Enemies of Monopoly of Brain-product

By , November 12, 2010.

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life. 1Who’s Who, 1907, pt II, pg 433. Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.” 2See the New York Times for an explanation of this saying. Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws. 3According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4“Property is theft” — Pierre-Joseph Proudhon. are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes” 5Roughly, “bees make honey not for themselves.” From Virgil. and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright. 6I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne, 7I.e., prior to the Statute of Anne, considered the first modern copyright law. when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS. 8MS. = manuscript. musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.” 9The Copyright Act 1842 extended copyright to musical compositions in England. This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd, 10Thomas Noon Talfourd. and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

References

References
↑1 Who’s Who, 1907, pt II, pg 433.
↑2 See the New York Times for an explanation of this saying.
↑3 According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.”
↑4 “Property is theft” — Pierre-Joseph Proudhon.
↑5 Roughly, “bees make honey not for themselves.” From Virgil.
↑6 I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.”
↑7 I.e., prior to the Statute of Anne, considered the first modern copyright law.
↑8 MS. = manuscript.
↑9 The Copyright Act 1842 extended copyright to musical compositions in England.
↑10 Thomas Noon Talfourd.

Copyright: Its Law and Literature, by R.R. Bowker

By , October 29, 2010.

The following is an excerpt from Copyright: Its Law and Literature, written by Richard Rogers Bowker. Published in book form in 1886 (it was first published as a series of articles in Publishers’ Weekly the year before), the book was, according to the preface by Bowker, “an attempt to give in brief and simple shape a comprehensive view — such as did not exist, despite an evident need — of the principles, history, and present law of copyright, domestic and international.”

I found the excerpt to be interesting, not only as history, but also because many of the concepts he talks about are still debated today. He explains difficult concepts like the difference between a copyright and a copy, concepts that continue to cause confusion. Arguments that are very much alive today — how can copyright be valid if every work builds on previous works, for example — are addressed. There’s little new in the copyright debates, and Bowker’s telling of the copyright story is a good read.

Bowker was editor of Publisher’s Weekly and Harper’s magazine, as well as a strong proponent of libraries. After his death, the American Library Association included him as one of the 100 most important leaders they had in the 20th century.

Bowker lived during a time when there was a great deal of interest in “international copyright.” Copyright: Its Law and Literature was published the same year the Berne Convention for the Protection of Literary and Artistic Works was completed. Bowker was a strong proponent of international copyright; one of his motivations for writing the book was the hope “that the United States will not long remain almost the only exception among civilized nations in rejecting international copyright.” 1Though the US joined a number of international copyright agreements in the early 20th century, it did not become a party to the Berne Convention until 1989.

Of historical note, the book includes a comprehensive bibliography of books, articles, and legal cases relating to literary property and copyright compiled by a Library of Congress staffer named Thorvald Solberg. Solberg went on to become the first US Register of Copyrights in 1897.

Much of the book was substantially updated and incorporated into Bowker’s later work Copyright: Its History and Its Law, published in 1912. This second work has been widely cited by courts since then, including the Supreme Court, and as recently as EMI April Music v. White in 2009. 2618 F.Supp.2d 497, 503 (E.D. Virginia).

CHAPTER 1: THE NATURE AND ORIGIN OF COPYRIGHT.

COPYRIGHT (from the Latin copia, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.

There is another legal sense of the word “copyright” much emphasized by several English justices. Through the low Latin use of the word copia, our word “copy” has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the “copy” set in his copy-book, and the modern printer calls for the author’s “copy.” Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards: “When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to it at composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing.” Baron Parks, in the same case, pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of multiplication, which alone has been the subject of special statutory protection.

There is nothing which may more properly be called property than the creation of the individual brain. For property means a man’s very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of own-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual, thinking it, had put it aside without such record, it would not, in any practical sense, exist. We cannot know what “might have beens” of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity to so materialize their thoughts.

It is sometimes said, as a bar to this idea of property, that no thought is new — that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy — aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land Farmer Smith can; but Shakespeare cannot write “Paradise Lost” nor Milton “Much Ado,” though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

Property right in unpublished works has never been effectively questioned — a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has “supreme control” over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent.” If he lends a copy to another,” says Baron Parks, “his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it he has a right to enforce that undertaking.” The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer’s consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

It is at the moment of publication that the undisputed possessory right passes over into the much-disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use — that is, get beneficial results from his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain “an implied undertaking” that the buyer has liberty to use his copy but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one’s property by others without the owner’s consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one’s own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

References

References
↑1 Though the US joined a number of international copyright agreements in the early 20th century, it did not become a party to the Berne Convention until 1989.
↑2 618 F.Supp.2d 497, 503 (E.D. Virginia).