B. Zorina Khan, Bowdoin College
Introduction
Copyright is a form of intellectual property that provides legal protection against unauthorized copying of the producer’s original expression in products such as art, music, books, articles, and software. Economists have paid relatively little scholarly attention to copyrights, although recent debates about piracy and “the digital dilemma” (free use of digital property) have prompted closer attention to theoretical and historical issues. Like other forms of intellectual property, copyright is directed to the protection of cultural creations that are nonrivalrous and nonexclusive in nature. It is generally proposed that, in the absence of private or public forms of exclusion, prices will tend to be driven down to the low or zero marginal costs and the original producer would be unable to recover the initial investment.
Part of the debate about copyright exists because it is still not clear whether state enforcement is necessary to enable owners to gain returns, or whether the producers of copyrightable products respond significantly to financial incentives. Producers of these public goods might still be able to appropriate returns without copyright laws or in the face of widespread infringement, through such strategies as encryption, cartelization, the provision of complementary products, private monitoring and enforcement, market segmentation, network externalities, first mover effects and product differentiation. Patronage, taxation, subsidies, or public provision, might also comprise alternatives to copyright protection. In some instances “authors” (broadly defined) might be more concerned about nonfinancial rewards such as enhanced reputations or more extensive diffusion.
During the past three centuries great controversy has always been associated with the grant of property rights to authors, ranging from the notion that cultural creativity should be rewarded with perpetual rights, through the complete rejection of any intellectual property rights at all for copyrightable commodities. However, historically, the primary emphasis has been on the provision of copyright protection through the formal legal system. Europeans have generally tended to adopt the philosophical position that authorship embodies rights of personhood or moral rights that should be accorded strong protections. The American approach to copyright has been more utilitarian: policies were based on a comparison of costs and benefits, and the primary emphasis of early copyright policies was on the advancement of public welfare. However, the harmonization of international laws has created a melding of these two approaches. The tendency at present is toward stronger enforcement of copyrights, prompted by the lobbying of publishers and the globalization of culture and commerce. Technological change has always exerted an exogenous force for change in copyright laws, and modern innovations in particular provoke questions about the extent to which copyright systems can respond effectively to such challenges.
Copyright in Europe
Copyright in France
In the early years of printing, books and other written matter became part of the public domain when they were published. Like patents, the grant of book privileges originated in the Republic of Venice in the fifteenth century, a practice which was soon prevalent in a number of other European countries. Donatus Bossius, a Milan author, petitioned the duke in 1492 for an exclusive privilege for his book, and successfully argued that he would be unjustly deprived of the benefits from his efforts if others were able to freely copy his work. He was given the privilege for a term of ten years. However, authorship was not required for the grant of a privilege, and printers and publishers obtained monopolies over existing books as well as new works. Since privileges were granted on a case by case basis, they varied in geographical scope, duration, and breadth of coverage, as well as in terms of the attendant penalties for their violation. Grantors included religious orders and authorities, universities, political figures, and the representatives of the Crown.
The French privilege system was introduced in 1498 and was well-developed by the end of the sixteenth century. Privileges were granted under the auspices of the monarch, generally for a brief period of two to three years, although the term could be as much as ten years. Protection was granted to new books or translations, maps, type designs, engravings and artwork. Petitioners paid formal fees and informal gratuities to the officials concerned. Since applications could only be sealed if the King were present, petitions had to be carefully timed to take advantage of his route or his return from trips and campaigns. It became somewhat more convenient when the courts of appeal such as the Parlement de Paris began to issue grants that were privileges in all but name, although this could lead to conflicting rights if another authority had already allocated the monopoly elsewhere. The courts sometimes imposed limits on the rights conferred, in the form of stipulations about the prices that could be charged. Privileges were property that could be assigned or licensed to another party, and their infringement was punished by a fine and at times confiscation of all the output of “pirates.”
After 1566, the Edict of Moulins required that all new books had to be approved and licensed by the Crown. Favored parties were able to get renewals of their monopolies that also allowed them to lay claim to works that were already in the public domain. By the late eighteenth century an extensive administrative procedure was in place that was designed to restrict the number of presses and engage in surveillance and censorship of the publishing industry. Manuscripts first had to be read by a censor, and only after a permit was requested and granted could the book be printed, although the permit could later be revoked if complaints were lodged by sufficiently influential individuals. Decrees in 1777 established that authors who did not alienate their property were entitled to exclusive rights in perpetuity. Since few authors had the will or resources to publish and distribute books, their privileges were likely to be sold outright to professional publishers. However, the law made a distinction in the rights accorded to publishers, because if the right was sold the privilege was only accorded a limited duration of at least ten years, the exact term to be determined in accordance with the value of the work, and once the publisher’s term expired, the work passed into the public domain. The fee for a privilege was thirty six livres. Approvals to print a work, or a “permission simple” which did not entail exclusive rights could also be obtained after payment of a substantial fee. Between 1700 and 1789, a total of 2,586 petitions for exclusive privileges were filed, and about two thirds were granted. The result was a system that resulted in “odious monopolies,” higher prices and greater scarcity, large transfers to officials of the Crown and their allies, and pervasive censorship. It likewise disadvantaged smaller book producers, provincial publishers, and the academic and broader community.
