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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

13. The Return of the Commons – Copyright History as a Common Source

Karl-Nikolaus Peifer

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  • 1 An earlier version of this article was published under the title ‘Common Access and Creative Commo (...)

1Note portant sur l’auteur1

Introduction

  • 2 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C of the Marrak (...)
  • 3 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), adopted 1996. The (...)
  • 4 German courts have interpreted copyright limitations narrowly in the past, stating that exclusivit (...)

2The recent history of copyright law arguably has been shaped by an Anglo-American understanding of copyright as property. The integration of intellectual property rights into the global trade system with the WTO TRIPS Agreement,2 the WIPO Internet Treaties3 and subsequent implementations reveal a droit d’auteur concept in retreat, even in the European Union. The central economic premise of the property-based approach is one of exclusivity and control. In a paradigm of scarcities, incentives can be best provided by dictating terms of use. In the digital environment, this logic has helped the publishing and entertainment industries to defend technological measures of exclusion even at the price of restricting the legitimate use of copyright limitations.4

  • 5 The Free Software Foundation was established in 1985: http://www.fsf.org/philosophy [accessed 2/3/ (...)
  • 6 Primary Sources.

3Contrary to the legal enforcement of the access control paradigm, the open access movement is based on a premise of knowledge dissemination. It has its recent origins in software development,5 but grew rapidly to embrace the community of scholars and scientists. The digital archive Primary Sources on Copyright (1450-1900)6 that is the catalyst of this edited volume is an example of the growing importance of such open content projects.

  • 7 Karl-Nikolaus Peifer, Individualität im Zivilrecht (Individuality in Private Law) (Tübingen: Mohr (...)
  • 8 Johann Stephan Pütter, Der Büchernachdruck nach ächten Grundsätzen des Rechts (Göttingen: Vandenho (...)
  • 9 Leopold Joseph Neustetel, Der Büchernachdruck nach Römischem Recht betrachtet (Heidelberg: Groos, (...)

4This chapter argues that the ’return of the commons’ has a credible source in the history of copyright itself. It is the information broker that may be conceived as the heart of a copyright theory rooted in the Enlightenment.7 In the German context, this alternative reading of copyright history, centred on the personality interests of the author, draws on the concepts of Pütter (1774), Kant (1785) and Fichte (1793),8 and the jurisprudential tradition of Neustetel (1824), Bluntschli (1853), Gareis (1877) and Kohler (1880).9 These texts, made available for the first time to an English speaking audience on the Primary Sources database, help us understand how property interest (of control) and individual interests (of authenticity) could drift apart during the eighteenth and nineteenth centuries. They may also offer us the kernel to a solution for the current crisis of the copyright system.

The Crisis of the Copyright System

5Copyright law, as well as the entire system of Intellectual Property Rights, has fallen into a deep crisis of acceptance with respect to not only users and consumers, but creators also.

  • 10 Lawrence Lessig, The Future of Ideas. The Fate of the Commons in a Connected World (New York: Rand (...)
  • 11 Reto M. Hilty, Urheberrecht in der Informationsgesellschaft (Copyright in the Information Age) (Ze (...)
  • 12 Some of the examples developed at the University of Cologne are described in Karl-Nikolaus Peifer (...)
  • 13 Gerhard Prosi, Ökonomische Theorie des Buches (Economic Theory of the Book) (Düsseldorf: Bertelsma (...)
  • 14 Karl-Nikolaus Peifer, ’Urheberrechtliche Rahmenbedingungen von Open-Access-Konzepten’ (Copyright F (...)

