Jan 032009

At the Copyright History conference I attended in London last March I had the extraordinary privilege of seeing with my own eyes, mere inches away, the original copy of the Statute of Anne.

The Statute of Anne is one of the founding pillars of modern US and UK copyright law, reflecting a sea change in attitude about how the copy right should be handled. Before it came along, English law (not to be confused with Scottish law, whose own system already bore modern copyright features) granted monopoly in the copy right to a printing monopoly. It was fitting, in fact, that the Copyright History symposium took place in a hall of the Stationers’ Company, a powerful company of the 17th century that then had near-exclusive license to print.

But it wasn’t just that there was a printing monopoly: it was that this monopoly was granted by the government. Consequently the government could impose a kind of censorship by controlling, through the printing license, what ideas could be published. Naturally such control limited discourse, and by 1695, under political pressure, it finally gave way for good. In 1710 the Statute of Anne came into being instead, which, while preserving a few characteristics of the earlier licensing system, mostly turned it entirely on its head. Now, instead of using printing licenses as a means of controlling discourse, by its very design the Statute of Anne was meant to stimulate it.

And it did. Right away newspapers proliferated, public houses exploded with popularity (as they had during earlier periods when licensing statutes had lapsed) and democratic ideals flourished as tight government control over ideas yielded. But while the structure of modern copyright law today looks much as it did following the Statute of Anne, its limiting effects on discourse now seem more similar to the period that preceded it.

There were a few key differences between the Statute of Anne and the licensing statutes before it. For instance, as referenced above, the Statute of Anne was purposefully “[a]n act for the encouragement of learning,” whereas the Licensing Act of 1662 was “[a]n act for preventing the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets.” One was about the advancement of knowledge, and the other was about control.

The Statute’s method for advancing discourse involved fundamentally shifting the role of the author. In the days prior to it, authors were largely relegated to subordinate figures, barely mentioned in association with the work. Instead full authority for the work was usurped by the printer, who, as licensed by the government, deemed it acceptable to be published. With the Statute of Anne, however, authors became central to the whole system. They retained full authority for the work and as such retained rights in controlling its publication.

These rights were of limited duration, however, and the Statute of Anne further enhanced public discourse by creating a public domain. In fact, the reason the Statute of Anne posed any limits at all was simply to address the problem of market failure: that no ideas would be contributed to public discourse at all if it were economically impossible for authors to do so.

Unfortunately, however, while in the early 18th century focusing on protecting and enhancing the rights of authors facilitated the growth of public discourse, today it does the exact opposite, putting so much emphasis on the rights of the author as owner of the work that it has the effect of choking off what discourse it might spawn. Through needlessly lengthy monopolies and overly-expansive interpretations of the reach of their rights, history seems to be repeating itself, returning us to the limitations of the licensing era and forsaking the promise of the Statute of Anne.

For these authors’ rights get their teeth from government. They are government-granted monopolies with government-sanctioned reaches. With those rights, and with the government’s blessing, authors can limit ideas’ consumption, limiting their reach and influence long after economic necessity would justify, and just as the licensed printers once did. Back then the Stationers’ Company had powers of search and seizure and could persecute competing printers. Given the power of subpoenas, modern infringement lawsuits look much the same.

So we find ourselves at the turn of the 21st century at the same crossroads we were at 300 years earlier, faced with a choice in how we use government power. Do we use it to enable public discourse, or to control it? For although our modern copyright systems trace their lineage back to the author-focused structure of the Statute of Anne, that basic structure alone does not determine which value is fostered. It’s the underlying policy value that needs to survive, yet unfortunately today, while the document itself carefully encased under glass has, the historic change it was to herald has not.

This essay was inspired by Mark Rose‘s presentation at the Copyright History conference addressing the import of Milton’s Areopagitica.

 Posted by at 12:18 pm

  3 Responses to “The Statute of Anne”

  1. Great post. (I’m struck a bit by the ironic turn of phrase “the original copy of the Statute of Anne.”)
    Now, would you want to tackle that same theme w/r/t other forms of IP, such as TM?

  2. Very interesting analysis. I think you hit the nail right on the head. I also find it ironic that this “emphasis on the rights of the author as owner of the work” is, in practice, actually emphasis on the rights of the owners of the work who pressured the author into turning over the rights, much like the original printing companies.

  3. […] to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the "Statute of Anne," a law passed in the early 18th Century England to replace an earlier law that gave the government […]

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