Version classiqueVersion mobile
OpenEdition Books

Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

14. The Significance of Copyright History for Publishing History and Historians

John Feather

Texte intégral

Marley was dead to begin with. There was no doubt about that.
(Dickens, A Christmas Carol)

1But of course there was – or there was doubt about what his ’death’ actually meant. Similarly, there is no doubt that copyright is a significant issue in the publishing industry, and therefore in the history of publishing, and therefore for the publishing historian. Or is there?

  • 1 Donaldson v. Becket (1774) Hansard, 1st ser., 17 (1774), 953-1003, Primary Sources.

2In the history of copyright in Britain, it has long been accepted that one of the key sequences of events was a series of cases in the courts in England and Scotland between 1765 and 1774, culminating in Donaldson v. Becket in 1774.1 It is argued that the House of Lords’ decision in this case apparently settled the argument about whether common law rights overrode the limitations on rights embodied in the 1710 Copyright Act. In the course of this process, what had been essentially a trade right was transformed into an author’s right.

  • 2 See Kathy Bowrey, ’Who’s Writing Copyright History?’, European Intellectual Property Review, 18, 6 (...)

3This is of course a gross over-simplification of a complex narrative. Scholars have addressed the details of these events and their significance from many different disciplinary traditions, and with subtly different emphases in their conclusions.2 For a legal historian:

  • 3 Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eight (...)

Copyright [...] was never simply concerned with the bookseller or the author. What emerges is that copyright [...] was primarily defined and justified in the interests of society and not the individual. A statutory phenomenon, copyright was fundamentally concerned with the reading public [...]. The pre-eminence of the common good as the organising principle upon which to found a system of copyright regulation is revealed.3

4For the economic historian:

  • 4 William St Clair, The Reading Nation in the Romantic Period (Cambridge: Cambridge University Press (...)

The text-based culture [...] was thus simultaneously centralised, controlled, and made more uniform, in a regime of regulated printed-book production that was both financially and culturally self-reinforcing.4

5The historian of publishing has a different perspective:

  • 5 John Feather, A History of British Publishing, 2nd ed. (London: Routledge, 2006), p. 134.

The decision in Donaldson v. Becket marked a discontinuity in the history of British publishing, not only because it forced publishers to change the way in which they conducted their business, but also [...] [it] led to a new understanding of the role of the author in the book trade.5

6An historian of bookselling acknowledges that there was long-term change, but adds that:

  • 6 James Raven, The Business of Books: Booksellers and the English Book Trade 1450-1840 (New Haven an (...)

[...] those booksellers who earlier defended their associations by appeal to the 1710 Copyright Act actually relied on custom and consensual practice as much as appeals to common law, property rights, and author’s agreements.6

7Despite differences of emphasis, these are essentially four ways of saying the same thing: that Donaldson v. Becket was a turning-point after which nothing was ever quite the same again.

8But was it? There is another view. A literary historian, focussing on the emergence of the concept of the author as creator, concludes that:

  • 7 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press (...)

Donaldson v. Becket is conventionally regarded as having established the statutory basis of copyright, and of course it did. But [...] perhaps it should be simultaneously regarded as confirming the notion of the author’s common-law right.7

9An intellectual historian who has delved deeply into book trade practices in his analysis of the Scottish Enlightenment rejects the whole notion of significant change in a complex argument to which full justice cannot be done by a brief quotation, but which is perhaps summarised in this statement:

  • 8 Richard B. Sher, The Enlightenment and The Book: Scottish Authors and Their Publishers in Eighteen (...)

[A]fter 1774, the leading London bookseller-publishers continued to assert their pretended right of perpetual copyright by enforcing, to the extent that they were able to do so, the principle of ’honorary copyright’ within the trade.8

10The distinction which is being drawn here is between the apparent out-come of the legal processes and the actual practices in the book trade and the nascent publishing industry.

  • 9 Ronan Deazley, ’Statute of Anne (1710)’, Primary Sources.