6Copyright-related rights for databases and digital rights management systems have facilitated an ever increasing control not only of content expression but also of physical layers and codes.10 The resulting pricing and distribution policies have led to a fundamental examination and critique of the role of copyright in an information society.11 Scholars have reacted by developing many of the publishing functions which publishing houses originally fulfilled.12 While remaining sensitive to the need to authenticate content, the proprietary logic fostered by the economic analysis of legal institutions,13 and readily adopted by the entertainment and publishing industries, is being rejected.14

7Those who tell the story of copyright law as a story of property interests will, in general, applaud any new type of protection. Those who speak of personality interests will doubt that this protection is well-suited for creators and intellectual innovations. The dichotomy of copyright as a means of appropriation and as a means of personal protection therefore lies at the heart of the history of copyright law. The ’battle of the booksellers’ may be told as a story of the balance between a property function and an authenticity function. We can locate the intellectual roots of both functions in the eighteenth and the nineteenth century. They mark the division of the copyright world into the different concepts of copyright as economic incentive and droit d’auteur. Access to the primary sources from this time may let us begin to understand how the Western World could fall into these two factions.

8I will argue that the incentive rationale has yet to discover a convincing user- and creator-friendly basis upon which to advocate an author’s right. In a globalised world, the economic rationale favours exporters and may block creation. This gap may be filled by revisiting the concept of author’s rights in the Kantian tradition. The publishing and entertainment industries have always used, and still use author-centric arguments to campaign for economic interests. Therefore, access to this earlier public discourse, and an understanding of the history of this discourse, is necessary to re-conceive author’s rights that carry public acceptance.

The Property Function and the Development of Anglo-American Copyright Law

  • 15 See the Report for the US-House of Representatives: H.R. Rep No. 222, 60th Cong. 2d Sess 7 (1909), (...)
  • 16 Donaldson v. Becket (1774) Eng. Rep. 837 (H.L.); see also ’Donaldson v. Becket (1774)’, Primary So (...)
  • 17 Robert Dittrich, ’Der Werkbegriff – sinnvolle Ausdehnung oder Denaturierung?’ (The Notion of Copyr (...)
  • 18 Mark Rose, The Author as a Proprietor. The Invention of Copyright (Cambridge, MA: Harvard, 1993); (...)
  • 19 Richard Rogers Bowker, Copyright: Its History and Its Law (Boston and New York: Hougton Mifflin Co (...)
  • 20 See: Ronan Deazley, ’Commentary on the Stationers’ Charter (1557)’, Primary Sources; Albert Osterr (...)
  • 21 Thomas Edward Scrutton, The Law of Copyright, 4th ed. (London: William Clowes & Sons, 1903), pp. 1 (...)
  • 22 See the complaint by printer Roger Ward, in John Day v. Roger Ward and William Home (1582), in A T (...)
  • 23 The Star Chamber Decree of 1566 prohibited the publication of any book contrary to ’the form and m (...)
  • 24 See for example ’An Ordinance for the Regulation of Printing (1643)’, Primary Sources.
  • 25 Osterrieth, pp. 171, 251.
  • 26 This is already shown by the title of the Act: An Act for Preventing Abuses in Printing Seditious, (...)
  • 27 John Milton, Areopagitica, With a Commentary by Sir Richard C. Jebb (Cambridge: Cambridge Universi (...)

9For the Anglo-American copyright regime the basic questions are as follows: to what extent will copyright legislation incentivise the creation of new work and so benefit the public? And to what extent will the monopoly be detrimental to the public?15 Both questions are implicit in the Copyright Clause of the US Constitution, which itself is grounded in the development of copyright law and the battle of the booksellers in eighteenth century England.16 The decisive conflict to be solved at that time concerned the control of the material work, the book, in the interest of those who invested money in the fixation and distribution of the same, namely the publishers.17 This development did not mean a negation of the author; however, the author’s interest was exclusively used to legitimate the publisher’s position.18 As Mark Rose puts it, the author was made a proprietor by the Statute of Anne to legitimate the publisher’s monopoly. Prior to the eighteenth century, privileges for individual printers, as well as for the Stationer’s Company, served to foster the national printing industries.19 However, privileges had also been used to exercise censorship and control20 and to bring money to the Crown.21 By combining economic and political functions through privileges and proprietorship rules, a freedom of distribution argument developed considerable strength.22 The Star Chamber Decree system,23 and the regulatory regimes that replaced it,24 prevented the development of an understanding of copyright as a natural or human right in England.25 The Licensing Act 1662 also combined property functions with censorship interests.26 Control in this sense did not mean authenticity but control of the content of a work. So it was that authors such as John Milton or John Locke would criticise the fact that an author’s interests concerning free expression were being hindered.27

