The movable type printing press is oft cited as playing a role in the religious revolutions of the 16th and 17th centuries. The technology to print books and pamphlets created an ability to circulate ideas previously limited by word of mouth transmission and much less efficiently produced media (e.g. hand-transcribed manuscripts). This relationship is fairly well-known.
Congratulations! It’s an author-centered copyright doctrine!
What many people do not know, however, is that this maelstrom of religious upheaval and new printing technologies also gave birth to copyright law.
One of the weapons in the religious struggles in England was the censorship of the religious views by whoever happened to be on the throne at any particular time. The problem that various monarchs ran into was that the same technology that had contributed to these religious struggles also made it very difficult to censor effectively. They simply could not keep pace with the number of books and pamphlets that could be produced with the new printing technology.
So, they enlisted the aid of the Stationer’s Company, the members of the book trade who had received a royal charter to organize into a Company in 1557. English Companies were similar to and had evolved from medieval guilds. The Stationer’s Company was comprised of bookbinders, booksellers, and printers.
During almost the whole period from 1557 to 1709, a time of continuous religious struggle, censorship was a major policy of the English government. This policy made it convenient for the government to give the stationers large powers, which it did in increasing measure, in order to have them serve as policemen of the press.
L. Ray Patterson, Copyright in Historical Perspective
This system of censorship was enabled first by the Star Chamber Decrees of 1566, 1586, and 1637 and then later by the Licensing Act of 1662. The government did not intend to create copyright law with these statutes. Rather, their concern was merely with censoring opposing religious views.
Instead, the Stationer’s Company copyright arose as an offshoot of the powers granted by the government for censorship. In other words, the powers granted to the Stationer’s Company allowed them to create a form of copyright.
They did so as a way of increasing the profitability of their business endeavors by ordering their own internal affairs. Essentially, the members claimed their “copies” – what we call works of authorship. Whichever member registered a particular “copy” would have the exclusive right to print, bind and sell books from that copy. This act was referred to as “entrance” in the register. An entrance in the register* might take the form of:
Owyn Rogers ys lycensed to prynte a ballette Called have pytie on the poore.
(Apparently, it wasn’t “and sometimes Y.” It was “Y all the tyme.”)
These rights were initially enforceable privately within the company, but later grew to be enforceable in courts of law. It is quite likely that some form of copyright existed prior to these censorship efforts and even prior to the royal charter of the Stationer’s Company, but whatever form it took it did not have the full legal standing and scope of what we would view as copyright.
Note that the author was not a part of this picture. Authors were not members of the Stationer’s Company. They were considered “above” commerce. Selling copies of their work was considered improper. They did in fact sell manuscripts to members of the Stationer’s Company, but this relationship maintained the air, if not the reality, of the earlier system of patronage.
So how did the we end up with a governmental copyright that was focused on authors?
For that we have to fast forward to the late 17th and early 18th century. Two changes in what the government was able and willing to do led the members of the Stationer’s Company to seek what became the first copyright statute.
First, the government moved away from a policy of censorship. This threatened to pull the teeth out of the powers that had permitted the Stationer’s Company to create their internal system of copyright. Second, the government became very sensitive to public disapproval of government granted monopolies.
So as the censorship laws expired, the members of the Stationer’s Company had to seek out some way to maintain their economic advantage – and their effective monopoly had given them quite an advantage. In a relatively short period of time, they had moved from an unimportant guild** to one of the wealthiest and most influential.
What they sought from the government was legislation that would enshrine their previously private system into public law. Importantly, those rights were perpetual. Once a member had rights to a particular copy, they had it forever.
So, how did we get limited-in-time copyrights focused on authors?
That is where the second change comes into play – public animosity toward monopolies. In that anti-monopoly environment, a fight arose between two groups within the Stationer’s Company – the printers and the booksellers. (The oldest group, the bookbinders, were largely irrelevant at this point.)
One group wanted no copyright while the other wanted a perpetual copyright – one that never expired. The twist is that both groups argued not for their own good, but instead argued on behalf of the “author.” After all, those advocating for a perpetual copyright had a difficult time persuading anyone that a new monopoly should be granted. So instead they appealed to what was in the author’s interest, and once one side made this rhetorical move, the other side followed suit. It was the use of the “good of the author” by both sides to the argument that produced the concept of copyright as an author’s right.
In fact, public sentiment against monopolies was so strong that it took many years for the stationers to get anything enacted. In 1709, the decades-long fight produced the first copyright statute – commonly referred to as the Statute of Anne, a much snappier name that the actual full title: “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”
*Some of the earliest known uses of the actual term “copyright” occurred in the company register. However, such uses were quite rare.
**The Hatter’s Guild was one of the six most powerful guilds. In comparison, the Stationer’s Company would initially have been somewhere down in the forties in terms of ranked importance. Hats were apparently a big deal.
Writer-in-Law 