11 April 2010

Post-Birthday-Party Hangover

I just have a birthday hangover today. Yesterday was the 300th birthday of the Statute of Anne, 8 Anne ch. 19 — the first modern copyright statute, and the cause of all of the current struggles between writers and their patrons.

That's right: Absent the Statute of Anne, we wouldn't have GBS litigation, or questions over who "owns" Superboy/man or Captain America, or who is entitled to what share of what revenue from the Spider-Man films, or even when cheesy ad campaigns infringe (or do not infringe) on Saturday-morning live-action cartoons. The Statute of Anne broke from tradition by assigning the initial, primary right in a work to the creator of that work — not to the patron of that work.

On one hand, this reflected technological change, specifically the printing press. Prior to Gutenberg's development of the press with movable type (and not-much-later importation of that development into England by William Caxton), reproduction of words was at the image level, and required hand-creation of either the pages themselves (with pen and ink, one at a time) or a woodcut image of the entire page for use on precessors of Gutenberg's press. The press with movable type changed the unit of reproduction from entire pages to individual letters, words, and sentences... and made quotation of others "in print" eminently possible. For a repressive government — and don't kid yourselves; perhaps only North Korea, Myanmar, and Iran are as repressive as the "average" European government of the sixteenth and seventeenth centuries — this led, of course, to serious musing on how to control dissent. The English solution was the Company of Stationers, which was formally chartered and granted a Crown monopoly in 1566 by the Star Chamber and had been in operation for some time previously.

The Company of Stationers served to control dissent reasonably well, but did less well with commercial efforts. This led, over the next century and a half, to a number of other statutory provisions that presumed — with greater and lesser degrees of both specificity and clarity — that the printer owned both the individual copies and the inchoate content of what he printed. These various statutes expired in 1694(ish), leading to a fifteen-year-long battle in Parliament — shortly after the Glorious Revolution. Many MPs of the 1690s and early 1700s had been personally insulted/imprisoned/etc. by one side or the other (and occasionally both) during and shortly after the reign of James II; this led to quite a bit of continued suspicion of the monopoly status of the Company of Stationers, with such recent examples of its "misuse". It certainly didn't hurt that one of the non-Parliamentary leaders of opposition to the Company of Stationers' monopoly was John Locke.

In turn, this led to a devolution of who had the monopoly. Instead of assigning the monopoly to the printer, it was assigned to the creator in the Statute of Anne. It took another sixty-odd years, until Donaldson v. Becket (4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774)) to stamp out the remnants of patron control (although the modern work-for-hire doctrine is doing its best to revive it).

The key point of this hangover is this: Absent the Statute of Anne, there would be no non-upper-class freelance creators of intellectual property. The Statute of Anne's "creator-primacy" meme was later adopted in various patent statutes; even now, in the era of "big pharma" and "big industry" controlling patents, we can legitimately use "IBM's patent" as only a shorthand — the application is made in the name of the natural-person inventor(s). The greatest danger is that multiform and collaborative works are not so clearly and neatly treated... as the comic-book-character litigation noted a few paragraphs above epitomizes.

Nonetheless, open your bleary eyes and toast John Locke for making freelance creation of works economically (not to mention politically) possible. It's not always viable, but that's an argument for another time... and a warning that Millar has not disappeared from copyright law, or at least not as much as it should have.