The French Revolutionary decrees of 1791 and 1793 replaced the idea of privilege with that of uniform statutory claims to literary property, based on the principle that “the most sacred, the most unassailable and the most personal of possessions is the fruit of a writer’s thought.” The subject matter of copyrights covered books, dramatic productions and the output of the “beaux arts” including designs and sculpture. Authors were required to deposit two copies of their books with the Bibliothèque Nationale or risk losing their copyright. Some observers felt that copyrights in France were the least protected of all property rights, since they were enforced with a care to protecting the public domain and social welfare. Although France is associated with the author’s rights approach to copyright and proclamations of the “droit d’auteur,” these ideas evolved slowly and hesitatingly, mainly in order to meet the self-interest of the various members of the book trade. During the ancien régime, the rhetoric of authors’ rights had been promoted by French owners of book privileges as a way of deflecting criticism of monopoly grants and of protecting their profits, and by their critics as a means of attacking the same monopolies and profits. This language was retained in the statutes after the Revolution, so the changes in interpretation and enforcement may not have been universally evident.
By the middle of the nineteenth century, French jurisprudence and philosophy tended to explicate copyrights in terms of rights of personality but the idea of the moral claim of authors to property rights was not incorporated in the law until early in the twentieth century. The droit d’auteur first appeared in a law of April 1910. In 1920 visual artists were granted a “droit de suite” or a claim to a portion of the revenues from resale of their works. Subsequent evolution of French copyright laws led to the recognition of the right of disclosure, the right of retraction, the right of attribution, and the right of integrity. These moral rights are (at least in theory) perpetual, inalienable, and thus can be bequeathed to the heirs of the author or artist, regardless of whether or not the work was sold to someone else. The self-interested rhetoric of the owners of monopoly privileges now fully emerged as the keystone of the “French system of literary property” that would shape international copyright laws in the twenty first century.
Copyright in England
England similarly experienced a period during which privileges were granted, such as a seven year grant from the Chancellor of Oxford University for an 1518 work. In 1557, the Worshipful Company of Stationers, a publishers’ guild, was founded on the authority of a royal charter and controlled the book trade for next one hundred and fifty years. This company created and controlled the right of their constituent members to make copies, so in effect their “copy right” was a private property right that existed in perpetuity, independently of state or statutory rights. Enforcement and regulation were carried out by the corporation itself through its Court of Assistants. The Stationers’ Company maintained a register of books, issued licenses, and sanctioned individuals who violated their regulations. Thus, in both England and France, copyright law began as a monopoly grant to benefit and regulate the printers’ guilds, and as a form of surveillance and censorship over public opinion on behalf of the Crown.
The English system of privileges was replaced in 1710 by a copyright statute (the “Statute of Anne” or “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, During the Times Therein Mentioned,” 1709-10, 8 Anne, ch. 19.) The statute was not directed toward the authors of books and their rights. Rather, its intent was to restrain the publishing industry and destroy its monopoly power. According to the law, the grant of copyright was available to anyone, not just to the Stationers. Instead of a perpetual right, the term was limited to fourteen years, with a right of renewal, after which the work would enter the public domain. The statute also permitted the importation of books in foreign languages.
Subsequent litigation and judicial interpretation added a new and fundamentally different dimension to copyright. In order to protect their perpetual copyright, publishers tried to promote the idea that copyright was based on the natural rights of authors or creative individuals and, as the agent of the author, those rights devolved to the publisher. If indeed copyrights derived from these inherent principles, they represented property that existed independently of statutory provisions and could be protected under common law. The booksellers engaged in a series of strategic litigation that culminated in their defeat in the landmark case, Donaldson v. Beckett [98 Eng. Rep. 257 (1774)]. The court ruled that authors had a common law right in their unpublished works, but on publication that right was extinguished by the statute, whose provisions determined the nature and scope of any copyright claims. This transition from publisher’s rights to statutory author’s rights implied that copyright had transmuted from a straightforward license to protect monopoly profits into an expanding property right whose boundaries would henceforth increase at the expense of the public domain.
Between 1735 and 1875 fourteen Acts of Parliament amended the copyright legislation. Copyrights extended to sheet music, maps, charts, books, sculptures, paintings, photographs, dramatic works and songs sung in a dramatic fashion, and lectures outside of educational institutions. Copyright owners had no remedies at law unless they complied with a number of stipulations which included registration, the payment of fees, the delivery of free copies of every edition to the British Museum (delinquents were fined), as well as complimentary copies for four libraries, including the Bodleian and Trinity College. The ubiquitous Stationers’ Company administered registration, and the registrar personally benefited from the monetary fees of 5 shillings when the book was registered and an equal amount for each assignment and each copy of an entry, along with one shilling for each entry searched. Foreigners could only obtain copyrights if they presented themselves in a part of the British Empire at the time of publication. The book had to be published in the United Kingdom, and prior publication in a foreign country – even in a British colony – was an obstacle to copyright protection.
The term of the copyright in books was for the longer of 42 years from publication or the lifetime of the author plus seven years, and after the death of the author a compulsory license could be issued to ensure that works of sufficient public benefit would be published. The “work for hire” doctrine was in force for books, reviews, newspapers, magazines and essays unless a distinct contractual clause specified that the copyright was to accrue to the author. Similarly, unauthorized use of a publication was permitted for the purposes of “fair use.” Only the copyright holder and his agents were allowed to import the protected works into Britain.
