Copyhype

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.