The following is an excerpt from Brandew Matthews‘ article, The Evolution of Copyright, which originally appeared in Political Science Quarterly in December, 1890. It traces the “prehistory” of copyright — from ancient Greek and Roman times to the development of the printing press — and gives one explanation for its development.


Perhaps a consideration of the evolution of copyright in the past will conduce to a closer understanding of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold’s phrase, have afforded to the individual author the sanction of the law in possessing what he has produced; and it is no less instructive to note the successive enlargements of jurisprudence by which property in books—which is, as Lowell says, the creature of local municipal law—has slowly developed until it demands and receives international recognition.

The maxim that “there is no wrong without a remedy,” indicates the line of legal development. The instinct of possession is strong; and in the early communities, where most things were in common, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance—much as a dog defends his bone, growling when it is taken from him, or even biting. If public opinion supported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recognition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin; but this action steadily widened in scope until it became an action for recovery; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self-assertion and the resulting pressure of public opinion, which, as Lowell once tersely put it, is like that of the atmosphere: “You can’t see it, but it is fifteen pounds to the square inch all the same.”

The individual sense of wrong stimulates the moral growth of society at large; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more modern periods of development, the recognition of new forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other individuals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed—this being an effort to command the conscience of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the fullness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legislative declaration of rights is still going on all about us and in all departments of law, as modern life develops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering’s definition of a legal right as “a legally protected interest.”

As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was (probably first recognized in the tools which early man made for himself, and in the animais or men whom he subdued; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things—to actual physical possession—to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature; it was not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works.

The Greek dramatists, like the dramatists of today, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents—more than twelve thousand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author’s rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the invention of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong; he had thought mainly of the honor of a wide circulation of his writings; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit; and as soon as the author saw this profit diminished by an unauthorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims.

It is after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 1451. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474.

In the beginning these printers were publishers also; most of their first books were Bibles, prayer-books, and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero’s Offices—” the first tribute of the new art to polite literature,” Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuna, the revision of the text, called for scholarship of a high order; this scholarship was sometimes possessed by the printer-publisher himself but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer’s task; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author’s writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presentation of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin of the fruit of his labors; and the earliest legal recognition of his rights was granted less than a score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledgment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.

This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen; it gave but a limited protection; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent—a precedent which has broadened down the centuries until now,’ four hundred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a territory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully’s Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the publicist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phoenix —the first recorded instance of a copyright awarded directly to an author. Other Italian states “encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics,” and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book; and if the work went to press again, the publisher had to seek a second patent.

In England, in 1518, Richard Pynson, the King’s Printer, issued the first book cum privilegio; the title-page declaring that no one else should print or import in England any other copies for two years; and in 1530 a privilege for seven years was granted to John Palsgrave ” in the consideration of the value of his work and the time spent on it; this being the first recognition of the nature of copyright as furnishing a reward to the author for his labor.” In 1533 Wynkyn de Worde obtained the king’s privilege for his second edition of Witinton’s Grammar. The first edition of this book had been issued ten years before, and during the decade it had been reprinted by Peter Trevers without leave—a despoilment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured protection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhering bases the struggle for law on the instinct of ownership as something personal, and the feeling that the person is attacked whenever a man is deprived of his property; and, as Walter Savage Landor wrote: “No property is so entirely and purely and religiously a man’s own as what comes to him immediately from God, without intervention or participation.” The development of copyright, and especially its rapid growth within the past century, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.

16 Comments

  1. Copyright in the age of the printing press made a lot of sense, because it was a law that naturally only affected those with the means to copy at mass quantity – printers. So it was an industrial regulation.

    But the Internet effectively gives everyone with a computer the ability to copy things at much greater ease and efficiency than even the most efficient printing press.

    And people with new found ability naturally wish to exercise it, much to the dismay of those still thinking in terms of artificial scarcity. Thus copyright has become no longer controversial, and no longer largely an industrial regulation but a massive monstrosity that effects every person alive to some degree.

    The thought experiment goes that if we had a machine that as efficiently as a computer could copy digital data would be able to copy physical data, that is objects of the physical world (such a machine is not out of the realm of possibility, see nanotechnology). Such a machine would perhaps be able to replicate food and goods for people and produce a world of total post-scarcity. But the farmer could no longer sell his crops, the manufacturer could no longer sell his goods. In such a world would be right to restrict this machine’s use, to effectively impose an artificial scarcity on the populace? In order to protect “jobs”?

