Against a Sea of Troubles

Piracy has been a scourge from the earliest days of the printing press, but are today’s cures worse than the disease? A review essay of Adrian Johns’ Piracy: The Intellectual Property Wars from Gutenberg to Gates (University of Chicago Press, 2010). Piracy has been a scourge from the earliest days of the printing press, but are today’s cures worse than the disease?

If you think our generation has an “intellectual property” piracy problem unlike that at any other time in history, it’s an enlightening experience to read Adrian Johns’ most recent work, Piracy: The Intellectual Property Wars from Gutenberg to Gates. As Johns explains in the opening chapters, piracy has been a relatively serious problem even from the earliest days of the printing press. Long before the invention of sophisticated computer technology to do the copying, printers’ sheets for books were stolen from publishers’ premises and republished. Most notably, bootleg copies of plays were produced based on what one or more “pirates” had managed to scribble down during a performance or tried to remember after the fact. A maddening and often fruitless effort was made to keep genuine copies of a work from being hawked side by side with their pirated versions. Elizabethans, for example, buying the bootleg version of Hamlet, printed in 1603, would discover that the pivotal phrase in the “To be or not to be” soliloquy was the not-so-memorable, misheard, and miscopied, “Aye, there’s the point!”

Johns’ work is a massive survey (over 600 detailed pages) of the complexities involved in the matter of theft, over the centuries, of productions of the mind. He begins with an account of the word “piracy” itself and how it first came to be connected with this type of activity. No mention of piracy (as literary theft) is made by Shakespeare, Ben Jonson, Spenser, Marlowe, Francis Bacon, Hobbes, or Milton. By the end of the 17th and the start of the 18th centuries, however, the word is liberally sprinkled through the works of such prominent writers of the era as Defoe, Swift, Addison, Gay, and Pope–in part because of the piracy of their own books. 

That the theft of literary works was this common early in the history of moveable type may be as surprising to some readers as Johns’ account of the slow recognition of an author’s property rights with respect to her or his own work. How this idea developed figures prominently in the opening chapters. Early book production and selling, Johns explains, was organized, carried out, and regulated as a craft –an organizational scheme which preceded even the introduction of the printing press in England. Hence, at the turn of the 15th century, a guild of “stationers”- those involved in the creation, binding and selling of manuscripts (works written or copied by hand)-was formed. 

After 1471, however, the introduction of the printing press by William Caxton changed dramatically the way books were produced and brought the guild new responsibilities as well as new rewards. An example of this is Queen Mary’s issuing to the Worshipful Company of Stationers of London (as it became known) of a royal charter in 1557 that empowered it to oversee all binders, booksellers, and printers. The monopoly was established on the understanding that the company would approve only books that  had been authorized, in addition to policing the publication of seditious material. 

“Authorized” book printing and selling in this early sense meant the requirement of a licence (usually obtained by the bookseller) from an authority connected with the Crown or the church. Actual authors might be given some money for their literary work; this practice, however, was viewed strictly as a reward for work rather than an acknowledgement of property ownership. True ownership was denoted in the registration system at Stationers’ Hall, into which the bookseller/publisher (often one and the same) would record the title, author, and other relevant characteristics of the work. Proprietary control was established as a result of registration, and the Stationers’ Hall register came to be viewed as a record of ownership. 

The first assertion of the author’s ownership of a work (as opposed to the publisher/bookseller’s) came about as the result of a challenge to the monopoly held by the Company of Stationers in the 17th century. Richard Atkyns, who held a lucrative patent from the King entitling him alone to publish books on the common law, challenged the over-riding power of the Company. In his pamphlet The Original and Growth of Printing, Atkyns urged the King to break up the monopoly and allow non-company members to print and sell books. Proceedings were initiated, in 1664, to strip the company of its authority. At this juncture, the booksellers countered with one of the earliest known statements of the principle of property with respect to publications: that an author, with regard to a manuscript, had “as good right thereunto, as any Man hath to the Estate wherein he has the most absolute property.”  That right, they claimed, the author then sold to the bookseller, who in turn registered it with the company.