The British Commission that reported on the state of the copyright system in 1878 felt that the laws were “obscure, arbitrary and piecemeal” and were compounded by the confused state of the common law. The numerous uncoordinated laws that were simultaneously in force led to conflicts and unintended defects in the system. The report discussed but did not recommend an alternative to the grant of copyrights, in the form of a royalty system where “any person would be entitled to copy or republish the work on paying or securing to the owner a remuneration, taking the form of royalty or definite sum prescribed by law.” The main benefit would be to be public in the form of early access to cheap editions, whereas the main cost would be to the publishers whose risk and return would be negatively affected.
The Commission noted that the implications for the colonies were “anomalous and unsatisfactory.” The publishers in England practiced price discrimination, modifying the initial high prices for copyrighted material through discounts given to reading clubs, circulating libraries and the like, benefits which were not available in the colonies. In 1846 the Colonial Office acknowledged “the injurious effects produced upon our more distant colonists” and passed the Foreign Reprints Act in the following year. This allowed the colonies who adopted the terms of British copyright legislation to import cheap reprints of British copyrighted material with a tariff of 12.5 percent, the proceeds of which were to be remitted to the copyright owners. However, enforcement of the tariff seems to have been less than vigorous since, between 1866 and 1876 only £1155 was received from the 19 colonies who took advantage of the legislation (£1084 from Canada which benefited significantly from the American reprint trade). The Canadians argued that it was difficult to monitor imports, so it would be more effective to allow them to publish the reprints themselves and collect taxes for the benefit of the copyright owners. This proposal was rejected, but under the Canadian Copyright Act of 1875 British copyright owners could obtain Canadian copyrights for Canadian editions that were sold at much lower prices than in Britain or even in the United States.
The Commission made two recommendations. First, the bigger colonies with domestic publishing facilities should be allowed to reprint copyrighted material on payment of a license to be set by law. Second, the benefits to the smaller colonies of access to British literature should take precedence over lobbies to repeal the Foreign Reprints Act, which should be better enforced rather than removed entirely. Some had argued that the public interest required that Britain should allow the importation of cheap colonial reprints since the high prices of books were “altogether prohibitory to the great mass of the reading public” but the Commission felt that this should only be adopted with the consent of the copyright owner. They also devoted a great deal of attention to what was termed “The American Question” but took the “highest public ground” and recommended against retaliatory policies.
Copyright in the United States
Colonial Copyright
In the period before the Declaration of Independence individual American states recognized and promoted patenting activity, but copyright protection was not considered to be of equal importance, for a number of reasons. First, in a democracy the claims of the public and the wish to foster freedom of expression were paramount. Second, to a new colony, pragmatic concerns were likely of greater importance than the arts, and the more substantial literary works were imported. Markets were sufficiently narrow that an individual could saturate the market with a first run printing, and most local publishers produced ephemera such as newspapers, almanacs, and bills. Third, it was unclear that copyright protection was needed as an incentive for creativity, especially since a significant fraction of output was devoted to works such as medical treatises and religious tracts whose authors wished simply to maximize the number of readers, rather than the amount of income they received.
In 1783, Connecticut became the first state to approve an “Act for the encouragement of literature and genius” because “it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind.” Although this preamble might seem to strongly favor author’s rights, the statute also specified that books were to be offered at reasonable prices and in sufficient quantities, or else a compulsory license would issue.
Federal Copyright Grants
Despite their common source in the intellectual property clause of the U.S. Constitution, copyright policies provided a marked contrast to the patent system. According to Wheaton v. Peters, 33 U.S. 591, 684 (1834): “It has been argued at the bar, that as the promotion of the progress of science and the useful arts is here united in the same clause in the constitution, the rights of the authors and inventors were considered as standing on the same footing; but this, I think, is a non sequitur, for when congress came to execute this power by legislation, the subjects are kept distinct, and very different provisions are made respecting them.”
The earliest federal statute to protect the product of authors was approved on May 31 1790, “for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies, during the times therein mentioned.” John Barry obtained the first federal copyright when he registered his spelling book in the District Court of Pennsylvania, and early grants reflected the same utilitarian character. Policy makers felt that copyright protection would serve to increase the flow of learning and information, and by encouraging publication would contribute to democratic principles of free speech. The diffusion of knowledge would also ensure broad-based access to the benefits of social and economic development. The copyright act required authors and proprietors to deposit a copy of the title of their work in the office of the district court in the area where they lived, for a nominal fee of sixty cents. Registration secured the right to print, publish and sell maps, charts and books for a term of fourteen years, with the possibility of an extension for another like term. Amendments to the original act extended protection to other works including musical compositions, plays and performances, engravings and photographs. Legislators refused to grant perpetual terms, but the length of protection was extended in the general revision of the laws in 1831, and 1909.