  • 28 An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors of (...)
  • 29 See also Rose, p. 48.
  • 30 Augustine Birrell, Seven Lectures on The Law and History of Copyright in Books (London: Cassell an (...)
  • 31 See the confirming judgment in Jeffrey v. Boosey (1854) 4 HLC 815, 10 ER 681; see also ’Jeffreys v (...)
  • 32 See Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 19 (...)
  • 33 Wheaton v. Peters, 8 Pet. 591, 8 L.Ed. 1055 (U.S. 1834). See also: ’Wheaton v. Peters (1834)’, Pri (...)
  • 34 Osterrieth, pp. 103, 159. For further details see Peifer, Individualität im Zivilrecht, pp. 70 et (...)

10The very title of the Statute of Anne 1710 demonstrates the extent to which it was a reaction to the licensing statutes and decrees of the seventeenth century: it is an Act ’for the encouragement of Learning and for securing the property of copies of books to the rightful owners thereof’.28 The rightful owners should have been the authors not the printers. The encouragement of learning is quite opposed to the control of books by censorship rules.29 The unfortunate effect of this legislation, however, was that it interrupted the path to a common law copyright, or in continental European terms, the legal acknowledgement of personal interests of the author in his work. Birrell put it in the following strong terms: ’This well-meaning Statute spoilt all. It gave away the whole case of the British author, for, amidst all the judicial differences during the last century on copyright, there was a steady majority of judges in favour of the view that, but for the statute of Anne, an author was entitled to perpetual copyright in his published work. The right (if it ever existed) was destroyed by the Act’.30 This view was shared by the reception of the leading case Donaldson v. Becket in 1774, the culmination of the debate between scholars and judges in eighteenth century Britain.31 While the US copyright regime had initially shown sympathy for the idea of copyright as a personal right,32 it nevertheless accepted Donaldson as a precedent.33 The debate in the Anglo-American world was closed, possibly also for pragmatic reasons because the (narrow) English interpretation of copyright law served the young American nation better to give access to foreign works, than a mystification of these works as being a sacred kind of property would have done.34

The Authenticity Function and the Development of the Droit d’auteur-System

  • 35 See: Jochen Dieselhorst, Was bringt das Urheberpersönlichkeitsrecht? Urheberpersönlichkeitsschutz (...)

11It has been said that the Statute of Anne stood in the realm of Enlightenment as opposed to a concept of copyright as a form of property being granted by principles of natural law.35 This interpretation falsely suggests that property is given by the laws of nature while personal interests to grant and receive access have no roots in international law. However, the natural law approach has today been elevated to become a human rights approach. We no longer discuss whether national law has to accept an author’s rights as something pre-existing to the state. States are moving toward a system of human rights whose protection is granted on the basis of international understanding. Such an understanding however has to do with understanding what is peculiar to the author’s contribution to the process of creation. Discussion about this point was developed in the nineteenth century debates that took place in continental Europe. This discussion took place at a time when the Anglo-American concept of copyright as a matter of public interest had already been shaped by the clear precedent of Donaldson v. Becket. In Germany, the discussion is marked by the core texts of Pütter, Kant, and Fichte. The decisive step forward in their discussion was the division of the material and the immaterial within the work. By this division it became clear that property interests as distribution interests of the publishers could be separated from the authenticity interests of authors. The understanding of copyright as a personal right of the author put a focus on the moral interest to safeguard the attribution and the integrity of the work, and to place interests under the control of the person who had authorised the publication of the work. The separation of property and authenticity interests makes it possible to separate authors’ moral from publishers’ proprietary interests.

