Frames for Copyright
Lewis Hyde, author of The Gift, has a wonderful essay entitled _Frames from the Framers: How America’s Revolutionaries Imagined Intellectual Property _about the differing perspectives on copyright present during the drafting of the US Constitution. I have written of historical perspectives on copyright before, but Hyde outlines 3 different frames in which creative works and copyright existed (via BoingBoing):
1. The common gift from god:
The oldest model, I suspect, is one that takes the fruits of human creativity to be gifts from the gods, the muses, or the ancient ones and, as a corollary, takes it that such works therefore should not be bought and sold (nor can they be exactly forged, plagiarized, or stolen). Such was the traditional understanding for medieval Christians, their dictum being Scientia Donum Dei Est, Unde Vendi Non Potest–“Knowledge is a gift from God, consequently it cannot be sold.” To sell knowledge was to traffic in the sacred and thus to engage in the sin of simony. Reformation Protestants were particularly sensitive to simony, having charged the Catholic church with the buying and selling of ecclesiastical preferments and benefices. Martin Luther said of his own created works, “Freely have I received, freely I have given, and I want nothing in return.”
I suppose that in the present moment if you were a Lutheran choir director who download hymns for your congregation and the music industry sued, saying that the work had been copyrighted and that “theft was theft,” you ought to be able to shift the frame by replying: “simony is simony.” I doubt that you’d find much support in the American legal tradition, however, even in its early years. Reformation ideas about knowledge had been considerably altered by the time the founders framed their own.
2. Ownership of the Landed Estate:
The second frame does not necessarily conflict with the religious background of the “common stock” [or “free as the air”] frame, but its point of departure is decidedly of this world, more focused on the problem of freeing individual talent from patronage and also, therefore, more at ease withcommerce. Here the dominant metaphor was the landed estate, an image that had the advantage, for partisans of strong intellectual property rights, of borrowing from people’s assumptions about real estate. “We conceive [that] this property is the same with that of Houses and other Estates,” declared London booksellers when first threatened with a limit to the term of their copyrights. They beg the question, of course, of what exactly we assume such property entails (there are many kinds of estates, as we shall see in the next section), but as with most compelling frames, the intuitive response is what matters, not complexities hidden beneath the surface. Shouldn’t all property, even a bookseller’s copyright, be “safe as houses”?
Monopoly had a marked historical meaning for early theorists of intellectual property, seventeenth-century Puritans having begun their argument with royal power over exactly this issue. As the historian and statesman Thomas Babington Macaulay explains in his History of England, Puritans in the House of Commons long felt that Queen Elizabeth had encroached upon the House’s authority to manage trade having, in particular, taken it “upon herself to grant patents of monopoly by scores.” Macaulay lists iron, coal, oil, vinegar, saltpetre, lead, starch, yarn, skins, leather, and glass, saying that these “could be bought only at exorbitant prices.”
Macaulay doesn’t list printing in his History, but it was the case that in the late sixteenth century the Queen’s printer, Christopher Barker, held monopoly rights to the Bible, the Book of Common Prayer, and all statutes, proclamations, and other official documents. And Macaulay does mention monopoly in his 1841 Parliamentary speech in opposition to a proposed extension to the term of copyright. “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly,” he said, asking rhetorically if the Parliament wished to reinstate “the East India Company’s monopoly of tea, or … Lord Essex’s monopoly of sweet wines”?
The understanding of copyright as monopoly was not Macaulay’s invention; it was almost as old as copyright itself. In 1694 John Locke–a strong supporter of property rights in other respects–had objected to copyrights given by government license as a form of monopoly “injurious to learning.” Locke was partly concerned with religious liberty, the laws in question having been written to suppress books “offensive” to the Church of England, but mostly he was distressed that works by classic authors were not readily available to the public in well-made, cheap editions (he himself had tried to publish an edition of Aesop only to be blocked by a printer holding an exclusive right). “It is very absurd and ridiculous,” he wrote to a friend in Parliament, “that any one now living should pretend to have a propriety in … writings of authors who lived before printing was known or used in Europe.” Regarding authors yet living, Locke thought they should have control of their own work, but for a limited term only. As with Macaulay, his framing issue was monopoly privilege, not property rights.