    That’s what copyright does. Computers and the Internet are machines replicators of information, they produce an information post-scarcity. And people living outside of this world wish to impose scarcity, an artificial scarcity, so that they continue making money the only ways the know how. It it is just not right.

    • That’s a valid point, but…

      The key problem with machines putting people out of jobs is that one does have to ask: “what are we going to do with all those people?” If you’ve been looking outside the window (or even just following the news on the Internet), we’ve now got serious civil unrest going on pretty much all over the West, because people haven’t got jobs and their future prospects are less than bright. As soon as you start putting masses of people out onto the street without a way of earning a living, you’re looking at mobs forming very quickly. That’s the stuff revolutions are made of.

      The problem could be solved if everyone got their own replicator, though of course the question here is who designs the stuff to be replicated? Possibly, it could all be done by hobbyists – all those people now without work would have a lot of time on their hands.

      Of course, this is all academic – as these discussions always turn out to be – since the situation right now is that the work of creating stuff to copy still needs to be done, while the fruits of this labour are consumed by a small, unscrupulous techno-elite. You may feel safe, because creative types tend to be meek by nature, so the chance of a torch-and-pitchfork scenario happening in Sillicon Valley is rather small. However, as “disruptive technology” starts to disenfranchise ever larger sections of the population, we may yet live to see the Googlers hanging alongside the bankers by the town hall. The best I can do is express hope that sanity and the rule of law prevails.

      • “The problem could be solved if everyone got their own replicator, though of course the question here is who designs the stuff to be replicated? Possibly, it could all be done by hobbyists – all those people now without work would have a lot of time on their hands.”
        —————————————————-

        Sure it can be done like hobbyists. Just like a metric ton of content is today. You’ve heard of the concept of “social media”, I hope? Well social media harms mass media, abiet in a more “legal” way. I don’t know what the damage is exactly, but I assume it is substational and obviously growing. In some cases (Wikipedia) it basically eliminated the concept of charging for an encyclopedia, once a pretty large industry. Obviously this has nothing to do with piracy but I guess what I am trying to say is piracy is not the only existential threat to “old media” and the idea of profiting from “creative work” anymore.

        Those protestors? They were organized by social media, and they live outside the lands of CNN and Faux News and in the lands of Reddit and blogs, and they tend to REALLY HATE mass media interests.

        To give you a hint Lawrence Lessig gives lectures to OWS protests. I don’t see the MPAA CEO out there preaching his SOPA law.

        Good luck convincing people who like Lawrence Lessig that your pro-copyright stance is “for the people” and blocking sites the Internet and possibility interfering with social media is in their best interest.

        ——————————————————-
        “Of course, this is all academic – as these discussions always turn out to be – since the situation right now is that the work of creating stuff to copy still needs to be done, while the fruits of this labour are consumed by a small, unscrupulous techno-elite.

        You may feel safe, because creative types tend to be meek by nature, so the chance of a torch-and-pitchfork scenario happening in Sillicon Valley is rather small. However, as “disruptive technology” starts to disenfranchise ever larger sections of the population, we may yet live to see the Googlers hanging alongside the bankers by the town hall. The best I can do is express hope that sanity and the rule of law prevails.

        ——————————————————-

        IIRC 70% of the world pirates, according to some anti-piracy sources. If anything, mess with THE PEOPLE’s ability to download free content, and it might be the pro-copyright content creators who will be hanging from town hall. And social media “creators” and software engineer “creators” tend to not be on your side.

        • If what we were discussing is being put out by competing content, than i wouldn’t have a single problem with that (and these types of forum wouldn’t exist). The problem is i’m competing with my OWN works, (ie, the pirate who invested no money or time taking my completed work and offering for free…)


          If “the people” actually caught on that the Lessigs of the world were only out to line their own (corporate) pockets by using the unthinking populace, rather than some communist ideal, it would be him strung up along with the bankers.

          • I think Lessig could have done more for himself monetarily-wise by being a big content shill. Especially that he seems to head a non-profit with limited assets.

            Lessig is not against copyright per-se, just copyright enforcement ideas like SOPA. I know in the eyes of some, that’s just as bad as making an 0-day release of the latest Superman remake.

          • If “the people” actually caught on that the Lessigs of the world were only out to line their own (corporate) pockets by using the unthinking populace, rather than some communist ideal, it would be him strung up along with the bankers

            I find it absolutely hilarious when people constantly rail on Lawrence Lessig when he hasn’t been a part of the copyright debate for years now. It’s like people haven’t seen the newest debators in this category such as Stephen Kinsella or Rick Falkvinge who would make better targets. Lessig’s started the copyright debates and last I checked, the copyright maximalists wouldn’t debate when challenged. People like ASCAP’s Paul Williams decide not to have a debate on copyright, make erroneous errors about copyright law, then make blanket statements to disparage the opposition’s position with ad homs and non sequitars. It would be funny if it weren’t so sad.