  • 36 Jane C. Ginsburg, ’A Tale of Two Copyrights: Literary Property in Revolutionary France and America (...)
  • 37 Jeremy Phillips, Robyn Durie and Ian Karet, Whale on Copyright, 5th ed. (London: Sweet & Maxwell, (...)
  • 38 Yochai Benkler, ’From Consumers to Users: Shifting the Deeper Structures of Regulation’, Federal C (...)
  • 39 Friedemann Kawohl and Martin Kretschmer, ’Johann Gottlieb Fichte, and the Trap of Inhalt (Content) (...)

12From the 1990s onwards, the ’tale of two copyrights’36 has attracted considerable attention. Post-TRIPs developments within the European Union seem to show that the droit d’auteur concept is in retreat. In my view, the personal right concept offers an attractive alternative to the challenges of the information society. The label ’copyright’ does not indicate whose right is in question: is it the author’s or the right holder’s? The personal right concept is less ambiguous. This is not a solely continental idea. For example, it has been argued in Whale on Copyright that the negative conceptions associated with copyright may derive from the label.37 Speaking of personal rights, on the other hand, facilitates the identification of the public with the person protected. It draws a clear dividing line between author’s and neighbouring rights, and between the protection of works and the protection of physical layers and code (to use Benkler’s terminology).38 In Germany, it was Kohler who introduced the notion of ’Immaterialgüterrecht’, and Bluntschli and Gareis who separated investment or property functions from personal interests. The exclusions appropriate to these two groups of rights should differ. Norms of authenticity rather than access control will be more acceptable in an information society.39

Plagiarism and integrity

  • 40 Zemon Davis, ’Beyond the Market: Books as Gifts in Sixteenth-Century France’, Transactions of the (...)

13Plagiarism in the terminology of author’s rights is not necessarily an economically relevant offence; rather, it is an attack against personal interests. This view was already accepted in Roman law. The concept was reformed into a legally protected interest by Leopold Josef Neustetel in 1824, one of the first scholars to interpret copyright as a personality right. In ancient times plagiarism might have been interpreted as flattery, or in the middle ages as giving to the people what God has given to the author.40 In modern terms, however, plagiarism is reaping where one has not sown. For authors standing in active competition for reputation and contracts, plagiarism might even be conceived as a business tort. First and foremost, however, it is an attack upon the authenticity function, which is not only detrimental to the interests of the author but also to the public interest. Plagiarism makes it impossible to attribute the work; it separates the work from the person responsible for it.

  • 41 Roland Barthes, ’The Death of the Author’, in Image, Music, Text, ed. by Stephen Heath (London: Fo (...)

14Under open access publishing models, scholars pay meticulous attention to correct citation, and the identification of any modifications – rightly so, because the personal author is the first and often the only authority on the authenticity of a source. Publication practices of scientific articles have cast doubt upon the importance of the single author. To proclaim the ’death of the author’41 however is an attempt to dismantle responsibility for the work. Reading an unattributed text, for example on an on-line encyclopaedia, such as Wikipedia, makes it difficult to understand the ideological leanings. It makes a difference, say, if Bill Gates, Tim Berners-Lee, or an independent scholar defines the concept of software.

  • 42 Ludwig Gieseke, Vom Privileg zum Urheberrecht: Die Entwicklung des Urheberrechts in Deutschland bi (...)

15Apart from considerations of reputation, the attribution of the work gives the author the occasion to supervise the integrity of the work. Complaints about the abridgement or the mutilation of texts are age-old. Unauthorised alterations to a work were dangerous in times of censorship as authors could be held responsible for texts they had not written. In the thirteenth century Sachsenspiegel, a compilation of customary law and one of the first documents written in German, the author Eike von Repgow places a curse on those who dare to mutilate his text.42 Martin Luther’s 1541 Warning to the Printers (a preamble to his bible translation), is another famous example:

  • 43 ABer das mus ich klagen vber den Geitz / Das die geitzigen Wenste vnd reu=bische Nachdrücker mit v (...)