It’s worth repeating that, until this point in the history of publishing, there had never been a clear articulation of a property right as a result of authorship. It was an entirely novel point of view. The argument, however, failed, and the stationers’ powers were radically curtailed. A decade and a half of rampant piracy of literary works then ensued until  it was curtailed by the Statute of Anne (1710), the first copyright act in England.

I’m sure it will be a surprise to many readers to learn that copyright legislation isn’t the latest fad but, rather, is more than 300 years old. For the next several chapters Johns deals with the battle over pirated books, inventions, and pharmaceuticals and then looks at the first wave of full-blown music piracy-that of musical scores printed for homeowners with pianos. The ingenuity which has gone into the theft of literary works of art, discoveries, and mechanical and other forms of innovation is staggering. As for 20th-century forms of piracy listed by Johns, we are quite familiar with most of them: musical recording bootleggers, homeowners who use VCRs and cassette tapes to tape television shows and music, stolen radio and long distance telephone signals, computer software, movies, and so on. The catalogue seems interminable; we are left wondering whether there are any media or inventions the pirates have not attempted to acquire for their own use or profit.

Yet, the situation is not without its share of ironies. Throughout the history of this particular form of theft, both the pirates and those who have enjoyed the fruits of this forbidden activity have often claimed to have motives nobler than mere profit or the pleasure of not paying for valuable goods. During the War of Independence, for example, early American publishers who reprinted British books without permission claimed that what they were doing was a revolutionary act. By making their reprints of books smaller, easier to carry, and less expensive than the authorized equivalents, they were performing a true act of patriotism -the democratization of cultural works.

Similarly, at the turn of the 20th century, when piano ownership in England skyrocketed (one house in 10), pirates sold sheet music more cheaply than the authentic versions. They maintained they were acting out of love for their fellows by helping to spread music to those who might not be able to afford it otherwise. Now who could argue with that?

The situation was not improved, Johns notes, when, after the First World War, the U.S. redistributed “foreign companies’ patents (those of allies as well as the defeated Germans) . . . the legality of this hugely important move was unclear but few in the United States, at least, would have called it piracy.”  Indeed, early record piracy was caused by groups of music enthusiasts (opera and jazz) who were interested first and foremost in capturing, preserving, and distributing their particular genre of music. These pirates perceived record companies to be capitalist enterprises strictly interested in generating a profit; in contrast, real lovers of music were driven to piracy because of their normative view of recording.

Although Johns is more interested in discussing the act of piracy  than in exploring its motives, most readers will be unable to peruse these pages without experiencing their own form of moral ambivalence. As the author moves from century to century and from one form of piracy to the next, the reader is forced continually to reassess what constitutes “theft” and what distinguishes stealing intellectual and cultural property from making off with other forms of property. Certainly this is not a black-and-white issue. Why, for example, are we inclined to view the professor who distributes poetry to her or his class without the proper permissions, or who shows a film without public performance rights, in quite a different way than we do someone who breaks into cars? Even closer to home: why would we ourselves, who would never dream of stealing from a store, have few qualms about downloading a song from the internet, or taping a movie to share with friends?

Generations of scholars have explored such questions and have struggled to find fully satisfactory answers by refining the questions themselves. What is the nature of property in intellectual property? What are the rights of “ownership” of this sort? Academics such as Mark Alfino (“Intellectual Property and Copyright Ethics”, Business and Professional Ethics Journal, 10.2 (1991): 85-109) have been known to cite the famous jurist William Blackstone. In his Commentaries on the Laws of England (1765-1769), Blackstone compared the act of writing/publishing to giving a visitor temporary access to private property. The act of enjoying a book written by another, said Blackstone, is  “like making a way through a man’s own private grounds, which he may stop at pleasure; he may give out a number of keys, by publishing a number of copies; but no man who receives a key, has thereby a right to forge others, and sell them to other people.” Additionally, William Enfield, a contemporary of Blackstone, commented in Observation on Literary Property (The Monthly Review, Nov. 1774) that an author’s right to her or his literary composition was founded not only in “occupancy or primary possession” but also—very importantly–in her or his labour. According to Enfield, whilst one person  cultivates the  land and produces food, another harvests the  mind for ideas: “It seems but equitable, that a fair exchange should be made of these goods; and that one man should live by the labor of his brain, as well as another by the sweat of his brow.” 

