to rise of a mass market for printed books primarily brought about as a result of Gutenberg's contribution to the literary world.

2. The English Crown Copyright - A Chronicled Development

When Gutenberg's invention reached England, the then King Richard III, in 1483, lifted any restriction on foreigners importing manuscripts and books into England and printing them there. As a result there was a proliferation of books as foreigners enjoyed a royal 'license'. Due to all these developments, England surfaced as a major printing centre throughout the length and breadth of Europe (Thomas, 2001, p.26).

In 1529, the then King of Britain, Henry VIII constituted a 'system of privileges' for the printing of books as a result of which the printing business became a monopoly of the Crown. It was around that time in 1533 (See Stewart, 1983, p.20) that the King prohibited importation of books placing it on the lame justification the England boasted of a number of publishers, printers and bookbinders and hence there was no requirement of 'importation' (Thomas, 2001, p.26).

Even France witnessed a similar system of privileges constituted a Printer's Guild Monopoly with the Government's intent to exercise censorship in 'quid pro quo' for the guaranteed market exclusivity (Seignette, 1994, p.9). It was in 1618 that the French Government forced the Parisian booksellers and printers to form a guild which would serve as an instrument of the Government to avail the advantages of the printing press and at the same time exercise censorship in promise for such market exclusivity.

2.1. The Stationer's Company is Born - Pirates protected by Law

In 1556, during the reign of Queen Mary I of England, stationer's guild comprising of 97 London publishers was constituted into a company which came to be known as the Stationer's Company. This company, more specifically, the registered members of the company had the sole and an exclusive right to reprint works in perpetuity and in the name of some particular member of that company, who forever after had the sole right to publish that work. (Cambridge Research Institute, 1973 cited in Nasri, 1976, p.1). These registered members of the Page 233 Shakespearian era ¹ had the monopolistic right of not only printing but publishing books that is sell copies to the public.

It was more in the nature of a license than a right. Company...