But this I must lament about avarice, / that these greedy and rapacious pirate printers are handling our work carelessly. For, seeking only their own profit, / they don’t care much about the accuracy of what they are reprinting, / and it has often happened to me / when reading their reprinted text / that I found it so full of errors / that in many places I couldn’t recognise my own work / and had to correct it from scratch.43

Conclusion

  • 44 For a review of the German reluctance to conceive copyright as an economic right, see Ansgar Ohly, (...)
  • 45 Gerhard Schricker, then Director of the Munich Max-Planck-Institute for IP, famously castigated th (...)

16In response to the crisis of a copyright regime that is perceived by many as a system of overprotection, shielding the investments of existing right owners, we need to recover the perspective of a personal individual right or droit d’auteur.44 However, a more balanced approach to copyright, beyond the Anglo-American economic rationale, must not give rise to a new fundamentalism that criticises any critical evaluation of author interests as a violation of sacred principles of personal property.45 A re-reading of the history of author’s rights in the Kantian tradition, and in the German jurisprudence of the nineteenth century, suggests that personal interests of authenticity are compatible with a more permissive conception of copyright.

17First, understanding author’s rights as personal rights may explain key aspects of open access distribution models that emphasise attribution and stringent norms on modifications. Secondly, defining author’s rights as personal rights helps to link copyright to the creator and is widely understood by users. If we accept the conception of copyright as a personal right, many problems of overprotection within the copyright regime are cast in a new light. The protection of neighbouring rights, in contrast, will have to be analysed in economic terms only, removing the conflation of author and investment interests.

Notes

1 An earlier version of this article was published under the title ‘Common Access and Creative Commons – Copyright History as a Helpful Source?’, International Review of Industrial Property and Copyright Law, 6 (2008), 679-88. This article has been included within this collection with the kind permission of the editors of the IIC.

2 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994.

3 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), adopted 1996. The WCT entered into force on 6 March 2002; the WPPT entered into force on 20 May 2002.

4 German courts have interpreted copyright limitations narrowly in the past, stating that exclusivity is the principle and free use the exception, see BGH (German Supreme Court) in BGHZ, vol. 50, p. 147 (p. 152) – Kandinsky I; vol. 116, p. 305 (p. 308); vol. 154, p. 260; with critique, however, German Constitutional Court (BVerfG), Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 2001, p. 149 – Germania III. It is disputed whether copyright limitations may be set aside by contractual provisions or technical protection measures, see Schack, ’Schutz digitaler Werke vor privater Vervielfältigung – zu den Auswirkungen der Digitalisierung auf § 53 UrhG’, ZUM, (2002), 497 (p. 502).

5 The Free Software Foundation was established in 1985: http://www.fsf.org/philosophy [accessed 2/3/2010].

6 Primary Sources.

7 Karl-Nikolaus Peifer, Individualität im Zivilrecht (Individuality in Private Law) (Tübingen: Mohr Siebeck, 2001), p. 397.

8 Johann Stephan Pütter, Der Büchernachdruck nach ächten Grundsätzen des Rechts (Göttingen: Vandenhoek, 1774); see ’Pütter, The Reprinting of Books’, Primary Sources. Immanuel Kant, ’Von der Unrechtmäßigkeit des Büchernachdrucks’, Berlinische Monatsschrift, 5 (1785), 403-17; see: ’Kant, On the Unlawfulness of Reprinting (1785)’, Primary Sources. Johann Gottlieb Fichte, ’Beweis der Unrechtmäßigkeit des Büchernachdrucks. Ein Räsonnement und eine Parabel’, Berlinische Monatschrift, 21 (1793), 443-82; ’Fichte, Proof of the Unlawfulness of Reprinting (1793)’, Primary Sources.