11The ’customs of the trade’ is a phrase which is sometimes still heard today in the book trade, and was certainly familiar in the late eighteenth century and for long afterwards. It was a concept which was particularly pertinent to the copyright issue, ’the literary property question’ as contemporaries tended to call it, because long after the passage of the 1710 Act many bookseller-publishers continued to behave as if the only parts of the statute which were important were those of which they approved. As Ronan Deazley rightly points out in his commentary on the Act on the Primary Sources on Copyright website,9 the statute is full of ill-defined terms and ambiguous language which allowed for a wide range of interpretations even if the gist of the law’s intention might be thought to be clear. As a consequence, the book trade was able to argue, without straining their credibility too far, that perpetual copyright existed not only for works written and published before 1710, but also for works subsequent to that date. They therefore continued to trade in those copyrights, or shares in them, and to assume that as owners they had unique and fully protected rights. Donaldson v. Becket finally resolved this issue in favour of a more literal interpretation of the statute: that rights were protected only for a period of time fixed by law, and that thereafter the work was in what was to come to be called the public domain.

12We need to consider why Parliament wrote the law in these terms. The title of the Act – ’For the Encouragement of Learning’ – gives a clue which has too often been ignored or treated as a cynical whitewash designed to conceal commercial greed. For the publishers, however, and hence for the historian of the trade, the issue is a very practical one. When a publisher ’buys’ a new book from an author, what exactly is being bought and sold? In the early history of the English book trade the answer to this question was reasonably clear, or would have been had it been posed. What was bought was the ’copy’, a manuscript containing the text of the work, so-called because it would become the printer’s ’copy’ from which the compositor would work when the type was being set. With the copy, the purchaser – the printer or bookseller – acquired whatever rights might be thought to subsist in its content. In effect, the author lost all control over it, and could expect no further income. The instances in which authors secured some continuing interest in their work through letters patent or similar devices are merely the exceptions which prove the rule.

13It is not my intention in this brief paper to recount the whole history of copyright in Britain. But I have started with this truncated account of a key period in its development because I think it forcefully illustrates the central argument in this paper: that an understanding of copyright – and an understanding of publishers’ understanding of copyright – is essential to an understanding of publishing history as a whole.

*****

  • 10 For the view of a distinguished literary scholar on this, see John Sutherland, ’Publishing History (...)
  • 11 Michel Foucault, ’What is an Author?’, in Michel Foucault, Language Counter-Memory, Practice, ed. (...)
  • 12 Robert J. Griffin, ’Anonymity and Authorship’, New Literary History, 30, 4 (1999), 877-95; John Mu (...)
  • 13 The locus classicus of this argument, which is still immensely influential, is A.S. Collins, Autho (...)
  • 14 Dustin Griffin, Literary Patronage in England 1650-1800 (Cambridge: Cambridge University Press, 19 (...)
  • 15 Sher, pp. 195-261.

14It may seem self-evident to say that the business of publishers is publication, and that therefore they need works which they can publish. Sometimes, however, it is, perhaps, so self-evident that it is not apparent at all in the writings of some book trade historians. But the faults are not all on one side. Although the balance has been somewhat redressed by recent scholarship, there is a long-standing tradition of writing the history of literary authorship with little acknowledgement and less understanding of the business of putting works into print.10 I am not now simply referring to such common myths as the alleged underpayment of Milton for Paradise Lost – in fact he did quite well for a long poem which did not fit the dominant literary zeitgeist of Restoration England – or Boswell’s unfounded suggestion that Johnson was in some way ill-rewarded for his Dictionary, a view which Johnson did not share. The problem is more deep-rooted: modern literary scholarship sometimes seems to theorise authorship to the point at which the ’author function’, to use Foucault’s telling phrase,11 has become depersonalised, and is in danger of being uncoupled from the intellectual and physical act of writing. In a sense, the long established tradition of anonymous publication – arising from many cultural and political motivations – may be thought at least partly to validate such an approach by its conscious rejection of the idea of the author as an identifiable individual with a unique name.12 But Foucault went further, and specifically identified the author-function with the creation of texts as ’objects of appropriation’, and therefore with the commercialisation of authorship. In the history of English authorship, this is normally supposed to have happened in the eighteenth century, as authors looked more to the book trade and less to patrons for their support.13 In effect, it is argued that the book trade replaced traditional patrons as the principal financial supporters of authors.14 Although this is broadly true, the process of change was more multifaceted than many traditional accounts would suggest, not least because there were many different channels of publication, some of which did not include the book trade at all.15