In the case of patents, the rights of inventors, whether domestic or foreign, were widely viewed as coincident with public welfare. In stark contrast, policymakers showed from the very beginning an acute sensitivity to trade-offs between the rights of authors (or publishers) and social welfare. The protections provided to authors under copyrights were as a result much more limited than those provided by the laws based on moral rights that were applied in many European countries. Of relevance here are stipulations regarding first sale, work for hire, and fair use. Under a moral rights-based system, an artist or his heirs can claim remedies if subsequent owners alter or distort the work in a way that allegedly injures the artist’s honor or reputation. According to the first sale doctrine, the copyright holder lost all rights after the work was sold. In the American system, if the copyright holder’s welfare were enhanced by nonmonetary concerns, these individualized concerns could be addressed and enforced through contract law, rather than through a generic federal statutory clause that would affect all property holders. Similarly, “work for hire” doctrines also repudiated the right of personality, in favor of facilitating market transactions. For example, in 1895 Thomas Donaldson filed a complaint that Carroll D. Wright’s editing of Donaldson’s report for the Census Bureau was “damaging and injurious to the plaintiff, and to his reputation” as a scholar. The court rejected his claim and ruled that as a paid employee he had no rights in the bulletin; to rule otherwise would create problems in situations where employees were hired to prepare data and statistics.
This difficult quest for balance between private and public good was most evident in the copyright doctrine of “fair use” that (unlike with patents) allowed unauthorized access to copyrighted works under certain conditions. Joseph Story ruled in [Folsom v. Marsh, 9 F. Cas. 342 (1841)]: “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” One of the striking features of the fair use doctrine is the extent to which property rights were defined in terms of market valuations, or the impact on sales and profits, as opposed to a clear holding of the exclusivity of property. Fair use doctrine thus illustrates the extent to which the early policy makers weighed the costs and benefits of private property rights against the rights of the public and the provisions for a democratic society. If copyrights were as strictly construed as patents, it would serve to reduce scholarship, prohibit public access for noncommercial purposes, increase transactions costs for potential users, and inhibit learning which the statutes were meant to promote.
Nevertheless, like other forms of intellectual property, the copyright system evolved to encompass improvements in technology and changes in the marketplace. Technological changes in nineteenth-century printing included the use of stereotyping which lowered the costs of reprints, improvements in paper making machinery, and the advent of steam powered printing presses. Graphic design also benefited from innovations, most notably the development of lithography and photography. The number of new products also expanded significantly, encompassing recorded music and moving pictures by the end of the nineteenth century; and commercial television, video recordings, audiotapes, and digital music in the twentieth century.
The subject matter, scope and duration of copyrights expanded over the course of the nineteenth century to include musical compositions, plays, engravings, sculpture, and photographs. By 1910 the original copyright holder was granted derivative rights such as to translations of literary works into other languages; to performances; and the rights to adapt musical works, among others. Congress also lengthened the term of copyright several times, although by 1890 the term of copyright protection in Greece and the United States were the most abbreviated in the world. New technologies stimulated change by creating new subjects for copyright protection, and by lowering the costs of infringement of copyrighted works. In Edison v. Lubin, 122 F. Cas. 240 (1903), the lower court rejected Edison’s copyright of moving pictures under the statutory category of photographs. This decision was overturned by the appellate court: “[Congress] must have recognized there would be change and advance in making photographs, just as there has been in making books, printing chromos, and other subjects of copyright protection.” Copyright enforcement was largely the concern of commercial interests, and not of the creative individual. The fraction of copyright plaintiffs who were authors (broadly defined) was initially quite low, and fell continuously during the nineteenth century. By 1900-1909, only 8.6 percent of all plaintiffs in copyright cases were the creators of the item that was the subject of the litigation. Instead, by the same period, the majority of parties bringing cases were publishers and other assignees of copyrights.
In 1909 Congress revised the copyright law and composers were given the right to make the first mechanical reproductions of their music. However, after the first recording, the statute permitted a compulsory license to issue for copyrighted musical compositions: that is to say, anyone could subsequently make their own recording of the composition on payment of a fee that was set by the statute at two cents per recording. In effect, the property right was transformed into a liability rule. The next major legislative change in 1976 similarly allowed compulsory licenses to issue for works that are broadcast on cable television. The prevalence of compulsory licenses for copyrighted material is worth noting for a number of reasons: they underline some of the statutory differences between patents and copyrights in the United States; they reflect economic reasons for such distinctions; and they are also the result of political compromises among the various interest groups that are affected.
Allied Rights
The debate about the scope of patents and copyrights often underestimates or ignores the importance of allied rights that are available through other forms of the law such as contract and unfair competition. A noticeable feature of the case law is the willingness of the judiciary in the nineteenth century to extend protection to noncopyrighted works under alternative doctrines in the common law. More than 10 percent of copyright cases dealt with issues of unfair competition, and 7.7 percent with contracts; a further 12 percent encompassed issues of right to privacy, trade secrets, and misappropriation. For instance, in Keene v. Wheatley et al., 14 F. Cas. 180 (1860), the plaintiff did not have a statutory copyright in the play that was infringed. However, she was awarded damages on the basis of her proprietary common law right in an unpublished work, and because the defendants had taken advantage of a breach of confidence by one of her former employees. Similarly, the courts offered protection against misappropriation of information, such as occurred when the defendants in Chamber of Commerce of Minneapolis v. Wells et al., 111 N.W. 157 (1907) surreptitiously obtained stock market information by peering in windows, eavesdropping, and spying.