  2. I am not at all sure how any of the above comments relate, if at all, to the subject matter contained in this article.

    Frankly, I find it quite interesting that once again we have a publication well over 100 years old that discusses the issues associated with copyright so many are inclined to believe are of recent vintage, and especially since the advent of the internet.

    Perhaps most telling of all are two points discussed in the publication.

    First, these days there is a constant din that it is natural for people to copy, and that copyright infringes/inhibits/etc. upon this natural right. The author rightly points out what should be obvious, i.e., just like some may feel they have a natural right to copy, so to does an author have an equally natural disposition to view a work as the fruit of his/her labor, and to appropriate the product of such labor without some recompense is fundamentally unfair to the author.

    Second, it intimates that the interests of authors and technologists are not at odds. It is a symbiotic relationship, with the latter creating new tools and the former using those new tools to facilitate and expand creative workproduct. Where this relationship begins to breakdown is when third parties employ these same tools to deny the author with the benefits of his/her labor. Based upon many comments I have read elsewhere it appears that many such third parties harbor the mindset that their natural “right” is somehow superior to that of an author. In my vernacular, I call this “selfish” and exemplifies an unwillingness to recognize and compromise with the natural “right” of an author.

    Copyright came into the fore as a means of trying to balance these competing interests. It is a shame that to many balance is given not even a fleeting thought.

    • You have a natural right to copy any media, just as you have a natural right to walk across any piece of land you choose. “But there’s a fence around that part over there!” Yup. “And they say it’s illegal for me to cross that fence!” Yup. “But…but I have a right!” Yup. You have a natural right to walk across any piece of land you choose…that hasn’t got a fence around it.

      • Obviously, when someone doesn’t understand the difference between rivalrous and non-rivalrous good, there’s going to be a mangled analogy about how the property (song, written text, etc.) needs to be protected. I’m just waiting for someone to make the “But it wants to be free, not as in beer” analogy to show how much maximalists don’t understand the market and ignore things they don’t understand.

        • There is much, much more that informs the law and its development than just economics and its principles such as rivalrous vs. non-rivalrous.

          If the law was simply about economics, then luminaries in the field of economics would be sitting as judges at the district, appellate and Supreme Court levels in both state and federal courts.

          • Right… Because the law is 100% correct in all circumstances and has no unintended consequences when a judge doesn’t understand all of the technobabble involved.

    • Well sure. I love it when people bring actual private property analogies into these kinds of debates. Private property is a right! Raaaaaaaaaa!

      Sure. If you want to bring land into this debate, I’ll have to remind you that if you are an American, your fundamentally living on pirated land.

      But, hey it’s so easy to forget the previous owners we basically genocided out of existence. Enjoy your stolen property.

    • Jay Posted January 13, 2012 at 12:46 pm – Right… Because the law is 100% correct in all circumstances and has no unintended consequences when a judge doesn’t understand all of the technobabble involved.

      Every law ever crafted since the dawn of time has had, and will continue to have, unintended/unforseen consequences. This is precisely why laws are constantly being amended and why we have a judiciary.

      You seem to call for perfection and see the crafting of laws as binary. Life is not so simple. It is analog, as much as that may pain others who see things only as black and white. The truth be known, gray is the predominant shade.

      • I’m not calling for perfection, but I sure am calling for better law making than what passes for it right now in the House and Senate. While Congress suffers with a 13% approval rating, and we should be fighting about the NDAA or the Keystone Pipeline. Instead, we have a battle about copyright because the MPAA isn’t satisfied in making enough money. Oh wait, I’m sorry, the RIAA doesn’t make enough to pay their lobbyists their $2 million a year. Yet when someone downloads 24 songs they should be charged for breaking an artificial scarcity in the market that just won’t go away. Meanwhile, we have other idiots saying blocking material through DNS is a good idea.

        I’m sure that a judge, who’s spent his entire life in the judicial system and hasn’t had to work one day in the engineering field, will understand why DNS is a bad thing to mess with.

        Or why the fight against piracy is a losing one same as drugs or terrorism. Yeah, I’m not skeptical that much when people don’t understand the difference in a digital and analog world. So to break trademark law for a second:

        “Live in your world ” <——————- dream

        "Play in ours." <—-reality

        I guess now I owe Sony $1 billion for trademark infringement… $1, $2…