15Whatever terminology is used – whether Foucault’s language of ’appropriation’ or the more ideologically neutral ’commercialisation’ – it is undoubtedly the case that the profession of authorship in England was very different in 1800 from what it had been in 1700. When Scott disguised himself as ’The author of Waverley’, he was not only protecting his reputation as a lawyer, he was also colluding with his publisher in what had become a promotional device. When Defoe had concealed his authorship of some of his political pamphlets he did so in the hope – vain as it turned out – of avoiding the pillory or worse. But while it may have been rather safer to make one’s living from writing at the turn of the nineteenth century, it was not yet entirely respectable, especially for the growing band of women writers of fiction. But it was certainly possible. Part of the explanation for this change lies in the exploitation of the 1710 Copyright Act and the consequences of Donaldson v. Becket. By recognising and exploiting the fact that the law supported the view that an author was creating a piece of property which could be assigned a financial value, it became possible to move away from private to commercial patronage. A successful writer – that is, one whose books were saleable – could therefore hope to be able to exist on the income from his or her literary works.

  • 16 David Foxon, Pope and the Early Eighteenth-century Book Trade (Oxford: Clarendon Press, 1991).
  • 17 John Feather, ’The Book Trade in Politics: The Making of the Copyright Act of 1710’, Publishing Hi (...)
  • 18 Deazley, ’Statute of Anne (1710)’; Deazley, On the Origin of the Right to Copy, pp. 44-5.

16Practices did not immediately change on 10 April 1710, or for some years thereafter, but the Act provided a crucial framework within which both publishers and authors could develop a more sophisticated understanding of the commercial transactions which took place between them. At one end of the spectrum, this led to Alexander Pope manipulating booksellers, printers and indeed subscribers to maximise his profits from his own works.16 It also, however, provided the basis on which publishers could re-assure themselves that they were obtaining a protected property, and authors could negotiate on that basis. This is where the histories of publishing and authorship really come together. The law of copyright provides a link between the two because it is the context within which the financial relationships between authors and publishers are defined and – most importantly – protected. The 1710 Act marked the beginning of the provision of a statutory framework for this process; it remains my view that it is primarily a booksellers’ Act, sought by them and heavily influenced by their commercial interests.17 While it is true, as Ronan Deazley points out,18 that it did not solve all of the trade’s problems, it did provide at least a temporary solution to their immediate concern – the protection of rights in literary property – thus giving them the confidence to buy rights from authors, and to trade in those which they already owned.

  • 19 Sher, pp. 355-6; M. Pollard, Dublin’s Trade in Books 1550-1800 (Oxford: Clarendon Press, 1989), pp (...)
  • 20 Jeffrey D. Groves, ’Courtesy of the Trade’, in A History of the Book in America. Volume 3. The Ind (...)
  • 21 Millar v. Taylor (1769) 4 Burr. 2303.
  • 22 On this very important dimension of the trade, see: St. Clair, pp. 122-39; and Thomas F. Bonnell, (...)

17We should not, however, confine ourselves to a narrowly legalistic understanding of copyright. Those ’customs of the trade’ that were mentioned earlier remained – and up to a point remain – as important as the law in offering a framework for the relationships between authors and publishers and the protection of their property. What is sometimes called ’honorary copyright’ – basically an unwritten agreement not to reprint works already published by others even when no statutory copyright subsisted – is found in Scotland and perhaps Ireland in the later eighteenth and early nineteenth centuries,19 although it was essentially unenforceable. Such customs were not confined to Britain. In the nineteenth century, American publishers referred to the ’courtesy of the trade’;20 they meant that they would not compete with each other’s reprints of British titles, ignoring the fact, as they were fully entitled to do, that in British eyes any such reprint was a piracy. The interest of this lies in the empirical recognition, even in the unrestricted and unregulated competitive ethos of nineteenth century America, that some form of protection is essential to the practice of publishing. The reason for this lies in the fundamental economics of the trade. Very few titles can genuinely sustain competition between editions; the market is too small, and the cost of making and marketing an edition proportionately too great. With rare exceptions, there is no incentive for publishers to compete at this level. It is to some extent the exceptions which have driven the development of the law. The works which were the primary focus of Millar v. Taylor,21 Donaldson v. Becket and the other eighteenth century English and Scottish cases were the bestsellers of their day, beginning with Thomson’s Seasons and in due course encompassing the popular steady-sellers from the seventeenth and eighteenth centuries which were the core of the reprint trade.22 For the great majority of bookseller-publishers who were issuing single editions of new books, the law was little more than a guarantee of rights which no-one seriously sought to infringe.