Several other examples relate to the more traditional copyright subject of the book trade. E. P. Dutton & Company published a series of Christmas books which another publisher photographed, and offered as a series with similar appearance and style but at lower prices. Dutton claimed to have been injured by a loss of profits and a loss of reputation as a maker of fine books. The firm did not have copyrights in the series, but they essentially claimed a right in the “look and feel” of the books. The court agreed: “the decisive fact is that the defendants are unfairly and fraudulently attempting to trade upon the reputation which plaintiff has built up for its books. The right to injunctive relief in such a case is too firmly established to require the citation of authorities.” In a case that will resonate with academics, a surgery professor at the University of Pennsylvania was held to have a common law property right in the lectures he presented, and a student could not publish them without his permission. Titles could not be copyrighted, but were protected as trade marks and under unfair competition doctrines. In this way, in numerous lawsuits G. C. Merriam & Co, the original publishers of Webster’s Dictionary, restrained the actions of competitors who published the dictionary once the copyrights had expired.
International Copyrights in the United States
The U.S. was long a net importer of literary and artistic works, especially from England, which implied that recognition of foreign copyrights would have led to a net deficit in international royalty payments. The Copyright Act recognized this when it specified that “nothing in this act shall be construed to extend to prohibit the importation or vending, reprinting or publishing within the United States, of any map, chart, book or books … by any person not a citizen of the United States.” Thus, the statutes explicitly authorized Americans to take free advantage of the cultural output of other countries. As a result, it was alleged that American publishers “indiscriminately reprinted books by foreign authors without even the pretence of acknowledgement.” The tendency to reprint foreign works was encouraged by the existence of tariffs on imported books that ranged as high as 25 percent.
The United States stood out in contrast to countries such as France, where Louis Napoleon’s Decree of 1852 prohibited counterfeiting of both foreign and domestic works. Other countries which were affected by American piracy retaliated by refusing to recognize American copyrights. Despite the lobbying of numerous authors and celebrities on both sides of the Atlantic, the American copyright statutes did not allow for copyright protection of foreign works for fully one century. As a result, American publishers and producers freely pirated foreign literature, art, and drama.
Effects of Copyright Piracy
What were the effects of piracy? First, did the American industry suffer from cheaper foreign books being dumped on the domestic market? This does not seem to have been the case. After controlling for the type of work, the cost of the work, and other variables, the prices of American books were lower than prices of foreign books. American book prices may have been lower to reflect lower perceived quality or other factors that caused imperfect substitutability between foreign and local products. As might be expected, prices were not exogenously and arbitrarily fixed, but varied in accordance with a publisher’s estimation of market factors such as the degree of competition and the responsiveness of demand to determinants. The reading public appears to have gained from the lack of copyright, which increased access to the superior products of more developed markets in Europe, and in the long run this likely improved both the demand and supply of domestic science and literature.
Second, according to observers, professional authorship in the United States was discouraged because it was difficult to compete with established authors such as Scott, Dickens and Tennyson. Whether native authors were deterred by foreign competition would depend on the extent to which foreign works prevailed in the American market. Early in American history the majority of books were reprints of foreign titles. However, nonfiction titles written by foreigners were less likely to be substitutable for nonfiction written by Americans; consequently, the supply of nonfiction soon tended to be provided by native authors. From an early period grammars, readers, and juvenile texts were also written by Americans. Geology, geography, history and similar works would have to be adapted or completely rewritten to be appropriate for an American market which reduced their attractiveness as reprints. Thus, publishers of schoolbooks, medical volumes and other nonfiction did not feel that the reforms of 1891 were relevant to their undertakings. Academic and religious books are less likely to be written for monetary returns, and their authors probably benefited from the wider circulation that lack of international copyright encouraged. However, the writers of these works declined in importance relative to writers of fiction, a category which grew from 6.4 percent before 1830 to 26.4 percent by the 1870s.
On the other hand, foreign authors dominated the field of fiction for much of the century. One study estimates about fifty percent of all fiction best sellers in antebellum period were pirated from foreign works. In 1895 American authors accounted for two of the top ten best sellers but by 1910 nine of the top ten were written by Americans. This fall over time in the fraction of foreign authorship may have been due to a natural evolutionary process, as the development of the market for domestic literature over time encouraged specialization. The growth in fiction authors was associated with the increase in the number of books per author over the same period. Improvements in transportation and the increase in the academic population probably played a large role in enabling individuals who lived outside the major publishing centers to become writers despite the distance. As the market expanded, a larger fraction of writers could become professionals.
Although the lack of copyright protection may not have discouraged authors, this does not imply that intellectual property policy in this dimension had no costs. It is likely that the lack of foreign copyrights led to some misallocation of efforts or resources, such as in attempting to circumvent the rules. Authors changed their residence temporarily when books were about to be published in order to qualify for copyright. Others obtained copyrights by arranging to co-author with a foreign citizen. T. H. Huxley adopted this strategy, arranging to co-author with “a young Yankee friend … Otherwise the thing would be pillaged at once.” An American publisher suggested that Kipling should find “a hack writer, whose name would be of use simply on account of its carrying the copyright.” Harriet Beecher Stowe proposed a partnership with Elizabeth Gaskell, so they could “secure copyright mutually in our respective countries and divide the profits.”