9 Leopold Joseph Neustetel, Der Büchernachdruck nach Römischem Recht betrachtet (Heidelberg: Groos, 1824), p. 30; see ’Neustetel: The Reprinting of Books (1824)’, Primary Sources. Johann Kaspar Bluntschli, Deutsches Privatrecht, 2 vols (München: Literarisch-artistische Anstalt, 1853-4), I, p. 188; see ’Bluntschli: On Author’s Rights (1853)’, Primary Sources. Karl Gareis, Das juristische Wesen der Autorrechte sowie des Firmen-und Markenschutzes (1877), pp. 185, 187 et seq; see ’Gareis: Juridical Nature of Author’s Rights (1877)’, Primary Sources. Josef Kohler, Das Autorrecht – eine zivilistische Abhandlung (Jena: Fischer, 1880), p. 2; see ’Kohler: Author’s Right (1880)’, Primary Sources.

10 Lawrence Lessig, The Future of Ideas. The Fate of the Commons in a Connected World (New York: Random House, 2001), p. 37.

11 Reto M. Hilty, Urheberrecht in der Informationsgesellschaft (Copyright in the Information Age) (Zeitschrift für Urheber – und Medienrecht Sonderheft, 2003), pp. 983-1005. Rainer Kuhlen, ’Wem gehört die Information im 21. Jahrhundert?’, in Wem gehört die Information im 21. Jahrhundert? (Who Owns Information in the 21st Century?), ed. by Thomas Dreier and Alfred Büllesbach (Köln: Schmidt, 2004), pp.1-9.

12 Some of the examples developed at the University of Cologne are described in Karl-Nikolaus Peifer and Gudrun Gersmann, Forschung und Lehre im Information-szeitalter – zwischen Zugangsfreiheit und Privatisierungsanreiz (Research and Learning in the Information Age – Between Freedom of Access and Exclusivity) (Berlin: de Gruyter, 2007), p. 9.

13 Gerhard Prosi, Ökonomische Theorie des Buches (Economic Theory of the Book) (Düsseldorf: Bertelsmann, 1971); William M. Landes and Richard A. Posner, ’An Economic Analysis of Copyright Law’, Journal of Legal Studies, XVIII (1989), 325-63.

14 Karl-Nikolaus Peifer, ’Urheberrechtliche Rahmenbedingungen von Open-Access-Konzepten’ (Copyright Framwork for Open-Access-Concepts), in Forschung und Lehre im Informationszeitalter, ed. by Karl-Nikolaus Peifer and Gersmann (Berlin: de Gruyter, 2007), p. 39; see also Karl-Nikolaus Peifer, ’Zur rechtlichen Problematik des Elektronischen Publizierens’ (Legal Problems of Electronic Publishing), in CLIO (Hg.), Elektronisches Publizieren in den Geisteswissenschaften: Erfahrungen, Probleme, Perspektiven (Berlin: CLIO, 2007), pp. 172-90. (Available online at: http://edoc.huberlin.de/histfor/10_I/. [accessed 2/3/2010]).

15 See the Report for the US-House of Representatives: H.R. Rep No. 222, 60th Cong. 2d Sess 7 (1909), quoted in Meville B. Nimmer and David Nimmer, Nimmer on Copyright, 11 vols (Matthew Bender), VIII, App. 13: ’The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings’ (p. 10); ’The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given’ (p. 11). See also the Senate Rep No. 1108, 60th Cong. 2d Sess. 7 (1909).

16 Donaldson v. Becket (1774) Eng. Rep. 837 (H.L.); see also ’Donaldson v. Becket (1774)’, Primary Sources.

17 Robert Dittrich, ’Der Werkbegriff – sinnvolle Ausdehnung oder Denaturierung?’ (The Notion of Copyrightable work – Reasonable Extension or Denaturation), in Woher kommt das Urheberrecht?, ed. by Robert Dittrich (Vienna: MANZ’sche, 1988), pp. 214-37 (p. 218).

18 Mark Rose, The Author as a Proprietor. The Invention of Copyright (Cambridge, MA: Harvard, 1993); John Feather, ’Authors, Publishers and Politicians: The History of Copyright and the Book Trade’, European Intellectual Property Review, 12 (1988), 377-80.

19 Richard Rogers Bowker, Copyright: Its History and Its Law (Boston and New York: Hougton Mifflin Company, 1912), pp. 19 et seq.

