Call it the Magna Carta of copyright – England's Statute of Anne was born 300 years ago this weekend and, for the first time in history, conferred upon authors certain rights to the work. Unfortunately, says Duke Law School professor James Boyle, modern copyright law has strayed far from Anne's original intent.
BROOKE GLADSTONE: Call it the “Magna Carta of Copyright.” England’s Statute of Anne was born 300 years ago this weekend, and for the first time in history it conferred upon authors certain rights for their work. Prior to the Statute of Anne, only favored guilds licensed by the Crown had the legal right to publish and own work. Duke Law Professor James Boyle says the guilds, in effect, colluded with the Crown to control the printed word.
JAMES BOYLE: Their claim was, we need, effectively, limited monopolies, we need these guild controls because only with us, your reliable publishers working under these agreements, are you going to get the kind of responsible, non-heretical, non-insurrectionary press that you need. And, as a result, they were able to wring what was effectively economic benefit out of playing their part in what was really a censorship regime.
BROOKE GLADSTONE: But there were some strong objections to these licensing agreements. The poet John Milton wrote a famous speech, The Areopagitica, against licensing. He condemned it as “censorship that killed reason itself.”
JAMES BOYLE: Yes, absolutely, and Milton, one of the first and most eloquent defenders of freedom of expression. There was really this concern that this kind of prior restraint, as we call it today, was not needed, that instead you should just allow people to speak, to publish, and then, if they've been heretical, why, you could burn them later.
[BROOKE LAUGHS] John Locke’s concern was not just over the ability to speak in daring new ways. Locke’s concern was also that we're not just transmitting knowledge reliably, that effectively by giving control of publication of the Greek and Roman classics to these publishers that we didn't have access to good, low cost editions.
BROOKE GLADSTONE: These licensing rules expired in the 1690s, and newspapers grew in number and in influence, and this marks what many see as the birth of free speech in England.
JAMES BOYLE: The beginnings of what we would see as a kind of press that was actually bringing different perspectives on the news, the growth of the coffeehouses where people were discussing ideas without regard to social class, the formation of this idea of an educated public that received different sources of news with different slants, all of these we take for granted today but in many ways the sources of them are in this period of growth in the 18th century, both before and after the Statute of Anne, I should say.
BROOKE GLADSTONE: So, in 1710 came the statute named after the Queen of England. What was it intended to do?
JAMES BOYLE: Up to this point, what we would call “the copy right,” which in those days was actually two separate words, had been held by the publishers, the people in the guild who basically had the right to print a particular book. Like in the old days before airline deregulation, someone had the right to fly from LaGuardia to Buffalo -
BROOKE GLADSTONE: Mm-hmm.
JAMES BOYLE: - you had a right over a particular book, and that was your - the publisher’s copyright, and it was enforced by guild rules. The guild said, nobody else gets to print this! The Statute of Anne conjures in what we would think of as a much more modern market. Now the right is named as the author’s right. The author can choose who can copy it. An author, as we would look at it, will say, I'll go out and I'll find a publisher and I'll make my own deal, and I'll decide how and whether this work is going to be published.
BROOKE GLADSTONE: How did the publishers take this statute? Did they like it?
JAMES BOYLE: They did, in part. They had been lobbying for it. They wanted a form of literary property. Publishers that were centered in London who’d really controlled the business, almost monopolized it, wanted it because they wanted to deal with people they thought of as sort of pesky Scottish pirates who they thought were infringing on their business by printing books to which they had no right. The Scottish pirates, of course, said, you’re printing absurdly high-cost, very bad-quality editions and we are serving the noble forces of spreading knowledge. It’s almost like our wars in the digital domain today. To some of the publishers in London, the idea of getting this right, this statutory right for a limited time, might have seemed like a good idea because it said, hey, there is a right and it’s a legal right and I can force it against you. To the publishers who were the insurgents it might seem good because it said, now we're moving definitively away from this world of guilds, where someone has a monopoly right over a particular type or form of publishing. So I think both of them saw pluses and minuses in the statute.
BROOKE GLADSTONE: It seems like it probably was very good for authors, too. I mean, you have Daniel Defoe, Alexander Pope, Jonathan Swift flourishing.
JAMES BOYLE: Something that is really sort of fascinating to me is the way that our modern conception of the author as this central figure, this original creator, is really something that comes into sort of aesthetic prominence after the Statute of Anne. And it’s almost like the right exists, and then we sort of invent the aesthetics of originality and authorship.
[BROOKE LAUGHS] And the two sort of grow together throughout the 18th century.
BROOKE GLADSTONE: So let's try to trace a path from the Statute of Anne to our modern-day notion of copyright. When the United States was born, it wrote a copyright clause into its Constitution similar to the Anne law: “To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” So was this basically just a rewrite of the Statute of Anne?
JAMES BOYLE: It had a lot in common. The ideas of Milton and The Areopagitica and of Locke, those were incredibly important, particularly to Jefferson and to Madison. The second similarity is there was marked hostility in England towards the monopolies. And the original framers of the Constitution, particularly the framers of the intellectual property clause, were really concerned about monopolies. They worried about the state being able to hand out these lengthy grants of monopoly power to private individuals who thereafter could basically hold society hostage. Sadly, the latter concern has kind of waned in recent years.
[BROOKE LAUGHS] But at the time when they wrote the Constitution, they appeared to care about it a great deal.
BROOKE GLADSTONE: In the original 1790 Copyright Act, the author was given a term of 14 years in which no one else could encroach on their work. If they were still alive at the end of that period, [BROOKE LAUGHS] they could renew it for an additional 14 years.
JAMES BOYLE: You give the limited right to the author to encourage production and distribution, and then you end the term and you have this world of free competition. Sadly, in the world of copyright, at least, we've given up on that and we have continued to lengthen the term to a point which is now utterly ridiculous. Copyright today lasts for your life, plus 70 years. It’s very hard to incentivize dead people to produce new things, but Congress apparently believes that it can.
BROOKE GLADSTONE: [LAUGHING] Well, what you’re saying is that if the idea here is to promote our intellectual lives and educate people, extending the copyrights of dead people is not likely to lend itself to that effort.
JAMES BOYLE: The tragic thing is that the people who wrote the Statute of Anne and the people who wrote the U.S. Constitution really thought the copyright’s goal was about promoting access to knowledge. The idea of a limited term, of holding copyright short, that was central to that notion. That’s how we disseminated the ideas. And, of course, since lots of works are commercially unavailable, and we don't know who the copyright holders are – we can't find them, they're so-called “orphan works” – in many cases copyright acts as a fence, which means you can't distribute works. Even if you wanted to pay, you can't pay. There’s no one you can pay to make a new edition, to make a movie out of it. In this case, it’s a one-way valve. Copyright takes the stuff in, almost like a black hole, locks it up and now you can't get it out. This is exactly the opposite of the idea behind the U.S. Constitution and also, I think, behind one of the, the animating impulses of the Statute of Anne, which is let's promote the flourishing of human creativity.
BROOKE GLADSTONE: Jamie, thank you very much.
JAMES BOYLE: My pleasure. BROOKE GLADSTONE: James Boyle is a law professor at Duke University.