  • 23 Cyprian Blagden, ’The English Stock of the Stationers’ Company: An Account of its Origins’, The Li (...)
  • 24 Arnold Hunt, ’Book Trade Patents, 1603-40’, in The Book Trade and its Customers 1450-1900, ed. by (...)
  • 25 See for example Cyndia Susan Clegg, Press Censorship in Elizabethan England (Cambridge: Cambridge (...)

18With that guarantee, relationships developed within the book trade and between the publishers and the authors that determined the culture within which books were written and published. As that culture evolved from the seventeenth to the nineteenth centuries, it became increasingly commercial. It had not always been so. In the earliest days of the printed book trade in England, rights were effectively guaranteed only by grants from the Crown. The practical manifestations of this were to be found both in letters patent which protected individual titles or authors – which occasionally continued to be sought even after 1710 – and, most importantly, in the grants of rights in certain classes of books which were brought together as the English Stock of the Stationers’ Company at the very beginning of the seventeenth century.23 The patent rights in their various manifestations are not quite an alternative history of copyright,24 but they certainly represent a different tradition from that which is embodied in the development of commercial rights which was eventually to be formalised in the 1710 Act and its successors. All of these rights ultimately derived from the assumption that the Crown had the right to licence any work published in the kingdom – a well established legal principle25 – but the ways in which they developed were very different.

  • 26 Stationers’ Company v. Carnan (1775) 2 W. Bl. 1004. See also: Ronan Deazley, ’Stationers’ Company (...)

19It is not always remembered that just a year after Donaldson v. Becket, Common Pleas determined that the English Stock’s monopoly of almanac publishing was also unlawful.26 In a sense, this was a far greater break with the past than the end of the alleged common-law copyrights, for the patents went back deep into the history of the trade, several decades before commercial rights began to develop in the mid-1560s. Taking all of this together, however, it is clear that there were significant changes in the English book trade in the last three decades of the eighteenth century. Those changes, which are a pivotal point in the history of the trade as a whole and of publishing in particular, cannot be understood without an understanding of the chain of events which fundamentally transformed the contemporary understanding of the nature of the investments which publishers had made, and were continuing to make, in rights.

  • 27 Ibid.
  • 28 See John Feather, Publishing, Piracy and Politics. An Historical Study of Copyright in Britain (Lo (...)

20The development of copyright in Britain has been essentially pragmatic. Donaldson v. Becket facilitated the further evolution of a more entrepreneurial approach to publishing, but it did so only because that was already developing in the commercial world. The Stationers’ Company v. Carnan – the almanac case – merely confirmed the recognition of a new commercial environment.27 It was increasingly necessary to justify the existence of copyright in the face of the rapid evolution of free trade economic theories following the publication of the first edition of Smith’s Wealth of Nations in the same year as The Company of Stationers v. Carnan. Perpetual copyright was beyond recall. Yet the book trade’s tendency to favour cartels remained strong. Instead, the publishers and authors built an alliance to promote and defend laws which were in their mutual interest. When we look beyond 1774, and to the legislation which was eventually to displace the 1710 Act, we find that the authors increasingly take centre stage. The 1814 Copyright Act is the first piece of British legislation which explicitly acknowledges the role of the author, by linking the term of copyright to his or her lifetime.28 The same principle was embodied in the Act of 1842 which also introduced the concept of post mortem protection. Subsequent legislation, up to and including the 1988 Act, has continued to link copyright protection to the life and death of the author, while simultaneously running hard to keep up with the rapid development of a multiplicity of manifestations other than the printed word in which the author’s works can appear. From the development of performance rights in the early nineteenth century, to the music industry’s current travails, a combination of cultural fashion and techno-logical development has forced the law of copyright to remain a dynamic entity undergoing continuous change.

21For publishing historians, the impact of changes in the law and practice of copyright on the dynamic change which characterises the development of the British book trade between about 1780 and about 1820 is inseparable from the story which we are telling and trying to explain. The same is true – albeit to a lesser extent – at some other times. Occasionally, copyright issues break the surface, and at various points in the history of British publishing it is the dominant theme for the historian as it was for contemporaries. But for much of the time, it lies dormant or submerged, embodying a series of assumptions about how business can be effectively transacted, how commercial and cultural relationships can be defined and how products can be made and marketed. It is in those less tangible spheres that there lies its deeper significance for the historian of the trade.

Notes

1 Donaldson v. Becket (1774) Hansard, 1st ser., 17 (1774), 953-1003, Primary Sources.

2 See Kathy Bowrey, ’Who’s Writing Copyright History?’, European Intellectual Property Review, 18, 6 (1996), 322-9, for a review of the historiography up to the time of publication.