It is widely acknowledged that copyrights in books tended to be the concern of publishers rather than of authors (although the two are naturally not independent of each other). As a result of lack of legal copyrights in foreign works, publishers raced to be first on the market with the “new” pirated books, and the industry experienced several decades of intense, if not quite “ruinous” competition. These were problems that publishers in England had faced before, in the market for books that were uncopyrighted, such as Shakespeare and Fielding. Their solution was to collude in the form of strictly regulated cartels or “printing congers.” The congers created divisible property in books that they traded, such as a one hundred and sixtieth share in Johnson’s Dictionary that was sold for £23 in 1805. Cooperation resulted in risk sharing and a greater ability to cover expenses. The unstable races in the United States similarly settled down during the 1840s to collusive standards that were termed “trade custom” or “courtesy of the trade.”
The industry achieved relative stability because the dominant firms cooperated in establishing synthetic property rights in foreign-authored books. American publishers made payments (termed “copyrights”) to foreign authors to secure early sheets, and other firms recognized their exclusive property in the “authorized reprint”. Advance payments to foreign authors not only served to ensure the coincidence of publishers’ and authors’ interests – they were also recognized by “reputable” publishers as “copyrights.” These exclusive rights were tradable, and enforced by threats of predatory pricing and retaliation. Such practices suggest that publishers were able to simulate the legal grant through private means.
However, private rights naturally did not confer property rights that could be enforced at law. The case of Sheldon v. Houghton 21 F. Cas 1239 (1865) illustrates that these rights were considered to be “very valuable, and is often made the subject of contracts, sales, and transfers, among booksellers and publishers.” The very fact that a firm would file a plea for the court to protect their claim indicates how vested a right it had become. The plaintiff argued that “such custom is a reasonable one, and tends to prevent injurious competition in business, and to the investment of capital in publishing enterprises that are of advantage to the reading public.” The courts rejected this claim, since synthetic rights differed from copyrights in the degree of security that was offered by the enforcement power of the courts. Nevertheless, these title-specific of rights exclusion decreased uncertainty, enabled publishers to recoup their fixed costs, and avoided the wasteful duplication of resources that would otherwise have occurred.
It was not until 1891 that the Chace Act granted copyright protection to selected foreign residents. Thus, after a century of lobbying by interested parties on both sides of the Atlantic, based on reasons that ranged from the economic to the moral, copyright laws only changed when the United States became more competitive in the international market for literary and artistic works. However, the act also included significant concessions to printers’ unions and printing establishments in the form of “manufacturing clauses.” First, a book had to be published in the U.S. before or at the same time as the publication date in its country of origin. Second, the work had to be printed here, or printed from type set in the United States or from plates made from type set in the United States. Copyright protection still depended on conformity with stipulations such as formal registration of the work. These clauses resulted in U.S. failure to qualify for admission to the international Berne Convention until 1988, more than one hundred years after the first Convention.
After the copyright reforms in 1891, both English and American authors were disappointed to find that the change in the law did not lead to significant gains. Foreign authors realized they may even have benefited from the lack of copyright protection in the United States. Despite the cartelization of publishing, competition for these synthetic copyrights ensured that foreign authors were able to obtain payments that American firms made to secure the right to be first on the market. It can also be argued that foreign authors were able to reap higher total returns from the expansion of the market through piracy. The lack of copyright protection may have functioned as a form of price discrimination, where the product was sold at a higher price in the developed country, and at a lower or zero price in the poorer country. Returns under such circumstances may have been higher for goods with demand externalities or network effects, such as “bestsellers” where consumer valuation of the book increased with the size of the market. For example, Charles Dickens, Anthony Trollope, and other foreign writers were able to gain considerable income from complementary lecture tours in the extensive United States market.
Harmonization of Copyright Laws
In view of the strong protection accorded to inventors under the U.S. patent system, to foreign observers its copyright policies appeared to be all the more reprehensible. The United States, the most liberal in its policies towards patentees, had led the movement for harmonization of patent laws. In marked contrast, throughout the history of the U.S. system, its copyright grants in general were more abridged than almost all other countries in the world. The term of copyright grants to American citizens was among the shortest in the world, the country applied the broadest interpretation of fair use doctrines, and the validity of the copyright depended on strict compliance with the requirements. U.S. failure to recognize the rights of foreign authors was also unique among the major industrial nations. Throughout the nineteenth century proposals to reform the law and to acknowledge foreign copyrights were repeatedly brought before Congress and rejected. Even the bill that finally recognized international copyrights almost failed, only passed at the last possible moment, and required longstanding exemptions in favor of workers and printing enterprises.
In a parallel fashion to the status of the United States in patent matters, France’s influence was evident in the subsequent evolution of international copyright laws. Other countries had long recognized the rights of foreign authors in national laws and bilateral treaties, but France stood out in its favorable treatment of domestic and foreign copyrights as “the foremost of all nations in the protection it accords to literary property.” This was especially true of its concessions to foreign authors and artists. For instance, France allowed copyrights to foreigners conditioned on manufacturing clauses in 1810, and granted foreign and domestic authors equal rights in 1852. In the following decade France entered into almost two dozen bilateral treaties, prompting a movement towards multilateral negotiations, such as the Congress on Literary and Artistic Property in 1858. The International Literary and Artistic Association, which the French novelist Victor Hugo helped to establish, conceived of and organized the Convention which first met in Berne in 1883.