20 See: Ronan Deazley, ’Commentary on the Stationers’ Charter (1557)’, Primary Sources; Albert Osterrieth, Geschichte des Urheberrechts in England (Leipzig, 1895), reprinted in UFITA, 131 (1996), 171 (p. 192); William Cornish and David Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (London: Sweet & Maxwell, 2007), pp. 375-8.

21 Thomas Edward Scrutton, The Law of Copyright, 4th ed. (London: William Clowes & Sons, 1903), pp. 10 et seq.

22 See the complaint by printer Roger Ward, in John Day v. Roger Ward and William Home (1582), in A Transcript of the Registers of the Company of Stationers of London, 1557-1640, 5 vols, ed. by Edward Arber (London, 1875-94), II, pp. 753-69.

23 The Star Chamber Decree of 1566 prohibited the publication of any book contrary to ’the form and meaning of any ordinance, prohibition, or commandment, contained or to be contained in any of the Statutes or Laws of the Realm, or in any Injunctions, Letters patents, or ordinances, passed or set forth, or to be passed or forth by the Queens most excellent Majesty’s grant, commission, or authority’. See: Arber, I, p. 322; ’Star Chamber Decree (1566)’; ’Star Chamber Decree (1586)’; and ’Star Chamber Decree (1637)’, all in Primary Sources.

24 See for example ’An Ordinance for the Regulation of Printing (1643)’, Primary Sources.

25 Osterrieth, pp. 171, 251.

26 This is already shown by the title of the Act: An Act for Preventing Abuses in Printing Seditious, Treasonable, and Unlicensed Books and Pamphlets, and for Regulating of Printing and Printing Presses, 1662, 13 & 14 Car. II, c. 33; see ’Licensing Act (1662)’, Primary Sources.

27 John Milton, Areopagitica, With a Commentary by Sir Richard C. Jebb (Cambridge: Cambridge University Press, 1918), p. 6: ’[T]hat other clause of licensing books […] will be primely to the discouragement of all learning, and the stop of truth, not only by disexercising and blunting our abilities, in what we know already, but by hindering and cropping the discovery that might be yet further made, both in religious and civil wisdom’. See also Rose, p. 32 (concerning John Locke’s position).

28 An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors of Purchasers of such Copies, During the Times therein mentioned, 1710, 8 Anne, c. 19; see ’Statute of Anne (1710)’, Primary Sources.

29 See also Rose, p. 48.

30 Augustine Birrell, Seven Lectures on The Law and History of Copyright in Books (London: Cassell and Company, 1899), pp. 21-2; but see Cornish and Llewelyn, p. 377, who suggest that the Statute was not intended to abridge existing rights.

31 See the confirming judgment in Jeffrey v. Boosey (1854) 4 HLC 815, 10 ER 681; see also ’Jeffreys v. Boosey (1854)’, Primary Sources.

32 See Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), p. 188: ’The dominant idea of copyright underlying the state statutes was the idea of copyright as an author’s right’; in general, see pp. 180-96.

33 Wheaton v. Peters, 8 Pet. 591, 8 L.Ed. 1055 (U.S. 1834). See also: ’Wheaton v. Peters (1834)’, Primary Sources; Howard B. Abrams, ’The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’, Wayne Law Review, 29 (1983), 1119-91, (pp. 1178 et seq).

34 Osterrieth, pp. 103, 159. For further details see Peifer, Individualität im Zivilrecht, pp. 70 et seq.

35 See: Jochen Dieselhorst, Was bringt das Urheberpersönlichkeitsrecht? Urheberpersönlichkeitsschutz im Vergleich Deutschland – USA (Why Moral Rights? Moral Rights in Germany and the USA), (Frankfurt/Main: Lang, 1994), pp. 8 et seq; György Boytha, ’Whose Right is Copyright?’, GRUR Int., (1983), 379-85 (p. 380).