Today, our copyright and other intellectual property laws attempt to address the peculiar characteristics of the property that early writers tried so hard to define. This legislation tries to provide a correspondingly peculiar type of protection for the property by ensuring the creator may profit exclusively from her or his  creation, literary or otherwise—but only for a specified number of years. Its purpose, we are told, is to promote creativity and innovation by providing economic incentive to those individuals who create, produce, and discover. Eventually, the public will be able to use, reuse, repackage, or build upon the creator’s work. 

Yet whether these laws actually do promote innovation and creativity is hotly debated. As a recent article in the Economist astutely observes: “Authors and artists do not generally consult the statute books before deciding whether or not to pick up a pen or paintbrush. And overlong copyrights often limit, rather than encourage, a work’s dissemination, impact and influence” (“Copyright and Wrong,” 10 April 2010). The article particularly laments overlong copyright protection (lifetime of the creator plus 50 years in Canada, 95 years in the U.S.); it suggests the Statute of Anne’s 14 years copyright protection for new books (with an additional 14 years, if the author was still alive at the end of the first 14) was in fact far more reasonable than the current state of the law.

Many of us in academia, aware of the cavalier way in which creators have been treated in the not-too-distant past, are whole-hearted supporters of the protection of their rights. Yet we are all too painfully aware how fears of copyright violation may arbitrarily impinge upon an essential element of the academic endeavour–the use and dissemination of knowledge. The content of our coursepacks must be cleared before we attempt to distribute them to students; our websites dare not contain links to assigned reading material; and permissions must be obtained for every graph and chart  we wish to reproduce. As teachers and researchers, we are reminded at every turn how close we may be to outright law breaking .

Our institutions themselves now share this paranoia. Access Copyright (the Canadian Copyright Licensing Agency) collects a fee from schools, libraries, and similar institutions for copying print and digital works; it then redistributes those funds to rights holders, both publishers and authors. This is, of course, a valuable service. But it also holds over university  administrators, book stores, and campus copy centres the ongoing threat of copyright infringement proceedings. Even though the Supreme Court of Canada has said that “those who deal fairly with a work for the purpose of research, private study, criticism, review, or news reporting, do not infringe copyright” (see CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339), our institutions don’t seem to be convinced. As a result, cash-strapped educational facilities are reluctant to test the waters in a full-blown (and, no doubt, expensive) court case that would once and for all define the boundaries of copyright. They therefore continue to pay yearly licensing fees to Access Copyright.

How long this timidity will continue is unclear. Early in 2010, Access Copyright asked the Copyright Board of Canada to allow it to charge of levy of $45 per student (up from the current charge of about  the $5 a student) to cover students and teachers who do digital and print copying in the library, or for copying course materials and class handouts. Some universities balked and decided at the time not to pay up. The question is whether we are heading toward a stand-off sooner, or later, or at all.

For Johns, however, threats of copyright infringement proceedings are probably the least frightening of the new anti-piracy measures. In the final section of the book, he tells us about much more insidious elements of this brave new world. In it, some companies specialize in anti-piracy software that attaches itself to personal computers and monitors computer use. This software may also (sometimes deliberately) deposit a virus or, at least, leave the computer vulnerable to other internet viruses. Johns also points out that, in the U.S., periodic lawsuits are launched, not against faceless and relatively well-heeled institutions, but against far more vulnerable targets: even individual students and single mothers who have used file sharing software are prosecuted. Such suits are meant have the desired chilling effect on all of us: Big Brother is watching.

Johns ends on a note of uneasiness. The balance between creators’ rights, the enjoyment of cultural works, and the latest technological advances is clearly out of joint. On the one hand, how can well-grounded research be carried out when we are denied access to the information we need, or when, in the case of the life sciences and agriculture, more and more patenting shuts us out? On the other hand, what is to happen to the idea of justice in copyright when Google, as it plans to do, scans every book? How can we ensure that “fair use” is fair? Johns suggests in the final pages of this very illuminating book that the response to piracy may have far overshadowed the problem it set out to resolve and that  response  now threatens us far more profoundly than we could ever have imagined.

Nancy McCormack is Head, Law Library and Associate Professor of Law at Queen’s University.