The Berne Convention included a number of countries that wished to establish an “International Union for the Protection of Literary and Artistic Works.” The preamble declared their intent to “protect effectively, and in as uniform a manner as possible, the rights of authors over their literary and artistic works.” The actual Articles were more modest in scope, requiring national treatment of authors belonging to the Union and minimum protection for translation and public performance rights. The Convention authorized the establishment of a physical office in Switzerland, whose official language would be French. The rules were revised in 1908 to extend the duration of copyright and to include modern technologies. Perhaps the most significant aspect of the convention was not its specific provisions, but the underlying property rights philosophy which was decidedly from the natural rights school. Berne abolished compliance with formalities as a prerequisite for copyright protection since the creative act itself was regarded as the source of the property right. This measure had far-reaching consequences, because it implied that copyright was now the default, whereas additions to the public domain would have to be achieved through affirmative actions and by means of specific limited exemptions. In 1928 the Berne Convention followed the French precedent and acknowledged the moral rights of authors and artists.
Unlike its leadership in patent conventions, the United States declined an invitation to the pivotal copyright conference in Berne in 1883; it attended but refused to sign the 1886 agreement of the Berne Convention. Instead, the United States pursued international copyright policies in the context of the weaker Universal Copyright Convention (UCC), which was adopted in 1952 and formalized in 1955 as a complementary agreement to the Berne Convention. The UCC membership included many developing countries that did not wish to comply with the Berne Convention because they viewed its provisions as overly favorable to the developed world. The United States was among the last wave of entrants into the Berne Convention when it finally joined in 1988. In order to do so it complied by removing prerequisites for copyright protection such as registration, and also lengthened the term of copyrights. However, it still has not introduced federal legislation in accordance with Article 6bis, which declares the moral rights of authors “independently of the author’s economic rights, and even after the transfer of the said rights.” Similarly, individual countries continue to differ in the extent to which multilateral provisions governed domestic legislation and practices.
The quest for harmonization of intellectual property laws resulted in a “race to the top,” directed by the efforts and self interest of the countries which had the strongest property rights. The movement to harmonize patents was driven by American efforts to ensure that its extraordinary patenting activity was remunerated beyond as well as within its borders. At the same time, the United States ignored international conventions to unify copyright legislation. Nevertheless, the harmonization of copyright laws proceeded, promoted by France and other civil law regimes which urged stronger protection for authors based on their “natural rights” although at the same time they infringed on the rights of foreign inventors. The net result was that international pressure was applied to developing countries in the twentieth century to establish strong patents and strong copyrights, although no individual developed country had adhered to both concepts simultaneously during their own early growth phase. This occurred even though theoretical models did not offer persuasive support for intellectual property harmonization, and indeed suggested that uniform policies might be detrimental even to some developed countries and to overall global welfare.
Conclusion
The past three centuries stand out in terms of the diversity across nations in intellectual property institutions, but the nineteenth century saw the origins of the movement towards the “harmonization” of laws that at present dominates global debates. Among the now-developed countries, the United States stood out for its conviction that broad access to intellectual property rules and standards was key to achieving economic development. Europeans were less concerned about enhancing mass literacy and public education, and viewed copyright owners as inherently meritorious and deserving of strong protection. European copyright regimes thus evolved in the direction of author’s rights, while the United States lagged behind the rest of the world in terms of both domestic and foreign copyright protection.
By design, American statutes differentiated between patents and copyrights in ways that seemed warranted if the objective was to increase social welfare. The patent system early on discriminated between nonresident and domestic inventors, but within a few decades changed to protect the right of any inventor who filed for an American patent regardless of nationality. The copyright statutes, in contrast, openly encouraged piracy of foreign goods on an astonishing scale for one hundred years, in defiance of the recriminations and pressures exerted by other countries. The American patent system required an initial search and examination that ensured the patentee was the “first and true” creator of the invention in the world, whereas copyrights were granted through mere registration. Patents were based on the assumption of novelty and held invalid if this assumption was violated, whereas essentially similar but independent creation was copyrightable. Copyright holders were granted the right to derivative works, whereas the patent holder was not. Unauthorized use of patented inventions was prohibited, whereas “fair use” of copyrighted material was permissible if certain conditions were met. Patented inventions involved greater initial investments, effort, and novelty than copyrighted products and tended to be more responsive to material incentives; whereas in many cases cultural goods would still be produced or only slightly reduced in the absence of such incentives. Fair use was not allowed in the case of patents because the disincentive effect was likely to be higher, while the costs of negotiation between the patentee and the more narrow market of potential users would generally be lower. If copyrights were as strongly enforced as patents it would benefit publishers and a small literary elite at the cost of social investments in learning and education.
The United States created a utilitarian market-based model of intellectual property grants which created incentives for invention, but always with the primary objective of increasing social welfare and protecting the public domain. The checks and balances of interest group lobbies, the legislature and the judiciary worked effectively as long as each institution was relatively well-matched in terms of size and influence. However, a number of legal and economic scholars are increasingly concerned that the political influence of corporate interests, the vast number of uncoordinated users over whom the social costs are spread, and international harmonization of laws have upset these counterchecks, leading to over-enforcement at both the private and public levels.