36 Jane C. Ginsburg, ’A Tale of Two Copyrights: Literary Property in Revolutionary France and America’, in Of Authors and Origins: Essays on Copyright Law, ed. by Brad Sherman and Alain Strowel (Oxford: Clarendon Press, 1994), pp. 131-58.

37 Jeremy Phillips, Robyn Durie and Ian Karet, Whale on Copyright, 5th ed. (London: Sweet & Maxwell, 1997), p. 12: ’Put in cruder terms, the author’s right protects the author’s message while copyright indiscriminately protects both the message and the medium by which it is disseminated’. See also Jeremy Phillips and Alison Firth, Introduction to Intellectual Property Law, 4th ed. (London: Butterworths, 2001), p. 128: ’The distinction [between copyright and droit d’auteur] reflects not so much a matter of terminological chance as a profound chasm between common law and civil law approaches to copyright. Common law protects a work because it can be copied with undesirable results, while civil law protects an author because he has a moral entitlement to control and exploit the product of his intellectual labour’.

38 Yochai Benkler, ’From Consumers to Users: Shifting the Deeper Structures of Regulation’, Federal Communications Law Journal, 52 (2000), 561-79 (pp. 562-3).

39 Friedemann Kawohl and Martin Kretschmer, ’Johann Gottlieb Fichte, and the Trap of Inhalt (Content) and Form: An information perspective on music copyright’, in Copyright and the Production of Music, special issue of Information, Communication and Society, 12 (2009), 41-64.

40 Zemon Davis, ’Beyond the Market: Books as Gifts in Sixteenth-Century France’, Transactions of the Royal Historical Society, 5th ser., 33 (1983), 69-88 (p. 87).

41 Roland Barthes, ’The Death of the Author’, in Image, Music, Text, ed. by Stephen Heath (London: Fontana, 1977), p. 142.

42 Ludwig Gieseke, Vom Privileg zum Urheberrecht: Die Entwicklung des Urheberrechts in Deutschland bis 1845 (Baden-Baden: Nomos, 1995), p. 10.

43 ABer das mus ich klagen vber den Geitz / Das die geitzigen Wenste vnd reu=bische Nachdrücker mit vnser Erbeit vntrewlich vmbgehen. Denn weil sie allein jren Geitz suchen / fragen sie wenig darnach / wie recht oder falsch sie es hin nachdrücken / Vnd ist mir offt widerfaren / das ich der Nachdrücker druck gelesen / also verfelschet gefunden / das ich meine eigen Erbeit / an vielen Orten nicht gekennet / auffs newe habe müssen bessern. ’Luther’s ”Warning to the Printers” (1541)’, Primary Sources. Friedemann Kawohl in his commentary on this text analyses this as a ’moral rights argument’.

44 For a review of the German reluctance to conceive copyright as an economic right, see Ansgar Ohly, ’Urheberrecht als Wirtschaftsrecht’ (Copyright as Economic Law), and Haimo Schack, ’Die Rechtfertigung des Urheberrechts als Ausschließlichkeitsrecht’ (Legitimation of Copyright as Exclusive Right), both in Geistiges Eigentum: Schutzrecht oder Ausbeutungstitel? (Intellectual Property: Protection Title or License to Exploit?), ed. by Otto Depenheuer and Karl-Nikolaus Peifer (Berlin: Springer, 2008), pp. 141-61 (Ohly), and pp. 123-40 (Schack).

45 Gerhard Schricker, then Director of the Munich Max-Planck-Institute for IP, famously castigated the first copyright green paper of the European Commisson, Copyright and the Challenge of Technology, as an ’Urheberrecht ohne Urheber’ (droit d’auteur sans auteur) because it dared to review economic outcomes for copyright policy. Stellungnahme der Deutschen Vereinigung für gewerblichen Rechtsschutz und Urheberrecht, GRUR (1989), 183; Schricker, IIC (1989), 466. For a critique, see Martin Kretschmer, ’Digital Copyright: The End of an era’, European Intellectual Property Review, 25 (2003), 333-41.