3 Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-century Britain (1695-1775) (Oxford: Hart Publishing, 2004), p. 226.

4 William St Clair, The Reading Nation in the Romantic Period (Cambridge: Cambridge University Press, 2004), p. 65.

5 John Feather, A History of British Publishing, 2nd ed. (London: Routledge, 2006), p. 134.

6 James Raven, The Business of Books: Booksellers and the English Book Trade 1450-1840 (New Haven and London: Yale University Press, 2007), p. 236.

7 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993), p. 112.

8 Richard B. Sher, The Enlightenment and The Book: Scottish Authors and Their Publishers in Eighteenth-century Britain, Ireland & America (Chicago and London: Chicago University Press, 2006), p. 20.

9 Ronan Deazley, ’Statute of Anne (1710)’, Primary Sources.

10 For the view of a distinguished literary scholar on this, see John Sutherland, ’Publishing History: A Hole at the Centre of Literary Sociology’, Critical Inquiry, 14, 3 (1988), 574-89.

11 Michel Foucault, ’What is an Author?’, in Michel Foucault, Language Counter-Memory, Practice, ed. and trans. by Donald F. Bouchard (Ithaca, NY: Cornell University Press, 1980), pp. 124-7.

12 Robert J. Griffin, ’Anonymity and Authorship’, New Literary History, 30, 4 (1999), 877-95; John Mullan, Anonymity (London: Faber & Faber, 2008).

13 The locus classicus of this argument, which is still immensely influential, is A.S. Collins, Authorship in the Days of Johnson (London: Routledge & Kegan Paul, 1927).

14 Dustin Griffin, Literary Patronage in England 1650-1800 (Cambridge: Cambridge University Press, 1996).

15 Sher, pp. 195-261.

16 David Foxon, Pope and the Early Eighteenth-century Book Trade (Oxford: Clarendon Press, 1991).

17 John Feather, ’The Book Trade in Politics: The Making of the Copyright Act of 1710’, Publishing History, 8 (1980), 34-7.

18 Deazley, ’Statute of Anne (1710)’; Deazley, On the Origin of the Right to Copy, pp. 44-5.

19 Sher, pp. 355-6; M. Pollard, Dublin’s Trade in Books 1550-1800 (Oxford: Clarendon Press, 1989), pp. 179-81.

20 Jeffrey D. Groves, ’Courtesy of the Trade’, in A History of the Book in America. Volume 3. The Industrial Book 1840-1880, ed. by Scott E. Casper, Jeffrey D. Groves, Stephen W. Nissenbaum and M. Winship (Chapel Hill, NC: University of North Carolina Press, 2007), pp. 139-48.

21 Millar v. Taylor (1769) 4 Burr. 2303.

22 On this very important dimension of the trade, see: St. Clair, pp. 122-39; and Thomas F. Bonnell, The Most Disreputable Trade: Publishing the Classics of English Poetry 1765-1810 (Oxford: Oxford University Press, 2008), especially chapters 4 and 5.

23 Cyprian Blagden, ’The English Stock of the Stationers’ Company: An Account of its Origins’, The Library, 5th ser., 10 (1955), 163-85.

24 Arnold Hunt, ’Book Trade Patents, 1603-40’, in The Book Trade and its Customers 1450-1900, ed. by Arnold Hunt, Giles Mandelbrote and Alison Shell (Winchester: St Pauls Bibliographies, 1997), pp. 27-54.

25 See for example Cyndia Susan Clegg, Press Censorship in Elizabethan England (Cambridge: Cambridge University Press, 1997), pp. 6-14. For the views of a legal historian, see H. Tomás Gómez-Arostegui, ’What Copyright History Teaches us About Copyright Injunctions and the Inadequate-remedy-at-law Requirement’, Southern California Law Review, 81 (2008), 1197-280 (pp. 1213-5).

26 Stationers’ Company v. Carnan (1775) 2 W. Bl. 1004. See also: Ronan Deazley, ’Stationers’ Company v. Carnan (1775)’, Primary Sources; Cyprian Blagden, ’Thomas Carnan and the Almanack Monopoly’, Studies in Bibliography, 14 (1961), 23-43.

27 Ibid.

28 See John Feather, Publishing, Piracy and Politics. An Historical Study of Copyright in Britain (London: Mansell, 1994), pp. 122-48.

Auteur

Acheter