International harmonization with European doctrines introduced significant distortions in the fundamental principles of American copyright and its democratic provisions. One of the most significant of these changes was also one of the least debated: compliance with the precepts of the Berne Convention accorded automatic copyright protection to all creations on their fixation in tangible form. This rule reversed the relationship between copyright and the public domain that the U.S. Constitution stipulated. According to original U.S. copyright doctrines, the public domain was the default, and copyright merely comprised a limited exemption to the public domain; after the alignment with Berne, copyright became the default, and the rights of the public and of the public domain now merely comprise a limited exception to the primacy of copyright. The pervasive uncertainty that characterizes the intellectual property arena today leads risk-averse individuals and educational institutions to err on the side of abandoning their right to free access rather than invite potential challenges and costly litigation. A number of commentators are equally concerned about other dimensions of the globalization of intellectual property rights, such as the movement to emulate European grants of property rights in databases, which has the potential to inhibit diffusion and learning.
Copyright law and policy has always altered and been altered by social, economic and technological changes, in the United States and elsewhere. However, the one constant feature across the centuries is that copyright protection involves crucial political questions to a far greater extent than its economic implications.
Additional Readings
Economic History
B. Zorina Khan. The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920. New York: Cambridge University Press, 2005.
Law and Economics
Besen, Stanley, and L. Raskind. “An Introduction to the Law and Economics of Intellectual Property.” Journal of Economic Perspectives 5 (1991): 3-27.
Breyer, Stephen. “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs.” Harvard Law Review 84 (1970): 281-351.
Gallini, Nancy and S. Scotchmer. “Intellectual Property: When Is It the Best Incentive System?” Innovation Policy and the Economy 2 (2002): 51-78.
Gordon, Wendy, and R. Watt, editors. The Economics of Copyright: Developments in Research and Analysis. Cheltenham, UK: Edward Elgar, 2002.
Hurt, Robert M., and Robert M. Shuchman. “The Economic Rationale of Copyright.” American Economic Review Papers and Proceedings 56 (1966): 421-32.
Johnson, William R. “The Economics of Copying.” Journal of Political Economy 93 (1985): 1581-74.
Landes, William M., and Richard A. Posner. “An Economic Analysis of Copyright Law.” Journal of Legal Studies 18 (1989): 325-63.
Landes, William M., and Richard A. Posner. The Economic Structure of Intellectual Property Law. Cambridge, MA: Harvard University Press, 2003.
Liebowitz, S. J. “Copying and Indirect Appropriability: Photocopying of Journals.” Journal of Political Economy 93 (1985): 945-57.
Merges, Robert P. “Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations.” California Law Review 84, no. 5 (1996): 1293-1393.
Meurer, Michael J. “Copyright Law and Price Discrimination.” Cardozo Law Review 23 (2001): 55-148.
Novos, Ian E., and Michael Waldman. “The Effects of Increased Copyright Protection: An Analytic Approach.” Journal of Political Economy 92 (1984): 236-46.
Plant, Arnold. “The Economic Aspects of Copyright in Books.” Economica 1 (1934): 167-95.
Takeyama, L. “The Welfare Implications of Unauthorized Reproduction of Intellectual Property in the Presence of Demand Network Externalities.” Journal of Industrial Economics 42 (1994): 155–66.
Takeyama, L. “The Intertemporal Consequences of Unauthorized Reproduction of Intellectual Property.” Journal of Law and Economics 40 (1997): 511–22.
Varian, Hal. “Buying, Sharing and Renting Information Goods.” Journal of Industrial Economics 48, no. 4 (2000): 473–88.
Varian, Hal. “Copying and Copyright.” Journal of Economic Perspectives 19, no. 2 (2005): 121-38.
Watt, Richard. Copyright and Economic Theory: Friends or Foes? Cheltenham, UK: Edward Elgar, 2000.
History of Economic Thought
Hadfield, Gilliam K. “The Economics of Copyright: A Historical Perspective.” Copyright Law Symposium (ASCAP) 38 (1992): 1-46.
History
Armstrong, Elizabeth. Before Copyright: The French Book-Privilege System, 1498-1526. Cambridge: Cambridge University Press, 1990.
Birn, Raymond. “The Profits of Ideas: Privileges en librairie in Eighteenth-century France.” Eighteenth-Century Studies 4, no. 2 (1970-71): 131-68.
Bugbee, Bruce. The Genesis of American Patent and Copyright Law. Washington, DC: Public Affairs Press, 1967.
Dawson, Robert L. The French Booktrade and the “Permission Simple” of 1777: Copyright and the Public Domain. Oxford: Voltaire Foundation, 1992.
Hackett, Alice P., and James Henry Burke. Eighty Years of Best Sellers, 1895-1975. New York: Bowker, 1977.
Nowell-Smith, Simon. International Copyright Law and the Publisher in the Reign of Queen Victoria. Oxford: Clarendon Press, 1968.
Patterson, Lyman. Copyright in Historical Perspective. Nashville: Vanderbilt University Press, 1968.
Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard University Press, 1993.
Saunders, David. Authorship and Copyright. London: Routledge, 1992.
Citation: Khan, B. “An Economic History of Copyright in Europe and the United States”. EH.Net Encyclopedia, edited by Robert Whaples. March 16, 2008. URL http://eh.net/encyclopedia/an-economic-history-of-copyright-in-europe-and-the-united-states/